Tamez v. United States Of America
Filing
46
MEMORANDUM OPINION AND ORDER GRANTING THE UNITED STATES MOTIONS TO DISMISS, DISMISSING REMAINING CLAIMS, AND DENYING PLAINTIFFS MOTION TO AMEND; granting 33 MOTION to Dismiss , denying 44 MOTION for Leave to File Second Amended Complaint, granting 19 MOTION to Dismiss (Signed by Magistrate Judge Jason B Libby) Parties notified.(AngelMirelesadi, 2)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
FLAVIO TAMEZ,
Plaintiff,
VS.
UNITED STATES OF AMERICA, et al,
Defendants.
§
§
§
§
§
§
§
§
October 10, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 2:18-CV-83
MEMORANDUM OPINION AND ORDER
GRANTING THE UNITED STATES’ MOTIONS
TO DISMISS, DISMISSING REMAINING CLAIMS,
AND DENYING PLAINTIFF’S MOTION TO AMEND
Plaintiff Flavio Tamez is a federal prisoner appearing pro se and in forma
pauperis. In this civil action, Plaintiff seeks the return of approximately 30 pieces of
gold jewelry that he claims were seized by Immigration and Customs Enforcement (ICE)
agents. Pending before the Court are a Motion to Dismiss (D.E. 19) and an Amended
Motion to Dismiss (D.E. 33) filed by the United States of America. Also pending is
Plaintiff’s Motion for Leave to File Second Amended Complaint. (D.E. 44).
For the reasons stated herein, the Court GRANTS the United States’ motion and
amended motion to dismiss. (D.E. 19, 33). Further, Plaintiff’s claims against the United
States and all named individual defendants under Bivens v. Six Unknown Names Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and claims against the United States
under the Administrative Procedure Act (“APA”), 5 U.S.C § 702, are DISMISSED
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pursuant to 28 U.S.C. § 1915(e)(2)(B). Lastly, Plaintiff’s motion to amend (D.E. 44) is
DENIED.
I.
JURISDICTION
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This
case has been reassigned to the undersigned magistrate judge on the consent of the parties
pursuant to 28 U.S.C. § 636. (D.E. 7, 10, 43).
II.
BACKGROUND
On April 8, 2012, Plaintiff was arrested on a warrant resulting from an indictment
returned on May 23, 2012, charging him with Conspiracy to Possess with the Intent to
Distribute More than 1000 Kilograms of Marijuana. (United States v. Tamez, Criminal
No. 2:12-CR-418 (United States v. Tamez), D.E. 10). On July 25, 2012, a superseding
indictment was returned, adding a charge of Money Laundering against Plaintiff. (Id.,
D.E. 211).
On October 4, 2012, Plaintiff pled guilty to conspiracy with intent to distribute
more than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A) (Count One) and money laundering in violation of 18 U.S.C. §§
1956(a)(1)(B)(i) and 1956(a)(2) (Count Six). (Id., D.E. 387). On March 31, 2013,
Plaintiff was sentenced by United States District Judge Nelva Gonzales Ramos to 324
months in prison. (Id., D.E. 657).
On February 1, 2018, Plaintiff filed in his criminal case a Motion to Return
Personal Property. (Id., D.E. 963). Plaintiff seeks the return of approximately 30 pieces
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of gold jewelry that he claims were seized by ICE agents executing a search warrant on
June 7, 2012, on Plaintiff’s Compass Bank safety deposit box.
On February 5, 2018, District Judge Nelva Gonzalez Ramos ordered the United
States to respond to Plaintiff’s motion. (Id., D.E. 965). The government acknowledged
in its response that, following Plaintiff’s arrest, federal agents executed a search warrant
for his Compass Bank safety deposit box and seized 30 pieces of jewelry, along with
$213,259.24 in cash.
(Id., D.E. 969, pp. 1-2).
administrative forfeiture proceedings.
Agents immediately commenced
According to the United States, Homeland
Security Investigations (HSI) agents published notice in the McAllen Monitor Newspaper
on July 29, 2012, August 5, 2012, and August 12, 2012. (Id., D.E. 969-1, p. 1). HSI
agents also provided notice on June 20, 2012, via certified mail at Plaintiff’s and his
wife’s residence at 6557 FM 1430, Rio Grande City, Texas, 78582. (Id., D.E. 969-1, pp.
2-5). Plaintiff’s property was administratively and finally forfeited by HSI on August 19,
2012 and sold at auction on June 6, 2013. ((Id., D.E. 969-1, pp. 1, 10). The United
States asserts, therefore, that it is no longer in possession of any property listed in
Plaintiff’s motion. (Id., D.E. 969, p. 2).
In his reply, Plaintiff contended that the United States’ notice was “grossly
insufficient” because: (1) the government should have known that Plaintiff was in
custody and not living with his wife at the time the notice was sent; (2) the government
did not acknowledge that it sent notice to his wife, whose name was also on the safety
deposit box; and (3) the government’s three postings in the newspaper was not sufficient
to meet the “30 consecutive days” requirement under the applicable public notice statute.
