B. Trespass (Count VIII) and Conversion (Count IX)

The plaintiff's alternative tort theories of conversion and trespass to property are
equally without foundation. Trespass to chattel is defined as “the act of committing, without
lawful justification, any act of direct physical interference with a chattel possessed by
another.” Black’s Law Dictionary 1509 (7th ed. 1999). Conversion is defined as “the
wrongful deprivation of one who has a right to the immediate possession of the object
unlawfully held.” Republic Tobacco, L.P. v. North Atlantic Trading Co., Inc.,254F Supp.2d
985, 1006 (N.D. Ill. 2002), quoting Fonda v. General Cas. Co., 279 Ill. App. 3d 894, 899 (ill.

App. 1996).

To state a prima facie cause of action for conversion or trespass to chattels, the
plaintiff must establish the following elements: (1) the defendants’ unauthorized or wrongful
assumption of control, dominion or ownership of the plaintiff's property; (2) the plaintiff's
right in the property; (3) the plaintiff's right to immediate possession; and (4) the plaintiff's
demand for possession. Republic Tobacco, 254 F. Supp. 2d at 1006; see also Minuti v.
Johnson, No. 02 C 4551, 2003 WL 260705, *4 (N.D. Ill. Feb. 5, 2003) (Zagel, J.), citing
Nelson v. Sotheby’s Inc., 115 F. Supp. 2d 925, 929 n. 2 (ND. Ill. 2000). To establish
trespass to chattel, the plaintiff must also show that the dispossession resulted in damages.
Najieb v. William-Chrysler-Plymouth, No. 01 C 8295, 2002 WL 31906466, at *10(N.D. Ill.
Dec. 31, 2002) (Aspen, J.), relying on Restatement (Second) of Torts §§ 217-218, 221-222.

“In recent years, trespass to personal property, which had been largely relegated to a

20


that lasted approximately forty-five minutes. Atno time did the defendants raise their voices
or threaten Ms. Antonelli in any way; at most, they told her that they would seek a search
warrant if she refused consent. In addition, after consenting to the search and seizure, Ms.
Antonelli did not turn the computer over until the next day; thus, she had ample time to
reconsider her consent or to consult an attorney. Indeed, only the plaintiff-and not Ms.
Antonelli-claims that the consent was involuntary.

Baseless threats to obtain a search warrant may render consent involuntary. United
States v. White, 979 F.2d 539, 542 (7 Cir. 1992), citing United States v. Talkington, 843
F.2d 1041, 1049(7" Cir. 1988). When the expressed intention to obtain a warrant is genuine,
however, and not merely a pretext to induce submission, it does not invalidate consent.
White, 979 F.2d at 539, citing United States v. Duran, 957 F.2d 499, 502 (7" Cir. 1992), inter
alia. In this case, the totality of the circumstances show that Ms. Antonelli’s consent was
voluntary, albeit grudging.

There is no evidence that the defendants intended to coerce Ms. Antonelli through
empty threats. Ms. Antonelli stated in her deposition that there was some type of exchange
between the agents where one asked the other, “Can we get a search warrant?” and the
second agent responded, “Yes.” (N. Antonelli Deposition, p. 54.) Under the circumstances
of this case, that parley did not approach the level ofa threat. The defendants’ mere allusion
to the possibility of a search warrant did not rise to the level of coercion, notwithstanding Ms.

Antonelli’s subjective fears about the potentially intrusive nature of such a search.

14


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,
99 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.)!

In 2002, the defendants Sobol and Sherrow were investigating a bombing in the
Chicago area. (Amended Complaint, p. 6, 4 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.’ (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. (/d., 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. (/d., p. 18.) Her job duties include acting

1

Neither party has submitted the cited pages 34-38 of the deposition; however, the court will accept
this statement as true since the matter is uncontested.

2

The plaintiff's subjective believe that the defendants were trying “to pin... some sort of bombing
on him (any kind)” does not create a genuine issue of fact. Even ignoring the fact that there is no
evidence whatsoever in the record to support that assertion, the plaintiff's characterization of the
nature of the interview is irrelevant for purposes of determining the propriety of the seizure of his
computer.


historical note in legal textbooks, has reemerged as a cause of action in Internet advertising
and e-mail cases.” Sotelo v. DirectRevenue, LLC, No. 05 C 2562, 2005 WL 2095107, *8

(N.D. Ill. Aug. 8, 2005) (Gettleman, J.).

