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.
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.
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.
Stonecipher, 653 F.2d at 401 (finding no § 1983 cause of action against IRS because it is a federal agency and its agents performed no acts under color of state law). Accordingly, we dismiss Seber's § 1983 claims against the D.E.A. with prejudice.
Collateral Attack Upon Administrative Forfeiture Proceedings
Seber also seeks recovery of the $ 9,800 in U.S. currency seized by the D.E.A. The D.E.A. moves for dismissal of this claim for lack of subject matter jurisdiction.
When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993). A party who invokes the jurisdiction of a federal court must allege all facts necessary to give the court jurisdiction of the subject matter. See Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987) (noting that it is the plaintiff's burden to establish that jurisdictional requirements have been met); Western Transp. Co. v. Couzens Warehouse & Distribs. Inc., 695 F.2d 1033, 1038 (7th Cir. 1982) ("The party alleging jurisdiction must support its allegation with competent proof of jurisdictional facts."). The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether, in fact, subject matter jurisdiction exists. Capitol Leasing, 999 F.2d at 191 (citing Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)); see also Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir. 1987). The court must dismiss a case without reaching the merits if it concludes that it has no jurisdiction. Shockley v. Jones, 823 F.2d 1068, 1070 n.1 (7th Cir. 1987).
Seber's currency was administratively forfeited on March 26, 1993, pursuant to 21 U.S.C. § 881, 19 U.S.C. §§ 1607-1618. See Snider Decl. P 4(g); Mem. Supp. Def.'s Mot. Dis., Ex. 10, (Declaration of Forfeiture). The D.E.A. sent a notice of seizure letter to Seber's address on October 5, 1992 and published the seizure in USA Today for three consecutive weeks beginning on October 14, 1992. See Snider Decl. PP 4(b), (c). Seber submitted an untimely claim for the seized currency and was represented by Defendant Unger in his efforts to recover his currency. See Mem. Supp. Def.'s Mot. Dis., Ex. 4-6, 9. The effect of such an administrative forfeiture is set forth at 19 U.S.C. § 1609(b) which provides that "[a] declaration of forfeiture under this section shall have the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States."
The Seventh Circuit's decision in Linarez v. U.S. Dep't of Justice, 2 F.3d 208 (7th Cir. 1993), compels the conclusion that this Court is without subject matter jurisdiction over Seber's collateral attack upon the administrative forfeiture. With regards to seizures of U.S. currency of less than $ 500,000, the Seventh Circuit held that a district court may be divested of jurisdiction by the actions of a federal agency:
By initiating administrative forfeiture proceedings
pursuant to 19 U.S.C. § 1607, the agency that seized the property divests the district court of its jurisdiction over the forfeiture proceedings. The district court remains without jurisdiction over the forfeiture unless an interested party files a claim of interest and posts a bond with the agency within twenty days from the date of the first publication of the notice of seizure pursuant to 19 U.S.C. § 1608 and 21 C.F.R. § 1316.76 (1992). If the claim is not filed and the bond not posted, the forfeiture process continues administratively, without judicial intervention. See 19 U.S.C. § 1609(a); 21 C.F.R. § 1316.77(a) (1992).