Filed: Jun. 09, 2009
Latest Update: Feb. 21, 2020
Summary: responsibility, rules of court and state law.qualify as law enforcement officers.we find that Schomaker's tort claims are barred for another reason.Inc. v. Alberto Culver (P.R.interests and property rights.with her later assertion of claims against the defendant).assets in his bankruptcy petition.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1915
JOHN EDWARD SCHOMAKER,
Plaintiff, Appellant,
v.
UNITED STATES, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
John Edward Schomaker on brief pro se.
Evan J. Roth, Special Attorney on brief for appellees.
June 9, 2009
Per Curiam. John Schomaker appeals pro se the district
court's grant of summary judgment to defendants, the United States,
Assistant United States Attorney Arnold H. Huftalen, and John and
Jane Doe property officers employed by the U.S. Attorney's Office
for the District of New Hampshire. In the underlying complaint,
Schomaker asserted constitutional and state law tort claims under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671-2680, ("FTCA") and New Hampshire state law, arising from
defendants' failure to return, and their subsequent destruction of,
personal property seized in 1997 during the execution of a valid
search warrant in connection with a criminal prosecution;
defendants conceded that Schomaker was entitled to the return of at
least some of the seized property at the conclusion of the criminal
proceedings against him and that they received but failed to act on
Schomaker's request for the return of that property. Our review of
the entry of summary judgment is de novo. See Goodwin v. C.N.J.,
Inc., 436 F.3d 44, 49 (1st Cir. 2006).
On appeal, Schomaker's primary arguments are that the
district court erred in determining the date his Fourth Amendment
claim accrued and in failing to address whether his due process
rights were violated based solely on lack of notice prior to the
destruction of his property. He also appears to challenge the
district court's determination that, under the Westfall Act, 28
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U.S.C. § 2679(d), defendant Huftalen was entitled to immunity with
regard to the state law tort claims because he was acting within
the scope of his employment at all relevant times. See Aversa v.
United States, 99 F.3d 1200, 1207 (1st Cir. 1996). We have
carefully reviewed the record and the parties' submissions and,
substantially for the reasons stated in the district court's May
13, 2008, Memorandum and Order, we affirm.
DISCUSSION
I. Accrual of Fourth Amendment Claim; Equitable Tolling
In his complaint, Schomaker expressly asserts that he was
entitled to the return of his property upon the completion of the
criminal proceedings and that defendant Huftalen and the
unidentified property officers violated his Fourth Amendment rights
by "ma[king] an un[c]onstitutional Property Seizure when they
exercised dominion and control over Plaintiff's property and
unlawfully detained Plaintiff's property when they refused to take
the necessary steps, upon the repeated demands of Plaintiff, to
effect the release of Plaintiff's property to Plaintiff's
Authorized Agents . . . ." Since Schomaker does not contest the
validity of the original seizure of his property in 1997, the
district court's determination that the injury upon which this
claim is based is defendants' failure to release the property upon
Schomaker's "repeated demands" is unassailable. The district court
therefore correctly found that the claim accrued when Schomaker
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knew or had reason to know that the government's retention of the
property became wrongful--i.e., when defendant Huftalen received
and failed to respond to Schomaker's concededly rightful request to
release the property, on or about July 13, 1998. Schomaker does
not dispute that his claim was subject to New Hampshire's three-
year general personal injury statute of limitations, see N.H. Rev.
Stat. Ann. § 508:4; Roman v. Townsend, 224 F.3d 24, 26-27, 29 (1st
Cir. 2000); accordingly, since his Fourth Amendment claim was not
filed until nearly nine years after the date of accrual, it was
properly deemed untimely.
To the extent that Schomaker contends that equitable
tolling is warranted because, under the district court's analysis,
a constitutional claim based on the failure to return property or
the destruction of property might accrue and expire before a timely
request for the return of property is made, he fails to distinguish
between the separate triggering events that would cause each of
these claims to accrue. Contrary to Schomaker's suggestion, none
of these claims could accrue without the claimant being aware or
having reason to be aware of the triggering event. Thus, for the
reasons stated by the district court, Schomaker failed to
demonstrate that any exceptional circumstances sufficient to
warrant equitable tolling were present. See Vistamar, Inc. v.
