US v. A PARCEL OF LAND IN CITY OF LUCEDALE

• Decision Date: 21 May 1991
• Docket Number: Civ. A. No. S90-0355(G).
• Citation: 791 F. Supp. 1144
• Parties: UNITED STATES of America, Plaintiff, v. A PARCEL OF LAND IN the CITY OF LUCEDALE, GEORGE COUNTY, MISSISSIPPI — (Jerry Wayne Freeland), Defendant.
• Court: U.S. District Court — Southern District of Mississippi

791 F. Supp. 1144

UNITED STATES of America, Plaintiff, v. A PARCEL OF LAND IN the CITY OF LUCEDALE, GEORGE COUNTY, MISSISSIPPI — (Jerry Wayne Freeland), Defendant.

Civ. A. No. S90-0355(G).

United States District Court, S.D. Mississippi, S.D.

May 21, 1991.

Donald M. Waits, Asst. U.S. Atty., Biloxi, Miss., for plaintiff.

John Hunter, Pascagoula, Miss., for defendant.

MEMORANDUM OPINION

GEX, District Judge.

This cause comes before the Court on the motion of the plaintiff to strike the pleadings of the proposed claimant, Jerry Freeland, and for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court has duly considered the record in this action, in addition to the briefs of counsel, and being fully advised in the premises, concludes as follows:

Standard of Review

In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in the light most favorable to the nonmoving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984). The Supreme Court has discussed and clarified the relevant standard for summary judgment:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Furthermore, speculative evidence, lacking a reasonable basis in fact, is insufficient to enable the nonmoving party to avoid summary judgment. "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). Hence, "the mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. The Fifth Circuit has determined that:

An issue is genuine if the evidence supporting its resolution in favor of the party opposing summary judgment, together with any inferences in such party's favor that the evidence allows, would be sufficient to support a verdict in favor of that party. If, on the other hand, the evidence offered by both the moving and opposing parties would support only one conclusion and, even if all the evidence to the contrary is fully credited, a trial court would be obliged to direct a verdict in favor of the moving party, the issue is not genuine.

* * * * * *

Thus, as the Supreme Court recently said in Anderson v. Liberty Lobby, Inc., affirming a summary judgment rendered by a trial court: "The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are any genuine factual issues that can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."

Id. at 223.

"With regard to `materiality,' only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment." Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987).

Applying the summary judgment standard to the evidence presented by the parties to this motion, the Court makes the following findings.

Statement of Facts

On July 30, 1990, the United States commenced this action by filing a Verified Complaint for Forfeiture against the defendant property. This complaint contained allegations that: Jerry Freeland was a manufacturer of controlled substances and that he had committed offenses involving the manufacture, distribution or dispensing, or possession with the intent to manufacture, distribute, or dispense, a controlled substance, in violation of 21 U.S.C. § 841(a)(1); Jerry Freeland committed an offense of which the punishment may exceed a year's imprisonment; and the subject real property was used to commit and to facilitate the commission of such violation.

The plaintiff attached the affidavit of Agent Stephen Gorenflo to the complaint. Gorenflo declared that there is documentary evidence that Freeland had been cultivating and distributing marijuana at least since 1989. He also averred that on July 19, 1990, United States Deputy Marshal Johnny Hughes was executing a writ of seizure and search warrant at Freeland's residence in Lucedale for violations of 17 U.S.C. §§ 501 and 503(a). Hughes found that Freeland was not at home and entered his residence. Hughes discovered a substance which appeared to be marijuana in the kitchen. Hughes contacted the Lucedale Police Department who secured the area. Hughes then obtained a search warrant to search the premises. Hughes and other officers discovered a stalk of marijuana, canisters of marijuana,¹ marijuana seeds, paraphernalia, several unmarked bottles of pills, and weight scales. Hughes found a golf cart outside the house. This cart contained various gardening implements. The officers followed the cart's tracks along a trail behind the house. The tracks led to seven marijuana plants.

On July 19, 1990, Freeland was declared a fugitive by the United States for violation of 17 U.S.C. § 501 and was sought by the Lucedale Police Department for violations of Mississippi statutes prohibiting the possession of marijuana with the intent to distribute, Miss.Code Ann. § 41-29-139(a), manufacture of a controlled substance, Miss.Code Ann. § 41-29-139(a), and possession of paraphernalia, Miss.Code Ann. § 41-29-139(d)(f). On July 26, 1990, after having been advised of the preceding events, Agents Gorenflo and Jose Delgado traveled to Freeland's residence. While they were observing the subject property, Al Eubanks arrived and stated that he was a friend of Freeland. Eubanks also informed Gorenflo that Freeland did not have a job.

Gorenflo and Delgado then travelled to the Lucedale Police Department and viewed the confiscated items. Gorenflo found rolling papers, a rolling machine and numerous empty soft packs of Winston cigarettes. Lt. Michael Williams informed Gorenflo that there was another case of empty Winston packs in the house. Gorenflo avers that based upon his training and experience, Freeland was not only cultivating marijuana at his house but was also rolling marijuana cigarettes and selling them as a retailer. Based on the foregoing declaration, United States Magistrate Brit Singletary entered an order on July 30, 1990, finding that probable cause existed to believe that the subject property was used to facilitate a violation of 21 U.S.C. § 841(a)(1) and directing the Clerk to issue a warrant for the arrest of the property. On August 1, 1990, Deputy United States Marshall Hogg arrested the property and personally served a copy of the complaint order, and warrant on Freeland. Pursuant to Magistrate Singletary's Order, a Notice of Action and Arrest was published in the Clarion Ledger on September 12, 13, 14, 17, 18, and 19, 1990. These notices informed prospective claimants that they had to file their claims within ten (10) days from the date of publication and their answers within twenty (20) days after filing their claims. The government has now moved to strike certain pleadings filed by Freeland and for summary judgment.

Discussion

I. The Motion to Strike

A. The Claim

"Proceedings in forfeiture cases involving property seized on land may be enforced by a libel action conforming as nearly as possible to a proceeding in admiralty. 28 U.S.C. § 2461(b). Such proceedings are governed by the Federal Rules of Civil Procedure, including the Supplemental Rules for Certain Admiralty and Maritime Claims." United States v. Fourteen Handguns, 524 F.Supp. 395, 397 (S.D.Tex. 1981). Rule C(6) of the Supplemental Rules states that:

the claimant of property that is the subject of an action in rem shall file a claim within ten days after process has been executed, or within such additional time as may be allowed by the court, and shall serve an answer within twenty days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that the agent, bailee or attorney is duly authorized to make the claim.

The court in Fourteen Handguns capsulized the requirements:

The filing of a claim is a prerequisite to the right to file an answer and defend on the merits. The claim must consist of a verified statement which states the interest of the claimant giving rise to the demand for the return of the property. United States of America v. $52,686.00 In United States Currency, No. H-79-1705 (S.D.Tex. May 4, 1981); U.S. v. One 1975 Ford Ranger, No. 77-1781 567 F.2d 389 (5th Cir.1978) (5th Cir.1977) (per curiam, unpublished). If the claim is made by one other than the possessor of the claimed interest, it should specify the basis of the authority upon which the claimant is acting and state that the claimant is duly authorized to make the claim. 7A Moore's Federal

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