Opinion
No. CIV S-05-1784 DFL CMK.
August 16, 2006
FINDINGS AND RECOMMENDATION
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. Instead of filing a complaint in this action, plaintiff filed a "Motion for Return of Property Pursuant to Federal Rules of Crim. Procedure 41(g)."
Plaintiff filed pursuant to Fed. Rule Cr. P. 41(e), but upon review the court determined that he intended to filed pursuant to Rule 41(g), which provides for a motion to return property. See F. Rule Cr. P. 41(g).
In his motion, plaintiff states that his computer and various writings were seized by the Siskiyou County Sheriff's Department. A case was brought against plaintiff in Siskiyou County Superior Court. After a May 11, 2005 hearing, the Deputy District Attorney asked the Sheriff's Department to contact the FBI to determine if an indictment date had been set. (Pl.'s Mot., Ex. C.) The District Attorney communicated to the Sheriff's Department that the Superior Court Judge was "not pleased with the method used for the transfer of the property and evidence." (Id.) On May 23, 2005, Special Agent Montgomery served the Sheriff's Department with a federal subpoena ordering the property and evidence in plaintiff's case be released to the FBI. (Id.) Plaintiff contends that his property is still in federal custody and that no federal indictment has been brought against him.
The United States subsequently filed criminal charges against plaintiff relating to the substance of this matter. On January 18, 2006, the court issued a related case order in this matter. (Doc. 11.) As a result of the criminal proceedings brought against plaintiff, his motion for a return of property is moot. Accordingly, IT IS RECOMMENDED that plaintiff's Motion for Return of Property (doc. 1) be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).