Rooks v. Drug Enforcement Administration et al

Filing 2

MEMORANDUM AND ORDER. Plaintiff is granted to and including 6/3/2013 to submit the $350 filing fee or a motion for leave to proceed in forma pauperis. Plaintiff is further ordered to show cause why this matter should not be dismissed due to plaintiff's failure to timely file this action. Signed by District Judge Sam A. Crow on 5/2/2013. (Mailed to pro se party Christopher Shawn Rooks by regular mail.) (bt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRISTOPHER SHAWN ROOKS,
Plaintiff,
v.

CASE NO. 13-3054-SAC

DRUG ENFORCEMENT ADMINISTRATION,
et al.,
Defendants.

MEMORANDUM AND ORDER

This

matter

is

a

civil

action

filed

pursuant

to

the

Administrative Procedure Act (APA) by a prisoner in federal custody.
Plaintiff proceeds pro se. Because plaintiff has submitted neither
the $350.00 filing fee nor a motion to proceed in forma pauperis, the
court will direct him to supplement the record.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the

complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558.
Pleadings filed by a pro se litigant must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court need not
accept “[t]hreadbare recitals of the elements of a cause action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, ___, 129 S.Ct. 1937, 1949 (2009).
Plaintiff, a prisoner at the Federal Correctional Institution,
Terre Haute, Indiana, claims the defendants, the United States Drug
Enforcement Administration (DEA) and the United States Marshals
Service (USMS) in Topeka Kansas, conspired to unlawfully defraud him
of approximately $96,000.00 in cash.
The complaint shows the seizure of these funds occurred in April
1993 in Salina, Kansas, by the Kansas Highway Patrol. Plaintiff was
held in the Saline County Jail from September to November 1993, when
he was placed in the custody of the USMS in Wichita, Kansas.
Attachments to the complaint show that the DEA received the
currency in May 1993 (Doc. 1, Att., pp. 21-23), and that the agency
issued a Notice of Seizure on June 21, 1993, concerning the currency
seized and showing a date of first publication as June 30, 1993 (id.,
p. 24). The Notice of Seizure attached to the complaint is addressed
to Kirk Underwood at an address in Chattanooga, Tennessee. However,
the material supplied by the plaintiff also includes a copy of a
certified mail envelope sent to plaintiff and returned with the
hand-written note “moved left no address” (id., p. 27), and shows that
plaintiff filed a petition for remission or mitigation of forfeiture

(id., pp. 29-32). The DEA denied that request in correspondence dated
September 13, 1993 (id., pp. 33-35).
This matter challenges a civil forfeiture of property. Plaintiff
proceeds under the APA 1 , which authorizes review of “final agency
action,” 5 U.S.C. § 704, and provides a statute of limitations of six
years from the time the right of action accrues. 28 U.S.C. § 2401(a).
A timely filing is a condition to the waiver of sovereign immunity
under the APA, and a district court lacks jurisdiction if a plaintiff
fails to comply with the timing requirement. In re Franklin Savings
Corp., 385 F.3d 1279, 1287 (10th Cir. 2004).
The record shows the declaration of forfeiture is dated September
10, 1993, and the plaintiff was notified by certified mail dated
September 13, 1993, that the petition for remission or mitigation was
denied (id., p. 28). It is apparent that plaintiff did not bring the
present action until nearly 20 years after the forfeiture, a point
long after the six-year limitation period had run. Accordingly, the
court notifies plaintiff that it is considering the dismissal of this
action for lack of jurisdiction as it is not timely.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including June 3, 2013, to submit the $350.00 filing fee or a motion
for leave to proceed in forma pauperis to the clerk of the court.
IT IS FURTHER ORDERED that plaintiff is directed to show cause

1

Currency and other assets traceable to drug trafficking are subject
to forfeiture by the federal government by a civil action. 18 U.S.C.
§ 981. The Civil Asset Reform Act of 2000 (CAFRA) establishes exclusive
procedures for forfeiture actions commenced after August 23, 2000.
18 U.S.C. § 983. The forfeiture action in this matter predates the
CAFRA.

on or before June 3, 2013, to show cause why this matter should not
be dismissed due to plaintiff’s failure to timely file this action.
The failure to file a timely response may result in the dismissal of
this matter without additional prior notice.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 2d day of May, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge