United States District Court, D. New Mexico
ORDER ADOPTING REPORT AND RECOMMENDATION
MATTER comes before the Court on Magistrate Judge Steven
Yarbrough's Proposed Findings and Recommended Disposition
(PFRD). Doc. 33. In his PFRD, Magistrate Judge Yarbrough
recommended denying Plaintiffs' Motion for Summary
Judgment (Doc. 23) and granting Defendant's Motion to
Dismiss (Doc. 25). Plaintiffs filed objections to the PFRD on
November 30, 2017. Doc. 39. Plaintiffs make two factual
objections and two legal objections. In their factual
objections, Plaintiffs contend that contrary to the PFRD, the
money judgment dated September 16, 2004, was finalized
without prior notice to Plaintiffs, without the benefit of a
hearing, and without representation. Doc. 39 at 1. Plaintiffs
further contend that the forfeiture count (Count IX) was
dismissed by motion of the government. Doc. 39 at 1. As for
their legal objections, Plaintiffs first reiterate their
contention that it is a violation of due process to obtain a
forfeiture judgment against property that was never seized.
Doc. 39 at 2-3. The Court understands Plaintiffs' second
legal contention to be that Magistrate Judge Yarbrough
improperly granted the Defendant an opportunity to move to
dismiss Plaintiffs' claims after Plaintiffs' were
entitled to default judgment against Defendant. For the
reasons discussed below, the Court denies Plaintiffs'
objections and adopts Magistrate Judge Yarbrough's PFRD.
PFRD, Magistrate Judge Yarbrough recommended dismissal of
Plaintiffs' claims under Section 1983 because Section
1983 does not apply to the United States or federal officers
acting under color of federal law and “no part of the
forfeiture action underlying Plaintiffs' Complaint
implicates state action or state actors.” Doc. 33 at 6.
Magistrate Judge Yarbrough further explained that even if had
Plaintiffs asserted their claims pursuant to Bivens
or the Federal Tort Claims Act, they would still be precluded
from relief. See Doc. 33 at 7. As Magistrate Judge
Yarbrough explained, Plaintiffs' claims would be barred
under Bivens because Heck v. Humphrey, 512
U.S. 477 (1994) bars suits challenging criminal forfeiture
where the underlying conviction of forfeiture has not been
invalidated. Doc. 33 at 7. As for the Federal Tort Claims
Act, Magistrate Judge Yarbrough explained that construing
Plaintiffs' claims under the act would still not afford
relief because Plaintiffs cannot establish a waiver of
sovereign immunity because the United States' seized
Plaintiffs' property pursuant to a criminal forfeiture
action. Doc. 33 at 8. None of Plaintiffs' objections
address these clear bars to Plaintiffs' suit and the
Court agrees with Magistrate Judge Yarbrough's analysis.
Plaintiffs' objection regarding the extension of time
Magistrate Judge Yarbrough accorded Defendant to file its
Motion to Dismiss, the Court notes that it materially
misstates the underlying proceedings. Doc. 39 at 3.
Plaintiffs allege that Magistrate Judge Yarbrough afforded
Defendant “unreasonable additional time and warnings
that have not, to date, been afforded the Pro Se
Plaintiffs.” Doc. 39 at 3. As Magistrate Judge
Yarbrough explained, however, neither party complied with
their respective deadlines in this case. Given the “two
considerable extensions of time” Magistrate Judge
Yarbrough granted Plaintiffs to properly serve Defendant in
lieu of dismissing the case under Fed.R.Civ.P. 4(m), it can
hardly be maintained that Plaintiffs were treated unfairly in
relationship to Defendant. Further, the Court favors
resolving issues before it on the merits. The Court
accordingly rejects Plaintiffs' objection on this point.
the Court addresses Plaintiffs' argument that the
forfeiture action was dismissed. The Court first notes that
Plaintiffs have not previously raised this issue. Plaintiffs
did not raise this in either their Motion for Summary
Judgment or their response to Defendant's Motion to
Dismiss. The Court accordingly deems such issues waived.
See Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996) (“Issues raised for the first time in
objections to the magistrate judge's recommendation are
the record does not reflect that the United States
voluntarily dismissed the money judgment against Plaintiffs.
The Court recognizes that the document referenced by
Plaintiff includes a check marked box indicating that Count
IX was “dismissed on the motion of the United
States.” Crim. No. 03-1014, Doc. 168. Upon review
of the record, the Court is unable to locate a motion by the
United States to voluntarily dismiss the money judgment.
Further, the document is internally inconsistent because on
page 5 of Document 168 it states “The defendant
forfeits all rights, ownership and interest in all United
States currency, land and property noted in Count IX of the
Second Superseding Indictment.” Similarly, as indicated
by Docs. 171-173, the United States filed notice of the money
judgment shortly thereafter which indicates that the United
States did not voluntarily dismiss the money judgment. The
only way to reconcile this inconsistency is by construing the
check marked box as referencing the United States'
earlier voluntary motion to dismiss the forfeiture action in
regard to certain real property, not the money judgment.
See Crim. No. 03-1014, Docs. 88-89. For these
reasons, the Court rejects Plaintiffs' objections to the
extent that Plaintiffs' contend that the forfeiture
action was voluntarily dismissed by the United States.
review of the record, the Court concurs with Magistrate Judge
Yarbrough's proposed findings and recommendation and
accordingly adopts the PFRD (Doc. 33). The Court therefore
DENIES Plaintiffs' Motion for Summary Judgment (Doc. 23),
GRANTS Defendant's Motion to Dismiss (Doc. 25), and
dismisses Plaintiffs' Complaint.
 The Court further notes that Document
168 is only entered as to Edward Atencio. Accordingly, even
if the Court were to conclude that it constituted a voluntary
dismissal of the money judgment it would be as ...