¹ Plaintiffraised prior claims regarding this seizure and forfeiture. See Mosby v. Sykes, No. 5:15-CT-3202-BO, ° WL 4102487, at *2-3 (E.D.N.C. Feb. 23, 2017) (noting DEA seized money under 21 U.S.C. § 881 and finding the complaint under 28 U.S.C. § 1983 failed to state a claim), aff'd 692 Fed. Appx. 755 (4th Cir. 2017); Mosbyv. Ingram, ~~ | 5:15-ct-03247-BO (E.D.N.C. Mar. 28, 2016) (denying a Writ of Mandamus to compel return of the forfeited moncy). liberally construed plaintiff s filings as an action to set aside the forfeiture under 18 U.S.C. § 983(e), and allowed the action to proceed. Order [D.E. 24]. On February 28, 2019, plaintiff filed a motion to consolidate cases, see Mot. [DE. 25]; and . ‘a motion for summary judgment together with attached documents in support, see Mot. [D-E. 26} On April 30, 2019, plaintiff filed another motion for summary judgement with attached ee in support. See Mot. [D.E. 31]. oe ee On May 7, 2019, defendant filed a motion to dismiss under Federal Rules of Civil Procedure Rules 12(b)(1) and 12(b)(6), Mot. [D.E. 33], a memorandum in support [D.E. 34], a a of : material facts [D.E. 35], and a declaration with attachments [D.E. 36]. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified plaintiff about the . motion to dismiss, the consequences of failing to respond, and the response poe DE. 37] On May 30, 2019, plaintiff filed a response in opposition to defendant’s motion to dismiss [D.B.38]. On June 25, 2019, defendant filed a reply [D.E. 41]2 oe On August 14, 2019, plaintiff filed a motion seeking entry of default. Mot. [DE. 43 On November 21, 2019, plaintiff filed a motion for summary judgment, Mot. IDE. 46], declaration [D.E. 47], and a statement of material facts [D.E. 48]. On November 26, 2019, defendant filed a response in opposition [D.E. 49]. On December 13, 2019, plaintiff filed a reply DE. 50] a l4)o4 stalemes ~ On October 7, 2020, plaintiff filed a motion for judgment on the Peasites IDE. 56)! counts Rogdheyd Because the case which plaintiff sought to consolidate with this action was dismissed, Orbe Mosby v. State of North Carolina, No. 5:19-hc-02006-D (E.D.N.C. Sept. 19, 2019), this motion to 3 plaintiff’s sur-reply, [D.E. 42], exceeds the scope of filings allowed under E.D.N.C. Local Civil Rule 7.1 because it was not filed in response to an order of the court. Accordingly, the court declines.to.considerithis:filing.

⁴ Plaintiff also filed documents entitled “LEGAL NOTICE! NAME DECLARATION CORRECTION PROCLAMATION AND PUBLICATION [sic],” [D.E. 51], and “Writ of Quo Warranto for Dismissal [sic],”[D.E.53]. io: These filings lack merit. . oe

⁷ Ga Beka further declares that DEA attempted to serve plaintiff at two different New J ersey addresses; one attempt was returned as ondeliveracies but the other was signed for by an individual accepting ns Do OP Farhad delivery on plaintiffs behalf. Id. at {[4(b)-(c); see [D.E. 36-3] (photocopy of certified delivery — - of the notice of forfeiture accepted and signed for on plaintiffs behalf). DEA also published notice in the Wall Street Journal for three poneecutiye weeks beginning September 24, 5013. See : Exhibit A, Hankins Decl. [D.E. 36] at J4(h). After no plnins — received as to the seized currency, an administrative declaration of forfeiture was entered on January 7, 2013. Id. at $40). a 'inhis self-styled “statement of undisputed facts [sic],” plaintiff asserts: defendant admits to not giving plaintiff receipt or notice of forfeiture; Lanier “admits to fraud of impersonating a D.E.A. agent at the time hé confiscated plaintiff's U.S. currency [sic}”; defendant admits “there was no justification to confiscate and forfeiture as proyideunder 21U.S.C. § 881 [sic}”; and documents prove “lack of jurisdiction” over the property. See Pl.’s Stmt. [D.E: 31:1] at 1-2: Plaintiff also declares that he did not receive notice of forfeiture or “access to the court” allowing him to challenge . forfeiture and that there was no probable cause to initiate the seizure or forfeiture. P1.’s Decl. [D.E..3 1-2] atl. 7 i ACK In his response in opposition, plaintiff argues: service on plaintiff at “the last corresponding --. . address [sic]” was insufficient because defendant knew or should have known that plaintiff was inearcerated in the North Carolina since August 27, 2012; pursuant to Dusenbery v. United-States, 534 U.S. 161, 167 (2002) (“Dusenbery’”) (finding cera due process requires that “individuals whose property interests are at stake are entitled to ‘notice and an opportunity to be heard defendant should have sent plaintiff written notice in prison; and publication in the Wall Street Journal does not accord with the local rules of practice and procedure. See Pl.’s Resp, [DE. 38] Inreply, defendant notes that the relevant test “is whether notice was ‘reasonably calculated anerall the circumstances to appraise [plaintiff] of the pendency of the [administrative] forfeiture.” Def’s Reply [D.E. 41] at 2 (quoting Dusenbery, 534 U.S. at 168). c) Discussion: oe Under 21 U.S.C. § 881, the Government may seek forfeiture of money or other ae connected to a violation of drug laws. Under the