IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BEVERLY L. HEARD WILLIAMS,

Plaintiff,

: 

: 

: 

: 

vs. : CIVIL ACTION 14-292-CG-M 

: 

KENYEN R. BROWN, et al., 

Defendants.

: 

: 

: 

REPORT AND RECOMMENDATION

This action is before the Court on Plaintiff’s Amended 

Complaint (Doc. 16), Defendants’ Motion to Dismiss and 

Memorandum in Support (Doc. 20), Plaintiff’s Response in 

Opposition thereto (Doc. 25), and Defendants’ Reply to 

Plaintiff’s Response. (Doc. 26). Upon careful 

consideration and for the reasons set forth herein, it is 

recommended that Defendants’ Motion to Dismiss be granted, 

and Plaintiff’s Amended Complaint be dismissed with 

prejudice. 

I. Facts and Proceedings

The instant action stems from an action for forfeiture 

in rem, which Plaintiff is presently contesting under the 

Civil Rights Action codified in 42 U.S.C. § 1983. The 

underlying forfeiture action was based on an extensive 

undercover investigation and successful criminal 

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prosecution of illegal drug (crack cocaine) activity on the 

premises of 801 East Franklin Avenue, Foley, Alabama, which 

belonged to Plaintiff at that time. On March 12, 2012, the 

United States by and through Kenyen R. Brown, United States 

Attorney for the Southern District of Alabama, and Alex F. 

Lankford, IV, Assistant United States Attorney, filed a 

complaint for forfeiture in rem against Plaintiff’s

property in United States v. One Parcel of Real Property 

and All Improvements Thereon Located at 801 East Franklin 

Ave., Foley, Ala., C.A. No. 13-117-CG-B. It was alleged 

that the subject real property was being used to commit or 

to facilitate the commission of a violation of the 

Controlled Substances Act, which is punishable by more than 

one year’s imprisonment. (Doc. 20-1 at 1).1

 According to 

records in the Office of the Judge of Probate, Baldwin 

County, Alabama, Plaintiff Beverly Heard, also known as 

Beverly Williams, held title to the defendant property. 

(Id. at 2). 

The crack dealers who regularly operated from a shed 

on the property were Clifton Heard, Sr. (Plaintiff’s exhusband), and Plaintiff’s two sons, Clifton Fidele Heard, 

and Jesse Heard. (Id. at 3, 5). Each dealer was arrested 

																																																							 1 As requested by Defendants, the Court takes judicial 

notice of its files and records regarding the underlying 

forfeiture action. Fed. R. Evid. 201.

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and plead guilty to conspiring with intent to distribute 

500 grams or more of a mixture or substance containing a 

detectable amount of cocaine, an offense punishable with a 

term of imprisonment or more than one year, namely, not 

less than 5 nor more than 40 years. (Doc. 20-1 at 9). 

Other dealers selling drugs on the property were also 

arrested, namely, Richard Holmes, who told investigators 

that Plaintiff Beverly Williams, Jesse Heard’s mother, knew 

about the drug transactions at 801 East Franklin. (Id. at 

5). Clifton Fidele Heard claimed that he and his brother, 

Jesse, never sold drugs in front of his mother or sister, 

and Clifton Fidele Heard further advised that his mother 

moved from 801 East Franklin Avenue due to an argument with 

Jesse Heard over his illicit drug activity. (Id. at 6). 

Jesse Heard denied ever selling drugs in front of his 

mother, but did admit that his sister knew of the drug 

sales and she conspired with him to conceal his drug 

proceeds by allowing vehicles bought and owned by Jesse to 

be registered in her name. (Id. at 9). 

Once the prosecution for the drug offenses were 

concluded, counsel for the United States filed, served and 

posted according to statute2 its Verified Complaint for 

Forfeiture In Rem and subsequently filed its 

																																																							 2 18 U.S.C. § 985(c)(1)(B).

