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Bastian v. United States

United States District Court, D. Nebraska

January 29, 2018

CASEY J. BASTIAN, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff Casey J. Bastian, a pro se litigant incarcerated at the United States Penitentiary in Atwater, California, filed this action regarding the destruction of his property seized by the Federal Bureau of Investigation (“FBI”) in 2008 in Cedar Rapids, Iowa. The court has granted Plaintiff permission to proceed in forma pauperis, and the court now conducts an initial review of the Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff alleges that on April 16, 2008, pursuant to a search warrant for Plaintiff's residence in Dubuque, Iowa, federal agents from the Cedar Rapids, Iowa, FBI office seized “[c]ertain property, ” including his Sony VIAO laptop, which contained thousands of personal documents and photographs. After “years of documented multiple attempts to have this property preserved, saved, segregated and return[ed], ” Plaintiff learned in February 2016 that the FBI “may have destroyed” his laptop.

         Plaintiff alleges that the Defendants “unlawfully seized, withheld, and purportedly destroyed” his property, and the Defendants are therefore liable under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for violations of Plaintiff's Fourth, Fifth, Eighth, and Fourteenth Amendment rights; the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (Westlaw 2018) (“FTCA”); the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. (Westlaw 2018) (“APA”); and various federal civil and criminal forfeiture statutes. Along with money damages, Plaintiff requests that his property be returned and that the court issue a temporary restraining order prohibiting the FBI “from destroying any and all properties that are the subject of this complaint.” (Filing No. 1 at CM/ECF p. 3.)

         The caption of Plaintiff's Complaint indicates that he sues only the United States of America, but the body of the Complaint states that he also seeks to bring claims against the FBI in Washington, D.C., Cedar Rapids, Iowa, and Omaha, Nebraska; the United States Attorney's Office in Cedar Rapids; and “several unknown FBI agents and USA attorneys” in their individual and official capacities. (Filing No. 1 at CM/ECF p. 2.)[1]

         As indicated above, Plaintiff is incarcerated in federal prison in California. A search of this court's electronic case records reveals no cases in the United States District Court for the District of Nebraska involving Plaintiff.[2]

         II. LEGAL STANDARDS ON 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.”).

         III. DISCUSSION

         Title 28 U.S.C. § 1391 “govern[s] the venue of all civil actions brought in district courts of the United States, ” and provides in relevant part that:

(b) Venue in general.-A civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the ...

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