VALLEJO v. UNITED STATES OF AMERICA et al

Filing 6

OPINION FILED. Signed by Judge Noel L. Hillman on 8/6/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA, et al., :
:
Defendants.
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___________________________________:
CARLOS VALLEJO,

Civ. No. 13-5455(NLH)
OPINION

APPEARANCES:
Carlos Vallejo, #41351-050
USP Canaan
P.O. Box 300
Waymart, PA 18472
Plaintiff, pro se

HILLMAN, District Judge
Plaintiff Carlos Vallejo, a prisoner confined at the United
States Penitentiary Canaan in Waymart, Pennsylvania, seeks to
bring this action in forma pauperis pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671, et
seq., alleging tort claims and violations of his constitutional
rights when agents of the Drug Enforcement Administration seized
his property during Plaintiff’s arrest on January 25, 2007.
On March 31, 2015, Plaintiff’s application to proceed in
forma pauperis was conditionally granted subject to the
condition that Plaintiff must submit to the Court a certified

six-month institutional account statement, signed by an
appropriate institutional official. (ECF No. 4).

On April 15,

2015, Plaintiff submitted the required documentation and
satisfied the conditions. (ECF No. 5).

Accordingly, he is

granted in forma pauperis status and the Court will now conduct
its sua sponte screening.
For the reasons set forth below, the Complaint will be
DISMISSED without prejudice.
I.

BACKGROUND

Plaintiff was arrested on January 25, 2007 by Drug
Enforcement Administration (“DEA”) Special Agents and was
subsequently indicted for conspiracy to distribute more than 5
kilograms of cocaine and more than 50 grams of cocaine base in
violation of 21 U.S.C. § 846; as well as two substantive counts
of possession with intent to distribute cocaine and cocaine base
in violation of 21 U.S.C. § 841. 1

1

On October 23, 2007, following the guilty pleas of several
codefendants, Plaintiff was charged in a Superseding Indictment
with conspiracy to distribute cocaine and cocaine base,
knowingly and intentionally distributing and possessing with
intent to distribute cocaine and cocaine base, contrary to 21
U.S.C. §§ 841(a)(1) and (b)(1)(A) and in violation of 21 U.S.C.
§ 846. On December 14, 2007, a jury convicted Plaintiff of all
counts. Due to Plaintiff’s two prior drug distribution
convictions, an Enhanced Penalty Information was filed and
Plaintiff was sentenced to mandatory life imprisonment on
October 15, 2008. See United States v. Vallejo, Crim. No. 07-145
(NLH)(D.N.J.).
2

Plaintiff asserts that, during this arrest, special agents
seized $160,000 in United States currency and two Harley
Davidson motorcycles, which Plaintiff states are valued at
approximately $20,000.

Plaintiff contends that seizure of this

property violated his rights under the Fourth and Fifth
Amendments of the Constitution.
Plaintiff previously brought this issue before the Court in
conjunction with his underlying criminal matter in the form of a
Motion to Set Aside a Civil Forfeiture Pursuant to 18 U.S.C. §
983(e)(5). United States v. Vallejo, Crim. No. 07-145, ECF Nos.
198, 199.

In an Order dated July 25, 2013, the Court denied

Plaintiff’s motion on the basis that, at that time, there was no
case or controversy before the Court regarding the items
forfeited.

The Court noted that, based on the documents

submitted by the Government in opposition to Vallejo’s motion,
the items were forfeited under an administrative action which
bears an Administrative Case Number CX-5-009. United States v.
Vallejo, Crim. No. 07-145 (D.N.J. Sept. 4, 2013) ECF No. 203 at
n.1.
This Court further noted that Plaintiff could pursue his
claims in a separate civil action but that he “may have the
option of, or be required to, contest the forfeiture
administratively prior to the filing of his civil complaint in
the United States District Court.” Id., ECF No. 203 at n.2.
3

Plaintiff attaches a copy of this Order to his Complaint.
(Compl. 7-9, ECF No. 1).
On September 8, 2013, Plaintiff filed the instant
Complaint.

He seeks return of $160,000 in U.S. currency as well

as the value ($20,000) of the two Harley Davidson motorcycles.
II.

