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noting that the court may “refer to matters outside the pleadings such as affidavits and documentary evidence,” in considering its “jurisdiction to hear [the plaintiff's] claims challenging the propriety of the forfeiture,” after resolving the issue of whether “the DEA's notice was constitutionally inadequate”
Summary of this case from Mikhaylov v. United StatesOpinion
04 Civ. 3170 (WHP).
September 27, 2005
Anthony Patterson, F.C.I. Allenwood, White Deer, PA, Pro Se Plaintiff.
Brian R. Michael, Lisa P. Korologos, New York, NY, Counsel for Defendant.
MEMORANDUM AND ORDER
Plaintiff pro se Anthony Patterson ("Patterson") brings this action seeking to recover $89,453 in cash that the United States Drug Enforcement Administration ("DEA") seized from his home and administratively forfeited. Patterson claims that the forfeiture was improper because (1) the DEA failed to give him prior notice and (2) the forfeited funds were not criminal proceeds. The Government moves to dismiss the Complaint for lack of subject matter jurisdiction or, in the alternative, for summary judgment. For the reasons set forth below, the Government's motion to dismiss is granted.
BACKGROUND
On February 14, 2002, DEA special agents seized $18,070 and $71,383 from four large water bottles at Patterson's home in the Bronx. (Complaint ("Compl.") at 1; Declaration of Douglas A. Kash, dated Aug. 12, 2004 ("Kash Decl.") ¶¶ 4(a), 5(a).) Thereafter, the DEA initiated separate administrative forfeiture proceedings. Patterson claims that he received the funds from lawful employment and a lawsuit settlement. (Compl. at 6-7; Affidavit of Anthony Patterson, dated Feb. 24, 2005 ("Patterson Aff.") at 1-3.) Patterson also contends that the funds constitute his family's savings, which he stored at home because he does not trust financial institutions. (Patterson Aff. at 1-4.) At all relevant times after the February 14, 2002 seizures, Patterson was incarcerated in federal custody at the Metropolitan Detention Center in Brooklyn (the "MDC"). (Compl. at 4; Declaration of Timothy Foley, dated Aug. 23, 2004 ("Foley Decl.") ¶ 3(a).)
On April 10, 2002, the DEA sent four written notices of the $18,070 forfeiture proceeding to Patterson by certified mail, return receipt requested. (Kash Decl. ¶¶ 4(b)-(f) Exs. 1, 3, 5, 7, 9.) Two notices were to sent to Patterson's addresses in the Bronx and Georgia and two were sent to the care of the MDC and Isabelle Kirshner, Esq., Patterson's attorney in his criminal proceeding. (Kash Decl. ¶¶ 4(b)-(f) Exs. 1, 3, 5, 7, 9.) Each notice was returned as undeliverable. (Kash Decl. ¶¶ 4(b)-(f) Exs. 2, 4, 6, 8, 10.) That same day, the DEA dispatched four written notices of the $71,383 forfeiture proceeding to Patterson in the same manner and to the same addresses. (Kash Decl. ¶¶ 5(b)-(f) Exs. 23, 25, 27, 29, 31.) Of these, the DEA received a signed return receipt only for the notice addressed to Isabelle Kirshner, Esq. (Kash Decl. ¶ 5(e) Ex. 30.) The remaining three notices were returned as undeliverable. (Kash Decl. ¶¶ 5(b)-(d), (f) Exs. 24, 26, 28, 32.) The DEA published notices of the two forfeiture proceedings in The Wall Street Journal on three successive Mondays in late April and early May 2002. (Kash Decl. ¶¶ 4(g), 5(g) Ex. 11.)
Both the notice of the $18,070 seizure and the notice of the $71,383 seizure explained the seizures, disclosed the DEA's intent to forfeit and described the procedures to challenge the forfeitures. (Kash Decl. Exs. 1, 3, 5, 7, 9, 12, 14, 23, 25, 27, 29, 31, 33, 35.)
On July 23, 2002, the DEA dispatched two additional notices for each forfeiture proceeding by certified mail, return receipt requested to "Paul Thomas, Prisoner ID No. 524106054 aka Anthony Patterson" at the MDC. (Kash Decl. ¶¶ 4(h)-(i), 5(h)-(i) Exs. 12, 14, 33, 35.) Although Patterson's prison identification number is actually 52406-054 (Compl. at 5), an individual at the MDC signed for and accepted delivery of the MDC packages on July 27, 2002 (Kash Decl. ¶¶ 4(i), 5(i) Exs. 15, 36).
