Opinion
Civil Action No. 3:01cv322-G.
August 7, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States magistrate judge. Pending before the Court is Defendant's Motion to Dismiss or Alternatively, Motion for Summary Judgment, filed on April 6, 2001. As of the date of this recommendation, Plaintiff has not filed a response. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil action brought pursuant to 28 U.S.C. § 1331 for return of property.
Parties: Plaintiff Shelby Lee Daniels ("Daniels") is an inmate currently confined at the Federal Correctional Institution in El Reno, Oklahoma. Defendant is the United States of America.
Statement of Case: On August 16, 1995, Daniels was arrested on federal criminal charges. When he was arrested, law enforcement officers seized a personal computer system, a briefcase, and a 1977 Mercedes Benz. Daniels was subsequently convicted of and sentenced on two counts of possession of stolen mail, in violation of 18 U.S.C. § 1708, and one count of possession of forged securities, in violation of 18 U.S.C. § 513(a). United States v. Daniels, Cause No. 3:95cr281-G. The Fifth Circuit Court of Appeals affirmed the stolen mail convictions, but reversed the forged securities conviction, United States v. Daniels, No. 96-10207, which the District Court, in turn, dismissed on March 31, 1997.
On March 6, 1997, Daniels filed his first motion for return of property pursuant to Rule 41(e), Federal Rules of Criminal Procedure, seeking the return of the personal computer system and the briefcase. The Government responded by letter dated May 12, 1997, informing Daniels that it would return these items to his designated representative. On that same day, the District Court dismissed the motion as being moot. See Order entered May 12, 1997. Plaintiff did not appeal this order of dismissal.
Daniels filed a second Rule 41(e) motion on July 3, 1997, this time seeking the return of the 1977 Mercedes Benz automobile. The Government responded on July 22, 1997, arguing that the issue had been resolved because the Mercedes had been forfeited by a state district court — a court of competent jurisdiction — Daniels was not entitled to return of the automobile. See Government's Response, filed on July 22, 1997. The District Court accepted the Government's argument and denied Plaintiff's motion on July 29, 1997. See Order entered on July 29, 1997. Daniels did not appeal the denial of this motion.
On February 2, 2001, Daniels filed the present complaint denominated as a Rule 41(e) motion for return of seized property. In this instance, he does not seek return of the Mercedes Benz automobile, but rather seeks compensatory damages based upon its alleged wrongful forfeiture. On February 16, 2001, the District Court directed the Clerk to open a new civil action with Daniels' motion as the complaint under 28 U.S.C. § 1331 — the motion should have been brought as a civil action for the return of property because the criminal proceeding against Daniels had terminated before the Rule 41(e) motion was filed. See Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000). The Government filed its motion to dismiss or alternatively for summary judgment on April 6, 2001. On April 20, 2001, Daniels filed a motion for leave to amend complaint which was an attempt to have this action relate back to his previously filed Rule 41(e) motion. Local Civil Rule 15.1, requires that a party who moves for leave to file an amended pleading must attach the original and a copy of the proposed amended pleading as an exhibit to the motion. Daniels's filed motion for leave did not include his proposed amended pleading. Therefore, his motion for leave was denied on June 19, 2001, but without prejudice to re-filing his motion accompanied by his proposed amended complaint within 20 days of the receipt of the order. Daniels has not submitted a proposed amended complaint and as of the date of this report, nor has he filed a response to the Government's motion to dismiss or alternatively for summary judgment.
Findings and Conclusions: The Government presents a number of reasons in support of its motion. The most compelling reason is that Daniels cannot recover monetary damages against the United States under Rule 41(e).
Although Daniels' Rule 41(e) motion was re-filed as a separate civil action, the court still analyzes the claim under Rule 41(e). See Pena v. United States, 122 F.3d 3, 5 (5th Cir. 1997) (plaintiff's action, whether a Rule 41(e) motion or a § 1331 action, qualifies as a civil action); Pena v. United States, 157 F.3d 984, 986 (5th Cir. 1998) (analyzing civil action under Rule 41(e)); see also United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (after criminal proceedings against a defendant have been concluded, a district court should treat a defendant's ensuing Rule 41(e) motion as a civil complaint); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987) (motions to return property filed under Rule 41(e) are treated as "civil equitable proceedings" when criminal proceedings have been completed).