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(Id., D.E. 971, pp. 2-3). Because the United States no longer has possession of the
subject property, Plaintiff argued that he “should be allowed to submit an amended
complaint under Bivens, the FTCA,1 CAFRA,2 or any other appropriate cause of action,
so as to recoup the value of the property” taken by the United States’ agents. ((Id., D.E.
971, p. 3). Along with his reply, Plaintiff filed a motion asking the Court set aside the
administrative forfeiture. (Id., D.E. 973).
After considering the pleadings filed in the criminal action, United States District
Judge Ramos entered an Order to Realign the Parties and for Compliance with the PLRA.
(Id., D.E. 981). Judge Ramos directed the Clerk to sever Plaintiff’s motions for return of
property and to set aside forfeiture from the criminal case and open a civil action with the
parties realigned. Plaintiff subsequently complied with the Court’s direction and applied
to proceed in forma pauperis, which was granted by the undersigned. (D.E. 3, 5, 6, 8).
On April 5, 2018, Plaintiff consented to proceed before a magistrate judge. (D.E.
7). On April 11, 2018, Judge Ramos reassigned the case to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636 and Neals v. Norwood, 59 F.3d 530 (5th Cir. 1995).
(D.E. 10). The defendants filed a consent form on October 2, 2018. (D.E. 43).
On April 23, 2018, the undersigned terminated Plaintiff’s motion for return of
property (D.E. 1) and motion to set aside forfeiture (D.E. 2) insofar as they purported to
be motions. (D.E. 14). On April 23, 2018, the undersigned also ordered service of these
pleadings on the Government. (D.E. 17). That same day, the United States filed a
1
2
The Federal Torts Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, et seq.
The Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18 U.S.C. § 983(a).
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motion to dismiss Plaintiff’s lawsuit. (D.E. 19). On May 11, 2018, Plaintiff filed a
response to Plaintiff’s motion to dismiss. (D.E. 28).
On April 27, 2018, Plaintiff filed a motion seeking leave to amend his complaint.
(D.E. 24). Plaintiff did not attach a copy of the proposed amended pleading and instead
requested an additional 30 days to prepare it. Plaintiff stated that he seeks to add
individual defendants, specifically several government agents who seized the property at
issue, as well as additional claims under the FTCA, Bivens, and state law. (D.E. 24). The
undersigned granted Plaintiff’s motion and directed him to file his amended complaint on
or before May 21, 2018. (D.E. 26).
On May 23, 2018, Plaintiff filed a motion seeking leave to amend his complaint
along with a proposed amended complaint.
(D.E. 32).
The undersigned granted
Plaintiff’s motion, and Plaintiff’s First Amended Complaint was docketed in this case.
(D.E. 34, 35).
In his First Amended Complaint, Plaintiff named the United States and the
following individual defendants in their individual and official capacities: (1) Julie
Hampton, Assistant United States Attorney; (2) Lisa Lopez, officer with Customs &
Border Protection, Department of Homeland Security (CBP-DHS); (3) Grace Reyes,
paralegal specialist with the CBP-DHS; (4) Leticia Martinez, paralegal specialist with the
CBP-DHS; (5) Sandra Caceras-Navarrete; (6) Alex De Armas, Regional Manager; and
(7) John Doe. Plaintiff claims that his property was illegally taken, in violation of state
law, the FTCA, and Bivens. (D.E. 35, pp. 1, 10).
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On June 26, 2018, the United States filed an amended motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1). (D.E. 33). On July 23, 2018, Plaintiff filed
his response to the Government’s motion. (D.E. 36). The United States subsequently
filed its reply. (D.E. 41). Plaintiff then filed a supplemental notice (D.E. 39) and a surreply (D.E. 42). On October 4, 2018, Plaintiff filed a motion for leave to file a second
amended complaint. (D.E. 44).
III.
DISCUSSION
A.
Administrative Forfeiture under CAFRA
As part of the underlying criminal proceeding, Plaintiff moved the Court pursuant
to 18 U.S.C. § 983(a) to set aside the administrative forfeiture of his jewelry seized by the
United States in June 2012. (United States v. Tamez, Criminal No. 2:12-CR-418, D.E.
973). When Judge Ramos opened this civil action, Plaintiff’s motion to set aside the
forfeiture was docketed therein. (D.E. 2).
The United States sought dismissal of Plaintiff’s § 983(a) claim in its first motion
to dismiss. (D.E. 19). Plaintiff moved to amend his complaint, seeking to add individual
defendants as well as additional claims under the FTCA, Bivens, and for conversion.
(D.E. 24). Plaintiff subsequently filed a detailed response to the United States’ first
motion to dismiss, raising arguments in support of setting aside the administrative
forfeiture. (D.E. 28).
In Plaintiff’s second motion to amend complaint, Plaintiff expressed a desire to
have his attached First Amended Complaint serve as the operative pleading in this case.
