Derenak v. United States of America et al
OPINION AND ORDER by Judge Claire V Eagan ; dismissing/terminating case (terminates case) ; granting 14 Motion to Dismiss; granting 16 Motion to Dismiss (Documents Terminated: 14 MOTION to Dismiss , 16 MOTION to Dismiss ) (djh, Dpty Clk)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT
OF JUSTICE, FEDERAL BUREAU OF
INVESTIGATION, STATE OF
OKLAHOMA DEPARTMENT OF PUBLIC
SAFETY, OKLAHOMA HIGHWAY
PATROL, and THOMAS W. WARSHAW,
Case No. 16-CV-0344-CVE-TLW
OPINION AND ORDER
Now before the Court are Defendant United States of America’s Motion to Dismiss (Dkt. #
14) and Defendant Oklahoma Department of Public Safety’s and Oklahoma Highway Patrol’s
Motion to Dismiss and Brief in Support (Dkt. # 16). The United States, on behalf of defendants
United States of America; United States Department of Justice; and the Federal Bureau of
Investigation (federal defendants), asks the Court to dismiss the suit against them, arguing that
sovereign immunity bars plaintiff’s claims, that the statute of limitations bars plaintiff’s claims, that
plaintiff waived all claims against the federal defendants in a stipulation of forfeiture, and that
plaintiff’s claims do not establish a violation of his constitutional rights. Dkt. # 14. Oklahoma
Department of Public Safety and Oklahoma Highway Patrol (state defendants) ask the Court to
dismiss the suit against them, arguing that the Eleventh Amendment bars plaintiff’s claims, and that
plaintiff has failed to state a claim against the state defendants. Dkt. # 16. Plaintiff responds that the
federal defendants and the state defendants are liable under 42 U.S.C. § 1983, that plaintiff’s
complaint establishes that his constitutional rights were violated, that the statute of limitations does
not bar his claims, and that plaintiff never signed nor had knowledge of a stipulation of forfeiture.
Dkt. # 30.
This case arises from the civil forfeiture of $433,640. Dkt. # 1, at 1. On or about January 11,
2011, Oklahoma Highway Patrol troopers1 stopped a car in which plaintiff was riding as a passenger.
Id. The troopers seized $433,640 from the car and arrested plaintiff.2 Id. By April 2011, plaintiff had
retained Thomas W. Warshaw as counsel to negotiate the return of the money seized. Id. On April
19, 2011, plaintiff signed a notarized statement claiming the $433,640. Id. On July 29, 2011, the
United States brought an in rem civil forfeiture suit for the $433,640 in the Northern District of
Oklahoma. Complaint at 1, United States v. $433,640 in United States Currency, No. 11-cv-471JHP-TLW (N.D. Okla. July 29, 2011), Dkt. # 2. In October 2011, Warshaw, on behalf of plaintiff,
and the United States signed a stipulation for forfeiture in which the United States agreed to release
and return $10,000 of the $433,640, and plaintiff agreed:
to release and forever discharge any and all claims and demands which he may have
against the United States, including, but not limited to, the United States Department
of Justice, and the Federal Bureau of Investigation, a Justice Department agency, and
the State of Oklahoma, including the Department of Public Safety and the Oklahoma
Highway Patrol, their agents and employees, on account of the seizure of the
In his complaint, plaintiff identifies the troopers as “Oklahoma State Troopers.” Dkt. # 1, at
Although plaintiff’s complaint does not state the reason he was arrested, the state defendants
explain that plaintiff was a fugitive who had escaped federal prison. See Dkt. 16, at 1.
Dkt. # 14-1, at 1-2.3 The stipulation stated that plaintiff also agreed “to a dismissal and abandonment
of any claims he may have to the $423,640 with prejudice.” Id. at 2. In October 2011, Warshaw sent
plaintiff a letter, informing him that he was able to get only $10,000 of the seized money returned
to plaintiff.4 Id. On May 11, 2016, plaintiff filed this pro se suit in the United States District Court
for the Eastern District of Michigan against the federal defendants, the state defendants, and
Warshaw for violating his Fifth, Sixth, and Eighth Amendment rights, and for discrimination
pursuant to 42 U.S.C. § 1983. Id. at 2-4. On June 10, 2016, plaintiff’s suit was transferred to this
Court. Dkt. # 7.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face”
and the factual allegations “must be enough to raise a right to relief above the speculative level.”
Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided within
an antitrust context, Twombly “expounded the pleading standard for all civil actions.” Ashcroft v.
Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must
Plaintiff attached the stipulation of forfeiture as Exhibit C to his complaint, but did not
include all pages of the agreement. See Dkt. # 1, at 10-11.
Plaintiff asserts that Warshaw sent the letter to him a few days after Warshaw signed the
stipulation of forfeiture on plaintiff’s behalf. Dkt. # 1, at 2.
accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must
construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555;
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy
Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those
allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263 F.3d
1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 110910 (10th Cir. 1991).
Plaintiff’s complaint must be considered in light of the fact that he is proceeding pro se. Pro
se pleadings are construed liberally. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir.
2007). “[D]ismissal of a pro se complaint for failure to state a claim is proper only where it is
obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him
an opportunity to amend.” Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010). When determining
whether to dismiss a pro se complaint, the Court “must accept the allegations of the complaint as true
and construe those allegations, and any reasonable inferences that might be drawn from them, in the
light most favorable to the plaintiff.” Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002); see
also Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991) (“We believe that this rule means that
if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could
prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.”). However, the Court “will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.” Smith v. United States, 561
F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
The Court first considers the United States’s motion to dismiss on behalf of the federal
defendants (Dkt. # 14). The United States asks the Court to dismiss the suit against the federal
defendants, arguing that sovereign immunity bars plaintiff’s claims, that the statute of limitations
bars plaintiff’s claims, that plaintiff waived all claims against the federal defendants in a stipulation
of forfeiture, and that plaintiff’s claims do not establish a violation of his constitutional rights. Dkt.
# 14. Plaintiff responds that the federal defendants are liable under 42 U.S.C. § 1983, that the statute
of limitations does not bar his claims, that plaintiff never signed nor had knowledge of a stipulation
of forfeiture, and that plaintiff’s complaint establishes his constitutional rights were violated. Dkt.
# 30. The Court finds that the federal defendants are protected from plaintiff’s claims by sovereign
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from
suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). A waiver of sovereign immunity must be
“‘unequivocally expressed’ by Congress.” United States v. Murdock Mach. & Eng’g Co. of Utah,
81 F.3d 922, 930 (10th Cir. 1996) (quoting United States v. N.Y. Rayon Importing Co., 329 U.S.
654, 660 (1947)). Plaintiff asserts that he can bring this suit against the federal defendants under
§ 1983. Dkt. # 30, at 1-2. However, § 1983 provides a vehicle for suits against persons acting under
color of state law. 42 U.S.C. § 1983; see also Dry v. United States, 235 F.3d 1249, 1255-56 (10th
Accordingly, the Court need not address the merits of the United States’s other arguments
Cir. 2000) (“[T]he plaintiffs’ reliance on the Fourteenth Amendment and on § 1983 is misplaced.
Both provisions are applicable only to actions by state and local entities, not by the federal
government.”). Because § 1983 does not apply to the federal government, it certainly does not waive
the federal defendants’ sovereign immunity. Despite the liberal construction of pro se pleadings, see
Hall, 935 F.3d at 1110, the Court cannot read plaintiff’s complaint as stating a claim against the
federal defendants. Even if plaintiff’s claims against the federal defendants are considered as claims
under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), they
would fail because “Bivens claims cannot be asserted directly against either the United States or
. . . federal agencies.” Smith, 561 F.3d at 1093. Therefore, plaintiff’s claims against the federal
defendants should be dismissed.
The Court next considers the state defendants’ motion to dismiss (Dkt. # 16). The state
defendants ask the Court to dismiss the suit against them, arguing that the Eleventh Amendment bars
plaintiff’s claims, and that plaintiff has failed to state a claim against the state defendants. Dkt. # 16.
Plaintiff responds that the state defendants are liable under 42 U.S.C. § 1983, and that plaintiff’s
complaint states a valid claim against the state defendants. Dkt. # 30. The Court finds that the state
defendants are protected from plaintiff’s claims by the Eleventh Amendment.6
The Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
Accordingly, the Court need not address the merits of the state defendants’ other arguments
amend. XI. “[A]bsent waiver by the State or valid congressional override, the Eleventh Amendment
bars a damages action against a State in federal court.” Kentucky v. Graham, 473 U.S. 159, 169
(1985). The Eleventh Amendment’s protections extend to state agencies if they are “arms of the
state.” Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir. 1993). The Oklahoma
Department of Public Safety is an arm of the State of Oklahoma. Pettigrew v. Okla. ex rel. Okla.
