Opinion
Case No. 3:19-cv-188
2021-11-02
Brodrick Jamar JENKINS, Plaintiff, v. UNITED STATES of America, Defendant.
Christopher J. Lancaster, Federal Public Defender Office, Fargo, ND, for Plaintiff. Brodrick Jamar Jenkins, Thomson, IL, Pro Se. Melissa H. Burkland, U.S. Attorney's Office, Fargo, ND, for Defendant.
Christopher J. Lancaster, Federal Public Defender Office, Fargo, ND, for Plaintiff.
Brodrick Jamar Jenkins, Thomson, IL, Pro Se.
Melissa H. Burkland, U.S. Attorney's Office, Fargo, ND, for Defendant.
ORDER
Alice R. Senechal, United States Magistrate Judge
Plaintiff Brodrick Jamar Jenkins filed a complaint asserting unconstitutional takings and due process claims against the United States under the Little Tucker Act, 28 U.S.C. § 1346(a). Jenkins seeks to recover compensation for two vehicles seized and allegedly sold without proper notice. Because the vehicles were seized pursuant to governmental police power rather than for public use, Jenkins’ complaint will be dismissed.
The Little Tucker Act gives district courts jurisdiction over civil actions against the United States for claims not exceeding $10,000 based on the Constitution, a federal statute or regulation, or any express or implied contract with the United States. 28 U.S.C. § 1346(a)(2).
Background
Jenkins asserts the government seized two vehicles—a 1987 Oldsmobile Cutlass and a 2001 Chevrolet Tahoe—pursuant to a search warrant, the government failed to inform him when the vehicles were no longer needed as evidence and could be returned to him, and an impound lot later sold the vehicles at an auction. Jenkins contends he is entitled to money damages in an amount less than $10,000. Previously, the United States moved to dismiss, asserting the court lacked subject matter jurisdiction because Jenkins did not have standing to bring his claims and because his claims are barred by sovereign immunity. An order of June 22, 2021 denied the motion as to Jenkins’ Fifth Amendment takings claim but granted the motion as to Jenkins’ Fifth Amendment due process claim. (Doc. 60).
The United States now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) or alternatively for summary judgment pursuant to Federal Rule of Civil Procedure 56 on Jenkins’ remaining claim. The United States contends Jenkins cannot recover under the Fifth Amendment takings clause because the vehicles were seized pursuant to the government's police power rather than taken for public use. (Doc. 67). Jenkins does not contest the original seizure of the vehicles was proper under the government's police power. Rather, he argues the seizure amounted to a taking when the government failed to return the vehicles and allowed them to be sold at auction. (Doc. 71, p. 7).
The June 22, 2021 order described relevant factual background:
On April 10, 2013, Jenkins pleaded guilty to a drug conspiracy charge and was subsequently sentenced to 252 months of imprisonment. Jenkins, proceeding pro se, moved for return of property seized in connection with the criminal case, and the United States responded that it would return certain property, including the two vehicles, if there were no other claims to the property. In light of the United States’ response,
the court found Jenkins’ motions moot.
Jenkins moved for reconsideration of the court's order, requesting, in part, that he not be held responsible for any vehicle towing or storage fees. Alternatively, in the event the United States was unable to locate his property, he requested monetary compensation. The court appointed the Federal Public Defender to represent Jenkins in the criminal case. After learning the vehicles had been sold by an impound lot, Jenkins filed a settlement proposal captioned as a motion. After briefing, the court denied Jenkins’ motion, concluding that because Jenkins’ claim was, at that time, for an amount in excess of $10,000, the United States Court of Federal Claims had exclusive jurisdiction. Thereafter, Jenkins filed this civil action under the Little Tucker Act.
In support of his complaint, Jenkins submitted copies of an October 23, 2012 search warrant authorizing the search of the vehicles, inventory receipts listing property seized, and a September 15, 2017 Drug Enforcement Agency (DEA) report of investigation regarding the seized vehicles. That report, prepared by DEA Task Force Officer (TFO) Orie Oksendahl, states law enforcement seized the vehicles at Jenkins’ residence in St. Paul, Minnesota, on October 11, 2012, Twin Cities Transport and Recovery then towed the vehicles to its impound lot in Oakdale, Minnesota, law enforcement put "a hold" on the vehicles while it obtained a search warrant for the vehicles, and the search warrant was executed on October 24, 2012. TFO Oksendahl reported that, at the request of the United States Attorney's Office, she contacted Twin Cities Transport and Recovery on September 15, 2017, to ascertain the status of the vehicles and was informed that pursuant to company policy, the vehicles were sold in May 2014. There is no evidence the vehicles were forfeited to the United States through an administrative proceeding.
