1In light of Reddick’s newly filed amended complaint, this

report and recommendation supercedes the report and

recommendation issued on September 8, 2005.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dwayne A. Reddick

v. Civil No. 05-cv-256-SM

United States Department of Justice et al.

AMENDED REPORT AND RECOMMENDATION1

Proceeding pro se and in forma pauperis, plaintiff Dwayne A.

Reddick has filed an amended complaint, seeking the return of

personal property that allegedly was illegally seized and

forfeited in violation of his rights under the Fourth, Eighth and

Fourteenth Amendments to the United States Constitution (document

no. 5). Although the complaint references Section 1983, Reddick

brings suit against federal defendants, therefore, I construe his

claims as an action under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). In

addition, he invokes 21 U.S.C. § 882(a) as a jurisdictional

predicate, which I construe as a collateral attack on the

completed administrative forfeiture proceedings.

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2

Seeking declaratory and monetary relief, Reddick brings this

action against United States Department of Justice (“DOJ”), the

Drug Enforcement Administration (“DEA”) and John Doe, a DEA

employee. The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I recommend

dismissal of the Bivens claims against all defendants in their

official capacities and order Reddick to amend his complaint

consistent with this order.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

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3

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988).

Background

Construing the factual allegations in the light most

favorable to Reddick, the material facts are as follows. 

Reddick is currently incarcerated as a pretrial detainee at the

Hillsborough County Department of Corrections. On October 15,

2003, he was arrested by the Nashua Police Department (“NPD”) at

his apartment located at 28 Railroad Square, Nashua, New

Hampshire. During the arrest, Officer Giggi of the NPD seized

United States currency in the amount of $2,895.00. Thereafter,

on November 17, 2003, the DEA adopted the currency from the NPD

for purposes of initiating federal forfeiture proceedings

pursuant to 21 U.S.C. § 881. 

On December 30, 2003, the DEA allegedly sent a notice of

seizure to Reddick thereby notifying him of the initiation of

forfeiture proceedings. The record is silent as to whether the

notice advised Reddick of his right to request remission or

mitigation of the forfeiture by filing a timely claim with the

DEA Forfeiture Counsel. The record also is silent as to whether

Reddick was advised that in addition to or in lieu of petitioning

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4

for remission of mitigation, he had the right to contest the

forfeiture in United States District Court by filing a timely

claim with the DEA. Reddick alleges that he never received the

notice of seizure from the DEA. Deputy Chief Don Conley of the

NPD advised him that on November 17, 2003 the notice was sent to

his address at 28 Railroad Square in Nashua, New Hampshire. At

that time, however, Conley allegedly knew that Reddick was

incarcerated at Valley Street Jail in Manchester, New Hampshire. 

On April 21, 2004, the DEA notified Reddick that because the

agency never received a claim from him contesting the seizure of

currency within the statutory time frame, his currency was

declared forfeited to the United States on March 24, 2004. In

October 2004, Reddick sent a demand letter to the NPD in which he

requested the return of the seized currency. The NPD responded

on November 8, 2004, informing him that on November 18, 2003 the

currency had been turned over to the DEA for seizure and

forfeiture and that several attempts were made to notify him at

his Nashua address.

Reddick now brings the instant action seeking the return of

his personal property that allegedly was illegally seized and

forfeited in violation of his federally protected rights.

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2Although characterized as Fourth, Eighth and Fourteenth

Amendment violations, liberally construed Reddick’s claims appear

to arise under the Fourth and Fourteenth Amendments.

5

Discussion

I. Bivens

The premise of Reddick’s Bivens claim is that defendants,

acting in their individual and official capacities as federal

agencies or employees, deprived him of personal property in

violation of his rights under the Fourth and Fourteenth

Amendments.2 

To the extent Reddick intends to allege official capacity

claims under Bivens against the DOJ, DEA and John Doe, I conclude

that he has failed to state a claim upon which relief may be

granted. The Supreme Court has declined to imply a Bivens action

against federal agencies or federal agents acting in their

official capacities. See FDIC v. Meyer, 510 U.S. 471 (1994);

accord Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214

(10th Cir. 2003) (holding that Bivens actions may not be filed

against federal agencies or federal agents acting in their

official capacities); Hatten v. White, 275 F.3d 1208, 1210 (10th

Cir. 2002) (same); Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.

2000) (“It is well settled that a Bivens action will not lie

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against an agency of the federal government.”). Accordingly, I

recommend dismissal of the official capacity claims under Bivens

against the DOJ, DEA and John Doe. 

To the extent Reddick intends to allege a Bivens claim

against John Doe in his individual capacity, he has failed to

properly identify the Doe defendant. If Reddick intends to bring

suit against the DEA Forfeiture Counsel, Asset Forfeiture

Section, he should clearly state so in his amended complaint. In

order to state a cause of action under Bivens, he must allege

facts which show that the Doe defendant acted ‘under color of

federal authority’ and was personally involved in the deprivation

of his constitutional rights. Browning v. Clinton, 292 F.3d 235,

250 (D.C. Cir. 2002) (explaining that action under color of

federal law is critical to a Bivens claim); Gossmeyer v.

McDonald, 128 F.3d 481, 495 (7th Cir. 1997) (explaining that

personal involvement is required to state a claim under Bivens). 

