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Nelson v. Pearl River County Sheriff's Department

United States District Court, S.D. Mississippi, Southern Division

June 19, 2015

OMAR L. NELSON, Plaintiff,
v.
PEARL RIVER COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

REPORT AND RECOMMENDATION

ROBERT H. WALKER, Magistrate Judge.

Before the Court are five motions to dismiss filed by the Defendants in this prisoner civil rights lawsuit commenced by Omar L. Nelson on September 30, 2014 under 42 U.S.C. § 1983. Plaintiff's lawsuit seeks damages for an allegedly improper 2011 State court forfeiture proceeding involving personal property seized under a search warrant by the Pearl River County Sheriff's office in connection with a drug investigation. Motions [8] and [10] were filed December 17, 2014 by Assistant District Attorneys (ADAs) Lauren Harless and Morris Sweatt; Motion [13] was filed December 19, 2014 on behalf of Pearl River County Sheriff's Department; and Motions [14] and [16] were filed December 23, 2014, the former by Circuit Court Judge Prentiss G. Harrell, [1] and the latter by Sheriff David Allison, Donnie Saucier, Justin Farmer, Joe Garcia and Van Giadrosich. Plaintiff has filed no specific response to any of the motions, but the undersigned has reviewed all his pleadings on file. In any event, since the motions before the Court are dispositive, they are considered on their merits.

Background, Facts and Procedural History

The following are the underlying facts from which this lawsuit arises as stated in Nelson v. State of Mississippi, Case No. 2013-CP-00835-COA (Miss. App., September 16, 2014):

Omar Nelson was involved in an illegal drug-trafficking operation, supplying Pearl River County with illegal drugs. The Pearl River County Sheriff's Department conducted a year-long investigation, with help from the United States Drug Enforcement Agency to assist with possible federal prosecution. The sheriff's department served warrants on properties occupied and used by Nelson. During the execution of the search warrants, several items belonging to Nelson were seized; some of these items were used as evidence in Nelson's criminal prosecution; and some were seized as forfeitable items.

Id., ¶ 1. See also, [1-2] Pearl River County Sheriff's Department Incident Report attached as Exhibit B to Plaintiff's complaint.

On March 2, 2011, Nelson was charged in the United States District Court for the Southern District of Mississippi with (1) conspiracy to possess and (2) possession with intent to distribute drugs. USA v. Omar Nelson, Criminal Action No. 1:11cr27. Nelson pled guilty to Count 2 of that indictment on August 1, 2011, and was sentenced on October 3, 2011, to serve 60 months in custody of the Bureau of Prisons (BOP) and three years supervised release, and to pay a $100.00 special assessment. The BOP web site shows Nelson is presently incarcerated at the Federal Correctional Institution at Talladega, Alabama, and his release date is July 10, 2015.

According to the Mississippi Court of Appeals opinion, on March 25, 2011, the State of Mississippi filed in the Circuit Court of Pearl River County, on behalf of the Pearl River County Sheriff's Department, a petition for forfeiture of items seized.[2] The filing attorney was ADA Lauren Harless. Summons issued to Nelson the same day the petition was filed, and the return of process establishes Nelson was personally served on June 22, 2011. Nelson does not deny he was served with the civil forfeiture petition. When Nelson failed to respond to the forfeiture petition, ADA Harless filed a motion for entry of default, and for default judgment and a hearing to determine whether the property in question was subject to forfeiture. Default was entered and Honorable Prentiss G. Harrell, Circuit Court Judge for the Fifteenth Circuit Court District of Mississippi, heard the matter, concluded the property was forfeited, and entered default judgment on August 16, 2011, declaring the Pearl River County Sheriff's Department and the Fifteenth Circuit Court District Attorney the owners of the property. [1-4], [14-1][3]

Almost two years later, on April 29, 2013, Nelson petitioned the state court for return of his seized property.[4] The trial court dismissed the petition with prejudice, holding it untimely filed. Nelson appealed, asserting jurisdiction was proper in federal rather than state court. ADA Morris Sweatt filed the State's appellate brief. On September 16, 2014, the Mississippi Court of Appeals affirmed the trial court's holding that Nelson's 2013 petition was untimely under MISS. CODE ANN. § 41-29-179(1). Under the statute, the owner of property which has been seized must file an answer within 30 days after service of process, and if no answer is filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the Mississippi Bureau of Narcotics or local law enforcement agency.

