Floyd Francis v. Gregory Miligan , 530 F. App'x 138 ( 2013 )

CLD-304 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1960
___________
FLOYD STANHOPE FRANCIS,
Appellant
v.
FEDERAL AGENTS GREGORY MILIGAN; ELIZABETH K. MACDONALD;
EDWARD P. TROY; JAMES RAFTER; DAVID M. SARKISIAN; JEFFREY R.
KOCHER; MARISELLA I. VALENZUELA; FEDERAL AGENT JOHN A. LITCHKO;
FRANK MASTRANGELO; PETE GIZAS
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 2-11-cv-03205)
District Judge: Honorable Paul S. Diamond
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
June 27, 2013
Before: RENDELL, JORDAN and SHWARTZ , Circuit Judges
(Opinion filed: July 17, 2013)
_________
OPINION
_________
PER CURIAM
Floyd Stanhope Francis pleaded guilty in 2009 to federal drug and firearms
1
offenses. In 2011, he filed a complaint pursuant to Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging that a search and
seizure of his car, and the subsequent administrative forfeiture of that car and $35,990,
violated his constitutional rights. He sought damages and the return of the forfeited
property. The Defendants moved to dismiss the complaint on, inter alia, the grounds that
the search and seizure claim was barred by the statute of limitations and the forfeiture
claim could not be brought under Bivens. The District Court granted the motion, and
Francis appeals. Because the appeal does not present a substantial question, we will
summarily affirm the order granting the motion to dismiss.
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the
decision to grant the motion to dismiss. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000). When considering a motion to dismiss a complaint, a court must view the factual
allegations as true and dismiss only if the complaint does not allege “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).
Francis claimed that his car and cash were seized in violation of the Fourth
Amendment. This Bivens claim is governed by Pennsylvania’s two-year statute of
limitations for tort actions. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009); Napier
v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988). The
claim accrued, and the statute of limitations began to run, when Francis knew or should
have known of the injury on which the claim is based. See Sameric Corp. v.
Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). Francis alleged in his second amended
2
complaint that he became aware of the seizure of his property on March 6, 2009. But he
did not file suit until May 12, 2011 – more than two years after he learned of the seizure.
Francis argues that the limitations period should be extended because he did not know he
was injured, i.e., that the search and seizure were allegedly illegal, at the time he became
aware of the search and seizure. However, it is clear from the second amended complaint
that Francis knew on March 6, 2009, that his car had been searched without his consent
and that his property had been seized. As the District Court concluded, Francis was
therefore on notice of a potential wrong and the burden was upon him to investigate
whether he was entitled to redress.1 See Zeleznik v. United States, 770 F.2d 20, 23 (3d
Cir. 1985). Accordingly, the search and seizure claim is time-barred.
Francis also claimed that the Defendants failed to give him adequate notice of the
forfeiture of his property. The District Court held that the such a claim was not
cognizable in a Bivens action because an alternative and exclusive remedy is set forth in
18 U.S.C. § 983(e). That statute concerns motions to set aside civil forfeitures and states
in pertinent part that “[a]ny person entitled to written notice in any nonjudicial civil
forfeiture proceeding under a civil forfeiture statute who does not receive such notice
may file a motion to set aside a declaration of forfeiture.” § 983(e)(1). It further states
that “[a] motion filed under this subsection shall be the exclusive remedy for seeking to
set aside a declaration of forfeiture under a civil forfeiture statute.” § 983(e)(5). By its
1
In his pro se complaint, Francis stated that sometime in late March or early April 2009, he fired
the attorney representing him in the criminal prosecution because he refused to challenge the
unlawful search. This tends to show that Francis knew of the wrong at least by mid-April 2009,
yet he did not file his Bivens suit until May 12, 2011.
3
plain language, the statute provides a remedy for the very claim Francis sought to bring
under Bivens, and it provides the exclusive remedy for such a claim. See Mesa
Valderrama v. United States, 417 F.3d 1189, 1195-96 (11th Cir. 2005). Courts should
not extend Bivens when an alternative remedy exists. See Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 74 (2001). Accordingly, the forfeiture claim cannot be brought under
Bivens.
For these reasons, the District Court properly granted the Defendants’ motion to
dismiss. There being no substantial question presented by this appeal, we will summarily
affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Appellant’s
motions to vacate and for appointment of counsel are denied.
4