Opinion
99 Civ. 3772 (JGK)
September 28, 2000
OPINION AND ORDER
Plaintiff Absalom Gonzalez-Jimenez brings this action pro se and in forma pauperis for the return of his property allegedly seized pursuant to a search warrant at the time of his arrest by agents of the defendant, the United States. Specifically, Mr. Gonzalez-Jimenez requests the return of: (1) United States currency in the amount of $204; (2) Colombian currency in the amount of 60,410 pesos; (3) a Columbian identification card; (4) a Colombian military card; (5) a Colombian passport; (6) a leather billfold; (7) a leather handbag; (8) clothing; and, (9) a gold chain. The Government now moves to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim on which relief may be granted. In the alternative, the Government seeks summary judgment pursuant to Fed.R.Civ.P. 56.
Agents of both the Customs Service and the Drug Enforcement Administration participated in the search. The Customs Service maintained records of all items that were seized from the apartment. (See Def. Mem. Ex. A, ¶ 1.)
I.
The plaintiff was arrested in February 1994. At the time of his arrest, $206 in United States currency was seized from him incident to the arrest. Pursuant to a search warrant, on February 2, 1994, agents with the United States Customs Service ("Customs Service") and the Drug Enforcement Administration ("DEA") searched an apartment where the plaintiff was allegedly living and seized items believed to be of evidentiary value. On May 12, 1995, Absalom Gonzalez-Jimenez ("Gonzalez-Jimenez"), was convicted in this Court of certain narcotics offenses. On May 8, 1997, the United States Court of Appeals for the Second Circuit issued its mandate affirming the Final Judgment of Conviction against Mr. Gonzalez-Jimenez.
On May 17, 1999, Mr. Gonzalez-Jimenez, proceeding pro se, filed a motion pursuant to Fed.R.Crim.P. 41(e) for the return of certain personal property allegedly seized on the day of his arrest and from the apartment pursuant to the search warrant. In particular, Mr. Gonzalez-Jimenez moved for the return of: (1) United States currency in the amount of $204; (2) Colombian currency in the amount of 60,410 pesos; (3) a Columbian identification card; (4) a Colombian military card; (5) a Colombian passport; (6) a leather billfold; (7) a leather handbag; (8) clothing; and, (9) a gold chain.
In relevant part, Fed.R.Crim.P. 41(e) provides:
A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant . . . .
Fed.R.Crim.P. 41(e).
By Order dated May 17, 1999, Judge Sprizzo, to whom the case was then assigned, ordered the Government to respond to the plaintiff's motion. By letter dated October 4, 1999, the Government, through Assistant United States Attorney Sean Eskovitz, informed the Court that the $206 had been returned to the plaintiff by Treasury check on or after August 9, 1999. The Government also submitted an affirmation, dated October 4, 1999, from Henry W. Petersen, ("Peterson Aff.") a Special Agent with the United States Customs Service who participated in the February 2, 1994 search during which various items belonging to Mr. Gonzalez-Jimenez were seized. In his affirmation Agent Petersen states that he does not recall, and the Customs Service has no record of, seizing a leather bag, clothing or a gold chain from Mr. Gonzalez-Jimenez. By letter dated November 15, 1999 the Government, again through AUSA Eskovitz, further informed the Court that the Government was unable to locate the Colombian currency, the Colombian identification card, the Colombian military card, the Colombian passport, and the billfold that the plaintiff alleges were seized from him. On June 12, 2000, this Court directed the Government to move or answer with respect to the plaintiff's complaint and this motion followed.
I. A.
On a motion to dismiss, the allegations in the complaint are accepted as true. See Cohen v. Koenig, 25 F.3d 1168, 1172-73 (2d Cir. 1994). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hasset, 886 F.2d 8, 11 (2d Cir. 1989). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, the defendant's motion should only be granted if it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994); see also Goldman, 754 F.2d at 1065.
Where a pro se litigant is involved, the same standards for dismissal apply. However, the Court should give the pro se litigant special latitude in responding to a motion to dismiss.Gaston v. Gavin, 97 Civ. 1645, 1998 WL 7217, at *1 (S.D.N.Y. Jan. 8, 1998) (quotation omitted), aff'd, 172 F.3d 37 (2d Cir. 1998)Adams v. Galletta, 966 F. Supp. 210, 211 (S.D.N.Y. 1997)
B.
The Government argues that this Court lacks subject matter jurisdiction over this action. The Government alleges that the $206 was returned by Treasury check to the plaintiff and the Government never seized any leather handbag, clothing, or gold chains belonging to the plaintiff. It argues that since the Government no longer possesses any of the remaining items, the plaintiff's only remaining claim is for monetary damages under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq..
The Government claims that the FTCA provides the exclusive means by which the plaintiff may sue the Government for monetary damages based on the destruction or loss of his property and that the plaintiff must first exhaust his administrative remedies.
