United States District Court, N.D. Mississippi, Greenville Division
OPINION AND ORDER DENYING SUMMARY JUDGMENT
DEBRA M. BROWN, District Judge.
This action to set aside two administrative forfeitures is brought by Plaintiff Kendrick Kenyatta Taylor against the United States of America through the United States Drug Enforcement Administration ("Government"). Doc. #1. Plaintiff alleges that the Government conducted two administrative forfeiture proceedings against his property without providing him constitutionally required notice. Id. Before the Court is the Government's motion for summary judgment. Doc. #6.
Summary Judgment Standard
"Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law." Norwegian Bulk Transp. A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 22-23 (1986)). To award summary judgment, "[a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Norwegian Bulk Transp. A/S, 520 F.3d at 411-12 (internal quotation marks omitted). To this end, "[t]he moving party bears the burden of establishing that there are no genuine issues of material fact." Id. at 412.
"If... the nonmoving party bears the burden of proof at trial, the moving party may demonstrate that it is entitled to summary judgment by submitting affidavits or other similar evidence negating the nonmoving party's claim, or by pointing out to the district court the absence of evidence necessary to support the nonmoving party's case." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citation omitted). If the moving party makes the necessary demonstration, "the burden shifts to the nonmoving party to show that summary judgment is inappropriate." Id. In making this showing, "the nonmoving party must go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir. 2011) (citation and internal punctuation omitted). When considering a motion for summary judgment, the Court "resolve[s] factual controversies in favor of the nonmoving party." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
On July 2, 2010, law enforcement officers from the Mississippi Bureau of Narcotics ("MBN"), seized $182, 176.93 in cash ("Cash") from the attic of Plaintiff's residence, which is located at 404 Minnie Ervin Drive, Rosedale, Mississippi. Doc. #1 at ¶ 4; Doc. #6-1 at ¶ 5(a). The same day, the MBN seized from Plaintiff: (1) two cellular phones; (2) a CD player; (3) a Dell computer; (4) a Sanyo television; (5) a 2003 Chevrolet Suburban; and (6) a 1996 Lincoln Mark VIII. Doc. #8-1 at 1, 3. Four days later, on July 6, 2010, officers from the MBN seized $13, 376.79 ("Funds") from Plaintiff's Jefferson Bank checking account, number #xxxx37. Doc. #6-1 at ¶ 4(a); Doc. #1 at ¶ 4.
On July 12, 2010, the Mississippi Department of Public Safety issued Plaintiff a Notice of Seizure detailing the amount and location of the two monetary seizures. Doc. #8-1 at 3. The Notice, which appears to bear Plaintiff's signature, states, "It is anticipated that forfeiture proceedings will be filed against this property." Id.
B. State Forfeiture Action
On July 19, 2010, in the County Court of Bolivar County, the State of Mississippi filed a Complaint for Forfeiture ("State Action") against: (1) the Suburban; (2) the Mark VIII; (3) the CD player; (4) the Dell computer; (5) the Sanyo television; and (6) the two cellular phones. Doc. #8-2.
On July 23, 2010, on motion of the State of Mississippi, the presiding judge in In the Matter of the Search of 404 Minnie Ervin Street, Rosedale, Bolivar County, MS,  issued an order directing that jurisdiction over the Cash be "released from the authority and jurisdiction of this Court for immediate turnover to federal authorities." Doc. #8-6.
On July 30, 2010, Plaintiff filed in the State Action a Petition to Contest Forfeiture. Doc. #8-3. Plaintiff's petition challenged the forfeiture of the listed property, plus the forfeiture of the Cash and Funds seized by the MBN. Id. The petition was signed by Plaintiff, and Boyd P. Atkinson, who was designated as "Of Counsel." Id.
On August 17, 2010, the State of Mississippi responded to Plaintiff's petition. Doc. #8-4. In its response, the State represented that "[j]urisdiction of the $182, 206.93 in United States Currency found in the Claimant's residence; and, $13, 376.79 in United States Currency seized from the Claimant's bank account has been released by the Circuit Court of Bolivar County and said currency has been turned over to the federal authorities so that forfeiture may be pursued by the Drug Enforcement Administration." Doc. #8-4 at 1-2. The response was served on Atkinson at the address listed on Plaintiff's petition. Id. at 3; Doc. #8-3 at 3.
On August 25, 2010, the County Court continued the State Action "until such time as the criminal case that gave rise to this action is fully adjudicated." Doc. #8-5.
C. Criminal Case
On August 26, 2010, Plaintiff was named in a two-count indictment in the United States District Court for the Northern District of Mississippi. Doc. #8-7. See also U.S. v. Taylor, No. 2:10-cr-132 (N.D. Miss. Aug. 26, 2010) (" Criminal Case "), at Doc. #1. On September 22, 2010, the Government filed a three- count superseding indictment. Criminal Case, at Doc. #3. Count One of the superseding indictment charged Plaintiff with intent to distribute Methylenedioxymethamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Criminal Case, at Doc. #3. Count Two sought forfeiture, pursuant to 21 U.S.C. § 853 of "any property constituting, or derived from, proceeds obtained, directly or indirectly, as a result of the said violations and any property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of the said violations, including but not limited to [a] sum of money equal to One Hundred Eighty-Two Thousand, Two Hundred Six Dollars and Ninety-Three Cents...." Id. The indictment did not reference the Funds. Count Three alleged that Plaintiff "did knowingly and intentionally possess with intent to distribute a mixture and substance containing a detectable amount of marijuana... in violation of Title 21, United States Code, Section 841 (a)(1), (b)(1)(D)." Id.
During the pendency of the criminal proceedings, the Government sought two writs of habeas corpus ad prosequendum - one on October 5, 2010, and one on December 3, 2010. Criminal Case, at Doc. #5, Doc. #21. In the October 5 motion, the Government represented that Plaintiff was confined at the Bolivar County Jail in Cleveland, Mississippi. Id. at Doc. #5. In the December 3 motion, the Government represented that Plaintiff ...