Opinion
No. SACV 17-1980 SVW (KS)
2020-06-02
Reginald BRADDY, Plaintiff, v. DRUG ENFORCEMENT AGENCY, et al., Defendants.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire record in this action and the attached Report and Recommendation of United States Magistrate Judge ("Report"). No objections to the Report have been filed. Good cause appearing, the Court concurs with and accepts the findings of fact, conclusions of law, and recommendations contained in the Report.
IT IS ORDERED that plaintiff's claims against Orange County Sheriff's Department are dismissed with prejudice.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
FREDERICK F. MUMM, United States Magistrate Judge
This Report and Recommendation is submitted to the Honorable George Wu, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
I. PROCEEDINGS
Plaintiff, a federal prisoner proceeding pro se and in forma pauperis , commenced this action on November 21, 2017, seeking the return of property under Federal Rule of Criminal Procedure 41 (" Rule 41"). (See Docket No. 1.) Plaintiff's operative pleading is the third amended complaint (the "TAC"), filed on September 27, 2018. (Docket No. 20.)
On May 14, 2019, defendant Orange County Sheriff's Department ("OCSD") filed a motion to dismiss or strike the TAC (the "Motion" or "Mot."). (Docket No. 51.) On August 9, plaintiff filed a combined opposition and motion for leave to amend his pleading (the "Oppo."). (Docket No. 61.) OCSD filed a reply (the "Reply") on August 19, 2019. (Docket No. 62.)
The matter thus stands submitted. For the reasons that follow, the Court recommends that (1) the Motion be granted and plaintiff's claims against OCSD be dismissed with prejudice; and (2) plaintiff's motion for leave to amend be denied.
II. ALLEGATIONS
A. Background.
The Court again takes judicial notice of the online docket in United States of America v. Braddy et al., Case No. 3:14-cr-00104-MEM-1 ("USA v. Braddy "), a criminal action in the Middle District of Pennsylvania. The docket reflects that an indictment was filed against plaintiff on April 15, 2014. (Id. , Docket No. 57.) On May 26, 2016, a jury convicted plaintiff on a charge of conspiracy to possess and distribute narcotics. (Id. , Docket No. 535; see United States of America v. Braddy , et al., 722 Fed.Appx. 231 (3d Cir. 2017).) Judgment was entered on April 17, 2017. (USA v. Braddy Docket No. 612.) The docket does not include any forfeiture entries. (See generally USA v. Braddy Docket.) On December 6, 2017, the Third Circuit affirmed the convictions and sentences of plaintiff and his co-defendants. United States of America v. Braddy , et al., 722 Fed.Appx. 231.
The Court may consider matters subject to judicial notice without converting its review of the complaint into a summary judgment proceeding. See United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003).
A superseding indictment was filed on June 9, 2015. (USA v. Braddy , Docket No. 389.)
B. Allegations of TAC.
Insofar as pertinent to OCSD, the TAC alleges the following:
(1) The 2012 OC Airport search and seizure.
On December 13, 2012, Sergeant Lambi and Officer B. Pacheco, both "members" of defendant OCSD, blocked plaintiff's path as he was exiting the restroom in the Orange County Airport ("OC Airport"). At Lambi's direction, Pacheco patted plaintiff down and handed plaintiff's backpack to Lambi. Lambi told plaintiff that his checked bags had been taken to OCSD's airport office and plaintiff had to accompany Lambi and Pacheco to the office.
At the office, OCSD investigator Larry Zurborg told plaintiff that Zurborg's dog had alerted him to the presence of narcotics in plaintiff's checked bags. Zurborg told plaintiff that Zurborg and OCSD officers were going to search plaintiff's backs and backpack. Plaintiff was never asked for consent and was never told that he was free to leave.
Zurborg found $36,590 in plaintiff's backpack, but no drugs. Zurborg told plaintiff "they" would seize the currency and plaintiff's black Apple iPhone (the "OC Property") because "they" believed that the cash was derived from illegal drug activity. Zurborg told plaintiff that he would be arrested and " ‘pencil whipped’ " if he sought the return of his property. Because of these threats, plaintiff feared physical harm and loss of liberty. Therefore, plaintiff never sought the return of the OC Property.
Plaintiff was never charged regarding the OC airport incident. On December 18, 2018, OCSD released the OC Property to DEA agents S. Saba and E. Jaskowick. The OC Property is still in the DEA's possession. Neither the OCSD nor the DEA provided plaintiff with the required written notice of forfeiture together with information on the applicable procedures under 19 U.S.C. § 1607(a) (" Section 1607(a)").
Defendants violated California law, federal statutory law, and plaintiff's constitutional rights in searching and seizing his person and property, and retaining his property, because (1) defendants did not have a warrant, consent, or probable cause; (2) defendants used threats, coercion, and intimidation to retain plaintiff's property; and (3) defendants violated Section 1607(a). Defendants violated plaintiff's due process rights.
(2) Claim for relief.
Plaintiff seeks the return of his property under 42 U.S.C. § 1983 (" Section 1983") and Federal Rule of Criminal Procedure 41 (" Rule 41").
III. ANALYSIS
A. Motion to dismiss.
(1) Rule 12(b)(6)
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)") for failure to state a claim for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir. 2008). As to factor (2), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal quotation marks 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." Id.
Since plaintiff is appearing pro se , the Court must construe the allegations of the FAC liberally and must afford plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't , 839 F.2d 621, 623 (9th Cir. 1988). Moreover, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Parks Sch. of Bus., Inc. v. Symington , 51 F.3d 1480, 1484 (9th Cir. 1995). Finally, pro se litigants in civil rights cases should be given leave to amend their pleadings unless it is absolutely clear that the deficiencies cannot be cured by amendment. Lopez v. Smith , 203 F.3d 1122, 1127-29 (9th Cir. 2000).
(2) Section 1983 .
(a) Wrongful search and seizure – OC Airport incident.
The TAC alleges that the 2012 OC Airport search and seizure violated plaintiff's constitutional rights because defendants lacked a warrant, consent, and probable cause. OCSD argues that to the extent the TAC raises a Section 1983 claim as to the OC Airport incident, it is subject to dismissal because the statute of limitations has expired. (Mot. at 7-9.) The Court agrees.
Federal courts apply the forum state's statute of limitations for personal injury actions to Section 1983 claims. Klein v. City of Beverly Hills , 865 F.3d 1276, 128 (9th Cir. 2017). Therefore, California's two-year statute of limitations for personal injury actions, Cal. Civ. Proc. § 335.1, applies to plaintiff's Section 1983 claims. See id. However, federal law governs when a Section 1983 cause of action accrues. Wallace v. Kato , 549 U.S. 384, 387-88, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007). "Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action." Belanus v. Clark , 796 F.3d 1021, 1025 (9th Cir. 2015) (alteration in original; internal citation and quotation marks omitted). Where a person is aware of a search and seizure while it is happening, "federal law holds that a cause of action for illegal search and seizure accrues when the wrongful act occurs." Id. at 1026 (internal citation omitted); see also Klein , 865 F.3d at 1279 ("In a traditional Fourth Amendment case, the plaintiff is placed on constructive notice of the illegal conduct when the search and seizure takes place"). This principle holds true even where the person is unaware that the search and seizure is warrantless. Belanus , 796 F.3d at 1026.
Here, plaintiff was aware of the OC Airport search and seizure at the time it occurred. Therefore, his claims for wrongful search and seizure accrued on December 13, 2012. In turn, the two-year limitations period expired on December 13, 2014. Plaintiff filed this action in 2017, well after the two-year limitations period expired. Accordingly, his OC Airport search and seizure claims are untimely.
Plaintiff's arguments do not convince the Court otherwise. Plaintiff contends that because he was unaware that OCSD was seizing the OC Property to use in a criminal trial against him, his claims did not accrue on the search and seizure's date. (Oppo. at 6.) This argument does not avail him. Zurborg allegedly told plaintiff that he was seizing the OC Property because he believed the cash was derived from illegal drug sales. Assuming arguendo that a specific intent to use the seized property in a criminal trial is relevant to whether the search was unreasonable, Zurborg's statement put plaintiff on constructive notice thereof. Compare to Klein , 865 F.3d at 1279-80 (where plaintiff alleged judicial deception in preparation of warrant having probable cause on its face, cause of action did not accrue until affidavit underlying warrant became reasonably available to plaintiff).
Plaintiff argues as well that (1) the seizure "do[es] not affect the ownership interests he now asserts"; (2) he did not discover his cause of action until the end of his 2016 criminal trial, when defendants failed to return the property or file for forfeiture. (Oppo. at 5-6 (internal quotation marks omitted).) What happened after the criminal trial is irrelevant to whether, in 2012, the search and seizure violated the Fourth Amendment. See discussion, supra. Therefore, it cannot be said that plaintiff "discovered" his 2012 search and seizure claims after his trial, because defendants’ post-trial defalcations are not an element of those claims.
Finally, plaintiff characterizes his claims as "substantive due process violation[s]" based on official "abuse of power." (Oppo. at 6.) He requests that the Court grant him leave to add claims under (inter alia ) the Fifth and Fourteenth Amendments "in regards to [his] right to possess property." (Id. at 4.) Plaintiff does not elaborate on these proposed Fifth and Fourteenth Amendment claims. (See id. ) To the extent he contends that those amendments’ due process clauses provide a framework for his search-and-seizure claims, he is incorrect. "Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims." Albright v. Oliver , 510 U.S. 266, 273, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994). As the Fourth Amendment protects plaintiff's right to be free from unreasonable searches and seizures, plaintiff cannot bring a substantive due process claim based on the OC Airport incident.
Plaintiff also seeks leave to assert an "implied cause of action under the Constitution itself." (Oppo. at 4 (citing Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1855, 198 L. Ed. 2d 290 (2017) ).) Plaintiff's cited authority addresses whether a damages remedy for wrongdoing by a federal officer may be inferred from the Constitution in the absence of statutory authority. Ziglar , 137 S. Ct. at 1855-58. It has no application to wrongs for which a federal statute, such as Section 1983, explicitly provides a damages remedy. See id.
In sum, the statute of limitations has expired on plaintiff's claims for wrongful search and seizure based on the OC Airport incident. Furthermore, plaintiff should not be granted leave to amend his pleading to add such claims. In light of the claims’ untimeliness, amendment would be futile. The claims should therefore be dismissed with prejudice.
(b) Due process – unspecified conduct.
Even under a liberal reading of the TAC, the bases for plaintiff's due process claim(s) against OCSD are unclear. As OCSD argues (Mot. at 15-16), such claims should be dismissed on this ground alone. See Fed. R. Civ. P. 8(d)(1) ("Each allegation must be simple, concise, and direct"); see also Mendiondo, supra. More to the point, it appears to the Court that plaintiff cannot raise any viable due process claims against OCSD.
First, any due process claim based on the OC Airport incident must be dismissed with prejudice, because it is noncognizable, untimely, or both. See discussion, supra. Second, any due process claim based on a failure to provide notice after the seizure must be dismissed with prejudice. OCSD's failure to provide notice under Section 1607 did not violate the Due Process Clause, because Section 1607 does not apply to OCSD. See discussion, infra. And contrary to plaintiff's argument (Oppo. at 12), OCSD did not violate plaintiff's due process rights by failing to provide "notice of forfeiture," as OCSD did not forfeit the OC Property.
The Court notes that OCSD did not have an independent duty under the Due Process Clause to provide plaintiff with notice of California's postdeprivation remedies. See City of W. Covina v. Perkins , 525 U.S. 234, 241, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999).
Third, any due process claim based on OCSD's lengthy retention of the OC Property (see Oppo. at 7) must be dismissed with prejudice. USA v. Braddy was pending between 2014 and 2016, and (according to plaintiff) the OC Property was used as evidence in the prosecution's case-in-chief. (See Oppo. at 2-3, Ex. I (excerpt from testimony by Sergeant Lambi regarding seizure).) Further, plaintiff never sought the OC Property, formally or informally, prior to filing this action. Finally, the delay did not hamper plaintiff's ability to present evidence regarding the seizure, because (again, according to plaintiff) the seizure's circumstances were litigated in USA v. Braddy. In light of these factors, plaintiff cannot state a due process claim. See United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency , 461 U.S. 555, 569-70, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983) (setting forth factors for determining whether delay in commencing forfeiture proceedings for seized property violates due process; holding that government's diligent preparation for criminal trial, plaintiff's lack of diligence in seeking property, and lack of prejudice to plaintiff weighed in favor of finding no due process violation).