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Acknowledgement of Service on March 15, 2013. (Doc. 20-2 

at 1). Despite receiving adequate notice, Plaintiff 

Beverly Heard Williams failed to file a claim and the 

required responsive pleadings, thereby, forfeiting her 

opportunity to assert an innocent owner defense.3 (Doc. 20-

3 at 3). As a result, this Court entered an order 

resolving all matters and issues joined in that action, and 

for the premises to be forfeited by Plaintiff Beverly Heard 

Williams to the United States according to law pursuant to 

Title 21, U.S.C. § 881(a)(7) and Title 18, U.S.C. § 

985(c)(1)(A). (Id. at 6). 

On June 24, 2014, Plaintiff Beverly Heard Williams 

filed the present § 1983 Civil Rights Act action against

Defendants United States Attorney Kenyen R. Brown and 

Assistant United States Attorney, Alex F. Lankford. (Doc. 

1). After requesting leave, Plaintiff filed her Amended 

Complaint, (Doc. 16), to which Defendants filed their 

Motion to Dismiss. (Doc. 20). Plaintiff filed her 

																																																							 3 In asserting an innocent owner defense, Plaintiff would 

have had to prove by a preponderance that upon learning of 

the conduct giving rise to the forfeiture, she did all that 

could reasonably be expected under the circumstances to 

terminate such use of the property to avoid its forfeiture. 

(Doc. 20-3 at 3)(citations and quotation marks omitted). 

But one who abandons property and leaves it to the devices 

of those using it as an illegal drug operation and does 

nothing to try to stop it cannot be an innocent owner. 

(Id.)(citations omitted).

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Response in Opposition thereto, and Defendants filed their 

Reply. (Docs. 25, 26). Being fully briefed, the Motion is 

ripe for consideration. The facts of the present case are 

as follows.

Plaintiff’s sixty-eight page Amended Complaint states, 

in sum, that Defendants violated her civil rights when they 

“abuse[d] their power of authority by executing the claim 

of forfeiture of real property” against her home. (Doc. 16 

at 2). She contends she has “never been implicated in any 

illegal activities nor narcotic sales or distribution,” and 

there are no records that she was ever charged or convicted 

of such. (Id.). Plaintiff states there is no proof that 

she had the property as “straw holder” for her sons to sell 

and/or distribute narcotics. (Id.). Plaintiff further 

contends that Defendants, “through false representation of 

facts and evidence” caused this action, which substantially 

violated her civil and constitutional rights as an American 

citizen, when they asserted that Plaintiff violated the 

controlled substance act by knowing about and allowing the

ongoing drug activity to occur. (Id.). In support, she 

states she was “never investigated for [drug activity], no 

criminal complaint was ever filed against [her], the 

defendants [sic] own sworn account of the information 

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demonstrates that no narcotics were sold from the house 

itself but from the shed and yard.” (Id.). 

For part of her Amended Complaint, Plaintiff utilized 

a form complaint; attached to the form, though, is a 

repetitive and lengthy rendition of her allegations already 

set out in the form. According to the form, Count I of 

Plaintiff’s Amended Complaint is titled, “Illegal Seizure 

of Home and Property that Belongs to Plaintiff.” She 

alleges that “Mr. Alex Lankford and Mr. Kenyen Brown 

wrongfully stated that my home was simply a [sic] holding 

title as a ‘straw’ for my sons. And that my sons were the 

beneficial owners of my home and property which was 

misreprentation [sic] of the actual facts.” (Doc. 16 at 

6). 

Count II is titled, “Pain and Suffering Caused by 

Unlawful Seizure of My Home and Property,” and states that 

“Mr. Lankford and Mr. Kenyen Brown knowingly caused me

undue hardship and pain when they made me homeless along 

with my grandchildren. Mr. Lankford would not allow me to 

get the necessary items out of my home such as medicine, 

the baby breathing machine, the children [sic] medicine, 

and no clothing. Count III is titled, “Destruction of non 

replaceable personal property of sentimental value. My 

deceased children [sic] photos[.]” (Id.). “Mr. Lankford 

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and Mr. Brown did systematically caused [sic] the 

destruction and displacement of the family. Many valuable 

items of which can never be replaced.” (Id. at 6-7). For 

her injuries, Plaintiff states that she has “been made 

homeless and displaced resulting from the actions of the 

defendants. The irreversible damage and disfunction [sic] 

placed upon my family when defendants maliciously 

disregarded my civil and criminal constitutional rights as 

an American citizen.” (Id. at 7). 

For relief, Plaintiff requests “complete compensation 

for lost [sic] of home and property through illegal 

seizure. Financial compensation for the lost [sic] of 

home, property and damages.” (Id.). In a separate 

portion of her Amended Complaint, Plaintiff requests seven 

remedies: “1) declaratory judgment that the defendants 

[sic] solicitation policy and associated practices facially 

and as applied violated the plaintiff [sic] rights under 

the 5th, 6th, and 14th Amendments, 2) a declaratory judgment 

that defendants solicitation of the plaintiff’s sons, 

daughter and associated deprivement [sic] of property and 

civil liberty, facially and as applied violated plaintiff 

[sic] 5th, 6th, 8th, and 14th amendment [sic] of the 

constitutional [sic] of the United States, 3) a declaratory 

judgment that the defendants’ abridgement of plaintiff 

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[sic] cemetery [sic] of innocence violated plaintiff [sic]

rights under the 5th 6th, 8th and 14th amendments of the 

constitutional [sic] of the United States. 4) a preliminary 

and permanent injunction prohibiting the defendants, their 

agency, officials and any other person acting in [sic] 

their behalf from enforcing solicitation and associated 

practices which are challenged in this complaint, 5) 

compensatory and nominal damages for the violations of 

plaintiff [sic] 5th, 6th, 8th, and 14th amendments rights 

under the constitutional [sic] of the United States, 6) 

Plaintiff [sic] reasonable attorney [sic] fees, any cost, 

and other cost and disbursements in this action pursuant to 

42 U.S.C. 1983 [sic], 1985 [sic] Civil Rights, 7) all other 

further release to which plaintiff may be entitled.” (Id.

at 14). 

Attached to Plaintiff’s Amended Complaint are three 

affidavits. First is Plaintiff’s own affidavit, which 

states in pertinent part that Plaintiff was “never in no 

way [sic] involved directly or indirectly in illegal drug 

activities at [her] home, . . . mortgage payments were 

being made by Katie Fairley because I had borrow [sic] 

money on my home from the equity of my home to help her to 

improve her business . . .” and when Fairley got in a bind 

paying on the mortgage, Plaintiff’s uncle stepped in and 

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paid it based on prior debt he owed to Plaintiff; that

“furniture, appliance and other household items were 

purchased by money [Plaintiff] received from [her] deceased 

husband [sic] insurance policy settlement and funds earned 

from years of employment, . . . [and] there were many wall 

paintings and other things in [her] home that were illreplaceable. . . .” (Id. at 68).

The second affidavit by Katie Fairley states that she 

received a loan from Plaintiff through her line of equity 

and that Fairley was making the monthly mortgage payments 

until May or June of 2013, when Plaintiff’s uncle began 

making them instead. (Id. at 17). The last affidavit is 

from Andrew Thomas, Plaintiff’s uncle, and he states that 

he has known Plaintiff his entire life, that she is a model 

citizen trying to make an earnest living. (Id. at 18). He 

further states that he paid Plaintiff’s monthly house note 

payments when Katie Fairley was unable to do so. (Id.). 

Defendants filed their Motion to Dismiss, (Doc. 20),

asserting that Plaintiff’s Amended Complaint is due to be 

dismissed since Defendants are entitled to immunity from 

suit, namely, absolute and qualified immunities. (Id. at 

2-11). Defendants also contend that Plaintiff’s Amended 

Complaint is barred by the doctrine of collateral estoppel, 

and should be dismissed on such grounds. Attached to their 

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Motion and Memorandum is the underlying Verified Complaint 

for Forfeiture In Rem and the record succeeding it. (Doc. 

20-1). 

Plaintiff filed her Response in Opposition to 

Defendants’ Motion to Dismiss stating that she is “in no 

way [] prosecuting the defendants in their capacity as 

officers of the law. However, [she] is only moving to 

prosecute the illegal seizure and forfeiture of her home 

and personal effects mentioned. . . .” (Doc. 25 at 1). 