In amending his complaint, therefore, Reddick should clearly

identify Doe and demonstrate how he was personally involved in

the seizure of his personal property or otherwise deprived him of

a federally protected right.

 

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3Reddick cannot use Fed. R. Civ. P. 41(g) to challenge the

results of a completed administrative forfeiture. See United

States v. Rivas-Cristales, No. 03-2891, 2004 WL 414816, at *1

(8th Cir. 2004)(Rule 41 may not be used to attack antecedent

civil forfeitures); accord Zapata v. United States, No. M18-65,

1996 WL 617369, at *2 (S.D.N.Y. Oct. 25, 1996).

7

II. Collateral Attack on Administrative Forfeiture

Construed liberally, the complaint alleges that the DEA

violated Reddick’s due process rights by failing to provide

adequate notice of the forfeiture proceedings initiated against

him pursuant to 21 U.S.C. § 881. He therefore appears to assert

a collateral due process attack on the DEA’s administrative

forfeiture and a challenge to the adequacy of notice provided to

him.3

The Controlled Substances Act authorizes forfeiture to the

government of certain property seized from drug offenders. See

21 U.S.C. §§ 881 et. seq. See also United States v. Hines, No.

CR.A. 99-543, WL 22232887, at *2-3 (E.D.Pa. 2003). Such property

includes "all moneys, negotiable instruments, and securities used

or intended to be used to facilitate" drug-related crimes. 21

U.S.C. § 881(a)(6). Property seized from drug offenders that is

valued less than $500,000 is subject to summary administrative

forfeiture proceedings. See 19 U.S.C. §§ 1607-09. To effect

such a forfeiture, the government must send written notice of the

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seizure along with information on the applicable forfeiture

procedures to "each party who appears to have an interest in the

seized article." 19 U.S.C. § 1607(a). If the government

receives no response to the notice within a prescribed period of

time, the seized property is declared administratively forfeited

to the government. See id.

“If an individual fails to contest an administrative

forfeiture, he loses all recourse for judicial review of the

administrative proceeding’s merits." Longenette v. Krusing, 322

F.3d 758, 761 n. 4 (3d Cir. 2003); Hines, WL 22232887 at *2-3. 

While most judicial challenges to an administrative forfeiture

are foreclosed by the plaintiff’s failure to use the mechanism

provided in the forfeiture statute and regulations, United States

v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) and Toure v. United

States, 24 F.3d 444, 445-56 (2d Cir. 1994), federal courts have

jurisdiction to entertain collateral due process attacks on

administrative forfeitures, including challenges to the adequacy

of notice, Mantilla v. United States, 302 F.3d 182, 184 (3d Cir.

2002) and Giraldo, 45 F.3d at 511. “The operative question is

whether notice was adequate at the time that the notice was sent,

and due process is not satisfied if the notifying party knew or

had reason to know that notice would be ineffective.” Krecioch

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v. United States, DEA, 221 F.3d 976, 980 (7th Cir. 2000).

When the government mails a notice to an address at which it

knows the claimant not to be, the notice typically violates

due process because it is not reasonably calculated to

apprise the claimant of the action. See United States v.

Giraldo, 45 F.3d 509, 511 (1st Cir. 1995); United States v.

Woodall, 12 F.3d 791, 794 (8th Cir. 1993). If it does

nothing more, the government knows for fact that the

claimant will never receive notice. When the government

does not know or reasonably cannot discover the plaintiff’s

whereabouts, the government may satisfy due process with

mere publication of a forfeiture notice. Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 317-19 (1950).

However, when the claimant is incarcerated or in government

custody, the ease of learning the claimant’s location makes

it in most cases “unreasonable” for the forfeiting agency to

fail to ascertain the location of one it knows to be in

government custody.

Id.

Here, the DEA allegedly denied Reddick due process by

failing to provide him with adequate notice of the forfeiture

proceedings initiated against him. Reddick claims that he never

received the DEA’s December 30, 2003 notice, and the record is

silent as to whether he was advised of his right to petition the

DEA for remission or mitigation and/or contest the forfeiture of

the seized property in federal court. Although the DEA or NPD

allegedly made attempts to notify Reddick at his residence,

during that time the DEA and NPD were aware that he was

incarcerated in Manchester, New Hampshire. Because Reddick was

incarcerated or in government custody at the time the notices

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were sent to him, it would have been reasonable for the DEA to

have ascertained his location and provided proper notice.

If true, Reddick’s allegations may well give rise to a

collateral due process claim arising from the DEA’s notice of

forfeiture proceedings. However, Reddick has not identified an

individual defendant who can be sued in this action, therefore, I

order him to amend his complaint to identify a proper defendant. 

If he intends to bring this action against the Forfeiture Counsel

of the DEA, Asset Forfeiture Section, he should clearly state so

in his amended complaint.

Conclusion

For the reasons stated above, I recommend dismissal of the

official capacity claims under Bivens against the DOJ, DEA and

Doe. In addition, I order Reddick to amend his complaint to

identify a proper defendant, as described above.

Reddick will have thirty (30) days from the date of this

report and recommendation in which to file an amended complaint. 

A failure to amend may result in a recommendation, to the

presiding judge, of a dismissal of the claim(s) and/or

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defendant(s) from this case.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 17, 2006

cc: Dwayne A. Reddick, pro se

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