United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Carlos Nogales (“Nogales” or
“Plaintiff”), proceeding pro se and in forma
pauperis, brought this action pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),
alleging certain violations of his constitutional rights.
(Dkt. No. 10; see 28 U.S.C. § 1346.) This matter is
before the Court upon Defendant's Motion to Dismiss for
Failure to State a Claim and Lack of Jurisdiction. (Dkt. No.
31.) Pursuant to the provisions of Title 28, United States
Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e),
D.S.C., all pretrial matters in cases involving pro se
litigants are referred to a United States Magistrate Judge
for consideration. For the reasons set forth herein, the
undersigned recommends that Defendant's Motion be
March 19, 2012, Plaintiff was arrested by Homeland Security
Investigations (“HSI”) Special Agent Paul
Criswell (“Criswell” or “Defendant”)
in Greenville, South Carolina. (Dkt. No. 10 at 5.) Criswell
seized several of Nogales's personal items incident to
the arrest, including an iPhone, Louis Vuitton wallet, Brooks
Brothers sunglasses, and a cowboy hat. (Id.) Nogales
also claims that Criswell seized currency amounting to $5,
940.00 at the time of Nogales's arrest. (No.
6:12-cr-00328-JMC-2, Dkt. No. 786). Criswell logged the iPhone,
wallet, sunglasses, and hat in a Custody Receipt for Seized
Property and Evidence. (Dkt. No. 31-1.)
to this arrest, Nogales was charged and later convicted of a
drug-related offense. (Crim. Dkt. Nos. 674, 676.) Nogales
claims that during the course of his criminal case, he made
repeated requests through his attorney for the return of the
property seized during his arrest. (Dkt. No. 37 at 2; Dkt.
No. 10 at 6.) According to Nogales, the prosecutor requested
the PIN for his iPhone so that the Government could unlock
the device and review its contents for evidence. (Dkt. No. 37
at 2.) Nogales claims that he provided the PIN under the
impression that his cooperation would expedite the return of
his cellphone. (Id.) On July 29, 2014, Nogales was
sentenced and committed to the custody of the United States
Bureau of Prison (“BOP”). (Crim. Dkt. Nos. 674,
676; Dkt. No. 37 at 2.) During his sentencing hearing,
Nogales alleges that the prosecutor told him the Government
would return the property within two (2) weeks, which it did
not. (Dkt. No. 37 at 2.)
his sentencing, Nogales claims that he continued to seek the
return of his property as a pro se litigant. Specifically, on
November 10, 2015, Nogales filed a Motion for Return of
Property pursuant to Rule 41(g) of the Federal Rules of
Criminal Procedure, seeking the return of his iPhone, wallet,
and $5, 940.00 in currency. (Crim. Dkt. No. 743.) On November
19, 2015, the United States responded to Nogales's motion
and stated that Nogales's “wallet and iPhone were
deemed abandoned and destroyed, ” and that his money
was “administratively forfeited.” (Crim. Dkt. No.
746.) The United States later clarified that Nogales's
currency was not actually forfeited. (Crim. Dkt. No. 763.) On
April 11, 2016, Nogales filed a Motion for Release of Funds,
requesting that the Court expedite the Government's
return of his money. (Id.) Thus, on May 4, 2016, the
Court granted Nogales's Motions for Return of Property
and Release of Funds with respect to the seized currency, and
denied his Motion for Return of Property with respect to the
iPhone and wallet, given that they had been
destroyed. (Crim. Dkt. No. 770.)
23, 2016, Nogales filed a Motion for Reconsideration of the
Court's Order regarding his Motion for Return of
Property. (Crim. Dkt. No. 772.) Specifically, Nogales asked
that the Court construe his original Motion for Return of
Property “as a Bivens action against the agents who
negligently caused his property to be destroyed.”
(Id.) Nogales argued that the Government should have
notified him before destroying his personal property and,
thus, he was entitled to monetary damages for the destruction
of his iPhone and wallet. On June 14, 2016, the United States
filed a Response in Opposition, emphasizing that Nogales had
filed his initial Motion for Return of Property over three
(3) years after his arrest and the seizure of his property,
and that his Motion to Reconsider was a “thinly veiled
attempt to perpetually litigate an issue” about which
he had received notice almost four (4) years prior. (Crim.
Dkt. No. 774.) The United States also noted that the Court
had already granted the relief sought by Nogales: the
expedited return of his seized currency. (Id.)
Nogales filed his reply on July 22, 2016. (Crim. Dkt. No.