In the present lawsuit Nelson has sued the Pearl River County Sheriff's Department; Pearl River County Sheriff David Allison and officers Donnie Saucier, Justin Farmer, Joe Garcia and Van Giadrosich; ADAs Harless and Sweatt, and Circuit Judge Harrell. Nelson's complaint consists largely of conclusory allegations, legal conclusions, case law citations and quotations, but the thrust of his lawsuit challenges the propriety of the 2011 state court forfeiture proceeding. Nelson contends the state proceeding was unlawful because his criminal prosecution occurred in federal rather than state court, thus only the federal court was authorized to conduct forfeiture proceedings. He contests whether procedures adopted by a state effectuating the forfeiture of personal property connected with criminal conduct comport with procedural due process, urges the state's failure "to provide an opportunity for hearing either before or after seizure of private property violates Fourteenth Amendment due process requirements..." [1, pp. 2-3], and argues the state court forfeiture proceeding violated the double jeopardy clause of the Fifth Amendment. Defendants have moved for dismissal under FED.R.CIV.P. 12(b)(1), 12(b)(6) and 12(c).

Standards for Rule 12 Dismissal

A Rule 12(b)(1) motion challenges the Court's subject matter jurisdiction. "The requirement that [this Court's] jurisdiction be established as a threshold matter... is inflexible and without exception.'" Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." FED.R.CIV.P. 12(h)(3). The burden is on the party seeking to invoke this Court's jurisdiction to demonstrate that jurisdiction exists. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)(quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2nd Cir. 1996))). "Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming, 281 F.3d at 161. Dismissal is proper under Rule 12(b)(1) "when it appears certain that the plaintiffs cannot prove any set of facts in support of their claim which would entitle them to relief." Pan-American Life Ins. Co. v. Bergeron, 82 Fed.Appx. 388, 389 (5th Cir. 2003).

When a complaint is challenged under Rule 12(b)(6) a plaintiff must provide grounds for his entitlement to relief, which requires more than mere labels, conclusions or formulaic recitations of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The Court takes factual allegations as true, but that deference is not accorded to legal conclusions. Id. "Factual allegations must be enough to raise a right to relief above the speculative level..." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2008). To survive a motion to dismiss under Rule 12(b)(6), a "complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Id., (quoting Twombly, 550 U.S. at 570).

Rule 12(c), FED.R.CIV.P., provides that "[a]fter the pleadings are closed - but early enough not to delay trial, any party may move for judgment on the pleadings." Rule 12(c) motions are "designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)(citations omitted). The standard of review for a Rule 12(c) motion is the same as for a Rule 12(b)(6) motion to dismiss. Boyd v. Dallas Independent School Dist., 2009 WL 159243, at *1 (N.D. Tex. Jan. 21, 2009) (citing Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir.2007)). Motions to dismiss under both Rules are disfavored, and rarely granted. See Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) and Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir.1981). Under both Rules pleadings are construed liberally, and in the light most favorably to the Plaintiff, "[T]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief." Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir.2001) (quoting St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n. 8. (5th Cir.2000)). And under both Rules the Court's analysis is "generally confined to a review of the complaint and its proper attachments." Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.2008). On a motion to dismiss, the Court may consider documents referenced in or attached to the complaint, and may take judicial notice of documents in the public record. Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011). While complaints filed by pro se litigants are held to less stringent standards than formal pleadings drafted by lawyers, regardless of whether a plaintiff is proceeding pro se or is represented by counsel, the Plaintiff's pleadings must show facts, not mere conclusory allegations, to avoid dismissal under Rule 12(c). Although the Court takes factual allegations in the complaint as true, it is not required to accept conclusory allegations or legal conclusions. Ashcroft v. ...


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