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May 13, 2003


The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge


Plaintiff José Berrurn, a federal prisoner, has brought this pro se civil rights action, claiming that the United States government, through the United States Attorney's Office and the Drug Enforcement Administration, violated his constitutional rights by denying him due process in civil forfeiture proceedings. More specifically, Berrurn alleges that the government failed to provide proper notice that it intended to seize his property (two parcels of real estate, $10,000 in currency, and several motor vehicles). This matter is before the Court for consideration of the government's motion for summary judgment. For the reasons set forth in this order, the motion is granted.

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether genuine factual issues exist, a court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party, in this case Berrum. Walker v. Northeast Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7th Cir. 2000). However, Rule 56(e) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party wilt bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 393 (7th Cir. 1997).


The government has filed a Local Rule 56.1 Statement of Uncontested Facts, re-summarized as "Background" in the government's memorandum of law in support of its motion for summary judgment. Together with its summary judgment motion, it served on Berrum the required notice under Local Rule 56.2, advising Berrum what he needed to do to contest the motion, and specifically what he needed to do to dispute the government's statement of uncontested facts, Despite this, Berrum has not submitted a statement of contested facts; to the contrary, he conceded in his opposing brief that he "does not object to the background as stated by Defendant." (Plaintiff's response at p. 1.) The Court therefore finds that following facts are undisputed for purposes of this motion.

On June 11, 1999, Chicago Heights police officers and agents of the federal Drug Enforcement Administration arrested Berrum for drug trafficking. (Government's Exhibit 1, Criminal Complaint, United States v. Berrum, et al., Case No. 99 CR 432 (N.D. Ill.) The arrest took place after Berrum sold cocaine to an undercover government agent at his residence located at 2935 Commercial Avenue in South Chicago heights, Illinois. (Id.; see also Affidavit of Special Agent Craig Gryalsky attached to Criminal Complaint.) Borrum was charged with three felony drug charges. (Government's Exhibit 2, indictment.) The indictment asserted that Berrum's residence at 2935 Commercial Avenue was subject to forfeiture because it was property used to commit or facilitate the drug offenses. (Id., p. 4, ¶ 3(a).)

On March 16, 2000, Berrum entered into a plea agreement and voluntarily pled guilty to one charge of possession of a controlled substance with intent to deliver, (Government's Exhibit 3, Plea Agreement at ¶ 4-5; Government's Exhibit 4, Judgment in a Criminal Case, No. 99 CR 432, (Bucklo, J.)). In his plea agreement, Berrum specifically conceded that his residence at 2935 Commercial Avenue was subject to forfeiture. (Plea Agreement, ¶ 14-17.) Berrum and his defense attorney both signed the plea agreement. (Id., p. 15.) Judge Elaine Bucklo approved the plea agreement, and on September 20, 2000, she entered a final order stating that Berrum had forfeited his interest in 2935 Commercial Avenue. (Government's Exhibit 5, Final Order of Forfeiture.)

The government filed a separate civil action seeking forfeiture of two additional parcels of real estate in which Berrum had an ownership interest: 120 Crystal Court in Steger, Illinois, and 3042 Helfred Avenue in South Chicago Heights, Illinois. (Government's Exhibit 6, Verified Complaint for Forfeiture, United States v. Real Property Known as 120 Crystal Court, Steger, Illinois, et al., Case No. 99 C 4189 (N.D. Ill.).) In his plea agreement in the criminal case, Berrum had specifically agreed to forfeit those properties, stating that he "relinquishe[d] all right, title, and interest he may have in these properties and further agree[d] to the entry of a civil judgment against him, extinguishing any interest or claim he may have had in the properties subject to forfeiture." (Plea Agreement, ¶ 18.)

The government negotiated a settlement with relatives of Berrum who claimed an ownership interest in the two additional properties. Under that agreement, the property at 120 Crystal Court was forfeited to the United States, but the government dropped any claims against 3042 Helfrod Avenue. (Government's Exhibit 7, Decree of Forfeiture entered September 14, 2000 (Marovich, J.).)

