English v. FBI et al

Filing 8

MEMORANDUM AND ORDER regarding Complaint 1 filed by Kennisha English. After initial review:1. The plaintiff's claims under the Federal Tort Claims Act are dismissed without prejudice.2. The plaintiff's motion for immediate return of the vehicle (filing 6 ) is denied without prejudice.3. The plaintiff shall have until September 12, 2014 to file an amended complaint in accordance with this Memorandum and Order. Failure to file an amended complaint will result in dis missal of this matter without further notice.4. The clerk's office is directed to set a case management deadline in this matter: September 15, 2014: Check for amended complaint. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNISHA ENGLISH,
Plaintiff,
vs.

8:14-CV-111
MEMORANDUM AND ORDER

FBI and US MARSHALL,
Defendants.
This matter is before the Court on the complaint filed by the plaintiff,
Kennisha English. The Court now conducts an initial review of the Complaint
to determine whether dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2)
and 1915A, or whether this matter should proceed to service of process.
SUMMARY OF COMPLAINT
The plaintiff asserts her 2000 GMC Sierra Pickup was improperly
seized while her brother, Eric English, was in possession of the vehicle. At
the time Eric English was wanted as a fugitive, and federal law enforcement
assisted with his apprehension. The vehicle was seized by the Federal
Bureau of Investigation for forfeiture based on alleged violations of the
Controlled Substances Act. Filing 1 at 4; see also 21 U.S.C. § 881.
The plaintiff was informed of the seizure in a letter dated July 16,
2013. Filing 1 at 4. The letter informed the plaintiff she could contest the
forfeiture in court by filing a claim of ownership with the FBI by August 20,
2013, and explained the procedures for doing so. The letter also informed the
plaintiff that "[i]n addition to or in lieu of filing a claim" she could request a
pardon of the forfeited property. Filing 1 at 5. The letter instructed her to
submit a "petition for remission or mitigation of the forfeiture" and to provide
"proof that [she was] a victim of the offense underlying the pending
forfeiture . . . and the facts and circumstances . . . justify[ing] a return of the
property." Filing 1 at 5.
In response, the plaintiff lodged a petition for remission or mitigation of
forfeiture with the FBI. Filing 1 at 10. Her petition was denied on February
10, 2014. Filing 1 at 7. The plaintiff was provided 10 days in which to file a
request for reconsideration. The plaintiff asked for reconsideration. Filing 1
at 9. Her request for reconsideration was undated. The Court is not aware of
any further communication between the plaintiff and the FBI. Instead, the

plaintiff filed her complaint in this Court and a separate motion requesting
"immediate delivery of the vehicle in question." Filing 6.
APPLICABLE LEGAL STANDARD
The Court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. See § 1915(e)(2). The
Court must dismiss a complaint or any portion thereof that states a frivolous
or malicious claim, that fails to state a claim upon which relief may be
granted, or that seeks monetary relief from a defendant who is immune from
such relief. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to "nudge[]
their claims across the line from conceivable to plausible," or "their complaint
must be dismissed" for failing to state a claim upon which relief can be
granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged").
Regardless of whether a plaintiff is represented or is appearing pro se, the
plaintiff's complaint must allege specific facts sufficient to state a claim. See
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se
plaintiff's allegations must be construed liberally. Burke v. North Dakota
Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002).
DISCUSSION OF CLAIMS
The plaintiff's complaint is captioned as a cause of action under the
Federal Tort Claims Act ("FTCA"). Filing 1. However, she makes clear in the
body of the complaint and in her subsequent filing that she is seeking judicial
review of the FBI's administrative decision and is asking the Court to order
the return of her vehicle. See, filing 1 at 4; filing 6 at 1.
FEDERAL TORT CLAIMS ACT
The plaintiff brings her claim under the Federal Tort Claims Act
seeking the return of her pickup. Under 28 U.S.C. § 2674, the United States
has waived its right to sovereign immunity for certain tort claims. However,
excluded from this waiver are any claims "arising in respect of . . . the
detention of any goods, merchandise, or other property by . . . any other law
enforcement officer. 28 U.S.C. § 2680(c). This has been interpreted broadly to
include the seizure of property by any law enforcement officer. See Ali v.
Federal Bureau of Prisons, 552 U.S. 214, 220-21 (2008). The FBI has
immunity from suits under the FTCA relating to its seizure of property and
the plaintiff's complaint does not state a cause of action for which relief can

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be granted under the FTCA. See, e.g., Lippman v. City of Miami, 622 F. Supp.
2d 1337, 1344 (S.D. Fla. 2008); Hallock v. United States, 253 F. Supp. 2d 361,
366-67 (N.D.N.Y. 2003).
The FTCA does permit claims based on injury or loss of property seized
for forfeiture to proceed under certain limited conditions. See § 2680(c)(1-4).
But that "exception to the exception" only applies if
(1)

(2)
(3)
(4)

the property was seized for the purpose of forfeiture under
any provision of Federal law providing for the forfeiture of
property other than as a sentence imposed upon conviction
of a criminal offense;
the interest of the claimant was not forfeited;
the interest of the claimant was not remitted or mitigated
(if the property was subject to forfeiture); and
the claimant was not convicted of a crime for which the
interest of the claimant in the property was subject to
forfeiture under a Federal criminal forfeiture law.

