Powell v. Keller et al

Filing 4

ORDER DISMISSING CASE pursuant to 28 USC 1915(g). Signed by Chief Judge Robert J. Conrad, Jr on 4/11/2011. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
No. 5:11-cv-38-RJC

FLOYD JUNIOR POWELL,

)
)
Plaintiff,
)
)
v.
)
)
TONY KELLER, et. al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER comes before the Court on initial review of Plaintiff’s civil rights
complaint brought pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. (Doc. No. 1). For the reasons
set forth below, this action will be dismissed in its entirety.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff was one of thirteen individuals named in an eight-count Bill of Indictment. (Case
No. 5:99cr12-6, Doc. No. 3). Plaintiff was charged with conspiracy to possess with intent to
distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841 and 846 (Count One) and
possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2 (Count Seven). (Id. at 1-2, 4). Additionally, the Indictment contained a Forfeiture Count, listing
real property located at 169 8th St. in Conover, North Carolina,1 as subject to forfeiture pursuant to
21 U.S.C. § 853 (Count Eight). (Id. at 4-6).
On November 12, 1999, Plaintiff was found guilty after a jury trial of Counts One and Seven.
(Id., Doc. No. 146). Additionally, the jury returned a Special Verdict finding that the real property

1

Carolina.

At some point in the proceedings, this address was corrected to 169 8 th Ave. SW in Conover, North

located at 169 8th Ave. SW in Conover, North Carolina (hereinafter “the residence”), was used or
was intended to be used to commit or facilitate the commission of the above-mentioned drug
conspiracy and that the real property constituted or was derived from proceeds Floyd Powell
obtained as a result of the drug conspiracy. (Id., Doc. No. 147). These jury findings made the
residence subject to forfeiture pursuant to 21 U.S.C. § 853.
On November 17, 1999, the Government moved for a judgment of forfeiture on the
residence, which the district court granted on December 9, 1999. (Id., Doc. No. 156). On December
10, 1999, the U.S. Marshal Service served Plaintiff’s wife, Rose Powell, with notice of the Order
of Forfeiture. (Id., Doc. No. 159). Public notice of the forfeiture was published in the Newton
Observer News Enterprise, a newspaper of general circulation, on February 8, February15, and
February 22, 2000. (Id., Doc. No. 196).
Plaintiff was sentenced on February 15, 2001. Also on February 15, 2001, the Government
moved for Final Judgment of Forfeiture of the residence, which the Court granted on March 12,
2001. (Id. at Doc. Nos. 293, 300). Plaintiff appealed his convictions, sentences, and the judgment
of forfeiture, arguing that all were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000).
United States v. Powell, 38 F. App’x 140 (4th Cir. 2002) (unpublished). The Fourth Circuit
affirmed. Id. at 142.
On April 24, 2001, Plaintiff’s wife, Rose Powell, filed a third party petition to adjudicate the
validity of her interest in the residence. (Case No. 5:99cr12-6, Doc. Nos. 308, 310). On July 10,
2001, the district court held a hearing to determine the validity of Mrs. Powell’s interest in the
property. On August 6, 2002, the Court dismissed Mrs. Powell’s petition, finding, among other
things, that she had failed to prove by a preponderance of the evidence that she was a “bona fide
purchaser for value of [the residence] who at the time of purchase was reasonably without cause to
2

