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English v. Marshall

United States District Court, D. Nebraska

August 13, 2014

KENNISHA ENGLISH, Plaintiff,
v.
FBI and U.S. MARSHALL, Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

This matter is before the Court on the complaint filed by the plaintiff, Kennisha English. The Court now conducts an initial review of the Complaint to determine whether dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A, or whether this matter should proceed to service of process.

SUMMARY OF COMPLAINT

The plaintiff asserts her 2000 GMC Sierra Pickup was improperly seized while her brother, Eric English, was in possession of the vehicle. At the time Eric English was wanted as a fugitive, and federal law enforcement assisted with his apprehension. The vehicle was seized by the Federal Bureau of Investigation for forfeiture based on alleged violations of the Controlled Substances Act. Filing 1 at 4; see also 21 U.S.C. § 881.

The plaintiff was informed of the seizure in a letter dated July 16, 2013. Filing 1 at 4. The letter informed the plaintiff she could contest the forfeiture in court by filing a claim of ownership with the FBI by August 20, 2013, and explained the procedures for doing so. The letter also informed the plaintiff that "[i]n addition to or in lieu of filing a claim" she could request a pardon of the forfeited property. Filing 1 at 5. The letter instructed her to submit a "petition for remission or mitigation of the forfeiture" and to provide "proof that [she was] a victim of the offense underlying the pending forfeiture... and the facts and circumstances... justify[ing] a return of the property." Filing 1 at 5.

In response, the plaintiff lodged a petition for remission or mitigation of forfeiture with the FBI. Filing 1 at 10. Her petition was denied on February 10, 2014. Filing 1 at 7. The plaintiff was provided 10 days in which to file a request for reconsideration. The plaintiff asked for reconsideration. Filing 1 at 9. Her request for reconsideration was undated. The Court is not aware of any further communication between the plaintiff and the FBI. Instead, the plaintiff filed her complaint in this Court and a separate motion requesting "immediate delivery of the vehicle in question." Filing 6.

APPLICABLE LEGAL STANDARD

The Court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See § 1915(e)(2). The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible, " or "their complaint must be dismissed" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002).

DISCUSSION OF CLAIMS

The plaintiff's complaint is captioned as a cause of action under the Federal Tort Claims Act ("FTCA"). Filing 1. However, she makes clear in the body of the complaint and in her subsequent filing that she is seeking judicial review of the FBI's administrative decision and is asking the Court to order the return of her vehicle. See, filing 1 at 4; filing 6 at 1.

FEDERAL TORT CLAIMS ACT

The plaintiff brings her claim under the Federal Tort Claims Act seeking the return of her pickup. Under 28 U.S.C. § 2674, the United States has waived its right to sovereign immunity for certain tort claims. However, excluded from this waiver are any claims "arising in respect of... the detention of any goods, merchandise, or other property by... any other law enforcement officer. 28 U.S.C. § 2680(c). This has been interpreted broadly to include the seizure of property by any law enforcement officer. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 220-21 (2008). The FBI has immunity from suits under the FTCA relating to its seizure of property and the plaintiff's complaint does not state a cause of action for which relief can be granted under the FTCA. See, e.g., Lippman v. City of Miami, 622 F.Supp.2d 1337, 1344 (S.D. Fla. 2008); Hallock v. United States, 253 F.Supp.2d 361, 366-67 (N.D.N.Y. 2003).

The FTCA does permit claims based on injury or loss of property seized for forfeiture to proceed under certain limited conditions. See § 2680(c)(1-4). But that ...


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