* This order and judgment is not binding precedent, e xcept under the doctrines of

law of the case, res judicata, and collateral estop pel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 28 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DOUGLAS WAYNE THOMPSON,

Plaintiff-Appellant,

v. WALTER C. WEBBER and JEFFERY L. COVINGTON, Special Agents of the Federal Bureau of Investigation,

Defendants-Appellees. No. 96-3012 (D.C. No. 95-CV-3100) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA, EBEL, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Appellant Douglas Wayne Thompson, a federal inmate appearing pro se and proceeding in forma pauperis, appeals from an orderof the district court that dismissed without prejudice his action filed pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971). Thompson seeks the return o r replacement of state court legal papers allegedly seized in 198 8 from his Kansas City, Kansas abode during the FBI’s investigation of Thompson inconnection with bank robberies and firearms offenses committed in Minnes ota, and damages for the FBI’s delay in returning or replacing his property. The district court dismissed Thompson’s complaint without prejudice for lack of subject matter jurisdiction. We affirm, albeit for a slightly different reason. In 1992, Thompson filed an action in the United States District Court for the Western District of Missouri, seeking essential ly the same relief he seeks in this suit. The Missouri court dismissed the actionwith prejudice, and Thompson appealed. In an opinion entered on February 15, 19 95, the Eighth Circuit vacated the district court’s judgment and remanded with dir ections to dismiss the action without prejudice to refiling in the District of Mi nnesota. See Thompson v. Covington , 47 F.3d 974, 975 (8th Cir. 1995). The Eighth Cir cuit reasoned that because Thompson sought the return of property seiz ed in connection with a criminal case, his action presented a civil equitab le claim and the district court-3-

where he was tried--that is, the District of Minnes ota--had ancillary jurisdiction to consider it. See id. (citing authorities). The record shows that by the time the Eighth Circui t ruled, Thompson had filed a motion for return of property pursuant to F ed. R. Crim. P. 41 in the District of Minnesota as part of a motion under 28 U.S.C. § 2255 in his criminal case. See United States v. Thompson , Crim. No. 4-88-119, Civ. No. 4-92-208 (D. Minn., filed Apr. 11, 1994). The motion for return of property was dismissed on August 2, 1994. Thompson renewed his motion for re turn of property in the District of Minnesota in 1995. His claims were aga in dismissed with prejudice in a Memorandum Opinion and Order entered by the Fourth Division of the District of Minnesota on October 4, 1996, in Civ. No. 4-95-3 99. Thompson filed this suit in the District of Kansas on March 10, 1995, while the Minnesota proceedings were pending. We abated the present appeal pending a decision from the Eighth Circuit in Thompson’s appe al from the dismissal in the District of Minnesota. The Eighth Circuit has now ruled that Thompson’s motion for return of property should not have been dismiss ed, and has remanded the case for a determination of whether the FBI ever seized Thompson’s alleged documents and currently possesses them. If so, Thompson may be entitled to return of these documents. If t he FBI lost or destroyed certain of Thompson’s documents, then the district court must decide whether Thompson is entitled to equitab le relief.-4-

Thompson v. Federal Bureau of Investigation , No. 96-3926, 1997 WL 413605, at *1 (8th Cir. Jul. 23, 1997) (per curiam) (unpubl ished disposition). The gist of Thompson’s Kansas complaint is that he has been unable to obtain relief in the Eighth Circuit. Because the E ighth Circuit has now granted him the relief he seeks, we affirm the dismissal of the Kansas case. We do not address appellees’ argument that Thompson ’s Kansas case is barred by the statute of limitations. A holding th at the limitations period had run before Thompson filed his complaint would call for a dismissal of the action with prejudice, but appellees did not cross-appeal. See Hansen v. Director, Office of Workers’ Compensation Programs , 984 F.2d 364, 367 (10th Cir. 1993) (holding party may not seek to enlarge its rights or lessen adversary’s rights without cross-appeal). Appellees’ motion to file a surreply is GRANTED. T he judgment of the United States District Court for the District of Ka nsas is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge