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OTONYE v. UNITED STATES

May 17, 1995

KALAMGO OTONYE, Plaintiff, against UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: GO

 GO, United States Magistrate Judge:

 Plaintiff Otonye Kalamgo, pro se and in forma pauperis, seeks the return of personal property allegedly seized from him upon his arrest by agents of the defendant United States. By order dated October 15, 1992, Judge Reena Raggi referred this matter to the assigned Magistrate Judge *fn1" for report and recommendation on matters in dispute and on defendant's subsequent motion to dismiss. For the reasons set forth below, I respectfully recommend that defendant's motion to dismiss and plaintiff's application for relief be denied.

 BACKGROUND

 Plaintiff was arrested on June 12, 1991 upon his arrival at John F. Kennedy Airport for illegally smuggling heroin in his brief case. He subsequently pleased guilty to charges of importation of heroin and was sentenced by Judge Raggi to a term of imprisonment at a federal facility.

 By letter filed with the Court on September 3, 1992 addressed to Judge Raggi, plaintiff sought the return of certain personal property seized upon his arrest. He claimed that although the Government had returned hand luggage containing food items and shoes, the government had failed to return "the main luggage that contains all my clothing, including a camera." Treating plaintiff's letter as a complaint and motion for return of property Judge Raggi ordered the Government to respond.

 In a letter dated September 1, 1992, *fn2" Assistant United States Attorney ("AUSA") Elizabeth Lesser advised the court that the Government had originally seized a grey duffel bag containing traditional African clothing, shoes, toiletries and dried fish, as well as a watch, necklace, black belt, miscellaneous documents and $ 298.00 in United States currency. AUSA Lesser claimed, as set forth in an affidavit of Special Agent Gerald Heller of the United States Customs Service, that this constituted all the property seized from Mr. Kalamgo. She also advised that all this property had been properly forwarded to appropriate parties: Mr. Kalamgo's passport, alien registration card and airline ticket were sent to the Immigration and Naturalization Service, the money and remaining documents to Mr. Kalamgo at the prison where he was incarcerated, and all the personal property, except the dried fish, to Sambo Nelson, a person designated by Mr. Kalamgo.

 Because of the factual dispute regarding the extent of the personal property that had been seized from plaintiff, I ordered an evidentiary hearing and directed plaintiff to submit a list of items that he claimed were not returned by the Government and their estimated values. Plaintiff then submitted a list with his affidavit dated October 20, 1993 which contained eighteen categories of items which plaintiff claimed were missing and were worth $ 12,900.00. See Defendant's Exhibit 4.

 After an evidentiary hearing held on November 10, 1993, the United States filed a motion to dismiss for lack of subject matter jurisdiction.

 DISCUSSION

 Motion to Dismiss

 On a motion to dismiss, the allegations in the complaint must be construed liberally in favor of the plaintiff, particularly where plaintiff is pro se. McNeil v. United States, 508 U.S. 106, 124 L. Ed. 2d 21, 113 S. Ct. 1980, 1984 (1993). All well pleaded allegations must be accepted as true. Kossick v. United Fruit Co., 365 U.S. 731, 6 L. Ed. 2d 56, 81 S. Ct. 886 (1961); Kenevan v. Empire Blue Cross and Blue Shield, 791 F. Supp. 75, 78 (S.D.N.Y. 1992). In addition, when a question of subject matter jurisdiction is raised, a court may look beyond the face of the pleadings to consider evidence, by affidavits or otherwise, which bears upon the jurisdictional issue. Land v. Dollar, 330 U.S. 731, 735 n.4, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947), overruled on other grounds, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 93 L. Ed. 1628, 69 S. Ct. 1457 (1949); Cargill Intern., S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993).

 The government contends that jurisdiction does not exist in this case under either the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., or the Tucker Act, 28 U.S.C. § 1346, which it claims are the "two possible basis [sic] for district court jurisdiction" established under Mora v. United States, 955 F.2d 156 (2d Cir. 1992). See Government's Memorandum in Support of Its Motion to Dismiss the Plaintiff's Complaint, p. 2 ("Def.'s Memo."). Remarkably, in a later submission, the government argued that Mora and other recent Second Circuit decisions were wrongly decided and conflicted with Supreme Court opinions that did not address the precise issues decided by the Second Circuit. See Letter of AUSA Jennifer Boal dated May 4, 1994 ("Boal Let."). Such a position is based on an incorrect and wooden reading of Mora.


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