Fagundo-Fagundo, 430 F.3d 66, 71 (1st Cir. 2005).
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II. Fifth Amendment - Procedural Due Process
Schomaker next argues that the district court erred in
failing to address whether his due process rights were violated
based solely on lack of notice prior to the destruction of his
property. We agree that Schomaker failed to present evidence
sufficient to support an inference that defendants' retention of
the property, their failure to safeguard it or the ultimate
destruction of the property was the result of intentional or
reckless conduct. The district court correctly determined that
negligent conduct resulting in an unintended loss of property was
insufficient to support a due process claim, see Daniels v.
Williams, 474 U.S. 327, 328 (1986), and, "where a government
official is merely negligent in causing [an] injury, no procedure
for compensation is constitutionally required." Davidson v.
Cannon,
474 U.S. 344, 347 (1986).
III. Immunity Under the Westfall Act
Although Schomaker purports to challenge the district
court's grant of "qualified immunity" to defendant Huftalen, since
the district court did not reach that issue, it appears that
Schomaker's argument is directed instead toward the district
court's determination that Huftalen was entitled to immunity with
regard to the state law tort claims because he was "acting within
the scope of his office or employment." 28 U.S.C. § 2679(b)(1).
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Schomaker argues on appeal, as he did in the district
court, that defendant Huftalen was not acting within the scope of
his employment because his conduct--in particular, his failure to
respond to Schomaker's requests for the return of his property and
his failure to safeguard or keep adequate records concerning
Schomaker's property-violated standards of professional
responsibility, rules of court and state law. However, Schomaker
failed to present any evidence that would suggest that any of
defendant Huftalen's acts and omissions with respect to Schomaker's
property rose above the level of negligence, or that he acted with
any motive unrelated to his work. For the reasons set forth by the
district court, we agree that the record is insufficient to support
an inference that defendant Huftalen acted outside the scope of his
employment. The district court therefore properly substituted the
United States as the defendant with respect to Schomaker's state
law claims. See 28 U.S.C. § 2679(d)(1).
IV. Sovereign Immunity
Although the district court did not address the issue,
the government argued that Schomaker's state law claims were barred
because they fell within one of the enumerated exceptions to the
FTCA's limited waiver of sovereign immunity, which exempts from the
coverage of the statute "[a]ny claim arising in respect of . . .
the detention of any goods, merchandise, or other property by any
officer of customs or excise or any other law-enforcement officer."
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28 U.S.C. § 2680(c). The Supreme Court has construed this
exemption expansively to bar "'any claim arising out of' the
detention of goods, includ[ing] a claim resulting from negligent
handling or storage of detained property," Kosak v. United States,
465 U.S. 848, 854 (1984), and has held that the phrase "any other
law enforcement officer" should be construed broadly to apply to
all "law enforcement officers of whatever kind." Ali v. Fed.
Bureau of Prisons,
128 S. Ct. 831, 836, 840-41 (2008). Schomaker
argued that the exception was inapplicable because the employees of
the U.S. Attorney's Office who had custody of his property did not
qualify as "law enforcement officers." We have not yet had
occasion to decide this issue and decline to reach it now because
we find that Schomaker's tort claims are barred for another reason.
V. Effect of "No Asset" Bankruptcy Discharge
Defendants argued below that Schomaker's March 1998 "no
asset" bankruptcy discharge also barred him from asserting any
claim for damages with respect to the failure to return or the
destruction of the seized property. Schomaker filed a Chapter 7
voluntary bankruptcy petition in October 1997 (while his criminal
case was pending), in which he claimed personal property, including
a computer and a camera, as exempt and also denied that anyone was
holding any property that belonged to him, stating that "Any
property I own has been taken as evidence by the U.S. Marshal as
evidence in a pending court case. This includes my computer,
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printer, monitor, and camera. It is unlikely that these objects
will be returned to me." Based on those representations, Schomaker
was granted a "no asset" discharge on March 3, 1998, about two
weeks after he was sentenced.
Defendants maintain that the property for which Schomaker
now seeks compensation either was or should have been included in
the bankruptcy estate, and that this action therefore is subject to
dismissal based on judicial estoppel and/or lack of standing. In
opposition to this argument, Schomaker argued that the seized
property was different than (and, apparently, more valuable than)
the equipment claimed exempt in the bankruptcy proceeding; he
asserts that the computer seized from his house was a "Packard Bell
486DX2" and that the computer claimed exempt was a "V-Tech" "Laser
128EX" that he kept at his parents' house. He explains that, at
the time he filed the bankruptcy petition, he mistakenly believed
that the seized property was subject to forfeiture, and he
therefore did not believe it qualified as an asset or that he was
required to disclose its value; he suggests that, since he stated
in his bankruptcy filings that the computer equipment had been
seized and was not available to him, his disclosure was adequate
and not intentionally misleading, and he should not now be barred
from bringing an action to recover for its loss. This argument is
unavailing.
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First, Schomaker's failure to distinguish between the
"computer" identified in the list of exempt property and that
referenced in the Interrogatory responses, and his use of the
singular "my computer" in those responses, suggests that the seized
computer and the computer claimed exempt were one and the same. If
that were the case, Schomaker would be estopped from seeking to
recover for the loss of that property in this case because, to the
extent that he now claims over $34,000 in damages resulting from
that loss, his position seems to be intentionally inconsistent with
his sworn statements in the bankruptcy proceeding that the property
was worth less than $1,000. See Payless Wholesale Distributors,
Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir.
1993) (former debtor was judicially estopped from asserting
monetary claims omitted from schedules supporting Chapter 11
petition); Oneida Motor Frieght, Inc. v. United Jersey Bank,
848
F.2d 414 (3d Cir. 1988) ("A long-standing tenet of bankruptcy law
requires one seeking benefits under its terms to satisfy a
companion duty to schedule, for the benefit of creditors, all his
interests and property rights."); Estel v. Bigelow Management,
Inc., 323 B.R. 918 (E.D. Tex. 2005) (former chapter 7 debtor was
judicially estopped from maintaining discrimination action because
he failed to disclose claims in bankruptcy schedules;
alternatively, because the cause of action was property of his
bankruptcy estate, employee lacked standing to bring suit);
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Chandler v. Samford Univ., 35 F. Supp. 2d 861 (N.D. Ala. 1999)
(involving Chapter 13 case that was converted to a "no asset"
Chapter 7 one month after debtor filed discrimination suit she had
failed to disclose to the bankruptcy court; court held that
debtor's representations that she had "no assets" were inconsistent
with her later assertion of claims against the defendant).
However, even assuming Schomaker's explanation is
sufficient to create an issue of fact as to whether the seized
computer referenced in the Interrogatory responses was different
and more valuable than the one claimed as exempt personal property,
and even if he mistakenly believed that the seized property was
subject to forfeiture and therefore did not constitute an asset,
since it is undisputed that the property was not in fact the
subject of a forfeiture proceeding, the property, or any cause of
action to recover it or compensation for its loss would have been
an asset of the bankruptcy estate held by the U.S. Trustee for the
benefit of the creditors; the fact that Schomaker mistakenly
omitted the property and its value from the assets listed in the
petition does not give him standing to recover for its loss. See
11 U.S.C. §§ 323, 521, 541. See also Estel, 323 B.R. at 924.
Thus, whether Schomaker has taken an intentionally inconsistent
position with regard to the value of the seized property in this
action or failed to disclose its value in the bankruptcy proceeding
because he mistakenly believed it was subject to forfeiture, he is
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not entitled to seek compensation for its loss. See Payless
Wholesale Distributors, Inc., 989 F.2d at 571; Estel,
323 B.R. 918.
CONCLUSION
In sum, we conclude that Schomaker's Fourth Amendment
Bivens claim was properly dismissed as time-barred, his Fifth
Amendment Bivens claim was properly denied because he failed to
establish that the challenged conduct was sufficient to support a
constitutional claim, the individual defendants were properly
granted immunity from the state law tort claims under the Westfall
Act and the United States substituted as the sole defendant, and
the FTCA claims were properly dismissed either because they were
barred under 28 U.S.C. § 2680(c), because the individual claims
failed on the merits, or because Schomaker was estopped from
seeking substantial damages for the loss of property that either
had de minimis value or was improperly omitted from the list of
assets in his bankruptcy petition. The judgment of the district
court is therefore affirmed. See 1st Cir. Loc. R. 27.0(c).
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