Case 1:12-cv-00095-JPJ-PMS Document 10 Filed 09/19/13 Page 1 of 6 Pageid#: 64
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BRENDA KAY HILTON,
Case No. 1:12CV00095
UNITED STATES OF AMERICA,
Timothy W. McAfee, Timothy W. McAfee, PLLC, Big Stone Gap, Virginia,
for Plaintiff; Randy Ramseyer, Assistant United States Attorney, Abingdon,
Virginia, for Defendant.
By: James P. Jones
United States District Judge
In this civil action, the plaintiff alleges that the United States is improperly
in possession of two firearms that she owns. The firearms were seized by the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) because the
plaintiff’s husband was under indictment for knowingly possessing firearms after
having been convicted of a crime punishable by imprisonment for a term
exceeding one year in violation of 18 U.S.C.A. § 922(g)(1) (West 2000). The
United States has moved to dismiss the plaintiff’s Complaint, arguing that her
claims are barred by the ATF’s Declaration of Administrative Forfeiture, and by
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the ATF’s partial denial of the plaintiff’s Petition for Remission. For the reasons
set forth below, I will grant the United States’ motion.1
The following facts are taken from the Complaint, which I must accept as
true for the purpose of deciding the present motion.
The plaintiff seeks possession of two firearms, a Smith & Wesson Model 60
revolver, .38-caliber, serial number R106668, and a Remington 742 Woodmaster
rifle, .30-06 caliber, serial number 6997936. (Pl.’s Compl. ¶ 15.) In August 2010,
ATF seized these two firearms, one from the residence of the plaintiff and her
husband, and the other from a country store that is operated by the plaintiff and
that sits on property owned by the plaintiff and her husband. (Pl.’s Compl. ¶¶ 8-
13.) The plaintiff’s husband has a felony conviction and is disqualified from
lawfully possessing firearms. (Pl.’s Compl. ¶ 7.)
The Complaint asserts that “[t]he United States, acting through its agents
with the ATF, administratively forfeited the firearms in violation of the statutory
and Constitutional rights of Brenda Kay Hilton.” (Pl.’s Compl. ¶ 17.) The
Complaint next asserts that “the United States knew that the Plaintiff claimed an
1 After the United States moved to dismiss, the plaintiff requested an extension of
time in which to file a response. I granted the request, and the plaintiff was given until
August 19, 2013, to respond. The plaintiff did not respond and the Motion to Dismiss is
ripe for decision.
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interest in the firearms, and claimed to be an innocent owner of the firearms in
accordance with 18 USC §983 (d).” (Pl.’s Compl. ¶ 18.) Finally, the Complaint
asserts that “[t]he United States has failed to timely begin forfeiture proceedings
and is still in possession of these firearms, in violation of the statutory and
Constitutional rights of Brenda Kay Hilton.” (Pl.’s Compl. ¶ 20.)
The United States’ Motion to Dismiss included documents that detail ATF’s
administrative forfeiture proceedings with respect to the two firearms at issue.
These documents suggest that the administrative forfeiture proceedings were
conducted in accordance with all relevant statutes and regulations. However, for
the purpose of deciding the present motion, I must only look at the plaintiff’s
Complaint. In it, I do not find a claim upon which relief can be granted.
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint
to determine whether the plaintiff has properly stated a cognizable claim. See
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Federal
pleading standards require that a complaint contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In
order to survive a motion to dismiss, the plaintiff must “state a plausible claim for
relief” that “permit[s] the court to infer more than the mere possibility of
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misconduct” based upon its “judicial experience and common sense.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). In evaluating a pleading, the court accepts as true
all well-pled facts and construes those facts in the light most favorable to the
pleader. Id. at 678.
In this case, the plaintiff first claims that the United States administratively
forfeited two firearms in violation of her constitutional and statutory rights. The
plaintiff identifies no particular constitutional provision in connection with this
This vague allegation is insufficient, and I must dismiss this constitutional
The plaintiff’s statutory claim concerning the administrative forfeiture
appears to be based on 18 U.S.C.A. § 983(d) (West Supp. 2013), which is
referenced in the next paragraph of the Complaint. The plaintiff claims that she is
an innocent owner of the firearms under § 983(d). The term “innocent owner” is
defined in § 983(d) as an owner who:
did not know of the conduct giving rise to forfeiture; or
2 In the third paragraph of her Complaint, the plaintiff referenced the Second
Amendment and the Due Process Clause of the Fifth Amendment: “Plaintiff enjoys all of
the Constitutional Rights afforded her pursuant to the 2nd Amendment to the United
States Constitution, and all rights afforded her pursuant to the Due Process Clause of the
5th Amendment to the United States Constitution.” (Pl.’s Compl. ¶ 3.) This general
reference, not tied to any claim or assertion of fact, is insufficient to constitute a legally
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upon learning of the conduct giving rise to the forfeiture, did all
that reasonably could be expected under the circumstances to
terminate such use of the property.
18 U.S.C.A. § 983(d)(2)(A)(i)-(ii). The plaintiff does not assert that she was
unaware of her husband’s actual or constructive possession of the firearms on their
joint property, or that she took steps to keep the firearms out of his control. The
plaintiff has not offered any facts in support of her contention that she is an
innocent owner. Therefore, I must dismiss the statutory claim under § 983(d).
Finally, the plaintiff claims that “[t]he United States has failed to timely
begin forfeiture proceedings and is still in possession of these firearms, in violation
of the statutory and Constitutional rights of Brenda Kay Hilton.” (Pl.’s Compl.
¶ 20.) The plaintiff does not assert any facts alleging that the United States did not
begin forfeiture proceedings, and the plaintiff does not identify any statutory or
constitutional language to support the implied allegation that the ATF’s
administrative forfeiture proceedings were not valid with respect to her.
The plaintiff has not demonstrated a plausible claim for relief. Her statutory
and constitutional claims were not set forth with adequate specificity. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678.
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Accordingly, the Motion to Dismiss will be GRANTED. A separate order
will be entered.
DATED: September 19, 2013
/s/ James P. Jones
United States District Judge