In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3342

EDWARD BONTKOWSKI,

Plaintiff-Appellant,

v.

BRIAN SMITH, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 6353—Wayne R. Andersen, Judge.

____________

SUBMITTED JULY 25, 2002—DECIDED SEPTEMBER 26, 2002

____________

Before POSNER, KANNE, and EVANS, Circuit Judges.

POSNER, Circuit Judge. This is a suit that is going nowhere; but the district court, by granting a motion to dismiss under Fed. R. Civ. P. 12(b)(6), buried it prematurely

because a few faint signs of life remained. A frequent filer

(see Bontkowski v. United States, 28 F.3d 36 (7th Cir. 1994);

Bontkowski v. First National Bank of Cicero, 998 F.2d 459

(7th Cir. 1993); Bontkowski v. Jenkins, 661 F. Supp. 576 (N.D.

Ill. 1987), aff’d, 860 F.2d 1082 (7th Cir. 1988); Bontkowski

v. United States, 850 F.2d 306 (7th Cir. 1988)), Edward

Bontkowski brought suit against his former wife, Elena

Bront, and an FBI agent, Brian Smith, charging that they

had conspired to steal valuable prints by Salvador Dali that
2 No. 01-3342

he owned and to have him prosecuted on baseless charges

of telephone harassment, presumably in order to impede

his efforts to recover his property. He sought relief under

the Bivens doctrine and, regarding the alleged malicious

prosecution, under both federal law (a claim blocked by

Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001),

which holds that malicious prosecution is not a federal

constitutional tort as long as the state provides a remedy)

and Illinois state law.

The charges border on the fantastic but do not quite

cross the line into the territory, illustrated by cases in which

plaintiffs complain about electrodes being implanted in

their brains by inhabitants of far-off galaxies, in which a

district court can, as we noted recently in Gladney v.

Pendleton Correctional Facility, No. 01-2182, 2002 WL

31040726, at *1 (7th Cir. Sept. 13, 2002), properly dismiss a

complaint, even though it makes factual allegations, without

bothering to take any evidence. The principal ground on

which the district court dismissed Bontkowski’s suit was

that the only relief he sought—a declaratory judgment that

Smith and Bront had violated his constitutional rights, and

an injunction to compel Bront to return the prints or the proceeds from their sale, and another injunction to prohibit

lawyers employed by the federal government from representing Agent Smith—was relief to which he was not entitled. Regarding the second injunction, the one against

Smith’s being represented by government lawyers, the

judge was of course correct. Smith was in charge of an

investigation that resulted in criminal charges of fraud

that have led to Bontkowski’s being imprisoned; and

though those charges are distinct from the charges of telephone harassment of which he complains in this suit,

the more than suspicion that this suit is in retaliation for

Smith’s nailing Bontkowski for fraud brings the charges

in it sufficiently within the scope of Smith’s employment
No. 01-3342 3

as an FBI agent to authorize his representation by the Justice Department. See 28 C.F.R. § 50.15(a); Nowicki v. Ullsvik,

69 F.3d 1320, 1326 (7th Cir. 1995). It would be absurd to

require law enforcement officers to defend at their own

expense against likely groundless spite suits by the people whom they have arrested or investigated. We doubt

in any event that the rules regarding representation by

the government of its employees are intended for the protection of opposing litigants and thus provide a basis for

suit.

The judge also ruled that Bontkowski had failed to

serve Bront; this clearly was incorrect. The record in the

district court includes a summons addressed to her and

a return of service, attested to under penalty of perjury by

a process server, stating that a copy of the summons and

complaint was left at her home with her daughter and

someone named Dave, who was at least 50 years old.

Rule 4(e)(2) of the civil rules provides that service may

be made by leaving copies of the summons and complaint “at the individual’s dwelling house or usual place

of abode with some person of suitable age and discretion

then residing therein.” As Bront has not appeared in the

case to object to the service, there is no reason to think

that leaving the papers in this manner violated the rule.

