IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-10092
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PETER AJAEGBU,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-637)
_________________________
December 4, 1998
Before KING, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Peter Ajaegbu sues for the recovery of possessions purportedly
taken from him or damaged by Drug Enforcement Administration
(“DEA”) agents pursuant to a lawful search and arrest. The
district court found that Ajaegbu’s recovery claim was frivolous
and that his damages claim was barred by governmental immunity. We
affirm the former determination but vacate and remand the latter.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I.
The seizure resulted from Ajaegbu’s lawful arrest, resulting
in a conviction that was affirmed on appeal. See United States v.
Ajaegbu, 46 F.3d 66 (5th Cir. 1995) (unpublished). While his
appeal was pending, Ajaegbu filed a pro se motion for writ of
mandamus for the return of property, requesting the return of items
seized when he was arrested, namely: a Mercedes-Benz car; family
photographs; and a briefcase containing “valuable personal
documents.” Although the motion was referred to a magistrate
judge, the order of reference and the motion were not sent to the
magistrate judge, so Ajaegbu filed a second request for the return
of his property. The district court construed this as a motion
made pursuant to FED. R. CRIM. P. 41(e) and ordered the government
to respond.
The government argued that the district court lacked subject
matter jurisdiction over Ajaegbu’s claim regarding the car because
Ajaegbu was not the registered owner, and because the government
(that is, the DEA) no longer had possession of it. Although the
DEA and the Dallas Police Department (“DPD”) had seized the car
jointly, the DEA had turned it over to the DPD after deciding that
the car did not meet the requirements for an administrative
forfeiture. The DPD in turn sold the car at public auction after
its registered owner (Emanual Ibe) did not respond to the public
notification or the certified letter mailed to him.
The government admitted to possessing the family pictures and
briefcase and catalogued for the court the contents of the
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briefcase: photographs; used airline tickets and receipts;
telephone bills; bank statement receipts; canceled checks; and
business cards. Upon order of the court, the government returned
the briefcase to Ajaegbu.
The magistrate judge handling Ajaegbu’s rule 41(e) motion
recommended that it be denied. The magistrate judge agreed with
the government that the court lacked subject matter jurisdiction
over the car and determined that Ajaegbu’s claim regarding the
suitcase was moot.
The district court adopted the magistrate judge’s findings and
conclusions. Ajaegbu filed an “appeal” of the magistrate judge’s
report in which he argued that the DEA should have ensured that DPD
contacted him about the return of his car. He acknowledged
receiving his briefcase but asserted that it was damaged and that
the following items were missing: $500 in gold coins; 93 family
photos; and 12 “important Playboy magazines.” He requested the
return of these items and compensation for damage done to his
briefcase’s locks.
The district court denied the “appeal.” We affirmed with
regard to the car but remanded with regard to the briefcase and its
contents. We instructed the district court to examine the
following: (1) whether the DEA had returned all of the contents of
Ajaegbu’s briefcase; (2) whether the briefcase was returned to
Ajaegbu in a damaged condition; and (3) if the briefcase was so
damaged, whether Ajaegbu is entitled to damages.
On remand, the magistrate judge submitted to Ajaegbu a
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questionnaire asking him to catalogue the items allegedly missing
from his briefcase. Ajaegbu came up with the following list:
1. one 14k 24" gold chain;
2. one 18k gold bracelet;
3. one Raymond Weils watch;
4. one gold Omega watch;
5. three computer disks containing business ventures;
6. fifty Nigerian pre-independence shillings;
7. twenty Nigerian pre-independence six pence;
8. twenty five Nigerian pre-independence three pence;
9. five Nigerian pre-independence 10-pound notes;
10. assorted Biafrain currency; and
11. assorted pictures of Ajaegbu’s great grandparents.
The magistrate judge recommended that Ajaegbu’s claim for the
return of his property be denied. Applying the equitable doctrine
of laches, the magistrate judge found Ajaegbu’s claim barred
because of his delay in seeking the return of the aforementioned
property. Alternatively, the magistrate judge recommended that
Ajaegbu’s claim be dismissed as frivolous for two reasons: One,
Ajaegbu could seek money damages only for items unavailable to be
returned, and a claim for money damages would be barred as untimely
under the Federal Tort Claims act because Ajaegbu had not given any
written notification to the United States; and two, it was
“inconceivable and patently incredible” to believe that Ajaegbu
would have not disclosed the additional missing items earlier.
With regard to the broken lock, the magistrate judge found that the
United States had not waived its sovereign immunity, thereby
precluding Ajaegbu’s recovery. The district court adopted the
magistrate judge’s findings and conclusions.
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II.
A.
The district court’s conclusion that Ajaegbu’s claim was
barred by laches is error. While the court was correct in assuming
that equitable principles apply to actions based on rule 41(e), see
Industrias Cardoen, Ltda. v. United States, 983 F.2d 49, 51
(5th Cir. 1993), it was incorrect in its application of the laches
defense.
“A defense of laches has three elements: '(1) delay in
asserting a right or claim; (2) that the delay was inexcusable;
[and] (3) that undue prejudice resulted from the delay.'” Elvis
Presley Enters. v. Capece, 141 F.3d 188, 205 (5th Cir. 1998)
(citation omitted). The magistrate judge never found that
Ajaegbu’s delay unduly prejudiced the government, nor does the
government claim prejudice on appeal. Indeed, it is difficult to
conceive of how the delay could have prejudiced the government:
If, during the passage of time, the government had disposed of the
property, Ajaegbu would no longer have a claim against the
government. See Peña v. United States, 157 F.3d 984, 986 (5th Cir.
