MARTINEZ v. UNITED STATES OF AMERICA, No. 1:2013cv00989 - Document 17 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER, signed on 04/30/2015. It is RECOMMENDED that Defendant's Motion 12 be GRANTED and that judgment be entered for Defendants. ( Objections to R&R due by 5/18/2015) (Coyne, Michelle)
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MARTINEZ v. UNITED STATES OF AMERICA Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ELS,A. MARTINE,Z FLORES, ) ) Plaintiff, V UNITE,D STATES OF'AME,RICA and DRUG ENF'ORCEMENT ,\DMINISTRATION, Defendants ) ) ) ) ) ) ) ) ) 1:13CV989 MEMORÄNDUM OPINION AND RECOMMENDATION TATE This mattet is before the Coutt on Defendants United States of .{merica and the Dtog Enfotcement Administtation's @E) motion to dismiss pursuant to Fed. R. Civ. P. 12(bX1) and (6).1 Qocket F,ntry 12.) Plaintiff has not responded to the motion, despite teceiving two extensions of time, and the time to do so has expired. The motion is therefore ripe fot disposition. Fot the following reasons, the court recofiìrnerìds that Defendants' motion to dismiss be granted. PROCEDURAL POSTURE On Novembet 5, 2013, Elsa Mattinez Flores ("Plaintiff'), proceeding prl w, f:Jed a Motion to Set -Aside Declaration of Forfeiture and Compel Retutn of Seized Propetty. (Docket Entry 1.) In her Motion, Plaintiff alleges that $6,500 in United States Curtency was seized from het home by DE,\ agents on July 28, 201,'1.. Plaintiff alleges that the seizure ' In her motion, Plaintiff named only the tlnited States as a Respondent/Defendant. However, the DEA is clearly p^rry in intetest here and the Court accordingly includes it in the caption and as a ^ party tn the action as a whole. Dockets.Justia.com occurred pursuant to the atrest of het boyfriend, Manuel Camacho Gatcia, who was subsequentiy convicted of conspitacy to distribute narcotics in this court. (See United States a. Carùa, Case No. 1:11,CR253-3, M.D.N.C., fìled November 5,201,3.) Plaintiff alleges that the currency seized belonged to her, not to Garcia, and that the money should be retutned to her because she did not teceive notice of the administrative forfeitute proceeding. Defendants fìled a timely motion to dismiss on Decembet 31, 201,4. As noted, Plaintiff has not responded to the motion. FACTUAL BACKGROUND On July 25, 2011, Manuelo Garcia was indicted Caroltna fot violations of 21 U.S.C. $ 841 in the Middle District of North (uXt). On July 28,201.1, Garcia was affested by membets of the DEA and Casweil County Shedffls Office at his residence in Yanceyville, Notth Caroltna. Dudng the attest and ptotective sweep of the residence, Garcia gave consent for a seatch of the residence and vehicles in the dtiveway. The law enforcement offìcers then seatched the residence and discovered $6,500 in U.S. currency, as well as a .45 caliber handgun. The DE'\ subsequently adopted the seizure of the currency and submitted a fotfeiture report to DEA's acting Forfeiture Counsel. .{fter teviewing the case, the DEA accepted the case for administtative fotfeiture pursuant to 21 U.S.C. $ 881(a), which genetally authorizes forfeiture of the ptoceeds of illegal narcotics and funds intended to be furnished in exchange for illegal narcotics. On August 16,2011, the DEA sent notice of fotfeiture to Manuel Camacho Garcia aka Rigobeto Mattines Cruz at 477 Chetry Grove Road, Yanceyville, NC via cetified mail, return receipt tequested. The notice was accepted and signed for by "Elsa Mar:úr.ez" 2 (Plaintiff) on August 20, 2011. Additionally, on the same date, the DEA sent notice of fotfeitute to Garcia at the Alamance County Jail by cenified mail. This notice was accepted and signed fot by 'J. Lloyd" on -August 1,8, 201,'1,. The mailed notices stated that the deadline to file a clakn was September 30, 201,'1,. The DE then published notice, pursuant to 19 U.S.C. $ 1607(a) and 21 C.F'.R. S 1316.75, consecutive weeks in August and Septeml:er 201,1. published notice stated that the deadline If in the Wall Street Journal for th-tee the mailed notice was not teceived, the to fìle a clailø:. was Octobet 13, 201,1. The published and mailed notices also explained the option of filing a