* 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should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-40864

Summary Calendar

_______________

MANUEL GARCIA

Plaintiff-Appellant,

VERSUS

UNITED STATES OF AMERICA

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA C 95 360)

_________________________

April 12, 1996

Before KING, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Manuel Garcia, a federal prisoner, appeals the dismissal of

his pro se, in forma pauperis (“IFP”) lawsuit as frivolous. We

affirm.

I.

Garcia filed a motion for return of property pursuant to FED.

R. CRIM. P. 41(e), alleging that the government illegally seized
2

$62,827 from him nine years earlier. Drug Enforcement Administration agents found the money while conducting a search of Garcia’s

vehicle, seized the currency, and told Garcia that they would

notify him within twenty days of their intended disposition of the

property. 

Garcia claims that the agents lacked probable cause for the

search and seizure. He also alleged in his initial motion that he

never received any notice from the agency; that motion also states,

however, that the government filed a notice of intent three years

after the seizure. The government alleges that it sent Garcia two

separate written notices by certified mail and proceeded with an

administrative forfeiture after Garcia did not respond.

Garcia clarified his position in a “traverse” to the

government’s response, explaining that he does not allege that the

government had completely failed to notify him; instead, he claims

that the notice was inadequate and untimely. The district court

found that Garcia’s suit is barred by limitations and dismissed it

as frivolous pursuant to 28 U.S.C. § 1915(d) (1994).

II.

As a threshold matter, the government argued in the district

court that Garcia’s motion should be dismissed for want of

jurisdiction because FED. R. CRIM. P. 41(e) does not confer jurisdiction over civil forfeiture cases. While the government is correct

that Garcia should have brought a civil action rather than a rule

41(e) motion, we construe his pro se pleading liberally and treat
 

1 While we accord pro se litigants a liberal reading of their arguments,

we accept their concessions and consider only issues raised on appeal. See

United States v. Pierce, 959 F.2d 1297, 1300 n.5 (5th Cir.), cert. denied, 506

U.S. 1007 (1992). As Garcia concedes that the Texas limitations period applies,

and Garcia did not file this action within that period, we need not address the

government’s suggestion to the district court that the six-year limitations

period of 28 U.S.C. § 2401(a) (1994) also bars this action.

3

it as a proper civil complaint. See United States v. Robinson, No.

95-10453, 1996 WL 101748, at *2 (5th Cir. Mar. 8, 1996).

We review § 1915(d) dismissals for abuse of discretion. Moore

v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). A district court

may dismiss an IFP claim “if satisfied that the action is frivolous

or malicious.” 28 U.S.C. § 1915(d). 

The district court noted that state statutes of limitations

apply to federal constitutional claims and applied Texas’s two-year

limitations period for conversion. The court found that Garcia’s

suit was untimely because it came nine years after the seizure and

seven years after the forfeiture proceeding.

Garcia concedes that the district court’s choice of the Texas

limitations period was correct,1 but argues that the district court

should have applied the federal discovery rule to determine when

his causes of action accrued. “Although the Texas limitations

period applies, federal law governs when a § 1983 claim accrues,

and ‘[u]nder federal law, a cause of action accrues when the

plaintiff knows or has reason to know of the injury which is the

basis of the action.’” Moore, 30 F.3d at 620-21 (quoting Gartrell

v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993)). “The statute of

limitations . . . begins to run when the plaintiff is in possession

of the ‘critical facts that he has been hurt and who has inflicted
 

2 Garcia alleges that the notice violated 21 U.S.C. § 888(b) (1994) because

it did not come “[a]t the earliest practicable opportunity.” This argument fails

because by its express terms, § 888(b) applies only to conveyances, not currency.

Because Garcia appears pro se, however, we liberally construe his argument as a

more general attack on the delay. Cf. United States v. Park, 947 F.2d 130, 136

(5th Cir. 1991), vacated in part, 951 F.2d 634 (5th Cir. 1992) (discussing due

process limits on delay in bringing an enforcement proceeding).

 

3 We doubt that either claim is colorable, as our review of an administrative forfeiture is generally limited to ensuring that the agency employed proper

procedural safeguards. See Scarabin v. Drug Enforcement Admin., 919 F.2d 337,

338 (5th Cir. 1990). While Garcia’s timeliness claim is procedural in nature,

any delay occurred before the forfeiture proceeding and could have been contested

at the agency level. We do not address that question, however, because the

district court correctly found that both claims are plainly time-barred.

4

the injury.’” Id. at 621 (quoting Lavellee v. Listi, 611 F.2d

1129, 1131 (5th Cir. 1980)). 

We construe Garcia’s district court pleadings to state two

claims: a Fourth Amendment illegal seizure claim based upon the

actual seizure and a Fifth Amendment due process claim based upon

the government’s two-year delay in mailing Garcia a notice of

intent. The first is certainly untimely. As Garcia was present

when the seizure occurred, he was necessarily aware of the

“critical facts” underlying his Fourth Amendment allegation at the

time of the seizure. See id. (finding that an illegal seizure

claim accrued on the day of the seizure). 

Turning to Garcia’s second claim, we agree that if the

government’s notice was excessively tardy, Garcia suffered a

cognizable injury during the interval between seizure and notice.2

Garcia was obviously aware of that deprivation at the time it

occurred, however. By waiting almost nine years before asking for

his property back, Garcia lost the right to bring either of these

claims.3
 

4 Garcia’s decision to characterize his claim in this way was a sensible

one, as the government had produced an affidavit that, at least on its face,

appeared to show that the government had satisfied the notice requirements of 19

U.S.C. § 1607(a) (1994).

5

Finally, we construe Garcia’s appeal brief to assert a third

claim, that the government denied him due process by not providing

notice reasonably calculated to inform him of the forfeiture

proceeding. This claim differs from the one discussed above,

because it contends that the government never attempted proper

notice of the forfeiture proceeding, not that it delayed in doing

so. As Garcia alleges that he did not receive actual notice of the

proceeding until shortly before he filed suit, this due process

claim might not be time-barred. It is also colorable, as we have

recently intimated that due process might be violated when the

government mails notice to a prisoner’s home. See Robinson, 1996

WL 101748, at *2 n.1.

The district court’s failure to consider this claim was not an

abuse of discretion, however, as Garcia did not present the claim

to that court. See Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.

1994) (declining to consider an issue raised for first time on

appeal by an IFP plaintiff). While Garcia’s initial motion could

be construed as asserting a claim based upon lack of notice, Garcia

emphasized in his “traverse” to the district court that he was

contesting the eighteen-month delay in providing notice, not a

complete lack of notice.4 We cannot say that it was an abuse of

discretion to accept Garcia’s characterization of his own motion.

The judgment of dismissal is AFFIRMED.