Opinion
NO. SACV 17-1980-SVW (KS)
03-08-2021
REGINALD BRADDY, Plaintiff, v. DRUG ENFORCEMENT ANGECY, Defendants.
ORDER ACCEPTING IN PART FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Third Amended Complaint (the "Complaint"), Defendant's Motion for Summary Judgment (the "Motion") and related briefing, and the Report and Recommendation of United States Magistrate Judge ("Report"). The time for filing Objections to the Report has passed, and no Objections have been filed with the Court. \\ \\ \\ \\ \\ \\ \\
Having completed its review, the Court accepts the findings and recommendations set forth in the Report regarding the claims for $26,694.00 and $36,590.00. Judgment should be entered for those claims dismissing them with prejudice.
However, the Court departs from the Report's recommendation that the claim for the two phones be dismissed with prejudice. The Report correctly finds that the claim for the two phones is premature. However, because the claim is premature and no administrative forfeiture proceeding regarding the phones has been initiated by the Government, Plaintiff could still bring a claim for the two phones under Rule 41 following resolution of Plaintiff's § 2255 proceedings. The claim for the two phones should therefore be dismissed without prejudice, not with prejudice.
Accordingly, IT IS ORDERED that: (1) the Motion is GRANTED; (2) Plaintiff's claim to recover the two phones under Rule 41 is DISMISSED without prejudice; and (3) Judgment shall be entered dismissing the claims for the $26,694.00 and $36,590.00 with prejudice. DATED: March 8, 2021
/s/_________
STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE