Nogales v. United States of America

Filing 41

ORDER The Court ACCEPTS the Magistrate Judge's 38 Report and Recommendation and incorporates it herein. Accordingly, the Court GRANTS Defendant's 31 Motion to Dismiss for Failure to State a Claim and Lack of Jurisdiction, and DISMISSES WITH PREJUDICE Plaintiff's 10 Amended Complaint. Signed by Honorable J Michelle Childs on 05/13/2019.(hada, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Carlos Nogales,

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Plaintiff,
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v.
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Special Agent Paul Criswell,
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Defendant.
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____________________________________)

Civil Action No.: 2:18-cv-01334-JMC
ORDER

This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”) filed on April 1, 2019. (ECF No. 38.) The Report addresses Plaintiff
Carlos Nogales’ (“Plaintiff”) Amended Complaint (ECF No. 10), which alleges that Defendant
Special Agent Paul Criswell (“Defendant”) committed constitutional violations, and Defendant’s
Motion to Dismiss for Failure to State a Claim and Lack of Jurisdiction (ECF No. 31). (Id. at 1,
20.) For the reasons set forth herein, the court ACCEPTS the Magistrate Judge’s Report (ECF
No. 38) and incorporates it herein. Therefore, the court GRANTS Defendant Special Agent Paul
Criswell’s (“Defendant”) Motion to Dismiss for Failure to State a Claim and Lack of Jurisdiction
(ECF No. 31), and DISMISSES WITH PREJUDICE Plaintiff Carlos Nogales’ (“Plaintiff”)
Amended Complaint (ECF No. 10).
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which this court incorporates
herein without a full recitation. (ECF No. 38.) As brief background, Plaintiff, proceeding pro se
and in forma pauperis, originally filed his Complaint against the United States of America (“the
Government”) on March 14, 2018. (Id. at 4.) Plaintiff filed his Amended Complaint on July 2,

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2018, and brought claims against Defendant. (Id. at 5.) Seeking relief under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971), Plaintiff maintains that Defendant violated his
constitutional rights “at the time of [his] arrest” in Greenville, South Carolina. (ECF No. 10 at 5.)
Specifically, Plaintiff alleges that Defendant seized his personal items at the time of his arrest,
including his i-Phone, Louis Vuitton wallet, Brooks Brothers sunglasses, and a cowboy hat. (Id.)
Plaintiff contends that “the Government claims to have” destroyed his personal possessions. (Id.)
Plaintiff brings suit against Defendant under the Fourth and Fifth Amendments of the United States
Constitution, alleging violations of due process and unlawful seizures. (Id. at 4.) In terms of
monetary relief, Plaintiff seeks seven hundred fifty dollars and zero cents ($750.00) for the iPhone, eight hundred fifty dollars and zero cents ($850.00) for the Louis Vuitton wallet, one
hundred thirty-five dollars and zero cents ($150.00) for the Brooks Brothers sunglasses, and one
hundred fifty dollars and zero cents ($150.00) for his cowboy hat. (Id. at 6.)
Defendant filed his Motion for Summary Judgment on December 17, 2018, essentially
maintaining, among many other arguments, that (1) there is not a Bivens remedy against him
pursuant to Siglar v. Abbasi, 137 S. Ct. 1843 (2017); (2) Plaintiff failed to allege a constitutional
violation concerning the destruction of his property under the Fifth Amendment; (3) the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, is an alternative remedy for Plaintiff to
pursue; and (4) he is protected by the doctrine of qualified immunity. (ECF No. 31 at 6–15.)
Defendant further argued that Plaintiff failed to exhaust his remedies under the FTCA. (Id. at 14–
15.) On December 18, 2018, the Magistrate Judge issued a Roseboro order to Plaintiff, advising
him of the procedures regarding motions to dismiss and the consequences of failing to respond. 1

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Pursuant to Roseboro, federal district courts are required to provide an explanation of motion to
dismiss procedures for pro se litigants. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975).
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(ECF No. 32.) On February 1, 2019, Plaintiff responded in opposition to Defendant’s Motion.
(ECF No. 37.)
The Magistrate Judge filed her Report on April 1, 2019. (ECF No. 38.) Within the Report,
the Magistrate Judge first found that Defendant was not protected by the doctrine of sovereign
immunity. (Id. at 10.) Second, the Magistrate Judge recommends that the court decline to “create
an implied remedy” for Plaintiff’s Fifth Amendment claim because there are “sufficient special
factors counseling hesitation” of creating a remedy for Plaintiff. (Id. at 17.) The Magistrate Judge
further reasoned that Plaintiff’s Amended Complaint fails to establish a constitutional violation
under the Fifth Amendment. (Id. at 18.) Accordingly, the Magistrate Judge recommends that the
court grant Defendant’s Motion to Dismiss (ECF No. 31) and dismiss Plaintiff’s Amended
Complaint (ECF No. 10) with prejudice. (Id. at 20.) In addition to providing the court with his
recommendation, the Magistrate Judge advised both parties of their rights to file specific
objections to the Report. (Id. at 21.) To date, neither Plaintiff nor Defendant objects to the Report.
II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no presumptive weight. See Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). The responsibility to make a final determination remains
with the court. Id. at 271. As such, the court is charged with making de novo determinations of
those portions of the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1). See
also FED. R. CIV. P. 72(b)(3). In the absence of specific objections to the Magistrate Judge’s
Report, the court is not required to give any explanation for adopting the Report. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a

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district court need not conduct a de novo review, but instead must only satisfy itself that there is
no clear error on the face of the record in order to accept the recommendation.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting FED. R. CIV. P. 72
advisory committee’s note). Furthermore, a failure to file specific, written objections to the Report
results in a party’s waiver of the right to appeal from the judgment of the court based upon such
recommendation. 28 U.S.C. § 636(b)(1). Thus, the court may accept, reject, or modify, in whole
or in part, the Magistrate Judge’s recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
III. DISCUSSION
The parties were apprised of their opportunity to file specific objections to the Report on
April 1, 2019. (ECF No. 38 at 21.) Objections to the Report were due by April 15, 2019, or April
18, 2019, at the latest. (Id.) Upon review of the record, neither Plaintiff nor Defendant filed any
objections to the Report. In the absence of specific objections to the Magistrate Judge’s Report,
the court is not required to give any explanation for adopting the Report and must only discern
whether the Report contains clear error. See Camby, 718 F.2d at 199; Diamond, 416 F.3d at 315.
After a thorough and careful review of the record, the court finds the Magistrate Judge’s Report
provides an accurate summary of the facts and law in the instant case. (ECF No. 38.) Because
specific objections were not filed by either party and the Report does not contain clear error, the
court adopts the Report herein. See Camby, 718 F.2d at 199; Diamond, 416 F.3d at 315.
IV. CONCLUSION
After a thorough review of the Report and the record in this case, the court ACCEPTS the
Magistrate Judge’s Report and Recommendation (ECF No. 38) and incorporates it herein.
Accordingly, the court GRANTS Defendant’s Motion to Dismiss for Failure to State a Claim and

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Lack of Jurisdiction (ECF No. 31), and DISMISSES WITH PREJUDICE Plaintiff’s Amended
Complaint (ECF No. 10).
IT IS SO ORDERED.

United States District Judge

May 13, 2019
Columbia, South Carolina

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