Plaintiff further contends that “the defendants [sic] 

misstatement to the court that this civil action is against 

the enjoyed immunity of the defendants is indeed a blankface [sic] attempt by the respondant [sic] to refrain and 

distort the truth in facts related to this civil action. 

This is indeed the case in point since the Plaintiff has 

never alleged any entitlement of relief personally from the 

defendants themselves.” (Id. at 2). Plaintiff states that 

“defendants have reckless [sic] violated Plaintiff’s 

constitutional rights and destroyed her life.” (Id.). The 

remainder of Plaintiff’s response addresses Defendants’ 

Motion to Stay Discovery (Doc. 22), which has already been 

ruled on by the Court making the remainder of the Response 

irrelevant to this analysis. 

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Defendants filed their Reply to Plaintiff’s Response 

stating that Plaintiff’s Response gives the Court all the 

more reason to dismiss her case if she is indeed not 

seeking relief from the named defendants in her action. 

II. Discussion

a. Motion to Dismiss Standard

A defendant may move to dismiss a complaint pursuant 

to Federal Rule of Civil Procedure 12(b)(6) if the 

plaintiff has failed to state a claim upon which relief may 

be granted. To survive a 12(b)(6) motion to dismiss for 

failure to state a claim, the complaint “does not need 

detailed factual allegations;” however, the “plaintiff's 

obligation to provide the ‘grounds' of his ‘entitle[ment] 

to relief’ requires more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action 

will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (internal citations omitted). Factual 

allegations, on the assumption that all allegations in the 

complaint are true, must be enough to raise a right to 

relief above the speculative level and state a claim for 

relief that is plausible on its face. Id. at 555, 570. 

The Court accepts all facts as true and limits its 

consideration to the pleadings and exhibits attached 

thereto. Abraham v. Greater Birmingham Humane Soc’y, Inc., 

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No. 2:11-CV-4358-SLB, 2014 WL 1043230, *1 (N.D.Ala. Mar. 

17, 2014)(citing Grossman v. Nationsbank, N.A., 225 F.3d 

1228, 1231 (11th Cir. 2000)(citation omitted). This 

acceptance, however, does not apply to legal conclusions or 

a legal conclusion couched as a factual allegation. 

Ashcroft v. Iqbal, 566 U.S. 662 (2009). All reasonable 

inferences are drawn in favor of the plaintiff; however, 

unsupported conclusions of law or of mixed fact and law 

have long been recognized not to prevent a Rule 12(b)(6) 

dismissal. Abraham, 2014 WL 1043230 at *1 (citing 

Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 

2003)(citation omitted). 

In a pro se litigant’s action, the allegations are 

given a liberal construction by the Court. Haines v. 

Kerner, 404 U.S. 519, 520, (1972) (holding that a pro se 

litigant’s allegations are held to a more lenient standard 

than the those of an attorney). However, the Court does 

not have “license . . . to rewrite an otherwise deficient 

pleading [by a pro se litigant] in order to sustain an 

action.” GJR Investments v. County of Escambia, Fla., 132 

F.3d 1359, 1369 (11th Cir. 1998), overruled on other 

grounds by Iqbal, 556 U.S. 662 (2009). Furthermore, a pro 

se litigant “is subject to the relevant law and rules of 

court including the Federal Rules of Civil Procedure.” 

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Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. 

denied, 493 U.S. 863 (1989).

b. Immunity

When considering a claim of governmental immunity, the 

presumption is that qualified immunity rather than absolute 

immunity is sufficient to protect government officials in 

the exercise of their duties. Fry v. Melaragno, 939 F.2d 

832 (9th Cir. 1991)(citations and quotation marks omitted). 

In some instances, however, the Supreme Court has 

determined that certain government officials require 

absolute immunity from liability in order to enable them to 

function independently and effectively, without fear of 

intimidation or harassment. Id. Accordingly, the Court 

has granted absolute immunity to “the President, judges, 

prosecutors, witnesses, and officials performing ‘quasijudicial’ function, and legislators.” Id. (citing Mitchell 

v. Forsyth, 471 U.S. 511, 520 (1985). The Supreme Court 

has also held that “in initiating a prosecution and in 

presenting the State’s case,” the state prosecuting 

attorney is absolutely immune from a civil suit for damages 

under 42 U.S.C § 1983. Fry at 836 (citing Imbler v. 

