United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1922
                                   ___________

James Allen Nunley,                      *
                                         *
              Appellant,                 *
                                         *
       v.                                *
                                         *
Department of Justice, United States     * Appeal from the United States
of America; Drug Enforcement;            * District Court for the Western
Agency; Officer Halfacre, Individually * District of Arkansas.
and in his official capacities; Federal  *
Narcotics Agents, Individually and       *
in their official capacities,            *
                                         *
              Appellees.                 *
                                    ___________

                             Submitted: June 21, 2005
                                Filed: October 14, 2005
                                 ___________

Before LOKEN, Chief Judge, and ARNOLD and COLLOTON, Circuit Judges.
                               ___________

ARNOLD, Circuit Judge.

       This case concerns the requirements of the due process clause with respect to
forfeiture notices sent to a prisoner. James Nunley filed a pro se complaint against
the Department of Justice, the "Drug Enforcement Agency," Officer Halfacre (a
member of a DEA task force), and unknown federal narcotics agents, charging that
the federal government violated his due process rights when it administratively
forfeited some of his property (i.e., declared the property forfeited without a court
order, see 19 U.S.C. §§ 1607-1609; 21 U.S.C. § 881) while he was incarcerated. The
complaint alleges that the government did not convey forfeiture notices to Mr. Nunley
using a method that was reasonably calculated to reach him and, perhaps (the
complaint is not clear), that the few forfeiture notices that he did receive were
defective because they did not inform him that an indigent person need not post a
bond to contest a forfeiture. The district court entered summary judgment in favor
of the government and dismissed the complaint with prejudice. We conclude that the
district court erred, in part, and remand.

                                          I.
                                          A.
       Working from a tip provided by an informant, law enforcement officers
executed a search warrant at Mr. Nunley's home. They seized, in addition to weapons
and illegal drugs, a Corvette and three separate lots of cash: one of $131,574, one of
$1,025, and one of $1,815. Later on, the government seized from other individuals
a speed boat and two more lots of cash, one of $10,000 and one of $5,000.
Mr. Nunley arguably had an interest in the items seized from his house as well as the
items seized from the other individuals.

       The government issued forfeiture notices for the car, the separate lots of cash,
and the boat. It sent them via certified mail to Mr. Nunley at both the jail where he
was being held and his erstwhile residence. The notices sent to the jail were signed
for by one or another employee of the sheriff's office for the county in which the jail
is situated. Though the government received signed return-receipts for all of the
notices sent to the jail, the jail's mail log reflects the receipt of only the two notices
that Mr. Nunley admits to receiving: one for the $10,000 in cash and another for the
boat. As to the notices sent to Mr. Nunley's previous residence, he had shared that
home with Debbie Nunley, née Chaffin, prior to his arrest; she was his girlfriend-
cum-roommate at the time of his arrest and became his wife around the time that the

                                           -2-
forfeitures were taking place (the exact time is not relevant). Ms. Nunley still lived
at the residence at the time that the notices were sent there to Mr. Nunley. The
government also sent notices to Ms. Nunley at the same address and, with respect to
the $5,000, to Mr. Nunley in care of the defense attorney who represented him in the
criminal case that arose out of the seizure of the drugs. No objections to the
forfeitures were filed, so the government declared the property forfeited. See
19 U.S.C. § 1609; 21 U.S.C. § 881.

       Mr. Nunley filed this action complaining of the sufficiency of the forfeiture
notices. The district court, adopting a magistrate judge's report and recommendation,
granted summary judgment in favor of the defendants. It concluded that the notices
sent to Ms. Nunley and to Mr. Nunley at the residence that they had shared satisfied
the government's due process obligations because Ms. Nunley visited Mr. Nunley at
the jail and frequently sent him mail. The court did not base its summary judgment
decision on the notices sent directly to the jail because it concluded that there were
questions of fact about the operation of the jail's mail-distribution practices with
respect to these notices.

                                            I.
                                           B.
       Mr. Nunley argues that the district court erred in granting the defendants's
summary judgment motion. Summary judgment is appropriate if the "pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
We review a district court's decision to grant summary judgment de novo and draw
all reasonable inferences in favor of the nonmoving party. Tatum v. Arkansas Dept.
of Health, 

, 959 (8th Cir. 2005).




