Harris v. United States Postal Service et al
Filing
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ORDER granting 5 Defendant's Motion to Dismiss and 7 Defendant's Motion for Entry of Judgment. The Clerk is directed to terminate this action. Signed by Judge G Murray Snow on 4/17/12.(LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Wendell Harris,
Plaintiff,
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vs.
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United States Postal Service, et al.,
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Defendant.
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No. CV-11-2007-PHX-GMS
ORDER
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Pending before the Court are Defendants’ Motion to Dismiss and Motion for Entry
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of Judgment. (Docs. 5, 7). For the reasons discussed below, the motions are granted and this
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lawsuit is dismissed.
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BACKGROUND
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On or about May 24, 2011, Plaintiff mailed $8,000 in cash via Defendant United
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States Postal Service’s (“USPS”) Express Mail service from Cleveland, Ohio to Edward
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Blackshear in Mesa, Arizona. (Doc. 1-1, Ex. C). Investigators with USPS seized the
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currency, and USPS notified Plaintiff on July 14, 2011 that the property had been seized.
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(Doc. 1-1, Ex. D). USPS informed Plaintiff that he could challenge the forfeiture by filing
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a claim of ownership by August 18, 2011 or request a pardon of the property by filing a
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petition by August 28, 2011. (Id.) The letter emphasized that a petition or other
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correspondence “shall be deemed filed with the U.S. Postal Inspection Service when
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received.” (Id.). On August 17, petitioner sent one document labeled “Claim” by Express
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Mail and another document labeled “Petition” by certified mail to USPS challenging the
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forfeiture of the money. (Doc. 1-1, Ex. F). Aside from their titles, the documents were
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essentially identical (Doc. 5-1, Exs. 2, 3). The documents were each received at USPS on
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August 22, at which point the “Claim” was deemed to be untimely and the petition was
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processed and ultimately denied. (Doc. 1 ¶ 18).
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Plaintiff brought this suit seeking return of the $8,000 and other relief, claiming that
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USPS’s actions were arbitrary and capricious, that USPS violated the Civil Asset Forfeiture
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Reform Act of 2000 (“CAFRA”), and that Plaintiff was denied due process of law under the
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Fifth Amendment. (Doc. 1 ¶¶ 19–37).
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Defendants USPS and Defendant United States Postal Service Office of the Inspector
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General (“USPSOIG”) filed a motion to dismiss for failure to state a claim on December 16,
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2011. (Doc. 5). Plaintiff, who is proceeding pro se, did not file a responsive memorandum
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in a timely fashion and was ordered by the Court on February 7, 2012 to file a response by
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February 21, 2012. (Doc. 6). Plaintiff did not do so, and Defendants moved for an entry of
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judgment on February 22. (Doc. 7).
DISCUSSION
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I.
Legal Standard
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To survive dismissal for failure to state a claim under Federal Rule of Civil Procedure
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12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic
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recitation of the elements of a cause of action”; it must contain factual allegations sufficient
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to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 555 (2007). While “a complaint need not contain detailed factual allegations . . . it must
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plead ‘enough facts to state a claim to relief that is plausible on its face.’” Clemens v.
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DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S.
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at 570).
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Local Rule of Civil Procedure 7.2 provides that a party’s failure to respond to a
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motion “may be deemed a consent to the . . . granting of the motion and the Court may
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dispose of the motion summarily.” LRCiv 7.2(i). This Circuit has made clear that “[p]ro se
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litigants must follow the same rules of procedure that govern other litigants.” King v. Atiyeh,
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814 F.2d 565, 567 (9th Cir. 1986); see Jacobsen v. Filler, 790 F.2d 1362, 1364–65 (9th Cir.
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1986) (pro se litigants should not be treated more favorably than parties represented by
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attorneys); United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989) (pro se litigants are
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subject to the same good faith limitations imposed on lawyers).
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II.
Analysis
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Plaintiff has failed to file a response to Defendants’ motion to dismiss despite being
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warned in an order that failure would be deemed a waiver and would result in dismissal of
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this lawsuit. Defendants contend that Plaintiff’s claim was untimely because the letter USPS
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sent notifying Plaintiff of the relevant dates made clear that timeliness is measured by the
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date USPS receives the claim, not the date it was mailed. (Doc. 1-1, Ex. D). It further notes
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that Plaintiff was not denied due process regarding his petition, because his petition was
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considered and rejected under 18 U.S.C. § 983(f) (2006). (Doc. 5 at 8).
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Although facts alleged in the complaint must be taken as true for the purposes of a
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motion to dismiss, Plaintiff has not responded to Defendants’s motion, and therefore has
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conceded their argument. LRCiv 7.2(I). Plaintiff was notified that he had to respond to the
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motion and his deadline was extended by this court. He has not responded, and his complaint
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is summarily dismissed.
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IT IS THEREFORE ORDERED:
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1.
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Defendant’s Motion to Dismiss (Doc. 5) and Motion for Entry of Judgment
(Doc. 7) are granted.
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2.
The Clerk of Court is directed to terminate this action.
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DATED this 17th day of April, 2012.
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