     Case: 09-11183     Document: 00511269252          Page: 1    Date Filed: 10/20/2010




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

                                                  FILED
                                                                          October 20, 2010

                                       No. 09-11183                         Lyle W. Cayce
                                                                                 Clerk

FRANCISCO JARAMILLO-GONZALEZ,

                                                   Plaintiff - Appellant
v.

UNITED STATES OF AMERICA,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:08-CV-732


Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Francisco Jaramillo-Gonzalez appeals the district court’s grant of
summary judgment for the Government on his motion for return of property
under Federal Rule of Criminal Procedure 41(g). We AFFIRM the district
court’s grant of summary judgment, VACATE the dismissal with prejudice, and
REMAND.
        In June 2003, Jaramillo-Gonzalez was arrested for cocaine trafficking.
Following the arrest, Drug Enforcement Agency (“DEA”) agents executed a

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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search warrant at Jaramillo-Gonzalez’s residence. The agents seized cocaine
and heroin, a scale, four address books, pictures, miscellaneous documents, and
numerous firearms and ammunition. In October 2003, Jaramillo-Gonzalez pled
guilty to possessing cocaine and heroin with intent to distribute and to
possessing a firearm in furtherance of a drug trafficking crime.
      Two months after the arrest but before the guilty plea, the DEA sent
notice to Jaramillo-Gonzalez of its intent to forfeit four of the firearms. The
notice was sent by certified mail to four different addresses, including the
detention facility where he was being held. The letter was received by the
facility, but the evidence is disputed as to whether it was then delivered to
Jaramillo-Gonzalez. He denies ever receiving the notice, but someone did sign
his name to a receipt.
      The four firearms were declared forfeited in November 2003, and
subsequently destroyed.    In July 2006, the scale, address books, and other
documents and pictures were destroyed. Two remaining firearms were returned
to their owners.
      In December 2008, Jaramillo-Gonzalez filed a motion under Federal Rule
of Criminal Procedure 41(g) seeking return of all property seized from his
residence except for the drugs. The Government moved to dismiss. It explained
that four firearms were forfeited and the others were returned to their owners,
while the remaining items were drug-related and had been destroyed pursuant
to DEA policy.
      The district court, construing the motion to dismiss as one for summary
judgment, granted judgment for the Government. The district court reasoned
that sufficient notice had been provided to Jaramillo-Gonzalez prior to the
forfeiture and the destruction of some of the weapons. Further, the remaining
items could not be returned because the Government no longer possessed them.
The district court held that because Jaramillo-Gonzalez had not sought any

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relief other than return of his property, he would not be given an opportunity at
that stage to assert a new claim for monetary damages. This appeal followed.
      A grant of summary judgment is reviewed de novo. United States v.
Robinson, 434 F.3d 357, 361 (5th Cir. 2005). “A person aggrieved by . . . the
deprivation of property may move for the property’s return.” Fed. R. Crim. P.
41(g). A court reviews an administrative forfeiture of property only for “failure
to comply with procedural requirements or to comport with due process.” United
States v. Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996).
      The Supreme Court has considered what the Government must do to
notify an incarcerated person of an administrative forfeiture proceeding. See
Dusenbery v. United States, 534 U.S. 161 (2002). The Court instructed that
actual notice is not required to satisfy due process, but notice must be
“reasonably calculated, under all the circumstances, to apprise [interested
parties] of the pendency of the action.” Id. at 173 (internal quotations and
citation omitted).
      Circuits have advanced differing views on whether notice, properly
addressed to a prisoner and sent by certified mail to the facility where he is
incarcerated, satisfies Dusenbery. The Seventh Circuit’s interpretation is that
delivery of such notice to the prison discharges the Government’s obligation to
provide notice of an administrative forfeiture proceeding. See Chairez v. United
States , 355 F.3d 1099, 1101-02 (7th Cir. 2004). In contrast, the Eight Circuit
held “there is no irrebuttable presumption that a prison’s internal mail-
distribution procedures are reasonably calculated to provide notice, but that the
prisoner, as the plaintiff, has the burden to demonstrate that the procedures are
inadequate.” Nunley v. Dep’t of Justice, 425 F.3d 1132, 1137 (8th Cir. 2005).
The Fifth Circuit has not yet adopted a position.
      There is no reason for us to elaborate on our views under Dusenbery. This
case does not present a factual basis on which any of the suggested standards

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would lead us to conclude that the notice did not comply with due process. The
Government sent notice of the prospective firearms forfeiture by certified mail
to the facility where Jaramillo-Gonzalez was incarcerated. The Government
submitted evidence that the notice was received at the prison, and the prison
mail delivery logbook indicates it was delivered to the inmate.
      Jaramillo-Gonzalez alleges he did not receive the forfeiture notice and that
someone else must have signed the mail delivery logbook. It is insufficient
merely to deny receipt and suggest someone else must have signed for it. The
question is whether sending the notice by certified mail and receiving a signed
receipt of delivery were “reasonably calculated, under all the circumstances, to
apprise [him] of the pendency of the action.”      Dusenbery, 534 U.S. at 173
(internal quotations and citation omitted). Jaramillo-Gonzalez has not provided
any evidence to undermine the reasonable calculation by the DEA in 2003 that
its method of providing notice would apprise him of its planned forfeiture.
      As to the remaining items, the Government does not contend it provided
Jaramillo-Gonzalez with notice of forfeiture. The Government asserts instead
that those items were drug-related and therefore destroyed in accordance with
DEA policy. Jaramillo-Gonzalez disagrees that the items were drug-related.
Regardless of that dispute, Jaramillo-Gonzalez cannot compel the Government
to return property it no longer possesses. See, e.g., Peña v. United States, 157
F.3d 984, 987 (5th Cir. 1998). Accordingly, summary judgment denying the
requested relief of return of the property was correct.
      Other relief may be available, though. Jaramillo-Gonzalez may seek
monetary damages now that the Government no longer has the property. See
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He should be given
an opportunity to amend his complaint to state a Bivens claim. “[A] court should
grant a pro se party every reasonable opportunity to amend.” Peña, 157 F.3d at
987 n.3 (citations omitted). Acceptable reasons for denying leave to amend

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include “prejudice to the opposing party, undue delay, repeated failure to cure
deficiencies with prior amendment, bad faith, dilatory motive and futility of
amendment.” Union Planters Nat’l Leasing, Inc. v. Woods, 687 F.2d 117, 121
(5th Cir. 1982).
      Jaramillo-Gonzalez did not state a claim for monetary damages in his
initial Rule 41(g) motion. Such an omission does not bar amendment. Monetary
damages are not available under Rule 41(g), making it futile for Jaramillo-
Gonzalez to have asserted such a claim. Under similar circumstances, this court
has held that a defendant was not on notice of his potential Bivens claim until
the Government confirmed the items sought to be returned had been destroyed.
Peña, 157 F.3d at 987.
      We AFFIRM the district court’s grant of summary judgment as to the
return of property, VACATE the dismissal with prejudice, and REMAND for
proceedings consistent with this opinion.




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