KELLY v. UNITED STATES OF AMERICA et al

Filing 17

MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE WALLACE W. DIXON on 07/22/2011. This matter comes before the court on Defendants' motion to dismiss, or in the alternative, for summary judgment [docket no. 12 ] on Plaintiff's motion for return of property [docket no. 2 ]. CONCLUSION:It is therefore RECOMMENDED that Defendants' motion to dismiss [docketno. 12 ] be GRANTED and Plaintiff's motion for return of property be DISMISSED(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CARNELL DESHAWN KELLY,
Plaintiff, pro se,
v.
UNITED STATES OF AMERICA
and UNITED STATES
DEPARTMENT OF JUSTICE
DRUG ENFORCEMENT
ADMINISTRATION,
Defendants.

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MEMORANDUM OPINION
AND RECOMMENDATION
1:10CV948

This matter comes before the court on Defendants’ motion to dismiss, or in the
alternative, for summary judgment [docket no. 12] on Plaintiff’s motion for return of
property [docket no. 2]. Defendants argue that Plaintiff’s motion for return of
property should be dismissed for lack of subject matter jurisdiction pursuant to Fed.
R. Civ. P. 12(b)(1), or for failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6). Alternatively, Defendants argue that summary
judgment should be granted to Defendants pursuant to Fed. R. Civ. P. 56. Plaintiff
has filed a response in opposition [docket no. 15] to Defendants’ motion, and the
matter is ripe for disposition. The parties have not consented to the jurisdiction of
the magistrate judge; therefore, the motion must be dealt with by way of

recommendation. For the reasons discussed herein, it will be recommended that the
court grant Defendants’ motion to dismiss Plaintiff’s motion for return of property.
BACKGROUND
On August 17, 2010, Officer A. Edwards of the Greensboro Police Department
arrested Plaintiff Carnell Deshawn Kelly; Plaintiff was charged with possession with
the intent to sell and distribute cocaine. (Mot. for Return of Property 3). At this time,
$3,395.00 was seized from Plaintiff. (Mot. for Return of Property 2). The United
States Drug Enforcement Administration (DEA) adopted this seizure on
September 10, 2010. (Mem. in Supp. of Mot. to Dismiss 2-3). Plaintiff filed a motion
for return of property with the court and served a copy of this document on all parties
or their attorneys.

(Mot. for Return of Property 3).

The motion is dated

December 13, 2010. (Mot. for Return of Property 3). Defendants received this
motion on December 16, 2010. (Mem. in Supp. of Mot. to Dismiss 5; Resp. in Opp’n
1-2 [docket no. 15]). Plaintiff only challenges the propriety of Defendants’ decision
to reject his motion for return of property as an untimely attempt to file a claim. (See
Mot. for Return of Property; see also Resp.).
STANDARD OF REVIEW
“When a defendant’s motion to dismiss challenges a federal court’s subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), a plaintiff bears the burden
of proving that such jurisdiction exists.” Esau v. Victor, No. 1:02cv147, 2003 WL
1522946, at *2 (M.D.N.C. Mar. 21, 2003) (citing Adams v. Bain, 697 F.2d 1213, 1219

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(4th Cir. 1982)). “A court should dismiss an action for want of subject matter
jurisdiction ‘only if the material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.’ In ruling on a motion to dismiss for lack
of jurisdiction, the court may consider materials beyond the bare pleadings.” Esau,
2003 WL 1522946, at *2 (quoting and citing Evans v. B.F. Perkins Co., 166 F.3d
642, 647 (4th Cir. 1999)). With these principles in mind, the court now turns to the
motion to dismiss.
DISCUSSION
Plaintiff does not even attempt to show that this court has subject matter
jurisdiction. “A motion filed under [18 U.S.C. § 983(e)] shall be the exclusive remedy
for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.”1
18 U.S.C. § 983(e)(5). This subsection provides only for challenges based on
insufficiency of notice. “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 . . . .” 18 U.S.C. § 983(e)(1)
(emphasis added).

Plaintiff does not meet this criteria.

Plaintiff makes no

arguments with regards to notice; in fact, he does not even vaguely reference notice
or lack thereof. (See Mot. for Return of Property; see also Resp.). This court thus
lacks subject matter jurisdiction in this case.

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Plaintiff does not dispute the application of 18 U.S.C. § 983(e).

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CONCLUSION
It is therefore RECOMMENDED that Defendants’ motion to dismiss [docket
no. 12] be GRANTED and Plaintiff’s motion for return of property be DISMISSED.

___________________________
WALLACE W. DIXON
United States Magistrate Judge
Durham, NC
July 22, 2011

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