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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

ABINGDON DIVISION



BRENDA KAY HILTON,



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Case No. 1:12CV00095


Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

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



OPINION



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





Case 1:12-cv-00095-JPJ-PMS Document 10 Filed 09/19/13 Page 2 of 6 Pageid#: 65

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





I

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.



II

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

claim.2

This vague allegation is insufficient, and I must dismiss this constitutional

claim.

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:

(i)

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
sufficient pleading.



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(ii)

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.



III

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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Case 1:12-cv-00095-JPJ-PMS Document 10 Filed 09/19/13 Page 6 of 6 Pageid#: 69

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





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