Turner v. Attorney General of U.S.

• Decision Date: 29 September 2008
• Docket Number: Cause No. 4:05-CV-0081-PRC.
• Citation: 579 F.Supp.2d 1097
• Parties: James E. TURNER, Plaintiff, v. ATTORNEY GENERAL OF the UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Indiana

579 F.Supp.2d 1097

James E. TURNER, Plaintiff, v. ATTORNEY GENERAL OF the UNITED STATES of America, Defendant.

Cause No. 4:05-CV-0081-PRC.

United States District Court, N.D. Indiana, Hammond Division, at Lafayette.

September 29, 2008.

Miguel A. Escalera, Jr., Sheldon D. Myers, Kainen, Escalera & McHale, PC, Hartford, CT, for Plaintiff.

Jeffrey Allan Fritz, Victoria Woodin Chavey, Day Pitney LLP-HTFD, Hartford, CT, for Defendant.

OPINION AND ORDER

PAUL R. CHERRY, United States Magistrate Judge.

This matter is before the Court on a "Motion to Dismiss or, in the Alternative, for Summary Judgment" [DE 36], filed by Defendant Attorney General of the United States of America ("Attorney General"). Plaintiff James E. Turner, a pro se prisoner, filed a "Plaintiffs Motion Response in Opposition to Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, and Plaintiff[sic] Request in the Alternative, The Court Should Grant Summary Judgment for Plaintiff" [DE 44]. The Attorney General then filed a "Defendant's Reply to Plaintiffs Response to Defendant's Motion for Summary Judgment." For the following reasons, the Court grants the Attorney General's Motion for Summary Judgment and denies Turner's Motion for Summary Judgment.

PROCEDURAL HISTORY

On November 15, 2005, Turner commenced this case by filing a pro se Complaint entitled "Motion for Return of Seized Funds in the Amount of $12,000 in United States Currency Pursuant to 28 U.S.C. §§ 2461, 2462 and 18 U.S.C. §§ 981, 982, 984." In his Affidavit attached to the Complaint, Turner claims sole ownership of the $12,000 (hereinafter also "property" or "money"), asserting that no other person has any interest in the seized money. Turner also alleges that the property was not used for any illegal act and was not the proceeds of any illegal act. In the Complaint, Turner alleges that no formal notice of forfeiture was filed or presented to him and that no formal forfeiture proceedings were initiated. However, Turner acknowledges that possession of the property was transferred from the State of Indiana to the United States. He alleges that the property should have been returned to him after the dismissal of the state criminal charge and that the Federal Bureau of Investigations ("FBI") did not have jurisdiction over the property while the state action was pending.

On October 20, 2006, the District Court screened Turner's Complaint pursuant to 28 U.S.C. § 1915A, determined that Turner was requesting a return of property under Federal Rule of Criminal Procedure 41(g), and dismissed the case, holding that Turner was estopped from asserting the claim because the statute of limitations had expired.

On November 13, 2006, Turner filed a Notice of Appeal. On appeal, the Attorney General conceded that Plaintiffs 41(g) claim was not time barred. However, the Attorney General maintained that the property had been administratively forfeited and, therefore, Rule 41(g) was not the proper vehicle for seeking return of the property. On May 3, 2007, the Seventh Circuit vacated the District Court's dismissal and remanded for further proceedings, advising that, "[o]nly with additional information about how the United States came to possess the money—and what it did with it—could the district court decide how to construe Turner's filing." Turner v. Gonzales, No. 06-4020, ___ Fed.Appx. ___, ___, 2007 WL 1302126, at *2 (7th Cir. May 3, 2007). Nevertheless, the Court of Appeals held that, "[i]f it turns out that the government is correct about the administrative forfeiture, Turner's only remedy is a motion to set aside the forfeiture." Id. (citing 18 U.S.C. § 983(e)(1), (e)(5)).

On July 13, 2007, Turner filed a Motion to Amend Complaint, and the Attorney General filed a response on July 24, 2007. On July 27, 2007, the Court granted the motion, and the Clerk of Court docketed Turner's Amended Complaint. To the Amended Complaint, Turner attached his original Complaint and Affidavit, the Chronological Case Summary related to the Newton County, Indiana charges, the Seventh Circuit remand order, and a document entitled "Sentence Monitoring Computation Data as of 07-03-2007" related to the federal sentence Turner is currently serving. Seeking return of the seized $12,000 and fees and costs, Turner's pro se Amended Complaint invokes 42 U.S.C. § 1983 or, alternatively, 18 U.S.C. § 983(e)(1).¹ Turner alleges that the FBI took possession of the property without providing him notice in violation of his due process rights. He further alleges that the FBI should have known that he was in federal custody as of February 12, 2003, and, thus, should have known that its attempts to serve him by certified mail at his last known addresses were insufficient to apprise him of the forfeiture proceedings.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case, and the case was reassigned to the undersigned Magistrate Judge on August 30, 2007. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

On October 11, 2007, the Attorney General filed the instant Motion for Summary Judgment, a Memorandum in Support, evidence in support—including the sworn Declarations of Kathi Brewster and Wanda P. Mackall, and a Notice to pro se litigant. On December 7, 2007, Turner filed his combined Response in Opposition of Defendant's Motion for Summary Judgment and Motion for Summary Judgment. The Attorney General filed a Reply Brief in Support of its Motion for Summary Judgment on December 17, 2007.

On September 9, 2008, the Court ordered the Attorney General to submit two additional affidavits of an FBI employee setting forth: (1) whether a person executing an NCIC search would reasonably expect search results to produce federal charges pending against an individual; and (2) whether any other steps were reasonably available to locate Turner based on the information gathered from the June 9, 2003 NCIC search. In response, the Attorney General submitted the Second Declaration of Kathi A. Brewster on September 15, 2008.

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[Slummary judgment is appropriate—in fact, is mandated—where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the nonmoving party." Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotation marks omitted).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may discharge its "initial responsibility" by simply "`showing'—that is, pointing out to the district court—that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548. When the non-moving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. See id. at 323, 325, 106 S.Ct. 2548; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir.1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials and thereby shift to the non-moving party the burden of showing that an issue of material fact exists. See Kaszuk v. Bakery & Confectionery Union & Indus. Int'l Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986); Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir.1982).

Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on his or its pleadings. See Fed. R.Civ.P. 56(e)(2); Donovan v. City of Milwaukee waukee, 17 F.3d 944, 947 (7th Cir.1994). Rule 56(e) establishes that the opposing party's "response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, to demonstrate a genuine issue of fact, the non-moving party must do more than raise some metaphysical doubt as to the material facts; the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir.1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d...