United States District Court, N.D. Illinois, Eastern Division
September 21, 2005.
MICHAEL ANTONELLI, Plaintiff,
TINA SHERROW, et al. Defendants.
The opinion of the court was delivered by: JOHN NORDBERG, Senior District Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, a federal prisoner, has brought this pro se
civil action pursuant to the Federal Tort Claims Act,
28 U.S.C. § 2671, et seq. and Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). The plaintiff claims that the
defendants, the United States Government, two federal agents, and
an Assistant U.S. Attorney for the Northern District of Illinois,
wrongfully seized a computer belonging to the plaintiff from his
ex-wife's home and attempted to perpetrate a fraud on the court
in the ensuing civil proceedings. This matter is before the court
for consideration of the defendants' combined motions to dismiss
and for summary judgment, as well as the plaintiff's cross-motion
for summary judgment. For the reasons stated in this order, the
defendants' motions are granted and the plaintiff's motion is
The two Special Agents with the Bureau of Alcohol, Tobacco,
Firearms and Explosives have moved for summary judgment. Summary
judgment "shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Prime Northgate Plaza Ltd.
Partnership v. Lifecare Acquisitions Corp., 985 F. Supp. 815,
817 (N.D. Ill. 1997). In determining whether factual issues
exist, the court must view all the evidence and draw all
reasonable inferences in the light most favorable to the
non-moving party. Walker v. Northeast Regional Commuter Railroad
Corp., 225 F.3d 895, 897 (7th Cir. 2000).
However, Rule 56(c) "mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322. "Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no `genuine issue for trial.'"
Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 393
(7th Cir. 1997), cert. denied, 523 U.S. 1118 (1998). The
court may grant summary judgment if facts are in dispute, so long
as those facts are not outcome determinative. Matter of
Wildman, 859 F.2d 553, 556 (7th Cir. 1988); Nash v.
DeTella, No. 00 C 2784, 2001 WL 1160840, *2 n. 5 (N.D. Ill. Oct.
2, 2001) (Zagel, J.)
While Fed.R.Civ.P. 56 governs the parties' summary judgment
obligations, Local Rule 56.1 (N.D. Ill.) reflects "an attempt to
make the parties' respective summary judgment obligations explicit." See Waldridge v. American Hoechst Corp.,
24 F.3d 918, 921 (7th Cir. 1994). Local Rule 56.1(b) requires
a party opposing a summary judgment motion to file a memorandum
of law, any materials or affidavits referred to in
Fed.R.Civ.P. 56(e), and a response to the movant's statement of facts.
Local Rule 56.1(b)(1)-(3). This response
shall contain . . . a response to each numbered
paragraph in the moving party's statement, including,
in the case of any disagreement, specific references
to the affidavits, parts of the record, and other
supporting materials relied upon and a statement
consisting of short numbered paragraphs, of any
additional facts that require the denial of summary
judgment, including references to the affidavits,
parts of the record, and other supporting materials
Local Rule 56.1(b)(3)(A)-(B). Failure to properly controvert a
moving party's statement of facts results in the moving party's
version of the facts being deemed admitted. Local Rule
56.1(b)(3)(B). Strict enforcement of Local Rule 56.1's
requirements has been consistently upheld by the Seventh Circuit,
as the court is not required to "scour the record in search of
evidence to defeat a motion for summary judgment." Hall v.
Bodine Elec. Co., 276 F.3d 345
, 354 (7th Cir. 2002)
(internal quotations omitted).
The plaintiff should be well versed in summary judgment
motions; the U.S. Party/Case Index reflects some 144 cases in
which he has been a party. Nevertheless, the plaintiff has failed
to comply with the requirements of Local Rule 56.1(b). His
response to the defendants' motion does not include a specific
statement of facts with citations to the record; instead, he has
provided a largely argumentative, narrative response. The
plaintiff's failure to comply with the Local Rules is not excused
by his pro se status. See Stevens v. Navistar Int'l Transp.
