United States v. 3330 N. Border Ave, Weslaco TX ( 2018 )

Case: 17-40225 Document: 00514456582 Page: 1 Date Filed: 05/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40225 FILED
May 3, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
3330 N. BORDER AVENUE, WESLACO, TEXAS,
Defendant,
OMAR FIDENCIO ROJAS,
Claimant-Appellant,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CV-163
Before ELROD, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Omar Fidencio Rojas seeks authorization to proceed in forma pauperis
(IFP) on appeal from the district court’s striking of his filings and grant of
summary judgment as to his claim to the property located at 3330 N. Border
Avenue, Weslaco, Texas. The district court denied Rojas authorization to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40225 Document: 00514456582 Page: 2 Date Filed: 05/03/2018
No. 17-40225
proceed IFP, concluding that he presented no non-frivolous issues for appeal.
See FED. R. APP. P. 24(a)(3); 28 U.S.C. § 1915(a)(3). By moving to proceed IFP
in this court, Rojas challenges the district court’s certification that his appeal
is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
Although Rojas has demonstrated that he is financially eligible to
proceed IFP on appeal, see Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948), he has not raised a legal issue arguable on the merits and thus
nonfrivolous, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Rojas
challenges the district court’s striking of three different pleadings he filed.
First, he argues that his unverified July 2015 objection and motion to stay
forfeiture constituted a claim to the property because Rule G of the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions does not require technical compliance and the pleading sufficiently
identified his interest in the property. We have required that claimants
strictly comply with the rules governing forfeiture claims to minimize the filing
of false claims. United States v. Real Prop. Located at 14301 Gateway Blvd.
W., El Paso Cty. Tex., 123 F.3d 312, 313 (5th Cir. 1997). Moreover, the district
court exercises discretion in considering motions to strike. United States v.
$38,570 U.S. Currency, 950 F.2d 1108, 1113 (5th Cir. 1992).
The district court in this matter considered the repeated notice that both
the district court and the Government provided to Rojas regarding the
requirement that his claim be verified, as well as the policy underlying Rule G.
Rojas’s citation of an unpublished out-of-circuit case as an argument that
technical compliance with the rule is not required fails to present a point
arguable on its merits in light of the district court’s analysis of the facts and
this court’s precedent. See Howard, 707 F.2d at 220.
2
Case: 17-40225 Document: 00514456582 Page: 3 Date Filed: 05/03/2018
No. 17-40225
Similarly, Rojas presents no nonfrivolous issue for appeal with regard to
his March 2016 response in opposition to the Government’s motion to strike
and his June 2016 objection to the Government’s amended complaint. See
Howard, 707 F.2d at 220. Both pleadings are untimely as claims and,
therefore, subject to being struck as such. See Real Prop. Located at 14301
Gateway Blvd. W., El Paso Cty. Tex., 123 F.3d at 314; $38,570 U.S. Currency,
950 F.2d at 1113-15. Further, because “[t]he filing of a claim is a prerequisite
to the right to file an answer and defending on the merits,” the district court’s
exercise of discretion in striking these pleadings likewise presents no
nonfrivolous issue for appeal. Cactus Pipe & Supply Co. v. M/V Montmartre,
756 F.2d 1103, 1114 (5th Cir. 1985) (internal quotation marks and citation
omitted); see Howard, 707 F.2d at 220.
The absence of a verified claim defeats Rojas’s challenge to the striking
of his pleadings addressing the merits of the forfeiture case. See Cactus Pipe
& Supply Co., 756 F.2d at 1114. Because Rojas failed to timely file a verified
claim, the district court acted within its discretion in striking his pleadings on
the merits and in not addressing the arguments raised in those pleadings. See
id.; Howard, 707 F.2d at 220.
Rojas has raised no nonfrivolous issues for appeal. See Howard, 707 F.2d
at 220. Accordingly, his motion for leave to proceed IFP is denied, and his
appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R.
42.2.
IFP MOTION DENIED; APPEAL DISMISSED.
3