Harris v. United States Postal Service et al

Filing 9

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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wendell Harris, Plaintiff, 10 11 vs. 12 United States Postal Service, et al., 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-11-2007-PHX-GMS ORDER 15 16 Pending before the Court are Defendants’ Motion to Dismiss and Motion for Entry 17 of Judgment. (Docs. 5, 7). For the reasons discussed below, the motions are granted and this 18 lawsuit is dismissed. 19 BACKGROUND 20 On or about May 24, 2011, Plaintiff mailed $8,000 in cash via Defendant United 21 States Postal Service’s (“USPS”) Express Mail service from Cleveland, Ohio to Edward 22 Blackshear in Mesa, Arizona. (Doc. 1-1, Ex. C). Investigators with USPS seized the 23 currency, and USPS notified Plaintiff on July 14, 2011 that the property had been seized. 24 (Doc. 1-1, Ex. D). USPS informed Plaintiff that he could challenge the forfeiture by filing 25 a claim of ownership by August 18, 2011 or request a pardon of the property by filing a 26 petition by August 28, 2011. (Id.) The letter emphasized that a petition or other 27 correspondence “shall be deemed filed with the U.S. Postal Inspection Service when 28 received.” (Id.). On August 17, petitioner sent one document labeled “Claim” by Express 1 Mail and another document labeled “Petition” by certified mail to USPS challenging the 2 forfeiture of the money. (Doc. 1-1, Ex. F). Aside from their titles, the documents were 3 essentially identical (Doc. 5-1, Exs. 2, 3). The documents were each received at USPS on 4 August 22, at which point the “Claim” was deemed to be untimely and the petition was 5 processed and ultimately denied. (Doc. 1 ¶ 18). 6 Plaintiff brought this suit seeking return of the $8,000 and other relief, claiming that 7 USPS’s actions were arbitrary and capricious, that USPS violated the Civil Asset Forfeiture 8 Reform Act of 2000 (“CAFRA”), and that Plaintiff was denied due process of law under the 9 Fifth Amendment. (Doc. 1 ¶¶ 19–37). 10 Defendants USPS and Defendant United States Postal Service Office of the Inspector 11 General (“USPSOIG”) filed a motion to dismiss for failure to state a claim on December 16, 12 2011. (Doc. 5). Plaintiff, who is proceeding pro se, did not file a responsive memorandum 13 in a timely fashion and was ordered by the Court on February 7, 2012 to file a response by 14 February 21, 2012. (Doc. 6). Plaintiff did not do so, and Defendants moved for an entry of 15 judgment on February 22. (Doc. 7). DISCUSSION 16 17 I. Legal Standard 18 To survive dismissal for failure to state a claim under Federal Rule of Civil Procedure 19 12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic 20 recitation of the elements of a cause of action”; it must contain factual allegations sufficient 21 to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 22 544, 555 (2007). While “a complaint need not contain detailed factual allegations . . . it must 23 plead ‘enough facts to state a claim to relief that is plausible on its face.’” Clemens v. 24 DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. 25 at 570). 26 Local Rule of Civil Procedure 7.2 provides that a party’s failure to respond to a 27 motion “may be deemed a consent to the . . . granting of the motion and the Court may 28 -2- 1 dispose of the motion summarily.” LRCiv 7.2(i). This Circuit has made clear that “[p]ro se 2 litigants must follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 3 814 F.2d 565, 567 (9th Cir. 1986); see Jacobsen v. Filler, 790 F.2d 1362, 1364–65 (9th Cir. 4 1986) (pro se litigants should not be treated more favorably than parties represented by 5 attorneys); United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989) (pro se litigants are 6 subject to the same good faith limitations imposed on lawyers). 7 II. Analysis 8 Plaintiff has failed to file a response to Defendants’ motion to dismiss despite being 9 warned in an order that failure would be deemed a waiver and would result in dismissal of 10 this lawsuit. Defendants contend that Plaintiff’s claim was untimely because the letter USPS 11 sent notifying Plaintiff of the relevant dates made clear that timeliness is measured by the 12 date USPS receives the claim, not the date it was mailed. (Doc. 1-1, Ex. D). It further notes 13 that Plaintiff was not denied due process regarding his petition, because his petition was 14 considered and rejected under 18 U.S.C. § 983(f) (2006). (Doc. 5 at 8). 15 Although facts alleged in the complaint must be taken as true for the purposes of a 16 motion to dismiss, Plaintiff has not responded to Defendants’s motion, and therefore has 17 conceded their argument. LRCiv 7.2(I). Plaintiff was notified that he had to respond to the 18 motion and his deadline was extended by this court. He has not responded, and his complaint 19 is summarily dismissed. 20 IT IS THEREFORE ORDERED: 21 1. 22 Defendant’s Motion to Dismiss (Doc. 5) and Motion for Entry of Judgment (Doc. 7) are granted. 23 2. The Clerk of Court is directed to terminate this action. 24 DATED this 17th day of April, 2012. 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?