                                          -3-
       The due process clause of the fifth amendment provides that no person shall
"be deprived of ... property, without due process of law." U.S. Const. amend. V. An
individual facing forfeiture risks being deprived of his or her property and thus is
entitled to notice and an opportunity to be heard. See Dusenbery v. United States,

, 167 (2002). The due process clause does not require that the interested
party receive actual notice of the pending action, however. 

Instead,
due process is satisfied if the method of notice is "reasonably calculated, under all of
the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections." Mullane v. Central Hanover
Bank & Trust Co., 

, 314 (1950). Notice by mail is ordinarily presumed
to be constitutionally sufficient. See, e.g., 

Tulsa Prof'l Collection Servs.,
Inc. v. Pope, 

, 490 (1988). But there is no rule that mailed notice need
always be considered adequate. See United States v. One Toshiba Color Television,

, 153 (3d Cir. 2000) (en banc); cf. Covey v. Town of Somers, 

, 146-47 (1956).

        In Dusenbery, the Supreme Court addressed some of the requirements of due
process with respect to forfeiture notices sent to prisoners. The Court held that the
government had satisfied the due process clause when it sent forfeiture notices via
certified mail to a prisoner in a facility that had the following standard mail-delivery
practices: A mailroom staff member would sign for the certified letter at the post
office and it would be entered into a logbook at the prison; a different staff member,
one assigned to the section of the prison in which the inmate lived, would sign the
letter out from the mailroom; and finally a staff member would deliver the letter to the
prisoner during "mail call." 

172-73. The Court determined that the
procedures established by the prison were sufficient for due process purposes, but it
never stated that such procedures were constitutionally obligatory. 

    The government offers two arguments in support of the district court's entry of
summary judgment. First, it adopts the district court's argument that the notices sent

                                          -4-
to Mr. Nunley and to Ms. Nunley at their shared address satisfy the due process
clause. Second, it contends that Dusenbery holds that the due process clause is
satisfied when the government sends forfeiture notices via certified mail to the prison
in which the addressee is housed.

        Contrary to the district court and the government, we conclude that the notices
sent to Ms. Nunley and to Mr. Nunley at their shared residence do not satisfy the due
process clause. In 

, the Court approved the use of "indirect"
forms of notice when the person with an interest in the pending action is missing or
unknown. It concluded, however, that indirect forms of notice do not satisfy the due
process clause when the interested person's name and address are known. 

The notices relied upon by the district court in its summary judgment order were
indirect notices because they depended on an intermediary, Ms. Nunley, to convey
their information to the interested person, Mr. Nunley. Because Mr. Nunley's identity
and whereabouts were known to the government, under Mullane, these notices alone
do not satisfy the due process clause.

       The government also provided notice by publication, i.e., by newspaper
advertisements, but such notice is insufficient where, as here, the name and address
of the interested person are known. Mennonite Bd. of Missions v. Adams, 

, 799-800 (1983); 

. Rather, the government must send
direct notice by mail or some other equally reliable means. Mennonite 

. Thus, the answer to the question of whether Mr. Nunley received
constitutionally adequate notice turns on the sufficiency of the notices sent to the jail.

        We first consider whether there should be a presumption that notice sent by
mail to the institution in which the addressee-prisoner is housed satisfies the due
process clause. If the presumption does not exist, we will then be required to
determine whether the notices mailed to the prison under the particular circumstances
of this case nonetheless satisfy the due process clause. (In the ensuing discussion, we

                                           -5-
use the terms "jail" and "prison" interchangeably, except with regard to Mr. Nunley's
specific circumstances.)

       The best reason to abandon in the prison context the presumption that mailed
notice is adequate is that prison mail must navigate a second mail-distribution system.
A postal worker does not personally deliver mail to each prisoner in his or her cell.
Instead, the mail is left at some administrative office (or picked up at the post office
by a prison employee) and then distributed within the prison.

