           Case: 12-10880   Date Filed: 03/04/2013   Page: 1 of 11

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-10880
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:11-cv-80359-KLR



JULIEN GARCON,

                                                     Plaintiff - Appellant,

                                  versus

JOSEPH ALBERT VAN REETH, JR.,
RICHARD BIRCH,
WEST PALM BEACH POLICE DEPARTMENT,

                                                      Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (March 4, 2013)

Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Julien Garcon, a federal prisoner proceeding pro se, sued Joseph Van Reeth,

Jr., and Richard Birch, two West Palm Beach police officers, and the West Palm

Beach Police Department (the Department) 1 under 42 U.S.C. § 1983 claiming,

inter alia, that he did not receive notice before the forfeiture of $48,865 seized in

2005 from an apartment where he lived. When the two officers filed a Rule

12(b)(6) motion to dismiss the complaint with exhibits attached, the district court

informed Garcon it intended to treat the motion as one for summary judgment

under Rule 56 and permitted him to respond. After Garcon did so, however, the

district court dismissed his case based solely on Rule 12(b)(6) standards. Yet, in

dismissing the complaint for failure to state a claim, the district court cited the

evidence the parties had filed. Garcon appeals that order.

                                                I.

       In 2005, Garcon was living part-time in a West Palm Beach apartment

rented to Shari Morant. Morant gave notice to building management that she

intended to vacate the apartment on December 8, 2005. On December 12,

management entered the apartment, observed a firearm, and called police. Police

searched the apartment and ultimately found guns and $48,865 in cash.

       In March 2007, police arrested Garcon at another West Palm Beach

apartment, which they also searched. Subsequently, Garcon was indicted for being

1
  It does not appear that the Department was served with process before the district court entered
judgment.
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a felon in possession of a firearm. During the proceedings in his criminal case,

Garcon moved to suppress evidence obtained as a result of the 2005 search,

claiming the search was unlawful. But, as relevant here, the district court denied

the motion, Garcon was tried and convicted, and we affirmed. United States v.

Garcon (Garcon I), 349 F. App’x 377 (11th Cir. 2009) (unpublished).

      Later, Garcon moved under Federal Rule of Criminal Procedure 41(g) for

the return of property seized in the two searches, including the $48,865 in

currency. In that motion, he argued that he had not received notice before the cash

was forfeited. The district court denied the motion, and we affirmed, holding that

“because that money had been turned over to the . . . Department, and ultimately

was forfeited,” the federal government “no longer had possession of the currency

[and therefore] did not have the ability to return it to Garcon.” United States v.

Garcon (Garcon II), 406 F. App’x 366, 370 (11th Cir. 2010) (unpublished).

      In November 2010, Garcon filed an action in federal court based on Bivens

v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and

42 U.S.C. § 1983, in which he sought return of property seized as a result of the

2007 search. Garcon named Van Reeth, Jr., and Birch, but not the Department, as

defendants in that suit, along with five others. A magistrate judge recommended

the sua sponte dismissal of “[a]ll claims for return of property” under 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim, and the district court adopted that


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recommendation. Garcon v. Reavis (Garcon III), No. 10-81471, 2011 WL

1322526 (S.D. Fla. Apr. 6, 2011), adopting 2011 WL 1331481 (S.D. Fla. Feb. 25,

2011). Importantly, however, Garcon made no claim in that case about the 2005

search and did not seek return of the $48,865. And the magistrate judge’s report,

although mentioning Garcon’s earlier Rule 41(g) claim for return of the funds, did

not relate to the 2005 search or the forfeited cash. 2

       Garcon filed this action in April 2011, claiming the officers unlawfully

searched his apartment in 2005, he never received notice before the Department

forfeited the currency seized in 2005, and he was deprived of a jury trial in the

forfeiture proceedings. Officers Birch and Van Reeth, Jr., moved to dismiss the

complaint for failure to state a claim but appended to that motion two exhibits: the

affidavit of a DEA agent originally filed in connection with Garcon’s criminal trial

and the magistrate’s report and recommendation from Garcon III. In directing

Garcon to file a response, the district court notified Garcon it intended to treat that

motion as a Rule 56 motion for summary judgment. Garcon responded with a

series of filings that included an affidavit in which he swore that he was the sole

owner of the $48,865, that the money was not in any way associated with illegal

activity, and that he had never received notice the Department intended to forfeit it.

