United States of America v. FRANK S. CLEMENT, AKA Frank Clement

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK S. CLEMENT, AKA Frank
Clement,
Claimant - Appellant,
And
4820 HEAVEN AVENUE, WOODLAND
HILLS, CALIFORNIA, the premises
known as, and several other premises
searched,
Defendant.
No. 12-55993
D.C. No. 2:04-cv-06586-GHK-SS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted July 22, 2014**
FILED
AUG 04 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Frank S. Clement, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his motion seeking return of his personal property.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. United States
v. Mills, 991 F.2d 609, 612 (9th Cir. 1993). We vacate and remand.
Because no criminal proceedings were pending against Clement when he
filed his motion, the district court improperly construed Clement’s motion as one
for return of property pursuant to Federal Rule of Criminal Procedure 41(g). See
United States v. Ritchie, 342 F.3d 903, 906-07 (9th Cir. 2003); see also United
States v. Ibrahim, 522 F.3d 1003, 1007 (9th Cir. 2008) (stating that where “there
were no criminal proceedings pending at the time of filing, the district court
properly treated the [Rule 41(g)] motion as a civil complaint”). Accordingly, we
vacate and remand.
On remand, the district court is free to consider Clement’s motion, as he
requests, in the context of the district court’s March 2003 order, or as a civil
complaint seeking equitable relief, see, e.g., Ibrahim, 522 F.3d at 1007. We
express no opinion as to the correct course of action.
Appellee shall bear the costs on appeal.
VACATED and REMANDED.
2 12-55993

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