Mosby v. United States

Filing 58

ORDER denying 31 Motion for Summary Judgment; granting 33 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; denying 43 Motion for Entry of Default; denying 46 Motion for Summary Judgment; denying 56 Motion fo r Judgment; denying as moot 25 Motion to Consolidate Cases; and denying 26 Motion for Summary Judgment Signed by Chief Judge Terrence W. Boyle on 11/2/2020. Copy sent via US Mail to Christopher Mosby at Morrison Correctional Institution P.O. Box 169, Hoffman, NC 28347. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:17-CV-00253-BO

CHRISTOPHER MOSBY,
Plaintiff,
v.
UNITED STATES,
Defendant.

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ORDER
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This cause is before the court on plaintiffs pending motions [D.E. 25, 26, 31, 43,46, 56],
· and defendant's pending motion to dismiss [D.E. 33]. For the reasons discussed below, the court
· denies plaintiffs various motions and grants defendant's motion to dismiss.
Procedural History:
Christopher Mosby ("plaintiff'), a state inmate proceeding pro se and without prepayment
· of fees, contests a U.S. Drug Enforcement Agency ("DEA") forfeiture of United States Currency. 1
[D.E. 1, 7, 18]. This case stems from a related case where the court: noted forfeiture proceedings
were initiated against plaintiff on August 29, 2012; directed the clerk to open this action as a motion
to set aside a forfeiture under 18 U.S.C. § 983(e) with plaintiffs motions for the return of property
serving as the complaint; and assigned an effective filing date of April 20, 2017. See Mosby v. Hunt.
et al., No. 5:16-HC-02136-BO (E.D.N.C. June 5, 2018), Order [D.E. 18]. On February 22, 2019,
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the court granted plaintiffs motion to amend, conducted its initial review ofthe amended complaint, .

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Plaintiffraised prior claims regarding this seizure and forfeiture. See Mosby v. Sykes, No. 5: 15-CT-3202-BO, ·
.·2017 WL 4102487, at *2-3 (E.D.N.C. Feb. 23, 2017) (noting DEA seized money under 21 U.S.C. § 881 and fmding
thecomplaintunder28U.S.C. § 1983 failedtostateaclaim), afrd692Fed.Appx. 755 (4thCir.2017); Mosbyv; Ingram,
No.5:15-ct-03247~BO(E.D.N.C.Mar.28,2016)(denyingaWritofMandamustocompelreturnoftheforfeitedmoney).

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liberally construed plaintiffs filings as an action to set aside the forfeiture under 18 U. S.C. § 983(e),
and allowed the action to proceed. Order [D.E. 24].
On February 28, 2019, plaintiff filed a motion to consolidate cases, see Mot. [D.E. 25],2 and

[b.E. 26] ...

a motion for summary judgment together with attached documents in support, see Mot.

On April 30, 2019, plaintiff filed another motion for summary judgement withahached
documents in support. See Mot. [D.E. 31].
On May 7, 2019, defendant filed a motion to dismiss under Federal Rules of Civil Procedure
. Rules 12(b)(l) and 12(b)(6), Mot. [D.E. 33], a memorandum in support [D.E. 34], a statement ~f .. ·
material facts [D.E. 35], and a declaration with attachments [D.E, 36]. Pursuant to Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified plaintiff about the .
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motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 37].
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On May 30, 2019, plaintiff filed a response in opposition to defendant's motion to dismiss
[D.E. 38]. On June 25, 2019, defendant filed a reply [D.E. 41]. 3
On August 14, 2019, plaintiff filed a motion seeking entry of default. Mot. [D.E. 43].
On November 21, 2019, plaintiff filed a motion for summary judgment, Mot. [D.E. 46], a
declaration [D .E. 4 7], and a statement ofmaterial facts [D .E.48]. On November 26, 2019, defendant
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filed a response in opposition [D.E. 49]. On December 13, 2019, plaintiff filed a reply [D.E. 50].
On October 7, 2020, plaintiff filed a motion for judgment on the pleadings [D.E: 56]. 4

