U.S. v. Ninety Three Firearms

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: Moore
• Citation: U.S. v. Ninety Three Firearms, 330 F.3d 414 (6th Cir. 2003)
• Decision Date: 27 May 2003
• Docket Number: No. 01-5348.,01-5348.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. NINETY-THREE (93) FIREARMS, and Assorted Firearm Parts and Ammunition, Defendant, Larry Z. SHORT, Claimant-Appellant.

330 F.3d 414

UNITED STATES of America, Plaintiff-Appellee, v. NINETY-THREE (93) FIREARMS, and Assorted Firearm Parts and Ammunition, Defendant Larry Z. SHORT, Claimant-Appellant.

No. 01-5348.

United States Court of Appeals, Sixth Circuit.

Submitted: December 13, 2002.

Decided and Filed: May 27, 2003.

COPYRIGHT MATERIAL OMITTED

Michael F. Pleasants (briefed), U.S. Atty's Office, Memphis, TN, for Plaintiff-Appellee.

Michael F. Pleasants (briefed), Pleasants Law Firm, Memphis, TN, Larry Z. Short, Memphis, TN, for Appellant.

Before BATCHELDER and MOORE, Circuit Judges; FORESTER, Chief District Judge.^*

OPINION

MOORE, Circuit Judge.

The United States brought this civil in rem forfeiture action, under 18 U.S.C § 924(d), for the forfeiture of ninety-three firearms involved in a § 922(g)(1) violation, nearly five years after the property originally was seized. In response, Claimant-Appellant Larry Zane Short ("Short"), the owner of the seized property, moved to dismiss the action on both statutory and constitutional grounds. The district court denied Short's motion to dismiss and granted the government's motion for summary judgment. On appeal, Short argues that the district court erred in finding that the judicial proceeding was timely under § 924(d)(1) and in applying the statute of limitations in 19 U.S.C. § 1621. Short also argues that his due process rights were violated by the five-year delay in bringing the action and the six-month delay in service of process. Finally, Short insists that the district court erred by failing to inform him, a pro se litigant, of the requirements and consequences of a summary judgment motion.

We hold that either an administrative or a judicial forfeiture action brought within 120 days of the seizure will toll the § 924(d)(1) deadline. In addition, the government's five-year delay in bringing proceedings and its six-month delay in serving Short with process did not rise to the level of a due process violation. Finally, in this circuit, nonprisoner pro se litigants are not entitled to notice of the consequences and requirements of a summary judgment motion. Even if Short is considered a prisoner pro se litigant and, therefore, is entitled to notice of the requirements in responding to a summary judgment motion, any alleged error was harmless. Accordingly, we AFFIRM the district court's decision.

I. BACKGROUND

On August 26, 1994, Bureau of Alcohol, Tobacco, and Firearms ("BATF") and Drug Enforcement Administration ("DEA") agents executed a search warrant at Short's home and seized ninety-three assorted firearms and ammunition. At the time this search warrant issued, Short was prohibited from possessing firearms or ammunition pursuant to 18 U.S.C. § 922(g)(1) because he was previously convicted for violations of the Gun Control Act. The firearms possessed in violation of § 922(g) therefore were subject to seizure and forfeiture under 18 U.S.C. § 924(d)(1). In just over a month's time, BATF commenced administrative forfeiture proceedings against these firearms by publication in USA Today on October 6, 13, and 20, 1994. On August 22, 1995, the BATF interpreted a letter filed by Short in November 1994 requesting the return of the property as a petition for remission or mitigation and denied this request.

Meanwhile, on October 17, 1994, Short was indicted by a grand jury on four counts of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d); one count of possessing unregistered firearm silencers in violation of 26 U.S.C. § 5861(d); and one count of possession of a firearm after conviction of a felony in violation of 18 U.S.C. § 922(g). On March 7, 1995, Short entered a conditional guilty plea to two counts involving possession of unregistered firearms and one count of possessing unregistered firearm silencers. His sentencing hearing was held in abeyance while he was turned over to the Bureau of Prisons ("BOP") for psychological evaluations. The sentencing hearing was finally conducted on September 15, 1995, and Short received a seventy-eight month sentence and three years of supervised release. On direct appeal, we affirmed his conviction and sentence.

