Atencio et al v. United States of America

Filing 40

ORDER by District Judge Judith C. Herrera adopting 33 Report and Recommendations ; denying 23 Plaintiffs' Motion for Summary Judgment; granting 25 Defendant's Motion to Dismiss for Failure to State a Claim; and dismissing Plaintiffs' Complaint. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDWARD ATENCIO,
EVA PAMA ATENCIO
Plaintiff,
v.

Case No. 15-659 JCH/SCY

UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS MATTER comes before the Court on Magistrate Judge Steven Yarbrough’s
Proposed Findings and Recommended Disposition (PFRD). Doc. 33. In his PFRD, Magistrate
Judge Yarbrough recommended denying Plaintiffs’ Motion for Summary Judgment (Doc. 23)
and granting Defendant’s Motion to Dismiss (Doc. 25). Plaintiffs filed objections to the PFRD
on November 30, 2017. Doc. 39. Plaintiffs make two factual objections and two legal
objections. In their factual objections, Plaintiffs contend that contrary to the PFRD, the money
judgment dated September 16, 2004, was finalized without prior notice to Plaintiffs, without the
benefit of a hearing, and without representation. Doc. 39 at 1. Plaintiffs further contend that the
forfeiture count (Count IX) was dismissed by motion of the government. Doc. 39 at 1. As for
their legal objections, Plaintiffs first reiterate their contention that it is a violation of due process
to obtain a forfeiture judgment against property that was never seized. Doc. 39 at 2-3. The
Court understands Plaintiffs’ second legal contention to be that Magistrate Judge Yarbrough
improperly granted the Defendant an opportunity to move to dismiss Plaintiffs’ claims after
Plaintiffs’ were entitled to default judgment against Defendant. For the reasons discussed below,
the Court denies Plaintiffs’ objections and adopts Magistrate Judge Yarbrough’s PFRD.

In the PFRD, Magistrate Judge Yarbrough recommended dismissal of Plaintiffs’ claims
under Section 1983 because Section 1983 does not apply to the United States or federal officers
acting under color of federal law and “no part of the forfeiture action underlying Plaintiffs’
Complaint implicates state action or state actors.” Doc. 33 at 6. Magistrate Judge Yarbrough
further explained that even if had Plaintiffs asserted their claims pursuant to Bivens or the
Federal Tort Claims Act, they would still be precluded from relief. See Doc. 33 at 7. As
Magistrate Judge Yarbrough explained, Plaintiffs’ claims would be barred under Bivens because
Heck v. Humphrey, 512 U.S. 477 (1994) bars suits challenging criminal forfeiture where the
underlying conviction of forfeiture has not been invalidated. Doc. 33 at 7. As for the Federal
Tort Claims Act, Magistrate Judge Yarbrough explained that construing Plaintiffs’ claims under
the act would still not afford relief because Plaintiffs cannot establish a waiver of sovereign
immunity because the United States’ seized Plaintiffs’ property pursuant to a criminal forfeiture
action. Doc. 33 at 8. None of Plaintiffs’ objections address these clear bars to Plaintiffs’ suit
and the Court agrees with Magistrate Judge Yarbrough’s analysis.
As for Plaintiffs’ objection regarding the extension of time Magistrate Judge Yarbrough
accorded Defendant to file its Motion to Dismiss, the Court notes that it materially misstates the
underlying proceedings. Doc. 39 at 3. Plaintiffs allege that Magistrate Judge Yarbrough afforded
Defendant “unreasonable additional time and warnings that have not, to date, been afforded the
Pro Se Plaintiffs.” Doc. 39 at 3. As Magistrate Judge Yarbrough explained, however, neither
party complied with their respective deadlines in this case. Given the “two considerable
extensions of time” Magistrate Judge Yarbrough granted Plaintiffs to properly serve Defendant
in lieu of dismissing the case under Fed. R. Civ. P. 4(m), it can hardly be maintained that

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Plaintiffs were treated unfairly in relationship to Defendant. Further, the Court favors resolving
issues before it on the merits. The Court accordingly rejects Plaintiffs’ objection on this point.
Finally, the Court addresses Plaintiffs’ argument that the forfeiture action was dismissed.
The Court first notes that Plaintiffs have not previously raised this issue. Plaintiffs did not raise
this in either their Motion for Summary Judgment or their response to Defendant’s Motion to
Dismiss. The Court accordingly deems such issues waived. See Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate
judge’s recommendation are deemed waived.”).
Further, the record does not reflect that the United States voluntarily dismissed the money
judgment against Plaintiffs. The Court recognizes that the document referenced by Plaintiff
includes a check marked box indicating that Count IX was “dismissed on the motion of the
United States.”1 Crim. No. 03-1014, Doc. 168. Upon review of the record, the Court is unable
to locate a motion by the United States to voluntarily dismiss the money judgment. Further, the
document is internally inconsistent because on page 5 of Document 168 it states “The defendant
forfeits all rights, ownership and interest in all United States currency, land and property noted in
Count IX of the Second Superseding Indictment.” Similarly, as indicated by Docs. 171-173, the
United States filed notice of the money judgment shortly thereafter which indicates that the
United States did not voluntarily dismiss the money judgment. The only way to reconcile this
inconsistency is by construing the check marked box as referencing the United States’ earlier
voluntary motion to dismiss the forfeiture action in regard to certain real property, not the money
judgment. See Crim. No. 03-1014, Docs. 88-89. For these reasons, the Court rejects Plaintiffs’

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The Court further notes that Document 168 is only entered as to Edward Atencio. Accordingly, even if the Court
were to conclude that it constituted a voluntary dismissal of the money judgment it would be as to Edward Atencion
and not Eva Atencio.

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objections to the extent that Plaintiffs’ contend that the forfeiture action was voluntarily
dismissed by the United States.
CONCLUSION
Upon review of the record, the Court concurs with Magistrate Judge Yarbrough’s
proposed findings and recommendation and accordingly adopts the PFRD (Doc. 33). The Court
therefore DENIES Plaintiffs’ Motion for Summary Judgment (Doc. 23), GRANTS Defendant’s
Motion to Dismiss (Doc. 25), and dismisses Plaintiffs’ Complaint.

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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