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MONTGOMERY v. SCOTT

September 17, 1992

JOHN MONTGOMERY, Plaintiff,
v.
WILLIAM SCOTT, Administrator, Drug Enforcement Administration, Rochester, New York; ROBERT NEERING, Administrator, Drug Enforcement Administration, Forfeiture Fund, Rochester, New York; JOHN FESTER, Agent-in-Charge, Drug Enforcement Administration, Rochester, New York; and WILLIAM J. SNIDER, Chief Counsel, Assets Forfeiture Section, Washington, D.C.1 Defendants.



The opinion of the court was delivered by: DAVID G. LARIMER

DECISION AND ORDER

 Plaintiff John Montgomery ("Montgomery") brings this action against defendants William Scott, Robert Nearing, John Ferster and William Snider to set aside the administrative forfeiture of $ 32,000 in United States currency. Plaintiff challenges the forfeiture on two grounds: first, that he was deprived of his Fifth Amendment right to due process because the United States Drug Enforcement Administration (the "DEA") did not provide him with proper notice of the forfeiture proceedings; and second, that the DEA refused to provide him with information regarding the forfeiture that he requested under the Freedom of Information Act ("FOIA"). Defendants now move for summary judgment under Rule 56(c), Fed.R.Civ.P., dismissing both claims.

 For reasons discussed more fully below defendants' motion for summary judgment dismissing plaintiff's due process claim is denied and their motion for summary judgment dismissing plaintiff's FOIA claim is granted. Furthermore, because I find on the undisputed facts that plaintiff was deprived of his right to due process of law in connection with the administrative forfeiture of the $ 32,000, summary judgment vacating the administrative forfeiture is granted, sua sponte, in favor of plaintiff.

 BACKGROUND

 On November 23, 1988 officers of the Rochester Police Department ("RPD") entered plaintiff's apartment at 32 Buena Place in Rochester and arrested him on charges of possession and sale of a controlled substance. During the arrest the officers found and seized $ 32,000 in United States currency. After the arrest the RPD turned over to the DEA the crime reports on the arrest and seizure. Based on these reports, the DEA concluded that probable cause existed to forfeit the money under 21 U.S.C. § 881(a)(6) *fn2" as proceeds of a drug transaction.

 The DEA commenced administrative forfeiture proceedings against the money in June 1989. On June 2, 1989, the DEA sent a notice, via certified mail, to 32 Buena place, to notify plaintiff of the forfeiture proceedings. The notice explained that a claimant could contest the forfeiture in court by filing a claim and a bond within twenty days of the first publication of notice. It also explained that a claimant could seek an administrative remission or mitigation of the forfeiture by submitting a petition to the DEA's Asset Forfeiture Section within thirty days of receipt of notice. Notice of the forfeiture was published in three successive Wednesday editions of USA Today, starting on June 7, 1989 and ending on June 21, 1989.

 On June 22, 1989, three weeks after the notice was sent, the post office, after three unsuccessful delivery attempts, returned it to the DEA as unclaimed. Thereafter, the DEA made no other attempts to notify plaintiff. Instead, the DEA waited until July 21, 1989, and then declared the money forfeited. During that time no claims were filed and no petitions for remission or mitigation were submitted.

 Plaintiff contends that he was unaware of the forfeiture proceedings during the time that he could have contested or sought a remission or mitigation. He contends that he first learned of the forfeiture in late 1989 or early 1990, sometime before his trial in state court on charges of possession and sale of a controlled substance. Plaintiff learned of the forfeiture from his defense attorney, John DeMarco ("DeMarco"), who had discovered on or after July 21, 1989 that the money had been forfeited. (Compl. at A57).

 Plaintiff did not immediately initiate any attempts to challenge the forfeiture. Instead, he waited until after his criminal trial, which resulted in his conviction on the charge of possession of a controlled substance. Following the conviction, plaintiff was sentenced to eighteen years to life imprisonment and incarcerated at Attica Correctional Facility ("Attica"). Once at Attica plaintiff began mailing numerous FOIA requests to several federal agencies in an attempt to determine the whereabouts of the money. Plaintiff sent FOIA requests concerning the $ 32,000 to, inter alia, the DEA's Asset Forfeiture Section, the U.S. Attorney's office for the Western District of New York, and the U.S. Customs office.

 Both the U.S. Attorney's office and the U.S. Customs office responded with letters indicating that a search of their records revealed that they did not have any information regarding the $ 32,000. The DEA responded with a letter stating that before it would release the requested information, plaintiff had to submit a notarized signature or other proof of identity. The DEA also sent plaintiff a copy of the Declaration of Forfeiture, which stated that the $ 32,000 was forfeited to the United States pursuant to 19 U.S.C. § 1609.

 Plaintiff subsequently commenced this suit to challenge the administrative forfeiture on the grounds that he was denied due process and that defendants did not comply with his FOIA requests for information regarding the forfeiture.

 DISCUSSION

 Plaintiff contends that the basis for relief in this action is Rule 60(b)(1)(6), Fed.R.Civ.P. Rule 60(b)(1)(6), however, is not a basis for relief, because the money was forfeited pursuant to the DEA's administrative forfeiture proceeding. Nevertheless, because plaintiff is proceeding pro se I am obliged to read his pleadings and other submissions liberally and determine whether he can prove any "set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972). As the discussion below reveals, I find that plaintiff has stated a claim for relief.

 A. Subject Matter Jurisdiction, Personal Jurisdiction, Qualified Immunity, and Sovereign Immunity

 Defendants first contend that I need not look to the merits of plaintiff's claims because this action should be dismissed on the grounds that this court lacks subject matter jurisdiction and personal jurisdiction, and that all defendants are shielded from liability under the doctrine of qualified immunity or, alternatively, the doctrine of sovereign immunity. I do not agree with defendants' arguments on these matters.

 First, this is an action in which plaintiff seeks to set aside the administrative forfeiture of the $ 32,000. Plaintiff contends that the forfeiture should be set aside because he was not given proper notice of the forfeiture proceeding. His claim rests on his due process rights arising from the Fifth Amendment's due process clause. Consequently, I find, as have other courts, that subject matter jurisdiction arises from 28 U.S.C. § 1331. *fn3" See Marshall Leasing, Inc. v. U.S., 893 F.2d 1096, 1102-03 (9th ...


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