Nogales v. United States of America et al

Filing 16

ORDER AND OPINION The court ACCEPTS the Report and adopts the findings herein (ECF No. 7), DENIES the Motion to Appoint Counsel (ECF No. 11), and DISMISSES this case. This matter shall count as one strike under the PLRA due to its frivolous nature. Signed by Honorable J Michelle Childs on 04/27/2021.(hcor, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Carlos Nogales,
Plaintiff,
v.
United States of America, H.S.I., and
Paul Criswell,

Defendants.

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Civil Action No.: 2:20-cv-03669-JMC

ORDER AND OPINION

Plaintiff Carlos Nogales, a federal prisoner who is proceeding pro se,1 brought this action
against the above-captioned Defendants under the Federal Tort Claims Act (“FTCA”) 28 U.S.C.
§ 1346 alleging Defendants destroyed his personal property during his arrest in March 2012. (See
ECF No. 1.) This matter is before the court upon review of the Report and Recommendation issued
by the Magistrate Judge in January 2021 (“Report”). (ECF No. 7.) The Report recommended that
the court summarily dismiss this case because it is duplicative of a prior case brought by Plaintiff
and is thus barred by res judicata. (Id. at 6-9.) Plaintiff has entered Objections to the Report. (ECF
No. 12.) For the reasons set forth below, the court ACCEPTS the Report and adopts its findings
herein (ECF No. 7), DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 11), and
DISMISSES the instant case.

The court denies Plaintiff’s Motion to Appoint Counsel based on the duplicative nature of the
instant suit. (ECF No. 11.) Thus, “[b]ecause he is a pro se litigant, Plaintiff’s pleadings are
construed liberally by the court and held to a less stringent standard than attorneys’ formal
pleadings.” Simpson v. Florence Cty. Complex Solicitor’s Office, Civil Action No.: 4:19-cv03095-JMC, 2019 WL 7288801, at *2 (D.S.C. Dec. 30, 2019) (citing Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam)). “This, however, ‘does not transform the court into an advocate’ for
Plaintiff; the court is not required to recognize Plaintiff’s claims if there is clearly no factual basis
supporting them.” Id. (quoting Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)).
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Plaintiff was arrested in March 2012, and his “iPhone, wallet, sunglasses, hat, and currency
in the amount of $5,940.00” were seized by law enforcement. (ECF No. 7 at 1-2.) In 2015, after a
request for his items, the Government admitted Plaintiff’s “wallet and iPhone were deemed
abandoned and destroyed.” (Id. at 2 (citations omitted).) Although Plaintiff’s property could not
be returned, the court ordered the Government to reimburse Plaintiff in the amount of $5,940.00,
which it did by check in 2016. (Id. at 2 & n.2.)
Despite this reimbursement, Plaintiff filed a civil action for damages based upon the
destruction of his property, highlighting Bivens v. Six Unknown Fed. Narcotics Agents for support.
403 U.S. 388 (1971). (See ECF No. 7 at 2-3.) The case was dismissed because “Congress clearly
‘did not intend to provide a remedy for Fifth Amendment violations[,]’” as “Congress had already
legislated a private cause of action for the negligent loss of property caused by federal actors
when it enacted the FTCA; in doing so, however, Congress explicitly decided to exclude
claims involving law enforcement officers, like Agent Criswell, from the statutory remedy.”
(Id. at 3 (citations omitted).)
Plaintiff thereafter filed a Motion in his underlying criminal case again seeking damages
from the Government for destroying his property, raising nearly identical arguments as in his past
civil action but purportedly relying on the FTCA rather than Bivens. (Id. at 4.) The court then
assigned this matter a separate civil action number as part of a new civil case. (Id.)
The Magistrate Judge entered the Report in January 2021, suggesting this case be dismissed
because, “[a]lthough characterized under the FTCA, Plaintiff’s claims in the instant case are
virtually unchanged from those alleged in his previous Bivens action.” (Id. at 6.) The Magistrate
Judge observed that Plaintiff simply restated his prior contentions concerning a potential Fifth
Amendment violation “almost verbatim.” (Id. at 6.) The Magistrate Judge further stressed that

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even if construed as an FTCA claim, this matter “would still be subject to summary dismissal as
duplicative and frivolous.” (Id. at 7.) In particular, the Magistrate Judge explained she had
addressed the applicability of the FTCA in the previous Report and
Recommendation in evaluating whether Plaintiff’s claims warranted a new implied
remedy under Bivens. As part of that discussion, the undersigned noted that
although the FTCA provides for a limited waiver of sovereign immunity by
allowing a plaintiff to recover damages for loss of property caused by a federal
employee, certain categories of claims are exempt from this waiver. Specifically,
§ 2680(c) provides that the waiver of immunity in § 1346(b) shall not apply to [a]ny
claim arising in respect of the assessment or collection of any tax or customs duty,
or the detention of any goods, merchandise, or other property by any officer of
customs or excise or any other law enforcement officer. Based on the weight of the
relevant case law, the undersigned concluded that “the detention and destruction of
[Plaintiff’s] property fit squarely within the exception under§ 2680(c).
(Id. at 7-8 (internal citations and quotation marks omitted).)

Lastly, the Magistrate Judge

recommended this matter “be deemed a ‘strike’ for purposes of the Prison Litigation Reform Act’s
(“PLRA”) ‘three strikes rule’ in light of its frivolousness.”2 (Id. at 9.)
Plaintiff later filed Objections to the Report, conceding “that the injury and the actions by
the Government in the destruction of his property have not changed and he cannot state otherwise
as the facts are the same. The only change here is the vehicle to which he now seeks relief[.]” (ECF
No. 12 at 1.)

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As the Magistrate Judge outlined, the three strikes rule states that:
[i]n no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility, brought
an action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.

28 U.S.C. § 1915(g). (See ECF No. 7 at 9.)

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The Magistrate Judge’s Report and Recommendation 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. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
The recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the court. Id. The court reviews de novo only those portions of the
Report and Recommendation to which specific objections are filed. See Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Yet when no party offers timely, specific
objections, the 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 . . . to accept the recommendation.” Id. at 315
(quoting FED. R. CIV. P. 72 advisory committee’s note); see Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983) (stating the court is not required to explain the Report’s adoption if no party offers
specific objections). 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).
Here, the court concludes Plaintiff’s objections restate arguments that are adequately
addressed by the Report. (See ECF No. 7 at 6-9.) Moreover, the Magistrate Judge’s Report and
Recommendation in Plaintiff’s previously dismissed civil action likewise sufficiently addressed
the contentions Plaintiff again raises. See Nogales v. United States of America, 2:18-cv-01334JMC-MGB, ECF No. 38 at 14-20 (D.S.C. 2019). And in the instant case alone, Plaintiff’s
objections substantively mirror arguments raised previously, including contentions that the FTCA
allows for recovery of damages in the instant case. (Compare ECF Nos. 1 at 7-9, with ECF No. 12
at 1-3.) A de novo review is thus unnecessary because Plaintiff has “failed to guide the [c]ourt
towards specific issues needing resolution[.]” Nichols, 100 F. Supp. 3d at 498 (holding that a
claimant failed to raise specific objections when he repeated arguments raised in his initial brief).

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The court declines to hear Plaintiff’s reused arguments. Orpiano, 687 F.2d at 47. The court finds
the Report adequately addresses Plaintiff’s objections and properly analyzes the rehashed issues
from Plaintiff. See Fray v. Berryhill, No. 6:16-CV-2916-TMC, 2018 WL 1224687, at *5 (D.S.C.
Mar. 9, 2018) (adopting a Magistrate Judge’s report in which the court concurred “with both the
reasoning and the result”). The court finds no clear error on the face of the record and adopts the
Report herein. Plaintiff’s objections are overruled.
Thus, the court ACCEPTS the Report and adopts the findings herein (ECF No. 7),
DENIES the Motion to Appoint Counsel (ECF No. 11), and DISMISSES this case. This matter
shall count as one “strike” under the PLRA due to its frivolous nature.
IT IS SO ORDERED.

United States District Judge
April 27, 2021
Columbia, South Carolina

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