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McCallum v. Corbett

United States District Court, Middle District of Pennsylvania

May 29, 2014

DAN MCCALLUM, Plaintiff
v.
THOMAS W. CORBETT, et al., Defendants

Judge Brann

REPORT AND RECOMMENDATION

Susan E. Schwab United States Magistrate Judge

I. Introduction.

Currently pending is the defendants’ motion to dismiss the amended complaint, which raises due process and Eighth Amendment claims regarding state forfeiture proceedings. Because the plaintiff’s claims are barred by the statute of limitations, we recommend that the motion to dismiss be granted.

II. Background and Procedural History.

The plaintiff, Dan McCallum, commenced this action by filing a complaint claiming that the Commonwealth of Pennsylvania violated his constitutional rights in connection with the forfeiture of his property. We screened the complaint in accordance with 28 U.S.C. ' 1915A, and concluding that the claim against the Commonwealth of Pennsylvania was barred by the Eleventh Amendment, we recommended that the complaint be dismissed but that McCallum be granted leave to file an amended complaint. Judge Brann adopted our Report and Recommendation, and he remanded the case to the undersigned for further proceedings.

McCallum filed an amended complaint naming the following individuals as defendants: (1) Thomas W. Corbett, the former Attorney General of Pennsylvania;[1] (2) Robert B. Stewart, III, a deputy attorney general; (3) Trooper Tyson Havens; and (4) Trooper Susan E. Clark. Although McCallum is currently incarcerated in New Jersey, he complains about events that happened in Pennsylvania before he was incarcerated.

McCallum alleges that in January of 2008, Trooper Clark stopped the vehicle in which he was a passenger because the vehicle was speeding. Even though the driver of the vehicle did not consent to a search, another trooper used a K-9 to search the interior of the vehicle. After money was discovered in the driver’s pocket and shoe, McCallum was directed to exit the vehicle. McCallum was then ed to empty his pockets, and he removed $1, 316.00 from his pockets. He was then patted down, and a brick of heroin was discovered in his sleeve. The heroin and money were seized.

McCallum was involved in a second incident in June of 2008. McCallum alleges that during that incident, which occurred outside of an apartment in Williamsport, Trooper Havens asked him if he was in the area to sell heroin, and McCallum said that he was not. Havens then patted McCallum down and removed $1, 595.00 in cash from his pocket. Although Havens seized the cash, it was not placed into evidence until McCallum filed a complaint with the Public Defender’s Office.

McCallum alleges that he was charged with possession of controlled substances. According to McCallum, those charges were later dismissed, however, due to violations of the Fourth Amendment and due process. Although McCallum alleges that the state charges were dismissed, he also alleges that the case was never nolle prossed. He further alleges that the deputy attorney general tried to transfer the matter to federal authorities for prosecution, but federal authorities refused to prosecute.

McCallum alleges that in September of 2009, he received a forfeiture complaint apparently addressing both sums of cash that had been seized. According to McCallum, he did not understand how to respond to the forfeiture complaint so he wrote to the Clerk of the Court of Common Pleas, who responded that the criminal cases are still pending and that McCallum should contact an attorney.

The allegations in the complaint about the forfeiture proceedings are not clear. McCallum alleges that he filed a notice of appeal in April of 2010. Confusingly, McCallum alleges both that the appeal was granted and that it was dismissed. He also alleges that he was informed by the Superior Court of Pennsylvania that the case had been sent back to the lower court. According to McCallum, the lower court concluded that the matter was time barred.

While the allegations regarding the forfeiture proceedings are confusing, the documents that McCallum attached to his amended complaint as well as the dockets sheets from the Superior Court, the Commonwealth Court, and the Supreme Court of Pennsylvania involving McCallum’s appeal in the forfeiture action shed light on what happened.[2] McCallum attached to his amended complaint a letter to him from defendant Stewart. Doc. 18 at 2. In that letter, Stewart states that McCallum failed to file an answer to the petition for forfeiture, and the court entered an order of forfeiture on February 8, 2010. Id. Stewart also stated that he attached a copy of the order of forfeiture to his letter. Id.

McCallum also attached to his amended complaint an Order dated April 6, 2010, from the Superior Court of Pennsylvania transferring McCallum’s appeal to the Commonwealth Court of Pennsylvania. Doc. 18 at 3. In addition, he attached an Order dated May 6, 2010, from the Commonwealth Court dismissing his appeal, and a letter, dated May 18, 2010, from the Prothonotary of the Commonwealth Court stating: “The court directed appellant to serve his Notice of ...


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