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ANTONELLI v. SHERROW

September 21, 2005.

MICHAEL ANTONELLI, Plaintiff,
v.
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 denied.

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 relied upon.
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.

  FACTS

  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 ...


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