2
 Garcon asserts that, at some point, he filed an action in Florida state court about the seized
$48,865, the ultimate disposition of which is unclear to us. Because neither party discusses it,
we do not consider what effect, if any, that parallel state action should have on these
proceedings.
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      A magistrate judge issued a report and recommendation (R&R) in

November 2011 that the officers’ motion be granted. Despite the previous

indication that the court intended to treat the motion as one for summary judgment,

the R&R recited only Rule 12(b)(6) legal standards and concluded the motion was

due to be granted because “Garcon ha[d] failed to state a claim upon which relief

may be granted.” Citations in the R&R, however, referred to both the officers’ and

Garcon’s evidentiary supplements. Based upon Garcon III and the facts and

arguments made in Garcon II, the magistrate judge recommended Garcon’s claims

be dismissed as barred either by res judicata or collateral estoppel. Garcon

objected on several grounds, but the district court adopted the R&R and dismissed

his case. This is Garcon’s appeal.

                                          II.

      Initially, we observe that it is unclear how the district court disposed of

Garcon’s case. The officers’ motion was denominated as a motion to dismiss, but

included evidence. The district court warned Garcon that it intended to treat the

motion as one for summary judgment, and Garcon responded by filing evidence of

his own. The district court’s order cited that evidence, but recited only Rule

12(b)(6) standards. It is unnecessary for us to untangle what the district court did,

however, because its ruling is not properly before us as to two of Garcon’s claims

and erroneous as to the other regardless of whether we characterize it as a


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summary judgment or a dismissal for failure to state a claim. We review both a

dismissal for failure to state a claim and the grant of summary judgment de novo.

Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (Rule

12(b)(6)); Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008)

(Rule 56).

                                          III.

      The R&R stated that Garcon’s “sole claim” in this case was that he never

received notice of the forfeiture of the $48,865. But Garcon’s complaint contained

two other claims: that the officers “entered the residence in bad faith and without

probable cause,” and that they deprived him of his “right to a jury trial before his

property could be forfeited . . . .” Nothing in the R&R, or the district court’s order

adopting it, addressed either of these two claims. Nevertheless, in his initial brief,

Garcon makes no argument with respect to those to claims. He has therefore

abandoned any contention that the district court erred in dismissing them. See

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (holding that issues not

addressed in a pro se appellant’s initial brief are deemed abandoned).

                                          IV.

      In this case, Garcon also claimed the “Defendants denied [him]

constitutionally adequate notice of administrative forfeiture in violation of [his]

[F]ifth Amendment due process rights.” He argues the district court erred in


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finding that claim was barred by either res judicata or collateral estoppel. The

district court’s decisions were based upon Garcon’s previous § 1983 suit, Garcon

III, and his Rule 41(g) motion for return of the funds, Garcon II. Thus, we apply

federal preclusion principles. E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280,

1285 (11th Cir. 2004).

      Res judicata bars a party from relitigating any cause of action arising from

the same nucleus of operative fact as a previous case between the same parties or

their privies that ended in a final judgment on the merits rendered by a court of

competent jurisdiction. In re Piper Aircraft Corp., 244 F.3d 1289, 1296-97 (11th

Cir. 2001). The district court based its decision that res judicata precluded

Garcon from asserting his claim he was entitled to notice of the forfeiture on

Garcon III. But the claims in Garcon III related exclusively to the March 2007

search. Although the magistrate judge’s report in Garcon III referenced the

December 2005 seizure, no allegation in the complaint related to 2005 or the

$48,865 in cash. 2011 WL 1331481, at *2, *4. Nor is Garcon’s claim that due

process required that he receive notice before those funds were forfeited so related

to his prior claims that he was required to assert it in Garcon III or lose the chance

to do so. “[T]he test for ‘common nucleus of operative fact’ as defined for

purposes of res judicata is not simply one of whether the two claims are related to

or may materially impact one another. The underlying core of facts must be the


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same in both proceedings.” Id. at 1301. The core facts of this case and Garcon III

relate to two completely different searches and forfeitures several years apart. Res

judicata does not bar Garcon’s notice-of-forfeiture claim.

