Gutierrez v. Wichita Police Department et al

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days from the date of this order in which to either pay the $350.00 filing fee in full or submit a properly-supported motion to proceed without prepayment of fees upon court-approved forms. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for all the reasons set forth herein including failure to state a federal constitutional claim and expiration of the statute of limitations. Signed by Senior District Judge Sam A. Crow on 4/25/2013. (Mailed to pro se party Juan Carlos Gutierrez by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JUAN CARLOS GUTIERREZ,
Plaintiff,
v.

CASE NO.

13-3047-SAC

WICHITA POLICE DEPT.,
et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the Giles W. Dalby Correctional Facility, Post,
Texas.

Mr. Garcia seeks the return or “equivalent value” of property

that he claims was seized “pursuant to his detention by WPD officer”
and forfeited without notice.

Plaintiff is required to satisfy the

filing fee and to show cause why this action should not be dismissed
on several grounds including his failure to state a federal
constitutional claim and expiration of the statute of limitations.

FILING FEE
The statutory fee for filing a civil action in federal court
is $350.00.

Mr. Gutierrez has not paid this fee.

Nor has he

submitted a motion for leave to proceed without prepayment of fees.
This action may not proceed unless and until plaintiff satisfies the

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filing fee in one of these two ways.
28 U.S.C. § 1915 requires that a prisoner seeking to bring an
action without prepayment of fees submit a motion together with an
affidavit described in subsection (a)(1), and a “certified copy of
the trust fund account statement (or institutional equivalent) for
the prisoner for the six-month period immediately preceding the
filing” of the action “obtained from the appropriate official of each
prison at which the prisoner is or was confined.”
1915(a)(2).

28 U.S.C. §

A Motion to Proceed without Prepayment of Fees must be

submitted upon court-approved forms.

If plaintiff does not satisfy

the filing fee by either paying the full fee or submitting a properly
supported motion within the time allotted, this action may be
dismissed without prejudice and without further notice.
Mr. Gutierrez is reminded that under § 1915(b)(1), being granted
leave to proceed without prepayment of fees will not relieve him of
the obligation to pay the full $350.00 fee for each civil case that
he files in federal court.

Instead, it merely entitles him to pay

the fee over time through payments automatically deducted from his
inmate trust fund account as authorized by § 1915(b)(2).1

ALLEGATIONS AND CLAIMS
As the factual background for this lawsuit, plaintiff alleges
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If leave is granted, the Finance Office of the facility where plaintiff is
currently confined will be authorized pursuant to § 1915(b)(2) to collect twenty
percent (20%) of the prior month’s income each time the amount in plaintiff’s
account exceeds ten dollars ($10.00) until the filing fee has been paid in full.

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the following.

On September 29, 2010, he was arrested by the Wichita

Police Department (WPD) on drug trafficking charges in case no.
10C069667, and his personal property was seized and detained by the
WPD.

The property seized and forfeited included $2,723.76 in U.S.

currency, clothes, jewelry, cell phones, a 2004 Cadillac Escalade,
and other miscellaneous items.

In 2011, plaintiff was “designated

to the Federal Correctional Institution.”

In November, 2012,

Gutierrez sent a letter to the WPD seeking return of part of the
currency and the Cadillac.

He exhibits a letter from a detective

at the WPD dated November 6, 2012, in which he was informed that a
forfeiture action had been filed on all money seized in the case,
which was $2723.76, that all but $281.00 of this amount “came from
other persons or locations” than Mr. Gutierrez, and that the currency
was awarded to the WPD under “District Court Case number 11CV4042”
in November 2011.

Plaintiff was also informed that the only vehicle

seized, a 2004 Cadillac Escalade, had been “picked up by the lien
holder” credit union.
Plaintiff claims that defendants acted without due process and
with deliberate indifference to his constitutional rights by failing
to provide him with adequate notice of the judicial forfeiture and
the disposition of his Cadillac, in legally holding and then
releasing his vehicle to the lien holder, and by forfeiting his
currency.

