     Case: 14-50782      Document: 00512909633         Page: 1    Date Filed: 01/21/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                 FILED
                                                                            January 21, 2015
                                    No. 14-50782
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk


KEVIN RAY LANDRY

                                                 Plaintiff–Appellant
v.

UNITED STATES OF AMERICA

                                                 Defendant–Appellee




                  Appeals from the United States District Court
                        for the Western District of Texas
                            U.S.D.C. No. A-13-CV-864


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Kevin Ray Landry filed a pro se motion for return of
seized property in the United States District Court for the Western District of
Texas. Adopting the magistrate judge’s report and recommendations, the
district court denied Ray’s motion and granted the United States’ motion for
summary judgment. We affirm. 1


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1Also before the court is Landry’s motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56(b). That motion is DENIED.
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                                       No. 14-50782
                                   I. BACKGROUND
       In 2008, a jury found Landry guilty of four different drug and firearms
offenses, and he was sentenced to 300 months’ imprisonment. We affirmed
Landry’s conviction and sentence on June 22, 2009. United States v. Landry,
327 F. App’x 509, 509–10 (5th Cir. 2009) (per curiam) (unpublished).
       Landry seeks return of three categories of seized or forfeited property:
$44,846.35 2 of property seized between 1994 and 2002, based on figures from
his Presentence Investigation Report (PSR); $2,635 seized by the Austin Police
Department (APD) in 2005; 3 and $9,470 administratively forfeited to the Drug
Enforcement Administration (DEA) on December 18, 2006. Landry filed a pro
se motion for return of seized property pursuant to Federal Rule of Criminal
Procedure 41(g). The Government filed a motion for summary judgment, which
the district court granted on June 30, 2012.
       The uncontroverted summary judgment evidence establishes that the
DEA seized from Landry $9,470 in cash related to these offenses on July 13,
2006. Pursuant to the notice requirements of civil-forfeiture proceedings, the
DEA sent written notice by certified mail, return receipt requested, to Landry
on August 11, 2006, at 5911 Little Creek Trail, Austin, TX 78758. This notice
stated that the $9,470 would be subject to forfeiture proceedings. The notice
was returned without any specific reason. The DEA sent the same written
notice to Landry on the same date through certified mail, return receipt
requested, to the Travis County Sheriff’s Office, 500 W. 10th St., Austin, TX



       2  There are discrepancies between the amounts listed in Landry’s original motion for
return of the seized property and his brief on appeal. We use the numbers provided in his
brief.
        3 Although Landry claims this money was seized, the Government confirmed below

that it was obtained via administrative forfeiture. This distinction is immaterial, because we
ultimately agree with the Government that there is no evidence that the United States
obtained the funds.
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                                No. 14-50782
78701. The notice was returned on August 23, 2006, with the notation
“RETURN TO SENDER . . . INMATE NO LONGER HERE.” On October 27,
2006, after confirming Landry’s incarceration status, the DEA sent written
notice through certified mail, return receipt requested, to Landry at Guadalupe
County Detention Center, 2615 N. Guadalupe St., Seguin, TX 78155. On
October 31, 2006, an individual accepted and signed for the certified mail. The
notice informed Landry that he had until December 1, 2006, to file a claim in
the forfeiture proceedings.
      On August 28, 2006, the DEA began publishing notice of the
administrative-forfeiture proceedings in The Wall Street Journal. The notice
was published again on September 5, 2006, and September 11, 2006. The
published notice explained how to contest the forfeiture and stated the
deadline to file a claim was October 12, 2006. Landry filed no such claim, and
the DEA administratively forfeited the $9,470 on December 18, 2006.
                              II. DISCUSSION
      This Court has jurisdiction over this appeal of a final judgment pursuant
to 28 U.S.C. § 1291.
      We review de novo a district court’s grant of summary judgment. Haley
v. Alliance Compressor LLC, 391 F.3d 644, 648 (5th Cir. 2004). Summary
judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Although we view all facts in the light
most favorable to the non-movant and draw all reasonable inferences in the
non-movant’s favor, see Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533
(5th Cir. 1997), conclusory allegations will not defeat a properly supported
motion for summary judgment, Whelan v. Winchester Prod. Co., 319 F.3d 225,
230 (5th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 249
(1986)).
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                                        No. 14-50782
A.     The 1994–2002 Seizures
       Federal Rule of Criminal Procedure 41(g) provides: “A person aggrieved
by an unlawful search and seizure of property or by the deprivation of property
may move for the property’s return.” A Rule 41(g) motion has a six-year statute
of limitations. United States v. Wright, 361 F.3d 288, 290 (5th Cir. 2004) (per
curiam). “[W]here no forfeiture proceedings were conducted, a claim accrues at
the end of the ‘limitations period during which the government is permitted to
bring a forfeiture action . . . .’” Bailey v. United States, 508 F.3d 736, 740 (5th
Cir. 2007) (quoting Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647,
654 (2d Cir. 1998)). Forfeiture proceedings of drug proceeds under customs
laws must be commenced within five years after the time when the alleged
offense was discovered. 21 U.S.C. § 881(d); 19 U.S.C. § 1621.
       The Government argues that Landry’s motion to recover his property
seized between 1994 and 2002 is barred by the statute of limitations. 4 In
addition, the Government notes that Landry has provided no evidence that the
United States effectuated these seizures. There is no evidence of these seizures
in the record; Landry merely asserts that they are listed in his PSR.
       Even assuming the United States seized the property and never
commenced forfeiture proceedings, Landry’s claim to these funds fails. The six-
year statute of limitations commences when the five-year period for the
government to commence forfeiture proceedings expires. 5 For his challenge to



