Opinion
No. 03-CV-0804.
July 14, 2004
MEMORANDUM ORDER
Pro se plaintiff commenced this action for compensatory damages for the destruction of personal property seized by the United States Customs Service subsequent to plaintiff's arrest in 2001. The Court regards plaintiff's complaint as an action under the Federal Tort Claims Act ("FTCA"). 28 U.S.C. §§ 1346, 2671et seq.
Defendant moves to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment pursuant to Federal Rules of Civil Procedure Rule 56. Because the Court refers to materials outside the pleadings, the Court construes the motion as one for summary judgment. Pursuant to Local Civil Rule 56.2, defendant sent plaintiff the appropriate notice on September 2, 2003.
BACKGROUND
Petitioner arrived at John F. Kennedy Airport on a flight from Nairobi on September 4, 2001 and was arrested for importing heroin. At the time of his arrest, the United States Customs Service ("Customs") seized his luggage, including $712 in United States currency. Customs inventoried plaintiff's property and plaintiff initialed a Baggage Release Notice. See Nielsen Decl. at Ex. 2. Customs stored petitioner's property at the Customshouse at 6 World Trade Center in New York City. See Nielsen Decl. at Ex. 1. On or about November 29, 2001, petitioner pled guilty to importing heroin in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(1)(A) and was sentenced to imprisonment for thirty-seven (37) months to be followed with three years supervised release. Petitioner was also ordered to pay a special assessment of $100, of which $75 has been paid.Petitioner's property was destroyed in the attacks on the World Trade Center on September 11, 2001. Petitioner made no attempt to retrieve his property prior to September 11, 2001. However, after the terrorist attacks petitioner made several attempts. For example, by letter dated October 9, 2001, petitioner's criminal defense attorney requested the transfer of petitioner's currency to his commissary account and the shipment of his personal property to a designee in Nairobi, Kenya. However, on December 4, 2001, the government notified petitioner's criminal counsel that his personal property, including the currency, was destroyed in the September 11 attacks.
Customs also received two letters from petitioner after September 11th requesting the return of his currency and personal property. See Nielsen Decl. at Ex. 3, Ex. 4. Customs sent a response which again informed petitioner that his property had been destroyed in the World Trade Center attacks. Further, the letter advised petitioner that he could file a claim with Customs under the Federal Tort Claims Act, which he did on May 30, 2002. Nielsen Decl., Ex. 5, Ex. 6. Customs denied the claim on the ground that the property loss was not caused by a wrongful or negligent act of a Customs employee. Nielsen Decl., Ex. 8. The letter also informed Thariki that he could file suit in federal court, which he did in February 2003.
DISCUSSION
Summary judgment can be granted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Summary judgment "is properly granted only where no rational finder of fact could find in favor of the nonmoving party." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000).
The Federal Tort Claims Act waives sovereign immunity and allows parties to sue the United States "for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope his office or employment." 28 U.S.C. § 1346(b). However, 28 U.S.C. § 2680(c) is an exception to the FTCA's broad waiver of sovereign immunity and bars claims "arising in respect of . . . the detention of any goods or merchandise by any officer of customs. . . ." The Supreme Court has read this exception broadly, finding that the FTCA does not waive sovereign immunity for suits involving the detention of goods by customs agents. Kosak v. United States, 465 U.S. 848, 854 (1984).
In 2000, the FTCA was amended to allow, in limited circumstances, suits for damages to property seized for criminal forfeiture. 28 U.S.C. § 2680(c)(1)-(4). Plaintiff does not argue, and nothing in the record suggests, that he can benefit from this narrow exception. In order to satisfy this amendment "a claimant must show not only that his `property was seized for the purpose of forfeiture,' id. § 2680(c)(1), but also that he `was not convicted of a crime' for which his property was subject to forfeiture, id. § 2680(c)(4)." Adeleke v. U.S., 355 F.3d 144, 154 (2d Cir. 2004). Therefore, even if Thariki's property came within § 2680(c)(1), his inability to satisfy § 2680(c)(4) would prevent him from utilizing this exception.
Since the parties initiated this motion, the Second Circuit has addressed the issue presented. In Adeleke v. U.S., the Second Circuit held that pursuant to Kosak there is no "negligence" exception to § 2680(c)'s retention of sovereign immunity for claims pertaining to the detention of property by law enforcement officials. 355 F.3d 144, 154 (2d Cir. 2004). Plaintiff has received notice of the destruction of his property in the terrorist attacks and seeks damages, presumably, for Customs' negligent role in the destruction of his property. Thus, because Thariki's case falls squarely within the § 2680(c) exception to the FTCA waiver of sovereign immunity, there is no federal jurisdiction to hear his damages claim. Defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close the case.
SO ORDERED.