Summary
noting that the plaintiff's Bivens claim was asserted, not against the United States but against named government officials
Summary of this case from Fajardo-Guevara v. United StatesOpinion
Civil No. 3:03-CV-2356-H.
November 8, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion to Dismiss, filed August 30, 2004; and Plaintiff's Response filed October 12, 2004. For the reasons discussed below, Defendants' motion is GRANTED.
Although the parties style the case differently with every filing, the Court notes that the proper defendants to this action are David Moser, Glenn Schneider, Dellie Schaffer. The Drug Enforcement Agency, United States of America, and U.S. Department of Labor are not proper defendants. See note 6 infra.
I. Background
Plaintiff Elias Arredondo ("Arredondo") seeks the return of certain property seized during his arrest and the subsequent search of his residence. Specifically, Arredondo seeks the return of (1) a digital pager, three notebooks, long distance telephone cards, photographs, and miscellaneous documents (collectively "miscellaneous seized items"); (2) $11,829.77 in United States currency and; (3) a revolver and a semi-automatic pistol ("firearms").
On October 15, 1997, the Drug Enforcement Agency ("DEA") arrested Arredondo at his place of business in Grand Prairie, Texas, pursuant to an arrest warrant issued from the United States District Court for the Western District of Tennessee. During a search of Arredondo's person and residence, DEA agents seized currency, firearms, and "miscellaneous seized items."
Arredondo ultimately pleaded guilty to possession with intent to distribute 151 kilograms of a controlled substance (cocaine) and received a sentence of 262 months imprisonment.
On April 24, 2002, Arredondo instituted these proceedings by filing with the Federal District Court in the Western District of Tennessee a Federal Rule of Criminal Procedure 41 motion for the return of currency and property. On June 17, 2002, the court denied Arredondo's motion because such a motion may only be filed in the district where the property was seized. FED. R. CRIM. PRO. 41(g) ("A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized.")
On October 6, 2003, Arredondo resubmitted his motion to this Court via an original filing in the Northern District of Texas, Dallas Division; the district where the property was seized. On March 22, 2004, the United States filed a Motion to Dismiss. Addressing both motions, the Court entered a Memorandum Opinion and Order on May 25, 2004, dismissing Arredondo's claims as to the forfeited currency and the destroyed firearms. Therein the Court directed Arredondo to file an amended complaint limited to a claim of monetary damages for the "miscellaneous seized items" pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On June 22, 2004, Arredondo filed his Motion to Amend, but because the Motion was a complaint in everything but title, the Court construed it as his Amended Complaint. Pursuant to 28 U.S.C. § 1915A, the Court dismissed Arredondo's claims against defendants David Carmical ("Carmical") and Don York in its Order entered June 25, 2004, leaving David E. Moser, Glenn Schneider, and Dellie Schaffer, agents or employees of the DEA, Dallas Field Office ("Defendants") as the only remaining Defendants. On August 30, 2004, Defendants filed their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).
With respect to the "miscellaneous seized items," the United States presented evidence that the DEA destroyed those items on October 21, 1998, in accordance with the DEA policy for non-drug evidence. (Memorandum Opinion and Order entered May 25, 2004.)
Arredondo captioned his filing "Motion to Amend Petitioner's Rule 41(e) Motion and Present the Necessary Facts for a Civil Rights Action Under 28 USC § 1331 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) with Demand for Jury Trial."
II. Legal Standards
A motion to dismiss for lack of subject matter jurisdiction "under 12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Id. The district court may analyze subject matter jurisdiction from "any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). The burden of showing proper jurisdiction is on the party asserting jurisdiction. Id. Here, Plaintiff bears the burden. Id.
In a Bivens action, a victim files suit in federal court against "a federal agent for money damages when the federal agent has allegedly violated that person's constitutional rights." Brown v. Nationsbank Corp., 188 F.3d 579 (5th Cir. 1999) (citing Bivens, 403 U.S. 388), cert. denied, 530 U.S. 1274 (2002); McGuire v. Turnbo, 137 F.3d 321, 323 (5th Cir. 1998). "Although federal courts look to federal law to determine when a civil rights action accrues, state law supplies the applicable limitations period and tolling provisions." Harris v. Hegmann, 198 F.3d 153, 156-57 (5th Cir. 1999) (citing Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992)); ("A Bivens action is controlled by the applicable state statute of limitations.") Brown, 188 F.3d at 590 (citing Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982) ( per curiam)). Applying Texas law, the Fifth Circuit has held that "the statute of limitations period on a Bivens claim is two years." Brown, 188 F.3d at 590 (citing Peña v. United States, 157 F.3d 984, 987 (5th Cir. 1998)); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993); see also Lopez-Vences v. Payne, 74 Fed.Appx. 398 (5th Cir. 2003) (unpublished opinion) (examining Gartrell).
To the extent that Arredondo attempts to assert a tort claim against the United States, the applicable statute of limitations is two years. See 28 U.S.C. § 2401(b) ("A tort claim against the United States shall be forever barred unless . . . presented . . . within two years after such claim accrues[.]"). But see note 6 infra.
