Pimentel v. U.S. Drug Enforcement Admin.

• Decision Date: 07 June 2000
• Docket Number: No. 96Civ.9021(PKL).,96Civ.9021(PKL).
• Citation: 99 F.Supp.2d 420
• Parties: Hipolito PIMENTEL Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Defendant.
• Court: U.S. District Court — Southern District of New York

99 F.Supp.2d 420

Hipolito PIMENTEL Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Defendant.

No. 96Civ.9021(PKL).

United States District Court, S.D. New York.

June 7, 2000.

Hipolito Pimentel, Oakdale, LA, pro se.

Mary Jo White, U.S. Atty., Sara Thomas, of counsel, New York City, for Defendant.

OPINION AND ORDER

LEISURE, District Judge.

Plaintiff pro se Hipolito Uvidalis Pimentel seeks the return of property allegedly seized by defendant United States Drug Enforcement Administration (the "DEA"). Both parties have moved for summary judgment. For the reasons that follow, each motion is granted in part and denied in part.

BACKGROUND

Plaintiff, his wife Wanda, and their two children resided at 2752 East 66th Street, Brooklyn, New York, between 1987 and 1991. See Pimentel Dep. at 12-13, 19-20. From 1987 to 1990, plaintiff worked as a freelance limousine driver, using his Lincoln Towncar to transport passengers between his Brooklyn neighborhood and flights to and from Puerto Rico and the Dominican Republic. See id. at 21-22.

In January 1990, DEA special agents investigating plaintiffs alleged participation in a narcotics trafficking scheme began surveillance of his residence. Based on information from a confidential informant, on January 18, 1990, the Honorable Carol Bagley Amon, United States Magistrate Judge for the United States District Court for the Eastern District of New York, issued a warrant authorizing the search of plaintiff's home. See Search Warrant, dated Jan. 18, 1990 (attached as Exh. A. to Letter from Sarah Thomas, Esq. to the Court, dated July 20, 1999 (the "Thomas letter")). The warrant authorized the seizure of, inter alia, heroin, narcotics paraphernalia, money, narcotics, financial records, "and any other property, documents, or things that constitute direct evidence of the commission of, or are designed or intended as a means of the violation of, or are contraband or the fruit of the violation of the federal narcotics laws." Id.

The next day, January 19, 1990, approximately ten special agents assigned to DEA Group 23 executed the search warrant. See Rubinstein Decl. ¶ 4; Pimentel Dep. at 28. Although plaintiff was not present when the DEA agents first arrived, the agents located him on 56th Avenue in Brooklyn and brought him to his home for questioning. See Pimentel Dep. at 28-29; Rubinstein Decl., Exh. A. Following the interview, plaintiff and his wife were arrested and transported to a nearby police station, where they were finger-printed, photographed, and placed in a cell. See id.

While plaintiff and his wife were incarcerated, DEA agents continued to search their residence and confiscated various articles of property. The Report of Investigation, DEA Form 6, prepared by Special Agent Kenneth J. Dinino, lists the following seized property: three automobiles (a 1989 Jeep Cherokee, a 1988 Lincoln Town Car, and a 1975 Mercedes Benz), a cardboard box containing .9 mm and .357 caliber ammunition, photographs of plaintiff and other people, a brown letter wallet with miscellaneous business cards, three telephone and address books, and miscellaneous papers and identification documents belonging plaintiff, including his Florida driver's license, Social Security card, Resident Alien card, Selective Service Certificate, Dominican registration voting card, and automobile registration and insurance cards. See Rubinstein Decl., Exh. A. All of the aforementioned property was stored by the DEA's New York Field Division. See id. ¶ 7.

At approximately 4:00 p.m. that same day, plaintiff and his wife were released from custody and returned to their home. See Pimentel Dep. at 28. Evidently, the Assistant United States Attorney responsible for their case had declined to prosecute them based on the results of the search. When plaintiff returned home, however, he allegedly discovered that the DEA agents had taken additional property not listed in the Report of Investigation. Specifically, he claims that the agents seized "Assorted Jewelry, including Gold rings, watches, bracelets, and necklaces ... [m]ost ... of which contained diamonds," wedding video tapes, his pre-nuptual agreement, and a wedding album. See Compl. ¶ 10(1)-(4), 15(4)-(7); Pimentel Dep. at 28-29. He also attests that the agents did not provide him with an inventory report of the items that they confiscated. See Pl. Traverse at 3; Pimentel Dep. at 31. Several days later, plaintiff hired an attorney in an attempt to retrieve what was taken. See id. at 30-31. But the attorney reported back to him that the DEA would not return his property. See id. at 31.

This was not the end of plaintiff's troubles with law enforcement. In July 1990, the Manhattan North Narcotics Unit of New York Police Department (the "NYPD"), in conjunction with DEA Group 33, initiated a second investigation of plaintiff. See Pl. Traverse, Exh. A-3. On May 15, 1991, the NYPD arrested plaintiff and his wife for their participation in a conspiracy to distribute heroin. See Thomas Decl. ¶ 5. Plaintiff claims that during the search incident to this arrest, DEA agents seized $2,400 in United States currency. See Compl. ¶ 13, 15(16); Pl. Traverse at 4. He and his wife were charged with, and eventually pleaded guilty to, federal charges of conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). See Compl. ¶ 12, 14. On July 7, 1994, plaintiff was sentenced to 120 months imprisonment and five years of supervised release. See id. ¶ 14.

Now incarcerated, plaintiff filed the instant action in October 1996. By his Complaint, plaintiff seeks an order directing the DEA to return his property forthwith and asks the Court to grant such other relief that it deems appropriate. See Compl. ¶ 20, 22. Although the Complaint itself is undated, an affidavit annexed to it is dated October 10, 1996. See Thomas Decl. ¶ 7. The Complaint was stamped "Received" by the Pro Se Clerk's Office on October 15, 1996. See Compl. at 1. The Clerk of the Court issued a summons on November 29, 1996, and the Complaint was subsequently served. See Thomas Decl. ¶ 7.

On May 14, 1999, the DEA moved for summary judgment on various grounds, depending on the particular article allegedly seized. In response to the motion, plaintiff served and filed a traverse, in which he opposed the DEA's motion, asserting the existence of genuine issues of material fact. See Pl. Traverse at 1, 27-28. Alternatively, plaintiff requested that the Court grant summary judgment in his favor and order the DEA to release the seized property or compensate him with its full and fair market value. See id.

DISCUSSION

I. Standard for Summary Judgment

A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996). The burden is on the moving party to demonstrate that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995).

In deciding a motion for summary judgment, the Court's function is not to try issues of fact, but instead to determine whether there remain any such issues to try. See Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir.1995). In doing so, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Holt, 95 F.3d at 129. However, the substantive law governing the case will identify those facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

"A `genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party." Dister v. Continental Group, 859 F.2d 1108, 1112 (2d Cir.1988) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Thus, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Mere speculation or conjecture" will not suffice, Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir.1990), nor will "reliance on unsupported assertions," Goenaga, 51 F.3d at 18. Rather, the nonmoving party must provide "concrete evidence from which a reasonable juror could return a verdict in [her] favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

In this case, both parties seek summary judgment. When faced with cross-motions for summary judgment, the Court is not obligated to grant summary judgment for one side or the other. See Association of Int'l Auto. Mfrs., Inc. v. Abrams, 84 F.3d 602, 611 (2d Cir.1996); Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993). "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir.1981).

Finally, a ...