Huerta v. United States of America et al

Filing 14

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Octavio Huerta. It is therefore recommended that Plaintiffs Bivens claims be dismissed without prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e). Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
OCTAVIO HUERTA #63102-019
V.
UNITED STATES OF AMERICA,
LORETTA LYNCH, JAMES B. COMEY,
and JACK LEW

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A-15-CA-1146-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates.
Before the Court are Plaintiff’s Complaint (Document No. 1) and Plaintiff’s More Definite
Statement (Document No. 12). Plaintiff, proceeding pro se, has been granted leave to proceed in
forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint, Plaintiff was incarcerated in FCI Bastrop. Plaintiff
purportedly files suit under the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown
Agents of the Bureau of Narcotics and Dangerous Drugs, 403 U.S. 388 (1971). Plaintiff alleges at
the time of his arrest on August 28, 2011, agents of the FBI seized two income tax checks in
violation of the Constitution. Plaintiff was allegedly told the checks were held in inventory with the
evidence collected in his criminal case. At some point, Plaintiff alleges he was informed the checks

were returned to the Treasury. Plaintiff asserts the checks were cashed during the period when
Plaintiff was told the checks were in inventory. Plaintiff sues the United States of America, U.S.
Attorney General Loretta Lynch, Director of the Federal Bureau of Investigation James Comey, and
Secretary of the Treasury Jack Lew. Plaintiff requests damages in the amount of three times the
amount of the total of his checks. He also requests that the United States Department of Treasury
be ordered to reissue the checks plus interest.
DISCUSSION AND ANALYSIS
A.

Standard Under 28 U.S.C. § 1915(e)

Title 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss a complaint if it determines
that it fails to state a claim on which relief may be granted. To state a claim, a plaintiff’s allegations
must present “enough facts to state a claim to relief that is plausible on its face,” which means that
the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see also FED. R. CIV. P. 8(a), 12(b)(6).
“Labels and conclusions, and a formulaic recitation of elements of a cause of action will not do.”
Twombly, 550 U.S., at 555. A conclusory complaint–one that fails to state material facts–may be
dismissed as frivolous, see e.g., Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992), or for a failure
to state a claim, see Rios v. City of Del Rio, 444 F.3d 417, 426 (5th Cir. 2006).
B.

Bivens Claims

As currently presented, Plaintiff’s Complaint does not entitle him to relief against Defendants
Lynch, Comey, and Lew. It is well-settled that vicarious liability does not apply to § 1983 claims.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior). Plaintiff does
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not allege any facts showing Defendants Lynch, Comey, or Lew had any personal involvement in,
or personal knowledge of, any of the events described in Plaintiff’s Complaint or More Definite
Statement. As such, he has failed to allege a valid claim against them under Bivens.
Allowing Plaintiff to amend his complaint to name the defendants who allegedly unlawfully
seized his income tax checks or who returned his checks to the U.S. Treasury would be futile.
Plaintiff’s claims would be time-barred. Because there is no federal statute of limitations for Bivens
claims, federal courts apply the general personal injury limitations period and tolling provisions of
the forum state. Brown v. Nationsbank Corp., 188 F.3d 579, 590 (5th Cir. 1999); Gartrell v. Gaylor,
981 F.2d 254, 256 (5th Cir. 1993); see also, Izen v. Catalina, 398 F.3d 363, 367 n. 3 (5th Cir. 2005).
In Texas, the relevant statute of limitations is two years. See Cooper v. Brookshire, 70 F.3d 377, 380
n. 20 (5th Cir. 1995); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 1986). Federal law
governs when a claim accrues, beginning when a “plaintiff knows or has reason to know of the injury
which is the basis of the action.” Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). Actual
knowledge is not necessary, though, for the limitations period to commence “if the circumstances
would lead a reasonable person to investigate further.” Piotrowski v. City of Houston, 51 F.3d 512,
516 (5th Cir.1995)).
Plaintiff asserts his checks were unlawfully seized during his arrest on August 28, 2011.
Documentation attached to Plaintiff’s complaint indicates his tax refunds were cancelled the next
day, replacement refunds were requested on October 28, 2011, and replacement refunds issued on
November 21, 2011. Although Plaintiff states he did not discover his income tax checks had been
cashed until June 23, 2015, with reasonable diligence Plaintiff should have been able to discover his
checks had been returned to the U.S. Treasury by the time he was sentenced in federal court.
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Plaintiff was sentenced in the United States District Court for the District of Indiana on August 20,
2013. Plaintiff did not file his complaint until on or about December 10, 2015, more than two years
after he was sentenced and more than four years after his checks were seized.
In his More Definite Statement, Plaintiff suggests he is entitled to equitable tolling. While
the statute of limitations for a Bivens action may be equitably tolled, equity does not favor Plaintiff.
Plaintiff knew of the facts about his checks in August 2011, and he could have discovered the checks
had been returned to the U.S. Treasury at the time he was sentenced. And Plaintiff does not explain
how the government’s actions prevented him from bringing a timely claim.
C.

FTCA
Plaintiff’s claims under the FTCA are also time-barred. Under this statute, an “action shall

not be instituted . . . unless the claimant shall have first presented the claim to the appropriate . . .
agency and his claim shall have been finally denied by the agency.” McNeil v. United States, 508
U.S. 106, 107 (1993). The FTCA provides that a tort claim against the United States will be barred
unless it is presented in writing to the appropriate federal agency within two years after such claim
accrues. In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011)
(analyzing 28 U.S.C. § 2401(b)). As explained above, Plaintiff’s claim accrued no later than the date
he was sentenced in federal court. At that time, he knew or had reason to know that his checks were
not going to be returned to him. Plaintiff does not allege he presented any claim in writing to any
federal agency within two years of this date. His claim is therefore barred under the FTCA.
Plaintiff attempts to argue the statute of limitations for his claim is six years. Had Plaintiff
moved for the return of his property rather than requesting damages, the limitations period would
have been six years. See United States v. Wright, 361 F.3d 288, 290 (5th Cir. 2004) (applying
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§ 2401(a) to a Rule 41(g) motion for return of property). Amending his complaint would be futile,
however, as the Government cannot return property it does not possess. Bailey v. United States, 508
F.3d 736, 740 (5th Cir. 2007). Plaintiff admits the Government does not have in its possession the
income tax checks in question. As such, the Court cannot order their return.1
RECOMMENDATION
It is therefore recommended that Plaintiff’s Bivens claims be dismissed without prejudice
for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e). It is
further recommended that Plaintiff’s time-barred FTCA claim be dismissed with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(e).
It is further recommended that Plaintiff should be warned that if Plaintiff files more than
three actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for
failure to state a claim on which relief may be granted, then he will be prohibited from bringing any
other actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28
U.S.C. § 1915(g).
OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by

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Moreover, even if the Government had in its possession the original income tax checks
seized from Plaintiff, those checks would be worthless. Plaintiff’s documentation demonstrates the
checks were reissued and were endorsed by someone using Plaintiff’s name and social security
number.
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the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277
(5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 22nd day of February, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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