At the time of Berrum's arrest, law enforcement officers seized $10,000 in United States currency. (Government's Exhibit 8, Defendant's Motion for Return of Property Pursuant to Fed. R. Crim. P. 41(e). filed in United States of America v. Berrum, Case No. 01 C 4384 (N.D. Ill.) at ¶ 2(k).) in Case No. 01 C 4384, a prior civil action assigned to Judge William T. Hart, Berrum attacked the forfeiture of the currency (among other things), contending that he never received notice of the administrative forfeiture proceedings. However, the government demonstrated that notice was sent by certified mail to: (1) Berrum at the Metropolitan Correctional Center, where he was being held at the time of the administrative forfeiture proceedings; (2) Berrum's criminal defense attorney; and (3) three residences in which Berrum had an ownership interest. (Government's Group Exhibit 12, Status Report and supporting documentation filed in Case No. 01 C 4384.) The government also showed that the DEA had published notice of its intent to forfeit the fluids in the USA Today newspaper on August 9 and August 18, 1999. (Id.) Notwithstanding Berrum's steadfast insistence that he had never received any of the notices, Judge Hart issued a Memorandum Opinion and Order concluding that the government had "complied with due process by providing adequate notice of [the administrative forfeiture] proceedings" and that "Berrum is not entitled to return of the cash." (Government's Exhibit 15, Memorandum Opinion and Order entered April 8, 2003, in Case No. 01 C 4384 (Hart, J.), at p. 3.)

The government likewise seized a 1998 Dodge Intrepid automobile bearing the vehicle identification number 2B3HD5617WH157485. (Government's Exhibit 16, Declaration of Tanya Sluder, United States Attorney's Office.) Although the car was seized from Lydia Mendoza-Gomez and registered to Robert Murillo, the government attempted to notify Berrum that it had initiated forfeiture proceedings. (id., ¶ 6-9.) The notification was sent by registered mail to the five addresses noted above; furthermore, the government provided notice by newspaper publication on three dates. (Id.) On December 27, 1999, the DEA declared the automobile forfeited pursuant to 21 U.S.C. § 881 because no one had filed a claim or bond for the car. (Id., ¶ 10.)

The government seized two additional vehicles owned by Berrurn (a 1997 Ford F-150 pickup truck, vehicle identification number 1FTDXZO76OVKC89030, and a 1998 Ford Windstar, vehicle identification number 2FMZA5145WBC54339) in the same manner. (Id., ¶ 11-22.) Notice was sent to Berrum at multiple addresses, including the facility where he was being held at the time, and notification was also made by newspaper publication. (Id.) The DEA declared both the pickup truck and minivan forfeited on November 18, 1999, in the absence of any claims or bonds filed for the vehicles. (Id., ¶ 17, 26.)

Neither Berrum nor the government has provided any record showing that the DEA or any other investigating agency either seized or forfeited a 1994 Subaru automobile belonging to Berrum. (Id., ¶ 19.) Nor has Berrum submitted any evidence that a 1998 Astro van was confiscated. (Id, ¶ 20.)

During the summer of 1999, while Berrum was incarcerated at the Metropolitan Correctional Center, that facility had procedures in place to ensure delivery of certified mail to inmates. (Government's Exhibit 17, Declaration of Robert Martinez, ¶ 2.) Under these procedures, an MCC mail room officer would pick up mail at the post office every day by 9:30 a.m. (Id., ¶ 3.) The officer would sign for any certified or registered mail. (Id.) The mail was screened for contraband; then any mail requiring a signature to confirm delivery, such as certified mail, was recorded in a log maintained in the mail room. (Id., ¶ 4.) Counselors would then collect the mail for inmates in their respective units. (Id., ¶ 5.) When the mail was delivered ...

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