In Pena v. United States, 157 F.3d 984, 986 (5th Cir. 1998), Pena named the United States as the sole defendant, just as Daniels has done in this case. The Fifth Circuit discussed the principle of sovereign immunity:
. . . sovereign immunity protects the federal government from suit except insofar as that immunity is waived. A waiver must be unequivocally expressed in statutory text and will not be implied. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2096, 135 L.Ed.2d 486 (1996) (citations omitted). Rule 41(e) makes no provision for money damages, and we will not read into the statute a waiver of the federal government's immunity from such damages. Numerous Supreme Court decisions hold that courts should construe statutes against waiver unless Congress has explicitly provided for it. See, e.g., Lane, 116 S.Ct. at 2097 (refusing to allow monetary damages under § 504(a) of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., where the relevant statutory provisions failed to provide the "clarity of expression necessary to establish a waiver of the Government's sovereign immunity against monetary damages"); United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992) (holding that although the contemporary § 106(c) of the Bankruptcy Code waived sovereign immunity, "it fail[ed] to establish unambiguously that the waiver extend[ed] to monetary claims"). However, compelling his case, Pena may not maintain a suit against the United States for monetary damages under Rule 41(e).Pena, 157 F.3d at 986.
The Fifth Circuit's opinion makes clear that monetary damages are not available under Rule 41(e). The Fifth Circuit is not alone in its reading of Rule 41(e). See United States v. Jones, 225 F.3d 468 (4th Cir. 2000), cert. denied, ___ S.Ct. ___, 2001 WL 567830 (May 29, 2001); United States v. Bein, 214 F.3d 408 (3d Cir. 2000), United States v. Chambers, 92 F. Supp.2d 396, 399-402 (N.J. 2000). However, other circuits have held that an individual can obtain monetary damages through a successful Rule 41(e) motion, including the Ninth Circuit in United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987), which Daniels cites in his motion for leave to amend. See also United States v. Kanasco, Ltd., 123 F.3d 209, 210 n. 1 (4th Cir. 1997); United States v. Solis, 108 F.3d 722, 722-723 (7th Cir. 1997); Mora v. United States, 955 F.2d 156, 159 (2d Cir. 1992). However, the law of this circuit is clear: Daniels may not recover monetary damages from the Government under Rule 41(e).
Daniels quotes the following language from the Ninth Circuit's opinion in Martinson: "[w]hen a citizen has invoked the jurisdiction of a court by moving for the return of his property, we do not think that the government should be able to destroy jurisdiction by its own conduct. The government should not at one stroke be able to deprive the citizen of a remedy and render powerless the court that could grant the remedy." Martinson, 809 F.2d at 1368. However, in his brief, Daniels follows this quotation with a citation to the Pena case. In Pena, the Fifth Circuit quoted the Martinson case to show that "at first blush, the reason for [holding that a movant such as Pena may seek damages under Rule 41(e) if the government has destroyed his property] is as clear as it is sound . . .", but the Fifth Circuit went on to say that it could not agree with the Ninth Circuit and other courts who have similarly held that a court may award money damages under Rule 41(e). Pena, 157 F.3d at 985. Thus, the Ninth Circuit's reasoning has been specifically rejected by the Fifth Circuit and is of no help to Daniels.
Although the Fifth Circuit affirmed the District Court's judgment denying Pena's claim against the United States for monetary damages under Rule 41(e), it remanded the case to permit him to file an amended complaint pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). Pena, 157 F.3d at 987. Pena's Rule 41(e) motion was dismissed by the District Court before he had an opportunity to amend his pleadings. Id. Pena appealed the dismissal and for he first time on appeal, requested monetary damages to compensate him for his property loss. Id. at 986. The Fifth Circuit found that the original Rule 41(e) motion describing the deprivation of his property, combined with the government's assertion that it had destroyed the property, raised issues sufficiently to state a Bivens claim. Id. at 987. Daniels's motion for leave to amend, filed on April 20, 2001, demonstrates his awareness of the Fifth Circuit decision in Pena, and the possible "relation back" of an amended complaint alleging a Bivens action. However, unlike the Plaintiff in Pena, he has been given an ample opportunity to file an amended complaint, which he has failed to exercise. Under such circumstances, the Government's sovereign immunity defense should be sustained.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter its order granting the Government's motion for dismissal or alternatively motion for summary judgment and its judgment dismissing this action with prejudice.
A copy of this recommendation shall be mailed to Plaintiff and to counsel for the Government.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.