       Courts have not settled on a single view of this issue, which we have yet to
address. The Seventh Circuit has decided that it will not "inquire into the details of
[the] internal mail delivery systems of jails and prisons." Chairez v. United States,

, 1101-02 (7th Cir. 2004), cert. denied, 

(2004). Instead,
it has concluded that the delivery of certified mail to a jail discharges the
government's obligations, remarking, "[s]ervice by certified mail has long been
considered an acceptable means to provide notice." 

The court added
that investigating mail-distribution procedures would be burdensome and that
determining whether a jail's mail system is reliable enough for constitutional purposes
would be difficult if not impossible given the fuzziness of the standard (i.e., the
method of notice must be reasonably calculated under the circumstances to apprise
the prisoner of the forfeiture action). 

Lastly, the court noted that, in its
view, Dusenbery does not require such an investigation. 

essentially
offers a fuller view of the government's second argument.

       On the opposite end of the spectrum, the Third Circuit decided in One Toshiba
Color 

, that the government bears the burden of
demonstrating that the prison employs mail-distribution procedures that are
reasonably calculated to ensure that notice will be received. But Judge Alito wrote
a thought-provoking dissent. In it, he takes the majority to task for failing to justify
distinguishing between a notice sent to a person at "an inexpensive long-term-

                                          -6-
occupancy hotel," which he presupposes would be presumed to be reasonably
calculated under the circumstances to apprise the addressee of a pending action, and
a notice mailed to a prisoner, which would not be presumed to be adequate. 

(dissenting in part).

      We believe that the right answer lies between Chairez and One Toshiba Color
Television: We hold that there is no irrebuttable presumption that a prison's internal
mail-distribution procedures are reasonably calculated to provide notice, but that the
prisoner, as the plaintiff, has the burden to demonstrate that the procedures are
inadequate.

       To us, Chairez underemphasizes the likelihood that a second distribution
system affects the delivery of mail to prisoners, overemphasizes the difficulty of
assessing such systems, and misconstrues Dusenbery. 

,
directs courts to ensure that the method of notice is reasonably calculated, "under all
of the circumstances," to apprise the interested party of the action. In the case of a
prisoner, a relevant circumstance is that the interested party is imprisoned. This
means that he or she does not receive mail in the same way that most people do
because his or her mail must go through a second distribution system, run by the
prison. And prisons are not post offices; their mission is not mail distribution. It is
simply an ancillary responsibility that accompanies their duty as custodian of the
prisoners. Thus, one should not assume that a prison is as expert in mail distribution
as the postal service. We do not think, however, that it would take a heroic effort
(especially for other government officials) to find out how any particular prison's
mail-distribution system works – a few phone calls or e-mails before sending the
notice would probably get the job done. As for determining whether the system meets
the constitutional standard, we admit that it is not an exact science, but we have
confidence that the government could more often than not determine whether the
prison has a system such that "one desirous of actually informing the [interested
party] might reasonably [rely on] to accomplish it." 

(We suspect that most

                                         -7-
prison mail-distribution systems will pass muster, and for the ones that do not, the
government can try to change them, send an agent down to the prison to hand the
notice to the interested prisoner, or do something else that is reasonably calculated
to inform the prisoner.) Finally, we find Chairez's invocation of Dusenbery
unpersuasive. Dusenbery does not address the question of whether courts need to
inquire into prisons' mail-distribution procedures, so it is not controlling on this point.
 Cf. R.A.V. v. City of St. Paul, 

, 386-87 n.5 (1992).

       With respect to the holding in One Toshiba Color Television, we do not agree
that the government should have the burden of proving that a prison's procedures
satisfy the due process clause. Time-worn rules require the conclusion that a prisoner
who files a suit claiming that he or she has received inadequate notice has the burden
of proving that the prison's procedures fall short of the minimum required by the
Constitution. See United States v. Cupples, 

, 320 (8th Cir. 1997). We
see no reason to deviate from this norm here. Courts, to be fair (and to avoid
deterring too many meritorious suits), will sometimes shift the burden of proof if a
fact or group of facts is difficult for the plaintiff to ascertain, and relatively easy for
the defendant to procure. Cf. Bennett v. Mueller, 

, 585 (9th Cir. 2002),
cert. denied, 

(2003). But we do not think that it is difficult for a
prisoner to adduce facts about the mail-distribution procedures used in a jail: he or
she probably lives there and such facts are not likely to be closely guarded
penological secrets.

