1. Rule 41(e) provides:

A person aggrieved by an unlawful search and seizure or

by the deprivation of property may move the district

court for the return of the property on the ground that

such person is entitled to lawful possession of the

property. The court shall receive evidence on any issue

of fact necessary to the decision of the motion. If the

motion is granted, the property shall be returned to

the movant, although reasonable conditions may be

imposed to protect access and use of the property in

subsequent proceedings. If a motion for return of

property is made or comes on for hearing in the

district of trial after an indictment or information is

filed, it shall be treated as a motion to suppress

under Rule 12.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________________

 

No. 96-50644 

________________________________

SAMUEL FIACRO PEÑA,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

October 7, 1998

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Samuel Peña, a prisoner, filed a motion on March 25, 1996,

under Federal Rule of Criminal Procedure 41(e)1 seeking the

return of certain property that the United States seized from his
home. On August 6, 1996, the United States responded to the

motion by stating that the property seized from Peña’s home had

been destroyed. Two days later, the United States District Court

for the Western District of Texas dismissed the action as moot

without giving Peña a chance to respond or to amend his

pleadings. Proceeding pro se and in forma pauperis, Peña appealed

the dismissal to this Court and, for the first time on appeal,

requested money damages to compensate him for his property loss.

Without reaching the merits of the action, we held that, because

Peña’s motion was a civil action, he was subject to the Prison

Litigation Reform Act of 1995. See Peña v. United States, 122

F.3d 3, 4-5 (5th Cir. 1997). We remanded to the district court so

that Peña could seek the necessary leave to proceed on appeal in

forma pauperis. With respect to all other issues we retained

jurisdiction and held Peña’s appeal in abeyance. See id. at 5.

Peña now comes before us pro se, but no longer in forma pauperis.

I

In June 1994, federal officers, acting pursuant to a

warrant, searched Peña’s San Antonio home for evidence of drug

trafficking. Peña was at the time in custody in Ohio on drug

trafficking charges. During their search, the federal officers

seized numerous items, including, Peña alleges, his legal and

personal records, photographs, wallet and currency, birth

certificate, and driver’s license. The government, without

explanation, later destroyed the items it had taken from Peña’s

home.

II
 2. See, e.g., United States v. Kanasco, Ltd., 123 F.3d 209,

210 n.1 (4th Cir. 1997) (“Simply because the government destroys

or otherwise disposes of property sought by the movant, the

motion is not thereby rendered moot.”); United States v. Solis,

108 F.3d 722, 722-23 (7th Cir. 1997) (citing Mora with approval);

Mora v. United States, 955 F.2d 156, 159 (2d Cir. 1992) (“The

government suggests . . . that since it is without possession of

appellant’s property his claim is moot. Quite the contrary.”);

United States v. Martinson, 809 F.2d 1364, 1368 (9th Cir. 1987)

(explicitly declining to follow district court cases that hold

that damages are unavailable in a proceeding based on a motion

for return of property).

3

This appeal asks us to decide whether money damages will lie

under Rule 41(e). We begin by noting, as we did in our earlier

opinion, see Peña, 122 F.3d at 4 n.2, that several circuits have

held or implied that a movant such as Peña may seek damages under

41(e) if the government has destroyed his property.2 At first

blush, the reason for such a holding is as clear as it is sound:

“When a citizen has invoked the jurisdiction of a court by moving

for the return of his property, we do not think that the

government should be able to destroy jurisdiction by its own

conduct. The government should not at one stroke be able to

deprive the citizen of a remedy and render powerless the court

that could grant the remedy.” United States v. Martinson, 809

F.2d 1364, 1368 (9th Cir. 1987). Notwithstanding this argument

and the authority of our sister circuits, however, we cannot

agree that a court may award money damages under Rule 41(e).

Peña has named the United States as the defendant in his

case. The principle of sovereign immunity protects the federal

government from suit except insofar as that immunity is waived. A

waiver must be unequivocally expressed in statutory text and will
4

not be implied. See Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct.

2092, 2096 (1996) (citations omitted). Rule 41(e) makes no

provision for monetary damages, and we will not read into the

statute a waiver of the federal government’s immunity from such

damages. Numerous Supreme Court decisions hold that courts should

construe statutes against waiver unless Congress has explicitly

provided for it. See, e.g., Lane, 116 S. Ct. at 2097 (refusing to

allow monetary damages under § 504(a) of the Rehabilitation Act

of 1973, 29 U.S.C. § 791 et seq., where the relevant statutory

provisions failed to provide the “clarity of expression necessary

to establish a waiver of the Government’s sovereign immunity

against monetary damages”); United States v. Nordic Village,

Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011, 1014-15 (1992)

(holding that although the contemporary § 106(c) of the

Bankruptcy Code waived sovereign immunity, “it fail[ed] to

establish unambiguously that the waiver extend[ed] to monetary

claims”). However compelling his case, Peña may not maintain a

suit against the United States for monetary damages under Rule

41(e).

III

Nonetheless, we cannot stop at affirming the district

court’s decision. Peña, a pro se party, had no opportunity to

amend his pleadings before the district court properly denied his

41(e) motion for return of property. Peña had filed a motion

describing the deprivation of his personal property, which when

combined with the government’s assertion that it had destroyed
 3. Because such dismissals are disfavored, a court should

grant a pro se party every reasonable opportunity to amend. See,

e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-

96 (1972) (reversing 12(b)(6) dismissal of complaint where it did

not appear beyond doubt that the plaintiff could prove no set of

facts that would entitle him to relief); Bazrowx v. Scott, 136

F.3d 1053, 1054 (5th Cir. 1998) (per curiam) (noting that a

district court generally errs in dismissing a pro se complaint

for failure to state a claim without giving the plaintiff an

opportunity to amend).

 4. Rule 15(c)(2) states: “An amendment of a pleading

relates back to the date of the original pleading when . . . the

claim . . . asserted in the amended pleading arose out of the

same conduct, transaction, or occurrence set forth or attempted

5

the property, presented the facts necessary for an action under

Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999

(1971). Under Federal Rule of Civil Procedure 15(a), Peña could

have amended his pleadings to state that Bivens complaint. Our

affirming the denial without leave to amend would have the same

effect as a 12(b)(6) dismissal of a pro se complaint.3 That is,

the district court denied Peña’s motion on August 8, 1996, making

that the latest possible date upon which Peña could first have

become aware that the government had destroyed his property. As

the statute of limitations on a Bivens claim would be two years,

see Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982)

(stating that the applicable state statute of limitations governs

in a Bivens action); Aggartwal v. Secretary of State, 951 F.

Supp. 642, 649-50 (S.D. Tex. 1996) (applying Texas’s two-year

statute of limitations to a Bivens action), Peña could not file

an original Bivens action today. Under Federal Rule of Civil

Procedure 15(c)(2),however, the amendments Peña makes to his

pleadings will relate back to the date of the original pleading,4
to be set forth in the original pleading . . . .” Although Peña’s

original motion made no reference to the government’s destruction

of his property, it referenced the conduct that would underlie a

Bivens action--i.e., the government’s depriving him of his lawful

property.

6

filed in March 1996, and Peña will have the opportunity to seek

redress for his loss.

IV

Accordingly, the order of the district court denying Rule

41(e) relief is affirmed and the matter is returned to the

district court for proceedings not inconsistent with this

opinion.