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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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