      As for Judge Alito's dissent, we think that it demands more evidence for
making judgments about the efficacy of means of notice than the Supreme Court
requires. For example, in 

, when the Court endorsed the
mail as a method of notice reasonably calculated to provide notice under the
circumstances, it did not depend on record evidence. Instead, it stated, "however it
may have been in former times, the mails today are recognized as an efficient and
inexpensive means of communication." 

words, the Court made a

                                           -8-
commonsense judgment about the reliability of a method of notice. Common sense
tells us that as compared to a resident of a cheap long-term-occupancy hotel, a
prisoner is less likely to receive his or her mail because residents of such hotels have
a greater ability to ensure effective mail distribution (by the hotel) via complaint and
voting with their feet. See One Toshiba Color 

. The point
is this: we have to make commonsense judgments about the efficacy of methods of
notice in different circumstances, and common sense indicates that prisoners are less
likely to receive their mail than free persons, even if the free people live in cheap
hotels.

        Having determined that there is no irrebuttable presumption that notice mailed
to prisons is adequate, we turn our attention to the specific circumstances of this case.
We conclude that the government was not entitled to judgment on all of Mr. Nunley's
claims of inadequate notice. To discharge its responsibility as the movant, the
government needed to demonstrate to the district court that there is an absence of
evidence to support one or more of Mr. Nunley's claims. See Celotex Corp. v.
Catrett, 

, 325 (1986). In its motion, the government essentially argues
that no evidence establishes that it failed to employ a method of notice reasonably
calculated to reach the jail. But as the above discussion makes clear, this argument
leaves unaddressed a crucial portion of Mr. Nunley's claims, namely, whether the
jail's internal mail-delivery procedures were constitutionally adequate. As the
government did not challenge Mr. Nunley's case in regard to the sufficiency of the
internal procedures, the burden never shifted to Mr. Nunley to produce evidence
regarding their adequacy. See 

Counts v. MK-Ferguson Co., 

,
1339-40 (8th Cir. 1988).

       For clarity's sake, we note that the district court's request for supplemental
information about the jail's internal procedures does not require us to reach a
different conclusion. A district court can enter summary judgment sua sponte if " 'the
losing party was on notice that [it] had to come forward' " with its relevant evidence.

                                          -9-
Stone v. General Motors Corp., 

, 607 (8th Cir. 2005) (quoting 

). Thus, a request for more information on an issue, depending on its
wording, could shift the burden of production to the non-movant who has the burden
of proof on that issue at trial. Here, however, the district court instructed the
government to supplement its motion for summary judgment with information about
"how certified mail, once received at the [jail], is delivered to prisoners" and stated
that Mr. Nunley could respond "if he desires to do so." We hold that this order did
not put Mr. Nunley on notice that he needed to come forward with evidence regarding
the jail's internal mail-distribution procedures because it addresses his role in
permissive terms, affording him the opportunity to address the issue, but not directing
him to do so. Thus, the question of whether the internal procedures were sufficient
is not cognizable on this record.

       The government is nevertheless entitled to summary judgment as to
Mr. Nunley's claims regarding the method of distribution of three of the notices. The
government afforded Mr. Nunley due process as to the $5,000 when it sent the
forfeiture notice to him in care of his attorney. Cf. 

; United
States v. Indoor Cultivation Equip., 

, 1318 (7th Cir. 1995). The
government is also entitled to summary judgment with respect to the notices for the
$10,000 and the boat: The attorney who represented Mr. Nunley at oral argument
conceded that Mr. Nunley received these notices, and a person cannot complain about
the constitutionality of the method used to provide notice when he or she has received
actual notice (assuming it is timely), for he or she has suffered no harm. See One
Toshiba Color 

.

