United States District Court, S.D. Texas, McAllen Division
MIGUEL A. FLORES Petitioner,
UNITED STATES OF AMERICA Respondent.
REPORT & RECOMMENDATION
F. Alanis United States Magistrate Judge
Miguel A. Flores, an Ohio state prisoner proceeding pro se,
filed a self-titled "Motion for Immediate Return of
Seized Property." (Dkt. No. 1.) Petitioner failed to pay
the filing fee required to proceed with a civil action at the
time he filed his motion. Upon screening the complaint
according to 28 U.S.C. § 1915A, the undersigned finds
that this action is frivolous because the Court lacks subject
matter jurisdiction over the alleged controversy. Therefore,
Petitioner's claim should be dismissed without prejudice.
5, 2019, Petitioner initiated the pending miscellaneous
action. (Dkt. No. 1.) It appears that Petitioner seeks relief
from the "McAllen District Attorney's Office"
for failure to return property that was taken from Petitioner
during the execution of a state arrest warrant. (Id.
at 2-3.) Petitioner "asserts that on November 23, 2011
he was detained by McAllen, Texas police officers under
arrest warrant numbers 2011-3341 / 2011-3340."
(Id. at 2.) It was during his arrest and subsequent
detention that Petitioner claims his property was
confiscated. The property allegedly confiscated by state
authorities was "U.S. currency totaling $2, 500, a gold
ring containing approximately 19 diamonds worth an estimated
$2, 000 and a Citizen Echo Drive, diamond bezel watch valued
at approximately $700." (Id.) Petitioner claims
that "no forfierure [sic] hearing has taken place
pursuant to Texas law." (Id. at 2.) Never does
Petitioner allege that any federal agency or officer ever
took possession of the property he now wishes to have
only interaction with federal law enforcement in McAllen and
the surrounding area appears to be a federal arrest warrant
out of the Northern District of Ohio, which was executed in
McAllen on November 23, 2011, for violation of terms of
supervised release. (7:11-mj-03100, Dkt. No. 2.) Upon his
arrest and appearance before a federal magistrate judge,
Petitioner waived an identity hearing and was subsequently
transferred to the Northern District of Ohio for further
proceedings. (7:11-mj-03100, Dkt. No. 4.)
1915 A of title 28 states that a "court shall review,
before docketing, ... a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity." Further,
"[o]n review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if
the complaint... is frivolous, malicious, or fails to state a
claim upon which relief may be granted." 28 U.S.C.
§ 1915A(b). A complaint is frivolous when it "lacks
an arguable basis either in law or in fact." Neitzke
v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is "based on an
indisputably meritless legal theory." Id. A
complaint fails to state a claim upon which relief may be
granted if it does not plead "enough facts to state a
claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
district court has jurisdiction to entertain a motion to
return property during the course of a criminal proceeding
under Rule 41(g) of the Federal Rules of Criminal Procedure.
After judgment has been rendered, such motions are correctly
considered civil actions under 28 U.S.C. § 1331.
Clymore v. United States, 217 F.3d 370, 373 (5th
Cir. 2000). Rule 41(g) assumes that the federal government
has possession of the property sought to be returned. See
United States v. Marshall, 338 F.3d 990, 995 (9th Cir.
2003) (relief under Rule 41(g) is only proper if the United
States possesses the concerned property); United States
v. Solis, 108 F.3d 722, 723 (7th Cir. 1997) (same).
Likewise, section 1331 of title 28 gives district courts
original jurisdiction over "all civil actions arising
under the Constitution, laws, or treaties of the United
States." Neither section 1331 nor Rule 41(g) give a
district court the power to order state or local officials to
return property in their possession. See Marshall,
338 F.3d at 995; United States v. Obi, 100 Fed.Appx.
498, 499 (6th Cir. 2004).
claims that his property was seized by McAllen, Texas police
officers. (Dkt. No. 1 at 2.) Never does Petitioner allege
that a federal officer or agency has possession of the
property. Furthermore, Petitioner names the State of Texas as
a party to his suit and goes so far as to "certify that
a true and accurate copy of the forgoing Motion for Immediate
Return of Seized Property was mailed ... to the McAllen
District Attorney's office." (Id. at 1, 3.)
Therefore, the undersigned finds no evidence or pleadings in
Petitioner's motion that would invoke the jurisdiction of
correctly recognizes that property seized by the state is
subject to forfeiture if it is found to be contraband. (Dkt.
No. 1 at 2.) According to Texas Code of Criminal Procedure
article 59.05, a forfeiture hearing must be held and the
"state has the burden of proving by a preponderance of
the evidence that property is subject to forfeiture."
Petitioner acknowledges this but alleges that "there has
been no foreiture [sic] hearing pursuant to Art.
59.05." (Id.) Accordingly,
Petitioner's grievance is with the police department that
allegedly seized his property and the Hidalgo County District
Attorney's Office for its alleged failure to either move
for a forfeiture hearing or notify Petitioner of such a
hearing under state law. Therefore, Petitioner's claim is
frivolous as the Court lacks jurisdiction to hear
careful review of the record and relevant law, the
undersigned recommends that Petitioner's "Motion for
Immediate Return of Seized Property" (Dkt. No. 1) be
DISMISSED without prejudice as the Court
lacks jurisdiction over Petitioner's claim.