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Lim v. US Marshals

United States District Court, D. Nebraska

October 26, 2016

JOHN DEWEY LIM, Plaintiff,
v.
US MARSHALS, JOHN DOE #1, JOHN DOE #2, and EBAN JONES, Deputy, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This 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.

         I. SUMMARY OF COMPLAINT

         Plaintiff 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 pp. 5-6).

         Plaintiff 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.

         II. APPLICABLE STANDARDS OF INITIAL REVIEW

         The 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).

         Pro se 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.”).

         “The 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).

         III. DISCUSSION

         Federal 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).

         Having reviewed the matter, the court will allow Plaintiff's claims to proceed to service of process against the U.S. Marshals.[1] 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.

         However, 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, ...


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