     Case: 15-40169      Document: 00513512337         Page: 1    Date Filed: 05/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40169
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 19, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ROBERT L. HEDRICK,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-715-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Robert L. Hedrick, federal prisoner # 94886-279, has applied for leave to
appeal in forma pauperis (IFP) from the district court’s denial of his motion to
return property. We construe Hedrick’s motion as a challenge to the district
court’s determination that his appeal has not been brought in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “is limited to
whether the appeal involves legal points arguable on their merits (and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-40169     Document: 00513512337     Page: 2   Date Filed: 05/19/2016


                                  No. 15-40169

therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citations omitted).
      Because Hedrick’s criminal proceedings had concluded before he filed the
motion, it is considered a civil action under 28 U.S.C. § 1331. See Clymore v.
United States, 217 F.3d 370, 373 (5th Cir. 2000). We construe the denial of
relief in a motion for return of seized property under § 1331 as a grant of
summary judgment in favor of the Government, id., which we review de novo,
Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011).
Summary judgment is proper if the evidence shows that there is no genuine
dispute as to a material fact and the movant is entitled to judgment as a matter
of law. Id.; FED. R. CIV. P. 56(a).
      Hedrick does not dispute that some of his property was returned and
that the remaining property was made available for retrieval. He contends
only that the district court erred by denying his motion before he had an
opportunity to respond to the Government’s responses to his motion, and by
determining that the district court judge, who had since been recused, did not
issue an order compelling the return of his property.         The record belies
Hedrick’s assertion that the district court judge issued such an order. Further,
any error by the district court in denying the motion before Hedrick filed a
response is harmless. See Resolution Trust Corp. v. Sharif-Munir-Davidson
Dev. Corp., 992 F.2d 1398, 1403 (5th Cir. 1993); FED. R. CIV. P. 61.
      IT IS ORDERED that leave to appeal IFP is DENIED because Hedrick
has failed to show that he will raise a nonfrivolous issue. The appeal is
DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; see also
5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. §1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759,
1763-64 (2015). We CAUTION Hedrick that if he accumulates three strikes



                                       2
    Case: 15-40169   Document: 00513512337     Page: 3   Date Filed: 05/19/2016


                                No. 15-40169

under § 1915(g) he will not be allowed to proceed IFP in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g). Hedrick’s
motion to strike the Government’s brief is DENIED.




                                      3
    Case: 15-40169     Document: 00513512337     Page: 4   Date Filed: 05/19/2016


                                  No. 15-40169

JAMES L. DENNIS, Circuit Judge, dissenting:
      In my view, the majority errs in dismissing this pro se appellant’s appeal
as frivolous. As the majority notes (but fails to heed), the question before us is
not whether Hedrick is ultimately likely to prevail on his claim but whether
his appeal “involves legal points arguable on their merits (and therefore not
frivolous).”   Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted).
      Following the conclusion of his criminal proceedings, Hedrick filed a
motion seeking, among other things, the return of personal property that the
Government had seized from him but did not use as evidence at trial.
Specifically, Hedrick sought to have the Government ship his property to a
person of his designation at the Government’s expense. Hedrick claimed that
a prior district court judge had already ordered the return of his property. The
Government responded that there was no such prior order, that it had already
returned some of Hedrick’s property, and that the remaining items are
available for his retrieval at the Government’s offices in Brownsville, Texas.
      Four days after the Government filed its response, and before Hedrick
even received it, the district court denied Hedrick’s motion as moot.
Apparently, the basis for the district court’s decision was that Hedrick’s
property either had been returned or remained available for retrieval at the
Government’s offices and that no previous order to return the relevant
property appeared in the record.       Although Hedrick requested that the
property be shipped to another person, the court also stated, in a footnote, that
it would be inappropriate to ship the requested items to Hedrick because he
was incarcerated. After Hedrick received the Government’s response and the
district court’s order, he filed a reply. Among other things, Hedrick protested
the district court’s rendering of its order without affording him an opportunity