In addition, he asserts that defendants’ acts violated

his right to be free from illegal seizures and forfeitures.
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Plaintiff seeks “the return of $2640.00 in U.S. currency, a 2004
Cadillac, and all other property that was seized pursuant to his
detention by WPD officer.”

He also seeks “the equivalent value of

$18,000.00,” punitive damages of $10,000, compensatory damages of
$8,000, and costs.
Plaintiff alleges that he has not initiated any other lawsuit
in state or federal court dealing with the same facts.

In response

to the question on his form complaint regarding administrative
remedies, he refers only to the letter he wrote to the WPD and the
response.

SCREENING
Because Mr. Gutierrez is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim upon which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

1915(e)(2)(B).

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

“To state a claim under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”

West v.

Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

A court liberally

construes a pro se complaint and applies “less stringent standards
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than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

Moreover, the court accepts all well-pleaded

allegations in the complaint as true.
910, 913 (10th Cir. 2006).

Anderson v. Blake, 469 F.3d

Nonetheless, a pro se litigant’s

“conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.”
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Hall

The court “will

not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).

To

avoid dismissal, the complaint must contain “enough facts to state
a claim to relief that is plausible on its face.”

Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)(citation omitted).

The

complaint must offer “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.”
555.

Id. at

Having screened all materials filed under these standards, the

court finds that the complaint is subject to dismissal for the
following reasons.

DISCUSSION
Plaintiff’s claim of illegal search and seizure is nothing more
than a “formulaic recitation of the elements of a cause of action.”
He makes the bald statement that this constitutional right was
violated,

but

alleges

no

facts
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whatsoever

regarding

the

circumstances of a search or seizure to support such a claim.
With respect to plaintiff’s claim of wrongful deprivation of
property, even if the court accepts as true plaintiff’s allegations
that his property was improperly taken, held, or disposed of by WPD
employees,

plaintiff

fails

violation under § 1983.

to

state

a

federal

constitutional

This is because Kansas provides adequate

post-deprivation remedies to persons who believe they have suffered
a tortious loss at the hands of state or local officials; and where
the State provides an adequate remedy, that remedy itself constitutes
the due process required by the Fourteenth Amendment.

Plaintiff’s

allegations indicate that he has not utilized the state court
remedies that are available.

He has not filed a motion in the state

district court that issued the seizure warrant or in the state
district court in which the state forfeiture proceedings were
conducted.

He does not allege that he has filed any sort of tort

claim in state court, and instead reveals that he has filed no state
action.

Plaintiff’s allegations in no way suggest that state-court

remedies were unavailable.

See United States v. Copeman, 458 F.3d

1070, 1073 (10th Cir. 2006).

The court finds no other fact

allegations in the complaint that, even when liberally construed,
amount to a federal constitutional violation under § 1983.
Finally,

the

court

notes

that

according

to

plaintiff’s

allegations in the complaint, the alleged property seizures occurred
on September 29, 2010.

This complaint was not filed until March
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2013, which is more than two years after the events upon which the
complaint is based.

The statute of limitations in a § 1983 lawsuit

is that of the general personal injury statute in the state where
the action arose.

Beck v. City of Muskogee Police Dept., 195 F.3d

553, 557 (10th Cir. 1999).

In Kansas, that is two years.

It thus

appears from the face of the complaint that plaintiff’s claims under
§ 1983, if any, are barred by the applicable two-year statute of
limitations.
Plaintiff is given time to satisfy the filing fee and to show
cause why this action should not be dismissed for the reasons stated
herein.

If he fails to do so within the prescribed time, this action

may be dismissed without further notice.
IT IS THEREFORE ORDERED that plaintiff is given thirty (30) days
from the date of this Order in which to either pay the $350.00 filing
fee in full or submit a properly-supported motion to proceed without
prepayment of fees upon court-approved forms.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to show cause why this action should not be
dismissed for all the reasons set forth herein including failure to
state a federal constitutional claim and expiration of the statute
of limitations.
The clerk is directed to send IFP motion forms to plaintiff.
IT IS SO ORDERED.
Dated this 25th day of April, 2013, at Topeka, Kansas.
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s/Sam A. Crow
U. S. Senior District Judge

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