Free Order on Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-01073-ZLW-OES

Document 52

Filed 07/29/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk Civil Action No. 04-cv-1073-ZLW-OES SERGEANT JAVIER SANTOS, U.S. Army, Plaintiff, v. THE UNITED STATES ARMY, Defendant. __________________________________________________________________ ORDER OF TRANSFER __________________________________________________________________ Plaintiff Sergeant Javier Santos, a military prisoner at Ft. Leavenworth, Kansas, filed a Motion For The Return Of Property pursuant to Rule 41 of the Federal Rules of Criminal Procedure, naming The United States Army and Colorado Springs Police Department as Defendants, and seeking the return of non-contraband personal property that was seized when he was arrested by Defendant Colorado Springs Police Department. Defendant Colorado Springs Police Department was dismissed by order dated January 12, 2005, based upon an earlier Recommendation entered pursuant to D.C.COLO.LR 72.1 by Magistrate Judge O. Edward Schlatter. The matter now before this Court is a Recommendation Of United States Magistrate Judge filed June 14, 2005, in which the Magistrate Judge recommends that Defendant United States Army's Motion To Dismiss be granted and further

Case 1:04-cv-01073-ZLW-OES

Document 52

Filed 07/29/2005

Page 2 of 3

recommends that this action be transferred to the United States Court of Federal Claims. Plaintiff has filed no objections. The Court, after careful consideration, agrees with the Magistrate Judge' s conclusion that this Court lacks subject matter jurisdiction in this action and that transfer of this case to the United States Court of Federal Claims is warranted pursuant to 28 U.S.C. § 1631. However, the Court finds that transfer in lieu of, rather than in addition to, dismissal is the appropriate procedure here. Accordingly, the Recommendation of the Magistrate Judge is accepted and adopted to that extent, and it is ORDERED that the Recommendation of the Magistrate Judge that this action be transferred to the United States Court of Federal Claims is accepted and adopted and hereby made an order of this Court. It is FURTHER ORDERED that the Clerk of this Court shall transfer the case file herein to the Clerk of the United States Court of Federal Claims for final disposition. It is FURTHER ORDERED that Defendant United States Army's Motion To Dismiss is denied as moot. It is

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Case 1:04-cv-01073-ZLW-OES

Document 52

Filed 07/29/2005

Page 3 of 3

FURTHER ORDERED that, immediately upon transfer of this matter to the Court of Federal Claims, this case will be closed on the docket of this Court. DATED at Denver, Colorado, this 29 day of July, 2005. BY THE COURT:

S/ Zita L. Weinshienk _________________________________ ZITA L. WEINSHIENK, Senior Judge United States District Court

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