Nelson v. Pearl River County Sheriff's Department et al
MEMORANDUM OPINION AND ORDER granting 8 Motion to Dismiss; granting 10 Motion to Dismiss; granting 13 Motion to Dismiss; granting 14 Motion to Dismiss; granting 16 Motion to Dismiss; and adopting Report and Recommendations re 20 Report and Recommendations as the opinion of this Court. This lawsuit is dismissed with prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 7/16/15 (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
OMAR L. NELSON
CAUSE NO. 1:14CV374-LG-RHW
PEARL RIVER COUNTY
SHERIFF’S DEPARTMENT, et al.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT
AND RECOMMENDATION AND GRANTING MOTIONS TO DISMISS
BEFORE THE COURT is the Report and Recommendation  entered by
United States Magistrate Judge Robert H. Walker, which recommends that the
Motion to Dismiss  filed by Lauren Barnes Harless, the Motion to Dismiss 
filed by A. Morris Sweatt, the Motion to Dismiss  filed by the Pearl River
County Sheriff’s Department, the Motion to Dismiss  filed by Judge Prentiss G.
Harrell, and the Motion to Dismiss  filed by David Allison, Justin Farmer, Joe
Garcia, Van Giadrosich, and Donnie Saucier should be granted. The plaintiff Omar
Nelson filed a notice of appeal, which this Court has construed as an objection to
the Report and Recommendation. After reviewing the submissions of the parties,
the record in this matter, and the applicable law, the Court finds that the Report
and Recommendation should be adopted as the opinion of this Court and the
Motions to Dismiss filed by all of the defendants should be granted. Nelson’s
Complaint is therefore dismissed with prejudice.
On March 2, 2011, Nelson was charged in federal court with conspiracy to
possess drugs and with possession with intent to distribute drugs following a joint
investigation of the United States Drug Enforcement Agency and the Pearl River
County Sheriff’s Department. United States v. Nelson, No. 1:11cr27-HSO-RHW-2;
see also Nelson v. State, 147 So. 3d 401, 401 (¶1) (Miss. Ct. App. 2014). On August
1, 2011, Nelson pled guilty to the possession charge, and on October 3, 2011, he was
sentenced to serve sixty months imprisonment and three years of supervised
On March 25, 2011, the Pearl River County Sheriff’s Department filed a
petition in the Circuit Court of Pearl River County, Mississippi, seeking forfeiture of
several items that had been seized from Nelson during the joint investigation.
Nelson, 147 So. 3d at 401 (¶2). Nelson was served with process on June 22, 2011,
but he failed to respond to the petition. Id. The circuit court entered a default
judgment on August 16, 2011, declaring that the Pearl River County Sheriff’s
Department and the Fifteenth Circuit Court District Attorney’s Office were owners
of the property. Id. at 401-02 (¶3). Nelson filed a petition seeking return of his
property on April 29, 2013, but the Circuit Court dismissed the petition as
untimely. Id. at 402 (¶4). Nelson filed an appeal, but the Mississippi Court of
Appeals affirmed the circuit court’s determination that Nelson’s petition was
untimely. Id. at 402 (¶4, ¶6).
Nelson filed the present Section 1983 lawsuit on September 30, 2014,
asserting that the forfeiture of his property constituted a violation of the Double
Jeopardy Clause of the Fifth Amendment. He has sued the Pearl River County
Sheriff’s Department, Sheriff David Allison, and the following officers: Donnie
Saucier, Justin Farmer, Joe Garcia, and Van Giadrosich. He has also sued two
assistant district attorneys – Morris Sweatt and Lauren Harless – and Circuit
Judge Prentiss Harrell. All of the defendants have filed Motions to Dismiss, and
Judge Walker has recommended that all of the Motions should be granted. Judge
Walker found that: (1) the Pearl River Sheriff’s Department is not an entity
amenable to a lawsuit; (2) Nelson’s claims are barred by the Rooker-Feldman
doctrine; (3) ADAs Harless and Sweatt are entitled to prosecutorial immunity; (4)
Judge Harrell is entitled to absolute judicial immunity; (5) ADAs Harless and
Sweatt and Judge Harrell are entitled to Eleventh Amendment immunity; and (5)
the forfeiture of Nelson’s property did not violate the Double Jeopardy Clause.