petition fot remissiorì or mitigation of forfeiture. On October27,2011, after the time limit for filing aclatrn had expired, and in the absence of a ptopetly executed claim, the DE,{, forfeited the amount of $6,500.00 to United States under authority of 1,9 the U.S.C. S 1609. On May 2, 2012, the DEA received a clakn for seized property ftom Eugene Lestet, III on behalf of Elsa Matinez. On the same dare, the DEA received a second for seized property ftom Eugene C. Lester, III, on behalf of Elsa Mafitnez, C. claim at its remote mail facility in Quantico, Vfuginia. Both of these claims included a copy of the DE,\ Notice of Seizure dated ,{.ugust 16, 201.1, which indicated that the last day to fìle a claim was Septembet 20,201,1, and which was received and accepted by Elsa Matttnez on -{ugust 20, 201,1,. On May 10, 2012, the DEA rejected the claim of Elsa l;4ar:.jlnez as DEA sent notice of the decision to Eugene C. Lester by certified mail. -) untimely. The Plaintiff filed the cuffent action on November 5, should be set aside because she did not receive notice 201,3, alleging that the forfeiture of the administrative fotfeiture ptoceeding. The DE received the Summons and Motion on July 9, 201.4. (See Docket Entty 11.) DISCUSSION In support pleadings. of theit motion, A motion to dismiss Defendants have ptesented matenal outside the should be construed as one for summaty judgment matters outside the pleadings "are presented to and not excluded by the Cry. P. 12 (d). "All parties must be given that is peninent to the motion." Id. a if court." F'no. R. teasonable opportunity to present all the material Here, the Clerk of Court mailed the standard Ro¡eboro letter to Plaintiff on December 31, 20'1.4, noti$ring her that the motion to dismiss had been filed, and that it "may or m^y not be supported by an afîtdavit." The letter informed Plaintiff of het right to file a tesponse in opposition, "accompanied by counter affidavits," and that she also could submit other tesponsive matertal. Plaintiff was further notifìed that uncontested motions are ordtnarily granted. (See Roseboroletter, Docket F,nty 1,4.) Plaintiff teceived one extensions of tìme (Docket Entry 16), but she never fìled a response to the motlc)n. An uncontested motion fot summary judgment is not automatically granted. Canpbell u. Hewitt, Coleruan dz Astoct., Inc., 21 F.3d 52,55 (4th Cu. 1,994). Rather, the moving party's facts ate deemed uncontroverted, and the court determines whether the moving pulry h entitled to a judgment as ^ rriatter of law. Ca¡ter 4 u. Pan Arz. Lirt Ins. Co., 12 F.3d 41,0 41,6 (4th Ctt. 1,993) (the moving p^rq still must show that the facts entide him to a judgment as a matter of law) Plaintiff alleges in her motion that the DEA failed to provide notice to her of the forfeiture and of her right to file a motion to set aside the forfeiture. The Civil Asset Fotfeiture Refotm Act of 2000 ("CAFR-{") governs fedetal nonjudicial forfeitute actions initiated aftet August 23, 2000. 18 U.S.C. $ 983(e)(5). The ptocedute to challenge closed civil forfeiture ptoceedings on the gtounds of defective notice is set forth in the statute: (1) -Any person entitled to written notice in any nonjudicial civil fotfeiture ptoceeding undet a civil fotfeitute statute who does not teceive such notice may fìle a motion to set aside a declatation of forfeiture with respect to that petson's interest in the property, which motion shall be gtanted if - (,{) the Govetnment knew, or reasonably should have known, of the moving party's interest and failed to take teasonable steps to provide such paty with notice; and @) the moving p^rry did not know or have reason to know the seizure within sufficient time to file a timely claim. of 18 U.S.C. $ 983(e)(2000).2 Under Section 983(e), thetefore, a court may review nonjudicial civil fotfeitutes only fot violations of due process. See Me¡a ValdelTarlla u. United States,4l7 tr.3d 1189,1,1,96 (1,1,th Cir. 2005) (claimant may only seek telief under section 983(e) when the Govetnment has failed to comply with the notice requirements; he may not challenge the forfeitability of the property); United States u. Sims,376 F3d 705,707 (7th Cir. 2004) (section 983(e) is the exclusive remedy for challenging an administrative fotfeitute that was corrünenced on or after the effective date of C-AFRA); MtKinnry u. U.S. Dtþ't ' of Jøstitv, For a full discussion of civil forfeiture proceedings and CAFR, F. Supp. 2d696,702-09 (X{.D.N.C. 201,2). 