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DAWSON v. DEA

June 11, 1996

BESSIE BROWN DAWSON, Plaintiff, against THE DRUG ENFORCEMENT ADMINISTRATION AND THE UNITED STATES DEPARTMENT OF JUSTICE, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Plaintiff Bessie Brown Dawson, appearing pro se, filed the instant complaint seeking the return of $ 4,200 administratively forfeited by the United States Drug Enforcement Administration ("DEA"). *fn1" Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants move to dismiss or in the alternative for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that the Court lacks subject matter jurisdiction.

 BACKGROUND

 On March 22, 1994, law enforcement officers of the DEA and state and local agencies executed a federal search warrant at Nathaniel Dawson Sr.'s home on Briggs Avenue in Bronx, New York. See Defendants' Statement Pursuant to Local Rule 3(g) ("Def. 3(g) Stmt.") P 1; Plaintiff's Statement Pursuant to Local Rule 3(g) ("Pltff. 3(g) Stmt.") P 1. Pursuant to the search, the DEA seized $ 4,200 allegedly owned by Nathanial Dawson Sr.'s wife, Bessie Brown Dawson. Def. 3(g) Stmt. P 1; Pltff. 3(g) Stmt. P 1. On April 25, 1994, the DEA sent a written Notice of Seizure to plaintiff's Briggs Avenue address by certified mail, return receipt requested. See Def. 3(g) Stmt. P 2. On May 3, 1994, plaintiff received this notice, and a signed receipt was thereafter returned to the DEA. Pltff. 3(g) Stmt. P 5; Declaration of William J. Snider Sworn to August 31, 1995 ("Snider Decl.") P 4(b). The Notice of Seizure stated the DEA's intention to forfeit the $ 4,200 and explained that plaintiff could file a petition for remission and/or mitigation of forfeiture with the DEA within thirty days of receipt of the Notice of Forfeiture, or in the alternative contest the seizure of the property in federal district court by filing a claim and cost bond within twenty days of the first publication of the seizure. See Snider Decl., Exh. 1. In addition, the notice provided that plaintiff could file an affidavit to proceed in forma pauperis if she was unable to afford a cost bond. *fn2" Id.

 At some point after May 24, 1994, the DEA became aware that both Nathaniel Dawson, Jr. and Nathaniel Dawson, Sr. might also have an interest in the seized money. Snider Decl. PP 4(e)-(k). On August 2, 1994, the DEA sent three Notices of Seizure stating the DEA's intent to forfeit the money, to Nathaniel Dawson, Jr. and Sr. under separate cover at different addresses by certified mail, return receipt requested. Def. 3(g) Stmt. PP 9-16. All six notices were thereafter returned to the DEA undelivered. Id. P 16.

 On October 18, 1994, the DEA mailed under separate cover Notices of Seizure to Nathaniel Dawson, Jr. and Sr. at the Baltimore City Detention Center in Baltimore, Maryland. Id. PP 17-22. These notices stated the DEA's intention of forfeiting the currency and explained the procedure for petitioning for remission and/or mitigation of forfeiture or in the alternative, for the filing of a claim and either a cost bond or in forma pauperis petition. Snider Decl., Exhs. 16, 28; see also, n.2, supra. Nathaniel Dawson, Sr. and Nathaniel Dawson, Jr. received these letters on October 21 and October 24, 1994, respectively, and the signed receipts were thereafter returned to the DEA. Def. 3(g) Stmt. PP 19, 22; Snider Decl., Exhs. 17, 19.

 Neither Nathaniel Dawson, Jr. nor Sr. ever responded to the Notices of Seizure. Def. 3(g) Stmt. P 23. On December 2, 1994, pursuant to 19 U.S.C. § 1609, the DEA forfeited the $ 4,200. Id. P 24.

 In or around November 1994, plaintiff completed and signed, and at some point thereafter mailed, a claim form and petition for remission to the United States Attorney's Office for the Southern District of New York. Snider Decl. Exh. 21. These forms were undated but had a Certificate of Service attached with a blank space for the date in November 1994 as follows: "this day of November, 1994." Id. On these forms plaintiff stated that a $ 420 cost bond had been filed with the DEA as required by the Notice of Seizure but provided no date on which the cost bond had been filed. Id. P 5. The United States Attorney's Office transferred the claim forms to DEA Forfeiture Counsel, who received them on February 27, 1995. Snider Decl. P 4(m); Def. Memo. at 4.

 On March 24, 1995, the DEA mailed plaintiff a letter stating that it had no record of a cost bond having been filed by plaintiff, that the currency had already been forfeited, and that the case was closed. Dawson received this letter on April 3, 1995. Def. 3(g) Stmt. PP 28-29; Pltff. 3(g) Stmt. P 26.

 Thereafter, in an envelope postmarked May 2, 1995, the DEA received a bank check dated May 1, 1995 drawn on the account of B. Brown Dawson at the National Westminster Bank of New Jersey and payable to the "U.S. DEPT OF JUSTICE DEA" in the sum of $ 5,161.38. *fn4" Id. P 37; Snider Decl., Exh. 26. By letter dated May 9, 1995, addressed to plaintiff in care of Cardin, the DEA returned the check and repeated that plaintiff's claim had been untimely filed. Def. 3(g) Stmt. PP 38-40. The letter and accompanying check were received on May 12, 1995. Snider Decl., Exh. 28.

 On May 19, 1995, Cardin mailed the check to the Assistant United States Attorney ("AUSA") in Baltimore who had prosecuted both Nathaniel Dawson, Jr. and Sr. Def. 3(g) Stmt. PP 41-42. On June 2, 1995, the AUSA forwarded the check to the United States Attorney for the Southern District of New York. Id. P 43. By letter dated August 24, 1995, the United State's Attorney for the Southern District of New York returned the check ...


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