Pachtman, 424 U.S. 409 (1976); see also Rivera v. Leal, 359 

F.3d 1350, 1353 (11th Cir. 2004)(“A prosecutor is entitled 

to absolute immunity for all actions he takes while 

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performing his function as an advocate for the 

government”). The differences between a state criminal 

prosecution and federal civil litigation for the purposes 

of immunity are next to none, and thus, those differences

do not undermine the reasons justifying the application of 

absolute immunity. Id. Therefore, where a defendant’s 

conduct is intimately associated with the judicial phases 

of an action, absolute immunity applies. Fry at 836 

(citations omitted); Elder v. Athens-Clarke Cnty., Ga, 

Through O’Looney, 54 F.3d 694, 695 (11th Cir. 1995)(“A 

prosecutor’s decision to bring charges against a person, so 

long as the prosecutor is acting within the scope and 

territorial jurisdiction of his office, is immune from an 

action for damages under § 1983); see also Butz v. 

Economou, 438 U.S. 478 (1978)(stating that absolute 

immunity extended to agency officials performing 

adjudicatory and prosecuting functions, as well as to 

officials responsible for the decision to initiate or

continue a proceeding, and attorneys who conduct trials and 

present evidence on the record to the trier of facts are 

absolutely immune from liability in damages for their 

decisions); Flood v. Harrington, 532 F.2d 1248 (9th Cir. 

1976)(citing Imbler, 424 U.S. at 430). 

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Therefore, whether a “government attorney is 

representing the plaintiff or the defendant, or is 

conducting a civil trial, criminal prosecution or an agency 

hearing, absolute immunity is necessary to assure that 

advocates can perform their respective functions without 

harassment or intimidation.” Fry at 836 (Butz, 438 U.S. at 

512). “Given the similarity of functions of government 

attorneys in civil, criminal and agency proceedings, and 

the numerous checks on abuses of authority inherent in the 

judicial process, we [conclude] that the reasons supporting 

the doctrine of absolute immunity apply with equal force 

regardless of the nature of the underlying action.” Id. 

(citations and quotation marks omitted). 

Though Plaintiff states that she is “in no way 

prosecuting the [D]efendants in their capacity as officers 

of the Law [sic],” but rather she is “only moving to 

prosecute the illegal seizure and forfeiture of her home. . 

. .” (Doc. 25 at 1), for the sake of this analysis, it only 

makes sense for the Court to construe her allegations as 

alleged against Defendants in their official capacities as 

attorneys for the United States of America. The Defendants 

prosecuted both the criminal and forfeiture actions in 

their official capacities on behalf of the United States of 

America, all of which are undoubtedly intimately associated 

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with the judicial phases of their duties as United States 

Attorney and Assistant United States Attorney. As such, 

the Court finds that Defendants’ duties in the underlying 

case are intimately associated with the judicial processes 

of the case and are protected by absolute immunity. 

Furthermore, Defendant Brown’s duties in the 

underlying case were purely supervisory, and it is well 

settled that supervisory liability is not actionable under 

§ 1983. “As a supervisor, liability cannot be imposed 

against him under § 1983 for the unconstitutional acts of 

his subordinates on the basis of respondeat superior or 

vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 

1360 (11th Cir. 2003). “Rather, a supervisor can only be 

held liable in a § 1983 action when the supervisor 

personally participated in the alleged unconstitutional 

conduct or that there is a causal connection between the 

actions of a supervising official and the alleged

constitutional deprivation.” Franklin v. Curry, 738 F.3d 

1246, 1249 (11th Cir. 2013)(quotation marks omitted); see 

also, Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 

1986)(in order to state a § 1983 claim, a plaintiff must 

establish a causal connection between a defendant’s 

actions, orders, customs, or policies and a deprivation of 

his constitutional rights). 