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Because the case which plaintiff sought to consolidate with this action was dismissed, ~ Order [D.E. 9],
Mosby v. State ofNorth Carolina, No. 5:19-hc-02006-D (E.D.N.C. Sept. 19, 2019), this motion to consoli(Jl:lte is moot.
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Plaintiff's sur-reply, [D.E. 42], exceeds the scope of filings allowed under E.D.N.C. Local Civil Rule 7.1
because it was not filed in response to an order of the court. Accordingly, the court declines Jo. consider,this,filing. , ··.
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Plaintiff also filed documents e~titled '.'LEGAL NOTICE! )TAME DECLARATION CORRECTION
PROCLAMATION AND PUBLICATION [sic]," [D.E. 51], and "WrifofQuo WarrantoforDismissal [sic]," [D.E. 53].
These filings lack merit.

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Background:
According to a DEA investigation report, on August 7, 2012, a confidential source informed
law enforcement that plaintiffwould shortly be traveling from Leland, North Carolina, to New Jersey

in a2012 Toyota rental vehicle with Virginia license plates in possession of severalth~Ji~i&ollars ' .
of bulk U.S. currency in order to purchase· a large amount ofheroin. 5 See Pl. '.s Attacl/[If¾~ 31-3] ·..· ·.
at 12, 111-2. After setting up surveillance, id. at 12, 13, at approximately 2:20 a.m. on August 8,
2012, Brunswick County Sheriffs Department K-9 Deputy Carlisle initiated a traffic;~top;on the ..
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. 2012 Toyota rental vehicle with Virginia plates in which plaintiff was a passenger, ic(

a{is, 122:

.· The narcotics detection K-9 alerted to the trunk of the vehicle. Id. at 16, 1126-27.
During an ensuing search of the trunk, officers found a black duffle bag containing four
bundles of U.S. Currency wrapped in rubber bands, totaling $18,000, and an additional $507 on
plaintiffs person. Id. Plaintiff was detained in handcuffs. Id. at 127. According to Deputy Carlisle,
plaintiff "immediately claimed ownership to the currency." Id. at 128. Plaintiff stated: his mother
brought the money from Pennsylvania to purchase a residence in Winnabow, North Carolina; she
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decided not to make the purchase and instead returned to work; she left the currency with plaintiff
in a paper bag; and, when the currency became wet, plaintiff wrapped it in rubber bands. Id.
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TFO Lanier arrived at the scene with other officers, was informed about the vehicle stop, and
"secured all the U.S. Currency ... in a self sealing evidence bag ... as witnessed by TFO Chris
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Bradley." Id. at 129. TFO Lanier then separated plaintiff from Sidney Franklin, the driver_ of the
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vehicle, and advised plaintiff of his Miranda rights. Id. at 16-17, 13 0. TFO Lanier noted plaintiffs
statements that: the currency belonged to his mother, Gwynn Pearshall; plaintiffs mother "came
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The law enforcement officer who received this informati9~, Stephen Lanier ("L~fer,"), Wi!lS, ~?th,a,}:3,iw,isw,ick
. County Deputy Sheriff and DEA task force officer ("TFO") with the Wilmington DEA Residence Office (1
'WR0"). PL's
Attach., Lanier Aff. [D.E. 31-3] at 8-9, ,r,rt-2.
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down from Allentown, Pennsylvania, and withdrew $18,000.00 from a bank the week pri~/ to the
traffic stop; plaintiffs mother did not purchase the residence but instead "returned home to work"
and left the currency with plaintiff; that plaintiff was not currently employed and currencyfound on
his person "came from the Lottery." Id. When TFO Lanier asked plaintiff why his m,9th~f.did.not.,
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. deposit her money back in the bank, plaintiff stated, "She bafil\s at the Credit Union an4 th,~y don't .
take deposits." Id. Plaintiff "denied any and all affiliation with illegal drugs and could not give an
explanation as to the reason Deputy Carlisle's narcotics K-9 indicated on the trunk of the vehicle
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where the money was located." Id. Plaintiff provided a telephone number and a Ne\v Jersey -~ddress .
for his mother and indicated that his full-time residence was in New Jersey. Id. TFO Lanier then
transported the currency and the self sealing evidence bag to the WRO and placed these items in a
High Value Seized and Recovered Monies safe "as witnessed by TFO Nick Giacobbe."6 Id. at i[33.
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Although plaintiff was not charged with a crime on August 8, 2012, the investigation
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continued. Pl.'s Attach., Lanier Aff. [D.E. 31-3] at 9, i[3. During a traffic stop on August 16, 2012,
heroin was found in a duffle bag, plaintiff admitted the heroin was his, and he was arrested. Id.
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On August 29, 2012, the DEA transferred the seized currency to the United States Marshals
Service and civil forfeiture proceedings were initiated. Id. at i[4.
On June 18, 2015, plaintiff entered a no-contest plea in Brunswick County Superior Court
to possession with intent to manufacture, sell, or deliver heroin pursuant to the Augu~t 16, 2012,
traffic stop, and he was sentenced to a 19'."month term of incarceration. 7 Pl.'s Attach., Lanier Aff.
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TFO Lanier avers: "The seizure was part of a DEA investigation and involved Brunswick County sheiiff' s
· depu,ties assisting DEA task force officers." Pl.'s Attach., Lanier Aff. [D.E. 31-3] at 8, 12,
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Plaintiff declares his guilty plea for trafficking heroin was vacated on appeal but acknowledges his present
incarceration on unrelated charges. Pl. 's Deel. [D.E. 31-2] at 112, 9; ~ N.C. Dep't of Pub. Safety, Rff,~1;1~e~ ~ub. Info.
https://webapps.doc.state.nc.us/opi/viewofferider.do?method=view&offenderID=0468975&searchOffeiidedd=04689
7S&searchDOBRange=0&listurl=pagelistoffendersearchresults&listpage=1 (visited Oct. 9, 2020).
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· [D .E. 31-3] at 9, 13. The judgment and commitment form includes a Superior Court ord_et· dir~cting:
"any funds held by [the] state which were seized in connection with this case in the possession or
control of the sheriff shall be returned to the def[endant]." Comp1. Attach. [D .E. 1] a~ 5. :
Discussion:
1)

Plaintiffs first and second motions for summary judgment [D .E. 26, 31]

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Plaintiff filed his first motion summary judgment on February 29, 2019, Mot. [D;E:.26], and his second motion for summary judgment on April 30, 2019, Mot. [D.E. 31]. The United-States,
however, was served with the complaint on March 8, 2019, with an answer or a motion to dismiss ·pursuant to Fed. R Civ. P. 12 due within 60-days ofreceipt of service. See [D.E. '29f On"Ivfay 7,
2019, the United States timely filed a motion to dismiss. See Mot. [D.E. 33].
Here, because plaintiff filed these motions for summary judgment before defendant's answer
was due, the court DENIES these motions as premature. See,~' Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,250 n.5 (1986) (noting summary judgment must be refused "where the ·nonmoving
party has not had the opportunity to discover information that is essential to [its] opposition.").
2)

Defendant's motion to dismiss [D.E. 33]:

a)

Legal Standard:

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(l) tests subject-matter
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•jurisdiction-a court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens
· for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted). "[T]he party invoking federal
jurisdiction bears the burden of establishing its existence." Id. at 104; see also Evans v. B.F. Perkins
Co., 166 F.3d 642,647 (4th Cir. 1999) ("The plaintiff has the burden of proving that subject matter
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jurisdiction exists."). When considering a motion to dismiss for lack of subject-matter jurisdiction,
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·"[t]he district court should apply the standard applicable to a motion for summary judgment, under
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which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine
issue of material fact exists." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991) (citation omitted). The court also may consider evidencei ~1.1t~ide the
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pleadings without converting the motion into one for summary judgment. See id. (citatibn:~miitted).
A motion to dismiss under Rule 12(b)(6) tests whether the complaint is legally.andfactually . sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Giarratano v. Johnson, 52l 'F_.3d298, .·
302 (4th Cir. 2008). "To survive a motion to dismiss, the complaint's '[t]actual allegatfonsµmstbe
enough to raise a right to relief above the speculative level'-that is, the complaint ~ustcontain
'enough facts to state a claim for relief that is plausible on its face."' King v. Rubenstein, 825 F.3d
206,214 (4th Cir. 2016) (quoting Bell Atl. Coi:p. v. Twombly. 550 U.S. 544, 555, 570 (2007).
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When considering a motion to dismiss, the court need neither accept a complaint's legal
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· conclusions drawn from the facts, see Iqbal, 556 U.S. at 679, nor "accept as true unwarranted
inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation
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omitted). The. court, however, construes factual allegations in the complaint in the light most.
favorable to the non-moving party. Albrightv. Oliver, 510 U.S. 266,268 (1994); Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,255 (4th Cir. 2009). Although the court liberally
construes prose filings, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), all complaints still must contain "more than labels and
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·. conclusions," Twombly. 550 U.S. at 555.
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b)

Arguments:
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Plaintiff argues: 1) the United States lacks jurisdiction over the currency; 2) the currency was
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seized without probable cause; 3) forfeiture of the currency was not justified under 21 lJ. S. C., § 881;
·4) plaintiff was denied due process as to forfeiture of the currency; and that 5) although the currency
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·was ordered returried by a state-court ruling, these funds have not been returned. 8 See [D .E: 1]; Pl.' s
Deel. [D.E. 26-2]; Pl.'s Deel. [D.E. 31-2].
Defendant argues that the only issue properly before the court is the adequacy .of theinotice ..
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of forfeiture because, although 18 U.S.C. § 983(e) provides the "exclusive remedy" tctset~ide an . · ·
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administrative forfeiture, the court lacks jurisdiction to review the merits of the forfeiture.·.· See
Def.'s Mem. [D.E. 34] at 4. Defendant also argues plaintiffs challenge to the notice of forfeiture
fails because 1) the Government took reasonable steps to provide plaintiff direct n~tfoe,: and 2) · : ·
plaintiff had knowledge of the seizure within the meaning of18 U.S.C. § 983(e)(l)(B)i,:1d:\1tS-8.

In a declaration supporting the motion to dismiss, DEA Acting Forfeiture Counsel Merri
Hankins ("Hankins'') sets forth the notice provided during the administrative forfeiture proceeding .
. for the currency. See Def.'s Exhibit A, Hankins Deel. [D.E. 36]. Hankins declares that piaintiff,
· Sidney Franklin (the rental vehicle driver), EAN Holding, LLC (the rental vehicle's registered
owner), and Gwynn Pearsall (plaintiffs mother) all were sent direct notice. Id. at ,4. Hankins
further declares that DEA attempted to serve plaintiff at two different New Jersey ad,dresses; one
~·:;t~< :1:1rt~; :·:>.:~·attempt was returned as undeliverable, but the other was signed for by an individual accepting
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delivery on plaintiffs behalf. Id. at ,,4(b)-(c); see [D.E. 36-3] (photocopy of certified mail delivery
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of the notice of forfeiture accepted and signed for on plaintiffs behalf). DEA also published notice
in the Wall Street Journal for three consecutive weeks beginning September 24, 2012. ·· See Def.' s
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Exhibit A, Hankins Deel. [D.E. 36] at ,4(h). After no claims were received as to the seized currency,
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an administrative declaration of forfeiture was entered on January 7, 2013. Id. at 14(n).
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In his self-styled "statement o~undisputed facts [sic]," plaintiff asserts: defendant admi~ ~q p.qt gjv_41~ pl~~tiff
a receipt or notice of forfeiture; Lanier "admits to fraud of impersonating a D.E.A. agent at the time he confiscated
.plaintiffs U.S. currency [sic]"; defendant admits "there was no justification to confiscate and forfeiture as provide qnder
21 U.S.C. § 881 [sic]"; and documents prove"lackofjurisdiction" overthe'property. SeePl.'s Stmt. [D.E: 3 Ili]'af1.:.2:
Plaintiff also declares that he did not receive notice of forfeiture or "access to the court" allowing him to challenge the
forfeiture and that there was no probable cause to initiate the seizure or forfeiture. Pl:'s Deel. [DJ~. J 1:-2]at,il. :