Corp., 244 F.Supp. 2d 906, 910 (N.D. Ill. 2002) (holding that
even though the court reads a pro se plaintiffs pleadings liberally,
pro se status does not excuse a failure to comply with Local
Rule 56.1). In any event, the basic, material facts regarding the
seizure of the plaintiff's computer are not in dispute; the
purpose of the federal agents' visit to Ms. Antonelli is
irrelevant to the question of whether they properly took
possession of the computer.
Nevertheless, because the plaintiff is proceeding pro se, the
court has considered the factual assertions he makes in his
opposing brief, as well as in his belatedly filed cross-motion
for summary judgment, but only to the extent that the plaintiff
could properly testify about the matters asserted. A witness may
not testify to a matter unless evidence is introduced sufficient
to support a finding that the witness has personal knowledge of
the matter. Fed.R.Evid. 602.
The plaintiff, Michael Antonelli, is a resident of Illinois,
but has been incarcerated in federal prison since 2001. (Amended
Complaint, ¶¶ 3, 14.) The defendants Tina Sherrow and Jeanne
Sobol were employed as Special Agents with the United States
Bureau of Alcohol, Tobacco, Firearms and Explosives [hereinafter,
"BATF"] at the time of the events giving rise to this action.
(Id., p. 2, ¶ B.) The defendant Patrick Johnson is an assistant
U.S. Attorney for the Northern District of Illinois. (Defendants'
Answer, p. 7.)
The following facts are uncontested for purposes of this motion
(or there is no genuine dispute requiring a trial): In or about
September 2001, prior to surrendering to authorities, the plaintiff delivered a computer he owned to his ex-wife, Nancy
Antonelli, for use by Ms. Antonelli and her family while the
plaintiff was incarcerated. (Amended Complaint, p. 3, ¶¶ 14-15.)
Ms. Antonelli, her son, and her son's friend used the computer
occasionally but eventually stopped using it and placed it in the
attic of their home. (Defendants' Exhibit B, Deposition of Nancy
Antonelli, at pp. 34-38.)*fn1
In 2002, the defendants Sobol and Sherrow were investigating a
bombing in the Chicago area. (Amended Complaint, p. 6, ¶ 48.) On
or about May 1, 2002, Sobol and Sherrow visited Ms. Antonelli at
her home and asked if they could interview her about the
plaintiff's possible involvement in the bombing.*fn2
(Defendants' Exhibit C, Affidavit of Nancy Antonelli, ¶ 3.) Ms.
Antonelli agreed to answer questions and was interviewed for
approximately an hour. (N. Antonelli Deposition, p. 43). The
interview took place at a picnic table outside, on her patio.
(Id., p. 44.) Ms. Antonelli has obtained a G.E.D. and has taken
about ten college courses. (Id., pp. 16-17.) Ms. Antonelli
currently works as a technical assistant at Federal Signal
Corporation. (Id., p. 18.) Her job duties include acting as a liaison between engineers designing products and the
manufacturing personnel. (Id., p. 23.)
During the interview, Ms. Antonelli informed the agents that
the plaintiff had given her a computer for the family's use while
he was incarcerated. (Id., p 88; Defendants' Exhibit C,
Affidavit of Nancy Antonelli, ¶ 4.) Ms. Antonelli additionally
stated that the computer was in her attic because she no longer
used it. (N. Antonelli Deposition, pp. 50, 88; N. Antonelli
Affidavit, ¶ 5.)
The agents asked Ms. Antonelli for permission to take the
computer and search it. (Antonelli Affidavit, ¶ 5.) Ms. Antonelli
responded that she did not want to bother to retrieve the
computer from the attic; that it was not hers to give; that she
did not feel "it was right" to turn it over to the officers; and
that, besides, she had previously searched the computer and found
nothing on it. (N. Antonelli Deposition, pp. 52-53, 91; N.
Antonelli Affidavit, ¶ 5.)
The agents indicated that they would try to get a search
warrant for the computer. (N. Antonelli Deposition, p. 54; N.
Antonelli Affidavit, ¶ 6; Plaintiff's Exhibit K, #3.) Ms.