The defining element of conversion, the one that distinguishes it from a
trespass to chattels, is the extent of interference with the owner’s property
rights. If the damage is minor, in duration or severity, plaintiff may only
recover for the diminished value. But if the damage is sufficiently severe,
plaintiff may recover full value. Conversion is akin to a forced judicial sale.

Inre StarLink Corn Products Liability Litigation, 212 F. Supp. 2d 828, 844 (N.D. Ill. 2002)

In this case, the plaintiff cannot demonstrate either trespass or conversion. The court
is satisfied that Nancy Antonelli’s voluntary relinquishment of the computer rendered the
government taking authorized and rightful. Moreover, the plaintiff could not claim
immediate possession of the computer because he was incarcerated. Finally, the plaintiff
cannot establish damages because the computer was returned about a year later in the same
condition in which it had been turned over to Sherrow and Sobol. Any deprecation in value
of the computer was caused by its age, and not by any destructive actions on the part of
government officials. The plaintiff's claims under the Federal Tort Claims Act are all

baseless.

CONCLUSION

In sum, for all of the foregoing reasons, the court finds that no outcome-dispositive

facts are in dispute and that the defendants Sherrow and Sobol are entitled to judgment as a

21


Consequently, the plaintiffs claim that the defendant Johnson attempted to induce the
plaintiffs ex-wife to commit perjury is dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim.®

III. The Plaintiffs Claims Under the Federal Tort Claims Act (Counts VIl-X)

The record does not make clear whether the plaintiff completely exhausted
administrative remedies regarding the seizure of his computer prior to filing his first amended
complaint. The Federal Tort Claims Act [hereinafter, “FTCA”] mandates that “[a]n action
shall not be instituted . . . unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally denied by the agency in
writing...” 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 107 (1993);
Carter v. Social Sec. Field Office, No. 02 C 5526, 2004 WL 609316, at *4(N.D. Ill. Mar. 22,
2004) (Guzman, J.).

In the case at bar, the plaintiff filed an administrative claim regarding the seizure of
his computer about five months after he initiated this action. Neither party has conclusively
established whether the plaintiff completed the appeal process after filing a claim with the
BATE. The court will assume for purposes of this motion that the plaintiff did exhaust the
administrative process prior to filing his amended complaint and that his claim is therefore

reviewable in federal court. See Barnes v. Briley, — F.3d. —, 2005 WL 2008226, at *4 (7"

6

The plaintiff seeks the opportunity to put his wife on the stand at trial. However, aside from the fact
that the plaintiff already had occasion to cross-examine his wife during her deposition, no amount
of testimony could nullify the defendant Johnson’s entitlement to absolute immunity.

18


Henderson v. Bolanda, 253 F.3d 928, 931 (7" Cir. 2001), citing Ashafa v. City of Chicago,
146 F.3d 459, 462 (7" Cir. 1998). The plaintiffs claims against Sobol are based upon the
seizure of his computer in May 2002; however, he did not add her as a defendant until he
filed an amended complaint on July 8, 20045. Because the plaintiff waited more than two
years to file suit against Sobol, his claims against her are time-barred.

The plaintiff asserts that he “unequivocally did not know the name of Agent Sobol”
until after he conducted discovery. However, in the absence of efforts on the part of the
defendants to conceal their identity from the plaintiff, he cannot avail himself of Rule 15(c)’s
provisions allowing for “relation back” to the original complaint. In this circuit, a plaintiff
cannot invoke the relation back principles of Rule 15(c) to name new defendants after the
statute of limitations has expired. See King v. One Unknown Federal Correctional Officer,
201 F.3d 910, 914-16 (7" Cir. 2000) (plaintiff's belated identification of proper defendant
in a Bivens action would not relate back to timely-filed complaint). “It is equally well
established that Rule 15(c)(3) does not permit relation back where . . . there is a lack of
knowledge of the proper party.” Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7" Cir.

1998) (internal citations omitted).

5

The court is treating the complaint as “filed” on the day it was dated and signed rather than the day
it was actually received by the Clerk. Under the “mailbox rule,” prisoner pleadings are considered
filed when given to the proper prison authorities for mailing, and not when received by the district
court clerk. See, e.g., Jones v. Bertrand, 17\ F.3d 499, 501 (a Cir. 1999), relying on Houston v.
Lack, 487 U.S. 266 (1988).

10


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. (/d.)

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 Defendants’ Exhibit D, “Receipt for Property and Other Items.”)