January 9, 2018, the Court issued a text order denying
Nogales's Motion to Reconsider, stating that Nogales had
“raise[d], for the first time and almost four years
after his arrest, new arguments related to the seizure of the
property he possessed when he was arrested.” (Crim.
Dkt. No. 797.) The Court noted that a motion for
reconsideration is not the appropriate vehicle to raise new
arguments and, despite Nogales's status as a pro se
litigant, “procedural rules in ordinary civil
litigation should [not] be interpreted so as to excuse
mistakes by those who proceed without counsel.”
brought the instant action on May 14, 2018, alleging a
violation of the Federal Tort Claims Act (“FTCA”)
against the United States. (Dkt. No. 1.) Nogales labeled the
Complaint as a “Bivens Action Against Agents Who
Destroyed Property.” (Id. at 3.) Nogales also
attached an old letter from his attorney dated December 19,
2013, in which the attorney told Nogales that he would ask
the Government about the return of his iPhone. (Dkt. No.
1-1.) On May 17, 2018, this Court issued a Proper Form Order,
stating that it was unclear from Nogales's Complaint
whether he intended to bring an action pursuant to Bivens or
the FTCA. Accordingly, the Court gave Nogales twenty-one (21)
days to file an amended complaint to clarify his claims.
(Id. at 3.)
8, 2018, the Court issued a Second Proper Form Order. (Dkt.
No. 7.) Specifically, the Court noted:
Plaintiff acknowledges that in his federal criminal case, the
United States returned the currency seized during his arrest.
. . . Over three years after his arrest, Plaintiff sought
return of his cell phone and wallet (which had already been
destroyed). This Court denied Plaintiff's multiple
motions which asked for return of the destroyed property. . .
. In his present Complaint, Plaintiff concedes that the
United States cannot return property that no longer exists,
but he now sues the United States for monetary damages under
the FTCA for negligent destruction of his property.
. . . .
Review of the Complaint reflects that Plaintiff is suing the
United States for damages under the FTCA for negligent
destruction of his property. Although Plaintiff also mentions
“Bivens, ” it is unclear whether Plaintiff is
actually asserting a claim for violation of any
constitutional rights, as the Complaint contains little or no
facts to support such a claim. The proper party in a
constitutional Bivens action is the federal official in his
individual capacity. The Court will give Plaintiff an
opportunity to file an amended complaint (in order to more
clearly state his claims) within twenty-one (21) days from
the date this Order is entered, plus three (3) days for mail
time. If Plaintiff chooses to file an Amended Complaint, it
will replace the prior Complaint and should fully state all
of the claims and supporting facts that Plaintiff wishes to
(Id. at 4.)
2, 2018, Nogales filed an Amended Complaint against Special
Agent Criswell pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents. (Dkt. No. 10.) In his Amended
Complaint, Nogales alleges that Criswell violated his
constitutional rights under the Fourth and Fifth Amendments
by destroying his property without notice, and requests that
he be compensated $750.00 for the iPhone; $850.00 for the
wallet; $135.00 for the sunglasses; and $150.00 for the
cowboy hat. (Dkt. No. 10 at 6.) Nogales's Amended
Complaint does not name the United States as a defendant, nor
does it reference the FTCA. On December 17, 2018, Criswell
filed a Motion to Dismiss for Failure to State a Claim and
Lack of Jurisdiction. (Dkt. No. 31.) Pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), Nogales was
advised of the dismissal procedure and the possible
consequences if he failed to adequately respond to the
motion. (Dkt. No. 32.) Nogales filed a Response in Opposition
to Criswell's Motion on February 1, 2019. (Dkt. No. 37.)
Criswell did not file a reply.
Liberal Construction of Pro Se Complaint
brought this action pro se, which requires the Court to
liberally construe his pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); Loe v. Armistead, 582
F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are
held to a less stringent standard than those drafted by
attorneys. Haines, 404 U.S. at 520. Even under this
less stringent standard, however, a pro se complaint is still
subject to summary dismissal. Id. at 520-21. The
mandated liberal construction means that only if the court
can reasonably read the pleadings to state a valid claim on
which the complainant could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the complainant's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
12(b)(1) Dismissal Standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
claim should be dismissed if it lacks subject matter
jurisdiction. When considering a motion to dismiss for lack
of subject matter jurisdiction, “the district court is
to regard the pleadings' allegations as mere evidence on
the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.” Richmond, Fredericksburg & Potomac
R.R. Co. v. United States,945 F.2d 765, 768 (4th Cir.
1991). “The court may dismiss a case for lack of
subject matter jurisdiction on any of the following bases:
(1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus ...