TALBERT v. UNITED STATES, DEA

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 09/24/2012, that in forma pauperis status is granted for the sole purpose of entering this Order. The Clerk is instructed to send Plaintiff Mo tion for Return of Property forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts of Fed. R. Civ. P. 8 (i.e. Sections (a) & (d)). IT IS RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a proper submission, using any applicable forms, which corrects the defects cited above.(Taylor, Abby)

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

BERNARD TALBERT,
Plaintiff,
v.
UNITED STATES, DEA,
Defendant(s).

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1:12CV1022

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal prisoner, has submitted document entitled “Petition for Claim of
Forfeiture Property by an Interested Person,” along with an application to proceed in forma
pauperis. In his Petition, he states that he is a “Private Person, Activist for Human Rights,
from the World Service Authority” who seeks to make a claim for property identified only
as “#12-DEA 566437.” (Docket Entry 2 at 1.) That property was listed at some time in the
Wall Street Journal under Public Notices. Plaintiff states that he is making a claim on the
property, but does not further identify the property, state his connection to the property, or
explain why he would have any claim to it. He has no prior cases in this Court, but states
that he is proceeding under “Federal Rules of Civil Procedure Title 28 Rule G5(a)(1).” (Id.)

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This is an apparent reference to Rule G(5)(a)(i) of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions. If so, Plaintiff’s submission does not meet
the requirements of that Rule.
Rule G(5)(a)(i) states that a claim asserting an interest in property against which a
forfeiture action in rem is being pursued must identify the specific property being claimed,
identify the claimant, identify the claimant’s interest in the property, be signed under penalty
of perjury, and be served on the Government attorney named in the notice that was published
or sent to the claimant. Plaintiff here identifies the property using only a DEA item number
that was listed in the Wall Street Journal. He does not state what the property involved is.
He does identify himself, but does not tell why he has any claim on the property in question.
He does sign his submission under penalty of perjury, but has not served the proper
Government attorney. Plaintiff acknowledges this and asks that the Clerk of Court serve the
attorney. Aside from the fact that it is Plaintiff’s, and not the Clerk of Court’s, responsibility
to serve the pleading under Rule G(5)(a)(i)(D), the Clerk has no way of knowing who the
proper attorney for service is for the property that Plaintiff is claiming. That attorney should
have been listed in publication of the forfeiture, thereby allowing Plaintiff to identify the
attorney. See Admiralty, Maritime Claims, Supp. Rule G(4)(a)(ii)(C). For all of these
reasons, Plaintiff’s submission is deficient as filed. If he seeks to file under Rule G(5), he
should make a filing complying with all of the requirements of that Rule.

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Plaintiff may also be attempting to submit a motion for return of property pursuant to
Fed. R. Crim. P. 41(g). Such a motion filed after the completion of criminal proceedings is
a civil action subject to the fee provisions of 28 U.S.C. § 1915. See United States v. Jones,
215 F.3d 467 (4th Cir. 2000). Venue for such a motion is proper in the district where the
seizure occurred. See United States v. Garcia, 65 F.3d 17 (4th Cir. 1995). If it is Plaintiff’s
intent to file such a motion, he has to make this clear. Also, the Motion is not on the required
forms for this Court. This Motion should, therefore, be dismissed without prejudice to
Plaintiff submitting his action on the proper forms along with either the $350.00 filing fee
or a completed application to proceed in forma pauperis. To assist Plaintiff, the Clerk will
send Plaintiff the Motion for Return of Property forms, instructions and an application to
proceed in forma pauperis. If Plaintiff seeks to file some other type of action, he must make
this clear and state some legitimate basis for doing so. Regardless he should identify the
property involved and explain why he has an ownership interest or similar claim in the
property.
In forma pauperis status is granted for the sole purpose of entering this Order and
Recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole
purpose of entering this Order. The Clerk is instructed to send Plaintiff Motion for Return
of Property forms, instructions, an application to proceed in forma pauperis, and a copy of
pertinent parts of Fed. R. Civ. P. 8 (i.e. Sections (a) & (d)).

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IT IS RECOMMENDED that this action be filed and dismissed sua sponte without
prejudice to Plaintiff filing a proper submission, using any applicable forms, which corrects
the defects cited above.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date: September 24, 2012

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