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Durham v. Tempas

December 6, 2007

ROBERT M. DURHAM, PLAINTIFF,
v.
ROLAND J. TEMPAS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief District Judge

MEMORANDUM AND ORDER

Plaintiff, a federal prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey ("FCI-Fort Dix"), brings this action asserting tort claims of conversion and negligence related to the criminal forfeiture of certain Individual Retirement Accounts ("IRA's") held by Edward D. Jones & Company ("Jones"), a financial institution. In this action, Plaintiff seeks return of the forfeited IRA's and damages. This case is now before the Court sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and § 1915A.

A. PROCEDURAL BACKGROUND

The instant action was initially filed in the United States District Court for the District of New Jersey. See Durham v. Tempas, No. 07-2057(JBS) (D.N.J.). The Honorable Jerome B. Simandle, United States District Judge, granted Plaintiff's motion to proceed in forma pauperis*fn1 and reviewed the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. As a result of his review, Judge Simandle concluded that the action should be transferred to this Court because this is where the criminal forfeiture - which Plaintiff contests - occurred. Accordingly, Judge Simandle ordered the case transferred to this Court.

In his written Opinion, however, Judge Simandle also discussed and analyzed Plaintiff's claims. With regard to Plaintiff's tort claims against Defendants "Roland J. Tempas"*fn2 and the United States Department of Justice (DOJ), Judge Simandle assumed that the claims were brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq. Citing 28 U.S.C. § 2680(c)(1), Judge Simandle expressed his belief that the FTCA does not waive sovereign immunity for claims stemming from detention of property seized for purposes of forfeiture if the forfeiture was imposed as a result of a conviction of a criminal offense. Consequently, Judge Simandle further stated that "it would appear that the FTCA provides no basis for damages against the Government defendants, but the Court does not decide the issue."

In his Opinion Judge Simandle also stated that "[t]ransfer to the Southern District of Illinois is also warranted if this action is construed as Rule 41(g) proceeding." With respect to a proceeding commenced pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, Judge Simandle wrote:

Plaintiff may properly proceed against the United States and the DOJ under Rule 41(g) for the return of his property, albeit in the district court where the property was seized, which is the Southern District of Illinois . . . .

Because it is not apparent from the pleading that the seized funds are not actually available for return, this Court is constrained to transfer this matter to the Southern District of Illinois where the forfeiture occurred . . . .

Thus, it appears that Judge Simandle believed that a Rule 41(g) action could proceed against the DOJ (and the United States) in this Court.

Finally, with respect to Plaintiff's claims against Defendant Jones, Judge Simandle noted that Plaintiff asserted the following two negligence claims against Jones: (1) that Jones failed to adequately investigate the Government's claims that the funds were subject to forfeiture and (2) that Jones failed to adequately protect Plaintiff's rights as owner of the IRA funds. With respect to Plaintiff's tort claims against Jones, Judge Simandle concluded: "there does not appear to be any jurisdictional defect on the face of the Complaint with respect to [Jones], and because the alleged claims are not subject to dismissal at this time . . . this claim against [Jones] likewise will be transferred to the Southern District of Illinois."

B. DISCUSSION

The Court notes that although Judge Simandle conducted a preliminary review of the complaint, this Court may still review the complaint pursuant to 28 U.S.C. § 1915(e)(2). See Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999) (court's power to dismiss a case sua sponte "at any time" for failure to state a claim extends to all suits, brought by prisoners and non-prisoners alike, paid and unpaid). Upon review of the complaint, this Court agrees with Judge Simandle that Plaintiff's tort claims against Defendants Tempas and the DOJ - as well as Plaintiff's FTCA claims against the United States - should be dismissed, but not for the reasons suggested by Judge Simandle.*fn3

This Court also finds that Judge Simandle's conclusion that Plaintiff may properly bring this action under Rule 41(g) of the Federal Rules of Criminal Procedure is wrong as a matter of law. Additionally, contrary to Judge Simandle's Opinion, this Court finds Plaintiff's claims against Defendant Jones are without merit and should be dismissed.

The difference of opinion with Judge Simandle is due, in part, to the fact that Judge Simandle was mislead about the facts concerning the forfeiture of the IRA's in question. Specifically, Judge Simandle accepted Plaintiff's assertion that the IRA's were not properly subject to forfeiture. Having access to the entire record in Plaintiff's underlying criminal case, however, this Court is not compelled to accept Plaintiff's allegations as true when they differ from the facts established in the underlying criminal forfeiture action. See, Freshman v. Atkins, 269 U.S. 121, 124 (1925) (court may take judicial notice of, and give effect to, its own records in another, but ...


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