Antonelli then threw up her hands in frustration, saying, "Nobody
is coming in my house. I haven't done a thing. I'm not involved
with him." (N. Antonelli Deposition, p. 55.) She added that she
was "not going to allow people in to tear [up her] house," which
she rents, and that she had been through embarrassment enough.
(Id., p. 56.) She then agreed to give the computer to the
agents, telling them that she did not want it back. (Id., pp.
54-55.) Ms. Antonelli maintains that she would not have consented to
the search of the computer if the agents had not mentioned the
possibility of a search warrant. (N. Antonelli Affidavit, ¶ 8.)
Based on what she had seen on television and a previous search by
local police officers, Ms. Antonelli feared that if the agents
obtained a search warrant, they would kick in her door and
ransack her home. (N. Antonelli Deposition, pp. 70-75.) However,
Ms. Antonelli admits that the defendants said nothing during the
interview to suggest that they would kick in her door, search the
home, or take anything other than the computer. (Id.)
Ms. Antonelli asked the agents to come back in a day or two to
pick up the computer, saying that it would take her a while to
retrieve it from the attic. (N. Antonelli Deposition, pp. 55-57;
N. Antonelli Affidavit, ¶ 7.) The agents agreed, ended the
interview, and left. (N. Antonelli Deposition, p. 57.)
On May 2, 2002, Sherrow returned to Ms. Antonelli's home to
pick up the computer. (N. Antonelli Deposition, p. 59-60).
Sherrow gave Ms. Antonelli a receipt for the property. (Id.; see
also Defendants' Exhibit D, "Receipt for Property and Other
At neither of these two encounters did either Sobol or Sherrow
raise their voices, threaten Ms. Antonelli, or attempt to
physically or verbally intimidate her. (N. Antonelli Deposition,
pp. 67, 75).*fn3 They spoke in "conversational tones."
(Id.) The agents did not threaten Ms. Antonelli's children. (Id., p. 69.) Ms. Antonelli
cannot say that she felt coerced into relinquishing the computer.
(Id., p. 113.)
In a certified letter dated July 5, 2002, several months after
the agents took the computer, the plaintiff sent Sherrow a letter
demanding the computer's return to Ms. Antonelli. (Amended
Complaint, ¶ 28.) The plaintiff also sent letters to the Director
of the BATF and the Inspector General of the Department of the
Treasury demanding the computer's return. (Plaintiff's Exhibits M
and N.) However, Ms. Antonelli herself never requested its
return. (N. Antonelli Deposition, p. 99.)
The plaintiff initiated this action in December 2002, naming
only Agent Sherrow and the United States as defendants in the
On April 18, 2003, after the BATF had completed its search of
the computer, Sherrow returned the computer to Ms. Antonelli.
(Plaintiff's Exhibit K, ¶ 6.) The computer was returned in the
same condition it had been in when it was taken eleven months
earlier. (N. Antonelli Deposition, pp. 78, 82.)*fn4
On or about April 24, 2003, the plaintiff filed an
administrative claim regarding the search and seizure of his
computer. (Defendants' Exhibit F, ¶ 5.) The plaintiff has admittedly never filed an administrative claim regarding the
defendant Johnson's conduct. (Plaintiff's Response to Defendants'
Combined Motions, final paragraph of p. 3.)
On July 14, 2004, the plaintiff filed an amended complaint,
adding Special Agent Sherrow and AUSA Johnson as defendants.
No material facts are in dispute, and the defendants Sherrow
and Sobol have shown that they are entitled to judgment as a
matter of law on the plaintiff's claims against them.
Furthermore, even accepting the factual allegations in the first
amended complaint as true, the court finds that the plaintiff has
failed to state either an actionable Bivens claim against the
defendant Johnson or a cognizable Federal Tort Claim against the
United States. Accordingly, the defendants' combined motions to
dismiss and for summary judgment are granted and the plaintiff's
cross-motion for partial summary judgment is denied.
I. Plaintiff's Bivens Claims Against Special Agents
Sherrow and Sobol (Counts I-IV)
The motion for summary judgment filed by the defendants Sherrow
and Sobol is granted. No material facts are in dispute and the
defendants have established that they are entitled to judgment as
a matter of law. Even viewing the record in the light most
favorable to the plaintiff, no reasonable person could find that
the defendants committed any constitutional violation or state
tort when they took possession of the plaintiffs computer.