(D.E. 32, p. 1). Plaintiff’s First Amended Complaint, docketed on June 27, 2018, did not
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specifically reaffirm his earlier request to set aside the administrative forfeiture pursuant
to § 983(a).
A review of the First Amended Complaint reveals Plaintiff’s general
allegations that his property was improperly taken from him. (D.E. 35, p. 9). In his
prayer for relief, however, Plaintiff only seeks monetary relief. Thus, it appears that
Plaintiff may not seek as a remedy to set aside the administrative forfeiture pursuant to §
983(a).3 Nevertheless, in an abundance of caution based on a review of all of Plaintiff’s
submissions, the undersigned will consider Plaintiff’s claim pursuant to § 983(a).
(1) Applicable Legal Standard
In its first motion to dismiss, the United States asserts that Plaintiff is barred from
contesting the administrative forfeiture of his jewelry by the five-year statute of
limitations set forth in § 983(e)(3). (D.E. 19). The United States, however, does not
specify whether it seeks dismissal of Plaintiff’s § 983(a) claim pursuant to any particular
subsection of Federal Rule of Civil Procedure 12(b). In general, a statute-of-limitations
defense is properly raised in a Rule 12(b)(6) motion. See Jones v. Alcoa, Inc., 339 F.3d
359, 366 (5th Cir. 2003); Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983); Cobar v.
Drug Enforcement Admin. Asset Forfeiture Section, No. 12 Civ. 7415, 2014 WL
1303110, at *6 (S.D. N.Y. Mar. 31, 2014). Accordingly, the undersigned will construe
the United States’ motion to dismiss as one made under Rule 12(b)(6). See Newberry v.
Champion, No. 3:16-CV-143, 2017 WL 1074463, at *5 (N.D. Miss. Mar. 17, 2017)
3
As part of his response to the United States’ amended motion to dismiss, Plaintiff appears to seek equitable relief
under the Administrative Procedure Act (“APA”), 5 U.S.C § 702, with respect to setting aside the administrative
forfeiture of his seized jewelry. (D.E. 36, pp. 7, 14). Issues surrounding Plaintiff’s request for equitable relief under
the APA are discussed herein.
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(recognizing that the Court can construe a motion to dismiss as one raised under Rule
12(b)(6)).
Rule 12(b)(6) provides for dismissal of an action for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is said to be
plausible if the complaint contains “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
When considering a motion to dismiss, district courts are “limited to the
complaint, any documents attached to the complaint, and any documents attached to the
motion to dismiss that are central to the claim and referenced by the complaint.” Lone
Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). A
court ruling on a Rule 12(b)(6) motion may also consider matters of which the court takes
proper judicial notice. See Davis v. Bayless, 70 F.3d 367, 372 n. 3 (5th Cir. 1995)
(“Federal courts are permitted to refer to matters of public record when deciding a Rule
12(b)(6) motion to dismiss.”); Cinel v. Connick, 15 F.3d 1338, 1343, n.6 (5th Cir. 1994)
(“In deciding a 12(b)(b)(6) motion to dismiss, a court may permissibly refer to matters of
public record.”).
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(2) Applicable Legal Principles
CAFRA sets forth the general rules for civil forfeiture proceedings. 18 U.S.C. §
983. When CAFRA was enacted in 2000, its statutory provisions became “the exclusive
remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.”
18 U.S.C. § 983(e)(5).
Under CAFRA, personal notice must be sent to any person with an interest in the
seized property within sixty days of the seizure. See Landry v. United States, 600 F.
App’x 216, 219 (5th Cir. 2015) (citing 18 U.S.C. § 983(a)(1)(A)(i)). “To initiate [a civil
non-judicial forfeiture proceeding], the Government must send personal notice to any
person with an interest in the seized property and publish notice once a week for three
successive weeks in a newspaper generally circulated in the judicial district where the
property was seized. Id. at 219-20 (citing 19 U.S.C. § 1607(a)(4) and 28 C.F.R. §
8.9(a)(1)(i), (b)(1)). Any challenge to an administrative forfeiture must be filed within
thirty-five days after the date the personal notice is mailed, or if personal notice is not
received, then no later than thirty days after the date of final publication of notice of
seizure. Id. at 220 (citing 18 U.S.C. § 983(a)(2)(B)).
Failure to timely file a claim results in the property being administratively
forfeited. See 19 U.S.C. § 1609. Conversely, “[i]f a claim is filed, the administrative
forfeiture proceedings are cancelled and referred to the United States Attorney’s Office
for initiation of judicial forfeiture proceedings.” Conard v. United States, 470 F. App’x
336, 338 (5th Cir. 2012). “Once an administrative forfeiture is complete, the district
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court may review only “whether the forfeiture comported with constitutional due process
guarantees.” Id. (citations and internal quotations omitted).
