Kee v. United States

Background

Charles Michael Kee is incarcerated following a conviction in this District in 2000. He sought the return of property seized when he was arrested, including a gold watch, beeper, lighter, wallet and papers, hat, jewelry, keys, cellphone, and cash. The opinion states that the Government previously represented that the property had evidentiary value and would be returned after Kee’s direct appeal ended.

Kee had previously sought the property’s return twice. The first request was treated as a motion under Federal Rule of Criminal Procedure 41(g) because his criminal proceedings were still pending, and the court denied it as premature. The second request, filed in 2017 after the criminal proceedings had ended, was opened as a new civil action; Kee voluntarily withdrew it, and the court dismissed it under Rule 41(b).

Filing requirements

The court construed Kee’s current filing as a new civil action seeking equitable relief because no criminal proceedings were pending when he filed it. A prisoner bringing such a civil action must either pay the required fees or request permission to proceed without prepaying them. To seek that permission, the prisoner must submit a signed application and a prisoner authorization under the Prison Litigation Reform Act. The authorization permits deductions from the prisoner’s account toward the filing fee and requires certified account statements.

Kee submitted an application to proceed without prepaying fees but did not submit the required prisoner authorization. The court explained that the Second Circuit had not decided whether the Prison Litigation Reform Act’s filing requirements apply to new civil actions seeking the return of property, but concluded that Kee was required to submit the authorization in this case.

Statute of limitations

The court also identified a separate issue concerning the six-year statute of limitations for civil actions against the United States. It stated that Kee’s criminal proceeding ended no later than October 7, 2002, when the Supreme Court denied review, and that he likely had until October 7, 2008, to bring this action. The court treated the limitations period as a claims-processing rule rather than a jurisdictional rule, meaning that untimeliness could be waived and that equitable tolling might be available.

The court did not decide the limitations issue. It stated that, if Kee submitted the authorization, the Government would be directed to respond. If the Government did not waive the timeliness defense, Kee would have an opportunity to present facts supporting equitable tolling. The court described equitable tolling as requiring diligence and an extraordinary circumstance that prevented timely filing.

Ruling

The court granted Kee’s application for leave to proceed without prepaying fees without prejudice. It ordered Kee to submit the prisoner authorization by June 26, 2020. If he failed to do so, the petition would be dismissed without prejudice. The court also warned that a dismissal for failure to submit the authorization on a fourth petition would be with prejudice. The order did not decide whether Kee was entitled to the return of the seized property.