Tamez v. United States
| Decision Date | 10 October 2018 |
| Docket Number | CIVIL ACTION NO. 2:18-CV-83 |
| Parties | FLAVIO TAMEZ, Plaintiff, v. UNITED STATES OF AMERICA, et al, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
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 pursuant to 28 U.S.C. § 1915(e)(2)(B). Lastly, Plaintiff's motion to amend (D.E. 44) is DENIED.
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).
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 piecesof 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). Agents immediately commenced administrative forfeiture proceedings. 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.(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 amotion 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).
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 sur-reply (D.E. 42). On October 4, 2018, Plaintiff filed a motion for leave to file a second amended complaint. (D.E. 44).
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 notspecifically 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...
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