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December 19, 1996

D. LYNN GORDON, et al., Defendants.

The opinion of the court was delivered by: RICHEY


 The plaintiff in this suit, Diosdado Valdes, brings this action against various employees of the United States Customs Service ("Customs") alleging that the defendants illegally seized his property and purposely prolonged and withheld from disclosing information requested under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Before the Court is the defendants' Motion to Dismiss and the plaintiff's Opposition thereto. Upon consideration thereof, the entire record herein, and for the reasons set forth below, the Court shall grant the defendants' Motion to Dismiss.


 The plaintiff in this case is a federal inmate currently incarcerated at the Federal Correctional Institution at Miami, Florida. Plaintiff was convicted of importation, possession and conspiracy charges concerning the illegal importation of approximately 5,800 pounds of marijuana into the United States from Jamaica. For such convictions, he is serving a 19 year prison sentence. The plaintiff's claims arise from two series of events. The first was the seizure and forfeiture of the plaintiff's personal property in 1992 and 1993. The second set of events involves the plaintiff's FOIA request to Customs in 1995.

 I. Seizure and Forfeiture of the Plaintiff's Personal Property.

 For purposes of ruling on the defendants' Motion to Dismiss, it is not necessary to set forth the lengthy series of events involving the seizure and forfeiture of the plaintiff's property arising from the investigation involving the plaintiff's criminal conduct. Central to the plaintiff's claims, however, is the fact that the defendant was moved from a federal prison facility in Pensacola, Florida to another federal facility in Kentucky around the time that Customs was instituting forfeiture proceedings on the plaintiff's property. A number of letters were sent to the plaintiff's address at the Pensacola facility after he had been moved to the Kentucky facility, informing him as to various deadlines and proceedings involving the forfeiture. The plaintiff alleges that certain defendants purposely avoided notifying him of the forfeiture of his property by sending the requisite notice to the older address. In addition, he claims that he was purposely moved around the federal penal system to prevent him from challenging the forfeiture. The defendants claim, without dispute from the plaintiff, that Customs sent all letters to the most recent address given by the plaintiff and many of the letters to the plaintiff's attorney as well. In the end, two automobiles and electronic equipment owned by the plaintiff and his wife were forfeited to the United States.

 II. The Plaintiff's FOIA Request to Customs.

 On February 9, 1995, the plaintiff sent a FOIA/Privacy Act request to Customs. In it, the plaintiff requested all general records, memoranda, logs and/or computer print-outs of the agency pertaining to himself. On March 6, 1995, the agency sent the plaintiff a letter acknowledging receipt of his request and requesting that the plaintiff provide a statement affirming his identity. The plaintiff provided such statement on or about March 9, 1995.

 After nearly a year, the plaintiff wrote a letter to Customs on February 1, 1996, reminding it that he had not received a response to his request. The plaintiff stated that he would bring an action in court if he did not receive a response in thirty days. On March 14, 1996, Customs informed the plaintiff that responsive records were being reviewed and that he would be receiving a response by mid-April of 1996.

 The Special Agent in Charge for the South Florida Area and the Service Port Director in Miami both responded to the FOIA request on April 22, 1996 in separate letters. Both letters informed the plaintiff that the records he sought were exempt from the provisions of the Privacy Act. Documents responsive to his FOIA request were sent with certain redactions based on various exemptions to the FOIA.

 On May 3, 1996, the Tampa office of Customs responded directly to the plaintiff, informing the plaintiff that the documents sought were exempt from the provisions of the Privacy Act, and that it was their understanding that much of the information relating to the plaintiff's charges and investigations from that office had already been made available to the plaintiff and his attorney during pretrial discovery conferences in his criminal case. Accordingly, the plaintiff was advised that he would not receive documents that he had already been given. The plaintiff was further advised that other responsive documents were being withheld pursuant to various exemptions to FOIA.

 On June 16, 1996, the plaintiff brought this damage action against several employees of Customs, claiming that they illegally seized his personal property, including two automobiles and electronic equipment. In addition, the plaintiff brought damage claims arising from the purposeful prolongation of the FOIA process and wrongful withholding of materials responsive to the plaintiff's 1995 FOIA request.


 I. The Plaintiff Is Suing the Defendants in Their Individual Capacities.

 It is unclear from the plaintiff's Complaint whether he asserts claims against the defendants in their individual or official capacities, or both. In his Opposition to the defendants' Motion to Dismiss, however, the plaintiff unequivocally states that Gloria McCall is being sued in her "respective capacity (official and/or individual in nature) pending full discovery," but that all other defendants "presently mentioned" are being sued in their individual capacities "because of their deliberate indifference in subject matters." Plaintiff's Partial Oppositions to Defendants' Motion to Dismiss at 46.

 Gloria McCall, however, is not a defendant in this action as she has not been listed as such on any complaint nor has she been served with a complaint. *fn1" Accordingly, the Court shall treat this action as one against the five named defendants in their individual capacities. *fn2"

 II. All Claims Against the Defendants In Their Individual Capacity Should Be Dismissed Because the Court Lacks ...

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