Civil a Forfeiture Reform Act (CAF RA”), “the burden of proof is on the Government to establish, by a preponderance of the evidence, that the Property is subject to forfeiture,” 18 US.C. § 983(c)(1), and the Goverment must sive claimants ‘notice of forfeiture within 90 days of the peurel 18 USC. § 983(a)(1)(A)Gv) (stating notice Perrone when state or local law enforcement seizes property and — it over to federal law ‘enforcement for forfeiture under federal law). However, once an administrative forfeiture isentered, oe my . andes. be aietrative (ferfdituen as here, the court lacks jurisdiction to poneider the merits of the forfeiture. See, a v United States, 120 F.3d 472, 476 (4th Cir. 1997) (finding administrative forfeiture proceeding divests the 2 court of jurisdiction); United States v. Schinnell, 80 F.3d 1064, 1069 (Sth Cir. 1996) (“Once the - administrative forfeiture was completed, the district court lacked jurisdiction to review the forfeiture ae : Awe | ay AACE ART excont for failure to comply with procedural requirements on to comport with due process”. ns, owsslanueeulns 8 er Mat Accordingly, the sole issue before the court is whether plaintiff received adequate fictice of the forfeiture. See 18 U.S.C. § 983(e)(1), (5); Mesa Valderrama v. United States, 417 F.3d 1189, 1196 (11th Cir. 2005) (“18 U.S.C. § 983(e) is the exclusive remedy available to persons challenging nonjudicial forfeiture actions providing relief only in instances where the injured party did-not. receive adequate notice to challenge the proceeding”); McKinney v. U.S. Dep’t of J ustice DmugEntt Admin, 580 F. Supp. 2d 1, 34 (D.D.C. 2008) (quoting 18 U.S.C. § 983(e)(5) for the proposition that the CAFRA “restricts the sovereign’s consent to suit by providing that ‘[a] motion filed this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under acivil forfeiture statute,’” and finding that, “once an administrative declaration of forfeiture has been issued under the CAFRA, the United States has unequivocally expressed its consent to be suedonly . 7 under 18 U.S.C. § 983(e)(1).”). Section 983(e)(1) provides: — oe oe : (1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding. under a civil forfeiture statute who does not receive such notice may file amotion'to??!: set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if-- Cie an (A) the Government knew, or reasonably should have known, of the moving party’s»~:!) interest and failed to take reasonable steps to such party with notice; aoe, i (B) the moving party did not know or have reason to mon of the seizure within sufficient time to file a timely claim. IBUS.C.§ 983(e)(1). ghee? ‘Where the civil forfeiture does not exceed $500,000, as is the case here, ‘the Goverriment must provide written notice to “each party who appears to have an interest in the seized article” and publish notice of the seizure and intention to forfeit the property seized “for at least three successive - weeks in such a manner as the Secretary of the Treasury may direct.” 19 U.S.C.§ 1 6074. the instant forfeiture was initiated, this notice required publication “once a week for at least 3 successive weeks in a newspaper of general circulation in the judicial district in which the processing forfeiture is brought.” 21 C.F.R. § 1316.75(@) (2012). : Here, the record reflects that notice of forfeiture was published in the Wall Street Journal for three consecutive weeks. See Def.’s Exhibit 13 [D.E. 36-14]. Despite plaintiff's bald assertion that this newspaper publication does not accord with the local rules of practice and procedure, ee Resp. [D.E. 38], the court finds the Wall Street Journal is a newspaper in general ciroufption in the Eastern District of North Carolina within the meaning of 21 CF.R. § 1316.75(a) (2012) As to the written notice requirement, the record reflects, and plaintiff does perciscaret that the Government sent written notice to plaintiff's New Jersey address, and that this notice wes signed for on plaintiff's behalf by another individual. See Def’s Exhibit 2 [D.E. 36-3] (ehotocopy of certified mail delivery of the notice of forfeiture to plaintiff Christopher Mosby’s address in . Springfield, New Jersey, with the following signature: “J oyce Lynn for Christopher Mosby”). _. Despite plaintiff's claim that notice of forfeiture was insufficient under Dusenbery come the Government knew or should have known plaintiff would not receive en notice sent to his New Jersey address when he was incarcerated in North Carolina, actual receipt of forfeiture notice is not required under the CAFRA. See Jones Flowers, 547 US. 220, 296 (2006) (Due process does not require that a property owner receive actual notice before the poveminne may take STN Se : his property. Rather, we have stated that due process requires the government to provide ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of . ts ALoRAps the action and afford them an opportunity to present nen obj ections. (citations omited) see also -Centeno v. United States, 2006 WL 2382529, at *3 (SDNY. Aug. 17, 2006) (noting Dusenbery rejected any requirement that the Government must prove actual receipt of forfeiture notice). Boo Here, although the Government failed to mail notice of the forfeiture to plaintiff's place of incarceration, the court finds that the Government nevertheless took “reasonable steps” to provide plaintiff notice of the forfeiture. 18 U.S.C. § 983(e)(1)(A); see Jones, 547 U.S. at 226; Dusenbery, 534 U.S. at 170 (noting the Government is not required to make “heroic efforts” at patios: also Weigner v. City of New York, 852 F.2d 646, 651 (2d Cir. 1988) (“Particularly where mailing is supplemented by other forms of notice such as posting or publication, the risk of non-receipt is a constitutionally acceptable.”); Harrington v. U.S. Drug Enf't Agency, No. CIV.A. 05-CV-206-WOB, 2006 WL 897221, at *3-5 (E.D. Ky. Apr. 6, 2006) (noting “[w]ritten notice of forfeiture by certified : 7 . mail to the claimant’s residence generally satisfies due process even if the claimant does not receive actual notice,” and finding that, where notice of forfeiture was accepted by another individual at plaintiffs then-known address, this satisfied due niece) cf United States v. Hooker, 93 F. App’x 567, 568 (4th Cir. 2004) (per curiam) (unpublished) (finding the Government failed ‘submit evens showing adequate notice of forfeiture). ~ _ Alternatively, even if the en notice of forfeiture was insufficient under Dusenbery, eens plaintiff was present when the currency was seized, plaintiff nevertheless fails to establish ‘that he did not know or have reason to know of the seizure within sufficient time to file a claim, as required under 18 U.S.C. § 983(€)(1)(B). See, ¢.g., United States v. Russell, No. 2:04CR150-MHT, a “forleihute by vers ded 2006 WL 2786883, at *3 (M.D. Ala. Sept, 27, 2006) (finding movant failed to establish “ne did not know or have reason to know of the seizure within sufficeint time to file a timely claim” when the ry was seized from him); Harrington, 2006 WL 897221, *4 (E.D.Ky. Apr. 6, 2006) (inding § 983(€)(1) unsatisfied where movant knew money was seized from his pocket); Johnson v. United States, No, 1:03-CV-00281-LIM VS, 2004 WL 2538649, at *4 (S.D. Ind. Oct. 22, 2008) (nding 983(6)(1) unsatisfied where movant was present at seizure and had months to claim an interest) Thus, after considering the factual allegations in the light most favorable to plaintifé, the . . .. court finds that, because plaintiff fails to satisfy both requirements of 18 U.S.C. § 983(e)(1), plaintiff likewise fails to state a claim upon which relief can’ be granted, Fed. R. Civ. P12(0)6). Accordingly, the court GRANTS defendant’s motion to dismiss [D.E. 33]. a, 7 3) Plaintiff's motion for entry of default [D.E. 43]: ag a An entry of default shall be made when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” See Fed, R. Civ. P. 5 5 @. oe Plaintiff argues that default should be entered because defendants failed “tg respond to second response to summary judgment pleading which is require of 20 to 30 days, which ithas 40 days and counting, as well as over exceeded ‘the mail box rule’ [sic].” Mot. [D.E. 43] at 1. Here, defendant filed a nreone motion to dismiss. See Mot. IDE. 33], oe hea 2 eel ag ganic - plaintiff asserts that defendant’s failure to respond to his sur-reply constitutes grounds a entry default, plaintiff is incorrect. As noted above in footnote 3, sur-replies and responses to sur-replies not permitted absent a court order directing such filings. See E.D.N.C. Local Civil Rule 7.1. To the extent plaintiff instead asserts that defendant failed to respond to plaintiff's first and second . motions for summary judgment, no response was necessary because, noted above, _ motions oe premature. Accordingly, the court DENIES the motion for entry of default [D.E. 43]. 4) =| Plaintiff's third motion for summary judgment [D.E. 46]: . i phaebesn : Summary judgment is appropriate when, after reviewing the entire record, the court find that ‘26 genuine issue of material fact aren and the moving party is entitled judgment as 3 matter of Fed. R. Civ. P. 56(a); see Anderson, 477 U.S. at 247-48. For the above reasons granting defendant’s motion to dismiss, plaintiff fils to demonstrate that he is entitled to judgment as a — of law, and the cout DENIES this motion DE. 461 12 thee oS) Plaintiff's motion for judgment on the pleadings [D.E. 56]: In reviewing a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the court applies “the same standard” as for motions to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Burbach Broad Co. v. Elkins Radio Com. F.3d 401, 406 (4th Cir. 2002). a For the above reasons granting defendant’s motion to dismiss, this motion also is DENIED. Conclusion: a For the reasons discussed above, the court: DENIES AS MOOT the motion to consolidate IDE. 25]; DENIES plaintiffs motion for entry of default [D.E. 43]; DENIES plaintiff's motions for summary judgment [D.E. 26, 31, 46]; DENIES plaintiff's motion for judgment on the pleadings [D.E: 56]; and GRANTS defendant’s motion to dismiss [D.E. 33]. The clerk shall close the case. SO ORDERED. This (day of Mpartendugo 120, ro Poor 3 State Chief United States District Judge tad OTe DERE, us HPS mOky