At neither of these two encounters did either Sobol or Sherrow raise their voices,
threaten Ms. Antonelli, or attempt to physically or verbally intimidate her. (N. Antonelli

Deposition, pp. 67, 75). They spoke in “conversational tones.” (/d.) The agents did not

3

The plaintiff states, without any citation to evidence in the record, that Sherrow and Sobol did, in
fact, intimidate Ms. Antonelli. However, unsupported statements in a brief are not evidence and
cannot be given any weight. See, e.g., In the Matter of Morris Paint and Varnish Co., 773 F.2d 130,
134 (7" Cir. 1985); Buck v. Lake County Sheriff, No. 03 C 1740, 2004 WL 2983966, *1n.1 (ND.
Ill. Dec. 23, 2004) (Gottschall, J.). The plaintiff, who was not present during the agents’ interview

7


as a liaison between engineers designing products and the manufacturing personnel. (/d., 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, 4 5.)

The agents asked Ms. Antonelli for permission to take the computer and search it.
(Antonelli Affidavit, 4|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, J 6; Plaintiff's Exhibit K, #3.) Ms.
Antonelli then threw up her hands in frustration, saying, “Nobody is coming in my house.
Thaven’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. (/d.,p. 56.) She then agreed to give the

computer to the agents, telling them that she did not want it back. (/d., pp. 54-55.)


Cir. slip op. Aug. 23, 2005) (prisoner plaintiff satisfied the PLRA exhaustion requirement
and thus was able to raise new, properly exhausted claims in his amended complaint).
Nevertheless, the court finds the plaintiff's FTCA claims to be without arguable merit.
A. Abuse of Process

Under Illinois law, the tort of abuse of process requires proof of two elements: (1) the
existence of an ulterior motive or purpose; and (2) some act in the use of the legal process
not proper in the regular course of the proceedings. International Union of Operating
Engineers v. Lowe Excavating Co., Inc., No. 98 C 7956, 1999 WL 350650, *3 (N.D. Ill. May
21,1999) (Kocoras, J.), citing Podolsky v. Alma Energy, Corp., 143 F.3d 364, 372 (7"
Cir.1998); Neurosurgery and Spine Surgery, S.C. v. Goldman, 339 Ill. App. 34.177, 183 (Ill.
App. 2003). Because the tort of abuse of process is not favored under Illinois law, the
elements must be strictly construed. Goldman, 339 Ill. App. 3d at 183. “An actionable tort
does not exist unless there is some improper use of the process of the court.” Johnson v.

Collins, No. 98 C 3516, 2003 WL 21038626, at *10 (N.D. Ill. May 07, 2003) (Andersen, J.).

As discussed in preceding paragraphs, the search and seizure of the plaintiff's
computer was accomplished pursuant to Ms. Antonelli’s consent, not pursuant to a search
warrant or any other court authorization. Likewise, the communications between AUSA
Johnson and Ms. Antonelli were in furtherance of the routine defense of this case. The
plaintiff has failed to demonstrate that the government or government officials abused the

legal process in any manner.

19


admittedly never filed an administrative claim regarding the defendant Johnson’s conduct.
(Plaintiffs Response to Defendants’ Combined Motions, final paragraph of p. 3.)

On July 14, 2004, the plaintiff filed an amended complaint, adding Special Agent
Sherrow and AUSA Johnson as defendants.

DISCUSSION

No material facts are in dispute, and the defendants Sherrow and Sobol have shown
that they are entitled to judgment as a matter of law on the plaintiff's claims against them.
Furthermore, even accepting the factual allegations in the first amended complaint as true,
the court finds that the plaintiff has failed to state either an actionable Bivens claim against
the defendant Johnson or a cognizable Federal Tort Claim against the United States.
Accordingly, the defendants’ combined motions to dismiss and for summary judgment are
granted and the plaintiff's cross-motion for partial summary judgment is denied.
L. Plaintiff's Bivens Claims Against Special Agents Sherrow and Sobol (Counts I-IV)

The motion for summary judgment filed by the defendants Sherrow and Sobol is
granted. No material facts are in dispute and the defendants have established that they are
entitled to judgment as a matter of law. Even viewing the record in the light most favorable
to the plaintiff, no reasonable person could find that the defendants committed any
constitutional violation or state tort when they took possession of the plaintiff's computer.

