The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, who is proceeding pro se, brings this civil action relating to a notice of eviction posted on real property incident to a foreclosure order. Pending before the court is defendant's unopposed motion to dismiss (Doc. 5), which was submitted for decision without oral argument.
This action proceeds against defendant J. Garcia, who is a Deputy United States Marshal. Defendant recites the following general background, which plaintiff has not opposed:
Aldridge alleges that Deputy Garcia "seize[d] property owned by Plaintiff without warrant or cause or lawful court process," violating his Fourth Amendment rights, by posting on certain real properties documents entitled "Notice of Opportunity to State Claim of Right to Possession." This case is the latest collateral litigation regarding the United States' collection of unpaid federal taxes owed by Michael and Leone Carey. A brief explanation of the underlying case is necessary.
In 2005, the United States brought suit against Michael and Leone Carey and the trustees of two purported trusts -- the Ranch Holding Trust and the Hidden Meadows Holding Trust. The action sought to foreclose federal tax liens on three pieces of real property. The real properties are located at 22510 Heartwood Lane, Palo Cedro, California, 96073; 3041 Lawrence Road, Redding, California, 96002; and 23658 Highway 299E, Bella Vista, California 96008. The United States alleged that while the properties were nominally owned by the two purported Trusts, Michael and Leone Carey were the true and beneficial owners and had transferred the properties to the purported Trusts in order to prevent the United States from collecting lawful tax debts.
On July 5, 2007, the District Court entered judgment in favor of the United States and against Michael and Leone Carey and the trustees of the purported Trusts. It held that the trusts are "sham entities" that Michael and Leone Carey used "in an attempt to shield . . . properties from the reach of their creditors." The Ninth Circuit affirmed. Aldridge is the present Trustee of the sham Trusts.
After judgment was entered, the United States moved to enforce the judgment through an order foreclosing the tax liens. The Court granted the motion on February 11, 2008, issuing an order permitting the United States to enforce its tax liens against the real properties. The order further stated:
All persons occupying the Palo Cedro, Redding, and Bella Vista properties shall leave and vacate the properties permanently within 30 days of the date of this Order . . . . If any person fails or refuses to leave and vacate the property by the time specified in this Order, the United States Marshal's Office, alone, is authorized to take whatever action they deem appropriate to remove such person from the premises. . . .
This order is referred to below as the "February 11, 2008, Order."
Pursuant to the Court's Order, Deputy United States Marshals posted eviction notices on each of the properties. Plaintiff sued them [in case no. CIV-S-09-1737-GEB-CMK], alleging that they had unlawfully seized his property. On the United States' motion, the case was dismissed. The Ninth Circuit summarily affirmed.
On March 12, 2010, the United States filed a motion for an order of ejectment in the District Court suit, United States v. Carey. The motion requested that the Court order the eviction of everyone occupying the properties, and gave the occupants notice of the motion in order to permit them to contend that they had a right to remain. The United States Marshal Service posted the Motion and its supporting documents on each of the properties. The documents attached to Aldridge's Complaint, titled "Notice of Opportunity to State Claim of Right to Possession," were among the documents posted.
Aldridge claims that by serving the Notices of Opportunity and the associated documents, Deputy Garcia "seized" his property. He acknowledges in his complaint that Deputy Garcia was acting in his capacity as a Deputy United States Marshal. He also acknowledges that the Unites States is the real party in interest.
As defendants notes, plaintiff admits that defendant acted pursuant to court order in furtherance of his official duties ...