Osijo v. United States, 850 F. Supp. 992 (E.D.N.Y. 1993)

Felix Osijo, plaintiff pro se.

Zachary Carter, U.S. Atty. by Deborah B. Zwany, Asst. U.S. Atty., Brooklyn, NY, for defendant.

BARTELS, District Judge.

On May 24, 1993 plaintiff Felix Osijo brought this action for the return of property seized pursuant to his November 1989 arrest at John F. Kennedy Airport. Although the government has returned some of plaintiff's property, it is unable to locate most of the items plaintiff claims were seized. In his complaint, plaintiff values the missing items at $898.00.

On August 2, 1993, the government moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12 for lack of subject matter jurisdiction. The government argues that plaintiff has failed to exhaust administrative remedies, a prerequisite to the filing of a lawsuit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ["FTCA"].

The government is correct in stating that the FTCA provides only a limited waiver of sovereign immunity, and that parties seeking tort damages against the United States may not sue in federal court until they have presented their claims to the appropriate administrative agency. See, e.g., McNeil v. United States, ___ U.S. ___, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993).

However, a complaint drafted by a pro se plaintiff must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991). Under this standard, the court finds that the complaint in this case does not only *993 state tort claims. Plaintiff alleges that the government seized his property and has failed to return it. Thus, his complaint states a claim for deprivation of property without due process of law, a potential constitutional violation. See Onwubiko v. United States, 969 F.2d 1392, 1398 (2d Cir. 1992). Therefore, this court has jurisdiction under the Tucker Act, which gives district courts original jurisdiction over certain claims against the United States under $10,000. 28 U.S.C. § 1346(a) (2). See also Onwubiko v. United States, 969 F.2d at 1398-99.

Moreover, the government's motion to dismiss based on the FTCA ignores relevant case law governing return of property actions. Cases in this circuit and others have held that the district court where criminal proceedings were conducted has ancillary jurisdiction to decide a post-trial motion for the return of seized property. Soviero v. United States, 967 F.2d 791, 792 (2d Cir. 1992); Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992) (citing cases). Further, the Court of Appeals in Mora v. United States found that a plaintiff whose property has been lost or destroyed has a civil equitable claim for damages in addition to remedies available under the FTCA. 955 F.2d at 159-60. Accordingly, this court has subject matter jurisdiction over plaintiff's claims regardless of whether he has fulfilled the FTCA's exhaustion requirement.

For all of the foregoing reasons, the government's motion to dismiss for lack of subject matter jurisdiction is DENIED.

SO ORDERED.