       4  Reading his brief in the most charitable light, Landry seems to argue that equitable
tolling applies to his case. However, “[g]enerally a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way,” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). Landry has not established either element; he simply reiterates his
argument that notice was insufficient.
        5 This is because the six-year statute of limitations for the Rule 41(g) action would run

from the expiration of the five-year statute of limitation of the Government’s forfeiture action,
see 21 U.S.C. § 881(d); 19 U.S.C. § 1621; Bailey 508 F.3d at 740.
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                                       No. 14-50782
be timely, therefore, Landry would have had to file his motion within eleven
years of the date of the seizure. As noted above, Landry filed this action on
September 27, 2013. Landry is therefore statutorily barred from seeking to
recover money seized from him prior to September 27, 2002. Because the latest
alleged seizure in this group occurred on January 1, 2002, Landry’s claims are
time-barred.
B.     The 2005 Seizure
       Landry seeks the return of his property seized in 2005 because the
Government did not comport with the applicable notice requirements. As the
Government notes, Landry provides no evidence that the United States seized
or administratively forfeited the $2,635. 6 Moreover, Landry tacitly admitted in
his response to the motion for summary judgment that the APD—and not the
DEA—administratively forfeited the funds. Because Landry can point to no
evidence that the United States seized these funds, there is no genuine dispute
as to whether the United States followed proper procedure in doing so. Cf.
Reyna v. United States, 180 F. App’x 495, 496 (5th Cir. 2006) (per curiam)
(unpublished) (finding no jurisdiction over a claim against the United States
for the return of vehicles that it had never possessed).
C.     The 2006 Forfeiture
       Landry argues that he did not receive timely notice of the 2006
administrative-forfeiture proceedings. 7 The Civil Asset Forfeiture Reform Act
(CAFRA) provides “the exclusive remedy for seeking to set aside a declaration
of forfeiture under a civil forfeiture statute.” 18 U.S.C. § 983(e)(5). Under



       6 In his original motion for return of the property, Landry alleges that APD seized the
funds and “turned [them] over” to the DEA.
       7 He also claims that the Government failed to prove that the funds were “drug

proceeds.” However, the district court’s review is limited to whether “the forfeiture comported
with constitutional due process guarantees.” Kadonsky v. United States, 216 F.3d 499, 506
(5th Cir. 2000).
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                                      No. 14-50782
CAFRA, personal notice must be sent within sixty days after the date of the
seizure. Id. § 983(a)(1)(A)(i). 8 To initiate these proceedings, the Government
must send personal notice to any person with an interest in the seized property
and publish notice once a week for three successive weeks in a newspaper
generally circulated in the judicial district where the property was seized. 19
U.S.C. § 1607(a)(4); 28 C.F.R. § 8.9(a)(1)(i), (b)(1). Any challenge to an
administrative forfeiture must be filed within thirty-five days after the date
the personal notice is mailed, or if personal notice is not received, then no later
than thirty days after the date of final publication of notice of seizure. 19 U.S.C.
§ 983(a)(2)(B). It is uncontested that Landry did not file a claim within the
appropriate time period.
       Here, Landry’s challenge to personal notice fails because he did not file
suit within the statute of limitations. A motion to set aside the declaration of
forfeiture must be filed no later than five years after the date of final
publication of notice of seizure. 18 U.S.C. § 983(e)(1), (3). The date of final
publication of notice of seizure of the property in The Wall Street Journal was
September 11, 2006. Landry thus had until September 11, 2011, to challenge
the personal notice of the forfeiture proceedings. He did not do so until
September 27, 2013, when he filed this action. Thus Landry’s challenge to the
2006 forfeiture is statutorily barred.
D.     Bivens
       Finally, Landry seemingly raises a Bivens claim for violations of the
Fifth, Six, and Eighth Amendments. Such an action, however, cannot be
brought directly against the United States. F.D.I.C. v. Meyer, 510 U.S. 471,
484–87 (1994).



       8Landry asserts that a six-year statute of limitations applies but cites no authority
that supports that proposition.
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                             No. 14-50782
                          III. CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment for the Government.




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