Dep’t of Pub. Safety, 722 F.3d 1209, 1212 (10th Cir. 2013). The Oklahoma Highway Patrol is a
division of the Oklahoma Department of Public Safety, and is therefore also an arm of the state. See
Allen v. Yates, No. CIV-08-215-FHS, 2009 WL 811515, at *2 (E.D. Okla. Mar. 24, 2009). Thus,
the state defendants are entitled to the protections of the Eleventh Amendment, and to bring suit
against them plaintiff must show that either Oklahoma consented to suit in federal court or
Oklahoma’s Eleventh Amendment immunity has been abrogated by a valid exercise of Congress’s
power. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195 (10th Cir. 1998). Plaintiff asserts
that he can bring this suit against the state defendants under § 1983. Dkt. # 30, at 1-2. However,
Congress did not abrogate states’ Eleventh Amendment immunity in enacting § 1983. Quern v.
Jordan, 440 U.S. 332, 345 (1979). The Court cannot construe plaintiff’s claims against the state
defendants in a manner that would state a valid claim. Thus, plaintiff’s claims against the state
defendants should be dismissed.
Plaintiff’s only remaining claims are against Warshaw. Pursuant to 28 U.S.C. § 1367(a), a
federal court may exercise supplemental jurisdiction over claims related to the claims over which
it has original jurisdiction. A district court may decline to exercise supplemental jurisdiction if it has
dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); see also Gaston
v. Ploeger, 297 F. App’x 738, 746 (10th Cir. 2008) (stating that § 1367(c)(3) expressly permits a
district court to decline to exercise supplemental jurisdiction over remaining state law claims after
granting summary judgment in favor of defendant on federal law claims). The decision to exercise
supplemental jurisdiction is discretionary, but courts should consider “the nature and extent of
pretrial proceedings, judicial economy, convenience, and [whether] fairness would be served by
retaining jurisdiction.” Anglemeyer v. Hamilton Cnty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995)
(quoting Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990)).
It is unclear what claims plaintiff is asserting against Warshaw. Plaintiff’s complaint lists
four counts: (1) violation of the Fifth Amendment, (2) denial of assistance of counsel, (3) violation
of the Eighth Amendment, and (4) violation of 42 U.S.C. § 1983. Dkt. # 1, at 2-3. Plaintiff does not
identify which defendants he alleges violated which counts. See id. Nonetheless, plaintiff cannot
bring any of the claims listed against an individual not acting under color of state law, and although
plaintiff asserts that he “has no way of knowing that Warshaw and Depew did not collude to choose
to only return $10,000” to him, Dkt. # 30, at 2, plaintiff has not pled facts to support an allegation
that Warshaw was acting under color of state law. However, a liberal reading of plaintiff’s complaint
suggests he may be asserting state law claims against Warshaw. See id. at 3 (“Attorney Warshaw’s
negligence directly led to the government’s forfeiture of Plaintiff’s monies.”). Whatever other claims
plaintiff may have against Warshaw, the Court can find no remaining federal claims, and there is no
evidence of diversity jurisdiction.7 Thus, no claims remain over which this Court has original
jurisdiction, and the Court finds that the extent of the pretrial proceedings does not outweigh the
It appears that plaintiff and Warshaw are both domiciled in Michigan. See Dkt. # 1, at 1
(listing plaintiff’s address as in Belleville, Michigan); Dkt. # 14-1, at 3 (listing Warshaw’s
address as in Farmington Hills, Michigan).
interests that would be served by having a state court resolve any remaining state law claims plaintiff
IT IS THEREFORE ORDERED that Defendant United States of America’s Motion to
Dismiss (Dkt. # 14) is granted.
IT IS FURTHER ORDERED that Defendant Oklahoma Department of Public Safety’s and
Oklahoma Highway Patrol’s Motion to Dismiss and Brief in Support (Dkt. # 16) is granted.
IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction
of any state law claims plaintiff may have against defendant Thomas W. Warshaw.
DATED this 14th day of October, 2016.
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