         The district court was also mistaken in finding that Garcon’s claim was

foreclosed by collateral estoppel. Collateral estoppel prevents a party who

previously had a full and fair opportunity to litigate an issue actually litigated and

decided as a necessary part of a prior judgment from challenging that same issue

again. CSX Transp., Inc. v. Brotherhood of Maint. of Way Emps., 327 F.3d 1309,

1317 (11th Cir. 2003). Garcon filed a Rule 41(g) motion in Garcon II to recover

the same $48,865 at issue in this case.3 The district court denied that motion and

we affirmed. Garcon II, 406 F. App’x at 371. But we did so because the federal

government did not have the funds, not because we found that Garcon was not

entitled to notice. Id. at 370. Because the issue of notice was not a necessary part

of the judgment in Garcon II, Garcon is not collaterally estopped from arguing it

here.4


3
  The district court also found Garcon collaterally estopped from litigating his notice-of-
forfeiture claim based upon Garcon III. But that is not so for the same reason res judicata does
not bar the claim; it was not at issue or actually litigated in that case.
4
  Nonetheless, we observe that Garcon argues that Morant withdrew her notice to vacate the
apartment; that he had a secondary leasehold interest in the apartment; and that Morant was a
holdover tenant at the time of the December 2005 search. But the district court in Garcon’s
criminal case, after evidentiary hearings and argument, made explicit factual findings contrary to
each of these contentions in rejecting Garcon’s motion to suppress evidence obtained from the
search, and we affirmed. United States v. Garcon, 2008 WL 60405, at *1, *9-10 (S.D. Fla, Jan.
3, 2008) (unpublished), aff’d, 349 F. App’x 377 (11th Cir. 2009) (unpublished). Those factual
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       The officers assert that, even if the district court was wrong about res

judicata and collateral estoppel, we may affirm on any one of several alternative

bases. None of their contentions are persuasive.

       The officers argue the money was not actually seized, therefore no forfeiture

occurred, and, as a result, they were not required to satisfy any due process

requirement. We reject this contention. Garcon alleged the officers seized the

funds. And the officers cite no evidence to support their argument. Indeed, in the

affidavit appended to their motion to dismiss, a DEA special agent averred:

“During the December 12, 2005 search, Agents from the West Palm Beach Police

Department seized $48,865 in U.S. Currency from inside” the apartment, and “the

entire $48,865 was [later] forfeited . . . .” (emphasis added).

       The officers also claim Garcon does not, as a matter of law, have standing to

receive notice. “If a claimant lacks Article III standing to challenge a forfeiture,

this Court does not have jurisdiction to consider the claim.” United States v.

Weiss, 467 F.3d 1300, 1308 (11th Cir. 2006). “[A] possessory interest generally is

constitutionally sufficient for claims in forfeiture actions.” United States v.

$260,242.00 in U.S. Currency, 919 F.2d 686, 687-88 (11th Cir. 1990). “Property



determinations were necessary parts of the court’s rejection of Garcon’s motion, and Garcon is
estopped from arguing to the contrary in this case. See Taylor v. Sturgell, 553 U.S. 880, 892
(2008) (stating that issue preclusion “bars successive litigation of an issue of fact or law actually
litigated and resolved in a valid court determination essential to the prior judgment, even if the
issue recurs in the context of a different claim”).
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interests for purposes of procedural due process are created and their dimensions

are defined by existing rules or understandings that stem from an independent

source such as state law.” Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir.

2002) (internal quotation marks omitted). Currency that has been used in

connection with criminal activity may be seized and forfeited pursuant to the

Florida Contraband Forfeiture Act. Fla. Stat. Ann. §§ 932.701(2)(a), 932.703. The

Florida Forfeiture Act “defines ‘person entitled to notice’ as ‘any owner . . . or

person in possession of the property subject to forfeiture when seized, who is

known to the seizing agency after a diligent search and inquiry.” Velez v. Miami-

Dade Cnty. Police Dep’t, 934 So. 2d 1162, 1164 (Fla. 2006) (quoting

§ 932.701(2)(e)). In his complaint, Garcon alleged that he owned the cash the

police seized. And Garcon swore in his affidavit he was the owner of the funds.

The officers have presented no evidence to contradict that assertion, and we

therefore have no basis upon which to conclude he does not have standing to

pursue his claim that due process required he have notice before forfeiture of the

funds. 5

                                                             V.

        For the foregoing reasons, we AFFIRM the district court’s ruling with

respect to Garcon’s unlawful-search and jury-trial claims, but REVERSE the
5
 Although the officers initially moved for dismissal on the basis that Garcon’s claims were filed outside of the
applicable limitations period, they have abandoned that contention by failing to argue it on appeal. See N. Am. Med.
Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008).

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court’s dismissal of the notice-of-forfeiture claim and REMAND for further

proceedings consistent with this opinion.




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