Vallejo v. United States
| Decision Date | 06 August 2015 |
| Docket Number | Civ. No. 13-5455(NLH) |
| Parties | CARLOS VALLEJO, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Carlos Vallejo, #41351-050
USP Canaan
P.O. Box 300
Waymart, PA 18472
Plaintiff, prose
Plaintiff Carlos Vallejo, a prisoner confined at the United States Penitentiary Canaan in Waymart, Pennsylvania, seeks to bring this action in forma pauperis pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671, et seq., alleging tort claims and violations of his constitutional rights when agents of the Drug Enforcement Administration seized his property during Plaintiff's arrest on January 25, 2007.
On March 31, 2015, Plaintiff's application to proceed in forma pauperis was conditionally granted subject to the condition that Plaintiff must submit to the Court a certifiedsix-month institutional account statement, signed by an appropriate institutional official. (ECF No. 4). On April 15, 2015, Plaintiff submitted the required documentation and satisfied the conditions. (ECF No. 5). Accordingly, he is granted in forma pauperis status and the Court will now conduct its sua sponte screening.
For the reasons set forth below, the Complaint will be DISMISSED without prejudice.
Plaintiff was arrested on January 25, 2007 by Drug Enforcement Administration ("DEA") Special Agents and was subsequently indicted for conspiracy to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base in violation of 21 U.S.C. § 846; as well as two substantive counts of possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841.1
Plaintiff asserts that, during this arrest, special agents seized $160,000 in United States currency and two Harley Davidson motorcycles, which Plaintiff states are valued at approximately $20,000. Plaintiff contends that seizure of this property violated his rights under the Fourth and Fifth Amendments of the Constitution.
Plaintiff previously brought this issue before the Court in conjunction with his underlying criminal matter in the form of a Motion to Set Aside a Civil Forfeiture Pursuant to 18 U.S.C. § 983(e)(5). United States v. Vallejo, Crim. No. 07-145, ECF Nos. 198, 199. In an Order dated July 25, 2013, the Court denied Plaintiff's motion on the basis that, at that time, there was no case or controversy before the Court regarding the items forfeited. The Court noted that, based on the documents submitted by the Government in opposition to Vallejo's motion, the items were forfeited under an administrative action which bears an Administrative Case Number CX-5-009. United States v. Vallejo, Crim. No. 07-145 (D.N.J. Sept. 4, 2013) ECF No. 203 at n.1.
This Court further noted that Plaintiff could pursue his claims in a separate civil action but that he "may have the option of, or be required to, contest the forfeiture administratively prior to the filing of his civil complaint in the United States District Court." Id., ECF No. 203 at n.2.Plaintiff attaches a copy of this Order to his Complaint. (Compl. 7-9, ECF No. 1).
On September 8, 2013, Plaintiff filed the instant Complaint. He seeks return of $160,000 in U.S. currency as well as the value ($20,000) of the two Harley Davidson motorcycles.
Per the Prison Litigation Reform Act, Pub.L. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (Apr. 26, 1996) ("PLRA"), district courts must review complaints in those civil actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.
"The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)." Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (per curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App'x 230, 232 (3d Cir.2012) (per curiam)(discussing 42 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). That standard is set forth in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), as clarified by the United States Court of Appeals for the Third Circuit.
To survive the court's screening for failure to state a claim, the complaint must allege "sufficient factual matter" to show that the claim is facially plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). "[A] pleading that offers 'labels or conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6), and hence, also under the PLRA screening provisions).See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 2 (3d Cir. 1994).
Finally, pro se pleadings will be liberally construed. Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)), cited in Thomaston v. Meyer, 519 F. App'x 118, 120 n. 2 (3d Cir. 2013); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
Plaintiff has asserted causes of action under both Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671, et seq. ("FTCA"). (Compl. 2, ECF No. 1).
Plaintiff's claims pursuant to Bivens must be dismissed as time-barred. See McPherson v. United States, 392 F. App'x 938, 943 (3d Cir. 2010) (); see also Smith-Harper v. Thurlow, No. 15-1254, 2015 WL 3401419, at *3 .
Like civil rights claims brought pursuant to 42 U.S.C. § 1983, the statute of limitations for Bivens claims is taken from the forum state's personal injury statute. Hughes v. Knieblher, 341 F. App'x 749, 752 (3d Cir. 2009); see also Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); Napier v. Thirty or More Unidentified Fed. Agents, Employees or Officers, 855 F.2d 1080, 1087 n. 3 (3d Cir. 1988) (). New Jersey's statute of limitations for personal injury causes of action is two years. N.J. Stat. Ann. § 2A:14-2.
A Bivens claim accrues when the plaintiff knows, or has reason to know, of the injury that forms the basis of the action. Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).
In this case, Plaintiff explains that the Drug Enforcement Administration ("DEA") and certain unknown agents seizedPlaintiff's property during his arrest, which occurred on January 25, 2007. However, Plaintiff did not file the instant action until September 8, 2013, more than six years after the seizure. Additionally, the filing of this Complaint came nearly five years after Plaintiff had been convicted, sentenced and judgment had been entered against him, on October 17, 2008. United States v. Vallejo, Crim. No. 07-145 (D.N.J. Sept. 4, 2013) ECF No. 159. Thus, the instant action was commenced long after the two-year statute of limitations for a Bivens claim had expired and Plaintiff has not offered any reason why the statute of limitations should be tolled.2 Accordingly, Plaintiff is barred by the statute of limitations from pursuing his Fourth and Fifth Amendment claims based on the property seizure that occurred during his arrest. His claims pursuant to Bivens are dismissed.
Plaintiff also asserts a cause of action against the United States under the Federal Tort Claims Act ("FTCA"). The United States has sovereign immunity except where it consents to be sued. United States v. Bormes, 133 S. Ct. 12, 16, 184 L. Ed. 2d317 (2012); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). In the absence of such a waiver of immunity, a plaintiff cannot proceed in an action for damages against the United States. See FDIC v. Meyer, 510 U.S. 471, 484-87, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671, et seq., however,...
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