CAFRA further authorizes an interested party a mechanism to challenge the
seizure of property after a forfeiture proceeding has been completed. Specifically, the
statute provides in pertinent part:
Any person entitled to written notice in any nonjudicial civil forfeiture
proceeding under a civil forfeiture statute who does not receive such notice
may file a motion to set aside a declaration of forfeiture with respect to that
person’s interest in the property, which motion shall be granted if:
(A)
the Government knew, or reasonably should have known of
the moving party’s interest and failed to take reasonable steps
to provide such party with notice; and
(B)
the moving party did not know or have reason to know of the
seizure within sufficient time to file a timely claim.
18 U.S.C. § 983(e)(1).
(3) Does CAFRA Apply to this Case?
The United States asserts that the exclusive remedy for challenging an
administrative forfeiture of property is 18 U.S.C. § 983(e).
(D.E. 19).
Citing an
unpublished decision in United States v. Bacon, 546 F. App’x 496 (5th Cir. 2013),4
however, Plaintiff suggests “that the applicability of § 983, and CAFRA in general, is in
any event debatable” in this case. (D.E. 28, p. 12).
4
“An unpublished decision issued after January 1, 1996 is not controlling precedent but may be persuasive
authority” for courts presiding within the Fifth Circuit. Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006)
(citing 5th Cir. R. 47.5.4).
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In Bacon, Welles D. Bacon moved for the return of seized property pursuant to §
983. Bacon, 546 F. App’x at 498. The forfeiture notice mailed to Bacon stated that the
U.S. Customs and Border Patrol (CBP) “will seek to forfeit [Bacon’s] property by
administrative action in accordance with section 607, Tariff Act of 1930, as amended (19
U.S.C. [§] 1607).” Id. at 499. Section 983(i)(2)(A) specifically provides that § 983 does
not apply to “the Tariff Act of 1930 or any other provision of the law codified in Title
19.”
18 U.S.C. § 983(i)(2)(A).
Relying on this “clear statutory language” of this
subsection, the Fifth Circuit concluded that § 983 was “inapplicable to Bacon’s claim.”
Bacon, 546 F. App’x at 498-99.
In this case, the applicable forfeiture notice regarding the seizure of Plaintiff’s
jewelry provides as follows:
In accordance with the provisions of title 19, United States Code, section
1608 and 1610 and title 19, Code of Federal Regulations, part 162.45, the
following described property is hereby declared forfeited for violation of
the following:
18 U.S.C 1956 &18 USC 1957 for violation of 18 USC 981[.]
(United States v. Tamez, D.E. 969, p. 1 (emphasis in original)). This forfeiture notice,
therefore, references statutes in both Title 18 and Title 19.
In a published decision decided after Bacon, the Fifth Circuit recognized that the
provisions set forth in 19 U.S.C. §§ 1602-1621 are procedural in nature. Vasquez v.
United States Drug Enforcement Admin., 823 F.3d 280, 281 (5th Cir. 2016). Because
Plaintiff’s forfeiture notice refers to § 981 of Title 18 as well as other criminal statutes,
the reference to the Title 19 procedural guidelines in the forfeiture notice does not operate
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to vest statutory authority for the proceedings solely in Title 19. Rather than through the
procedural guidelines identified in the Title 19 statutes, the forfeiture of Plaintiff’s
jewelry was authorized under § 981 of Title 18. See 18 U.S.C. § 981(a)(1) (providing
that the federal forfeiture laws make the proceeds or property involved in the proceeds of
certain specified unlawful activity subject to forfeiture). The undersigned concludes,
therefore, that CAFRA applies to this case because the administrative forfeiture
proceeding did not arise pursuant to a “provision of law codified in title 19.” See Can v.
United States Drug Enforcement Agency, 764 F. Supp. 2d 519, 520 n.1 (W.D. N.Y. Jan.
21, 2011) (concluding that there was “no support for the proposition that the
Government’s mere use of Title 19 procedural guidelines for a forfeiture proceeding
authorized by another title somehow vests statutory authority for the proceedings solely
in Title 19”).5
(4) Statute of Limitations
CAFRA provides in pertinent part that “[a] motion to set aside the declaration of
forfeiture must be filed no later than five years after the date of final publication of notice
of seizure.” Landry, 600 F. App’x at 220 (citing 18 U.S.C. § 983(e)(3)). The United
States contends, therefore, that Plaintiff is barred from contesting the administrative
forfeiture of his jewelry by the five-year limitation period in § 983(e)(3) as the property
was seized in June 2012 and the last day of publication of notice of the seizure was
August 18, 2012. (D.E. 19).
5
In two recent decisions, the Fifth Circuit stated that the forfeiture proceedings were governed by CAFRA despite
expressly referring to certain procedural guidelines set forth in 19 U.S.C. §§ 1602-1621. Conard, 470 F. Appx. at
338; United States v. Foster, 635 F. Appx. 818, 820 (5th Cir. 2015).
