                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 8, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40248
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DEWAYNE KARL PIPKINS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                           (6:00-CR-4-2)
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Dewayne Karl Pipkins, federal prisoner

#08515-078, appeals the district court’s denial of his FED. R. CRIM.

P. 41 motion for return of property.    Pipkins seeks the return of

$30,000 that was allegedly seized by Special Agent Garrett Floyd of

the Federal Bureau of Investigation (“FBI”) from a Hibernia Bank

safety deposit box in Lindale, Texas.




     *
       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this opinion should not be published and is not precedent except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.
      The district court denied Pipkins’s FED. R. CRIM. P. 41(g)

motion1,   but    the    criminal proceeding            against    him    had    already

concluded when he brought this action.              We therefore treat his FED.

R. CRIM. P. 41(g) motion as a civil action under 28 U.S.C. § 1331,

seeking the return of property, and treat the district court’s

denial of that motion as a grant of summary judgment in favor of

the government.         See Clymore v. United States, 217 F.3d 370, 373

(5th Cir. 2000).        We review the grant of summary judgment de novo.

Horton v. City of Houston, 179 F.3d 188, 191 (5th Cir. 1999).

      Any error by the district court in not notifying Pipkins that

the government’s response to his FED. R. CRIM. P. 41(g) motion would

be treated as a summary judgment motion was harmless.                      See FED. R.

CIV. P. 56(c); Leatherman v. Tarrant County Narcotics Intelligence

and   Coordination       Unit,   28   F.3d      1388,    1398     (5th    Cir.    1994).

Although   Pipkins       asserts   that    the     district       court    abused   its

discretion   in    not     holding    an       evidentiary      hearing,    his     only

reference to evidence that should have been considered by the

district court is to the affidavits of Tylsha Brown and the “bank

president” for Hibernia Bank.          Even if those affidavits would have

somehow supported his allegation that Agent Floyd illegally seized

the money from the safety deposit box, they would not have refuted

the evidence presented by the government that it did not possess

      1
         Although Pipkins indicated that his motion was filed
pursuant to subsection (e) of Rule 41, that provision was
relettered as subsection (g) in December 2002. See FED. R. CRIM. P.
41, Advisory Committee Notes to 2002 Amendments.

                                           2
the $30,000.    Accordingly, there was no genuine issue of material

fact with respect to Pipkins’s suit for the return of property from

the   government.    See   Leatherman,   28   F.3d   at   1398.   Without

expressing an opinion on the viability of an action by Pipkins for

monetary damages, we note that our affirmance in this case does

not, by itself, preclude such an action.

      The district court’s grant of summary judgment in favor of the

government is

AFFIRMED.




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