United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-3926

___________ Douglas W. Thompson, * * Appellant, * Appeal from the United States * District Court for the v. * District of Minnesota. * Federal Bureau of Investigation, * [UNPUBLISHED] * Appellee. *

___________ Submitted: March 24, 1997 Filed: July 23, 1997

___________ Before WOLLMAN, BRIGHT and BEAM, Circuit Judges.

___________ PER CURIAM. In a p rior action brought by Douglas W. Thompson for return of his property allegedly seized by the Federal Bureau of Investigati on (FBI) in 1988, the district court decided: Because arrangements have been made for return o f all items in the cus tody of the United States Attorney for the District of Minnesota , [Thompson’s] motion [for return of property] should be dismiss ed. It may be reinstated if the FBI f

ails to send the items which are in its possession to [Thompson] within six weeks.-2-

Appellee's App. at 241 (Dist. Ct. Order dated Aug. 2, 1994). Three weeks later, the FBIreturned several items of Thompson’s property. See Appellee’s App. at 422-23 (containing list of returned items signed by Thompson’s agent). Contending that the FBI faile d to return all of his personal property, Thompson returned to the Distric t Court for the District of Minnesota on Jun e 21, 1995, and renewed his Federal Rule of Criminal Procedure 41(e) motion as well as other claims. Thomps onclaims that the FBI seized, and continues to possess persona l docume nts pertaining to his state court trials. In addition, he seeks relief under th e Freedom of Information Act and from constitutional viol ations relating to his arrest and s u bsequent search and seizure of his property. The FBI, on the other hand, contends that Thomp son’s records were either produced, did not exist or the FBI neve r poss essed them. The magistrate judge recommended dismissing Thompson’ s constitutional claims and Freedom of Information Act claim on grounds of res judicata. Appelle e's App. at 393-94, 396 (Report and Recommendation dated Aug. 8, 1996)

. In addi tion, the magistrate judge recommended dismissing Thompson’s motion fo r retur n of his property because the district court’s prior order stated that Thompso n “could renew his motion within six weeks.” Id. at 395. Thus, the magistrate judg e concluded that the previous order precluded Thomp son from relitigating his Rule 41(e) moti on. Id. at 394-95. The district court adopted the magistrate judge’s report an d recommendation and

ordered Thompson’s claim dismissed with prejudice. Id. at 436 (Dist. Ct. Order dated Oct. 4, 1996).
The magistrate judge and district judge misconstrued the prior district court’ s order. The August 2, 1994 district court order allows the FBI six weeks to return Thompson’s property and avoid litigation. The district court clearly stated tha t Thompsoncould renew his motion if the FBI failed to return his property in the time allotted. Thus, the six-week period limited the FBI’s return of Thompson’s property, not Thompson’s ability to renew his motion.-3-

Because the district court misinterpreted the prior court order, we reinstat e Thompson’s Rule 41(e) motion and remand the case for a de termination of whether the FBI eve r seized Thompson’s alleged documents and currently possesses them. If so, Tho mpson may be entitled to return of these documents. If the FBI lost or destroyed certai n of Thompson’s documents, then the district court must decide whethe r Thompson i s entitled to equitable relief. See Covington v. Thompson , 47 F.3d 974 , 975 (8th Cir. 1995) (per curiam). We affir m, however, the district court’s dismissal of Thompson’s co nstitutional and Freedom of Information Act claims. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion. A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.