UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

TOMMY WEBSTER, )

)

Plaintiff, )

) CAUSE NO. 3:15-CV-554-PPS-CAN 

vs. )

)

U.S. ATTORNEY, et al., )

)

Defendants. )

OPINION AND ORDER

This is a civil lawsuit brought by Tommy Webster, pro se, in an effort to obtain

the return of (or compensation for) a number of items seized by the South Bend Police

Department from his home pursuant to a warrant issued by the St. Joseph Superior

Court in March 2011. “A document filed pro se is to be liberally construed, and a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quotation marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, I

must review the merits of a prisoner complaint and dismiss it if the action is frivolous

or malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief.

In connection with events related to the seizure of the property at issue here,

Webster was charged and convicted of federal crimes. See United States v. Webster, 3:11-

CR-67 (N.D. Ind. filed May 12, 2011). In that criminal proceeding, Webster also litigated

his claims about these items, filing a Motion to Reopen & For Review & Mandamus
Regarding Records Inaccuracies Based Property Divestiture & for Other Necessary and

Warranted Relief. Id. at DE 126. Webster requested that the Court reopen the action

and grant the return of his property or its monetary equivalent of $80,000. Id. In

denying Webster’s motion, Judge Miller ruled that “the undisputed evidence clearly

shows that the federal government doesn’t have possession of the items Mr. Webster

seeks.” Id. at DE 130. That ruling was based on affidavits explaining that these items

were seized by the South Bend Police Department, but never turned over to federal

authorities. Id. at DE 129-1, 2. To the extent that Webster disagrees with that ruling, he

may challenge it in that proceeding, but he cannot re-litigate it in this one. See Ross v.

Bd. of Educ. of Twp. H.S. Dist. 211, 486 F.3d 279, 282 (7th Cir. 2008) (“A fundamental

precept of common-law adjudication . . . is that a right, question or fact distinctly put in

issue and directly determined by a court of competent jurisdiction cannot be disputed

in a subsequent suit between the same parties or their privies.” (citations and quotations

omitted)).

Webster is suing four defendants: U.S. Attorney, Assistant U.S. Attorney R.

Schaffer, South Bend Police Chief, and St. Joseph County States Attorney. Given Judge

Miller’s ruling, it is frivolous to sue federal defendants because the relief sought is not

available to Webster because the Federal Government does not have the property in

question. Therefore, the U.S. Attorney and Assistant U.S. Attorney must be dismissed

with prejudice. 

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The two State defendants – South Bend Police Chief and St. Joseph County States

Attorney – must also be dismissed, but without prejudice. The Fourteenth Amendment

provides that state officials shall not “deprive any person of life, liberty, or property,

without due process of law.” However, a state tort claims act that provides a method

by which a person can seek reimbursement for the negligent loss or intentional

depravation of property meets the requirements of the Fourteenth Amendment by

providing due process of law. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Wynn v.

Southward, 251 F.3d 588, 593 (7th Cir. 2001) (“Wynn has an adequate post-deprivation

remedy in the Indiana Tort Claims Act, and no more process was due.”). Because the

State of Indiana provides a means to obtain redress for Webster’s loss through the

Indiana Tort Claims Act, he has not been denied due process and does not state a claim

for a violation of the Fourteenth Amendment. Therefore the two State defendants will

be dismissed without prejudice so that Webster may pursue those claims in State court,

should he choose to do so. 

This complaint does not state a claim, and it does not appear that Webster could

state a claim, here in federal court. Nevertheless, I will grant him the opportunity to file

an amended complaint in this case if he believes that he can state a claim against any of

these defendants in this Court. See Luevano v. Wal-Mart, 722 F.3d 1014, 1022-23 (7th Cir.

2013). 

For these reasons, the Court: 

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(1) DIRECTS the clerk to place this cause number on a blank Prisoner Complaint

42 U.S.C. § 1983 form and send it to Tommy Webster; 

(2) GRANTS Tommy Webster until January 14, 2016, to file an amended

complaint; and

(3) CAUTIONS Tommy Webster that if he does not respond by that deadline,

this case will be dismissed without further notice pursuant to 28 U.S.C. § 1915A because

the current complaint does not state a claim. 

SO ORDERED.

ENTERED: December 17, 2015

_s/ Philip P. Simon_______________

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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