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