Nelson has filed an objection, arguing that the defendants’ Motions to Dismiss
should not be granted, because the forfeiture of his property violated the Fifth
Amendment prohibition of double jeopardy. Nelson did not object to the remainder
of Judge Walker’s recommendations.
Nelson relies on the following cases in support of his argument that the
forfeiture of his property violated the Double Jeopardy Clause of the Fifth
Amendment: Helvering v. Mitchell, 303 U.S. 391 (1938); United States v. Halper,
490 U.S. 435 (1989); Department of Revenue of Montana v. Kurth Ranch, 511 U.S.
767 (1994); United States v. Ursery, 518 U.S. 267 (1996); and United States v.
Arreola-Ramos, 60 F.3d 188 (5th Cir. 1995). The Double Jeopardy Clause provides:
“[N]or shall any person be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. 5. “The Clause serves the function of preventing
both ‘successive punishments and successive prosecutions’” for the same offense.
Ursery, 518 U.S. at 273 (quoting United States v. Dixon, 509 U.S. 688, 696 (1993)).
In Helvering, the first case relied upon by Nelson, the Supreme Court
explained that “Congress may impose both a criminal and a civil sanction in respect
to the same act or omission; for the Double Jeopardy Clause prohibits merely
punishing twice, or attempting a second time to punish criminally, for the same
offense.” Helvering, 303 U.S. at 399. Since a fifty percent addition for tax
deficiencies due to fraud was a civil sanction, imposition of the addition after the
taxpayer was acquitted on related criminal charges did not violate the Double
Jeopardy Clause of the Fifth Amendment. Id. at 405-06.
The Halper decision established that there are circumstances in which a civil
penalty may constitute “punishment” for the purposes of double jeopardy analysis.
Halper, 511 U.S. at 436. The Court held that “a defendant who already has been
punished in a criminal prosecution may not be subjected to an additional civil
sanction to the extent that the second sanction may not fairly be characterized as
remedial, but only as a deterrent or retribution.” Id. at 448-49. The Court held:
Where a defendant previously has sustained a criminal penalty and
the civil penalty sought in the subsequent proceeding bears no rational
relation to the goal of compensating the Government for its loss, but
rather appears to qualify as “punishment” in the plain meaning of the
word, then the defendant is entitled to an accounting of the
Government’s damages and costs to determine if the penalty sought in
fact constitutes a second punishment.
Id. at 449. In Kurth Ranch, the Supreme Court held that a tax imposed on the
possession and storage of dangerous drugs constituted “punishment” for the
purpose of double jeopardy analysis. Kurth Ranch, 511 U.S. at 783-84.
In Arreola-Ramos, the Fifth Circuit held that a summary forfeiture did not
violate the Double Jeopardy Clause, because the plaintiff had never made an
appearance in the forfeiture case. Arreola-Ramos, 60 F.3d at 192-93. “In summary
forfeiture proceedings,” the court reasoned, “there is no trial, there are no parties,
and no one is punished.” Id. at 193.
The Ursery decision described the history of the Supreme Court’s treatment
of in rem forfeiture proceedings in challenges brought pursuant to the Double
Jeopardy Clause. Ursery, 518 U.S. at 274-78. The Court reached the conclusion
that “[i]n rem civil forfeiture is a remedial civil sanction, distinct from potentially
punitive in personam civil penalties such as fines, and does not constitute a
punishment under the Double Jeopardy Clause.” Id. at 278. The Court reversed
the lower court’s determination that Halper, Kurth Ranch, and other decisions
overruled the Supreme Court’s previous cases holding that civil forfeiture does not
implicate the Double Jeopardy Clause. Id. at 282.
