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Saeku v. Holder

United States District Court, E.D. North Carolina, Western Division

February 6, 2017

SOMSAK SAEKU, Plaintiff,
v.
ERIC H. HOLDER, JR., UNITED STATES DEPARTMENT OF TREASURY, GEORGE E.B. HOLDING, GASTON B. WILLIAMS, STEPHEN A. WEST, and ANNE M. HAYES, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         The matter is before the court on plaintiff's motion for reconsideration of the court's June 15, 2016, order (DE 44), motion for relief from a final judgment pursuant to Federal Rule of Civil Procedure 60(b) (DE 45), and motion for leave to file an amended complaint (DE 45). Defendants did not respond to plaintiff's motions. In this posture, the issues raised are ripe for adjudication.

         BACKGROUND

         For ease of reference, the background as set forth in this court's September 11, 2013, order is as follows:

On May 21, 2007, the United States seized plaintiff's Ameritrade investment account (number xxx-xx9557) (the “Ameritrade investment account”), pursuant to a seizure warrant issued by United States Magistrate Judge James E. Gates. See United States v. Seizure Warrant, 5:07-mj-1322-JG-1 (E.D. N.C. June 15, 2007). Plaintiff subsequently was charged in a three-count criminal indictment with violations of wire fraud and interstate transportation of stolen property. United States v. Saeku, No. 5:07-CR-304-BO-1 (E.D. N.C. Oct. 10, 2007). In the indictment, the United States notified plaintiff of its intent to seek forfeiture of certain property belonging to plaintiff, including the Ameritrade investment account, and if necessary, substitute property. Id.
On September 11, 2008, following a jury trial, plaintiff was convicted on all counts in the criminal indictment. United States v. Saeku, No. 5:07-CR-304-BO-1 (E.D. N.C. Sept. 11, 2008). By special verdict, the jury found forfeitable certain real and personal property belonging to plaintiff, but determined the Ameritrade investment account was not directly forfeitable. Id. On November 12, 2008, the district court sentenced plaintiff to a term of one hundred eight (108) months imprisonment, and ordered plaintiff to pay forty-five thousand two hundred thirty dollars and two cents ($45, 230.02) restitution. Id. (E.D. N.C. Nov. 12, 2008). The district court also incorporated the preliminary order of forfeiture, as found by the jury, into his sentence. Id. The Fourth Circuit Court of Appeals affirmed plaintiff's conviction. United States v. Saeku, 436 F. App'x 154 (4th Cir. Apr. 28, 2011).
On April 2, 2009, the United States filed a motion for a preliminary order of forfeiture seeking to forfeit plaintiff's Ameritrade investment account as a substitute asset. United States v. Saeku, No. 5:07-CR-304-BO-1 (E.D. N.C. Apr. 2, 2009). The motion was served on plaintiff's counsel of record. Id. On April 14, 2009, the district court granted the United State's motion for the preliminary order of forfeiture as to plaintiff's Ameritrade investment account as a substitute asset. Id. (E.D. N.C. Apr. 14, 2009). After making the required published notification of the court's April 14, 2009, preliminary order of forfeiture, pursuant to 21 U.S.C. § 853(p), the United States filed a motion for a final order of forfeiture as to, inter alia, plaintiff's Ameritrade investment account. Id. (E.D. N.C. Sept. 21, 2009). On October 1, 2009, the district court granted the United State's final order of forfeiture as to, inter alia, plaintiff's Ameritrade investment account. Id. (E.D. N.C. Oct. 1, 2009). Plaintiff did not appeal the district court's final order of forfeiture. On January 30, 2012, plaintiff filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in the United States District Court for the District of Columbia alleging that defendants unconstitutionally seized and deprived him of his Ameritrade investment account. In particular, plaintiff alleges the following: (1) defendants unlawfully seized his Ameritrade investment account; (2) defendants failed to return the Ameritrade investment account after the jury determined that it was not directly forfeitable; and (3) defendants conspired to hold his property in violation of his constitutional rights. The action was transferred to this court on the date it was filed.
On September 28, 2012, defendants filed a motion to dismiss, or in the alternative, for summary judgment. Then, on October 12, 2012, plaintiff filed his first motion for an extension of time to respond to defendants' motion to dismiss. In support of his motion, plaintiff explained that he had difficulty complying with the response deadline due to his prison work/ class schedule, as well as the law library's “erratic schedule” and limited materials. Plaintiff also stated that English was his second language. On October 16, 2012, the court allowed plaintiff an extension of time until November 22, 2012, to respond to defendants' motion.
Although plaintiff's first motion for an extension of time stated that he needed a one time only extension of time, plaintiff filed a second motion for an extension of time on December 3, 2012, citing delays due to a prison facility transfer and his inability to access his legal material. The court granted plaintiff's motion, and he was allowed until January 3, 2013, to respond to defendants' motion.
On January 3, 2013, plaintiff filed yet again another motion for an extension of time. Plaintiff stated that on December 3, 2013, he was scheduled for surgery to “treat and rectify a chronic health issue for safety precaution.” (DE 29), p. 1. The procedure, however, was aborted and plaintiff was rescheduled for surgery for the second week of January 2013. Plaintiff stated that his physician advised that it would take one month to recuperate from the surgery. The court subsequently granted plaintiff's motion, and allowed him until March 28, 2013, to respond to defendants' motion to dismiss.
On March 8, 2013, plaintiff filed a motion to stay the action stating that he was placed in administrative segregation on the maximum security unit at Taft Correctional Institution (“Taft”) and that he had restricted access to his legal materials or to a law library. Accordingly, plaintiff requested that the court stay the action until he was released from administrative segregation or to issue an order compelling prison officials to allow him access to courts. On July 29, 2013, the court issued an order denying plaintiff's motion on the grounds that plaintiff had been transferred from Taft to Dalby Correctional Institution, and was no longer subject to the alleged restraints at Taft. The court additionally allowed plaintiff fourteen (14) days to respond to defendants' motion to dismiss.
On August 15, 2013, plaintiff filed a second motion to stay the action because he was scheduled for emergency surgery the following week. On August 16, 2013, the court entered an order denying plaintiff's request for a stay stating that plaintiff did not provide any details regarding the surgery or his medical condition beyond an elusive reference to a six month recovery period. The court further noted that plaintiff did not adequately explain his delinquency in responding to defendants' pending motion to dismiss. Finally, the court allowed plaintiff a final extension of time, until September 2, 2013, to respond to defendants' motion. On September 5, 2013, rather than submit his response to defendants' motion to dismiss, plaintiff filed a motion for reconsideration or fourth motion for an extension of time to respond to defendants' motion to dismiss. Defendants did not respond to plaintiff's motion.

(See (DE 37), pp. 2-5).

         On September 11, 2013, the court denied plaintiff's motion for reconsideration or for an extension of time. The court, additionally, granted defendants' motion to dismiss and dismissed the action without prejudice as Heck barred. Plaintiff subsequently filed a motion for leave to file an amended complaint, motion for service of summons, and a motion to appoint counsel. On June 15, 2016, the court denied plaintiff's motion to amend and motion appoint counsel. The court denied as moot plaintiff's motion for service of summons. On July 11, 2016, plaintiff filed the instant ...


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