On August 20, 1999, almost five years after the original seizure, the government instituted a judicial forfeiture action under § 924(d)(1) seeking forfeiture of the firearms seized in the search. Short filed a motion to dismiss on the basis that the complaint was untimely pursuant to § 924(d)(1), the five-year delay violated his due process right to a prompt hearing, and the action violated the Excessive Fines Clause. The district court partially denied the motion but ordered the government to show cause for the untimely complaint. In response to the show-cause order, the government admitted that it did not issue service of process within the time demanded under the Federal Rules of Civil Procedure, but indicated that after the entry of the show-cause order a copy of the complaint was served upon Short's attorney, Logan Sharp ("Sharp"), who agreed to accept service on behalf of his client. A few days later, Sharp filed an affidavit with the court, swearing that he did not agree to accept service on behalf of Short, that he did not accept service on his behalf, and that he did not represent Short in the forfeiture action.

On June 22, 2000, the government sent requests for admission to Short at the place of his incarceration. The requests asked him to admit that he was previously convicted for violations of the Gun Control Act which are punishable by a prison term of over one year, that he was aware that due to this conviction he could not possess firearms, and that the defendant firearms were in his possession on the date of seizure. Short did not respond to these requests within the thirty-day period, nor did the court or parties agree to an extension of time; thus, Short's failure to respond served as a constructive admission. On July 12, 2000, Short was released from prison. A few months later, on October 17, 2000, Short requested that the court appoint him counsel. Noting its broad discretion to appoint counsel for indigent civil litigants, the district court denied Short's motion for appointment of counsel because he had not shown "exceptional circumstances." The government successfully moved for summary judgment, and this timely appeal followed.

II. ANALYSIS

We review de novo a district court's order granting summary judgment. Rannals v. Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir.2001), cert. denied, 534 U.S. 1132, 122 S.Ct. 1074, 151 L.Ed.2d 976 (2002). In accordance with Federal Rule of Civil Procedure 56(c), this court affirms a grant of 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). The moving party has the burden of proving that no genuine issue as to any material fact exists and that it is entitled to a judgment as a matter of law. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477-78 (6th Cir.1989). A dispute over a material fact cannot be "genuine" unless a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing the district court's decision to grant summary judgment, we view all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The issues that we must review on this appeal are whether summary judgment was proper because: (a) the judicial forfeiture action was timely under § 924(d)(1); (b) Short's due process rights were not violated by the five-year delay in bringing the action and by the six-month delay in service of process; and (c) the court's failure to inform Short, a nonprisoner pro se litigant, of the requirements and consequences of a summary judgment motion was not error.

A. Timeliness of the Forfeiture Action

The first question presented on this appeal is whether administrative forfeiture actions brought within the 120-day time period sufficiently comply with the letter of the law, as provided in § 924(d)(1), when the judicial proceedings are not brought also within the permissible 120 days. Section 924(d)(1) provides, in part: "Any action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure." 18 U.S.C. § 924(d)(1). Although this is a question of first impression in the courts of appeals, a number of district courts have published opinions addressing this very question. See, e.g., United States v. Assorted Firearms, 201 F.Supp.2d 496, 498 (D.Md.2002) (noting that "where ... administrative proceedings are timely instituted, a subsequent judicial action need not be instituted within 120 days of the seizure"); United States v. Sixty Firearms, 186 F.Supp.2d 538, 545 (M.D.Pa.2002) (stating that administrative proceedings would be foiled by a process requiring the judicial action to be commenced within the same 120-day period); United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition, 150 F.Supp.2d 988, 992 (C.D.Ill.2001) (holding that a forfeiture action is timely so long as "at least" an administrative action is filed within the 120-day statutory period); United States v. Twelve Firearms, 16 F.Supp.2d 738, 741 (S.D.Tex.1998), aff'd, 54 Fed. Appx. 405, 2002 WL 31688616, at *1 (5th Cir. Oct.28, 2002) (concluding that the statute required "either an administrative forfeiture proceeding or a judicial forfeiture action within 120 days of a seizure"); United States v. Fourteen Various Firearms, 889 F.Supp. 875, 877 (E.D.Va.1995) (holding that the district court lacked jurisdiction to hear the case because both...