United States District Court, D. Maine
RECOMMENDED DECISION ON DEFENDANT'S MOTION TO
DISMISS AND PLAINTIFF'S MOTION TO STAY
C. NIVISON U.S. MAGISTRATE JUDGE.
action, Plaintiff David Thurlow seeks the return of seized
property (U.S. currency) based on the alleged unlawful
seizure of the property and the failure of Defendant to
comply with the notice procedures of 18 U.S.C. § 983.
(ECF No. 1.)
matter is before the Court on Defendant's motion to
dismiss (ECF No. 16) and Plaintiff's motion to stay. (ECF
No. 27.) Through its motion to dismiss, Defendant contends
that because the property is in the custody of the State of
Maine, and because Plaintiff can seek return of the property
in accordance with state law, the Court should dismiss
Plaintiff's complaint. In his motion to stay, Plaintiff
asserts this matter should be stayed pending resolution of
state forfeiture proceedings.
a review of the pleadings and the record, I recommend the
Court deny Plaintiff's motion to stay, and grant without
prejudice Defendant's motion to dismiss.
and Factual Background
April 28, 2016, Defendant prosecuted Plaintiff on an
information charging four counts of distribution of fentanyl.
United States v. Thurlow, No. 2:16-CR-00053-DBH (CR
ECF No. 4). The information included a “forfeiture
allegation” seeking, upon conviction, the forfeiture of
“any and all property, constituting …
proceeds” of the offense. Id. On June 1, 2016,
Plaintiff entered a guilty plea to the criminal charges, and
the Court accepted the plea. (CR ECF No. 15.)
5, 2016, prior to sentencing, Plaintiff filed a motion for
the return of $15, 335 seized during a search of his home and
vehicle on February 25, 2016. In the motion, Plaintiff
alleged that because Defendant failed to provide proper
notice of the seizure, the property must be returned pursuant
to 18 U.S.C. § 983. (CR ECF No. 19-2). Upon the filing
of the motion, the Court docketed this civil
sentencing proceedings, the Court entered Judgment in the
criminal case on September 29, 2016. (CR ECF No. 30). The
Judgment did not include a disposition on the forfeiture
count of the information.
motion, Plaintiff alleges that on February 25, 2016, a
“taskforce” of federal and state DEA agents
seized from his home and vehicle the property, and that the
agents thereafter failed to provide him with notice of the
seizure. According to Plaintiff, Officer David Bruni of the
Gorham Police Department and Special Agents Calloway and
Hallet seized the property. (Motion for Return at 1, ECF No.
1.) Plaintiff attached to his motion a chain of custody
report, which reflects that his property was seized and
inventoried by the Maine Drug Enforcement Agency. (ECF No.
1-1, PageID # 5 - 7; see also ECF No. 1-2 (supplemental
report of Officer Bruni).)
asserts that when the property was seized, he was not at home
and he was not arrested for any offense or violation. (Motion
for Return at 3.) He further asserts it “was
subsequently days if in fact a week later [that he was]
arrest[ed] for [a] probation violation for failing to notify
of residence change.” (Id.) Plaintiff
maintains the seizure of property was not supported by
probable cause. (Id.)
amendment to his pleading, Plaintiff alleged Officer Bruni
and the Maine Drug Enforcement Agency agents provided
Plaintiff's wife with a receipt for the seized property
at their residence, but never provided a receipt to him,
despite circumstances which suggested the property belonged
to Plaintiff. (Motion to Amend at 3, ECF No. 15.) In addition
to his notice argument, Plaintiff alleges the retention of
the property constitutes a violation of due process because
he has not been provided the opportunity to object to
“the forfeiture.” (Motion to Amend at 5.)
Government filed its motion to dismiss on November 17, 2016.
(ECF No. 16.) In support of its motion to dismiss, Defendant
filed two documents, a Continuation Report of Agent Calloway,
dated November 16, 2016, and the Declaration of Vicki Rashid,
Forfeiture Counsel with the federal DEA. In his report, Agent
Calloway asserts the property is in the custody of the Maine
Department of Public Safety, and the property is “in
the process of being forfeited through the Attorney
General's office by the State of Maine.” (ECF No.
18.) In her declaration, dated November 3, 2016, Ms. Rashid
states the federal DEA took temporary custody of the property
before transferring it to the Maine DEA on the day of the
seizure. (ECF No. 17, ¶ 5.) Ms. Rashid further states
the DEA “did not initiate any forfeiture action against
the property.” (Id.)
February 7, 2017, Plaintiff filed a motion to stay. (ECF No.
27.) In the motion, Plaintiff reports he received a notice
dated January 13, 2017, from the State of Maine, which notice
informed him the property “was adjudicated as
forfeitable pursuant to an agreement by the Defendant,
Racquel Matthews Leavitt, ” and of the steps he must
take if he intended to adjudicate any legal interest he might
have in the property. (ECF No. 27-1.) Plaintiff requests the
Court stay this matter to allow him the opportunity to
exhaust the state procedure.
Motion to Dismiss Standard
to Federal Rule of Civil Procedure 12(b)(6), a party may seek
dismissal of “a claim for relief in any pleading”
if that party believes that the pleading fails “to
state a claim upon which relief can be granted.” In its
assessment of the motion, a court must “assume the
truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom.”
Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215,
221 (D. Me. 2011) (quoting Genzyme Corp. v. Fed. Ins.
Co.,622 F.3d 62, 68 (1st Cir. 2010)). To overcome the
motion, therefore, a ...