United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on the government's motion for
summary judgment. (DE 9). Claimant has not responded to the
motion and the time to do so has elapsed. In this posture,
the issues presented are ripe for ruling. For the reasons
that follow, the motion is granted.
OF THE CASE
government brought suit in rem against the defendant
property November 23, 2016, pursuant to 18 U.S.C. §
924(d)(1), to enforce 18 U.S.C. § 922(g)(1). The
government alleges that the defendant property was
“possessed in or affecting commerce by a person who has
been convicted in court of a crime punishable by imprisonment
for a term exceeding one year . . .” (DE 1 ¶ 6).
March 3, 2017, claimant, proceeding pro se, filed a document
lodged on the docket as “claim[, ]” (DE 5), which
document responds to the declaration of United States Bureau
of Alcohol, Tobacco, Firearms, and Explosives Task Force
Officer Larry Bear (“Bear”), attached as exhibit
A to the government's complaint and incorporated therein.
(DE 1-1). On March 16, 2017, claimant filed another document,
lodged on the docket as “answer” which document
includes an identical response to Bear's declaration and,
in addition, includes a document titled “Official Claim
in addition to answers submitted to Declaration of Officer
Larry Bear[, ]” (DE 6), which the court construes as a
claim and answer made pursuant to Rule G(5)(f) the
Supplemental Rules for Admiralty or Maritime Claims and Asset
to Federal Rule of Civil Procedure 36 and this court's
case management order, the government served upon claimant
requests for admission April 20, 2017. (DE 12-1). Filings
accompanying the government's motion for summary judgment
indicate that claimant made no response to the requests for
admission, and the deadline to do so expired May 20, 2017.
Fed.R.Civ.P. 36(a)(3). The government moved for summary
judgment June 28, 2017. (DE 9). Notice issued by the clerk
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), informed claimant that deadline to respond to the
government motion would elapse July 24, 2017. (DE 13).
Claimant has made no response to the motion.
support of its motion for summary judgment, the government
relies upon the declaration of Bear, claimant's response
to same, and the government's unanswered requests for
OF THE UNDISPUTED FACTS
undisputed facts viewed in the light most favorable to the
non-movant may be summarized as follows. At times relevant to
this action, claimant was engaged and later married to Tieray
Jones (“Jones”). (DE 12-1 ¶ 1). Claimant
allowed Jones to stay overnight at her residence, and
permitted Jones to store his property there. (Id.
¶¶ 3, 5). At all relevant times, claimant was aware
that Jones was a convicted felon. (DE 12-1 ¶¶
to April 18, 2016, Jones enjoyed unlimited access to the
defendant property. (DE 12-1 ¶ 13). Jones fired
defendant Taurus PT111 Millennium G2 Pistol, Caliber 9,
Serial Number TIW84772 (“Taurus”) in February
2016, and, on approximately February 14, 2016, Jones
accompanied claimant to a shooting range for the purpose of
firing defendant Del-Ton, Inc. DTI-15 Rifle, Caliber 556,
Serial Number DTI-S081048 (“DTI rifle”) but was
not permitted to fire the DTI rifle by shooting range
personnel. (DE 5 ¶ 17).
April 18, 2016, Jones was arrested on the basis of an
outstanding warrant pertaining to an alleged homicide
occurring in San Diego, California. (DE 5 ¶¶ 6,
11). Following arrest, Jones was incarcerated at the county
jail in San Diego, California. (DE 1-1 ¶ 7).
Jones was incarcerated, claimant and Jones engaged in
telephonic conversations, which conversations were recorded.
(DE 5 ¶ 7). One call, recorded June 3, 2016, led to the
[Jones:] About the weapons in the house.
[Claimant:] What about them? What about them? Want me to take