Kaufmann v. US
| Decision Date | 03 January 1995 |
| Docket Number | No. 93-C-482.,93-C-482. |
| Citation | 876 F. Supp. 1044 |
| Parties | Harry C. KAUFMANN; Eileen M. Kaufmann; Harry Kaufmann Motor Cars, Inc.; and Kaufmann-Campbell Leasing, Inc., Plaintiffs, v. The UNITED STATES of America; Neil Saari, personally, and Thomas Schafer, personally, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
Peterson, Johnson & Murray by Terry E. Johnson, Milwaukee, WI, for plaintiffs.
Thomas P. Schneider, U.S. Atty. by James L. Santelle, Asst. U.S. Atty., Milwaukee, WI, for defendants.
DECISION and ORDER
On May 13, 1993, the plaintiffs commenced this action against the United States and twelve individual defendants in both their official and personal capacities, with the filing of an eight-count complaint. The defendants filed motions to dismiss the complaint, and in an order dated December 22, 1993, I dismissed numerous counts of the original complaint. Kaufmann v. United States, 840 F.Supp. 641, 659-660 (E.D.Wis.1993).
The plaintiffs were invited to file an amended complaint attempting to correct the deficiencies of their original complaint. Id. at 660. The plaintiffs accepted this invitation and filed an amended complaint on January 20, 1994. Presently before the court is the defendants' motion to dismiss the plaintiffs' amended complaint, filed under Rule 12(b)(6), Federal Rules of Civil Procedure.
On September 11, 1990, Mr. Kaufmann was indicted by a federal grand jury on four counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B), and one count of attempted money laundering, in violation of 18 U.S.C. § 1956(a)(3)(B). The indictment also called for the forfeiture of all property traceable to the offense, pursuant to 18 U.S.C. § 982(a). Magistrate Judge Aaron Goodstein issued search and seizure warrants for the Harry Kaufmann Motor Cars "KMC" premises on September 12, 1990. On September 13, 1990, federal agents executed those search warrants and seized all assets of KMC, including 99 automobiles.
A jury found Mr. Kaufmann guilty on count five of the indictment, acquitted him on counts one and two, and was unable to return a verdict on counts three and four. Counts three and four were later dismissed without prejudice by the government. Mr. Kaufmann pursued an unsuccessful appeal of his conviction on count five. See United States v. Kaufmann, 985 F.2d 884 (7th Cir.1993), cert. denied, ___ U.S. ___, 113 S.Ct. 2350, 124 L.Ed.2d 259 (1993).
Subsequently, this action was filed on behalf of Mr. Kaufmann, his wife, Eileen M. Kaufmann, KMC and Kaufmann-Campbell Leasing, Inc. "Kaufmann-Campbell". In their original complaint, the plaintiffs asserted claims against the United States and numerous individual defendants, primarily government officials who had been involved in the investigation and subsequent criminal prosecution of Mr. Kaufmann. The plaintiffs' original complaint contained seven substantive counts.
In my December 22, 1993, decision and order, I addressed the defendants' motions to dismiss the plaintiffs' complaint pursuant to Rules 12(b)(1), 12(b)(2) and 12(b)(6), Federal Rules of Civil Procedure. See Kaufmann, 840 F.Supp. at 649. I dismissed, with prejudice, counts one through five as asserted against the individual defendants in their official capacities. I also dismissed, with prejudice, counts six and seven to the extent that the plaintiffs were seeking redress under those counts against the individual defendants. I further dismissed, without prejudice, counts one through five as asserted against the individual defendants in their personal capacities. Finally, I declined to dismiss counts six and seven as asserted against the United States.
The plaintiffs then filed an amended complaint alleging counts one through five against the individual defendants in their personal capacities with greater specificity. The amended complaint is thirty-eight pages long and contains thirty-one counts. The amended complaint asserts claims against only two individual defendants and the United States.
As stated above, the plaintiffs named in the amended complaint are Mr. Kaufmann, his wife, Eileen Kaufmann, KMC and Kaufmann-Campbell. The plaintiffs aver that both KMC and Kaufmann-Campbell are corporations licensed to do business in the state of Wisconsin. They also allege that Mrs. Kaufmann had a fifty percent interest in all of her husband's assets.
