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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________

No. 96-50644
________________________________
SAMUEL FIACRO PEÑA,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
October 7, 1998
Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Samuel Peña, a prisoner, filed a motion on March 25, 1996,
under Federal Rule of Criminal Procedure 41(e)1 seeking the
return of certain property that the United States seized from his
1. Rule 41(e) provides:
A person aggrieved by an unlawful search and seizure or
by the deprivation of property may move the district
court for the return of the property on the ground that
such person is entitled to lawful possession of the
property. The court shall receive evidence on any issue
of fact necessary to the decision of the motion. If the
motion is granted, the property shall be returned to
the movant, although reasonable conditions may be
imposed to protect access and use of the property in
subsequent proceedings. If a motion for return of
property is made or comes on for hearing in the
district of trial after an indictment or information is
filed, it shall be treated as a motion to suppress
under Rule 12.

home. On August 6, 1996, the United States responded to the
motion by stating that the property seized from Peña's home had
been destroyed. Two days later, the United States District Court
for the Western District of Texas dismissed the action as moot
without giving Peña a chance to respond or to amend his
pleadings. Proceeding pro se and in forma pauperis, Peña appealed
the dismissal to this Court and, for the first time on appeal,
requested money damages to compensate him for his property loss.
Without reaching the merits of the action, we held that, because
Peña's motion was a civil action, he was subject to the Prison
Litigation Reform Act of 1995. See Peña v. United States, 122
F.3d 3, 4-5 (5th Cir. 1997). We remanded to the district court so
that Peña could seek the necessary leave to proceed on appeal in
forma pauperis. With respect to all other issues we retained
jurisdiction and held Peña's appeal in abeyance. See id. at 5.
Peña now comes before us pro se, but no longer in forma pauperis.
I
In June 1994, federal officers, acting pursuant to a
warrant, searched Peña's San Antonio home for evidence of drug
trafficking. Peña was at the time in custody in Ohio on drug
trafficking charges. During their search, the federal officers
seized numerous items, including, Peña alleges, his legal and
personal records, photographs, wallet and currency, birth
certificate, and driver's license. The government, without
explanation, later destroyed the items it had taken from Peña's
home.
II

This appeal asks us to decide whether money damages will lie
under Rule 41(e). We begin by noting, as we did in our earlier
opinion, see Peña, 122 F.3d at 4 n.2, that several circuits have
held or implied that a movant such as Peña may seek damages under
41(e) if the government has destroyed his property.2 At first
blush, the reason for such a holding is as clear as it is sound:
"When a citizen has invoked the jurisdiction of a court by moving
for the return of his property, we do not think that the
government should be able to destroy jurisdiction by its own
conduct. The government should not at one stroke be able to
deprive the citizen of a remedy and render powerless the court
that could grant the remedy." United States v. Martinson, 809
F.2d 1364, 1368 (9th Cir. 1987). Notwithstanding this argument
and the authority of our sister circuits, however, we cannot
agree that a court may award money damages under Rule 41(e).
Peña has named the United States as the defendant in his
case. The principle of sovereign immunity protects the federal
government from suit except insofar as that immunity is waived. A
waiver must be unequivocally expressed in statutory text and will
2. See, e.g., United States v. Kanasco, Ltd., 123 F.3d 209,
210 n.1 (4th Cir. 1997) ("Simply because the government destroys
or otherwise disposes of property sought by the movant, the
motion is not thereby rendered moot."); United States v. Solis,
108 F.3d 722, 722-23 (7th Cir. 1997) (citing Mora with approval);
Mora v. United States, 955 F.2d 156, 159 (2d Cir. 1992) ("The
government suggests . . . that since it is without possession of
appellant's property his claim is moot. Quite the contrary.");
United States v. Martinson, 809 F.2d 1364, 1368 (9th Cir. 1987)
(explicitly declining to follow district court cases that hold
that damages are unavailable in a proceeding based on a motion
for return of property).
3

not be implied. See Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct.
2092, 2096 (1996) (citations omitted). Rule 41(e) makes no
provision for monetary damages, and we will not read into the
statute a waiver of the federal government's immunity from such
damages. Numerous Supreme Court decisions hold that courts should
construe statutes against waiver unless Congress has explicitly
provided for it. See, e.g., Lane, 116 S. Ct. at 2097 (refusing to
allow monetary damages under § 504(a) of the Rehabilitation Act
of 1973, 29 U.S.C. § 791 et seq., where the relevant statutory
provisions failed to provide the "clarity of expression necessary
to establish a waiver of the Government's sovereign immunity
against monetary damages"); United States v. Nordic Village,
Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011, 1014-15 (1992)
(holding that although the contemporary § 106(c) of the
Bankruptcy Code waived sovereign immunity, "it fail[ed] to
establish unambiguously that the waiver extend[ed] to monetary
claims"). However compelling his case, Peña may not maintain a
suit against the United States for monetary damages under Rule
41(e).
III
Nonetheless, we cannot stop at affirming the district
court's decision. Peña, a pro se party, had no opportunity to
amend his pleadings before the district court properly denied his
41(e) motion for return of property. Peña had filed a motion
describing the deprivation of his personal property, which when
combined with the government's assertion that it had destroyed
4

the property, presented the facts necessary for an action under
Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999
(1971). Under Federal Rule of Civil Procedure 15(a), Peña could
have amended his pleadings to state that Bivens complaint. Our
affirming the denial without leave to amend would have the same
effect as a 12(b)(6) dismissal of a pro se complaint.3 That is,
the district court denied Peña's motion on August 8, 1996, making
that the latest possible date upon which Peña could first have
become aware that the government had destroyed his property. As
the statute of limitations on a Bivens claim would be two years,
see Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982)
(stating that the applicable state statute of limitations governs
in a Bivens action); Aggartwal v. Secretary of State, 951 F.
Supp. 642, 649-50 (S.D. Tex. 1996) (applying Texas's two-year
statute of limitations to a Bivens action), Peña could not file
an original Bivens action today. Under Federal Rule of Civil
Procedure 15(c)(2),however, the amendments Peña makes to his
pleadings will relate back to the date of the original pleading,4
3. Because such dismissals are disfavored, a court should
grant a pro se party every reasonable opportunity to amend. See,
e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-
96 (1972) (reversing 12(b)(6) dismissal of complaint where it did
not appear beyond doubt that the plaintiff could prove no set of
facts that would entitle him to relief); Bazrowx v. Scott, 136
F.3d 1053, 1054 (5th Cir. 1998) (per curiam) (noting that a
district court generally errs in dismissing a pro se complaint
for failure to state a claim without giving the plaintiff an
opportunity to amend).
4. Rule 15(c)(2) states: "An amendment of a pleading
relates back to the date of the original pleading when . . . the
claim . . . asserted in the amended pleading arose out of the
same conduct, transaction, or occurrence set forth or attempted
5

filed in March 1996, and Peña will have the opportunity to seek
redress for his loss.
IV
Accordingly, the order of the district court denying Rule
41(e) relief is affirmed and the matter is returned to the
district court for proceedings not inconsistent with this
opinion.
to be set forth in the original pleading . . . ." Although Peña's
original motion made no reference to the government's destruction
of his property, it referenced the conduct that would underlie a
Bivens action--i.e., the government's depriving him of his lawful
property.
6