First, the plaintiff's claims against Agent Sobol are untimely. The statute of

limitations for Section 1983 actions filed in Illinois is two years. See 735 ILCS § 5/13-202;


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MICHAEL ANTONELLI, )
Plaintiff, )
v. ; NO. 02 C 8714
TINA SHERROW, et al. ; HON. JOHN A. NORDBERG
Defendants. )

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 (197 1). The plaintiff claims that the defendants, the United
States Government, two federal agents, and an Assistant U.S. Attorney for the Northern
District of Hlinois, 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


individual had common authority over the item. United States v. Brown, 328 F.3d 352, 356,
n.1 (7" Cir. 2003), cert. denied, 540 U.S. 1113 (2004) (“{u]se of and access to the property
are the touchstones of authority”) (citations omitted).

In this case, it is undisputed that the plaintiff left his computer with his ex-wife for her
and her family to use while he was incarcerated. Under these circumstances, Ms. Antonelli
had actual authority to consent to the search and seizure of the computer. Compare United
States v. Smith, 27 F. Supp. 2d 1111, 1115 (C.D. Ill. 1998) (consent search upheld where
housemate allowed police to search computer in bedroom which housemate occasionally
used in owner’s absence); United States v. Robinson, 479 F.2d 300, 302 (7 Cir. 1973)
(girlfriend could allow police to search defendant’s property left in girlfriend’s house).

Furthermore, even assuming arguendo that Ms. Antonellilacked actual authority, she
had apparent authority to consent to the seizure of the computer. In determining whether
an individual has apparent authority, the issue is whether the individual who allows the
search projects “an aura of authority,” and whether it was reasonable for the police to believe
the individual had the authority to consent. United States v. Saadeh, 61 F.3d 510, 517 (7
Cir, 1995). Although the plaintiff argues that he had not given Ms. Antonelli permission to
use the hard drive and that he demanded the computer’s return after discovering that it had
been seized, those details do not vitiate Ms. Antonelli’s actual or apparent authority to
consent to the search of the entire computer, including the hard drive she was allegedly not

supposed to use. See Frazier, 394 U.S. at 739 (by allowing a third party to use one

12


Regardless, irrespective of concerns of timeliness, the plaintiff has no viable cause of
action against the defendants Sobol and Sherrow because the agents obtained valid, third-
party consent from Ms. Antonelli to take the computer.

While a warrantless search ordinarily violates the Fourth Amendment, see Payton v.
New York, 445 U.S. 573, 586 (1980), a well settled exception to this general rule permits
authorities to conduct a search without a warrant if they obtain voluntary consent from: (a)
the individual whose property is to be searched, Schneckloth v. Bustamonte, 412 US. 218,
222 (1973); (b) a third party possessing common authority or joint control over the premises,
Florida v. Jimeno, 500 U.S. 248, 249-50 (1991); or (c) an individual with the apparent
authority to consent to the search. Illinois v. Rodriguez, 497 U.S. 177, 187 (1990); see also
United States v. Saadeh, 61 F.3d 510, 517 (7" Cir. 1995).

As noted above, voluntary consent may be given by a third party who possesses
common authority over the property. United States v. Matlock, 415 U.S. 164, 169-71 (1974);
United States v. Aghedo, 159 F3d. 308, 310-11 (7" Cir. 1998). “The consent of one who
possesses common authority over the premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared.” Matlock, 415 US, at 170.
Similarly, where a party authorizes the joint use of property, the joint user has the authority
to consent to the search of the entire property. United States v. Strache, 202 F.3d 980, 985
(7 Cir. 2000); Frazier v. Cupp, 394 U.S. 731, 739 (1969). It does not matter if the person

who gives consent does not own the item in question; the issue is whether the consenting

11


threaten Ms. Antonelli’s children. (Id., p. 69.) Ms. Antonelli cannot say that she felt coerced
into relinquishing the computer. (/d., p. 113.)

In a certified letter dated July 5, 2002, several months after the agents took the
computer, the plaintiff sent Sherrow a letter demanding the computer’s return to Ms.
Antonelli. (Amended Complaint, J 28.) The plaintiff also sent letters to the Director of the
BATE and the Inspector General of the Department of the Treasury demanding the
computer’s return. (Plaintiff's Exhibits M and N.) However, Ms. Antonelli herself never
requested its return. (N. Antonelli Deposition, p. 99.)

The plaintiff initiated this action in December 2002, naming only Agent Sherrow and
the United States as defendants in the original complaint.