First, the plaintiffs claims against Agent Sobol are untimely.
The statute of limitations for Section 1983 actions filed in
Illinois is two years. See 735 ILCS § 5/13-202; Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001),
citing Ashafa v. City of Chicago, 146 F.3d 459, 462 (7th
Cir. 1998). The plaintiff's claims against Sobol are based upon
the seizure of his computer in May 2002; however, he did not add
her as a defendant until he filed an amended complaint on July 8,
2004.*fn5 Because the plaintiff waited more than two years
to file suit against Sobol, his claims against her are
The plaintiff asserts that he "unequivocally did not know the
name of Agent Sobol" until after he conducted discovery. However,
in the absence of efforts on the part of the defendants to
conceal their identity from the plaintiff, he cannot avail
himself of Rule 15(c)'s provisions allowing for "relation back"
to the original complaint. In this circuit, a plaintiff cannot
invoke the relation back principles of Rule 15(c) to name new
defendants after the statute of limitations has expired. See
King v. One Unknown Federal Correctional Officer, 201 F.3d 910,
914-16 (7th Cir. 2000) (plaintiffs belated identification of
proper defendant in a Bivens action would not relate back to
timely-filed complaint). "It is equally well established that
Rule 15(c)(3) does not permit relation back where . . . there is
a lack of knowledge of the proper party." Baskin v. City of Des
Plaines, 138 F.3d 701, 704 (7th Cir. 1998) (internal
citations omitted). Regardless, irrespective of concerns of timeliness, the
plaintiff has no viable cause of action against the defendants
Sobol and Sherrow because the agents obtained valid, third-party
consent from Ms. Antonelli to take the computer.
While a warrantless search ordinarily violates the Fourth
Amendment, see Payton v. New York, 445 U.S. 573, 586 (1980), a
well settled exception to this general rule permits authorities
to conduct a search without a warrant if they obtain voluntary
consent from: (a) the individual whose property is to be
searched, Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973);
(b) a third party possessing common authority or joint control
over the premises, Florida v. Jimeno, 500 U.S. 248, 249-50
(1991); or (c) an individual with the apparent authority to
consent to the search. Illinois v. Rodriguez, 497 U.S. 177, 187
(1990); see also United States v. Saadeh, 61 F.3d 510, 517
(7th Cir. 1995).
As noted above, voluntary consent may be given by a third party
who possesses common authority over the property. United States
v. Matlock, 415 U.S. 164, 169-71 (1974); United States v.
Aghedo, 159 F3d. 308, 310-11 (7th Cir. 1998). "The consent
of one who possesses common authority over the premises or
effects is valid as against the absent, nonconsenting person with
whom that authority is shared." Matlock, 415 U.S. at 170.
Similarly, where a party authorizes the joint use of property,
the joint user has the authority to consent to the search of the
entire property. United States v. Strache, 202 F.3d 980, 985
(7th Cir. 2000); Frazier v. Cupp, 394 U.S. 731, 739 (1969).
It does not matter if the person who gives consent does not own
the item in question; the issue is whether the consenting individual had common authority over the item. United States v.
Brown, 328 F.3d 352, 356, n. 1 (7th Cir. 2003), cert.
denied, 540 U.S. 1113 (2004) ("[u]se of and access to the
property are the touchstones of authority") (citations omitted).
In this case, it is undisputed that the plaintiff left his
computer with his ex-wife for her and her family to use while he
was incarcerated. Under these circumstances, Ms. Antonelli had
actual authority to consent to the search and seizure of the
computer. Compare United States v. Smith, 27 F.Supp. 2d 1111,
1115 (C.D. Ill. 1998) (consent search upheld where housemate
allowed police to search computer in bedroom which housemate
occasionally used in owner's absence); United States v.
