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SEBER v. UNGER

March 15, 1995

KENNETH EUGENE SEBER, Plaintiff,
v.
MICHAEL A. UNGER, COOK COUNTY SHERIFF'S OFFICE, UNITED STATES DRUG ENFORCEMENT AGENCY, and JOHN & JANE DOES, Defendants.



The opinion of the court was delivered by: RUBEN CASTILLO

 Plaintiff Kenneth E. Seber ("Seber") seeks declaratory and monetary relief under 42 U.S.C. § 1983 against the United States Drug Enforcement Administration ("D.E.A."), unidentified D.E.A. agents John and Jane Does (the "Doe defendants"), the Cook County Sheriff's Office *fn1" and Seber's former attorney, Michael A. Unger ("Unger") in connection with the forfeiture of $ 9,800 in U.S. currency. Seber also appears to assert state-law claims against Defendant Unger.

 The D.E.A. moves to dismiss the complaint against it for lack of subject matter jurisdiction, insufficiency of process, and failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(1), (4), and (6), respectively. Unger moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). *fn2" Neither the Doe defendants nor the Cook County Sheriff's Office has been served with process. For the reasons stated below, the D.E.A.'s motion to dismiss is granted and Unger's motion for judgment on the pleadings is granted. However, Seber is granted until May 15, 1995, to file an amended complaint with respect to his state-law claims against Unger.

 FACTUAL BACKGROUND

 Seber's well-pleaded factual allegations, accepted as true on a motion to dismiss, see Gillman v. Burlington Northern R.R. Co, 878 F.2d 1020, 1022 (7th Cir. 1989), are as follows. In August of 1992, Seber returned to the United States from a trip abroad. When he re-entered the United States through O'Hare International Airport in Chicago, Illinois, Seber was stopped by agents of the U.S. Customs Service. Compl. PP 8-10. Customs Service agents detained Seber after determining that he was wanted in Virginia on outstanding arrest warrants. Id. P 12. Seber was then transported to the Cook County Jail. While processing Seber, a Cook County Sheriff's deputy found that Seber was in possession of $ 9,800 in United States currency. Id. P 13. The Customs agents stated that they were aware of this fact and that it was not illegal to have money. The deputy stated that Seber may be able to make bail. Id. A Customs agent responded that there was nothing he could do, and that only the D.E.A. could seize the money with probable cause. Id. P 14. The deputy then called the D.E.A. office in Chicago. Id. P 15. Approximately one hour later, an unidentified female D.E.A. agent seized the currency in order to prevent Seber from making bond in the event that a bond were set. Id. P 16. In response to an inquiry by Seber concerning why his money was being confiscated, the D.E.A. agent answered that Seber was "under investigation" at the request of the Cook County Sheriff's Office. Id. PP 17, 18.

 Subsequently, Seber retained Unger to recover his money. Seber paid Unger an initial retainer of $ 1,000.00 dollars. Unger told Seber that he could recover the money "no problem." Id. PP 19, 20. Unger asked Seber about his employment and whether he retained receipts. Seber informed Unger that he earns approximately $ 50,000 per year as a roofer and that he had plenty of receipts which he retains for tax purposes. Unger told Seber that if Seber sent him the receipts, he could definitely recover Seber's money within thirty days. Id. PP 20-22. Seber mailed Unger the receipts. Id. P 23. Approximately, three weeks later, Unger called Seber and stated that he needed an additional $ 1,000.00 for filing fees-stating that he could not get on the court docket without $ 1,000.00. Id. P 24. Seber sent Unger an additional $ 1,000.00. Id. P 25. Seber alleges that Unger never had any intention of attempting to recover Seber's money and that Unger was merely attempting to "take the plaintiff for as much money as he possibly could before the plaintiff went to prison." Id. P 27. Seber contends that Unger perpetrated a fraud against him by asserting that he could recover Seber's money "no problem" and by telling Seber that the clerk of court needed an additional $ 1,000.00 in filing fees to get Seber's case on the docket. Id. P 30. Seber also alleges that "Unger has plotted and planned to deprive plaintiff of access to the court, and Due Process." Id. P 31. Seber alleges that he has suffered many physical symptoms-including weight loss, ulcers, and vomiting-as a result of Unger's deception. Id.

 With respect to the D.E.A., Seber alleges that the D.E.A. committed a "Due Process violation" by "knowingly confiscating plaintiff's money without cause and with the direct intention of depriving plaintiff of the ability to bond out of jail." Id. P 32. *fn3"

 Seber prays for: (1) a declaratory judgment that the defendants violated his Constitutional rights; (2) compensatory damages in the amount of $ 12 million from defendant Unger, $ 100,000 from the D.E.A., and $ 250,000 from the Cook County Sheriff's Office; (3) punitive damages in the amount of $ 12 million from defendant Unger and $ 1 million from each of the remaining defendants; (4) $ 9,800.00 plus interest from the D.E.A.; (4) $ 2,000.00 from Unger; (5) $ 1,500.00 plus interest from the Cook County Sheriff's Office (or the return of his property undamaged); and (6) costs of this action.

 DISCUSSION

 A. Claims Against the D.E.A.

 Seber's Section 1983 Claims

 Seber purports to assert a § 1983 claim against the D.E.A. In turn, the D.E.A. moves to dismiss for failure to state a claim upon which relief can be granted.

 A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). In considering a Rule 12(b)(6) motion, the court must accept all well-pleaded facts as true, draw all reasonable inferences in favor of the plaintiff, and resolve all ambiguities in favor of the plaintiff. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992). The federal notice pleading system does not favor dismissal for failure to state a claim. Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir. 1988). The only question for the court under Rule 12(b)(6) is whether relief is possible under any set of facts that could be established consistent with the allegations. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Further, a complaint need not set out any legal theory; and, an incorrect legal theory is not fatal. Bartholet, 953 F.2d at 1078.

 By its terms, § 1983 provides aggrieved individuals an ability to redress deprivations of Constitutional rights where the deprivation occurs under color of state law. See 42 U.S.C. § 1983. It follows, of course, that "the statute deals only with those deprivations of rights that are accomplished under the law of 'any State or Territory.'" District of Columbia v. Carter, 409 U.S. 418, 423-25, 34 L. Ed. 2d 613, 93 S. Ct. 602, reh'g denied 410 U.S. 959, 35 L. Ed. 2d 694, 93 S. Ct. 1411 (1973). Thus, a section 1983 claim may only lie when asserted against those acting under color of state or territorial law. Consequently, "actions of the Federal Government and its officers are beyond the purview" of both the fourteenth amendment [for which § 1983 was enacted to enforce] and § 1983. Id. at 424; see also Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987); Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981), cert. denied 454 U.S. 1145, 71 L. Ed. 2d 297, 102 S. Ct. 1006 (1982). Because the D.E.A. is a federal agency acting under color of federal law there is no valid basis for Seber's § 1983 claim against it. *fn4" ...


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