In particular, the delay did not hamper plaintiff's ability to present evidence regarding the seizure's circumstances, because (according to plaintiff) Sgt. Lambi testified about the seizure in USA v. Braddy. (See Oppo. at 2-3, Ex. I.)
For the foregoing reasons, plaintiff has failed to state a due process claim against OCSD. As successful amendment does not appear possible, the Court recommends dismissal with prejudice.
OCSD argues, in addition, that plaintiff's Section 1983 claims should be dismissed because, inter alia , (1) plaintiff did not have the Court's leave to raise them; (2) as a department of the County of Orange (the "County"), OCSD is not a proper Section 1983 defendant; and (3) plaintiff has failed to allege facts showing the County's liability under Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). (Mot. at 10-13, 15-16.) In light of the Court's recommendation, the Court need not consider these arguments. As well, the Court need not consider OCSD's motion to strike portions of the TAC.
(3) Rule 41 .
Federal Rule of Criminal Procedure 41 provides, in pertinent part:
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.
Fed. R. Crim. P. 41(g) (" Rule 41(g)"). A district court has jurisdiction to entertain motions to return property seized by the federal government notwithstanding the fact that there are no criminal proceedings pending against the movant. United States v. Martinson , 809 F.2d 1364, 1366-67 (9th Cir. 1987) (considering motion for return of property under earlier version of Rule 41 where claimant was arrested but never charged with crime). Such motions are treated as civil equitable proceedings, governed by the Federal Rules of Civil Procedure, even if they are styled as being brought pursuant to Rule 41. Id. at 1367.
Notwithstanding the applicability of the Federal Rules of Civil Procedure, Rule 41(g) appears to apply to such equitable proceedings with regard to non-procedural matters, such as jurisdiction. See, e.g., United States v. Huffhines , 986 F.2d 306, 308 (9th Cir. 1993), discussed infra.
As OCSD asserts (Mot. at 13-14), and as the Court stated in previous dismissal orders (Docket No. 9 at 5-6; Docket No. 11 at 7-8), Rule 41(g) "clearly relates to federal searches leading to federal prosecutions and extends in its furthest reach to searches conducted by state law enforcement agencies with direct federal authorization." Huffhines , 986 F.2d at 308 (considering post-conviction motion for return of property under earlier version of Rule 41 ); United States v. Marshall , 338 F.3d 990, 994 (9th Cir. 2003) (concluding that principle applies to both current and former versions of Rule 41 ). Therefore, if (1) a claimant's property was never in the possession or custody of the federal government; and (2) the federal government had limited involvement, or no involvement, in the property's seizure, a claimant cannot seek the return of the property by means of a Rule 41(g) motion. See Huffhines , 986 F.2d at 307-09 (holding that where United States had no role in property's seizure, court had no jurisdiction over United States under Rule 41(g) ); see also Marshall , 338 F.3d at 994-05 ( Rule 41 did not apply where local authorities worked "with " federal authorities in seizing property, rather than "for " them (emphasis in original)).
OCSD argues that plaintiff fails to allege facts showing that Rule 41(g) applies to the 2012 OC Airport search and seizure. Having reviewed the TAC in light of the Motion, the Court agrees. The TAC is bereft of factual allegations showing that the United States government had the requisite involvement – or in fact, any involvement – in the search and seizure. The mere allegation that plaintiff was stopped at an airport does not, in itself, plausibly suggest that local authorities acted under "direct federal authorization," or were working "for" rather than "with" federal authorities.
Plaintiff does allege that post-seizure, OCSD turned the OC Property over to the DEA. Even with this allegation, the Court cannot reasonably conclude that OCSD was working for the DEA at the time of the seizure. More to the point, plaintiff explicitly alleges that OCSD is no longer in possession of the OC Property, and nothing in plaintiff's allegations plausibly suggests that OCSD is currently accountable for the property's whereabouts. Therefore, on the facts alleged, OCSD would not be able to comply with a court order to return the property, whether the Court issued such order pursuant to Rule 41(g) or otherwise.
