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Thurlow v. United States

United States District Court, D. Maine

February 22, 2017

DAVID THURLOW, III, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

          RECOMMENDED DECISION ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION TO STAY

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         In this 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.)[1]

         The 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.

         Following 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.

         Procedural and Factual Background

         On 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.)

         On July 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 case.[2]

         Following 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.

         In his 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).)

         Plaintiff 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.)

         In an 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.)

         The 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.)[3] Ms. Rashid further states the DEA “did not initiate any forfeiture action against the property.” (Id.)

         On 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.

         Discussion

         A. Motion to Dismiss Standard

         Pursuant 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 ...


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