The opinion of the court was delivered by: Gilbert, District Judge:
Plaintiff Steven Patrick Smiley, an inmate in FCI-Phoenix, brings this action seeking the return of property seized from him in connection with the criminal proceedings against him in this District which resulted in his conviction. Plaintiff was sentenced by this Court to a total of 57 months for mail fraud, aggravated identity theft, and access device fraud, and was ordered to pay restitution in the amount of $24,159.82 (Case No. 10-cr-40016-JPG). This matter is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Upon careful review of the complaint, the Court finds that Plaintiff's complaint should receive further consideration.
Plaintiff states that his home at 1318 Gartside Street in Murphysboro, Illinois, was searched by the local police and county sheriff's officers pursuant to a search warrant in April 2006. Plaintiff later pled guilty and waived his rights to appeal or collaterally attack his conviction or sentence.
The items taken during execution of the search warrant included articles of mail relevant to the criminal proceedings, which Plaintiff acknowledges should not be returned to him. However, the authorities also seized electronic items including a computer, television, compact discs, ID cards, address books, and other regular household property items which Plaintiff claims were not related to the criminal case. Plaintiff asserts that these items are in the possession of the Defendant because during the criminal proceedings, the Assistant U.S. Attorney told Plaintiff's lawyer that the property was in storage, as was a videotape of the execution of the search warrant.
Plaintiff requests, pursuant to Federal Rule of Criminal Procedure 41(g), that all of the seized property be returned and released to his brother, Christopher Smiley, unless the Defendant can prove that the items were related to the crime.
Federal Rule of Criminal Procedure 41(g) provides that a motion may be filed seeking the return of ...