Along with its motion to dismiss, the United States submitted an affidavit of Renee Gardas, the owner and manager of Twin Cities Transport and Recovery. Gardas stated that on October 21, 2013, the Minnesota Bureau of Criminal Apprehension "released holds" on the vehicles and Twin Cities Transport and Recovery sent letters to Stephanie Buchanan, the registered owner of the vehicles, notifying her that each of the vehicles could be reclaimed upon payment of towing and storage charges. Gardas stated that on February 2, 2014, Twin Cities Transport and Recovery sent Buchanan, via certified mail, a "Final Notice" explaining the vehicles would be sold if they were not reclaimed. Gardas further stated that no one reclaimed the vehicles so the 2001 Tahoe was sold on May 9, 2014, and the 1987 Cutlass was sold on May 12, 2014. Documents attached to Gardas’ affidavit show the letters were mailed to Buchanan in Minneapolis, Minnesota, at an address associated with her as the owner of the vehicles, according to motor vehicle registration queries.
In response to the motion to dismiss, Jenkins submitted his own affidavit and that of Buchanan, who is Jenkins’ mother. Jenkins stated he purchased the 1987 Cutlass from a private seller for $5,000 at the end of 2011 and transferred title to Buchanan in early 2012. He stated he purchased the 2001 Tahoe from a private seller for $6,500 in 2012 and transferred title to Buchanan several months later. He stated, "Despite my mother being the title holder, I retained ownership and exclusive use of both the 1987 Oldsmobile Cutlass and the 2001 Chevrolet Tahoe." He noted that his wallet with his identification, along with other
items of his personal property, were seized during the search of the 2001 Tahoe. He further stated he "was never advised of the location of either vehicle until [he] received information from the Federal Public Defenders Office that [his] vehicles had been held by Twin Cities Transport and Recovery and were sold in 2014" and "at no time did [his] mother advise [him] of the location of either vehicle."
Buchanan's affidavit is consistent with Jenkins’ affidavit. Buchanan stated she was aware that Jenkins had purchased the vehicles, he asked that the titles be transferred to her and she agreed, and "it was understood between [her] son and [she] that he was the owner of the vehicle[s] and exclusive user of the vehicle[s]." She stated she never received notice that either vehicle could be retrieved or that either vehicle would be sold or auctioned. She explained that because she surrendered for service of a sentence in the District of Minnesota on November 18, 2013, she did not live at the Minneapolis address when the notice letters were mailed and "no other family members or others known to [her] resided at that address after [her] incarceration."
(Doc. 60, pp. 2-5) (internal citations omitted).
Law and Discussion
The United States brings its motion under Federal Rule of Civil Procedure 12(c), which allows for entry of judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial." Rule 12(c) motions are governed by the same standard as are motions brought under Rule 12(b)(6). Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010). Under that standard, the court views all facts pleaded by the nonmoving party as true and grants all reasonable inferences in favor of that party. In addition to the pleadings themselves, the court may consider exhibits to the pleadings and matters embraced by the pleadings. The court will grant a motion under Rule 12(c) only if there are no disputed material facts and the moving party is entitled to judgment as a matter of law. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) ; Ashokkumar v. Elbaum, 932 F. Supp. 2d 996, 1006 (D. Neb. 2013).
If the court considers materials other than those allowed under Rule 12(c), the motion is to be treated as one for summary judgment. If treated as a motion for summary judgment, the court may review additional materials on file to determine whether a genuine issue of material fact is present. Carmichael v. Mercedes-Benz USA, LLC, No. 4:09-CV-00346-TJS, 2011 WL 13228238, at *2 (S.D. Iowa Jan. 20, 2011).
When deciding the earlier Rule 12 motion challenging the factual basis of subject matter jurisdiction, consideration of affidavits was appropriate under Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). In deciding the current motion, the court has considered the same affidavits and therefore issues this decision pursuant to Rule 56.
Jenkins argues the United States’ motion is merely a request for reconsideration of the June 22, 2021 order denying the motion to dismiss. (Doc. 71, p. 3). In reply, the United States asserts it is now advancing an argument on Jenkins’ Fifth Amendment takings claim, which was not addressed in the earlier order. (Doc. 72, p. 4). The court agrees with the position of the United States. The earlier motion to dismiss was based on standing and sovereign immunity. In analyzing whether sovereign immunity barred the court's subject matter jurisdiction, the court declined to consider the merits of Jenkins’ Fifth Amendment takings claim, though the court concluded it did not have jurisdiction over Jenkins’ Fifth Amendment due process claim. (Doc. 60, pp. 14-15).
The Fifth Amendment to the Constitution of the United States prohibits governmental takings of private property for public use unless the property owner receives just compensation. But if the property is not taken for "public use," the property owner does not have a right to receive just compensation. Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996). If the government takes private property under the government's police power, the property is not taken for "public use" within the meaning of the Fifth Amendment. AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008) ; United States v. Romero, No. 1:12-CR224, 2013 WL 625338, at *5 (D.N.D. Feb. 20, 2013).
