Tovar v. UNITED STATES OF AMERICA

JO SE LUIS TOVAR
Plaintiff,
versus
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISON
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§
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§ 	CIVIL ACTION NO. 7:25-cv-374
§
UNITED STATES OF AMERICA. 	§
Defendant. 	§
MEMORANDUM AND RECOMMENDATION
Plaintiff, Jose Luis Tovar, proceeding pro se, initiated this action by filing Motion for
Return of Seized Property Pursuant to Rule 41(g) ("Plaintiffs Motion") on July 29 , 2025. 	(See
Dkt. No. 3). 1 Therein, Plaintiff seeks the return of all documents and materials seized from his
home on May 24, 2012, pursuant to a warrant executed by a government task force. (Id. at 1) .
Defendant, United States, filed Respondent's Response and Motion to Dismiss Petitioner's Motion
to Have Personal Property Returned ("Defendant's Motion") on January 20, 2026. (See Dkt. No.
12). This matter was subsequently referred to the undersigned magistrate judge for consideration
pursuant to 28 U.S.C. § 636(b) and LR 72.
After careful review of the record and relevant law, the undersigned is of the opinion that
Defendant' s Motion (Dkt. No. 12) should be GRANTED and Plaintiffs Motion (Dkt. No. 3)
should be DENIED.
1 A Rule 41 (g) motion filed after the underlying cri minal case has concluded is properly co nstrued as a civil
action . United States v. Clymore, 2 17 F.3 d 370, 373 n.6 (5th Cir. 2000) (citing Pena v. Un ited St ates, 122
F.3d 3, 4 n.3 (5th C ir. 1997)) . 	Th u s, Plaintiff was required to e ith er pay the filing fee or submit an
application for leave to proceed in forma pauperis . Plaintiff filed App li cation to Proceed In Forma Pauperis
("IFP Motion") on August 18 , 2025 . (See Dkt. No . 4). 	The IFP Motion was subsequently granted on
Septem ber 5, 2025 . (See Dkt. No . 6) .
1
United States District Court
Southern District of Texas
ENTERED
March 24, 2026
Nathan Ochsner, Clerk
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I. 	BACKGROUND
Plaintiff was indicted on June 19 , 2012, on two counts unlawful possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(l) and 924(a)(2). (See United States v. Tovar, et al., Cause No.
7:12-cr-00964-1, Dkt. No. 53 at 1-2). 	Plaintiff pleaded guilty on September 11 , 2012, to both
counts. 	(See 	United States v. 	Tovar, 	et al., Cause No. 7:12-cr-00964-1 , Dkt. Entry, Dated
September 11 , 2012). 	Plaintiff was subsequently sentenced before the Honorable District Judge
Alvarez to 120 months ' custody as to each count, to run, in part, consecutively and concurrently,
to serve no more than 210 months, followed by 3 years of supervised release. (See United States
v. Tovar, et al., Cause No. 7:12-cr-00964-1 , Dkt. Entry, Dated December 12 , 2012). The case was
terminated the same day. 	(Id.). 	Plaintiff filed a Notice of Appeal on December 21, 2012. (See
Un ited States v. Tovar, et al. , Cause No. 7:12-cr-00964-1 , Dkt. No. 163). 	On April 10 , 2014, the
Fifth Circuit Court of Appeals affirmed the decisions of the district court. 	(See United States v.
Tovar, et al. , Cause No. 7:12-cr-00964-1 , Dkt. No. 247).
Plaintiff filed pending motion on July 29 , 2025, seeking the return of all documents and
materials seized pursuant to a warrant executed by a government task force. 	(Dkt. No. 3 at 1).
Plaintiff contends the government executed a search warrant and obtained all the referenced items,
in connection with an investigation that led to Plaintiff's criminal conviction. (Id. at 1-2). Plaintiff
claims he is the rightful owner of the seized property and is lawfully entitled to possession of the
materials seized within the meaning of Rule 41 (g) of the Federal Rules of Criminal Procedure.