The two individual defendants who remain in the plaintiffs' amended complaint are: Neil Saari, an agent for the Internal Revenue Service who was allegedly responsible for investigating and gathering information which was eventually presented to the grand jury, and Thomas Schafer, an "informant, agent and employee of the United States Government" who allegedly worked under the direction of Mr. Saari during his investigation of Mr. Kaufmann. Counts I through XXVIII of the plaintiffs' amended complaint assert claims against either Mr. Saari or Mr. Schafer in their personal capacities. In response, the defendants filed a motion to dismiss the plaintiffs' amended complaint pursuant to Rule 12(b)(6).
In considering the defendants' motion to dismiss, the court "must accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences therefrom in favor of the plaintiff." Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991) (citations omitted). Dismissal is appropriate only where it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Id. However, in order to avoid dismissal, the plaintiffs must do more than attach bare legal conclusions to narrated facts. Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 655 (7th Cir.1984).
Many of the plaintiffs' 31 claims are factually repetitive. Therefore, I will consider as a group those claims that are based on both identical factual assertions and identical legal theories, although such claims may be asserted on behalf of different plaintiffs. For example, counts I, VIII, XV and XXII (which I will discuss below) all assert Fourth Amendment claims against defendant Saari based upon alleged misrepresentations by Mr. Saari in the affidavit that he submitted in support of the issuance of a search warrant.
Counts I, VIII, XV and XXII of the plaintiffs' amended complaint assert claims against defendant Saari on behalf of Mr. Kaufmann, Mrs. Kaufmann, KMC, and Kaufmann-Campbell respectively. In the captions of their Fourth Amendment counts, the plaintiffs assert that the alleged violations of their Fourth Amendment rights are actionable under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The plaintiffs assert that Mr. Saari was involved in the execution of the search and seizure warrant at the premises of KMC. They also charge that "the search and seizure warrants were issued by Magistrate Goodstein based in part upon misrepresentations knowingly or recklessly contained within Saari's affidavit in support of the issuance of the warrant." Amended Complaint at ¶¶'s 28, 58, 90, 121. Specifically, the plaintiffs allege that "paragraphs 13, 23 and 38 of Saari's affidavit, among others, contain untrue statements which could have been discovered with reasonable diligence." Id.
In the defendants' motion to dismiss, they contend that the plaintiffs' amended complaint did not cure the defects in their original complaint, with respect to their Fourth Amendment allegations. The defendants claim that the broad, conclusory allegations of the plaintiffs' Fourth Amendment claims are insufficient to state a claim for relief.
Bivens established that victims of a federal constitutional violation by a federal official may have a cause of action against that official in federal court. Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980). Bivens claims are identical to claims under 42 U.S.C. § 1983, except for the replacement of a state actor acting under the color of state law by a federal actor acting under the color of federal law. Bieneman v. City of Chicago, 864 F.2d 463, 469 (7th Cir.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2099, 104 L.Ed.2d 661 (1989).
A misrepresentation in an affidavit submitted as support for the issuance of a search warrant can give rise to a civil damages cause of action. See Olson v. Tyler, 771 F.2d 277, 281 n. 6 (7th Cir.1985) (action brought under § 1983); Supreme Video, Inc. v. Schauz, 808 F.Supp. 1380, 1394 (E.D.Wis. 1992) (action brought under § 1983), aff'd in part, rev'd in part on other grounds, 15 F.3d 1435 (7th Cir.1994). I believe that the plaintiffs' allegation that defendant Saari submitted an affidavit containing knowing or reckless misrepresentations in support of the issuance of a search warrant is sufficient to support a cause of action under Bivens based on the Fourth Amendment. See, e.g. Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991). The plaintiffs' allegations that the misrepresentations are contained in paragraphs 13, 23 and 38 of the affidavit are sufficiently precise to allege a Fourth Amendment claim under Bivens.
The individual defendants who are sued in their personal capacities in their personal capacities assert they are also entitled to qualified immunity as an alternative basis for dismissal of the claims filed against them. Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from civil liability unless their actions violate clearly established constitutional rights of which a reasonable official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1992). Qualified immunity protects all government officials, except for those who are "plainly incompetent or those who knowingly violate the law." Malley v....
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Kaufmann v. Saari, 93-C-482.
...Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Kaufmann v. United States, 876 F.Supp. 1044, 1054 (E.D.Wis. 1995). The plaintiffs' Fourth Amendment claims are asserted against defendant Neil Saari personally, on behalf of each of the ......