Kenyan Payne v. United States of America

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENYAN PAYNE,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
No. 12-55893
D.C. No. 2:11-cv-08943-SJO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Federal prisoner Kenyan Payne appeals pro se from the district court’s order
denying his motion seeking return of three vehicles seized and administratively
forfeited by the Drug Enforcement Administration (“DEA”). We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. United States v. Marshall, 338 F.3d
FILED
OCT 04 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-55893 2
990, 993 (9th Cir. 2003). We affirm.
The district court properly denied Payne’s motion because Payne did not
show that the DEA failed to take reasonable steps to provide him with notice of the
forfeiture proceedings. See 18 U.S.C. § 983(e)(1) (to set aside a declaration of
forfeiture under a civil forfeiture statute, the movant must show that the
government failed to take reasonable steps to provide the movant with notice of the
proposed forfeiture and that the movant did not know of or have reason to know of
it); Dusenbery v. United States, 534 U.S. 161, 170 (2002) (“[T]he Due Process
Clause does not require . . . heroic efforts by the Government; it requires only that
the Government’s effort be ‘reasonably calculated’ to apprise a party of the
pendency of the action[.]”).
The district court did not abuse its discretion by denying Payne’s “Motion to
Re-Open” and “Motion to Amend” because Payne failed to establish grounds
warranting reconsideration. See Sch. Dist. No. 1J, Multnomah Cnty., Or., v.
ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of
review and grounds for reconsideration under Fed. R. Civ. P. 59(e) and 60(b)).
We note that we are only considering the three vehicles addressed by the
district court. We express no opinion regarding whether Payne may bring a
separate motion regarding additional vehicles.

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12-55893 3
Payne’s contentions regarding his plea agreement are unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
The United States’ request for judicial notice, filed on December 21, 2012, is
granted.
Payne’s objection, received on March 1, 2013, is treated as a motion to
strike and is granted. The United States’ supplemental letter, filed on February 19,
2013, is stricken.
AFFIRMED.

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