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Plaintiff has not alleged in any fashion how Defendant 

Brown personally participated in the alleged constitutional 

violation, nor has she has she established a causal 

connection between Brown’s actions and the alleged 

constitutional deprivation. Without any allegations 

sufficient to raise a claim for relief against Defendant 

Brown, the Court finds that all claims asserted by 

Plaintiff against Defendant Brown are due to be dismissed.

Regarding AUSA Lankford, the Court concludes he is 

likewise covered by absolute immunity. Filing and 

litigating civil and criminal cases, namely, the underlying 

forfeiture in rem complaint, are core duties assigned to 

prosecutors and are indeed intimately associated with the 

judicial phase of the criminal case from which the 

forfeiture stems. Filing and prosecuting cases of any type 

which benefit the United States government are at the heart 

of what it means to be a prosecutor, and Plaintiff has not 

alleged any facts sufficient to show that Defendant 

Lankford was acting outside the scope of his duties or the 

jurisdiction of his office. Without any allegation 

sufficient to state a claim that Defendant Lankford has 

actually deprived Plaintiff of her constitutional rights, 

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the Court finds that absolute immunity4 extends to AUSA 

Lankford’s part in the underlying proceedings as well. 

																																																							 4 To the extent it can be found that absolute immunity 

does not apply to the Defendants, the Court finds that 

qualified immunity shields them instead. Though 

Plaintiff’s Amended Complaint travels primarily under § 

1983, which by its terms applies to authorities acting 

under the color state law, the Court will consider her 

Amended Complaint as if alleged properly under the Fifth 

Amendment Due Process Clause and Bivens v. Six Unknown 

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 

388 (1971). “Qualified immunity shields federal and state 

officials from money damages unless a plaintiff pleads 

facts showing (1) that the official violated a statutory or 

constitutional right, and (2) that the right was ‘clearly 

established’ at the time of the challenged conduct.” 

Ashcroft v. al-Kidd, __ U.S. __, 131 S.Ct. 2074, 2080 

(2011). The qualified immunity doctrine applies in both 

Bivens and Section 1983 actions. Pearson v. Callahan, 555 

U.S. 223, 232-36 (2009). 

A government official’s conduct violates clearly 

established law when at the time of the challenged conduct, 

the contours of a right are sufficiently clear that every 

reasonable official would have understood that what he is 

doing violates that right. al-Kidd, 131 S.Ct. at 2083. 

Qualified immunity “protects all but the plainly 

incompetent or those who knowingly violate the law.” Id. 

at 2085. 

The defense of qualified immunity is predicated on a 

showing by the Defendants that they were acting within the 

scope of their discretionary authority when the allegedly 

wrongful acts occurred. Lee v. Ferraro, 284 F.3d 1188, 

1194 (11th Cir. 2002)(quotation marks omitted). To 

determine whether an official was engaged in a 

discretionary function, courts consider whether the acts 

the official undertook are of a type that fell within the 

employee’s job responsibilities. Crosby v. Monroe Cnty., 

394 F.3d 1328, 1332 (11th Cir. 2004). See also Holloman v. 

Harland, 370 F.3d 1252, 1266 (11th Cir. 2004) (“Our inquiry 

is two-fold. We ask whether the government employee was (a) 

performing a legitimate job-related function (that is, 

pursuing a job-related goal), (b) through means that were 

within his power to utilize. . . [and] we look to the 

general nature of the defendant’s actions. . .”).

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c. Collateral Estoppel

In their Motion to Dismiss, Defendants contend 

Plaintiff’s Amended Complaint is barred by the doctrine of 

collateral estoppel. (Doc. 20 at 11). The Court agrees.

Collateral estoppel, like the related doctrine of res 

judicata, has the dual purpose of protecting litigants from 

the burden of re-litigating an identical issue with the 

same party or his privy, and of promoting judicial economy 

by preventing needless litigation. Parklane Hosiery Co. v. 

																																																																																																																																																																				

There is ample evidence in the record before the Court 

that Defendants’ decisions, supervision, actions, and 

filings were all taken pursuant to their discretionary 

authority. As attorneys for the United States, there is no 

question that the acts of the defendants fell within the 

scope of their job responsibilities. The prosecution of 

criminal and civil actions in which the United States is 

concerned speaks to the core of what it means to be an 

attorney for the United States of America. Therefore, the 

Court finds the Defendants were exercising their 

discretionary authority when they filed the forfeiture 

action against Plaintiff’s property. 