                                           4
    Case: 15-40169     Document: 00513512337     Page: 5   Date Filed: 05/19/2016


                                  No. 15-40169

to respond to the Government’s arguments, and he asserted a constitutional
interest in the property that he claimed compelled its return, independently of
any prior order by the district court.
      As an initial matter, the district court erred in determining that
Hedrick’s motion was moot. A case becomes moot “only when it is impossible
for a court to grant any effectual relief whatever to the prevailing party,” and
“[a]s long as the parties have a concrete interest, however small, in the outcome
of the litigation, the case is not moot.” Campbell-Ewald Co. v. Gomez, 136 S.
Ct. 663, 669 (2016) (citations and internal quotation marks omitted).
Whatever interest Hedrick has in having the Government ship his property to
a person of his designation clearly was not mooted by the Government’s return
of only some of his property and the availability of the remainder for retrieval
at the Government’s offices. See id. at 669. Nor was such interest mooted by
the apparent finding that the court had not previously ordered the return of
the property.   See id.   Because the personal interest Hedrick had in the
outcome of this litigation at its commencement had not been extinguished by
any subsequent circumstance, the case was not moot.                  See ERWIN
CHEMERINSKY, FEDERAL JURISDICTION 131 (6th ed. 2012) (citing United States
v. Parole Comm’n v. Geraghty, 445 US 388, 397 (1980)).
      As to Hedrick’s substantive claims, the majority erroneously asserts that
he his sole contention was that the district court erred by determining that a
prior district court judge did not issue an order compelling the return of his
property. In so doing, the majority ignores Hedrick’s clear argument, both on
appeal and below, that he has a constitutional interest that mandates the
return of his property and his reference to authorities dealing with Federal
Rule of Criminal Procedure 41(g), which governs motions to return property




                                           5
     Case: 15-40169      Document: 00513512337         Page: 6    Date Filed: 05/19/2016


                                      No. 15-40169

while criminal proceedings are pending. 1 See FED. R CRIM. P. 41(g) (“A person
aggrieved . . . by the deprivation of property may move for the property’s
return.”); see generally Lowther v. United States, 480 F.2d 1031 (10th Cir. 1973)
(the Government’s continued retention of seized property would constitute a
taking without just compensation).
       Hedrick’s claim is not frivolous.            The majority correctly construes
Hedrick’s motion as a civil action under 28 U.S.C. § 1331. See Clymore v.
United States, 217 F.3d 370, 373 (5th Cir. 2000). Actions seeking the return of
property under § 1331 are governed by equitable principles and are subject to
the broad discretion of the district court. Industrias Cardoen, Ltda. v. United
States, 983 F.2d 49, 51 (5th Cir. 1993). In response to the Government’s
apparent contention that it fulfills any obligation to return Hedrick’s property
by making it available for retrieval at its Texas offices, Hedrick emphasizes
that his incarceration prevents him from traveling to the Government’s offices
and that he has no ties to Texas and therefore has no one who can retrieve the
property on his behalf from the Government’s offices there. Whether or not
these assertions would have ultimately carried the day for Hedrick is beyond
the scope of our inquiry, but these are surely valid equitable factors that
warranted the district court’s consideration. Notably, neither the Government
nor the majority cites any binding authority that forecloses Hedrick’s claim for
relief or establishes that property is in all cases “returned” when it is made
available for pick-up in a place that the owner cannot access.
       Whatever the majority might think about the merits of Hedrick’s claim,
he was entitled to the district court’s exercise of discretion in deciding whether
to grant his requested relief. See Industrias Cardoen, 983 F.2d at 51. It is not


       1This reference is apt considering that this court has looked to Rule 41 to determine
whether relief is appropriate in considering motions for the return of property under 28
U.S.C. § 1331. See, e.g., Peña v. United States, 157 F.3d 984, 986-87 (5th Cir. 1998).
                                                6
    Case: 15-40169     Document: 00513512337     Page: 7   Date Filed: 05/19/2016


                                  No. 15-40169

this court’s place to conduct a trial de novo of Hedrick’s claims or to substitute
its views regarding the merits for the district court’s discretion. Undeniably,
the district court exercised no such discretion, as it deemed Hedrick’s motion
moot and therefore did not adjudicate his request to have his property shipped
to a person of his designation at the Government’s expense.           This court
therefore should not dismiss the appeal as frivolous but instead should grant
Hedrick’s motion to proceed in forma pauperis, reverse the district court’s
erroneous finding of mootness, and remand the case for further proceedings.
      In dismissing Hedrick’s appeal as frivolous, the majority ignores both
Hedrick’s actual claims and our mandate to allow an appeal that presents
“legal points arguable on their merits.” Howard, 707 F.2d at 220 (internal
quotation marks and citations omitted). By so doing, the majority not only
deprives Hedrick of his day in court but also exposes him to potential sanctions
in the future without justification. I respectfully dissent.




                                           7
