The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant David Hodapp's (Hodapp) motion to dismiss and on Plaintiff Pamela Terry's (Terry) motion for leave to file a second amended complaint. For the reasons stated below, we grant the motion to dismiss and we deny the motion for leave to file a second amended complaint.
Plaintiff Pamela Terry (Terry) allegedly was and continues to be employed as an Official Court Reporter by the State of Illinois. On January 26, 2005, Hodapp, a United States Postal Inspector, allegedly went to Terry's residence accompanied by another Postal Inspector and an Illinois Assistant Attorney General. Hodapp allegedly told Terry that he had evidence in his briefcase that showed Terry had over-billed the Cook County State's Attorney's Office for her services. Hodapp allegedly refused to show Terry the evidence and told Terry that he was interested in learning information about misconduct of state court judges, implying that Terry could avoid any charges being brought against her by providing such information about judicial misconduct. Terry claims that she indicated that she had no such information and that Hodapp continued to refuse to show her the evidence he claimed to have in his briefcase. For months after the visit to Terry's home, Hodapp allegedly continued to contact Terry to threaten and harass her. In September 2005, Hodapp allegedly caused Terry to be criminally charged in state court with offenses relating to invoices or vouchers Terry submitted to the Cook County State's Attorney's Office. In January 2008, Terry was allegedly acquitted by a jury of all charges. Terry claims that the charges caused her to be suspended from her job without pay and caused her professional reputation to be harmed. Terry includes in her first amended complaint a claim brought under 42 U.S.C. § 1983 (Section 1983) for malicious prosecution (Count I), a Section 1983 Fourth Amendment illegal search and seizure claim (Count II), and a Section 1983 Fifth Amendment due process claim (Count III). Hodapp now moves to dismiss all claims, and Terry has requested leave to file a second amended complaint.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).
Hodapp argues that Section 1983 cannot support a claim against a federal employee acting in the course of federal employment. Hodapp also argues that Terry has failed to allege sufficient facts to indicate a Fourth Amendment violation.
Hodapp contends that Section 1983 claims do not apply to Hodapp, a federal employee acting in the course of his federal employment. Section 1983 applies to state action and the conduct of state actors. 42 U.S.C. § 1983; London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir. 2010)(indicating that "§ 1983 actions may only be maintained against defendants who act under color of state law"). Section 1983 claims do not apply to federal actors acting in the course of their federal employment. See District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973)(explaining that Section 1983 does not apply to federal actors); Lewis v. Downey, 581 F.3d 467, 471 n.3 (7th Cir. 2009)(explaining that "[a] county employee caring for federal prisoners arguably becomes a federal actor, rather than the requisite state actor, rendering § 1983 inapplicable"). Terry alleges facts that indicate that Hodapp was a federal employee acting in the course of his federal employment. Thus, Terry fails to state a claim in any of the Counts of the first amended complaint, which are all expressly premised on Section 1983.
II. Malicious Prosecution Claim (Count I)
Hodapp also contends that, even if Section 1983 were applicable to him in this case, Section 1983 cannot support a malicious prosecution claim. The Seventh Circuit has not recognized a Section 1983 malicious prosecution claim in Illinois. See Ray v. City of Chicago, 2011 WL 13862, at *3-4 (7th Cir. 2011)(indicating that "[w]hile [the Court has] also held that [it] will allow individuals to bring Section 1983 malicious prosecution suits when the relevant state's law does not provide them with a way to pursue such claims, . . . Illinois law recognizes tort claims for malicious prosecution" and "the appropriate venue for [such] claims is Illinois state court"); Parish v. City of Chicago, 594 F.3d 551, 552 (7th Cir. 2009)(indicating that "Seventh Circuit precedent does not permit an action for malicious prosecution under § 1983 if a state remedy exists"); Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001)(indicating that there is no "constitutional tort of malicious prosecution when state courts are open"); see also Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007)(indicating that the Court has not "explored the contours of a Fourth Amendment malicious-prosecution suit under § 1983"); Tully v. Barada, 599 F.3d 591, 593 (7th Cir. 2010)(stating that "[t]he Supreme Court has neither recognized nor foreclosed the possibility of plausibly asserting a right not to be prosecuted without probable cause under § 1983, either under the Fourth Amendment . . . or the Fourteenth Amendment's Procedural Due Process Clause"). The Seventh Circuit has indicated that, in some instances, a malicious prosecution type claim could properly be "recast" as a claim based on Brady v. Maryland, 373 U.S. 83, 86-87 (1963), which provides that the prosecution must disclose evidence that is favorable to the defense. Ray, 2011 WL 13862, at *3-4. However, there are no facts alleged by Terry that would indicate any type of Brady claim in this case. Thus, Terry has not stated a valid Section 1983 malicious prosecution claim (Count I). We note that while Terry could attempt to pursue a state law malicious prosecution claim, she has not indicated that the court has diversity subject matter jurisdiction, and regardless, it would be prudent to decline to exercise supplemental jurisdiction over such a claim. Williams Electronics Games, Inc. v. Garrity, 479 F.3d 904, 906-07 (7th Cir. 2007); Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-52 (7th Cir. 1994).
III. Fourth Amendment Claim (Count II)
Hodapp also contends that, even if Terry had not premised her Fourth Amendment claim upon Section 1983, Terry has not presented sufficient facts to state a valid claim for relief under the Fourth Amendment. In evaluating a Fourth Amendment claim, the threshold inquiry is "whether a search or seizure actually occurred." Carlson v. Bukovic, 621 F.3d 610, 618 (7th Cir. 2010). The traditional test for determining whether a seizure of a person occurred, is assessing "whether the person believed he was 'free to leave.'" Id. The standard for the test "is an objective one and is made on the basis of the totality of the circumstances surrounding the encounter." Id. (internal quotations omitted)(quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)); see also Gentry v. Sevier, 597 F.3d 838, 844 (7th Cir. 2010)(stating that "[a]n officer executes a Fourth Amendment seizure when by means of physical force or show of authority [the officer] . . . in some way restrain[s] the liberty of a citizen")(internal quotations omitted)(quoting in part Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006)). Circumstances that ...