Harvey v. United States , 349 F. Supp. 2d 966 ( 2004 )

349 F. Supp. 2d 966 (2004)

Rodney HARVEY, Plaintiff,
v.
UNITED STATES of America, Defendant.

Nos. 1:04CV01016, 1:03CR105-1.

United States District Court, M.D. North Carolina.

December 17, 2004.

Rodney Harvey, Graham, NC, pro se.

Donald R. Vaughan, Vaughan, Johnston & Elam, Federal Public Defender, Greensboro, NC, for Defendant.

Douglas Cannon, Office of U. S. Attorney, Greensboro, NC, for Plaintiff.

JUDGMENT

BEATY, District Judge.

On November 3, 2004, the United States Magistrate Judge's Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636(b). No objections were received by the court within the time prescribed by the statute.

The court hereby adopts the Magistrate Judge's Recommendation.

IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiffs motion for return of property [Pleading No. 1] be, and is hereby, dismissed without prejudice to Plaintiff filing a civil complaint, on the proper Motion for Return of Property forms, correcting the defects set out in the Order and Recommendation.

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SHARP, United States Magistrate Judge.

Plaintiff, a federal prisoner, has submitted a motion for return of property pursuant to Fed.R.Crim.P. 41(e). Such a motion filed after the completion of criminal proceedings is a civil action subject to the fee provisions of 28 U.S.C. § 1915. See United States v. Jones, 215 F.3d 467 (4th Cir.2000). Venue for such a motion is proper in the district where the seizure occurred. See United States v. Garcia, 65 F.3d 17 (4th Cir.1995). Plaintiff has failed to submit either the $150.00 filing fee or an application to proceed in forma pauperis. In addition, plaintiffs motion is not on the required form for this Court. This motion should, therefore, be dismissed without prejudice to plaintiff submitting his action on the proper forms along with either the $150.00 filing fee or a completed application to proceed in forma pauperis. To assist plaintiff, the Clerk will send plaintiff the Motion for Return of Property forms, instructions and an application to proceed in forma pauperis.

In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.

IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this order. The Clerk is instructed to send plaintiff Motion for Return of Property forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts of Fed.R.Civ.P. 8 (i.e. Sections (a) & (e)).

IT IS RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to plaintiff filing a civil complaint, on the proper Motion for Return of Property forms, which corrects the defects cited above.

November 3, 2004.