     Case: 17-10469       Document: 00515132765         Page: 1     Date Filed: 09/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                     No. 17-10469                              FILED
                                                                       September 25, 2019
                                   Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
GEARY MILLS,

                                                  Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:16-CV-53


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis, Geary Mills, federal prisoner
16878–078, challenges the summary judgment granted the Government
against his civil action seeking the return of property seized during his arrest.
The arrest had led to his being convicted of conspiracy to possess, with intent
to distribute, a controlled substance, in violation of 21 U.S.C. § 846, 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-10469       Document: 00515132765   Page: 2   Date Filed: 09/25/2019


                                  No. 17-10469

possession of a firearm in furtherance of a drug-trafficking crime, in violation
of 18 U.S.C. § 924(c).
      Pursuant to a preliminary forfeiture order, some of the seized property,
including, inter alia, $20,207 in cash, a handgun, and magazines containing
ammunition, was criminally forfeited.        A final forfeiture order was later
entered, and the handgun and ammunition were destroyed.
      Our court affirmed Mills’ convictions on direct appeal, and he did not
challenge the preliminary forfeiture order. United States v. Mills, 555 F. App’x
381, 382 (5th Cir. 2014) (per curiam). The order therefore divested him of any
interest in the forfeited property.         See Fed. R. Crim. P. 32.2(b)(4)(A)
(enumerating when order becomes final as to defendant). Our court also held
he lacked standing to challenge the final forfeiture order. United States v.
Mills, 620 F. App’x 343, 343–44 (5th Cir. 2015) (per curiam).
      Mills has filed several civil actions and unsuccessfully challenged their
dismissals on appeal.      In the instant action, he originally filed a motion,
pursuant to Federal Rule of Criminal Procedure 41(g), seeking the return of
what he alleged was his property. Because his criminal case had concluded
when he filed this motion, it is, therefore, construed as a civil action, pursuant
to 28 U.S.C. § 1331. See Bailey v. United States, 508 F.3d 736, 738 (5th Cir.
2007).
      In district court, Mills listed two pages of items he wished to recover.
Alternatively, he sought damages, pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for the claimed
destruction of his property without due process.
      Adopting the magistrate judge’s report and recommendations, the
district court dismissed the Bivens claim because sovereign immunity barred
it, and directed partial final judgment, pursuant to Federal Rule of Civil



                                        2
    Case: 17-10469      Document: 00515132765   Page: 3   Date Filed: 09/25/2019


                                 No. 17-10469

Procedure 54(b). Mills took an appeal, No. 16–11163, but it was dismissed for
failure to pay the filing fee.
      The district court subsequently dismissed the remaining claims.          It
concluded the Government did not possess some property Mills sought, and
Mills was collaterally estopped from attempting to recover property the
Government did possess. On appeal, after our court granted Mills’ motion to
proceed in forma pauperis, it remanded for additional findings.
      On remand, the district court, adopting the magistrate judge’s
supplemental findings, again concluded Mills was collaterally estopped from
claiming property that was seized. It also found the evidence conclusively
established federal agents did not seize the other items he sought. This appeal
ensued.
      As an initial matter, our review is of the district court’s awarding
summary judgment, not granting a motion to dismiss, because the court
considered “matters outside the pleadings”. See Fed. R. Civ. P. 12(d). Mills
has had the required “reasonable opportunity” to present all pertinent
material. See id.
      Whether summary judgment was properly granted is reviewed de novo.
Bailey, 508 F.3d at 738 (citation omitted). Because review is de novo, our court
may affirm on any grounds supported by the record. McGruder v. Will, 204
F.3d 220, 222 (5th Cir. 2000) (citation omitted).
      As discussed, in district court, Mills provided a two-page list of items he
wished to have returned to him. In this appeal, however, he discusses from
those items only the earlier-referenced $20,207. Mills lacks standing to claim
the $20,207 because the criminal forfeiture divested him of any interest in it.
See Mills, 620 F. App’x at 344. He also discusses a blue-and-black backpack,
which was not criminally forfeited, and was not among the items he listed in



                                       3
    Case: 17-10469      Document: 00515132765    Page: 4   Date Filed: 09/25/2019


                                 No. 17-10469

district court as being subject to return. Accordingly, he cannot show error as
to this item. See Gabel v. Lynaugh, 835 F.2d 124, 125 (5th Cir. 1988) (per
curiam) (“[T]he trial court cannot have erred as to matters which were not
presented to it”.). The Government acknowledges, however, that it possesses
the backpack and states Mills may retrieve it.
      Mills also: attacks the preliminary criminal-forfeiture order’s validity;
claims he should be allowed to seek relief pursuant to Bivens; and contends
this court erred in another of his appeals, No. 16–40617, reported at 678 F.
App’x 215 (5th Cir. 2017) (per curiam).
      These claims are all barred by res judicata. See, e.g., Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“A final judgment on the merits
of an action precludes the parties or their privies from relitigating issues that
were or could have been raised in that action.”) (citation omitted).         Any
challenge to the criminal-forfeiture order’s validity should have been raised in
his direct appeal, 555 F. App’x. 381. The judgment dismissing the Bivens claim
is final because his appeal, No. 16–11163, was dismissed for his failure to pay
the filing fee. And our court will not consider any claim of error in No. 16–
40617 in this appeal.
      AFFIRMED.




                                       4