Regarding the relief sought, Bontkowski had no standing to obtain an injunction against further violations of

his rights by the defendants, as no reason is suggested

or appears why the defendants could be expected to make

a further attempt on Bontkowski’s property. City of Los

Angeles v. Lyons, 461 U.S. 95 (1983); O’Shea v. Littleton,

414 U.S. 488, 495-96 (1974). There isn’t any indication that

he has anything left worth stealing, especially as he is

at present in prison on the fraud charges that we mentioned. Whether he had standing to obtain a declaratory
4 No. 01-3342

judgment, Tobin for Governor v. Illinois State Bd. of Elections,

268 F.3d 517, 528 (7th Cir. 2001); Perry v. Sheahan, 222 F.3d

309, 313-14 (7th Cir. 2000); Malowney v. Federal Collection

Deposit Group, 193 F.3d 1342, 1347-48 (11th Cir. 1999),

however, will require us to consider briefly the various

purposes for which such relief can be sought. One is

as a prelude or substitute for injunctive relief, Original

Great American Chocolate Chip Cookie Co. v. River Valley

Cookies, Ltd., 970 F.2d 273, 276 (7th Cir. 1992); the plaintiff wants a change in the defendant’s conduct but believes that it will ensue from a declaration of the plaintiff’s rights, and by seeking just the declaration the plaintiff avoids the burden of formulating and justifying a

precise injunctive remedy. Second, the declaration may

serve to quiet title and thus remove an impediment to

the plaintiff’s use or disposition of his property. DeWeerth

v. Baldinger, 38 F.3d 1266, 1276 (2d Cir. 1994). And third,

it is a method of depriving the defendant of delay as a

weapon, 10B Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federal Practice and Procedure § 2751 (3d

ed. 1998); an example of this use of declaratory relief is

an insurance company’s suit for a declaration that it has

no duty to indemnify, motivated by fear that if the company refuses to indemnify its insured and its refusal is later

held to have been mistaken, it will have to pay punitive

damages. See, e.g., Winstead v. J.C. Penney Co., 933 F.2d 576,

577 (7th Cir. 1991).

None of these grounds is available to Bontkowski; nor

can declaratory relief be sought simply as a predicate for

a subsequent damages claim. Liberty Mutual Ins. Co. v.

Wetzel, 424 U.S. 737, 742-44 (1976); Mercer v. Magnant,

40 F.3d 893, 896 (7th Cir. 1994); California ex rel. California

Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772,

776-77 (9th Cir. 1998). That would circumvent the rule

that a judgment in a suit for damages is not final and
No. 01-3342 5

appealable until the amount of damages is determined

and the defendant ordered to pay it. Liberty Mutual Ins. Co.

v. Wetzel, supra, 424 U.S. at 742-44; Abbs v. Sullivan, 963

F.2d 918, 923 (7th Cir. 1992); Albright v. UNUM Life Ins. Co.

of America, 59 F.3d 1089, 1092-93 (10th Cir. 1995). But in

asking for a declaration of his right to the return of the

prints or, if they’ve been sold, to the proceeds of the sale,

Bontkowski may have meant that he wanted an order that

would give him either the prints or the proceeds, and

so, especially in light of his pro se status, his suit should

have been interpreted as an action for replevin or for an

affirmative injunction or (so far as the proceeds are concerned), in the alternative, for damages. See Community

for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.

Cir. 1987). Moreover, if he can prove his case (a tremendous if, obviously) he would be entitled to the imposition

of a constructive trust on the prints and the proceeds;

his plea for an injunction commanding the return of

the prints or the rendering up of the proceeds if the defendants have sold them can be interpreted as a request

for the imposition of such a trust, a form of equitable relief and thus a cousin to an injunction. See, e.g., GreatWest Life & Annuity Ins. Co. v. Knudson, 122 S. Ct. 708, 714

(2002); Smithberg v. Illinois Municipal Retirement Fund,

735 N.E.2d 560, 565 (Ill. 2000); Davis v. Combes, 294 F.3d 931,

936 (7th Cir. 2002) (Illinois law); In re Barnes, 276 F.3d 927,

929 (7th Cir. 2002); Beatty v. Guggenheim Exploration Co.,

122 N.E. 378, 380 (N.Y. 1919) (Cardozo, J.).

And even if the district court was right that Bontkowski

is seeking relief to which he’s not entitled, this would

not justify dismissal of the suit. Although Rule 8(a)(3) of

the civil rules requires that a complaint contain “a demand for judgment for the relief the pleader seeks,” the

demand is not itself a part of the plaintiff’s claim, Laird

v. Integrated Resources, Inc., 897 F.2d 826, 841-42 and n. 69
6 No. 01-3342

(5th Cir. 1990); Schoonover v. Schoonover, 172 F.2d 526, 530

(10th Cir. 1949); 5 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1255 (2d ed. 1990), and so

failure to specify relief to which the plaintiff was entitled

would not warrant dismissal under Rule 12(b)(6) (dismissal

for failure to state a claim). Any doubt on this score is

dispelled by Rule 54(c), which provides that a prevailing

party may obtain any relief to which he’s entitled even if

he “has not demanded such relief in [his] pleadings.” See

Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66 (1978);

Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d

1077, 1081 (7th Cir. 1998); Felce v. Fiedler, 974 F.2d 1484, 1501-

02 (7th Cir. 1992); Lehman v. Revolution Portfolio LLC, 166

F.3d 389, 394 (1st Cir. 1999); Pension Benefit Guaranty Corp.

v. East Dayton Tool & Die Co., 14 F.3d 1122, 1127 (6th Cir.