Plaintiff has had multiple opportunities to plead facts sufficient to show that he may seek the OC Property's return under Rule 41(g). It appears that plaintiff is unable to cure the deficiencies in this claim. Therefore, the Court recommends that his claim be dismissed with prejudice as to OCSD.
(4) State law claims.
The TAC alleges that OCSD violated state law by means of the OC Airport incident. As OCSD asserts (Mot. at 16), "[u]nder the Government Claims Act ( Gov.Code, § 810 et seq. ), there is no common law tort liability for public entities in California; instead, such liability must be based on statute." Guzman v. Cty. of Monterey , 46 Cal. 4th 887, 897, 95 Cal.Rptr.3d 183, 209 P.3d 89 (2009). Therefore, plaintiff's failure to specify the state law in question subjects his state law claims to dismissal. Furthermore, any state law claims based on the OC Airport incident are untimely. Such claims should be dismissed without leave to amend. See discussion, supra.
In addition, OCSD argues that plaintiff's state law claims should be dismissed because plaintiff fails to allege compliance with California's Tort Claims Act, Cal. Gov't Code §§ 810 - 978.8 (the "CTCA"). (Mot. at 9.) The Court agrees. As a prerequisite to asserting state law causes of action against a public entity or employee, the CTCA Cal. Gov't Code §§ 810 - 978.8, requires a plaintiff to first present to the entity "all claims for money or damages" against the entity or employee. Id. at § 905, 945.4 § 950.2; Mabe v. San Bernardino Cty. , 237 F.3d 1101, 1111 (9th Cir. 2001) ; Watson v. State of California , 21 Cal. App. 4th 836, 843, 26 Cal.Rptr.2d 262 (1993). A claim alleging causes of action for personal injury must be presented within six months after the cause of action accrues. Cal. Gov't Code § 911.2(a). Timely claim presentation is an element of the plaintiff's state law causes of action against the public entity or employee. Via v. City of Fairfield , 833 F. Supp. 2d 1189, 1197 (E.D. Cal. 2011).
Here, plaintiff does not allege that he presented OCSD, or any public entity, with a CTCA claim within six months after the OC Airport incident. Nor does he allege that he presented a CTCA claim within six months after OCSD's alleged failure to return his property or provide him with the required notice. In fact, the TAC does not allege that plaintiff submitted a CTCA claim at any time prior to commencing this action. Because plaintiff has not alleged CTCA compliance, his state law claims are subject to dismissal on this additional ground.
In the Opposition, plaintiff does not indicate that he submitted a timely CTCA claim. (See generally Oppo.) The Court therefore concludes that plaintiff cannot successfully amend his pleading to allege CTCA compliance. Accordingly, his state law claims against OCSD should be dismissed with prejudice.
(5) Section 1607(a).
Section 1607(a) provides that monetary instruments (e.g. , currency), or seized baggage or merchandise with a value not exceeding $500,000, the "appropriate customs officer" shall cause a notice of the seizure and the intention to forfeit or otherwise dispose of the articles to be published "in such manner as the Secretary of the Treasury may direct ...." 19 U.S.C. § 1607(a). "Written notice of seizure together with information on the applicable procedures shall be sent" to each party with an interest in the seized articles. Id. As OCSD contends (Mot. at 14), Section 1607(a) ’s notice provisions apply to custom officers. See id. As OCSD's employees are not customs officers, see 19 U.S.C. § 1401(i) (defining term), they are not bound by Section 1607(a) ’s notice provisions.
Therefore, plaintiff's claim that OCSD violated Section 1607(a) should be dismissed. Furthermore, as it appears impossible for plaintiff to cure the deficiencies in this claim, the claim should be dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Court recommends that (1) plaintiff be denied leave to amend his pleading; and (2) the Motion be granted in part and plaintiff's claims against OCSD dismissed with prejudice.
DATED: January 31, 2020
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to timely file Objections as provided in the Local Rules Governing the Duties of the Magistrate Judges, and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.