With this finding, the burden would then shift to 

Plaintiff to show that qualified immunity would be 

inappropriate because the Defendants’ conduct violated a 

constitutional right that was clearly established. Lee at 

1194 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001). 

The relevant dispositive inquiry in determining whether a 

right is clearly established is whether it would be clear 

to a reasonable officer that his conduct was unlawful in 

the situation he confronted. Saucier at 202 (citations 

omitted). It is plain to the Court that Defendants’ 

pursuit of the forfeiture action springing from the 

original drug prosecution is not in violation of a clearly 

established constitutional right. Thus, Defendants are 

also entitled to the protection of qualified immunity. 

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Shore, 439 U.S. 322, 326 (1979)(citation omitted). The 

doctrine applies where “the second action is upon a 

different cause of action and the judgment in the prior 

suit precludes re-litigation of issues actually litigated 

and necessary to the outcome of the first action.” Id. at 

326 n. 5.

There are several prerequisites to the application of 

issue preclusion: 1) the issue at stake must be identical 

to the one involved in the prior litigation; 2) the issue 

must have been actually litigated in the prior suit; 3) the 

determination of the issue in the prior litigation must 

have been a critical necessary part of the judgment in that 

action; 4) the party against whom the earlier decision is 

asserted must have had a full and fair opportunity to 

litigate the issue in the earlier proceeding. CSX Transp. 

v. Bhd. of Maint. of Way Emps., 327 F.3d 1309, 1317 (11th 

Cir. 2003); Dickinson v. Springhill Hosp., Inc., 397 F. 

Supp.2d 1337, 1345-46 (S.D. Ala. 2005); Anderson v. Greene, 

2005 WL 3058095, at *3-4 (S.D. Ala. Nov. 10, 2005). 

“Collateral estoppel, or issue preclusion, bars 

relitigation of an issue previously decided in judicial or 

administrative proceedings if the party against whom the 

prior decision is asserted had a ‘full and fair 

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opportunity’ to litigate that issue in an earlier case.” 

In re St. Laurent, 991 F.2d 672, 675 (11th Cir. 1993). 

The Court finds that all prerequisites to the 

application of collateral estoppel have been met. 

Plaintiff was personally served with a copy of the 

Complaint and Notice of Forfeiture (Doc. 20-2 at 1), giving 

her a full and fair opportunity to contest the forfeiture, 

which she did not do. Consequently, this Court determined 

that civil forfeiture of the property involved in the drug 

activity was proper, and as such, ordered the subject 

property forfeited to the United States. (See Doc. 20-3). 

The issue of the propriety of the civil forfeiture was 

identical in the civil forfeiture action and in this 

action; the issue was actually litigated in the prior 

action; and the determination of the issue in the civil 

forfeiture action was a critical necessary part of the 

judgment in that action. Once served with notice of the 

forfeiture n rem case, Plaintiff had every opportunity to 

contest the taking of property, but she chose not to do 

anything at all. To allow her to proceed with this action 

would give her two bites at the apple and create a waste of 

judicial resources due to her own dilatory and careless 

conduct. Therefore, the Court finds that Plaintiff is 

collaterally estopped from re-litigating the propriety of 

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the civil forfeiture of the property located at 801 East 

Franklin Avenue, Foley, Alabama.

III. Conclusion

Based on the forgoing, the Court recommends that 

Defendants’ Motion to Dismiss be granted for failure to 

state a claim upon which relief can be granted, and based 

on the defenses absolute immunity and collateral estoppel, 

and that Plaintiff’s Amended Complaint be dismissed with 

prejudice.n

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be 

served on all parties in the manner provided by law. Any 

party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of 

this document, file specific written objections with the 

Clerk of this Court. See 28 U.S.C. § 636(b)(1); 

FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. In order to be 

specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before 

the Magistrate Judge is not specific.

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DONE this 30th day of March, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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