1994). It would be appropriate and indeed quite sensible

for a judge confronting a complaint that does not demand

proper relief to ascertain whether the plaintiff wants the

improper relief sought in the complaint or nothing; if so,

the complaint must be dismissed. But there is no indication that Bontkowski has his heart set on declaratory and

injunctive relief. That would make no sense. Obviously he

wants his Dali prints back or, if they’ve been sold, the

proceeds.

Smith defends the dismissal of the suit against him

(remember that Bront, the other defendant, has not bothered to appear in the case) on the alternative ground

that Bontkowski’s federal claim is barred by the applicable

statute of limitations, which is two years. See DelgadoBrunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996). The alleged

theft of the Dali prints occurred approximately three

years before Bontkowski sued. He reported the theft to

the police and was aware that Smith had asked them to

halt their investigation of the alleged theft of another work
No. 01-3342 7

of art (not one of the Dali prints) owned by him. But he

argues, and on the present undeveloped state of the record we must accept, that he didn’t know that Smith was

complicit in Bront’s theft of his Dali prints. He may not

even have known that they knew each other. If a reasonable person in Bontkowski’s position could not have

learned that he had a claim against Smith earlier than he

learned (which he contends was not until January 1999,

after he filed this suit!) or if the defendants actively concealed the claim from him until the statute of limitations ran, he would have a defense to the statute of limitations, by virtue of the doctrines of equitable tolling and

equitable estoppel respectively. E.g., Mitchell v. Donchin,

286 F.3d 447, 450-51 (7th Cir. 2002); Shropshear v. Corporation Counsel, 275 F.3d 593, 595 (7th Cir. 2001); Athmer v.

C.E.I. Equip. Co., 121 F.3d 294, 297 (7th Cir. 1997)—or at

least the latter, for there is continuing uncertainty whether

the doctrine of equitable tolling exists in Illinois, and it is

that doctrine, not the federal, that applies to cases such

as this in which the statute of limitations is not specified

in federal law but instead is borrowed from a state’s law.

Shropshear v. Corporation Counsel, supra, 275 F.3d at 596.

What is more, the complaint states a claim under Illinois

law for conversion of the prints, and the statute of limitations applicable to such a claim is five years, not two.

735 ILCS 5/13-205. The district judge expressed a disinclination to exercise his supplemental jurisdiction over

any state-law claims (and thus not only conversion but

also malicious prosecution) made by Bontkowski. But

Bontkowski also based federal jurisdiction of those claims

on diversity of citizenship, and while he failed to allege

the citizenship of either himself or the defendants, it appears from the record that he is a citizen of Florida and

Smith and Bront are citizens of Illinois; true, he was in jail

in Illinois when he filed the suit, and that is the operative
8 No. 01-3342

date for determining the existence of diversity jurisdiction,

but incarceration in a state does not make one a citizen of

that state. A prisoner is a citizen of “the state of which he

was a citizen before he was sent to prison unless he

plans to live elsewhere when he gets out, in which event

it should be that state.” Singletary v. Continental Illinois

National Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir. 1993);

see also Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir. 1996);

Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991); Stifel

v. Hopkins, 477 F.2d 1116, 1124 (6th Cir. 1973) (per curiam).

Florida was Bontkowski’s last state of citizenship before

he was jailed in Illinois and there is no indication that he

intends to move to Illinois (for since filing his suit he

has been transferred to a prison in Florida) when he gets

out of prison.

So we must reverse, but we warn Bontkowski that if

he persists in this litigation and his suit turns out to be

frivolous, as we believe highly likely, he is courting sanctions. Marques v. Federal Reserve Bank, 286 F.3d 1014, 1018

(7th Cir. 2002); In re Mann, 229 F.3d 657, 659 (7th Cir. 2000);

Berwick Grain Co. v. Illinois Dept. of Agriculture, 217 F.3d

502, 504-06 (7th Cir. 2000) (per curiam).

REVERSED AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-97-C-006—9-26-02