                                         II.
      Mr. Nunley also argues that the district court erred by granting summary
judgment on his supposed claims that the notices that he received did not afford him
due process because not one of them states that an indigent need not post a bond to
contest a forfeiture. The district court did not expressly rule on these purported

                                         -10-
claims, which Mr. Nunley specifically pressed in his response to the summary
judgment motion, though it did state that "the plaintiff's claims [are] dismissed." We
conclude that the district court should explicitly address the proper disposition of the
supposed content-of-the-notice claims on remand. See Glasgow v. United States
Drug Enforcement Admin., 

, 799 (8th Cir. 1993). What the appropriate
disposition of these claims is will depend on whether they can be said to have been
fairly raised in the original complaint (a question complicated by the fact that this is
a pro se complaint subject to a liberal standard of interpretation, Stone v. Harry,

, 914 (8th Cir. 2004)). The answer to this question is not self-evident,
and "[i]n these circumstances, we will not affirm the summary dismissal of [potential]
claims the district court has not expressly addressed." 

. We
note that if the complaint fairly raised these claims, then summary judgment on the
present record probably would not be appropriate because it does not appear that the
government moved for summary judgment on these claims with the specificity
required by our previous cases. See, e.g., 

.

                                         III.
       For the reasons given above, we conclude that the district court improperly
granted summary judgment as to Mr. Nunley's claims about the method of notice used
for the Corvette and the cash allotments of $131,574, $1,025, and $1,815, and as to
the potential claims regarding the contents of the notices. We affirm the district
court's entry of summary judgment as to the claims regarding the method of notice for
the $5,000, the $10,000, and the boat. We remand the case for proceedings consistent
with this opinion.

COLLOTON, Circuit Judge, dissenting.

        I conclude that the efforts of the Drug Enforcement Administration to provide
notice of forfeiture proceedings to James Nunley were “reasonably calculated, under
all the circumstances,” to apprise Nunley of the pendency of the action and to afford

                                         -11-
him an opportunity to object to the forfeiture. See Mullane v. Cent. Hanover Bank
& Trust Co., 

, 314 (1950). The actions taken by the DEA were not
“mere gesture[s],” but means that “one desirous of actually informing the absentee
might reasonably adopt to accomplish it.” 

Therefore, I would affirm the
judgment of the district court.

       Certified mail to Nunley at his place of incarceration was the principal means
employed by the DEA to provide Nunley with notice of the forfeiture proceedings,
and I believe it was sufficient. The DEA sent Nunley a notice of each disputed
forfeiture proceeding by certified mail to the Washington County Detention Center
where he was housed. The record shows that each mailing was received by an
employee of the sheriff’s office, with proof of signature presented. The motion for
summary judgment, as supplemented, established that the jail operated under a
written policy providing that incoming mail shall in no case be held longer than
24 hours, excluding weekends or holidays. The policy further dictated that
“[d]istribution of incoming mail shall be done by a detention officer, directly to the
receiving detainee’s hand,” and that mail shall not be “dropped on a table or other
convenient place for each detainee to come and look for his own.” (Def.’s Supp. to
Mot. for Summ. J., Ex. F, at 3).

       As of 2000, a “clear plurality” of the federal courts of appeals held that
certified mail to a prisoner “is presumptively sufficient” to satisfy due process.
Whiting v. United States, 

, 76-77 (1st Cir. 2000). In these circuits, absent
evidence that the government knew that mail delivery in a particular prison was
unreliable, or other special circumstances tending to rebut the presumption, the use
of certified mail to the institution was thought “reasonably calculated” to afford
notice. 

see also United States v. 5145 North Golden State Blvd., 

, 1315-16 (9th Cir. 1998); United States v. Tree Top, et al., No. 96-3757, 

, at *2 (6th Cir. Oct. 31, 1997) (per curiam) (unpublished); United States
v. Clark, 

, 381 (10th Cir. 1996).

