United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on initial review of
Plaintiff's “Motion for Return of Unlawfully Seized
Property, ” which the court liberally construes as a
complaint. (Filing No. 1.) For the reasons that follow, the
court will allow this action to proceed to service of process
on the United States. However, Plaintiff's claims against
Eban Jones will be dismissed without prejudice.
SUMMARY OF COMPLAINT
alleges he was arrested by two United States Marshals and
Eban Jones, a Douglas County Deputy, on or about May 12, 2015
in Omaha, Nebraska. (Filing No. 1.) Plaintiff claims that
upon his arrest, he was searched and that the Marshals seized
multiple items of personal property. (Filing No. 1 at CM/ECF
maintains that Defendants refuse to return his property even
though he has not been charged with a crime in connection
with the May 12, 2015 arrest. Plaintiff names the “US
Marshals John Doe #1 John Doe #2, ” and Douglas County
Deputy Eban Jones as defendants. As relief, Plaintiff seeks
the return of his property.
APPLICABLE STANDARDS OF INITIAL REVIEW
court is required to review prisoner and in forma pauperis
complaints seeking relief against a governmental entity or an
officer or employee of a governmental entity to determine
whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); 28 U.S.C. § 1915A(b).
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
Rule of Criminal Procedure 41(g) provides a mechanism by
which an individual may seek to recover property seized by
federal agents. Under Rule 41(g), a person “aggrieved
by an unlawful search and seizure of property or by the
deprivation of property may move for the property's
return. The motion must be filed in the district where the
property was seized.” After a criminal proceeding has
ended, a district court should construe a motion requesting
the return of property seized as initiating a civil action in
equity. Lavin v. United States, 299 F.3d 123, 127
(2d Cir. 2002).
reviewed the matter, the court will allow Plaintiff's
claims to proceed to service of process against the U.S.
Marshals. Plaintiff contends that property was
unlawfully seized by Marshals during a search, and that they
refuse to return his property. For purposes of initial
review, these allegations are sufficient to state a claim.
Plaintiff's claims against Douglas County Deputy Eban
Jones will be dismissed without prejudice. Plaintiff does not
allege that Jones is in possession of the property. Moreover,
if Jones actually has custody of the property, ...