The Court of Appeals for the Second Circuit has consistently held that the "district court where a defendant is tried has ancillary jurisdiction to decide a defendant's posttrial motion for the return of seized property." Soviero v. United States, 967 F.2d 791, 792 (2d Cir. 1992); see also Rufu v. Unites States, 20 F.3d 63, 65 (2d Cir. 1994); Mora v. Unites States, 955 F.2d 156, 158 (2d. Cir. 1992); Hernandez v. United States, 86 F. Supp.2d 331, 337 (S.D.N.Y. 2000); Otonye v. United States, 903 F. Supp. 357, 360 (E.D.N.Y. 1995). When made after the termination of criminal proceedings such a motion is properly treated as a new civil complaint for equitable relief even if styled as being pursuant to Fed.R.Crim.P. 41(e). See Onwubiko v. United States, 969 F.2d 1392, 1396 (2d Cir. 1992) ("[W]here criminal proceedings against the movant have already been completed, the District Court should treat a rule 41(e) motion as a civil complaint."); see also Boero v. Drug Enforcement Admin., 111 F.3d 301, 303 n. 1 (2d Cir. 1997); Soviero, 967 F.2d at 792-93; Mora, 955 F.2d at 158; Acheampong v. United States, No. 99 Civ. 2169, 2000 WL 1262908, at *3 (S.D.N.Y. Sept. 5, 2000). "[W]hen a court has asserted its equitable jurisdiction over a matter, it retains that jurisdiction so long as necessary to afford appropriate relief to the movant." Mora, 955 F.2d at 160 (rejecting Government's argument that it would be improper for district court to exercise equitable jurisdiction to award damages because the FTCA provided the plaintiff with an adequate remedy at law). In instances where the Government has lost or destroyed property which should have been returned to the movant, the Court has the authority to award money damages in lieu of the equitable relief sought. See Rufu, 20 F .3d at 65; Soviero, 967 F.2d at 793; Mora, 935 F.2d at 159-60; Hernandez, 86 F. Supp.2d at 337; Otonye, 903 F. Supp. at 360.
In this case, it is clear that the Government's argument that jurisdiction does not exist because the FTCA provides the exclusive means by which the plaintiff may sue the Government for monetary damages based on the destruction or loss of his property is without merit. Even assuming as true that the $206 was returned to the plaintiff and that no leather handbag, clothing, or gold chains were ever seized, the Court retains equitable jurisdiction to decide the motion to return seized property and award whatever damages are incident to the complaint with respect to the seized property that has not been returned and is no longer in the Government's possession. Thus, the Government's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim is denied.
II.
In the alternative, the Government seeks summary judgment pursuant to Fed.R.Civ.P. 56.
A.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried."Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). On a motion for summary judgment, once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed.R.Civ. p. 56(e). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993 see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Wyler v. Unites States, 725 F.2d 156, 160 (2d Cir. 1983).
In addition, under the Local Civil Rules for this District, a party moving for summary judgment must submit "a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried" together with citations to evidence to support the allegedly undisputed facts. See Local Rule 56.1(a) (d). The failure to comply with Local Civil Rule 56.1 is an adequate basis on which to decide a motion for summary judgment. See Local Rule 56.1(a).
Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See McPherson, 174 F.3d at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994);Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
B.
In support of the motion for summary judgment, the Government has resubmitted the Peterson Affirmation. In his affirmation, Agent Petersen states: (1) that the Government has already returned the $206 in U.S. currency; (2) that the Customs Service never seized a leather bag, clothing or a gold chain from Mr. Gonzalez-Jimenez, and (3) that despite diligent efforts, the Government has not located the remaining items the plaintiff claims were seized from him. (Peterson Aff. ¶¶ 2-4.) The government has not submitted a Rule 56.1 statement.
In response to the motion, the plaintiff argues that the Petersen Affirmation should not be credited because it was not sworn under penalty of perjury and Agent Petersen, in a footnote, declares he was not present at the place and time of the search of the plaintiff's premises. The plaintiff is incorrect as to these objections. The affirmation was sworn under the penalty of perjury. As to the footnote, the plaintiff misreads it. It is clear that, in the footnote, Agent Petersen is referring to a consent search of the apartment conducted prior to the execution of the search warrant that resulted in the alleged seizure of the items at issue here. Agent Petersen specifically affirms that he participated the execution of the search warrant and was present for part of the search (Peterson Aff. ¶¶ 1, 3.)
Although the plaintiff's response only contains a contention that the affidavit supporting the motion for summary judgment is not credible, the evidence provided by the Government in support of its motion is insufficient to satisfy its burden of demonstrating that there is no genuine issue as to any material fact. Cf. Rufu, 20 F.3d at 65-66 (finding that there was insufficient evidence to support dismissal of the plaintiff's motion for the return of property). Although the Customs Service affirms that it kept records of the items seized during the search, See Petersen Aff. ¶ 3), the Government has not submitted these records to the Court with this summary judgment motion. There is no evidence detailing the exact property that was seized from the plaintiff and how the property was disposed of despite the fact that the Customs Service affirms that it has such records. Several of the items the plaintiff claims were seized are not referred to at all in the Petersen Affirmation. Thus, there are issues concerning whether the Customs Service ever had possession of certain of the items the plaintiff alleges were seized, and what, if anything, happened to those items.
The Court has equitable jurisdiction to award relief with respect to any items seized that were subsequently lost or disposed of. Thus, there are genuine issues of material fact concerning the disposition of the plaintiff's property, and the Government's motion for summary judgment is denied.
In addition, the motion for summary judgment was procedurally defective because it failed to comply with Local Civil Rule 56.1 and because it failed to give the notice to a pro se plaintiff responding to a motion for summary judgment that is required by the Court of Appeals.
CONCLUSION
For the foregoing reasons, the Government's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim is denied. The Government's alternative motion for summary judgment is denied without prejudice to renew upon a more complete record.
SO ORDERED.
Dated: New York, New York September 25, 2000 John G. Koeltl, States District Judge