                                         -12-
        The Supreme Court, noting that “Courts of Appeals have reached differing
conclusions about what the Due Process Clause requires of the United States when
it seeks to provide notice to a federal inmate of its intention to forfeit property,” then
granted certiorari to consider the question. Dusenbery v. United States, 

,
166 (2002). In Dusenbery, the Court held that “actual notice” to an inmate is not
required, and that the government satisfies the Due Process Clause if its efforts are
“reasonably calculated” to afford notice and an opportunity to object. In that case,
the record showed that the FBI sent certified mail to an inmate at the facility where
he was incarcerated. Under standard procedures, prison staff traveled to a post office
daily to retrieve the mail, signed for all certified mail at the post office, transported
the mail back to the prison, and entered the mail in a logbook. Another staff member
then signed for the certified mail when it was removed from the mail room, and staff
distributed the mail to the inmate during the institution’s “mail call.” The Court
concluded that these procedures afforded due process, even assuming the inmate’s
contention that additional procedures could have improved delivery to some degree.

       The only apparent difference between the internal mail procedures described
in Dusenbery and the procedures established in this case involves the logging of mail
in and out of a mail room at the correctional facility. The federal prison in Dusenbery
maintained such a log; the record in this case does not show whether the local jail
kept such a record of certified mail. Dusenbery, however, did not purport to establish
minimum procedures necessary to afford due process, and this variance does not
strike me as constitutionally significant. More persuasive is the view of the plurality
of pre-Dusenbery courts, and the only post-Dusenbery decision on point, Chairez v.
United States, 

, 1102 (7th Cir. 2004), that delivery of certified mail to
the institution is presumptively sufficient to satisfy due process. And where, as here,
the jail has a written policy requiring staff to transport mail “directly to the receiving
detainee’s hand” within 24 hours of delivery, we have more than delivery by certified
mail and a presumption of sufficiency. We have an internal policy that mandates

                                          -13-
prompt personal delivery of mail to detainees, and no evidence from Nunley to raise
a genuine question about the jail’s regular adherence to that policy. Under these
circumstances, I believe the use of certified mail was reasonably adopted by a federal
agency that was desirous of actually informing Nunley of the forfeiture proceedings.

       To be sure, prisons are not post offices, and inmates are not like guests at a
cheap hotel who might, at least theoretically, vote with their feet and move to another
cheap hotel if mail service is faulty. But there is a presumption of regularity in the
conduct of public officials, and “market forces” of a different sort are not entirely
absent. If a jail regularly fails to comply with a policy on delivery of mail to inmates,
then there will be negative consequences for the jailer. It will become known to
government officials that mail service at the jail is unreliable. Such knowledge will
preclude the use of certified mail to notice forfeiture proceedings, 

; 

, thus increasing costs for other government agencies
or interfering in particular cases with the ability of the federal government to forfeit
property. This is not likely to sit well with federal agencies who provide valuable
resources and assistance to local law enforcement officials, not to mention with voters
who typically elect the sheriffs who oversee jails. It may even result in the loss of
shared forfeiture proceeds by the local government. And as the First Circuit
explained, it is not only the incentives of jailers that should be considered: “It is well
to be realistic about the situation: given the incentives, inmate denials that mailed
notice was actually received are doubtless much more common than misdelivery, and
knowledge is probably widespread among defendants in drug cases that the
government does look to harvest assets from drug dealers incident to criminal cases.”

.

       The Washington County Detention Center undoubtedly could adopt written
procedures to specify precisely which staff member is to retrieve inmate mail from
the point of delivery and distribute it “directly to the receiving detainee’s hand.” The
jail could institute a logbook to track who picks up and delivers the mail once it is

                                          -14-
received by the sheriff’s office. And if the jail did not enhance its procedures, then
the DEA could divert agents from investigative work to make hand deliveries of
forfeiture notices to inmates. But the overriding message of Dusenbery, as I read it,
is that the Due Process Clause does not require exacting scrutiny of internal jail
procedures for mail delivery, and the potential for new procedures that would
improve reliability does not necessarily demonstrate the infirmity of old ones. The
standard is one of 

. On the undisputed record in this
case, I conclude that the DEA’s use of certified mail addressed to Nunley, who was
incarcerated at a facility that maintained an internal policy of delivering mail directly
to a receiving detainee’s hand within 24 hours, was reasonably calculated to provide
Nunley with notice. Therefore, I would affirm the judgment of the district court.
                         ______________________________




                                          -15-