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Plaintiff’s jewelry, consisting of 30 gold pieces, was seized by ICE agents in June
2012, and the last day of publication of the notice of seizure occurred on August 12,
2012. (United States v. Tamez, D.E. 969-1, pp. 1-2). Plaintiff then initiated the instant
action more than five years later on February 1, 2018, when he filed his motion for return
of property in the underlying criminal case.
(Id., D.E. 963).
Unless Plaintiff can
establish that the five-year limitations should be tolled in some manner, his challenge
pursuant to § 983 of CAFRA is statutorily barred.
Plaintiff asserts that the principles of equitable tolling should be considered in this
case to the extent that his claim under § 983 be considered timely. (D.E. 28, p. 17).
Plaintiff states that he first learned about the administrative forfeiture of his jewelry when
the Government filed its response in February 2018 in the criminal proceeding to his Rule
41(g) motion seeking return of his property. (D.E. 28, pp. 5, 17-18).
Plaintiff argues
that the Government failed to provide him with notice of the administrative forfeiture in
the summer of 2012 as the notice was mailed to the street address where his “then-wife”
resided instead of to his address at the jail. (D.E. 28, pp. 6-7). Plaintiff, contends,
therefore, that the Government and its agents acted in bad faith in withholding the written
notice from him, thereby resulting in the deprivation of Plaintiff’s “constitutionallyprotected rights to ownership of property and due process of law.” (D.E. 28, pp. 7, 10).
Lastly, Plaintiff argues that he has pursued his rights diligently with respect to appealing
his criminal conviction in various ways over the years. (D.E. 28, p. 17).
At the outset, it is unclear whether the Fifth Circuit even recognizes that equitable
tolling applies in connection with the limitations period set forth in § 983(e)(3). In
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Landry, the Fifth Circuit concluded that the federal prisoner’s challenge to the 2006
administrative forfeiture of his property was time barred by the running of the five-year
statute of limitations contained in § 983(e)(3). Landry, 600 F. App’x at 220. In a
footnote, the Landry court considered the prisoner’s equitable tolling argument but held
they were without merit. Id. at 220 n. 4.
Following Landry, the Fifth Circuit in Vasquez likewise affirmed the district
court’s decision that federal prisoner’s action was untimely pursuant to § 983(e)(3).
Vasquez, 823 F.3d at 282. The Fifth Circuit went on, however, to state that “[w]e need
not decide whether equitable tolling applies to a statute such as 18 U.S.C. § 983(e) that
itself seems designed to cut off rights in full after a lengthy period of time for a person
who failed to receive the requisite statutory notice.” Vasquez, 823 F.3d at 282. The
Vasquez court nevertheless noted that the federal prisoner had failed to act with diligence
in pursuing his rights. Id.
While the Vasquez court suggests that principles of equitable tolling may not apply
with respect to the lengthy five-year limitations period set forth in § 983(e)(3), the
undersigned nevertheless will consider whether the limitations period should be equitably
tolled in the instant case. “Generally, a litigant seeking equitable tolling bears the burden
of establishing two elements: (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in the way.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005).
Even accepting Plaintiff’s allegations in his First Amended Complaint as true,
Plaintiff alleges nothing to suggest that he pursued his rights diligently in seeking return
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of his seized property or setting aside the administrative forfeiture. He further has failed
to allege any extraordinary circumstances that prevented him from timely seeking to set
aside the forfeiture.
Plaintiff’s alleges in his First Amended Complaint that, through the information
provided in his Pre-Sentence Report, he first became aware of the seizure of his jewelry
during the pendency of his federal criminal case at some point between his rearraignment on October 4, 2012 and his sentencing on March 28, 2013. (D.E. 35, pp. 78)
The seizure of Plaintiff’s jewelry was further mentioned at Plaintiff’s sentencing
hearing. (D.E. 754, Sentencing Transcript, p. 70).6 However, despite knowing about the
seizure of his jewelry at an early stage in the five-year limitation period commencing on
August 18, 2012, Plaintiff made no inquiries about the jewelry or otherwise attempted to
retrieve the property until after the expiration of the five-year limitations period. See
Cobar, 2014 WL 1303110, at *8 (rejecting plaintiff’s contention that the limitations
period set forth in § 983(e)(3) should be equitably tolled because he was aware of the
seizure of property at the time of his arrest but made no effort to retrieve the property
until nearly eight years later).
Plaintiff’s allegations primarily point to the fact that he failed to receive notice of
the administrative forfeiture. However, even taken as true, such allegations are “not the
type of ‘extraordinary circumstance’ that warrants equitable tolling.” Cobar, 2014 WL
1303110, at *9 (recognizing that there is no equitable tolling where plaintiff was aware of
6
As Plaintiff’s sentencing hearing is a matter of public record, the undersigned takes judicial notice of same and
shall consider it in connection with the United States’ Rule 12(b)(6) motion to dismiss. See King v. Nalley, No.
TDC-17-0628, 2017 WL 4221062, at *2 (D. Md. Sep. 21, 2017) (recognizing that a transcript is a court record
subject to judicial notice).