Robinson, 479 F.2d 300, 302 (7th Cir. 1973) (girlfriend
could allow police to search defendant's property left in
Furthermore, even assuming arguendo that Ms. Antonelli lacked
actual authority, she had apparent authority to consent to
the seizure of the computer. In determining whether an individual
has apparent authority, the issue is whether the individual who
allows the search projects "an aura of authority," and whether it
was reasonable for the police to believe the individual had the
authority to consent. United States v. Saadeh, 61 F.3d 510, 517
(7th Cir. 1995). Although the plaintiff argues that he had
not given Ms. Antonelli permission to use the hard drive and that
he demanded the computer's return after discovering that it had
been seized, those details do not vitiate Ms. Antonelli's actual
or apparent authority to consent to the search of the entire
computer, including the hard drive she was allegedly not supposed
to use. See Frazier, 394 U.S. at 739 (by allowing a third party
to use one compartment of duffel bag, the owner assumed the risk that the
third party would let others search the entire bag).
There is no triable issue as to whether Ms. Antonelli's consent
was voluntary. In assessing whether a consent to search was
voluntary, the court examines several factors, including: (1) the
consenting individual's age, intelligence, and education; (2)
whether the person was advised of his or her constitutional
rights; (3) how long the person was detained before giving
consent; (4) whether the consent was immediate or was prompted by
authorities' repeated requests; (5) whether any physical coercion
was used to gain consent; and (6) whether the person was in
police custody when she gave her consent. United States v.
Raibley, 243 F.3d 1069, 1075-76 (7th Cir.), cert. denied,
534 U.S. 876 (2001). It is true, as the plaintiff points out,
that in the context of a criminal case, the government bears the
burden of proving by a preponderance of the evidence that consent
was freely and voluntarily given. United States v. Grap,
403 F.3d 439, 443 (7th Cir. 2005). However, in a civil rights
action, the plaintiff carries the ultimate burden of proof that a
consent to search was involuntary. Valance v. Wisel,
110 F.3d 1269, 1278-79 (7th Cir. 1997).
Here, the plaintiff has failed to make a triable showing that
Ms. Antonelli consented under duress to the taking of the
computer. Ms. Antonelli is an adult with a college education and
a professional job; her deposition suggests an above average
intelligence. Ms. Antonelli was not herself under investigation.
She was not detained in any way. She had freely agreed to speak
to the federal agents in a conversation that took place on her
patio and that lasted approximately forty-five minutes. At no time did the
defendants raise their voices or threaten Ms. Antonelli in any
way; at most, they told her that they would seek a search warrant
if she refused consent. In addition, after consenting to the
search and seizure, Ms. Antonelli did not turn the computer over
until the next day; thus, she had ample time to reconsider her
consent or to consult an attorney. Indeed, only the plaintiff and
not Ms. Antonelli claims that the consent was involuntary.
Baseless threats to obtain a search warrant may render consent
involuntary. United States v. White, 979 F.2d 539, 542 (7th
Cir. 1992), citing United States v. Talkington, 843 F.2d 1041,
1049 (7th Cir. 1988). When the expressed intention to obtain
a warrant is genuine, however, and not merely a pretext to induce
submission, it does not invalidate consent. White,
979 F.2d at 539, citing United States v. Duran, 957 F.2d 499, 502 (7th
Cir. 1992), inter alia. In this case, the totality of the
circumstances show that Ms. Antonelli's consent was voluntary,
There is no evidence that the defendants intended to coerce Ms.
Antonelli through empty threats. Ms. Antonelli stated in her
deposition that there was some type of exchange between the
agents where one asked the other, "Can we get a search warrant?"
and the second agent responded, "Yes." (N. Antonelli Deposition,
p. 54.) Under the circumstances of this case, that parley did not
approach the level of a threat. The defendants' mere allusion to
the possibility of a search warrant did not rise to the level of
coercion, notwithstanding Ms. Antonelli's subjective fears about
the potentially intrusive nature of such a search. Ms. Antonelli undoubtedly experienced the vague fear and
discomfort that many individuals would feel speaking with law
enforcement officers; it is also understandable that she resented
being dragged into a criminal investigation concerning her
ex-husband. See N. Antonelli Deposition at p. 105: When the
AUSA deposing Ms. Antonelli asked, "Are you saying I'm
intimidating you?" she responded, "I'm sick of the whole
situation. . . . Doesn't involve me." "Just the fact that they
[agents] were there" at her home and asking questions about a man
she "didn't have anything to do with" made her feel harassed and
indignant. (Id., pp. 68, 77.) However, the record does not
support an inference that her will was overborne by the agents.