believe that the property was subject to forfeiture” as required by 21 U.S.C. §§ 853(c) and
853(n)(6)(B). (Id., Doc. No. 355) On November 25, 2002, the Court issued a Final Order
Confirming Forfeiture of the residence. (Id., Doc. No. 366).
On December 22, 2003, Rose Powell filed a civil rights complaint pursuant to §§ 1983, 1985,
and 1986, alleging that all of the defendants named herein conspired to violate and violated her right
to due process and various other constitutional rights. (Doc. No. 5:03cv160, Doc. No. 2). Her
complaint was denied on August 23, 2004. (Id., Doc. No. 43). The Court’s decision was affirmed
on appeal. Powell v. Keller, et.al., 120 F. App’x 512 (4th Cir. 2005).
On November 5, 2007, Plaintiff filed a civil rights complaint against the same defendants
named herein. (Case No. 5:07cv121, Doc. No. 1.) Among his allegations were that the defendants
violated §§ 1983, 1985, and 1986 with respect to the forfeiture of the real property at 169 8th Ave.
SW, Conover, North Carolina. (Id.). Plaintiff’s complaint was dismissed for failure to state a claim
pursuant to 28 U.S.C. § 1915A(b)(1), Heck v. Humphrey, 512 U.S. 477 (1994), and principles of
res judicata and qualified immunity. (Id., Doc. No. 3). The Fourth Circuit Court of Appeals
dismissed Plaintiff’s appeal as frivolous. Powell v. Keller, et.al., 274 F. App’x 330 (4th Cir. 2008)
(per curiam).
On January 7, 2009, Plaintiff filed another civil rights complaint against the same defendants
named herein. (Case No. 5:09cv4, Doc. No. 1). Among his allegations were that the defendants
violated his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights with respect to the
forfeiture of the real property at 169 8th Ave. SW, Conover, North Carolina. (Id.). The factual
allegations used to support his claims were identical to those alleged in his previous complaint (Case
No. 5:07cv121, Doc. No. 1). (Id.). The Court dismissed the complaint pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994) and the principle of res judicata. (Id., Doc. No. 3). The Fourth
3

Circuit dismissed Plaintiff’s appeal as frivolous. Powell v. Keller, et.al., 326 F. App’x 697(4th Cir.
2009) (per curiam).
Undeterred, Plaintiff filed a third civil rights complaint on November 2, 2009, against the
same defendants as here. (Case No. 5:09cv126, Doc. No. 1). Among his allegations were that the
defendants violated §§ 1983, 1985, and 1986 and all of the other constitutional rights cited herein
with respect to the forfeiture of the real property at 169 8th Ave. SW, Conover, North Carolina.
(Id.). The facts he alleged to support his claims were identical to those alleged in his previous
complaints (Case No. 5:07cv121, Doc. No. 1; Case No. 5:09cv4, Doc. No. 1). (Id.). The Court
dismissed the Complaint pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) and the principle of
res judicata. (Id., Doc. No. 3). The Fourth Circuit dismissed Plaintiff’s appeal as frivolous. Powell
v. Keller, et.al., 367 F. App’x 402 (4th Cir. 2010) (per curiam).
Plaintiff has now filed a fourth civil rights complaint against the same defendants, raising
the same allegations of constitutional and statutory violations based on the same facts as those in
his previous complaints (Case No. 5:07cv121, Doc. No. 1; Case No. 509cv4, Doc. No. 1; Case No.
5:09cv126, Doc. No. 1). (Doc. No. 1).2 For the first time, however, Plaintiff alleges a racist motive
behind Defendants’ actions.
II. DISCUSSION
Under the Prison Litigation Reform Act of 1996 (“PLRA”), a prisoner who has had three or
more actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which
relief may be granted, may not proceed in a civil action without prepayment of fees unless he is
under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g) (2006). Plaintiff has had

2

Except for the names of the plaintiffs, the instant complaint is virtually identical to the complaint filed by
Rose Powell (5:03cv160, Doc. No. 2). (Doc. No. 1).

4

three appeals dismissed as frivolous. See Powell v. Keller, et.al., 274 F. App’x 330 (4th Cir. 2008)
(per curiam); Powell v. Keller, et.al., 326 F. App’x 697 (4th Cir. 2009) (per curiam); Powell v.
Keller, et.al., Powell v. Keller, et.al., 367 F. App’x 402 (4th Cir. 2010) (per curiam). He is thus
unable to proceed with this action without pre-paying the $350.00 filing fee or making a showing
that he is under “imminent danger of serious physical injury.” § 1915(g). Plaintiff has neither prepaid the filing fee nor made a showing that he is under “imminent danger of serious physical injury.”
§ 1915(g). As a result, his Complaint must be dismissed.
III. CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s Complaint (Doc. No. 1) is DISMISSED
pursuant to 28 U.S.C. § 1915(g).

Signed: April 11, 2011

5