                                                                            FILED
                           NOT FOR PUBLICATION                              AUG 04 2014

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-55993

              Plaintiff - Appellee,              D.C. No. 2:04-cv-06586-GHK-SS

  v.
                                                 MEMORANDUM*
FRANK S. CLEMENT, AKA Frank
Clement,

              Claimant - Appellant,

  And

4820 HEAVEN AVENUE, WOODLAND
HILLS, CALIFORNIA, the premises
known as, and several other premises
searched,

              Defendant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, Chief Judge, Presiding

                             Submitted July 22, 2014**


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before:      GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

      Frank S. Clement, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his motion seeking return of his personal property.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. United States

v. Mills, 991 F.2d 609, 612 (9th Cir. 1993). We vacate and remand.

      Because no criminal proceedings were pending against Clement when he

filed his motion, the district court improperly construed Clement’s motion as one

for return of property pursuant to Federal Rule of Criminal Procedure 41(g). See

United States v. Ritchie, 342 F.3d 903, 906-07 (9th Cir. 2003); see also United

States v. Ibrahim, 522 F.3d 1003, 1007 (9th Cir. 2008) (stating that where “there

were no criminal proceedings pending at the time of filing, the district court

properly treated the [Rule 41(g)] motion as a civil complaint”). Accordingly, we

vacate and remand.

      On remand, the district court is free to consider Clement’s motion, as he

requests, in the context of the district court’s March 2003 order, or as a civil

complaint seeking equitable relief, see, e.g., Ibrahim, 522 F.3d at 1007. We

express no opinion as to the correct course of action.

      Appellee shall bear the costs on appeal.

      VACATED and REMANDED.



                                           2                                       12-55993