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In his response in opposition, plaintiff argues: service on plaintiff at "the last corresponding
address [sic]" was insufficient because defendant knew or should have known that plaintiff was
incarcerated in the North Carolina since August 27, 2012; pursuant to Dusenbery v. Ufi.it~d-~tates,
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534 U.S. 161, 167 (2002) ("Dusenbery")(finding procedural due process requires that '~indi~iduals _ ·
·. whose property interests are at stake are entitled to 'notice and an opportunity to _b~ ,.~~: ..
heard'"),
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defendant should have sent plaintiff written notice in prison; and publication in the

J!all Street

Journal does not accord with the local rules of practice and procedure. See Pl.~s,~esp;'[D.E,38].
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In reply, defendant notes that the relevant test "is whether notice was 'reasonably c~i~ulated
under all the circumstances to appraise [plaintiff] ofthe pendency ofthe [administrative] forfeiture."'
Def.'s Reply [D.E. 41] at 2 (quoting Dusenbery, 534 U.S. at 168).
c)

Discussion:

Under 21 U.S.C. § 881, the Government may seek forfeiture of money or other property
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connected to a violation of drug laws. Under the Civil Asset Forfeiture Reform Act ("CAFRA"),
·"the burden of proof is on the Government to establish, by a preponderance of the evidence, that the
property is subject to forfeiture," 18 U.S.C. § 983(c)(l), and the Government must give claimants
notice of forfeiture within 90 days of the seizure, 18 U.S.C. § 983(a)(l)(A)(iv) (stating notice
requirement when state or local law enforcement seizes property and turns it over to federal law
· · enforcement for forfeiture under federal law). However, once an administrative forfeiture is entered,
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as here, the court lacks jurisdiction to consider the merits of the forfeiture. See,~' Ibarra v. United
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States, 120 F.3d 472,476 (4th Cir. 1997) (finding administrative forfeiture proceeding divests the
court of jurisdiction); United States v. Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996) ("Once the
administrative forfeiture was completed, the district court lacked jurisdiction to review the forfeiture
._ except for failure to comply with procedural requirements or to comport with due process.").
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Accordingly, the sole issue before the court is whether plaintiff received adequate notice of
the forfeiture. See 18 U.S.C. § 983(e)(l), (5); Mesa Valderrama v. United States, 417 F.3d 1189,
1196 (11th Cir. 2005) ("18 U.S.C. § 983(e) is the exclusive remedy available to persons ~hallenging
nonjudicial forfeiture actions providing relief only in instances where the injw:e~ p~)id not
receive adequate notice to challenge the proceeding"); McKinneyv. U.S. Dep't ofJ:.ti~~~CEnf'i :
Admin., 580 F. Supp. 2d 1, 3--4 (D.D.C. 2008) (quoting 18 U.S.C. § 983(e)(5) for the proposition
that the CAPRA "restricts the sovereign's consent to suit by providing that '[a] motion filed under
this subsection shall be the exclusive remedy for seeking to set aside a declaration ~f f~rfeitur~ tinder _
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•· a civil forfeiture statute,'" and finding that, "once an administrative declaration offorfeiture has been
issued under the CAPRA, the United States has unequivocally expressed its consent to be sued only
under 18 U.S.C. § 983(e)(l).").
Section 983(e)(1) provides:
(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding _
under a civil forfeiture statute who does not receive such notice may file a motion,to ~::; ·' ,
set aside a declaration of forfeiture with respect to that person's interest in the
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property, which motion shall be granted if-(A) the Government knew, or reasonably should have known, of the moving:party~i,);~,:-., l;
interest and failed to take reasonable steps to provide such party with notice; and

(B) the moving party did not know or have reason to know of the seizure within ·
sufficient time to file a timely claim.
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· · 18U.KC. § 983(e)(l).