III. Analysis
Arredondo relies heavily on his argument that the applicable statute of limitations is 28 U.S.C. § 2401(a). (Pl.'s Resp. at 3-5.) Section 2401(a) provides a six year limitations period. 28 U.S.C. § 2401(a). Although Arredondo correctly asserts that where a civil action is filed against the United States a six year statute of limitations applies ( id., citing 28 U.S.C. § 2401(a)), there is no federal statute of limitations on a Bivens claim. See Peña, 157 F.3d 984; Gaspard v. United States, 713 F.2d 1097 (5th Cir. 1983), cert. denied, 466 U.S. 975 (1984). Arredondo's Bivens claim is not against the United States, but rather against Defendants; David E. Moser, Glenn Schneider, and Dellie Schaffer as agents or employees of the DEA. Accordingly, 28 U.S.C. § 2401(a) is irrelevant. The applicable limitations period for Arredondo's Bivens claim is two years. See Brown, 188 F.3d 579.
Arredondo's Bivens claim does not lie against the United States because Bivens and its progeny do not create a cause of action against the United States. Such a suit against the United States would fail because absent a "waiver of sovereign immunity for Bivens violations, such suits must be brought against the government officials themselves." Gaspard, 713 F.2d at 1104 n. 13. "The principle of sovereign immunity protects the federal government from suit except insofar as that immunity is waived." Peña, 157 F.3d at 986 (analyzing Federal Rule of Criminal Procedure 41(e)). See Armendariz-Mata v. United States Dept. of Justice, Drug Enforcement Admin., 82 F.3d 679, 682 (5th Cir. 1996) ("[W]hen the substance of the complaint at issue is a claim for money damages, the case is not one covered by [5 U.S.C.] § 702, and, hence, sovereign immunity has not been waived."), cert. denied, 519 U.S. 937 (1996).
Determining the limitations period does not end the inquiry; the Court must determine when the limitations begins to run. Although the limitations period is controlled by state law, "federal law . . . determine[s] when a civil rights action accrues[.]" Harris, 198 F.3d at 157; Gartrell, 981 F.2d at 257. "Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Gartrell, 981 F.2d at 257 (citing Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980)) (emphasis added). "A plaintiff need not know that she has a legal cause of action; she need know only the facts that would ultimately support a claim[; i.e.,] (1) [t]he existence of the injury; and (2) . . . the connection between the injury and the defendant's actions." Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal quotations omitted), cert. denied, 534 U.S. 820 (2001) (emphasis added).
Although the civil rights violations in Gartrell and Piotrowski, were 42 U.S.C. § 1983 claims, the Court finds Bivens claims sufficiently analogous to § 1983 claims. See Inez v. Catalina, 382 F.3d 566, 570 n. 3 (5th Cir. 2004) ("[W]e have held that the constitutional torts authorized by [§ 1983 and Bivens] are coextensive. . . . Thus we do not distinguish here between Bivens claims and § 1983 claims.") (citing Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) ("A Bivens action is analogous to an action under § 1983 — the only difference being that § 1983 applies to constitutional violations by state, rather than federal, officials."), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003)); Abate v. Southern Pac. Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993) (" Bivens is the federal counterpart of § 1983 [and] . . . extends the protections afforded by § 1983 to parties injured by federal actors not liable under § 1983."). Thus the Court does not distinguish between the two for the purposes of determining when a Bivens cause of action accrues.
The Court finds Peña v. United States, 157 F.3d 984, 987 (5th Cir. 1998), dispositive. In Peña, federal officers seized Peña's property in June of 1994. Id., at 986. Within two years of the seizure, on March 25, 1996, Peña filed a Federal Rule of Criminal Procedure 41(e) motion for the return of property. Id., at 985. The defendant responded indicating that the government had destroyed his property. Id. After receiving defendant's response and without affording Peña the opportunity to amend his pleadings, the district court dismissed the action as moot on August 8, 1996. Id., at 985-86. The district court's dismissal combined with the knowledge that the government had destroyed his property, "presented the facts necessary for an action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)." Id., at 987. The Fifth Circuit, applying the two year limitations period, determined that "Peña could not file a Bivens action today [October 7, 1998]." Id. The panel found, however, that "[u]nder Federal Rule of Civil Procedure 15(c)(2) [Peña's amendments] will relate back to the date of his original pleading, filed in March 1996." Id.
Applying Peña to the instant case, Arredondo was on actual notice of his Bivens claim when the Court entered its May 25, 2004, Order directing him to file a claim for monetary damages pursuant to Bivens. Like Peña's, Arredondo's "original motion made no reference to the government's destruction of his property, [but] it referenced the conduct that would underlie a Bivens action — i.e., the government's depriving him of his lawful property." Peña, 157 F.3d at 987 n. 4. Accordingly, under Federal Rule of Civil Procedure 15(c)(2), Arredondo's amendment relates back to the date of his original pleading.
Arredondo was aware the facts necessary to amend his complaint and add an action under Bivens, at the earliest, on March 22, 2004, when the United States' response indicated that the property could not be returned because it had been destroyed.
Defendants argue that under Peña, Arredondo's destruction of property claim relates back to October 6, 2003, when he filed is Motion for Return of Property with this Court. (Def.'s Mot. at 4.) Whether Arredondo's amendment relates back to his Motion for Return of Property, filed October 6, 2003, or Motion for Return of Property, filed April 24, 2002, the result is the same. In both pleadings, Arredondo alleges conduct that would underlie a Bivens action; that the government deprived him of his lawful property on or about October 1997 upon the execution of the search and seizure. The Court need not determine to which of Arredondo's original pleadings the relation back doctrine applies because both of the original pleadings were filed more than two years after October 1997. The limitations period for filing the instant civil rights action expired on or about October 1999. Accordingly, Arredondo's right to file a Bivens claim has expired and must be dismissed.
IV. Conclusion
For the foregoing reasons, Defendants' motion to dismiss is GRANTED. Accordingly, the case is DISMISSED with prejudice.
SO ORDERED.