(Id. at 2). Accordingly, Petitioner seeks the return of the following items:
• 	1 Apple Computer
• 	2 video cameras
• 	(All) photographs
• 	(All) mobile phone records extracted from seized mobile phones
• 	2 mobile phones
• 	1 SD card
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• 	1 memory chip
• 	(All) miscellaneous papers seized from Plaintiff's home
• 	1 FBI photo identification card seized from Plaintiff's safe (photo identifies
Plaintiff as working for the FBI as a C.I.).
(Dkt. No. 3 at 4).
This Court ordered Defendant to file an answer by January 20, 2026, and Plaintiff to file a
response by February 19 , 2026. (S ee Dkt. No. 10).
Defendant filed a response on January 20, 2026. (See Dkt. No. 12). First, Defendant claims
that all of the subject property has been destroyed and/or released. (Id. at 3). 	Next, Defendant
explains that Plaintiff's Motion is filed twelve (12) years after his arrest, well past the six-year
statute of limitations for such motions. (Id.) . Finally, Defendant suggests that, even if Plaintiff
had pleaded a conversion claim, it would fail because it is not alleged under the Federal Torts
Claims Act, and because it would likewise be barred by the two-year statute of limitations period
applicable to conversion claims in Texas. (Id. at 4).
Plaintiff failed to file a response by the Court ordered deadline and, as of the date of this
filing, has yet to respond to Defendant's Motion.
II. 	APPLICABLE LAW/ANALYSIS
A. 	Legal Standard
1. 	Rule 12(b)(6)
In deciding a Rule 12(b)(6) motion, the Court "accepts ' all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff. "' In re Katrina Canal Breaches Litig .,
495 F.3d 191 , 205-06 (5th Cir. 2007) (citing Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit,
369 F.3d 464, 467 (5th Cir. 2004)). To state a claim upon which relief may be granted, Plaintiff
must plead "enough facts to state a claim to relief that is plausible on its face[,]" and must plead
those facts with enough specificity " to raise a right to relief above the speculative level[.]" Bell
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Atlantic Corp v. Twombly, 550 U.S. 544, 555 , 570 (2007). 	"A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The
plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully." Id. "A claim for relief is implausible on its face
when 'the we ll -pleaded facts do not permit the court to infer more than the mere possibility of
misconduct. "' 	Harold H Huggins Re alty, Inc. v. FNC, Inc ., 634 F.3d 787, 796 (5th Cir. 2011)
(quoting Iqbal, 556 U.S. at 679).
Under Rule 8, the complaint need not contain detailed factual a ll egations, but Plaintiff must
allege more than labels and conclusions; similarly, while the Court must accept all of Plaintiff's
allegations as true, it is " 'not bound to accept as true a legal conclusion couched as a factual
allegation. "' Iqbal, 556 U. S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic
recitation of the elements of a cause of action, supported only by conclusory statements, will not
do . Id. However, " to survi ve a motion to dismiss[,]" Plaintiff must "plead facts sufficient to show"
that his claims h av e "substantive plausibility" by stating "simply, concisel y, and directly events"
that Plaintiff alleges entitles him to relief. Johnson v. City of She lby, 574 U. S. 10 , 12 (2014) (per
curiam) (citing Fed. R. Civ. P. 8(a)(2)-(3), (d)(l), (e)).
The Court may not look bey ond the pleading s. 	S ee Spivey Robertson, 197 F.3d 772, 774
(5th Cir. 1999). However, pleadings may include attachments to the complaint. S ee Katrina, 495
F.3d at 205 . Otherwise, the Court may not consider other documents.
2. 	Rule 4 l(g)
R ul e 41(g) of the Federal Rules of Criminal Procedure permits a "person aggrieved by an
unlawful search and seizure of property or by the deprivation of property [to] move for the
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property's return." Fed. R. Crim. P. 41(g). Such a motion "brought after the criminal proceeding
is over is treated as a civil equitable action for return of property[,]" and invokes "the Court's
general equity jurisdiction under 28 U.S.C. § 1331." Jacobo-Flores v. United States, No. L-07-
105, 2008 WL 4415146, at *2 (S.D. Tex. Sept. 24, 2008).