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seizure even though the Government negligently failed to provide plaintiff with notice of
the forfeiture proceeding). Because Plaintiff’s § 983 claim seeking to set aside the
administrative forfeiture is barred by the running of the five-year statute of limitations
and his arguments for equitable tolling fail, the undersigned GRANTS the United States’
Rule 12(b)(6) motion to dismiss (D.E. 19).
B.
FTCA Claim
In his First Amended Complaint, Plaintiff claims that that his jewelry was illegally
taken in violation of the FTCA.
(D.E. 35, pp. 1, 10).
Plaintiff alleges that the
Government, in its official capacity, is responsible for its agents’ improper taking of his
jewelry and for failing to provide him with proper notice of the administrative forfeiture.
Pursuant to Rule 12(b)(1), the Government advances three independent reasons as
to why this case should be dismissed. (D.E. 33). The Government contends that: (1) it is
shielded from liability for any FTCA claims by the “custom duty exception” set forth in
28 U.S.C. § 2680(c) (D.E. 33, pp. 5-6); (2) Plaintiff’s FTCA claims are time-barred by
the applicable two-year statute of limitations (D.E. 33, pp. 6-9); and (3) Plaintiff’s FTCA
claims are barred by his failure to exhaust administrative remedies in a timely and proper
fashion (D.E. 33, pp. 9-11). In support of its Rule 12(b)(1) motion for dismissal, the
United States has attached the following evidence:
Exh. 1 - Plaintiff’s Administrative Claim for Damage, Injury or Death,
dated March 14, 2018 (D.E. 33-1);
Exh. 2 - CAFRA Seizure Notice dated June 20, 2012 (D.E. 33-2);
Exh. 3 - Declaration of Administrative Forfeiture (D.E. 33-3);
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Exh. 4 - Disposition Order, dated June 6, 2013 (D.E. 33-4);
Exh. 5 - Excerpts from Plaintiff’s Re-arraignment Transcript, dated October
4, 2012 (D.E. 33-5); and
Exh. 6 - Excerpts from Plaintiff’s Sentencing Transcript, dated March 28,
2013 (D.E. 33-6).
As an initial manner, Plaintiff contends that the United States’ amended motion to
dismiss actually seeks summary judgment under Federal Rule of Civil Procedure 56 and
should, therefore, be struck as premature. (D.E. 36, p. 2). Plaintiff nevertheless advances
arguments that the Government is not entitled to protection by the “customs duty
exception” and that the limitations period for bringing FTCA claims is subject to
equitable tolling. (D.E. 36, pp. 5-13). Plaintiff acknowledges, however, that he recently
filed an FTCA administrative claim on March 14, 2018 and that such administrative
claim was pending at the time he filed his First Amended Complaint. (D.E. 36, pp. 1314).
Before considering the substance of any claim, the threshold question is
determining whether the court possesses jurisdiction over the claim.
Under Rule
12(b)(1), a case is properly dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate the case. Home Builders
Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citing
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1887 (2d Cir. 1996)).
Without jurisdiction conferred by any federal statute or the Constitution, federal courts
lack the power to adjudicate claims. Exxon Mobile Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552 (2005).
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Lack of subject matter jurisdiction may be found in three instances: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution
of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Once
the subject matter jurisdiction has been challenged, the party asserting jurisdiction retains
the burden of proof that jurisdiction truly does exist. Id.
“The FTCA confers on federal courts exclusive jurisdiction of civil actions on
claims against the United States for money damages for personal injury caused by the
negligent or wrongful acts or omissions of any federal employee while acting within the
scope of his office or employment.” Esquivel-Solis v. United States, 472 F. App’x 338,
339 (5th Cir. 2012) (citing 28 U.S.C. § 1346(b)(1)). “FTCA claims may be brought
against only the United States, and not the agencies or employees of the United States.”
Id. (citing 28 U.S.C. §§ 2671, 2679 and Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir.
1988)).
However, a plaintiff is limited in his ability to bring an FTCA claim against the
United States by the following exhaustion of remedies provision:
An action shall not be instituted upon a claim against the United States for
money damages for injury or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his [or her] office or
employment, unless the claimant shall have first presented the claim to the
appropriate Federal agency and his [or her] claim shall have been finally
denied by the agency in writing and sent by certified or registered mail.
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28 U.S.C. § 2675(a). “This ‘requirement of exhaustion of administrative review is a
jurisdictional requisite to the filing of an action under the FTCA’ and cannot be waived.
Garcia v. United States, No. 4-16-CV-11, 2016 WL 1638779, at *3 (S.D. Tex. Apr. 25,
2016) (quoting Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981)). If a plaintiff
fails to exhaust his or her remedies by obtaining a final agency denial as required by §
2675(a), the federal district courts lack subject matter jurisdiction over the claim and
must dismiss the claim as premature. See Price v. United States, 69 F.3d 46, 54 (5th Cir.
1995); Gregory, 634 F.2d at 204.
