The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
On March 8, 2006, John Bonilla ("plaintiff") filed a motion*fn1 pursuant to Federal Rule of Criminal Procedure 41(e), now 41(g),*fn2 seeking the return from respondent United States ("defendant" or "government") of certain items of property taken from his vehicle and home. Defendant moved to dismiss plaintiff's action and its motion was referred to the Magistrate Judge, who issued a Report and Recommendation on September 21, 2007. Now before this Court are plaintiff's objections to the Report and Recommendation. For the reasons set forth below, I adopt the Magistrate's Report and direct the government to return the items set forth below. Plaintiff's action against the government is dismissed to the extent it seeks the return of the remaining items that were destroyed by the government. Finally, I deny plaintiff's request to amend the caption without prejudice to plaintiff's commencement of a new action against the individual FBI agents pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The following facts are taken from the submissions of the parties in connection with this motion.
On August 24, 1998, FBI agents, investigating plaintiff in connection with the hijacking of trucks containing electronics and computer equipment from plaintiff's former employer, Barney's Electronics ("Barney's"), seized stolen electronic equipment from plaintiff's vehicle pursuant to a search warrant. Declaration of FBI Special Agent George Wright ("Wright Decl.") at ¶¶ 3-4, 12-13; Plaintiff's Motion for Return of Property, filed March 8, 2006 ("Pl. Mot."), ¶ 3.*fn3 Plaintiff was thereafter arrested on June 16, 1999. Wright Decl. ¶ 5; Pl. Mot. ¶ 1. At the time of his arrest, property was also seized from plaintiff. Pl. Mot. ¶ 2.
On October 19, 1999, plaintiff pleaded guilty to obstructing the movement of articles in commerce, in violation of 18 U.S.C. § 1951, and to carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). On December 7, 2000, defendant was sentenced to a term of imprisonment of 14 years. See United States v. Bonilla, 99-CR-0660 (CPS), Docket Entry # 38.
On March 8, 2006, plaintiff commenced this action seeking the return of: 1) the items seized at the time of his arrest, which he describes as "a number of personal items, not limited to; his credit cards, drivers license, Business [sic] cards, and numerus receipt [sic], ect. [sic],"*fn4 Pl. Mot. ¶ 2; and 2) the items seized from his vehicle on August 24, 1998.*fn5 Pl. Mot. ¶ 3.
On June 15, 2006, the government responded to plaintiff's motion stating it had no objection to returning the personal items seized at the time of plaintiff's arrest. Government Memorandum of Law in Support of its Motion to Dismiss the Movant's Complaint ("Gov't Mem."), at 3-4. It also expressed no objection to returning the Valentine's Day card and the BQE Auto Auction receipt, which had been seized from plaintiff's vehicle. Id. at 4. The government stated, however, that the remaining items seized from plaintiff's vehicle were stolen electronics equipment and were destroyed on April 10, 2002. Id. at 4-5. It argued, accordingly that the remainder of plaintiff's motion should be dismissed, pursuant to Fed. R. Civ. Pro. 12(b)(1), because sovereign immunity deprived the Court of jurisdiction over claims for the return of property which was no longer available for return. Id. at 5-9.
On June 30, 2006, plaintiff filed a "traverse," asking that his action be recaptioned as "John Bonilla v. Unknown Agents of the FBI." Pl. Traverse at 1. He further argued he was entitled to damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against these unknown agents of the FBI for the destroyed property. Id. at 1-2.
On September 21, 2007, the Magistrate Judge issued a Report and Recommendation ("Rep. & Rec.") concluding that the government should be directed to return the personal property seized at the time of defendant's arrest, the Valentine's Day card, and the BQE Auto Auction receipt to plaintiff's designee. Rep. & Rec. at 8. She further recommended that the government's motion to dismiss plaintiff's action for the return of the destroyed property be granted. Id. On October 5, 2007, plaintiff filed objections to the Magistrate Judge's Report and Recommendation.
Federal Rule of Civil Procedure 72 provides that when ruling on an objection to a Magistrate Judge's report and recommendation, which is dispositive of a case:
[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or ...