Lim v. US Marshals, et al

Filing 13

MEMORANDUM AND ORDER that the Plaintiff's claims against Defendant Deputy Eban Jones are dismissed without prejudice. Because, for all practical purposes, the United States of America is the defendant in this suit, the clerk of court is d irected to send Plaintiff two USM 285 forms and two summons forms, together with a copy of this Memorandum and Order, for service upon the following: (1) the United States Attorney for the District of Nebraska and (2) the United States Attorne y General. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the clerk of court. In the absence of the forms, service of process cannot occur. Upon receipt of the completed forms, the clerk of court wil l sign the summons forms, to be forwarded with copies of the complaint to the U.S. Marshal for service of process upon the United States as set forth in Fed. R. Civ. P. 4(i)(1). The U.S. Marshal shall serve the summons and complaint without payment o f costs or fees. Federal Rule of Civil Procedure 4 requires service of the complaint on a defendant within 90 days of filing the complaint. However, because in this order Plaintiff is informed for the first time of these requirements, Plaintiff is g ranted, on the court's own motion, an extension of time until 120 days from the date of this order to complete service of process. Plaintiff is hereby notified that failure to obtain service of process on a defendant may result in dismissal of this matter without further notice as to such defendant. A defendant has 21 days after receipt of the summons to answer or otherwise respond to a complaint. The clerk of court is directed to set a pro se case management deadline in this case with th e following text: "February 22, 2017: Check for completion of service." The parties are bound by the Federal Rules of Civil Procedure and by the Local Rules of this court. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN DEWEY LIM,

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Plaintiff,
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V.
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US MARSHALS, JOHN DOE #1, )
JOHN DOE #2, and EBAN JONES, )
Deputy,
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Defendants.
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8:16CV254

MEMORANDUM
AND ORDER

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
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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, Plaintiff
should seek its return in state, as opposed to federal, court.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s claims against Defendant Deputy Eban Jones are dismissed
without prejudice.

2.

Because, for all practical purposes, the United States of America is the
defendant in this suit, the clerk of court is directed to send Plaintiff two
USM 285 forms and two summons forms, together with a copy of this
Memorandum and Order, for service upon the following: (1) the United
States Attorney for the District of Nebraska and (2) the United States
Attorney General. Plaintiff shall, as soon as possible, complete the
forms and send the completed forms back to the clerk of court. In the
absence of the forms, service of process cannot occur.

The proper name for “US Marshals” is the “United States Marshals
Service.”
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3.

Upon receipt of the completed forms, the clerk of court will sign the
summons forms, to be forwarded with copies of the complaint to the
U.S. Marshal for service of process upon the United States as set forth
in Fed. R. Civ. P. 4(i)(1). The U.S. Marshal shall serve the summons and
complaint without payment of costs or fees.

4.

Federal Rule of Civil Procedure 4 requires service of the complaint on
a defendant within 90 days of filing the complaint. However, because
in this order Plaintiff is informed for the first time of these requirements,
Plaintiff is granted, on the court’s own motion, an extension of time until
120 days from the date of this order to complete service of process.

5.

Plaintiff is hereby notified that failure to obtain service of process on a
defendant may result in dismissal of this matter without further notice as
to such defendant. A defendant has 21 days after receipt of the summons
to answer or otherwise respond to a complaint.

6.

The clerk of court is directed to set a pro se case management deadline
in this case with the following text: “February 22, 2017: Check for
completion of service.”

7.

The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of his
current address at all times while this case is pending. Failure to do so
may result in dismissal.

DATED this 26th day of October, 2016.

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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