Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20443

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE LUIS RODRIGUEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:89-CR-229-3

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Jose Luis Rodriguez, former federal prisoner # 00582-424, challenges the

district court’s transfer and denial of his “original” complaint filed pursuant to

FED. R. CIV. P. 60(b)(4) and (5). Rodriguez filed his complaint in the Brownsville

Division of the Southern District of Texas arguing that the judgment in Case No.

“B-89-197" was void. He asserted that property taken from a safety deposit box

at the San Benito Bank and Trust Company was improperly seized and retained

United States Court of Appeals

Fifth Circuit

F I L E D

August 6, 2009

Charles R. Fulbruge III

Clerk
No. 08-20443

2

by the Government for 18 years. Rodriguez requested compensation for the loss

of his property.

The district court in Brownsville granted the Government’s motion to

transfer Rodriguez’s complaint to Houston because that is where Rodriguez’s

criminal case occurred, specifically Case No. H-89-cr-00229-03, and where

Rodriguez previously sought return of the property at issue here. Rodriguez’s

prior motion for the return of property was denied as untimely. The district

court in Houston treated Rodriguez’s instant action as a subsequent motion for

the return of property and denied it.

On appeal, Rodriguez asserts for the first time that the Government failed

to properly serve him with a copy of its motion to dismiss or alternatively

transfer his complaint. He asserts that his due process rights were violated

because he was not allowed an opportunity to respond to the Government’s

motion prior to the district court transferring his case. Rodriguez further asserts

that the district court’s decision transferring his case to the Houston division

should be reversed because the Government failed to show “good cause” for the

transfer.

It is unclear from the record whether Rodriguez received service of the

Government’s motion to dismiss. However, what is clear is that on June 2, 2008,

Rodriguez was hand delivered a copy of the district court’s order granting the

Government’s motion to dismiss and its transfer order. Rodriguez did not file

any response or objection to the district court’s transfer order prior to the denial

of his action on June 25, 2008. Rodriguez does not explain on appeal what

arguments he would have presented in opposition to the Government’s motion

to dismiss. Additionally, other than the conclusory assertion that there was “no

good cause” for the transfer, Rodriguez has failed to explain why the transfer

was erroneous. Thus, he has failed to show any due process violation. See

United States v. Jimenez, 256 F.3d 330, 345 (5th Cir. 2001).
No. 08-20443

3

Although not altogether clear, if Rodriguez’s brief is liberally construed,

he may be arguing that his “original” complaint in the district court should have

been treated as an independent action in equity. Even so, he has not shown that

he is entitled to relief on appeal. The record reflects that Rodriguez had an

adequate remedy at law concerning the property in question pursuant to FED.

R. CRIM. P. 41(g). Because Rodriguez is essentially attempting to relitigate the

same issues he presented in his Rule 41(g) motion that was previously denied,

the district court did not abuse its discretion in denying the instant complaint.

See Bankers Mortgage Co. v. United States, 423 F.2d at 73, 79 (5th Cir. 1990).

Accordingly, the judgment of the district court is AFFIRMED.