305 F.3d 757 (7th Cir. 2002), 01-3342, Bontkowski v. Smith

Docket Nº:01-3342.
Citation:305 F.3d 757
Party Name:Edward BONTKOWSKI, Plaintiff-Appellant, v. Brian SMITH, et al., Defendants-Appellees.
Case Date:September 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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305 F.3d 757 (7th Cir. 2002)

Edward BONTKOWSKI, Plaintiff-Appellant,


Brian SMITH, et al., Defendants-Appellees.

No. 01-3342.

United States Court of Appeals, Seventh Circuit

September 26, 2002

Submitted July 25, 2002.

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[Copyrighted Material Omitted]

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Edward Bontkowski (submitted), Coleman, FL, Pro Se.

Carole J. Ryczek (submitted), Office of the U.S. Atty., Civ. Div., Chicago, IL, for Defendants-Appellees.

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), affd, 860 F.2d 1082 (7th Cir. 1988); Bontkowski v. United

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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 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, 302 F.3d 773 at — (7th Cir. 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 Bontkowski 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 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

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Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (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 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 plaintiffs use or disposition of his property. DeWeerth v. Baldinger, 38 F.3d 1266, 1276 (2d Cir. 1994). And third, it is a...

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