On April 18, 2003, after the BATF had completed its search of the computer, Sherrow
returned the computer to Ms. Antonelli. (Plaintiff's Exhibit K, 6.) The computer was
returned in the same condition it had been in when it was taken eleven months earlier. (N.
Antonelli Deposition, pp. 78, 82.)°

On or about April 24, 2003, the plaintiff filed an administrative claim regarding the

search and seizure of his computer. (Defendants’ Exhibit F, | 5.) The plaintiff has

with Ms. Antonelli, is in no position to contradict his ex-wife’s sworn deposition testimony.
4

Again, the court cannot find either pages 78 or 82 of the deposition transcript among either
party’s exhibits. But again, the plaintiffdoes not dispute that the computer was retumed undamaged.
He claims only depreciation in resale value.

The plaintiff also demands additional discovery to ascertain what information was gleaned
from the government’s search of the computer. That question, however, is wholly irrelevant to the
issues at hand-that is, whether the agents improperly seized and searched the computer.

8


matter of law. Accordingly, the clerk is directed to enter summary judgment in favor of
Sherrow and Sobol and against the plaintiff pursuant to Fed. R. Civ. P. 56. The plaintiff's
remaining claims against the United States and AUSA Patrick Johnson are dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a cognizable claim. The plaintiff's
cross-motion for partial summary judgment is denied. The clerk is directed to enter final

judgment in this case.

If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with the
court within thirty days of the entry of judgment. Fed. R. App. P. 4(a)(4). Because the
plaintiff has “struck out” pursuant to 28 U.S.C. § 1915(g) and this case does not involve
imminent danger of serious physical injury, the notice of appeal must be accompanied by the

$255 appellate filing fee.

IT IS THEREFORE ORDERED that the plaintiff's motion for partial summary
judgment [docket #110] is denied. IT IS FURTHER ORDERED that the defendants’
motions to dismiss [docket #75] and for summary judgment [docket #77] are granted. The

case is terminated. The parties are to bear their own costs.

ENTER:

HN A. NORDBERG
United States District Judge

DATED: Saghmionds dos

22


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.2,4B.) 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,


Ms. Antonelli undoubtedly experienced the vague fear and discomfort that many
individuals would feel speaking with law enforcement officers; it is also understandable that
she resented being dragged into a criminal investigation concerning her ex-husband. See N.
Antonelli Deposition at p. 105: When the AUSA deposing Ms. Antonelli asked, “Are you
saying I’m intimidating you?” she responded, “I’m sick of the whole situation. ... Doesn’t
involve me.” “Just the fact that they [agents] were there” at her home and asking questions
about aman she “didn’t have anything to do with” made her feel harassed and indignant. (/d.,
pp. 68, 77.) However, the record does not support an inference that her will was overborne
by the agents. Compare United States v. White, 979 F.2d 539, 542 (7" Cir. 1992) (fact that
suspect was in her own living room rather than in custody was evidence that there was no
undue coercion; furthermore, an expressed intention to obtain a search warrant if refused
consent does not necessarily negate consent); see also United States v. Evans, 27 F.3d 1219,
1231 (7" Cir. 1994). The plaintiff's assertion that the defendants resorted to the threat of a
search warrant as pretext is entirely speculative, as the record does not reflect what evidence
the agents may have gathered linking him to the bombing.

The plaintiff’s conspiracy claim against Special Agents Sherrow and Sobol likewise
fails. There can be no cause of action for conspiracy if there is no underlying constitutional
violation. Thurman v. Homewood Police Officers, No. 03 C 8950, 2005 WL 1564975, at *4
(N.D. Ill. Jun. 02, 2005) (Moran, J.), citing Lesser v. Braniff Airways, Inc., 518 F.2d 538, 540

(7" Cir. 1975). For the reasons discussed in preceding paragraphs, no jury could conclude

15


When considering whether to dismiss a complaint for failure to state a claim upon
which relief can be granted, the court takes the allegations in the complaint as true, viewing
all facts--as well as any inferences reasonably drawn therefrom--in the light most favorable
to the plaintiff. Autry v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7" Cir.
1998). Dismissal should be denied whenever it appears that a basis for federal jurisdiction
in fact exists or may exist and can be stated by the plaintiff. Jones v. Edgar, 3 F. Supp. 2d
979, 980 (C.D. Ill. 1998).