Compare United States v. White, 979 F.2d 539, 542 (7th Cir.
1992) (fact that suspect was in her own living room rather than
in custody was evidence that there was no undue coercion;
furthermore, an expressed intention to obtain a search warrant if
refused consent does not necessarily negate consent); see also
United States v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994).
The plaintiff's assertion that the defendants resorted to the
threat of a search warrant as pretext is entirely speculative, as
the record does not reflect what evidence the agents may have
gathered linking him to the bombing.
The plaintiff's conspiracy claim against Special Agents Sherrow
and Sobol likewise fails. There can be no cause of action for
conspiracy if there is no underlying constitutional violation.
Thurman v. Homewood Police Officers, No. 03 C 8950, 2005 WL
1564975, at *4 (N.D.Ill.Jun. 02, 2005) (Moran, J.), citing
Lesser v. Braniff Airways, Inc., 518 F.2d 538, 540 (7th Cir.
1975). For the reasons discussed in preceding paragraphs, no jury
could conclude based on the evidence that the defendants infringed on the
plaintiff's constitutional rights in searching and seizing his
computer. Consequently, there can be no actionable claim for
In sum, no reasonable finder of fact could find that Ms.
Antonelli's consent to the search of the computer was
involuntary. Nor could a reasonable person conclude that Ms.
Antonelli lacked actual or apparent authority to consent to the
taking. Accordingly, summary judgment is granted in favor of the
defendants Sobol and Sherrow.
II. Plaintiff's Claims Against Assistant U.S. Attorney Patrick
Johnson (Count V)
In Count V, the plaintiff charges that AUSA Patrick Johnson
violated the plaintiff's right to due process by attempting to
induce Nancy Antonelli to perjure herself in this case. The
defendant has moved to dismiss that count for failure to state a
It is well established that pro se complaints are to be
liberally construed. Haines v. Kerner, 404 U.S. 519, 520
(1972), reh'g denied, 405 U.S. 948 (1972); see also McCormick
v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). They
can be dismissed for failure to state a claim only if it appears
"beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
Haines, 404 U.S. at 521; Zimmerman v. Tribble, 226 F.3d 568,
571 (7th Cir. 2000). Fact pleading is not necessary to state
a claim for relief. Thompson v. Washington, 362 F.3d 969,
970-71 (7th Cir. 2004). To satisfy the notice pleading
requirements of Fed.R.Civ.P.8(a)(2), the plaintiff need only
state his legal claim and provide "some indication . . . of time
and place." Id. at 971. When considering whether to dismiss a complaint for failure to
state a claim upon which relief can be granted, the court takes
the allegations in the complaint as true, viewing all facts as
well as any inferences reasonably drawn therefrom in the light
most favorable to the plaintiff. Autry v. Northwest Premium
Services, Inc., 144 F.3d 1037, 1039 (7th Cir. 1998).
Dismissal should be denied whenever it appears that a basis for
federal jurisdiction in fact exists or may exist and can be
stated by the plaintiff. Jones v. Edgar, 3 F.Supp.2d 979, 980
(C.D. Ill. 1998).
Here, even accepting the plaintiff's factual allegations as
true, the court finds as a matter of law that the plaintiff has
no viable claim against the defendant Johnson. An attempt to
violate constitutional rights is not actionable; there must be an
actual violation of the right. Andree v. Ashland County,
818 F.2d 1306, 1311 (7th Cir. 1987). "[T]he mere attempt to
deprive a person of his [constitutional] rights is not, under
usual circumstances, actionable under section 1983." Holt Cargo
Systems, Inc. v. Delaware River Port Authority,
20 F.Supp.2d 803, 834 (E.D. Pa. 1998), quoting Andree. The plaintiff cannot
recover damages against Johnson for attempting to persuade Ms.