The Court noted that the holding in Halper was limited to civil penalties and
did not apply to civil forfeiture proceedings. Id. at 282-83. “While a ‘civil action to
recover . . . penaltie[s], is punitive in character,’ and much like a criminal
proceeding in that ‘[i]t is the wrongdoer in person who is proceeded against . . . and
punished,’ in an in rem forfeiture proceeding, ‘it is the property which is proceeded
against, and by resort to a legal fiction, held guilty and condemned.’” Id. at 283
(quoting Various Items of Personal Prop. v. United States, 282 U.S. 577, 580-81
(1931)). The Kurth Ranch decision was likewise held to be inapplicable to forfeiture
proceedings, because it concerned a tax proceeding. Id. at 288. The Court stated
that “nothing in Halper [or] Kurth Ranch . . . purported to replace our traditional
understanding that civil forfeiture does not constitute punishment for the purpose
of the Double Jeopardy Clause.” Id. at 287.
The Ursery Court held that a two-part inquiry should be utilized in order to
determine whether a forfeiture constitutes “punishment.” Id. at 288. First, courts
must determine whether the legislature intended the forfeiture proceeding at issue
to be criminal or civil. Id. Second, courts must “consider whether the proceedings
are so punitive in fact as to ‘persuade us that the forfeiture proceeding[s] may not
legitimately be viewed as civil in nature,’ despite the legislature’s intent.” Id.
(quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 366 (1984)).
After analyzing the forfeiture statutes, the Court held that forfeitures accomplished
pursuant to those statutes did not constitute “punishment” under the Double
Jeopardy Clause. Id. at 292.
Nelson’s property was forfeited pursuant to Miss. Code Ann. § 41-29-176 et
Construing this statute in a manner consistent with constitutionality,
the forfeitures that occur through the procedures outlined are civil in
nature and not criminal. The forfeitures proceed against the seized
property and not against the person. There is no mention in the
outlined administrative process of a criminal action or conviction being
a prerequisite to forfeiture. The forfeitures provided for in §§ 41-29176 through 41-29-181 are against the property and not as a penalty
upon conviction. A person is not necessary to a forfeiture proceeding
under the statutes . . . .
State ex rel. Miss. Bureau of Narcotics v. Lincoln Cnty., 605 So. 2d 802, 804 (Miss.
1992) (emphasis added). Thus, the Mississippi Supreme Court has held that the
forfeiture procedure at issue is unequivocally civil in nature. See id. Judge Walker
correctly determined that the forfeiture of Nelson’s property did not violate the
Double Jeopardy Clause. The cases cited by Nelson in his objection actually
support Judge Walker’s determination.
The Court further finds that Judge Walker’s alternative reasons for
dismissal, including the Rooker-Feldman doctrine and immunity, are neither clearly
erroneous nor contrary to law. The Court is not required to conduct a de novo
review of these findings, because Nelson did not object to them. See 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made.”); see also Douglass v. United Serv. Auto Ass’n, 79 F.3d 1415, 1420 (5th Cir.
For the foregoing reasons, the Court finds that Judge Walker’s Report and
Recommendation should be adopted as the opinion of this Court, and the Motions to
Dismiss filed by the parties should be granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Report and
Recommendation  entered by United States Magistrate Judge Robert H. Walker
is ADOPTED as the opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that Motion to Dismiss
 filed by Lauren Barnes Harless, the Motion to Dismiss  filed by A. Morris
Sweatt, the Motion to Dismiss  filed by the Pearl River County Sheriff’s
Department, the Motion to Dismiss  filed by Judge Prentiss G. Harrell, the
Motion to Dismiss  filed by David Allison, Justin Farmer, Joe Garcia, Van
Giadrosich, and Donnie Saucier are GRANTED. This lawsuit is hereby
DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED this the 16th day of July, 2015.
Louis Guirola, Jr.
Louis Guirola, Jr.
Chief United States District Judge
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