Pou claims that the March 24 forfeiture notice is statutorily defective because he did not sign the postal receipt card and did not actually receive the notice until almost a year and a half after the currency had been forfeited. Pursuant to 19 U.S.C. § 1607(a), an agency commencing forfeiture proceedings is required to publish and send written notice of the seizure and its intention to forfeit the property to any interested party.
The statutory notice requirements are satisfied by notice mailed to the interested party's last known address. See Sarit v. U.S. Drug interested party's last known address. See Sarit v. U.S. Drug Enforcement Administration, 987 F.2d 10, 13 (1st Cir. 1993). It follows that written notice of the seizure sent to the interested party's undisputed home address by certified mail, return receipt requested satisfies the statutory requirements, especially where, as here, the DEA received a signed postal receipt bearing Pou's name, Pou concedes that the March 24 forfeiture notice was mailed to his correct residential address and Pou does not dispute that notice by publication was proper. See Pltff. 3(g) Stmt. P 10; Pet. Mem. II at 5.
Nor was the March 24 forfeiture notice constitutionally defective. It is well established that the constitutional notice requirements set forth in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950), apply to notice of forfeiture proceedings. See United States v. 51 Pieces of Real Property, 17 F.3d 1306, 1316 (10th Cir. 1994); Taft v. United States, 824 F. Supp. 455, 464 (D. Vt. 1993); Gonzales v. Baum, 1992 U.S. Dist. LEXIS 5873, *6, 1992 WL 97223 at *2 (S.D.N.Y. Apr. 28, 1992); Balogoun v. United States, 1992 U.S. Dist. LEXIS 19477, *3, 1992 WL 394186 at *1 (E.D.N.Y. Dec. 11, 1992). Under the Mullane standard, due process is satisfied by "'notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them of an opportunity to present their objections." Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir. 1988), cert. denied, 488 U.S. 1005, 102 L. Ed. 2d 777, 109 S. Ct. 785 (1989) (quoting Mullane, 339 U.S. at 314) (other citations omitted).
Neither due process nor the relevant forfeiture statute requires that a forfeiture claimant actually receive timely notice of an impending forfeiture. See 51 Pieces of Real Property, 17 F.3d at 1316 (citing Weigner, 852 F.2d at 649); Taft, 824 F. Supp. at 464; Gonzales, 1992 U.S. Dist. LEXIS 5873, at *3, 1992 WL 97223 at *2; Balogoun, 1992 U.S. Dist. LEXIS 19477, at *3, 1992 WL 394186 at *1. In the instant case, after the first two notices were returned as undelivered, the DEA conducted a field investigation and determined Pou's undisputed correct residential address. It then sought to effect notice by certified mail, return receipt requested, much greater notice than due process ordinarily requires. See Weigner, 852 F.2d at 650 ("under most circumstances, notice sent by ordinary mail is deemed reasonably calculated to inform interested parties that their property rights are in jeopardy"); Torres v. $ 36,256.80 U.S. Currency, No 93-871, slip op. 4689, 4703-04 (2d Cir. June 10, 1994) (due process may be satisfied "where the DEA made the reasonable assumption that first class mail had reached its destination"). Since the DEA had no reason to believe the signature on the certified mail receipt had been forged, as Pou claims, defendants clearly had reason to believe that notice had been received.
See Weigner, 852 F.2d at 650 (signed certified mail receipt provides "virtually conclusive evidence that the notice was received"); see also Balogoun, 1992 U.S. Dist. LEXIS 19477, *3, 1992 WL 394186 at *1 (due process satisfied where agency mails notice to claimant's prison address, even though, due to prison transfer, notice is actually received after forfeiture takes place).
Pou brings his claims against defendants Rogers and Fritzen pursuant to 42 U.S.C. § 1983, which requires proof that defendants deprived him of a right secured by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds in Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). To have acted under color of state law, the § 1983 defendant must "have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941)). To be liable under § 1983, a defendant's infringement must be "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Where, as here, it is undisputed that defendants Rogers and Fritzen were acting in their capacity as federal officers as DEA task force agents, they were not acting under color of state law, and a § 1983 claim must fail. See Kingsley v. Bureau of Prisons, 937 F.2d 26, 30, n. 4.
The Court will therefore construe Pou's complaint against defendants Rogers and Fritzen as a Bivens claim. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (recognizing a private right of action against federal officers for violations of federal constitutional rights); see also Carlson v. Green, 446 U.S. 14, 18, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980).
Even so construed, the claims must be dismissed because they are barred by collateral estoppel. It is undisputed here that the validity of the search, seizure or arrest at issue was previously upheld in a state court suppression hearing. See Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980); United States Currency in the Amount of $ 228,536.00, 895 F.2d 908, 917-18 (2d Cir) (dismissing fourth Amendment claim asserted by claimant in forfeiture action), cert. denied sub nom Parker v. United States, 495 U.S. 958, 109 L. Ed. 2d 747, 110 S. Ct. 2564 (1990); Brown v. De Fillipis, 717 F. Supp. 172, 178-79 (S.D.N.Y. 1989) (dismissing § 1983 claim). During the conspiracy trial, Pou moved to suppress the $ 18,200 on the ground that it was obtained during an illegal search and seizure. After conducting an extensive hearing, the trial court denied Pou's motion to suppress. Thereafter, Pou raised and the Appellate Division rejected Pou's search and seizure arguments on appeal.
In any event, Pou makes no allegations that Fritzen and Rogers were directly and personally responsible for the conduct complained of, or that they committed a specific wrongful act. Indeed, Pou alleges that the $ 18,200 was seized by DEA Task Force Agents Loszynski and Tousant, who are no longer defendants. See Compl. P IV.1. Defendant Fritzen was present but participated in neither the searches nor the seizure of the currency. See Fritzen Decl. P 7-9. Defendant Rogers participated in the surveillance on that day, but was not present at the time the vehicle was searched. See Rogers Decl. P 6-7. It follows that no rational fact finder could find them liable for the alleged constitutional violations complained of.
See Williams v. Smith, 781 F.2d 319, 322 (2d Cir. 1986); Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987), cert. denied, 489 U.S. 1065 (1989); Washington Square Post # 1212 v. City of New York, 720 F. Supp. 337, 347 (S.D.N.Y. 1989), rev'd on other grounds, 907 F.2d 1288 (2d Cir. 1990); Lee v. Carlson, 645 F. Supp. 1430, 1436 (S.D.N.Y. 1986), aff'd mem., 812 F.2d 712 (2d Cir. 1987).
Furthermore, taking all of the facts alleged by Pou as true and construing all inferences drawn therefrom in Pou's favor, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), Fritzen and Rogers would be entitled to qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Butz v. Economou, 438 U.S. 478, 507, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). When Pou's vehicle was stopped on October 16, 1988, Fritzen and Rogers knew that a search warrant authorizing the search of Pou's vehicle had been issued. See Fritzen Decl. PP 4, 7; Rogers Decl. P 3. Under the circumstances as alleged, a reasonable officer would have believed that his reliance upon a facially valid search warrant obtained by another officer was lawful. See Salmon v. Schwarz, 948 F.2d 1131, 1140-41 (10th Cir. 1991); Morris v. County of Tehama, 795 F.2d 791, 795 (9th Cir. 1986).
For the reasons set forth above, defendants' motion for summary judgment shall be and hereby is granted. Accordingly, the Clerk of Court is directed to dismiss the complaint as to defendants DEA, Fritzen and Rogers.
It is SO ORDERED.
Dated: New York, New York
April 26, 1996
John E. Sprizzo
United States District Judge