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Saeku v. Holder
United States District Court, E.D. North Carolina, Western Division
February 6, 2017
SOMSAK SAEKU, Plaintiff,
ERIC H. HOLDER, JR., UNITED STATES DEPARTMENT OF TREASURY, GEORGE E.B. HOLDING, GASTON B. WILLIAMS, STEPHEN A. WEST, and ANNE M. HAYES, Defendants.
W. FLANAGAN United States District Judge
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.
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
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).
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