Larry Bailey, Plaintiff-appellant, v. Unknown United States Attorney, Defendant-appellee, 801 F.2d 393 (4th Cir. 1986)

Larry Bailey, a federal inmate, appeals the dismissal of his Bivens-style complaint as frivolous under 28 U.S.C. § 1915(d). See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bailey seeks to recover $1296.02 seized by FBI agents when Bailey was arrested for robbing a savings and loan. The money in question, found in Bailey's pocket, was held in a wrapper from another bank. After Bailey's conviction, the FBI gave the money to the savings and loan.

A complaint is frivolous under 28 U.S.C. § 1915(d) if the district court "find [s] 'beyond doubt' and under any 'arguable' construction, 'both in law and in fact' of the substance of plaintiff's claim that he would not be entitled to relief." Boyce v. Alizaduh, 595 F.2d 948, 952 (4th Cir. 1979). A review of case law indicates that Bailey's complaint did state a legally plausible cause of action. "An unreasonably long retention without instituting a forfeiture proceeding can constitute a denial of due process." Robinson v. United States, 734 F.2d 735, 738 (11th Cir. 1984) (citing United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555 (1983)) . Possessory rights to property seized by the government should be determined through traditional procedures. United States v. Palmer, 565 F.2d 1063 (9th Cir. 1977).

Because the defendant has not been made to answer in this case, we have no way of ascertaining whether appropriate procedures were followed. Therefore, the judgment of the district court is vacated and the case is remanded for further proceedings. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

VACATED AND REMANDED.