1998). For this reason, the defense of laches could not serve as
a ground for dismissal of Ajaegbu’s claim.
B.
The magistrate judge found Ajaegbu’s claims to be factually
frivolous and, specifically, “inconceivable and patently
incredible.” He disbelieved Ajaegbu’s listing of allegedly seized
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property, noting that Ajaegbu did not list the expensive jewelry
and other items until long after he first filed his claim. The
high probability of brazen opportunism engendered by this fact was
simply too much for the magistrate judge to accept.
The pertinent statute provides, in part, that “[t]he court
. . . may dismiss the case . . . if satisfied that the action is
frivolous or malicious.” 28 U.S.C. § 1915(d) (1994).1 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). In Neitzke,
the Court distinguished a § 1915(d) dismissal from a dismissal
under FED. R. CIV. P. 12(b)(6) by observing that the in forma
pauperis statute “accords judges not only the authority to dismiss
a claim based on an indisputably meritless legal theory, but also
the unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are
clearly baseless.” Neitzke, 490 U.S. at 327.
While reaffirming the “clearly baseless” condition, the Court
in Denton v. Hernandez, 504 U.S. 25 (1992), further refined the
factual frivolousness standard. Although a complaint may not be
dismissed simply because the court thinks the allegations unlikely,
“a finding of factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts
available to contradict them.” Denton, 504 U.S. at 33.
1
This provision was recodified, and added to, by the Prison Litigation Reform
Act of 1996 (“PLRA”). The recodification does not materially alter the language of
§ 1915(d).
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Recognizing the superior competence of district courts in handing
down particularized judgments, the Court refused to proffer any
more precise a definition:
[W]e are confident that the district courts, who are “all
too familiar” with factually frivolous claims, are in the
best position to determine which cases fall into this
category. Indeed, the statute’s instruction that an
action may be dismissed if the court is “satisfied” that
it is frivolous indicates that frivolousness is a
decision entrusted to the discretion of the court
entertaining the in forma pauperis petition.
Id. (citation omitted). Thus, the Court held, appellate courts
should review § 1915(d) dismissals only for abuse of discretion.
Id.; Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
The Court provided the following factors as relevant to
reviewing a dismissal based on factual frivolousness: (1) whether
the court inappropriately resolved genuine issues of disputed fact
(citing to the language repeated above); (2) whether the court has
provided a statement explaining the dismissal that facilitates
“intelligent appellate review”; and (3) whether the dismissal was
with or without prejudice. Denton, 504 U.S. at 34. An analysis of
these factors leads us to affirm here.
First, the magistrate judge appropriately resolved the genuine
issues of disputed fact. The central disputed fact is whether the
DEA seized the items Ajaegbu claims to have had taken from him
during his arrest. The magistrate judge dismissed the action based
on factual frivolousness because he found the allegations to be
“inconceivable and patently incredible.” This comports with
Denton’s assertion that “a finding of factual frivolousness is
appropriate when the facts alleged rise to the level of . . . the
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wholly incredible.”
Second, the magistrate judge’s report supplies this court with
a statement explaining the dismissal, thus facilitating
“intelligent appellate review.” In addition to providing the
reasons for his legal conclusions, the magistrate judge supplied
sound reasons for his factual finding of frivolousness. These
included Ajaegbu’s failure to mention expensive items until years
after litigation had begun and the fact that the DEA had no record
of the disks supposedly left in the briefcase. Additionally, the
magistrate judge considered the possibility of bringing competent
witnesses to support Ajaegbu’s claims and demonstrated why this
possibility is null.
Third, we must deem the dismissal to be with prejudice.
Neither the magistrate judge’s recommendation nor the district
court's order adopting it states whether the dismissal was with or
without prejudice. When a court is silent on this issue, however,
Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (en banc),
requires us to deem the dismissal to be with prejudice. Because
the dismissal with prejudice deprives Ajaegbu of the ability to
amend, we must address whether it “appears that frivolous factual
allegations could be remedied through more specific pleading.”
Denton, 504 U.S. at 34.
It is doubtful that more specific pleadings could negate the
frivolousness of Ajaegbu’s claims. While he could attempt to
explain away his tardiness in reporting valuable items, it is
difficult to fathom any explanation that would reduce the suspicion
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of opportunism. For example, in his appellate brief, Ajaegbu
states that he failed to list the valuable items earlier in the
litigation because of his “ignorance of the procedure.” But this
does not explain why he failed to list the expensive jewelry along
with the other items he specified in his objections to the
magistrate judge’s recommendation (“gold coins what of [sic]
$500.00, 93 family pictures and 12 important Playboy magazines”).
In sum, the district court did not abuse its discretion in
dismissing this action as factually frivolous. In describing
Ajaegbu’s story as “inconceivable and patently incredible,” the
recommendation reveals that the magistrate judge considered
Ajaegbu’s claims “clearly baseless.” This adopted recommendation
gives sensible reasons for his conclusion.
III.
No one disputes that DEA agents damaged Ajaegbu’s briefcase.
While sovereign immunity protects the United States from liability
for this damage, it does not preclude a Bivens action against the
individual officers involved. See Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Because Ajaegbu was a pro se
litigant, the district court should have allowed him to proceed
with a Bivens action. See Peña, 157 F.3d at 987.
Accordingly, the judgment of dismissal is AFFIRMED as to all
property except the briefcase, as to which the judgment is VACATED
and REMANDED.
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