Malone v. United States et al, No. 3:2006cv00719 - Document 7 (N.D. Ind. 2006)

Court Description: OPINION AND ORDER denying Plaintiff Tamora Malone's 2 Motion for Leave to Proceed in forma pauperis and DISMISSING her claims pursuant to 28 U.S.C. section 1915(e)(2)(B)(ii). Signed by Judge Allen Sharp on 10/19/06. (sdf, ) Modified on 10/25/2006 to change to Opinion (smp).

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Malone v. United States et al Doc. 7 case 3:06-cv-00719-AS-CAN document 7 filed 10/19/2006 page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION TAMORA MALONE, et al. Plaintiffs, v. UNITED STATES, et al., Defendants. ) ) ) ) ) ) ) ) ) CAUSE NO. 3:06-CV-719 AS OPINION AND ORDER Tamora Malone, a pro se prisoner, submitted a motion seeking the return of property pursuant to FED . R. CRIM P. 41(g) and a petition seeking to proceed in forma pauperis. Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Ms. Malone is seeking the return of property that was taken on February 27, 2004, but she has waited too long to do so and this claim is barred by the doctrine of estoppel. [T]he plaintiff is estopped from bringing this action due to the four year lapse between the time he first learned of the seizure and the time he commenced action to regain his property. [W]here the plaintiff fails to take action within two years of constructive notice of seizure, a motion pursuant to Rule 41[g] will be dismissed. Hill v. United States, 830 F. Supp. 270, 274 (D. Pa. 1993) (Citation and parentheses omitted). Dockets.Justia.com case 3:06-cv-00719-AS-CAN document 7 filed 10/19/2006 page 2 of 2 In this case, Ms. Malone was aware of the seizure the day that it occurred, therefore those two years expired February 27, 2006. This case was not filed until October 18, 2006, therefore it is barred by estoppel. For the foregoing reasons, her in forma pauperis petition (docket # 2) is DENIED and her claims are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). IT IS SO ORDERED. ENTERED: October 19 , 2006 S/ ALLEN SHARP ALLEN SHARP, JUDGE UNITED STATES DISTRICT COURT

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