Nogales v. Criswell

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 granted.

         BACKGROUND

         On 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.^[1] (No. 6:12-cr-00328-JMC-2, Dkt. No. 786).^[2] Criswell logged the iPhone, wallet, sunglasses, and hat in a Custody Receipt for Seized Property and Evidence. (Dkt. No. 31-1.)

         Pursuant 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.)

         Following 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.^[3] (Crim. Dkt. No. 770.)

         On May 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. 781.)

         On 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.” (Id.)

         Nogales 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.)

         On June 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 assert.

(Id. at 4.)

         On July 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.

         STANDARDS

         A. Liberal Construction of Pro Se Complaint

         Nogales 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).

         B. Rule 12(b)(1) Dismissal Standard

         Under 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 ...