Rodriguez v. United States

United States Court of Appeals,

Fifth Circuit.

No. 95-40212

Summary Calendar.

Jose and Hortencia RODRIGUEZ, Husband and Wife, Plaintiffs-
Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

Oct. 10, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:

PROCEEDINGS BELOW

Jose Rodriguez and his wife, Hortencia Rodriguez

("Plaintiffs"), proceeding pro se, filed suit in the 197th District

Court of Cameron County, Brownsville, Texas. Their state-court

petition sought injunctive relief to prevent the United States

Marshals Service from evicting Hortencia Rodriguez from the

property at 895 Elizabeth Street, San Benito, Texas following

forfeiture of that property to the Government pursuant to 21 U.S.C.

§ 881(a)(6) and (7).

The Government removed the matter to federal court. The

Government then moved to dismiss, or alternatively, for summary

judgment, on March 10, 1994. At the initial pretrial conference

held on April 13, 1994, Hortencia Rodriguez appeared and stated

that she had just found an attorney willing to take her case. She

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was allowed 30 days to respond to the Government's motion to

dismiss. On June 3, 1994, the Government moved for a ruling on its

motion to dismiss. Approximately eight months later, on January

31, 1995, the district court granted the Government's motion and

dismissed the complaint with prejudice. The Plaintiffs filed no

response to the Government's motion to dismiss or any other

pleadings between June 3, 1994, and January 31, 1995.

DISCUSSION

This court conducts a de novo review of a district court's

dismissal on the pleadings. Guidry v. Bank of LaPlace, 954 F.2d

278, 281 (5th Cir.1992) (citing Walker v. South Cent. Bell Tel.

Co., 904 F.2d 275 (5th Cir.1990)). A claim may not be dismissed

unless it appears certain that the plaintiff cannot prove any set

of facts in support of her claim which would entitle her to relief.

Benton v. United States, 960 F.2d 19, 20 (5th Cir.1992) (citing

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d

80 (1957)).

In their appellate brief, Plaintiffs contend that the district

court erred in dismissing their complaint:

[Plaintiffs] have alleged that the defendant United States of
America through the U.S. Marshall [sic] Service, violated
their constitutional rights as secured by the U.S.
Constitution, Fourth and Fifth Amendments thereto.
Furthermore, the appellants contended a deprivation of
procedural due process rights and challenged the manner and
method of the taking of certain property by way of civil
forfeiture.

A liberal reading of Plaintiffs' complaint indicates that they

sought injunctive relief.

INJUNCTIVE RELIEF

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 A party must establish the existence of four requirements

before a court can grant preliminary injunctive relief: (1) a

substantial likelihood that a plaintiff will prevail on the merits,

(2) a substantial threat that irreparable injury will result if the

injunction is not granted, (3) that the threatened injury outweighs

the threatened harm to the defendant, and (4) that granting the

preliminary injunction will not disserve the public interest.

Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d

618, 621 (5th Cir.1985) (citing Canal Authority of Florida v.

Callaway, 489 F.2d 567 (5th Cir.1974)).

A review of the record indicates that the likelihood that

Plaintiffs would have prevailed on the merits of this case is

non-existent. The process afforded to the plaintiffs prior to the

forfeiture of the property in question was as follows.

On November 20, 1990, Hortencia Rodriguez signed an Occupancy

Agreement permitting her to remain at 895 Elizabeth Street, San

Benito, Texas, and which allowed her "to occupy said residence ...

until disposition of the property is determined by appropriate

administrative or judicial process."

On May 27, 1991, a jury in an in rem civil forfeiture action

returned a verdict finding that the property in question had been

used to facilitate the commission of a controlled-substance offense

and that Hortencia Rodriguez "had knowledge and consented to the

use of the residence" for such purposes. Judgment and a final

order of forfeiture were entered by the district court on July 18,

1991.

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 On August 12, 1992, this court affirmed the civil-forfeiture

judgment. Subsequently, the U.S. Marshal Service notified

Hortencia Rodriguez, in writing, that the judicial proceedings

concerning the property were resolved and gave her a 90-day notice

to vacate.

"Unless exigent circumstances are present, the Due Process

Clause requires the Government to afford notice and a meaningful

opportunity to be heard before seizing real property subject to

civil forfeiture." United States v. James Daniel Good Real

Property, --- U.S. ----, ----, 114 S.Ct. 492, 505, 126 L.Ed.2d 490

(1993). In light of the process afforded to the Plaintiffs, there

is little likelihood, much less a substantial likelihood, that they

would have prevailed on the merits of this case. Consequently, we

need not consider the remaining requirements for obtaining

injunctive relief. The district court's dismissal was proper under

Fed.R.Civ.P. 12(b)(6).

OPPORTUNITY TO AMEND

Plaintiffs also contend that they should have been allowed an

opportunity to amend their complaint. The record indicates that

Plaintiffs were invited to respond to the Government's motion to

dismiss. Thirty days passed with no response. The Government then

filed a motion asking the court to deem the dismissal unopposed

because no opposition was ever filed. After the passage of three

hundred and twenty-seven days with no response, Plaintiffs gave the

district court no choice but to proceed with its consideration of

the Government's motion. Plaintiffs' assertion that they should

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have been allowed an opportunity to amend is meritless.

DISMISSAL WITH PREJUDICE

When the dismissal of a pro se complaint is appropriate, it

should generally be done without prejudice in order to allow the

plaintiff an opportunity to file an amended complaint. Good v.

Allain, 823 F.2d 64, 67 (5th Cir.1987) (citing Moawad v. Childs,

673 F.2d 850, 851 (5th Cir.1982)). However, the instant case

presents us with a situation where Plaintiffs were given ample

opportunity to amend their complaint, but they chose not to do so.

When a plaintiff is given an opportunity to amend a complaint that

fails to state a claim upon which relief can be granted, but

refuses to do so, then the district court is justified in

dismissing the complaint with prejudice. See George v. King, 837

F.2d 705, 708 n. 2 (5th Cir.1988) (affirming dismissal with

prejudice after lengthy pendency of plaintiff's pro se suit after

plaintiff's full opportunity to state and restate claims).

CONCLUSION

For the reasons given above, the district court's dismissal of

Plaintiffs' complaint is

AFFIRMED.

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