According to the Bureau of Prisons, "524106054" has never been a valid prisoner identification number and was not assigned to any inmate at the MDC during Patterson's period of incarceration. (Foley Decl. ¶ 3(b).) Moreover, in July 2002, Patterson was the only inmate incarcerated at MDC with his name and there were no inmates named "Paul Thomas" or "Thomas Paul." (Foley Decl. ¶ 3(b).) According to MDC procedures, certified mail addressed to inmates is signed for twice before it reaches its intended recipient. First, a correctional officer signs the return receipt when he or she accepts delivery from the United States Postal Service. (Foley Decl. ¶ 3(c).) Then, the counselor assigned to the inmate recipient signs a logbook, takes possession of the mailing and delivers it to the inmate. (Foley Decl. ¶ 3(c).) On July 29, 2002, an inmate counselor signed the MDC's logbook for a July 23, 2002 letter addressed to "Paul Thomas, Prisoner ID No. 524106054 aka Anthony Patterson." (Foley Decl. ¶ 3(d).) The tracking number listed in the logbook matches the notice of the $18,070 forfeiture proceeding that the DEA sent to Patterson on July 23, 2002. (Foley Decl. ¶ 3(d).) Patterson, however, claims not to have received notice of either forfeiture proceeding. (Compl. at 3-5; Patterson Aff. at 4-5.)
The notices sent on July 23, 2002 provided that the final deadline for challenging the forfeitures was August 27, 2002. (Kash Decl. Exs. 12, 14, 33, 35.) On August 28, 2002, the DEA received a claim from a Carol Roberts, to whom the DEA had also sent notice of the forfeiture proceedings. (Kash Decl. ¶¶ 4(j), 5(j) Ex. 16.) The DEA denied Roberts' claim as untimely but granted her an additional twenty days to submit a petition for remission and/or mitigation of the forfeiture. (Kash Decl. ¶¶ 4(k), 5(k) Ex. 17.) Delivery of this letter was acknowledged on September 9, 2002. (Kash Decl. ¶¶ 4(k), 5(k) Ex. 18.) On November 6, 2002, having received no further submissions, the DEA forfeited the funds. (Kash Decl. ¶¶ 4(l), 5(l) Exs. 19, 37.) Almost one year later, on October 28, 2003, the DEA received a claim from Patterson dated October 22, 2003. (Kash Decl. ¶¶ 4(m), 5(m) Ex. 20.) The DEA responded that the currency had been forfeited and the matter was closed. (Kash Decl. ¶¶ 4(n), 5(n) Ex. 21.)
Patterson commenced this action to recover the forfeited funds, claiming that the forfeiture was improper because the DEA's notice was constitutionally inadequate and because he had lawfully obtained the funds. The Government moves to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment.
DISCUSSION
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the court "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004); accord Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). Additionally, the court may refer to matters outside the pleadings such as affidavits and documentary evidence. See Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002); Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Once subject matter jurisdiction is challenged, "the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002). Because Patterson is proceeding pro se, this Court reads his Complaint and Affidavit liberally, interpreting his submissions "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998).
Because Patterson has not had an opportunity for discovery, this Court treats the Government's motion solely as a motion to dismiss and not for summary judgment. See Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (for summary judgment, "[t]he nonmoving party must have `had the opportunity to discover information that is essential to his opposition' to the motion" (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986)).
The funds in question were forfeited pursuant to 21 U.S.C. § 881, which authorizes the United States to seize and forfeit any item of value furnished or intended to be furnished in exchange for a controlled substance, as well as all proceeds traceable to such an exchange. 21 U.S.C. § 881(a). The responsible federal agency may initiate administrative forfeiture proceedings by sending written notice to all interested parties and publishing notice of the seizure and the intended forfeiture. 19 U.S.C. § 1607(a)(4); 21 C.F.R. § 1316.75. Once properly noticed, an interested party has twenty days to contest the forfeiture by filing a claim with the DEA and either posting a cost bond or a declaration of his inability to do so. 19 U.S.C. § 1608; 21 C.F.R. § 1316.78. If a claim is timely filed, the administrative forfeiture is converted into a judicial forfeiture. 19 U.S.C. § 1608; 21 C.F.R. § 1316.28. If no claim is filed, the property is forfeited by default. 19 U.S.C. § 1609; 21 C.F.R. § 1316.77;see generally Boero v. Drug Enforcement Admin., 111 F.3d 301, 304 (2d Cir. 1997).
A district court generally lacks subject matter jurisdiction to review the merits of an administrative forfeiture decision.Boero, 111 F.3d at 304-05; United States v. One 1987 Jeep Wrangler Auto., 972 F.2d 472, 479 (2d Cir. 1992). However, district courts retain limited jurisdiction to review and correct a procedurally defective forfeiture. Boero, 111 F.3d at 305;1987 Jeep Wrangler, 972 F.2d at 480; accord United States v. Hewett, No. 02 Cr. 150 (LAP), 2003 WL 21355217, at *2 (S.D.N.Y. June 10, 2003); United States v. Cruz, No. S2 97 Cr. 54 (RPP), 1998 WL 326732, at *1 (S.D.N.Y. June 19, 1998). Such review "is limited to determining whether the agency followed the proper procedural safeguards when it declared [the] claimant's property summarily forfeited." 1987 Jeep Wrangler, 972 F.2d at 480 (internal quotation and alteration omitted). Therefore, if this Court finds that the DEA provided Patterson adequate notice of the forfeiture proceedings, it lacks jurisdiction to hear his claim that the funds seized from his apartment were lawfully derived. See Boero, 111 F.3d at 304.