While "[e]quitable relief is not appropriate if the moving party has an adequate remedy at
law and will not suffer irreparable injury if denied equitable relief[,]" whether to ultimately
exercise such equitable jurisdiction is subject to the discretion of the district court. United States
v. Mason , 207 F. App ' x 477, 477 (5th Cir. 2006) (unpublished).
However, a Rule 41 (g) motion is appropriate only where the government possesses the
property. See Bailey v. United States, 508 F.3d 736, 740 (5th Cir. 2007) (" If the district court finds
that the government no longer possesses the [property] Bailey seeks, his motion must be denied
because the government cannot return property it does not possess, and the doctrine of sovereign
immunity bars the award of monetary damages under Rule 41(g).") (citing Pena v. United States,
157 F.3d 984 , 986 (5th Cir. 1998)).
Similarly, the "six-year statute oflimitations in 28 U.S.C. § 2401(a) applies to civil actions
for the return of property." Bailey, 508 F.3d at 740 (citing United States v. Wright, 361 F.3d 288,
290 (5th Cir. 2004)).
B. 	Plaintiff's Claims
Plaintiff seeks the return of all documents and additional materials seized from his home
on May 24 , 2012, pursuant to a warrant executed by a government task force . (Dkt. No. 3 at 1) .
Plaintiff claims he is the owner of all of the property seized pursuant to the referenced warrant and
is "lawfu ll y entitled to possession of the material seized by the government agents within the
meaning of Rule 41(g) of the Federal Rules of Criminal Procedure." (Id. at 2).
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Defendant responds that they have communicated with the Bureau of Alcohol, Tobacco,
Firearms and Explosives (" ATP ") and have confirmed that all of the subject property has been
destroyed or released. (Dkt. No. 12 at 3-4). The Court takes this as true 2 and, because Defendant
no longer possesses the property that Plaintiff seeks the return, a dismissal is warranted in this
matter. 	Bailey, 508 F.3d at 740. 	This, alone, is sufficient to dispose of this matter. As such, the
Court does not analyze any potentially applicable statute of limitations to determine whether
Plaintiff's claim was timely filed. 3
Accordingly, Plaintiff has failed to state a claim and dismissal is warranted.
III. 	CONCLUSION
Recommended Disposition
Accordingly, the Court recommends that Defendant's Motion (Dkt. No. 12) be GRANTED
and Plaintiff's Motion (Dkt. No. 3) be DENIED. 	It is further recommended that Plaintiff's case
be DISMISSED and the matter closed.
Notice to the Parties
Within 14 days after being served a copy of this report, a party may serve and file specific,
written objections to the proposed recommendations. 	28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P.
72(b ). The district judge to whom this case is assigned shall make a de novo determination upon
the record, or after additional evidence, of any portion of the magistrate judge's disposition to
which specific written objection has been made. The district judge may accept, reject, or modify
2 "Fai lu re to respond to a motion will be taken as a representation of no opposition." LR 7.4. As noted,
Plaintiff failed to respond to Defendant's Motion (Dkt. No . 12). 	The Court takes this silence as "a
representation of no opposition."
3 Defendant additionally suggests a potential, alternative argument: that Plaintiff would fail in raising a
conversion claim. (Dkt. No. 12 at 12). However, because this argument was not raised in Plaintiff's Motion,
nor included in any response, the Court does not address it.
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the recommended decision, receive further evidence, or recommit the matter to the magistrate
judge with instructions.
Failure to file written objections to the proposed findings and recommendations contained
in this report within 14 days after service shall bar an aggrieved party from de novo review by the
District Court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the District Court, except on grounds of plain error or manifest
injustice. 	See Douglas v. United Serv. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
bane), superseded by statute on other grounds, 28 U.S.C. § 636(b)(l).
The Clerk shall provide a copy of this Order to Plaintiff and Counsel for Defendant.
DONE at McAllen, Texas, this 24th day ofM ~
Juan F. Alanis
United States Magistrate Judge
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