STANDARD OF REVIEW

Per the Prison Litigation Reform Act, Pub.L. 104–134, §§
801–810, 110 Stat. 1321–66 to 1321–77 (Apr. 26, 1996) (“PLRA”),
district courts must review complaints in those civil actions in
which a prisoner is proceeding in forma pauperis, see 28 U.S.C.
§ 1915(e)(2)(B), seeks redress against a governmental employee
or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
respect to prison conditions, see 42 U.S.C. § 1997e.

The PLRA

directs district courts to sua sponte dismiss any claim that is
frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.
“The legal standard for dismissing a complaint for failure
to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is
the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F.
App'x 120, 122 (3d Cir. 2012) (per curiam) (citing Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v.
Beard, 492 F. App'x 230, 232 (3d Cir.2012) (per curiam)
4

(discussing 42 U.S.C. § 1997e(c)(1)); Courteau v. United States,
287 F. App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. §
1915A(b)).

That standard is set forth in Ashcroft v. Iqbal, 556

U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007), as clarified by the United States Court of
Appeals for the Third Circuit.
To survive the court's screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308
n. 3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

“[A]

pleading that offers ‘labels or conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In addition to the complaint, courts may consider matters
of public record and other matters of which a court may take
judicial notice, court orders, and exhibits attached to the
complaint when adjudicating a motion to dismiss under Rule
12(b)(6), and hence, also under the PLRA screening provisions).
5

See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1385 n. 2 (3d Cir. 1994).
Finally, pro se pleadings will be liberally construed.
Nevertheless, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21
(1972).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)), cited
in Thomaston v. Meyer, 519 F. App'x 118, 120 n. 2 (3d Cir.
2013); Shane v. Fauver, 213 F.3d 113, 116–17 (3d Cir. 2000)
(dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v.
Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III. DISCUSSION
Plaintiff has asserted causes of action under both Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and
the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671,
et seq. (“FTCA”). (Compl. 2, ECF No. 1).

6

A. CLAIMS UNDER BIVENS
Plaintiff’s claims pursuant to Bivens must be dismissed as
time-barred. See McPherson v. United States, 392 F. App'x 938,
943 (3d Cir. 2010) (holding that when a statute-of-limitations
defense is apparent from the face of the complaint, a court may
sua sponte dismiss the complaint pursuant to 28 U.S.C. § 1915 or
28 U.S.C. § 1915A); see also Smith-Harper v. Thurlow, No. 151254, 2015 WL 3401419, at *3 (D.N.J. May 26, 2015).
Like civil rights claims brought pursuant to 42 U.S.C. §
1983, the statute of limitations for Bivens claims is taken from
the forum state's personal injury statute. Hughes v. Knieblher,
341 F. App'x 749, 752 (3d Cir. 2009); see also Kost v.
Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); Napier v. Thirty or
More Unidentified Fed. Agents, Employees or Officers, 855 F.2d
1080, 1087 n. 3 (3d Cir. 1988) (noting that the same statute of
limitations applies to both Bivens and § 1983 claims).

New

Jersey's statute of limitations for personal injury causes of
action is two years. N.J. Stat. Ann. § 2A:14-2.
A Bivens claim accrues when the plaintiff knows, or has
reason to know, of the injury that forms the basis of the
action. Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599
(3d Cir. 1998).
In this case, Plaintiff explains that the Drug Enforcement
Administration (“DEA”) and certain unknown agents seized
7

Plaintiff’s property during his arrest, which occurred on
January 25, 2007.

However, Plaintiff did not file the instant

action until September 8, 2013, more than six years after the
seizure.

Additionally, the filing of this Complaint came nearly

five years after Plaintiff had been convicted, sentenced and
judgment had been entered against him, on October 17, 2008.
United States v. Vallejo, Crim. No. 07-145 (D.N.J. Sept. 4,
2013) ECF No. 159.

Thus, the instant action was commenced long

after the two-year statute of limitations for a Bivens claim had
expired and Plaintiff has not offered any reason why the statute
of limitations should be tolled. 2

Accordingly, Plaintiff is

barred by the statute of limitations from pursuing his Fourth
and Fifth Amendment claims based on the property seizure that
occurred during his arrest.

His claims pursuant to Bivens are

dismissed.
B. FTCA
Plaintiff also asserts a cause of action against the United
States under the Federal Tort Claims Act (“FTCA”).

The United

States has sovereign immunity except where it consents to be
sued. United States v. Bormes, 133 S. Ct. 12, 16, 184 L. Ed. 2d

2

The Court notes that Plaintiff filed a motion in the underlying
criminal case, United States v. Vallejo, Crim. No. 07-154 (NLH)
(D.N.J.), on May 6, 2013 in which he contested the forfeiture of
this property. However, that motion was also filed more than
four years after the criminal case had been closed and over six
years after the seizure occurred.
8

317 (2012); United States v. Mitchell, 463 U.S. 206, 212, 103
S.Ct. 2961, 77 L.Ed.2d 580 (1983).

In the absence of such a

waiver of immunity, a plaintiff cannot proceed in an action for
damages against the United States. See FDIC v. Meyer, 510 U.S.
471, 484–87, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).

The Federal

Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671, et seq.,
however, constitutes a limited waiver of the sovereign immunity
of the United States. 28 U.S.C. § 2679(b)(1); White–Squire v.
United States Postal Service, 592 F.3d 453, 456 (3d Cir. 2010).
1. PREREQUISITE TO FILING FTCA CLAIM
Under the FTCA, a plaintiff may not bring suit against the
United States “for injury or loss of property ... caused by the
negligent or wrongful act or omission of any employee of the
Government ... unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing.” 28 U.S.C. §
2675(a).

“In other words, it is a jurisdictional prerequisite

to a suit under the FTCA that a plaintiff have exhausted all
administrative remedies.” Castillo-Perez v. City of Elizabeth,
No. 11-6958, 2014 WL 1614845, at *14 (D.N.J. Apr. 21, 2014)
(citations omitted); see also Santos ex rel. Beato v. United
States, 559 F.3d 189, 193 (3d Cir. 2009) (finding that to make a
claim under the FTCA, a claimant first must file the claim with
the administrative agency allegedly responsible for the
9

injuries) (citations omitted); Mendez v. United States, No. 051716, 2007 WL 1652267, at *1 (D.N.J. June 4, 2007) (“The FTCA
waives the federal government's immunity from suit for certain
tort claims as long as a claimant follows proper claim
procedures.”).
In this case, Plaintiff does not allege that he previously
filed a claim regarding the return of his property with the DEA.
Moreover, a footnote in the Order Plaintiff attaches to his
Complaint suggests that Plaintiff has not initiated any
administrative action with the DEA for return of the property.
(Compl. 9, ECF No. 1); United States v. Vallejo, Crim. No. 07145 (D.N.J. Sept. 4, 2013) ECF No. 203 at n.2 (“The Court
expresses no opinion as to whether or not such an administrative
appeal is required or is time-barred.”).
Because Plaintiff has failed to allege that he previously
filed a claim with the administrative agency responsible for his
injuries, this Court lacks jurisdiction to consider his claims
under the FTCA. See e.g. Bialowas v. United States, 443 F.2d
1047, 1049 (3d Cir. 1971) (cited in Castillo-Perez, No. 11-6958,
2014 WL 1614845, at *14); Berenato v. United States, No. 064355, 2007 WL 2990626, at *2 (D.N.J. Oct. 9, 2007) (“The
statutory language is clear that a court does not have
jurisdiction before administrative remedies have been exhausted,
and a court must dismiss any action that is initiated
10

prematurely.”) (citations omitted); Bieregu v. Ashcroft, 259 F.
Supp. 2d 342, 354-55 (D.N.J. 2003) (noting at PLRA screening
stage that a district court lacks jurisdiction over an FTCA
claim until the claimant has exhausted administrative remedies)
(citing McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980,
124 L.Ed.2d 21 (1993); Deutsch v. United States, 67 F.3d 1080,
1091 (3d Cir. 1995)).
Accordingly, Plaintiff’s claims pursuant to the FTCA will
be dismissed without prejudice because Plaintiff has not met the
jurisdictional requirement under 28 U.S.C. § 2675(a). See Durham
v. Tempas, No. 07-2057, 2007 WL 4226067, at *4 (D.N.J. Nov. 26,
2007); see also Bialowas, 443 F.2d at 1049 (holding that
presentation of the claim to the appropriate federal agency and
a final denial by that agency as a jurisdictional prerequisite
to suit under the FTCA).
2. STATUTE OF LIMITATIONS
A plaintiff's claim under the FTCA must also comply with
the applicable statute of limitations.