Notice and an opportunity to be heard are constitutionally mandated when the government acts to deprive a person of life, liberty or property. United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993). In the context of administrative forfeitures, proper notice is that which is "`reasonably calculated under all the circumstances' to apprise [interested parties] of the pendency of the cash forfeiture proceeding."Dusenbery v. United States, 534 U.S. 161, 168 (2002) (quotingMullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314 (1950)); accord Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154, 1161 (2d Cir. 1994). Actual notice is not required.Dusenbery, 534 U.S. at 170. When the interested party is incarcerated, sending notice by certified mail to the prisoner at his correctional facility satisfies due process. Dusenbery, 534 U.S. at 168-69.
On July 23, 2002, the DEA sent notice of each forfeiture to the MDC, where Patterson was incarcerated, and received return receipts signed on July 27, 2002 acknowledging delivery. (Kash Decl. 4(i), 5(i) Exs. 14, 15, 35, 36.) Whether Patterson received these notices is not dispositive, since the Government need not ensure actual notice to comport with due process. See Dusenbery, 534 U.S. at 170. Rather, it is sufficient that the DEA mailed the notices to the correctional facility where Patterson was incarcerated and confirmed receipt. See Dusenbery, 534 U.S. at 168-69; cf. Torres, 25 F.3d at 1161 (finding the Government's efforts insufficient where the notices it mailed to a prisoner's correctional facility were returned undelivered).
Patterson nonetheless contends that the notices were deficient because he did not sign a logbook acknowledging personal receipt. In Dusenbery, the prisoner was incarcerated at a correctional facility at which inmates were not required to sign for certified mail themselves or sign a mail logbook indicating actual receipt. 534 U.S. at 165-66. The Court noted that such procedures might better assure receipt, but held that sending notice addressed to the prisoner at his facility of incarceration is sufficient.Dusenbery, 534 U.S. at 171-73. That is, the agency seeking forfeiture is entitled to rely on the integrity of the correctional facility's internal mail delivery system. See Dusenbery, 534 U.S. at 172 ("Short of allowing the prisoner to go to the post office himself, the remaining portion of the delivery would necessarily depend on a system in effect within the prison itself relying on prison staff."). Likewise here, by sending the notices to Patterson at the MDC and thereafter relying on the prison staff to effect actual delivery, the DEA took measures that were reasonably calculated to apprise Patterson of the forfeiture proceedings. See Dusenbery, 534 U.S. at 170 ("[T]he Due Process Clause does not require . . . heroic efforts by the Government; it requires only that the Government's effort be reasonably calculated to apprise a party of the pendency of the action." (internal quotation omitted)).
Patterson also argues that the notices were deficient because the address listed an inaccurate prisoner identification number. However, the notices sent to the MDC also identified Patterson by his name and alias: "Paul Thomas, Prisoner ID No. 524106054 aka Anthony Patterson." (Kash Decl. Exs. 14, 35.) At the time of his incarceration, Patterson was the only inmate at MDC with his name and there were no inmates listed under the names "Paul Thomas" or "Thomas Paul" or with the identification number "524106054." (Foley Decl. ¶ 3(b).) Under those circumstances, the notices sent to the MDC were reasonably calculated to reach Patterson. As such, any failure in the delivery process is attributable to the MDC, not the DEA.
In any event, with respect to the July 23, 2002 notice of the $18,070 forfeiture proceeding, the MDC's logbook indicates that the inmate counselor assigned to Patterson signed for the mailing, suggesting that the facility was able to identify Patterson as the intended addressee. (Foley Decl. ¶ 3(d).) Additionally, the DEA sent the April 10, 2002 notice of the $71,383 forfeiture proceeding to the attorney representing Patterson in his criminal proceeding, whose office acknowledged receipt. (Kash Decl. ¶ 5(e) Exs. 29-30.) Thus, with respect to this forfeiture proceeding, the DEA sent two constitutionally adequate notices to Patterson. See Bye v. United States, 105 F.3d 856, 857 (2d Cir. 1997) (finding adequate notice where "the government sent notice to the attorney who represented Bye in his then-pending related criminal proceeding"); United States v. Arthur, 263 F. Supp. 2d 703, 705 (S.D.N.Y. 2003); Hewett, 2003 WL 21355217, at *2-3; Cruz, 1998 WL 326732, at *2.
To the extent Patterson contends that his attorney provided ineffective assistance by failing to inform him that she had received the notice, his arguments do not alter this Court's conclusion that the DEA's methods were reasonably calculated to reach Patterson. Much like the notices sent to the MDC, the DEA was entitled to expect that Patterson's attorney would relay the notice to her client.
Accordingly, because the DEA provided Patterson adequate notice of each forfeiture proceeding, this Court lacks jurisdiction to hear Patterson's claims challenging the propriety of the forfeiture and grants the Government's motion to dismiss.
CONCLUSION
For the foregoing reasons, the Government's motion to dismiss the Complaint is granted. The Clerk of the Court is directed to mark this case closed.SO ORDERED.