Antonelli to lie.
Furthermore, a claim based on perjured testimony is barred by
absolute immunity. Briscoe v. Lahue, 460 U.S. 325 (1983);
House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992). "Even
a prosecutor's knowing use of perjured testimony at trial, while
it may require reversal of the conviction . . . nevertheless
falls within the scope of absolute immunity." Rankins v.
Winzeler, No. 02 C 50507, 2003 WL 21058536, *4 (N.D. Ill. May 9,
2003) (Reinhard, J.). Consequently, the plaintiff's claim that the defendant Johnson
attempted to induce the plaintiff's ex-wife to commit perjury is
dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state
III. The Plaintiff's Claims Under the Federal Tort Claims Act
The record does not make clear whether the plaintiff completely
exhausted administrative remedies regarding the seizure of his
computer prior to filing his first amended complaint. The Federal
Tort Claims Act [hereinafter, "FTCA"] mandates that "[a]n action
shall not be instituted . . . unless the claimant shall have
first presented the claim to the appropriate Federal agency and
his claim shall have been finally denied by the agency in writing
. . ." 28 U.S.C. § 2675(a); McNeil v. United States,
508 U.S. 106, 107 (1993); Carter v. Social Sec. Field Office, No. 02 C
5526, 2004 WL 609316, at *4 (N.D. Ill. Mar. 22, 2004) (Guzmán,
In the case at bar, the plaintiff filed an administrative claim
regarding the seizure of his computer about five months after he
initiated this action. Neither party has conclusively established
whether the plaintiff completed the appeal process after filing a
claim with the BATF. The court will assume for purposes of this
motion that the plaintiff did exhaust the administrative process
prior to filing his amended complaint and that his claim is
therefore reviewable in federal court. See Barnes v. Briley,
___ F.3d. ___, 2005 WL 2008226, at *4 (7th Cir. slip op. Aug. 23, 2005) (prisoner plaintiff satisfied the
PLRA exhaustion requirement and thus was able to raise new,
properly exhausted claims in his amended complaint).
Nevertheless, the court finds the plaintiff's FTCA claims to be
without arguable merit.
A. Abuse of Process
Under Illinois law, the tort of abuse of process requires proof
of two elements: (1) the existence of an ulterior motive or
purpose; and (2) some act in the use of the legal process not
proper in the regular course of the proceedings. International
Union of Operating Engineers v. Lowe Excavating Co., Inc., No.
98 C 7956, 1999 WL 350650, *3 (N.D. Ill. May 21, 1999) (Kocoras,
J.), citing Podolsky v. Alma Energy, Corp., 143 F.3d 364, 372
(7th Cir. 1998); Neurosurgery and Spine Surgery, S.C. v.
Goldman, 339 Ill. App. 3d 177, 183 (Ill.App. 2003). Because the
tort of abuse of process is not favored under Illinois law, the
elements must be strictly construed. Goldman,
339 Ill. App. 3d at 183. "An actionable tort does not exist unless there is some
improper use of the process of the court." Johnson v. Collins,
No. 98 C 3516, 2003 WL 21038626, at *10 (N.D. Ill. May 07, 2003)
As discussed in preceding paragraphs, the search and seizure of
the plaintiff's computer was accomplished pursuant to Ms.
Antonelli's consent, not pursuant to a search warrant or any
other court authorization. Likewise, the communications between
AUSA Johnson and Ms. Antonelli were in furtherance of the routine
defense of this case. The plaintiff has failed to demonstrate
that the government or government officials abused the legal
process in any manner. B. Trespass (Count VIII) and Conversion (Count IX)
The plaintiff's alternative tort theories of conversion and
trespass to property are equally without foundation. Trespass to
chattel is defined as "the act of committing, without lawful
justification, any act of direct physical interference with a
chattel possessed by another." Black's Law Dictionary 1509
(7th ed. 1999). Conversion is defined as "the wrongful
deprivation of one who has a right to the immediate possession of
the object unlawfully held." Republic Tobacco, L.P. v. North
Atlantic Trading Co., Inc., 254 F.Supp.2d 985, 1006 (N.D. Ill.
