The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On September 1, 2008, Plaintiff Ismael Genao filed a Second Amended Complaint withdrawing his earlier claims and seeking, pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, the return of his property seized pursuant to a search warrant by Defendant United States of America. (Sec. Amd. Compl. ¶ 1.) Plaintiff states that the following items were seized pursuant to the search warrant: (1) one computer with two hard drives, (2) two separate external hard drives, (3) 118 compact discs, (4) one Magnavox camcorder, (5) three boxes of VHS tapes, (6) one Hewlett-Packard pocket PC, (7) one bag containing "sexual aids," (8) one box of condoms, (9) two telephone bills, (10) one black wallet containing photo identification and credit cards, (11) one club flyer, and (12) a poem Genao wrote while in high school. (Id. ¶ 2.) Plaintiff acknowledged that at trial the government maintained that the four hard drives contain encrypted files which contained contraband (child pornography). He agreed that the encrypted files should be deleted beyond recovery and requested that the hard drives are returned to him after he has been released from federal custody. (Id. ¶ 4-6.) He also asked that any property that has been lost or stolen be replaced with an item of equal or greater value, that the government be ordered to destroy all photographs taken of the interior of his home, and that the government return the remaining property once he is released from custody. (Id. ¶ 6.)
Plaintiff was sentenced on March 15, 2005 to 160 months (13 years and 4 months) of imprisonment on one count for advertising in a chat room the existence of a file server he operated that exchanged visual depictions of minors engaging in sexual activity in violation of 18 U.S.C. § 2251(c) and one count for using a computer to trade images of minors engaged in sexually explicit conduct in interstate and foreign commerce in violation of 18 U.S.C. § 2252 A(a)(1). Much of the property Plaintiff seeks to have returned was seized pursuant to a search warrant executed on April 14, 2003. The Court of Appeals upheld his conviction on March 16, 2007.
On March 13, 2009, the Defendant filed a Motion to Dismiss the Second Amended Complaint supported by a Declaration of Stephen R. Tortorella, a Special Agent for the Federal Bureau of Investigation (FBI), dated March 4, 2009 ("Tortorella Decl.") and a Declaration of Barbara Serrato, Inmate Systems Manager of the Federal Bureau of Prisons, dated March 10, 2009 ("Serrato Decl.").
The motion to dismiss argued that the complaint should be dismissed in so far as Plaintiff:
1) requested that the Government be forced to store his property for the duration of his incarceration;
2) requested that the Court:
a) determine that the hard drives from Plaintiff's computer, the two external hard drives, and certain CDs seized by the FBI and introduced at trial are contraband and therefore are not eligible for return; and
b) order Plaintiff to designate an individual to retrieve his non-contraband property from the FBI within thirty days of entry of such order.
The supporting Declaration of Agent Tortorella states that the FBI has custody of the following items:
1. One computer containing two hard drives
2. One Quantum Fireball External Hard Drive, #376902069315
3. One Maxtor 541D Hard Drive, #B16G79EZ999
4. One Hewlett-Packard Pocket PC, ...