Though acknowledging seizure of the two vehicles was within the scope of the government's police power, Jenkins argues a compensable taking "occurred when the [United States] never returned the property to Jenkins, which was not subject to forfeiture and was released from custody and later sold at auction." (Doc. 71, p. 5). Citing a state statute, the United States replies that when the government's holds were released, the impound lot—not the government—had the duty to notify the vehicle owner. The cited statute provides, "When an impounded vehicle is taken into custody, the unit of government or impound lot operator taking it into custody shall give written notice of the taking within five days, excluding Saturdays, Sundays, and legal holidays, to the registered vehicle owner and any lienholders." Minn. Stat. § 168B.06. That statute goes on to specify required content of the notice and states notice must be "sent by mail to the registered owner, if any, of an impounded vehicle and to all readily identifiable lienholders of record." The United States argues section 168B.06 did not require governmental notification to the registered owner since the impound lot operator had given notice and the statute required notification only to the vehicles’ registered owner and any lienholders. (Doc. 72, p. 3).
Additionally, the United States contends Jenkins is actually asserting a procedural due process claim even though his procedural due process claims were dismissed in the court's earlier order. In the view of the United States, the taking ended when holds on the vehicles were released. At that time, the vehicles were no longer under governmental control, and the impound lot operator sent immediate notice to the registered owner. Id. at 5-6.
Jenkins cites a case involving investigation of cruelty to animals. A representative of the Pennsylvania Society for the Prevention of Cruelty to Animals (SPCA), who had no court order to do so, took possession of "Lilly," the plaintiff's thoroughbred mare. A few days later and pursuant to a search warrant, the SPCA representative seized several other animals from the plaintiff. The animals that had been seized pursuant to the search warrant were later returned to the plaintiff. Included in the plaintiffs’ multiple claims was a claimed violation of the Fifth Amendment takings clause. On that claim, the court concluded there had been no taking of the property that was seized pursuant to a valid search warrant, held during a criminal investigation, and later returned. But because the allegedly unreturned mare, Lilly, had not been seized pursuant to a search warrant, the court allowed the Fifth Amendment takings claim to proceed as to Lilly. Ritzel v. Penn. Soc. for the Prevention of Cruelty to Animals (SPCA), No. 04-2757, 2005 WL 331518 (E.D. Pa. Feb. 9, 2005). Ritzel is easily distinguishable from this case because Lilly had not been seized pursuant to a valid search warrant. The United States cites several cases holding a compensable taking does not occur when property is seized pursuant to a valid search warrant and returned after conclusion of a criminal investigation. In Bennis v. Michigan, the Supreme Court stated, "The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain." 516 U.S. 442, 452, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996). Amerisource Corp. addressed a Fifth Amendment takings claim brought by a company whose pharmaceuticals were seized pursuant to a search warrant involving a criminal investigation of third parties. 525 F.3d at 1150. The plaintiff was not accused of any wrongful act. When the drugs were eventually returned, they were worthless because their expiration dates had passed. Though noting seeming unfairness, because the drugs had been seized pursuant to governmental police power, the court held there was no Fifth Amendment taking. The court stated, "As expansive as the police power may be, it is not without limit. The limits, however, are largely imposed by the Due Process Clause." Id. at 1154.
In Brisbane v. Milano, a vehicle was seized during a criminal investigation but later returned, although damaged. The plaintiff argued he was entitled to just compensation for depreciation in value of the vehicle. The court held the vehicle was never "taken" within the meaning of the Fifth Amendment and the decrease in the vehicle's value while in police custody did not constitute a taking within the meaning of the Fifth Amendment. No. 3:08-cv-1328, 2010 WL 3000975 (D. Conn. July 27, 2010).
Jenkins has cited no case recognizing a Fifth Amendment taking under similar facts, and this court's research has identified none. Jenkins’ claim, in essence, is that the United States did not follow proper procedure in releasing the vehicles from governmental custody and allowing them to be sold. Though seemingly inequitable, the law does not allow a remedy against the United States for Jenkins’ loss of the vehicles.
Conclusion
The Fifth Amendment takings clause does not encompass a claim for just compensation for property seized under governmental police power under the facts of this case. There is no genuine dispute as to any material fact and the United States is entitled to judgment as a matter of law. It is ORDERED that the United States’ alternative motion for summary judgment, (Doc. 66), is GRANTED and Jenkins’ complaint, (Doc. 6), is DISMISSED . Because any appeal would not be frivolous, it is further ORDERED that any appeal may be taken in forma pauperis.
JUDGMENT SHALL BE ENTERED ACCORDINGLY .