Smiley v. USA

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. The Clerk of Court is DIRECTED to complete, on Plaintiffs behalf, a summons for service of process on the United States; the Clerk shall issue the completed summons. Pursuant to Federal Ru le of Civil Procedure 4(i), the Clerk shall (1) personally deliver to or send by registered or certified mail addressed to the civil-process clerk at the office of the United States Attorney for the Southern District of Illinois a copy of the summons , the complaint, and this Memorandum and Order; and (2) send by registered or certified mail to the Attorney General of the United States at Washington, D.C., a copy of the summons, the complaint, and this Memorandum and Order. Signed by Judge J. Phil Gilbert on 4/2/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN PATRICK SMILEY,
#15495-081,
Plaintiff,
vs.
UNITED STATES of AMERICA,

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CASE NO. 11-cv-353-JPG

Defendant.
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Steven Patrick Smiley, an inmate in FCI-Phoenix, brings this action seeking the
return of property seized from him in connection with the criminal proceedings against him in
this District which resulted in his conviction. Plaintiff was sentenced by this Court to a total of
57 months for mail fraud, aggravated identity theft, and access device fraud, and was ordered to
pay restitution in the amount of $24,159.82 (Case No. 10-cr-40016-JPG). This matter is now
before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which
provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915A.
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An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009).
Upon careful review of the complaint, the Court finds that Plaintiff’s complaint should
receive further consideration.
The Complaint
Plaintiff states that his home at 1318 Gartside Street in Murphysboro, Illinois, was
searched by the local police and county sheriff’s officers pursuant to a search warrant in April
2006. Plaintiff later pled guilty and waived his rights to appeal or collaterally attack his
conviction or sentence.
The items taken during execution of the search warrant included articles of mail relevant
to the criminal proceedings, which Plaintiff acknowledges should not be returned to him.
However, the authorities also seized electronic items including a computer, television, compact
discs, ID cards, address books, and other regular household property items which Plaintiff claims
were not related to the criminal case. Plaintiff asserts that these items are in the possession of the
Defendant because during the criminal proceedings, the Assistant U.S. Attorney told Plaintiff’s
lawyer that the property was in storage, as was a videotape of the execution of the search warrant.
Plaintiff requests, pursuant to Federal Rule of Criminal Procedure 41(g), that all of the

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seized property be returned and released to his brother, Christopher Smiley, unless the Defendant
can prove that the items were related to the crime.
Discussion
Federal Rule of Criminal Procedure 41(g) provides that a motion may be filed seeking the
return of property seized by the government:
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. The court must receive
evidence on any factual issue necessary to decide the motion. If it grants the
motion, the court must return the property to the movant, but may impose
reasonable conditions to protect access to the property and its use in later
proceedings.
FED . R. CRIM . P. 41(g). When such a motion is filed by a defendant who has been convicted, the
action should proceed as a civil matter. See United States v. Norwood, 602 F.3d 830, 832 (7th
Cir. 2010); United States v. Howell, 354 F.3d 693, 695 (7th Cir. 2004). An action for the return
of property filed by a prisoner is subject to the Prison Litigation Reform Act. United States v.
Shaaban, 602 F.3d 877, 878-79 (7th Cir. 2010).
Plaintiff’s motion to proceed in forma pauperis has been approved, and he has paid his
initial partial filing fee. At the pleadings stage, his complaint is sufficient to state a claim for the
return of his personal property pursuant to Rule 41(g). Accordingly, Plaintiff’s claim shall
receive further review.
Disposition
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons for
service of process on the United States; the Clerk shall issue the completed summons. Pursuant
to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally deliver to or send by

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registered or certified mail addressed to the civil-process clerk at the office of the United States
Attorney for the Southern District of Illinois a copy of the summons, the complaint, and this
Memorandum and Order; and (2) send by registered or certified mail to the Attorney General of
the United States at Washington, D.C., a copy of the summons, the complaint, and this
Memorandum and Order.
It is FURTHER ORDERED that Plaintiff shall serve upon the United States Attorney
for the Southern District of Illinois a copy of every pleading or other document submitted for
consideration by this Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date that a true and correct copy of the document was mailed to the United States
Attorney. Any paper received by a district judge or a magistrate judge which has not been filed
with the Clerk or which fails to include a certificate of service will be disregarded by the Court.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this action is
REFERRED to United States Magistrate Judge Frazier for further pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter is REFERRED to United States
Magistrate Judge Frazier for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C.
§ 636(c), should all the parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under § 1915, Plaintiff will be required to pay the full
amount of the costs, notwithstanding that his application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
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security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against Plaintiff and remit the balance to Plaintiff.
Local Rule 3.1(c)(1)
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court
and each opposing party informed of any change in his address; the Court will not independently
investigate his whereabouts. This shall be done in writing and not later than 7 days after a
transfer or other change in address occurs. Failure to comply with this order will cause a delay in
the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED . R. CIV . P. 41(b).
IT IS SO ORDERED.
DATED: April 2, 2012

s/J. Phil Gilbert
United States District Judge

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