Rooks v. Drug Enforcement Administration et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 4 for leave to proceed in forma pauperis is granted. This matter is dismissed due to plaintiff's failure to commence this matter within the limitation period. Signed by Senior District Judge Sam A. Crow on 7/25/2013. (Mailed to pro se party Christopher Shawn Rooks by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRISTOPHER SHAWN ROOKS,
Plaintiff,
v.

CASE NO. 13-3054-SAC

DRUG ENFORCEMENT ADMINISTRATION and
UNITED STATES MARSHALS SERVICE,
Defendants.

MEMORANDUM AND ORDER
This

matter

is

a

civil

action

filed

pursuant

to

the

Administrative Procedure Act (APA), 5 U.S.C. § 702, by a prisoner in
federal custody. Plaintiff has submitted the initial partial filing
as directed by the court, and his motion to proceed in forma pauperis
is granted.1
The plaintiff’s complaint and attachments show that plaintiff
challenges the civil forfeiture of approximately $96,000.00 that
occurred in 1993. By its order of May 2, 2013, the court directed
plaintiff to show cause why this matter should not be dismissed due
to his failure to challenge that forfeiture within the applicable
six-year limitation period. See 28 U.S.C. § 2401.
In response, plaintiff states that he was represented by counsel
at the time the forfeiture proceedings commenced and that his counsel
later was disbarred. Plaintiff asserts that he became aware of the
facts surrounding counsel’s disbarment in March 2001, and he did not
pursue relief from the forfeiture at that time due to a lack of

1

Plaintiff will be required to pay the balance of the $350.00 filing fee in
installments calculated pursuant to 28 U.S.C. § 1915(b)(2).

financial resources. He says he was advised in 2009 by an inmate
paralegal that the forfeiture was illegal. He commenced this action
in March 2013.
Analysis
A claim under the APA accrues when a plaintiff knows or reasonably
should know of the injury that forms the basis of the claim. See United
States v. Minor, 228 F.3d 352, 359 (4th Cir. 2000)(in suit seeking
return of funds forfeited by Drug Enforcement Administration, “[t]he
accrual date is the date on which [claimant] was on reasonable inquiry
notice of the forfeiture…the earlier of the following: when he first
became aware that the government had declared the currency forfeited,
or when an inquiry that he could reasonably have been expected to make
would have made him aware of the forfeiture”) and United States v.
Rodriguez-Aguirre, 264 F.3d 1195, 1211 (10th Cir. 2001)(adopting rule
in Minor in action seeking return of forfeited property).
Here, plaintiff clearly was aware of the forfeiture in 1993. The
record shows counsel for plaintiff pursued a petition for remission
and notified plaintiff in writing of the denial of that request in
correspondence dated September 30, 1993 (Doc. 3, Attach., p.9). The
letter

notified

plaintiff

there

was

a

10-day

period

to

seek

reconsideration and directed plaintiff to advise counsel immediately
if he wished to pursue that review. Id.
While there is no statutory tolling provision in the APA,
equitable tolling considerations apply.

A party seeking equitable

tolling must establish “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his
way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
While plaintiff appears to seek equitable tolling of the

limitation period based upon the disciplinary action against his
counsel in 1996 (see id., p. 11), which plaintiff learned of in 2001,
neither that disciplinary action nor plaintiff’s lack of financial
resources is sufficient to warrant equitable tolling. The record does
not support a diligent pursuit of his rights by plaintiff, given his
knowledge

of

the

forfeiture

in

1993,

nor

show

extraordinary

circumstances. In sum, the court finds no basis to excuse plaintiff’s
failure to comply with the limitation period.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 4) is granted. Collection
action shall continue pursuant to 28 U.S.C. § 1915(b)(2) until
plaintiff satisfies the balance of the $350.00 filing fee.
IT IS FURTHER ORDERED this matter is dismissed due to plaintiff’s
failure to commence this matter within the limitation period.
Copies of this order shall be transmitted to the plaintiff and
to the finance office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 25th day of July, 2013, at Topeka, Kansas.

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