               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 02-2676

                         MANUEL PEREZ-COLON,

                        Plaintiff, Appellant,

                                     v.

                        ALEX CAMACHO, ET AL.,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                              Before
                      Selya, Lipez and Howard,
                          Circuit Judges.


     Manuel Perez-Colon on brief pro se.
     H.S. Garcia, United States Attorney, Miguel A. Fernández,
Assistant United States Attorney, and Germán A. Rieckehoff,
Assistant United States Attorney, on brief for appellee.




                          September 5, 2003
          Per Curiam. Appellant Manuel Perez-Colon appeals from the

judgment of the district court dismissing his complaint which

sought the return of $3,000 allegedly seized from him upon his

arrest.   The district court dismissed the complaint on the ground

that appellant had failed to exhaust his administrative remedies as

required by the Prison Litigation Reform Act (PLRA). See 42 U.S.C.

§ 1997e(a) ("No action shall be brought with respect to prison

conditions under . . . Federal law, by a prisoner confined in any

. . . correctional facility until such administrative remedies as

are available are exhausted.").       For the following reasons, we

vacate the dismissal and remand for further proceedings.

          In 1998, a jury convicted appellant of various drug

offenses, and, in 1999, the district court sentenced him to life

imprisonment. On January 18, 2002, appellant escaped from custody.

Appellant's freedom was short-lived, however, as he was arrested on

February 6, 2002.   At the time of his arrest, appellant alleges

that the U.S. Marshals seized the following items from him:   (1) an

automobile; (2) a watch; (3) some jewelry; and (4) $3,000 in cash.

  Everything but the cash was returned to appellant's family.

Appellant attached to the complaint a document entitled "Federal

Prisoner's Property Receipt."   This document indicates the receipt

of the $3,000 and is signed by Alex Camacho, the Marshal who

apparently had taken the money from appellant.




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            When appellant failed to get the cash back, he wrote a

letter to the chief of the U.S. Marshals Service in Puerto Rico

asking for the return of the money.         Apparently this letter was

unsuccessful because appellant filed the instant complaint on

September 18, 2002.      In his complaint, appellant claimed that his

due process rights had been violated; in particular, he averred

that the cash had not been subject to forfeiture proceedings, but

rather had just disappeared. As relief, appellant requested, among

other things, an order that the U.S. Marshals return the $3,000.

             Because the district court dismissed the complaint before

the defendants had responded, we must treat the dismissal as a sua

sponte one.       See Gonzalez-Gonzalez v. United States, 257 F.3d 31,

36 (1st Cir. 2001).      This type of dismissal -- "a dismissal on the

court's own initiative, without affording the plaintiff either

notice or an opportunity to be heard -- is disfavored in federal

practice."    Id.    As a result, "[w]e will uphold a sua sponte order

of dismissal only if the allegations contained in the complaint,

taken in the light most favorable to the plaintiff, are patently

meritless and beyond all hope of redemption."          Id. at 37.       Such

dismissals are reviewed de novo.      Id.

            This complaint, construed in appellant's favor as it must

be, is not "beyond all hope of redemption."        That is, if it turns

out that the money was seized from appellant by the U.S. Marshals

as   part    of   appellant's   arrest,   and   separate   from   his    re-


                                    -3-
incarceration, appellant probably is entitled to file a complaint

for the return of the money without having to exhaust any remedies.

           The sticking point is that the receipt for the $3,000

specifically states that it is a "prisoner's" receipt.                     This

receipt suggests that the money, in fact, was confiscated from

appellant at the time that he re-entered prison.               In that case, it

certainly is arguable that prison grievance procedures must be

exhausted before the filing of a complaint for the return of the

money.   See Owen v. Kimmel, 693 F.2d 711, 713-15 (7th Cir. 1982)

(requiring exhaustion of a claim that prison officials confiscated

the   plaintiff's    furniture     so    long    as   the   prison's   grievance

procedures met the standards set out in former § 1997e).

           In the situation where property is seized at the time of

an individual's arrest, the controlling case is United States v.

Giraldo, 45 F.3d 509 (1st Cir. 1995) (per curiam).               In that case,

we held that "district courts have jurisdiction to entertain

collateral due process attacks on administrative forfeitures," and

that "such challenges may be pursued in a civil action under 28

U.S.C. § 1331."      Id. at 511.    Although Giraldo was decided before

the   enactment     of   the   exhaustion       requirement   contained    in   §

1997e(a), there is no indication in our case law, or in the case

law from other circuits, that this requirement applies to actions

for the return of property seized incident to an arrest.                   See,

e.g., Gonzalez-Gonzalez, 257 F.3d at 35-38 (citing Giraldo and


                                        -4-
remanding a motion for the return of property seized when the

defendant was arrested where there were facts in dispute regarding

the adequacy of the notice of forfeiture provided to the defendant;

no discussion of exhaustion); United States v. Minor, 228 F.3d 352,

355-57 (4th Cir. 2000) (holding that a prisoner may file an action

for the return of property seized at the time he was arrested and

locating the source of such a right of action in the Constitution;

no discussion of any exhaustion requirement); United States v.

Chambers, 192 F.3d 374, 375-77 (3d Cir. 1999) (where criminal

proceedings have ended, a Fed. R. Crim. P. 41(e) motion for the

return of property seized during the defendant's arrest is to be

"treated as a civil proceeding for equitable relief"; no discussion

of an exhaustion requirement).

          Because   there   are    factual   issues   concerning   the

circumstances under which appellant's money was confiscated, the

district court's sua sponte dismissal cannot be upheld. Therefore,

this case must be remanded to the district court for further

proceedings.   We, of course, express no views as to whether the

claim has any potential merit, or whether it might be subject to

dismissal on some other ground or on a better-developed record.

          Vacated and remanded.




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