Section 2675(a) provides that “[t]he failure of an agency to make final disposition
of a claim within six months after it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for purposes of this section.” 28 U.S.C.
§ 2675(a). If a plaintiff “untimely” files suit “before the expiration of the six-month
waiting period,” however, the FTCA action “cannot become timely by the passage of
time after the complaint is filed.” Price, 69 F.3d at 54 (citing McNeil v. United States,
508 U.S. 106, 113 (1993)). A plaintiff, therefore, cannot commence a lawsuit under the
FTCA “unless the plaintiff has filed an administrative claim and either obtained a written
denial or waited six months.” Id. (citing 28 U.S.C. § 2675(a)).
In this case, it is undisputed that Plaintiff filed his administrative FTCA claim on
March 14, 2018. Plaintiff then brought his FTCA claim against the United States on May
23, 2018 when he filed attached his First Amended Complaint to his motion seeking
leave to amend his complaint. (D.E. 32). Plaintiff did not receive a response to his
FTCA administrative claim before filing his FTCA claim in this case. In addition,
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Plaintiff filed his First Amended Complaint before the expiration of the six-month
waiting period. Insofar as Plaintiff contends that his FTCA claim should be dismissed
because the six-month period has recently passed, such contention has no merit because §
2675(a) “requires that jurisdiction must exist at the time the complaint is filed.” Gregory,
634 F.2d at 204.
Accordingly, Plaintiff’s FTCA claim are DISMISSED for lack of subject matter
jurisdiction.
Because Plaintiff has failed to satisfy the jurisdictional prerequisite of
exhausting his available administrative remedies, it is unnecessary and perhaps premature
to consider the United States’ alternative grounds for seeking dismissal of his FTCA
claims.
C. Additional Claims
(1) Bivens Claim
Although somewhat unclear, Plaintiff appears to raise Bivens claims against the
United States in his First Amended Complaint. (D.E. 35, p. 10).7 “A Bivens action is the
counterpart to a § 1983 civil rights action and extends to parties injured by federal actors
the protections afforded under § 1983 to parties injured by state actors.” Grainger v.
Federal Bureau of Prisons, No. C-08-387, 2009 WL 47127, at *2 (S.D. Tex. Jan. 6,
2009) (citing Carlson v. Green, 446 U.S. 14, 18 (1980)). A Bivens action, however, only
provides a remedy against federal government officials acting in their individual
capacities and does not provide a cause of action against the United States. See FDIC v.
7
In his First Amended Complaint, Plaintiff raises Bivens and state law claims against several federal officials. By
separate order, the undersigned will order service of process on these individuals.
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Meyer, 510 U.S. 471, 484-86 (1994); Moore v. United States Dep’t of Agric., 55 F.3d
991, 995 (5th Cir. 1995).
Additionally, to the extent Plaintiff is raising a Bivens action based on the actions
of any of the named defendants or other federal actors, such claims are unavailable to
Plaintiff. “Since Bivens, the Supreme Court has repeatedly rejected extending Bivens
remedies to other constitutional claims.” Rankin v. United States, 556 F. App’x 305, 311
(5th Cir. 2014) (citing Wilkie v. Robbins, 551 U.S. 537, 549 (2007)). In Rankin, the
plaintiff filed a Bivens action complaining his constitutional rights were violated when
federal agents allegedly exceeded the scope of a search warrant in seizing certain
property. Id. The property was subject to administrative forfeiture proceedings and was
subsequently destroyed.
The Fifth Circuit held, “[b]ecause CAFRA provides a
comprehensive scheme for protecting property interests, no Bivens claim is available.”
Id. (citing Bush v. Lucas, 462 U.S. 367, 385–89 (1983) and Schweiker v. Chilicky, 487
U.S. 412, 424–27 (1988)).
Neither the United States nor any individual defendant moved to dismiss
Plaintiff’s Bivens claims. Section 1915(e)(2)(B) nevertheless mandates dismissal “at any
time” if the court determines that the action “fails to state a claim on which relief may be
granted” or “is frivolous or malicious.”
28 U.S.C. 1915(e)(2)(B). Accordingly, the
undersigned finds no Bivens claim is available to Plaintiff. Therefore, Plaintiff’s Bivens
claims against the United States and all individual defendants are DISMISSED pursuant
to § 1915(e)(2)(B).
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(2) APA Claim
Plaintiff also appears to raise a Fifth Amendment due process claim against the
United States under the Administrative Procedure Act (“APA”), 5 U.S.C § 702. While
generally referring to due process and federal common law claims in his First Amended
Complaint, Plaintiff enumerates this claim in his response to the United States’ amended
motion to dismiss.
(D.E. 36, pp. 7, 14).
Plaintiff specifically asserts a “Fifth
[A]mendment equitable claim under the” APA based on his allegations that ICE officials
illegally seized his property and then withheld the notice of administrative seizure. (D.E.
35, p. 10; D.E. 36, pp. 7, 14).
Plaintiff chiefly relies on Polanco v. United States Drug Enforcement Admin., 158
F.3d 647 (2d. Cir. 1998) as support for his APA claim seeking equitable relief. In
Polanco, the plaintiff claimed that the government violated his due process rights under
the Fifth Amendment by failing to notify him that it intended to forfeit property seized
from him consisting of $6,920 in United States currency. Id. at 649. The Second Circuit
ultimately allowed the plaintiff to bring a cause of action for equitable relief. Id. at 65152. Even though the plaintiff sought money from the government, the Second Circuit
determined that his claim against the Drug Enforcement Agency (DEA) was not barred
by the doctrine of sovereign immunity because the remedy he sought involved the
correction of a procedural deficiency by: (1) vacating the administrative forfeiture; and
(2) requiring the DEA to either return his property to him or begin a new forfeiture
proceeding that complied with both agency procedure and the due process. Id. at 652.
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The Polanco court recognized that the plaintiff’s cause of action against a
governmental agency fell under § 702 of the APA in that he only sought equitable relief.
Id. Indeed, the APA waives sovereign immunity in an action seeking equitable relief
from wrongful agency action, except where (i) the action also seeks monetary relief; (ii)
there is an adequate remedy at law; or (iii) the action is precluded from judicial review by
statute or committed by law to agency discretion. See 5 U.S.C. §§ 701 & 702.
Contrary to the plaintiff in Polanco, Plaintiff does not exclusively seek equitable
relief in his First Amended Complaint. His amended complaint primarily seeks monetary
damages. Furthermore, the only equitable relief available to Plaintiff in seeking to set
aside the administrative forfeiture arises under, which became effective after the Second
Circuit issued its decision in Polanco. CAFRA, as discussed above, expressly provides
the “exclusive remedy for seeking to set aside a declaration of forfeiture ....” 18 U.S.C. §
983(e). See also Hayes v. United States, No. 08 Civ. 6525, 2009 WL 1856789, at *9
(S.D. N.Y. Feb. 18, 2009) (“Continued recognition of the equitable action recognized in
Polanco would violate subsection 983(e)’s express role as the exclusive remedy for
challenges based on lack of notice.”). Because an adequate equitable remedy exists
solely under CAFRA, Plaintiff cannot prevail on his Fifth Amendment claim for
equitable relief brought against the United States or one of its agencies pursuant to the
APA. Accordingly, to the extent Plaintiff has raised an equitable due process claim under
the APA, such claim against the United States is DISMISSED pursuant to §
1915(e)(2)(B).
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IV.
PLAINTIFF’S MOTION TO AMEND
Rule 15(a) provides that leave to amend “shall be freely given when justice so
requires.”
Determining when justice requires permission to amend rests within the
discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.
321, 330 (1971); Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). A federal court
has discretion to deny a motion to amend when that amendment would be futile. Foman
v. Davis, 371 U.S. 178, 182 (1962); Martin’s Herend Imports, Inc. v. Diamond & Gem
Trading U.S. Am. Co., 195 F.3d 765, 771 (5th Cir. 1999). “An amendment is futile if it
would fail to state a claim upon which relief could be granted.” Stripling v. Jordan Prod.
Co., 234 F.3d 863, 873 (5th Cir. 2000).
Plaintiff states in his motion to amend that he submitted a Standard Form 95 8 to
the United States on March 14, 2018 and that six months have passed without the claim
being acted upon. The implication being that Plaintiff believes he has met the FTCA
exhaustion prerequisite by exhausting his administratively remedies. In McNeil v. United
States, 508 U.S. 106 (1993), the Court held that the FTCA requirement that
administrative remedies be exhausted before filing suit was not satisfied by agency
rejecting the claim after the suit was filed. Id. at 113. Exhaustion is a prerequisite to
filing suit and jurisdiction must exist at the time the complaint is filed. Gregory, 634
F.2d at 204. Plaintiff did not exhaust his administrative remedies before filing suit,
therefore his proposed amended complaint would not alter the analysis that his FTCA
8
A Standard Form 95 is the form used to present claims under the Federal Tort Claims Act.
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claim be dismissed.
Plaintiff’s motion to amend is DENIED because his proposed
amendments would be futile.
V.
CONCLUSION
For the foregoing reasons, the United States’ Motion to Dismiss (D.E. 19) is
GRANTED and Plaintiff’s § 983 claim under CAFRA is DISMISSED with prejudice.
Further, the United States’ Amended Motion to Dismiss under Rule 12(b)(1) (D.E. 33) is
GRANTED and Plaintiff’s FTCA claim is DISMISSED for lack of subject matter
jurisdiction due to Plaintiff’s failure to exhaust his administrative remedy prior to filing
his First Amended Complaint. Further, Plaintiff’s Bivens claims against the United States
and the individual defendants and his APA claims against the United States are
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). Lastly, Plaintiff’s motion to amend
(D.E. 44) is DENIED.
ORDERED this 10th day of October 2018.
___________________________________
Jason B. Libby
United States Magistrate Judge
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