5 see Citl 580 F. S.rpp. 2d 1., 4 of Concord u. Robinson,91.4 @.D.C. 2008) (district court lacks judsdiction to review an administtative fotfeitute other than pursuant immunity); to section 983(e) Fol,ës u. U.S. because Congress has not otherwise waived sovereign DEA, No. 1:05CV389, 2006V/L 3096687, x2 (14.D.N.C. Oct.25, 2006) (CFR-,\ is the exclusive remedy fot challenges to an administative fotfeitute."). The cental question in this case is whether the govetnment took "reasonable steps" undet $ 983(e)(1)(Ð to provide Plaintiff with the requisite notice. "The notice of fotfeiture must satis$r constitutional due process." United States u. Ta/oa{, No. 11-74,201.2 4514204, at x2 (S.D. ìø.Va. Oct. 2, 20'12). Challenges WL to the adequacy of notice of administrative fotfeiture proceedings are rooted in the Fouth and Fifth Amendments to the Constitution. See United State¡ u. Minor,228 F.3d 352,356 (4th Cir. 2000). "The adequacy of notice of an impending forfeiture is thus amattet of obvious constitutional magnitude." Id., (citing Mallane u. Central Hanouer Bank dy Trast C0.,339 U.S. 306,31.4 (1950)). Howevet, due process does not require actual notice 220, 226 Q006). Instead, it ot actual receipt of notice. Jones u. Flowers, 547 U.S. requires notice "'teasonably calculated" undet all the ckcumstances, to apprise interested parties of the pendency of the action and affotd them an opportunity to present their objections. Døsenbery u. United States, 534 U.S. '1,61,, 1,70-7'1. Q002) (citing Mallane,339 U.S. ^t 314-15). Moreover, the government is not required to make "heroic effotts" at notice. Dasenber1,534 U.S. at"l.l0. In the instant case, the government sent a notice to Garcia at his tesidence, whete Plaintiff also tesided. Plaintiff accepted and signed fot the cetified mail ftom the DEA to Garcia on August 20, 201,'1,. The notice clearþ indicated that intetested patties could file a claim, or petition, or both. Plaintiff did neither within the time period allowed undet 6 the statute. Because the government complied with the requirements of the statute, the Court fìnds that the declatation of fotfeiture should not be set aside. Additionally, even if Plaintiff could satisfy the fitst prong of $ 983(e)(1), she likely could not show, under $ 983(e)(1)@) that she "did not know or have reason to know of the seizure within sufficient time to fùe a timely claim." Plaintiff was cleady seizure, as evidenced by the averments of het ^w^Íe of the motion. Moreover, when Plaintiff sent a claim to the DEA more than eight months after the forfeitute, it included a copy of the DEA Notice of Seizure dated August 6,20L1, which indicated that the last day to file a claim was Septembet 20, 201,1,. Plaintiff was cleady awate notice of the fotfeitute. of the seizure and had ptoper statutory 3 CONCLUSION Based on the foregoing, it is RECOMMENDED that Defendants'motion @ocket E.rtry 12)be GRANTED and that judgment be entered for Defendants. L [f'ebcter Strtes i\f4gistna J",lge Durham, North Caroltna April 30,201.5 t If Plaintiff contended that the money seized did not consdtute drug proceeds, her temedy was to respond to the notice sent by the DEA in Äugust 201.L and to contest the forfeiture in the proceedings descdbed therein. Her failure to do so extinguished her rights in the seized funds. -fes Citlt of Concord,974 F. Supp. 2dat773. Moreover, as noted by Defendants, even if Plaintiffs claim had merit, she would not be entitled to return of the property. Putsuant to $ 983(e)(2)(A), "if the court granted a motion under paragraph (1), the court shall set aside the declatation of forfeiture as to the interest of the moving party without prejudice to the dght of the Government to comrnence a subsequent forfeiture proceeding as to the interest of the moving p^rq." 1B U.S.C. $ 943(e)(Z)(,\). 7
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