United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge.
the Court are Defendant United Airlines's motion to
dismiss  and Plaintiff Breland Barcel Lee's motion
for leave to file a first amended complaint . For the
reasons set forth below, Defendant's motion to dismiss
 is granted and Plaintiff's motion to amend  is
granted in part and denied in part.
Breland Barcel Lee, a citizen of North Carolina, flew from
Raleigh-Durham to Chicago, Illinois on Defendant United
Airlines (“United”) on April 13, 2016. Upon
deplaning at O'Hare International Airport, Plaintiff
alleges that he was “accosted” and
“aggressively questioned” by members of a Drug
Enforcement Administration (“DEA”) interdiction
task force. [1, ¶ 21.] According to Plaintiff, “an
unknown employee of United Airlines” works as a
“paid confidential informant” for the DEA task
force and “regularly provides the entire flight
manifests” to task force officers to “personally
enrich himself/herself, ” rather than for any
legitimate security purpose. Id. ¶¶ 11-13.
Purportedly in reliance on this manifest, the task force
agents singled out Plaintiff.
the task force officers allegedly demanded Plaintiff's
identification and continued to “harass”
Plaintiff after he told them that he did not want to answer
their questions. Id. ¶ 24. The officers then
followed Plaintiff to the gate for his connecting flight.
When he reached his connecting gate, an unknown DEA task
force officer “had a conversation with the United
Airlines gate agent around boarding time * * * to delay
plaintiff's boarding.” Id. ¶ 28. The
officers were ultimately able to delay Plaintiff from
boarding, at which point they “forcefully physically
seized his suitcase.” Id. ¶ 29. His
suitcase was returned days later “missing approximately
$4, 900.” Id. ¶ 30.
on this conduct, Plaintiff filed a four-count complaint
against one named DEA task force officer (Anthony Terranova,
who is also an officer of the Village of Glen Ellyn Police
Department [1, ¶ 5]), three unnamed DEA task force
officers, United, and the Village of Glen Ellyn. Counts I,
II, and III assert claims under 42 U.S.C. § 1983 against
Terranova, the other DEA task force officers, and United for
unlawful seizure of Plaintiff's suitcase, person, and
currency, respectfully. Count IV is solely an indemnity claim
against the Village of Glen Ellyn.
United filed a motion to dismiss all claims asserted against
it . While that motion was pending, Plaintiff settled
with Officer Terranova and the Village of Glen Ellyn, both of
whom have been dismissed from this case . Complicating
matters, Plaintiff filed a motion for leave to file an
amended complaint  the day after United filed its reply
brief in support of its motion to dismiss . The proposed
amended complaint asserts seven counts. Counts I and II are
still 42 U.S.C. § 1983 claims for seizure of
Plaintiff's suitcase and person, but are now asserted
against the three unnamed DEA task force officers, United,
and the unnamed United employee who allegedly doubles as a
confidential informant for the task force (“John
Doe”). Under these counts, the claims against United
are both for “Respondeat Superior” in its
capacity as John Doe's employer and for United's
“acts and omissions pursuant to [its] policies and
practices.” [31-1, ¶¶ 50, 54.] Count III is
for “Conspiracy to Violate [Fourth] Amendment Rights,
” and is asserted against all five Defendants.
Id. at 11-12. Count IV is for Intentional Infliction
of Emotional Distress (“IIED”) under Illinois law
and is asserted against all Defendants. Against United, this
claim is also asserted on the grounds of “Respondeat
Superior” and its “policies and practices.”
Id. ¶ 63. Counts V and VI mirror Counts I and
II, but are asserted under Section 6 of the Illinois
Constitution. Id. at 13-14. Count VII asserts a
false imprisonment claim under Illinois law against United
only. Id. at 15.
survive a Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) motion to dismiss for failure
to state a claim upon which relief can be granted, the
complaint first must comply with Rule 8(a) by providing
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), such that the defendant is given “fair notice
of what the * * * claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)) (alteration in original). Second, the factual
allegations in the complaint must be sufficient to raise the
possibility of relief above the “speculative
level.” E.E.O.C. v. Concentra Health Servs.,
Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting
Twombly, 550 U.S. at 555). “A pleading that
offers ‘labels and conclusions' or a
‘formulaic recitation of the elements of a cause of
action will not do.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). Dismissal for failure to state a claim under Rule
12(b)(6) is proper “when the allegations in a
complaint, however true, could not raise a claim of
entitlement to relief.” Twombly, 550 U.S. at
558. In reviewing a motion to dismiss pursuant to Rule
12(b)(6), the Court accepts as true all of Plaintiff's
well-pleaded factual allegations and draws all reasonable
inferences in Plaintiff's favor. Killingsworth v.
HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir.
permits a party to amend its complaint once as a matter of
course either within 21 days after serving it or 21 days
after service of responsive pleading. Fed.R.Civ.P. 15(a)(1).
“In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). Rule 15 also
directs that courts “should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2).
“This liberal policy of granting amendments is based in
part on the belief that decisions on the merits should be
made whenever possible, absent countervailing
considerations.” Olech v. Vill. of
Willowbrook, 138 F.Supp.2d 1036, 1040 (N.D. Ill. 2000)
(citation omitted). A court should give leave to amend
“‘[i]n the absence of any apparent or declared
reason-such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of the allowance of the amendment,
[or] futility of amendment.'” Barry Aviation,
Inc. v. Land O'Lakes Mun. Airport Comm'n, 377
F.3d 682, 687 (7th Cir. 2004) (citation omitted).
“‘The decision to grant or deny a motion to file
an amended pleading is a matter purely within the sound
discretion of the district court.'” Soltys v.
Costello, 520 F.3d 737, 743 (7th Cir. 2008) (citation
United's motion to dismiss raises a host of arguments
against Plaintiff's original complaint: (1) claims based
on actions taken by the DEA task force are not viable under
Section 1983 because that statute applies only to actions
taken under color of state law; (2) there is no
corresponding cause of action under Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971), against
private actors; (3) United was, at best, a bystander who
agreed to help law enforcement, which does not expose it to
Section 1983 liability; (4) United did not play a role in-let
alone cause-the alleged violations of Plaintiff's
constitutional rights; (5) United cannot be held liable under
Section 1983 under a respondeat superior liability
theory; and (6) Plaintiff failed to satisfy the procedural
requirements of the Federal Tort Claims Act. [See 22.]
motion to dismiss is resolved by answering whether the DEA
interdiction task force described in the complaint acted
under color of federal or state law. “To state a claim
under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). “[A]n
action brought pursuant to § 1983 cannot lie against
federal officers acting under color of federal law.”
Case v. Milewski, 327 F.3d 564, 567 (7th Cir. 2003).
Plaintiff contends that the task force acted under state law
because it is “comprised primarily of local law
enforcement officers working for and being paid by local law
enforcement agencies.” [40, ¶ 4.] Plaintiff
further argues that “the agent the United employee
conspired with [i.e., former Defendant Terranova] is
a village of Glen Ellyn police officer acting in the scope of
his employment with Glen Ellyn.” [26, at 5.] Defendant
responds that the two allegations in the original complaint
involving its employees concern interactions with only
federal officers. [See 1, ¶ 11 (John Doe “provided
the DEA Chicago Field Division with the flight
manifest” for Plaintiff's flight); id.
¶ 28 (“One of Defendant Unknown DEA Task Force
Officers had a conversation with the United Airlines gate
agent around boarding time”).] Moreover, there are no
actual allegations in the original complaint that United
conspired with former Defendant Terranova.
arguments focus too narrowly. “The United States
Department of Justice, acting through the [DEA], enters into
task force agreements with participating local law
enforcement agencies to undertake joint
investigations.” Bordeaux v. Lynch, 958
F.Supp. 77, 84 (N.D.N.Y. 1997). “Pursuant to 21 U.S.C.
§ 878(b) and 5 U.S.C. § 3374(c), state and local
law enforcement officers designated as federal task force
members are treated as federal employees for the purposes of
any federal tort liability statute.” Aikman v. Cty.
of Westchester, 691 F.Supp.2d 496, 498-99 (S.D.N.Y.
2010). “Courts have consistently treated local law
enforcement agents deputized as federal agents and acting as
part of a federal task force as federal agents.”
Colorado v. Nord, 377 F.Supp.2d 945, 949 (D. Colo.
2005). In doing so, these courts have found that Section 1983
does not apply. Courts have even held that Section 1983
claims cannot be pursued against this same DEA task
force in Chicago for this same reason. See
Amoakohene v. Bobko, 792 F.Supp. 605, 608 (N.D. Ill.
1992) (“[T]he purpose of the joint task force was to
stymie drug trafficking. * * * [W]hen the plaintiffs ...