Where the civil forfeiture does not exceed $500,000; as is the case here,;-the'. Government
must provide written notice to "each party who appears to have an interest in the seized article" and
·publish notice of the seizure and intention to forfeit the property seized "for at least three successive
weeks in such a manner as the Secretary of the Treasury may direct." 19 U.S.C.·§ 1607(~). When
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. the instant forfeiture was initiated, this notice required publication "once a week for at least 3
successive weeks in a newspaper of general circulation in the judicial district in which the processing
for forfeiture is brought." 21 C.F.R. § 1316.75(a) (2012).
Here, the record reflects that notice of forfeiture was published in the Wall Stree(;Jqurnal for
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three consecutive weeks. See De£ 's Exhibit 13 [D.E. 36-14]. Despite plaintiffs bald ;ss~rt(on that
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this newspaper publication does not accord with the local rules of practice and procedure,·.. see Pl.' s ..... _
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Resp. [D .E. 3 8], the court finds the Wall Street Journal is a newspaper in general circul~tion in_ the
Eastern District ofNorth Carolina within the meaning of21 C.F.R. § 1316.75(a) (2012).·'
As to the written notice requirement, the record reflects, _and plaintiff does not dispute, that
the Government sent written notice to plaintiffs New Jersey address, and that this notice was signed
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for on plaintiffs behalf by another individual. See Def.'s Exhibit 2 [D.E. 36-3] (photocopy of
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certified mail delivery of the notice of forfeiture to plaintiff Christopher Mosby' s address in
Springfield, New Jersey, with the following signature: "Joyce Lynn for Christopher Mosby").
Despite plaintiffs claim that notice of forfeiture was insufficient under Dusenbery because
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the Government knew or should have known plaintiff would not receive the written notice sent to
· his New Jersey address when he was incarcerated in North Carolina, actual receipt of forfeiture
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notice is not required under the CAFRA. See Jones v. Flowers, 547 U.S. 220, 226 (2006) ("Due
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process does not require that a property owner receive actual notice before the government may take
his property. Rather, we have stated that due process requires the government to provide 'notice
reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.'" (citations omitted)); see also
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· Centeno v. United States, 2006 WL 2382529, at *3 (S.D.N.Y. Aug. 17, 2006) (noting Dusenbery
rejected any requirement that the Government must prove actual receipt of forfeiture notice).

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Here, although the Government failed to mail notice of the forfeiture to plaintiff's pi~ce of
incarceration, the court finds that the Government nevertheless took "reasonable steps" to provide
plaintiff notice of the forfeiture. 18 U.S.C. § 983(e)(l)(A); see Jones, 547 U.S. at 226; Dusenbery. ..
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· 534 U.S. at 170 (noting the Government is not required to make "heroic efforts" at notice); see
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. also Weigner v. City ofNew York, 852 F.2d 646,651 (2d Cir. 1988) ("Particularly wher.~ mailing
is supplemented by other forms of notice such as posting or publication, the risk~fµon~receipt is . ·
. ..

._:,.

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constitutionally acceptable."); Harrington v. U.S. Drug EnftAgency, No. CIV.A. 05:-CV'.'~Q~:WOB,.
2006 WL 897221, at *3-5 (E.D. Ky. Apr. 6, 2006) (noting"[w]ritten notice of forfeiture by certified
mail to the claimant's residence generally satisfies due process even if the claimant does not receive
actual notice," and finding that, where notice of forfeiture was accepted by another individual at
plaintiffs then-known address, this satisfied due process); cf. United States v. Hooker, 93 F. App'x
567, 568 (4th Cir. 2004) (per curiam) (unpublished) (finding the Government failed to submit
evidence showing adequate notice of forfeiture).
,

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Alternatively, even if the written notice of forfeiture was insufficient under ·Dusenbery.
. because plaintiff was present when the currency was seized, plaintiff nevertheless fails to establish
· . that he did not know or have reason to know of the seizure within sufficient time to file a claim, as
required under 18 U.S.C. § 983(e)(l)(B). See,~' United States v. Russell, No. 2:04CR150-MHT,
2006 WL 2786883, at *3 (M.D. Ala. Sept. 27, 2006) (finding movant failed to establish "he did not
-. know or have reason to know of the seizure within sufficeint time to file a timely claim" when the
· money was seized from him); Harrington, 2006 WL 897221, *4 (E.D.Ky. Apr. 6, 2006) (finding §
983(e)(l) unsatisfied where movant knew money was seized from his pocket); Johnson v. United
States, No. 1:03-CV-00281-LJM VS, 2004 WL 2538649, at *4 (S.D. Ind. Oct. 22, 2004) (finding

·§ 983(e)(l) unsatisfied where movant was present at seizure and had months to claim an interest).
1 .: /' .l r·

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Thus, after considering the factual allegations in the light most favorable to plaintiff, the
court finds that, because plaintiff fails to satisfy both requirements of 18 U.S.C. § 983(e)(l), plaintiff
likewise fails to state a claim upon which relief can be granted, Fed. R. C1v; ·p::]i(b)(6) .
. ; ·.. -·:··'-:·

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Accordingly, the court GRANTS defendant's motion to dismiss [D.E. 33].
3)

Plaintiffs motion for entry of default [D.E. 43]:
An entry of default shall be made when "a party against whom a judgment few.affirmative
·..

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· relief is sought has failed to plead or otherwise defend." See Fed. R. Civ. P. 55(~). ·::, ))j
Plaintiff argues that default should be entered because defendants failed "to respond to
second response to summary judgment pleading which is require of20 to 30 days, which it has been
· 40:days and counting, as well as over exceeded 'the mail box rule' [sic]." Mot. [D.E. 43] at 1.
Here, defendant filed a pre-answer motion to dismiss. See Mot. [D.E. 33]. To the extent
,,

. !

.plaintiff asserts that defendant's failure to respond to his sur-reply constitutes grounds for entry of
·1)

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default, plaintiff is incorrect. As noted above in footnote 3, sur-replies and responses to sur-replies
are not permitted absent a court order directing such filings. See E.D .N. C. Local Civil Rule . .1. To
7
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·the extent plaintiff instead asserts that defendant failed to respond to plaintiffs first and second
:· :: ,!f"!it,.:,: .
motions for summary judgment, no response was necessary because, as noted above, th~se motions
were premature. Accordingly, the court DENIES the motion for entry of default [D.E. 43].
4)

Plaintiffs third motion for summary judgm~nt [D.E. ~6]: ,
Summary judgment is appropriate when, after reviewing the entire record, the court finds that

no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); see Anderson, 477 U.S. at 247-48.
For the above reasons granting defendant's motion to dismiss, plaintiff fails to clemonstrate
· that he is entitled to judgment as a matter oflaw, and the court DENIES this motion [D.E. 46].
12

5)

Plaintiffs motion for judgment on the pleadings [D.E. 56]:
In reviewing a motion for judgment on the pleadings under Federal Rule of Civil Procedure

12(c), the court applies "the same standard" as for motions to dismiss for failure to state a claim
.

~:,•._..· . ·. :.. .:. :- '

pursuanttoFederalRuleofCivilProcedure 12(b)(6). See Burbach Broad Co. v. ElkinsR.adiciCorp •...
..... , .
..

~

278 F.3d 401,406 (4th Cir. 2002).
For the above reasons granting defendant's motion to dismiss, this motion also-is I>ENIED.
Conclusion:
For the reasons discussed above, the court: DENIES AS MOOT the motion to c~~~~liclate · .[D.E. 25]; DENIES plaintiffs motion for entry of default [D.E. 43]; DENIES plaintiffs motions for
summary judgment [D.E. 26, 31, 46]; DENIES plaintiffs motion for judgment on the pleadings
[D.E. 56]; and GRANTS defendant's motion to dismiss [D.E. 33]. The clerk shall close the case.
•::;_.

SO ORDERED. This _fr_ day of

N~--.~20.

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TRRENCE w. BO,~E~!,
Chief United States District Judge
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