2002), quoting Fonda v. General Cas. Co., 279 Ill. App. 3d 894,
899 (Ill.App. 1996).
To state a prima facie cause of action for conversion or
trespass to chattels, the plaintiff must establish the following
elements: (1) the defendants' unauthorized or wrongful assumption
of control, dominion or ownership of the plaintiff's property;
(2) the plaintiff's right in the property; (3) the plaintiff's
right to immediate possession; and (4) the plaintiff's demand for
possession. Republic Tobacco, 254 F.Supp.2d at 1006; see also
Minuti v. Johnson, No. 02 C 4551, 2003 WL 260705, *4 (N.D. Ill.
Feb. 5, 2003) (Zagel, J.), citing Nelson v. Sotheby's Inc.,
115 F.Supp.2d 925, 929 n. 2 (N.D. Ill. 2000). To establish trespass
to chattel, the plaintiff must also show that the dispossession
resulted in damages. Najieb v. William-Chrysler-Plymouth, No.
01 C 8295, 2002 WL 31906466, at *10 (N.D. Ill. Dec. 31, 2002)
(Aspen, J.), relying on Restatement (Second) of Torts §§
217-218, 221-222. "In recent years, trespass to personal
property, which had been largely relegated to a historical note in legal textbooks, has reemerged as a cause of
action in Internet advertising and e-mail cases." Sotelo v.
DirectRevenue, LLC, No. 05 C 2562, 2005 WL 2095107, *8 (N.D.
Ill. Aug. 8, 2005) (Gettleman, J.).
The defining element of conversion, the one that
distinguishes it from a trespass to chattels, is the
extent of interference with the owner's property
rights. If the damage is minor, in duration or
severity, plaintiff may only recover for the
diminished value. But if the damage is sufficiently
severe, plaintiff may recover full value. Conversion
is akin to a forced judicial sale.
In re StarLink Corn Products Liability Litigation,
212 F.Supp.2d 828
, 844 (N.D. Ill. 2002)
In this case, the plaintiff cannot demonstrate either trespass
or conversion. The court is satisfied that Nancy Antonelli's
voluntary relinquishment of the computer rendered the government
taking authorized and rightful. Moreover, the plaintiff could not
claim immediate possession of the computer because he was
incarcerated. Finally, the plaintiff cannot establish damages
because the computer was returned about a year later in the same
condition in which it had been turned over to Sherrow and Sobol.
Any deprecation in value of the computer was caused by its age,
and not by any destructive actions on the part of government
officials. The plaintiff's claims under the Federal Tort Claims
Act are all baseless.
In sum, for all of the foregoing reasons, the court finds that
no outcome-dispositive facts are in dispute and that the
defendants Sherrow and Sobol are entitled to judgment as a matter of law. Accordingly, the clerk is directed to enter
summary judgment in favor of Sherrow and Sobol and against the
plaintiff pursuant to Fed.R.Civ.P.56. The plaintiff's remaining
claims against the United States and AUSA Patrick Johnson are
dismissed pursuant to Fed.R.Civ.P.12(b)(6) for failure to state a
cognizable claim. The plaintiff's cross-motion for partial
summary judgment is denied. The clerk is directed to enter final
judgment in this case.
If the plaintiff wishes to appeal this dismissal, he may file a
notice of appeal with the court within thirty days of the entry
of judgment. Fed.R.App.P.4(a)(4). Because the plaintiff has
"struck out" pursuant to 28 U.S.C. § 1915(g) and this case does
not involve imminent danger of serious physical injury, the
notice of appeal must be accompanied by the $255 appellate filing
IT IS THEREFORE ORDERED that the plaintiff's motion for partial
summary judgment [docket #110] is denied. IT IS FURTHER ORDERED
that the defendants' motions to dismiss [docket #75] and for
summary judgment [docket #77] are granted. The case is
terminated. The parties are to bear their own costs.
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