Under federal law, tort

actions against the United States must be:
[P]resented in writing to the
agency within two years after
unless action is begun within
date of mailing, by certified
notice of final denial of the
which it was presented.
28 U.S.C. § 2401(b).

11

appropriate Federal
such claim accrues or
six months after the
or registered mail, of
claim by the agency to

In the present case, Plaintiff contends that his property
was illegally seized at the time of his arrest. (Compl. 5, ECF
No. 1).

Plaintiff further acknowledges in the Complaint that

the property in question was administratively forfeited. (Compl.
4, 5, ECF No. 1).

The Order which Plaintiff attaches to his

Complaint clarifies that the items in question were forfeited
under Administrative Case Number CX-5-009.

The Declarations of

Forfeiture filed in that case reveal that the forfeiture
proceedings concluded in May, 2007. 3 See Oshiver, 38 F.3d at 1385
n. 2 (holding that, in addition to the complaint, courts may
consider matters of which a court may take judicial notice under
the PLRA screening provisions).
“A United States District Court may sua sponte raise the
statute of limitations in screening a complaint so long as the
statute of limitations defect is apparent from the face of the
complaint and/or from matters of which judicial notice may be

3

The Declarations of Forfeiture which the government submitted
in opposition to Plaintiff’s motion in the underlying criminal
case reveal that the items which are the subject of this
Complaint were forfeited in May, 2007. Specifically, the 2006
Harley Davidson motorcycle was forfeited on May 16, 2007, Resp.
in Opp’n, Defs.’ Ex. 39 at 8, United States v. Vallejo, Crim.
No. 07-154 (D.N.J. July 17, 2013), ECF No. 200-7; the $160,000
was forfeited on May 22, 2007, Resp. in Opp’n, Defs.’ Ex. 11 at
1, United States v. Vallejo, Crim. No. 07-154 (D.N.J. July 17,
2013), ECF No. 200-4; and the 2000 Harley Davidson motorcycle
was forfeited on May 22, 2007 Resp. in Opp’n, Defs.’ Ex. 25 at
8, United States v. Vallejo, Crim. No. 07-154 (D.N.J. July 17,
2013), ECF No. 200-5.
12

had.” Barren v. Allegheny Cnty., Pa., No. CIV.A. 14-692, 2014 WL
4384598, at *7 (W.D. Pa. Sept. 4, 2014) aff'd sub nom. Barren v.
Allegheny Cnty. Pennsylvania, No. 14-3994, 2015 WL 3644458 (3d
Cir. June 12, 2015) (citing Mumma v. High–Spec, 400 F. App'x
629, 631 n. 1 (3d Cir. 2010); Dellis v. Corrections Corp. of
America, 257 F.3d 508, 511 (6th Cir. 2001); Tate v. United
States, 13 F. App'x 726 (9th Cir. 2001)).
As discussed above, Plaintiff did not file the instant
action until September of 2013, which is more than six years
after his arrest and — according to the Declarations of
Forfeiture submitted in the underlying criminal action — more
than six years after the forfeiture of the property in question.
Thus, it appears from the face of the Complaint and from matters
of which judicial notice may be taken, that Plaintiff failed to
commence his lawsuit within the two year applicable statute of
limitations.
The Supreme Court has held that the FTCA's statute of
limitation, 28 U.S.C. § 2401(b), is a procedural, and not a
jurisdictional, time bar. See United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1633, 191 L. Ed. 2d 533 (2015).

Nevertheless,

Petitioner in this case has not provided any reason for
equitable tolling.

Accordingly, it appears that Plaintiff’s

claim is time barred and is subject to dismissal on this basis.

13

IV.

CONCLUSION

For the foregoing reasons, the Court is without
jurisdiction to consider the claims and the Complaint will be
dismissed.

However, because it is conceivable that Plaintiff

may plead facts sufficient to satisfy the jurisdictional and
timing defects discussed above, see Kwai Fun Wong, 135 S.Ct.
1625, the dismissal is without prejudice and the Court will
grant Plaintiff leave to file an application to re-open
accompanied by a proposed amended complaint. 4 See Denton, 504
U.S. 25; Grayson, 293 F.3d 103.
__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge
Dated: August 6, 2015
At Camden, New Jersey

4

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013) (collecting cases). See also 6 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.
14