Id. And in this case, at least one of those conditions is not satisfied: the
interest of the claimant clearly was forfeited. See, e.g., Himex Co. v. United
States, ___ F. Supp. 2d ___, 2014 WL 658063, at *2 (D.D.C. Feb. 20, 2014);
Akeem v. United States, 854 F. Supp. 2d 289, 296 (E.D.N.Y. 2012); Wynn v.
Missouri Highway Patrol, 2006 WL 1875411, at *2 n.1 (W.D. Mo. June 30,
2006). The provisions of § 2680(c)(1-4) provide a means to recovery for
claimants whose property was lost or damaged after it was wrongfully taken,
but not actually forfeited. See id. Because the plaintiff's truck was actually
forfeited, the plaintiff is limited to challenging that forfeiture through the
legal avenues provided by law for challenging such a forfeiture. And it is to
those avenues that the Court now turns.
REVIEW OF FORFEITURE
The plaintiff's complaint and subsequent motion indicate she is also
contesting the FBI's determination of forfeiture. Non-judicial civil forfeiture
proceedings are governed by 18 U.S.C. § 983. Once an individual has elected
to pursue the claim administratively, the forfeiture of property cannot be
collaterally attacked in federal court. See In re U.S. Currency, $844,520.00,
136 F.3d 581 (8th Cir. 1998). When the claimant's administrative claim has
failed, the Court cannot review the merits of the decision. United States v.
One 1973 Buick Riviera Automobile, 560 F.2d 897, 901 (8th Cir. 1977).
Once an administrative proceeding has reached its conclusion, district
courts retain jurisdiction only to determine compliance with due process or

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procedural requirements. See United States v. Woodall, 12 F.3d 791, 793 (8th
Cir. 1993). That is, the Court may only review whether the agency followed
the proper procedural safeguards in forfeiting the property in question and
did not violate the claimant's due right to procedural due process. Mesa
Valderrama v. United States, 417 F.3d 1189, 1196 (11th Cir. 2005).
In this case, the plaintiff elected to pursue her claim through the
administrative process set forth by the FBI. She has not presented evidence
that she attempted to "contest the forfeiture" as defined by the July 16, 2013
letter she received from the FBI. That is, the notice from the FBI set forth the
requirements for contesting the forfeiture in court. Filing 1 at 4; see also §
983(a)(2). Any claim was to be made under oath and state that it was made
under penalty of perjury. See id. The letter also expressly stated:
If you wish to contest the forfeiture of the asset, you must
comply with the procedures set forth herein. Failure to do
so will waive your right to contest the forfeiture of the
asset in this proceeding and any judicial proceeding –
either civil or criminal – even if such a proceeding has
already been commenced or is commenced in the future.
Filing 1 at 4 (emphasis in original); see also § 983(a)(2).
Instead, the plaintiff submitted a document she clearly labeled as a
"Petition for Remission or mitigation of the forfeiture to FBI." Filing 1 at 10.
A petition for remission or mitigation of the forfeiture "does not serve to
contest the forfeiture, but rather is a request for an executive pardon of the
property." United States v. Vega, 72 F.3d 507, 514 (7th Cir. 1995) (internal
citations omitted); see also Ibarra v. U.S., 120 F.3d 472, 475 (4th Cir. 1997).
The response from the FBI informed her that her submission was treated as
a "petition for remission of forfeiture," and she has not alleged that she
disagreed with that characterization or meant her initial letter a forfeiture
contest (which it clearly was not). Filing 1 at 7. Simply put, a petition for
remission or mitigation of a forfeiture is not subject to judicial review on the
merits, but only to ensure the FBI complied with statutory and procedural
requirements. U.S. v. Shigemura, 664 F.3d 310, 312 (10th Cir. 2011); Yskamp
v. Drug Enforcement Admin., 163 F.3d 767, 770 (3d Cir. 1998); Martin v.
Leonhart, 717 F. Supp. 2d 92, 99-100 (D.D.C. 2010); Kiefer v. U.S. Dept. of
Justice, 687 F. Supp. 1363, 1366 (D. Minn. 1988).
The plaintiff's complaint does not identify any alleged procedural due
process infringements in the administrative process. Instead, she claims that
she did not know about her brother's misconduct, and that he has not been
charged with a federal crime. Filing 1. These are clearly challenges to the

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merits of the forfeiture—and as explained above, the Court cannot review the
correctness of that decision. Accordingly, based on the record before the
Court, the plaintiff has not stated a cause of action for which relief can be
granted.
However, the plaintiff will be allowed 30 days in which to amend her
complaint and attempt to state a claim for relief. To do so, the plaintiff will
need to allege, for example, that she actually did file a separate claim under
oath and penalty of perjury pursuant to § 983(a)(2), but that the
administrative agency failed to file a complaint for forfeiture in response.
(That is, that she filed a claim challenging the forfeiture other than the
petition for remission or mitigation that is already in the record.) Or, the
plaintiff could allege facts showing that she was somehow denied procedural
due process. Should she fail to do so, however, her complaint will be
dismissed for failure to state a claim.
IT IS ORDERED:
1.

The plaintiff's claims under the Federal Tort Claims Act
are dismissed without prejudice.

2.

The plaintiff's motion for immediate return of the vehicle
(filing 6) is denied without prejudice.

3.

The plaintiff shall have until September 12, 2014 to file an
amended complaint in accordance with this Memorandum
and Order. Failure to file an amended complaint will result
in dismissal of this matter without further notice.

4.

The clerk's office is directed to set a case management
deadline in this matter: September 15, 2014: Check for
amended complaint.

Dated this 13th day of August, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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