Here, even accepting the plaintiff's factual allegations as true, the court finds as a
matter of law that the plaintiff has no viable claim against the defendant Johnson. An
attempt to violate constitutional rights is not actionable; there must be an actual violation of
the right. Andree v. Ashland County, 818 F.2d 1306, 1311 (7" Cir. 1987). “[T]he mere
attempt to deprive a person of his [constitutional] rights is not, under usual circumstances,
actionable under section 1983.” Holt Cargo Systems, Inc. v. Delaware River Port Authority,
20 F. Supp. 2d 803, 834 (E.D. Pa. 1998), quoting Andree. The plaintiff cannot recover
damages against Johnson for attempting to persuade Ms. Antonelli to lie.

Furthermore, a claim based on perjured testimony is barred by absolute immunity.
Briscoe v. Lahue, 460 U.S. 325 (1983); House v. Belford, 956 F.2d 71], 720 (7" Cir. 1992).
“ven a prosecutor’s knowing use of perjured testimony at trial, while it may require reversal
of the conviction . . . nevertheless falls within the scope of absolute immunity.” Rankins v.

Winzeler, No. 02 C 50507, 2003 WL 21058536, *4 (N.D. Ill. May 9, 2003) (Reinhard, J.).

17


obligations explicit.” See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7 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), anda
response to the movant’s statement of facts. Local Rule 56.1(b)(1)-(3). This response
shall contain . .. aresponse to each numbered paragraph in the moving party’s
statement, including, in the case ofany 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 (7 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


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 (7* 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 (Ci
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 (7" 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. IIL.) reflects “an attempt to make the parties’ respective summary judgment


compartment of duffel bag, the owner assumed the risk that the third party would let others
search the entire bag).

There is no triable issue as to whether Ms. Antonelli’s consent was voluntary. In
assessing whether a consent to search was voluntary, the court examines several factors,
including: (1) the consenting individual’s age, intelligence, and education; (2) whether the
person was advised of his or her constitutional rights; (3) how long the person was detained
before giving consent, (4) whether the consent was immediate or was prompted by
authorities’ repeated requests; (5) whether any physical coercion was used to gain consent,
and (6) whether the person was in police custody when she gave her consent. United States
v. Raibley, 243 F.3d 1069, 1075-76 (7" Cir.), cert. denied, 534 USS. 876 (2001). Itis true,
as the plaintiff points out, that in the context of a criminal case, the government bears the
burden of proving by a preponderance of the evidence that consent was freely and voluntarily
given. United States v. Grap, 403 F.3d 439, 443 (7" Cir. 2005). However, ina civil rights
action, the plaintiff carries the ultimate burden of proof that a consent to search was
involuntary. Valance v. Wisel, 110 F.3d 1269, 1278-79 (7" Cir. 1997).

Here, the plaintiff has failed to make a triable showing that Ms. Antonelli consented
under duress to the taking of the computer. Ms. Antonelli is an adult with a college
education and a professional job; her deposition suggests an above average intelligence. Ms.
Antonelli was not herself under investigation. She was not detained in any way. She had

freely agreed to speak to the federal agents in a conversation that took place on her patio and

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based on the evidence that the defendants infringed on the plaintiff's constitutional rights in
searching and seizing his computer. Consequently, there can be no actionable claim for
conspiracy.

In sum, no reasonable finder of fact could find that Ms. Antonelli’s consent to the
search of the computer was involuntary. Nor could a reasonable person conclude that Ms.
Antonelli lacked actual or apparent authority to consent to the taking. Accordingly, summary
judgment is granted in favor of the defendants Sobol and Sherrow.

IL. Plaintiffs Claims Against Assistant U.S. Attorney Patrick Johnson (Count Vv)

In Count V, the plaintiff charges that AUSA Patrick Johnson violated the plaintiff's
right to due process by attempting to induce Nancy Antonelli to perjure herself in this case.
The defendant has moved to dismiss that count for failure to state a claim.

It is well established that pro se complaints are to be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972), reh’g denied, 405 U.S. 948 (1972); see also McCormick
v. City of Chicago, 230 F.3d 319, 325 (7" Cir. 2000). They can be dismissed for failure to
state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Haines, 404 U.S. at 52 1; Zimmerman
v. Tribble, 226 F.3d 568, 571 (7" Cir. 2000). Fact pleading is not necessary to state a claim
for relief. Thompson v. Washington, 362 F.3d 969, 970-71 (7" Cir. 2004). To satisfy the
notice pleading requirements of Fed. R. Civ. P. 8(a)(2), the plaintiff need only state his legal

claim and provide “some indication . . . of time and place.” Jd. at 971.

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