KELLY v. UNITED STATES OF AMERICA et al

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS. IT IS THEREFORE ORDERED that Defendants' motion to dismiss (Doc. 12 ) be GRANTED, and Kelly's motion for return of property (Doc. 2 ) be DISMISSED. All of Kelly's remaining motions are DENIED. A Judgment dismissing this action will be entered contemporaneously with this Order. Signed by JUDGE THOMAS D. SCHROEDER on 9/23/2011. (Solomon, Dianne)

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

CARNELL DESHAWN KELLY,

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)
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Plaintiff,
v.
UNITED STATES OF AMERICA
and UNITED STATES DEPARTMENT
OF JUSTICE DRUG ENFORCEMENT
ADMINISTRATION,
Defendants.

1:10CV948

ORDER
On July 22, 2011, in accordance with 28 U.S.C. § 636(b), the
Recommendation of the United States Magistrate Judge to dismiss
this action was filed, and notice was served on Plaintiff Carnell
Deshawn Kelly (“Kelly”), and a copy was given to the court.
Within the time limitation set forth in the statute, Kelly
objected to the Recommendation.

(Docs. 19, 20, 21.)

In his

objections, Kelly argues that he did not receive notice of the
forfeiture, as required by 18 U.S.C. § 983(a)(1).

Kelly has also

filed documents in support of his objections in which he requests
leave “to file 18 U.S.C. 983(a)(1)(F)” or in the alternative seeks
an evidentiary hearing (Doc. 21), and the Government has filed a
Response (Doc. 22).
Kelly’s current contentions were not raised in his Motion for
Return of Property, which initiated this action (see Doc. 2), or
before the Magistrate Judge, but are raised now that Kelly

has a

Recommendation entered against him and understands that once an

administrative declaration of forfeiture has been issued, his
exclusive remedy is to challenge notice under § 983(e).1

McKinney

v. U.S. Dep’t of Justice Drug Enforcement Admin., 580 F. Supp. 2d
1, 3 (D.D.C. 2008).
The court has carefully considered all of Kelly’s filings and
has concluded that, to the extent Kelly requests that the court
consider new evidence raised on his objections, the court will
decline to exercise its discretion to do so under 28 U.S.C.
§ 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3). Further,
the court concludes that the Government is correct and that nothing
included in Kelly’s filings could change the result that this court
lacks subject matter jurisdiction.

Thus, to the extent Kelly’s

remaining filings seek any further relief, they will be denied.
For Kelly’s benefit, the court notes that even if it were to
consider his evidence, his challenge would fail because the record
makes clear that he received notice of the forfeiture.

The Drug

Enforcement Administration (“DEA”) served its notices of forfeiture
on last-known addresses for Kelly, as well as by publication in the
Wall Street Journal.

Two of the notices of forfeiture, served on

November 8, 2010, provided that to contest the forfeiture Kelly
must submit a claim to be received by forfeiture counsel by

1

Section 983(e)(1) provides that “[a]ny person entitled to written
notice . . . 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).

2

December 13, 2010.

(Doc. 13-3.)

However, on December 16, 2010,

the DEA received a “Motion for Return of Property” that had been
filed in this court on December 13, 2010, by Kelly by and through
his attorney of record, Samuel Richardson, III.

(Doc. 13-4.)

Kelly’s motion referenced the exact sum seized from him during his
arrest ($3,395.00), was sent to the correct DEA address noted by
the notice of forfeiture, and referenced the correct “Asset ID
Number” that the DEA had assigned to his forfeiture.
clear

that

Kelly’s

attorney

received

that

Thus, it is

information

–

particularly the DEA “Asset ID Number” assigned to the case – from
one of the four letters of notice sent to Kelly’s last-known
addresses, and most probably the ones served November 8, 2010 (that
contained the December 13, 2010, deadline). Kelly does not dispute
that Samuel Richardson, III, was retained to protect his interests.
(Doc. 19 at 5 (“Plaintiff avers and states that attorney Samuel
Richardson, III, was responsible.”); Doc. 20 at 1 (“[M]y attorney
handled all matters pertaining to this issue including filing and
pleadings.”).)

Thus, Kelly’s counsel was acting as Kelly’s agent,

and this establishes that Kelly received the notice of forfeiture
and

turned

it

over

to

his

attorney.

Cf.

Can

v.

U.S.

Drug

Enforcement Agency, 764 F. Supp. 2d 519, 521-22 (W.D.N.Y. 2011)
(finding that a letter mailed by plaintiff’s attorney to the DEA
that referenced information found in the DEA’s notice to plaintiff

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demonstrated that plaintiff received notice of the forfeiture
proceedings against him).
Kelly contends that “‘notice’ of the proceedings were [sic]
being sent directly to attorney Richardson’s office.”
5.)

(Doc. 19 at

Whether Kelly contends that the notices of forfeiture were

being referred to his attorney without Kelly’s knowledge or that
the DEA corresponded directly with his attorney is not clear.
either

case,

he

cannot

prevail.

Kelly

concedes

that

In

Samuel

Richardson, III, was his attorney during the relevant time period.2
As such, his attorney was acting as his agent, and any acts of
Kelly’s counsel are imputed to Kelly.

SEC v. McNulty, 137 F.3d

732, 739 (2d Cir. 1998) (“Normally, the conduct of an attorney is
imputed

to

his

client,

for

allowing

a

party

to

evade

‘the

consequences of the acts or omissions of [] his freely selected
agent’

‘would

be

wholly

inconsistent

with

our

system

of

representative litigation.’”) (alteration in original) (quoting
Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)).

Mr.

Richardson’s knowledge of the DEA action is therefore imputed to
Kelly. Moreover, Kelly’s contention that he was unaware of the DEA
forfeiture action is conclusively rebutted by the fact that on
December 11, 2010, he completed a “Declaration and Request To
Proceed In Forma Pauperis” that he filed on December 13, 2010, with

2

Kelly contends that his counsel sought leave to withdraw. (Doc. 19 at
3.) But counsel’s motion came long after the events in question, and the
motion was never acted upon.

4

and in support of his Motion for Return of Property.

(Doc. 1.)

Thus, he clearly had notice of the Motion for Return of Property
filed on his behalf that contains the DEA forfeiture number.
Furthermore, to the extent the DEA sent notice of its decision to
grant Kelly twenty additional days to contest the seizure directly
to Kelly’s attorney, such action was proper inasmuch as Kelly does
not dispute that his attorney was retained for the very purpose of
seeking return of the seized property.

See Can, 764 F. Supp. 2d at

522 (“The DEA’s response by notice [to plaintiff’s attorney] . . .
confirmed for Reyes [plaintiff’s counsel] and Can [plaintiff] that
the proper agency had been contacted, and set forth a specific
remedy for [plaintiff].”).
The court has reviewed the portions of the Magistrate Judge’s
report

to

which

objection

was

made

and

has

made

a

de

novo

determination, which is in accord with the Magistrate Judge’s
report.

The

court

hereby

adopts

the

Magistrate

Judge’s

Recommendation.
IT IS THEREFORE ORDERED that Defendants’ motion to dismiss
(Doc. 12) be GRANTED, and Kelly’s motion for return of property
(Doc. 2) be DISMISSED.

All of Kelly’s remaining motions are

DENIED.

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A

Judgment

dismissing

this

action

will

be

entered

contemporaneously with this Order.

/s/ Thomas D. Schroeder
United States District Judge
September 23, 2011

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