The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GARY LOUIS BERRY,
Plaintiff,
v. Case No. 20–CV–00229–JPG
THOMAS SEVERIT and
PROVEST LLC,
Defendants.
MEMORANDUM & ORDER
This is a civil-rights case. The Court ordered Plaintiff Gary Louis Berry to show cause as
to the basis for subject-matter jurisdiction, (Show Cause Order, ECF No. 6), and he responded,
(Pl.’s Resp., ECF No. 12). For the reasons below, the Court DISMISSES Berry’s Complaint
WITHOUT PREJUDICE.
I. PROCEDURAL & FACTUAL HISTORY
According to the Complaint, Berry was the defendant in a foreclosure action in Illinois
state court. (Compl. 6, ECF No. 1). The plaintiff in that case hired Defendant ProVest LLC
(“ProVest”), a legal support company, to serve process on Berry. (Id. at 5). And Defendant Thomas
Severit, a ProVest employee, was assigned to the task. (Id.). But Severit lied in the Affidavit of
Service, claiming that he served Berry when he had not. (Id.) Berry then sued Severit and ProVest
here after the state court entered a default judgment against him. (See id. at 6).
Berry’s Complaint alleged both diversity jurisdiction and federal-question jurisdiction.
(Id. at 1). That said, Berry stated in the Civil Cover Sheet that all the parties are Illinois citizens.
(Civil Cover Sheet 1, ECF No. 1–1). And the federal statutes linked to his 42 U.S.C. § 1983 claims
were criminal laws lacking private rights of action. (See Show Cause Order 1). The Court therefore
ordered Berry to show cause as to why the Complaint should not be dismissed for lack of subject-
matter jurisdiction. (Id. at 2). When Berry did not respond within 30 days, the Court dismissed the
Complaint without prejudice. (Order 1–2, ECF No. 8).
But Berry returned, alleging that he did not receive the Court’s Show Cause Order until
after the deadline. (Mot. for Extension 1–2, ECF No. 10). The Court therefore vacated the
Judgment and gave Berry 14 more days to respond. (Order, ECF No. 13). He responded that day.
Rather than defending the original causes of action, he instead linked his § 1983 claims to the
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. (Pl.’s Resp. 2–3).
Now, the Court must determine whether Berry established subject-matter jurisdiction.
II. LAW & ANALYSIS
The Rooker-Feldman doctrine bars Berry’s claims—this Court cannot review and reverse
a state-court judgment. And even if it could, Severit and ProVest are not state actors, a prerequisite
to suit under 42 U.S.C. § 1983. The Court therefore must dismiss Berry’s Complaint for lack of
subject-matter jurisdiction.
A. The Rooker-Feldman Doctrine Bars Berry’s Claims.
“The Rooker-Feldman doctrine precludes federal courts from deciding cases ‘brought by
state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and rejection of those
judgments.’ ” Hemmer v. Ind. State Bd. of Animal Health, 532 F.3d 610, 613 (7th Cir. 2008)
(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). In other
words, Rooker-Feldman precludes federal courts “from hearing cases where the federal action is
‘inextricably intertwined’ with the state court judgment.” Id. (quoting Richmond v. St. Joseph Care
Ctr. W., 190 F.3d 500, 501 (7th Cir. 1999).
In Rooker, the plaintiffs asked a federal district court to have an adverse state-court
judgment “declared null and void.” Rooker v. Fidelity Tr. Co., 263 U.S. 413, 414 (1923). The
district court dismissed the complaint for lack of subject-matter jurisdiction: Congress authorized
the Supreme Court—not the lower federal courts—to review state-court judgments. Id. at 415. The
Supreme Court agreed, holding that federal district courts cannot “entertain a proceeding to reverse
or modify” a state-court judgment. Id. at 416. And 60 years later, the Supreme Court in Feldman
reiterated that “a United States District Court has no authority to review final judgments of a state
court in judicial proceedings.” D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).
Berry contends that Severit and ProVest deprived him of his constitutional rights under the
Fourth, Fifth, and Fourteenth Amendments when they falsified the Affidavit of Service submitted
to the Illinois state court, leading to a default judgment against him. That very well may be true,
but this Court is not the correct forum to vindicate those rights. It is not for this Court to declare
the state-court judgment void; or enjoin its enforcement; or grant a monetary award that effectively
reverses it. “The proper procedure for a party who wishes to contest the legality of a court order
enforcing a judgment is to appeal that order and the underlying judgment, not to sue the official
responsible for its execution.” Henry v. Farmer City State Bank, 808 F.2d 1228, 1239 (7th Cir.
1986). This may also include petitioning the state court to invoke its equitable powers and vacate
its judgment under 735 Ill. Comp. Stat. § 5/2-1401: it is well established in the State of Illinois that
“one may not enforce a default judgment attended by unfair, unjust or unconscionable
circumstance.” Elfman v. Evanston Bus Co., 190 N.E.2d 348, 350 (Ill. 1963). But Berry cannot
avoid that route by seeking relief here. To hold otherwise would defy basic principles of
federalism.
B. The Court Lacks Subject-Matter Jurisdiction Because Severit & ProVest Are
Not State Actors.
Section 1983 of Title 42 of the United States Code is a constitutional tort provision that
creates a private right of against state actors that deprive individuals of federal rights. It states as
follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress . . . .
Id.
Section 1983 regulates state and local government conduct, not purely private conduct.
That distinction, however, is not always apparent: “To act ‘under color’ of law does not require
that the accused be an officer of the State.” United States v. Price, 383 U.S. 787, 794 (1966).
District courts must therefore determine whether the private actor’s conduct is “fairly attributable
to the state.” Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 937 (1982). “In the typical case
raising a state-action issue, a private party has taken the decisive step that caused the harm to the
plaintiff, and the question is whether the State was sufficiently involved to treat that decisive
conduct as state action.” NCAA v. Tarkanian, 488 U.S. 179, 192 (1988). “[A] private party can
qualify as a state actor in a few limited circumstances—including, for example, (1) when the
private entity performs a traditional, exclusive public function, (ii) when the government compels
the private entity to take a particular action, or (iii) when the government acts jointly with the
particular entity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019)
(internal citations omitted). “Only by sifting facts and weighing circumstance can the nonobvious
involvement of the State in private conduct be attributed its true significance.” Burton v.
Wilmington Parking Auth., 365 U.S. 715, 722 (1961).
Unlike other courts of appeals, the Seventh Circuit treats the state-action requirement in
§ 1983 as jurisdictional. See Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir. 1978), overruled
on other grounds, Polk Cty. v. Dodson, 454 U.S. 312 (1981). In other words, “[w]here state action
is found lacking, the section 1983 complaint is properly dismissed for lack of subject matter
jurisdiction.” Id.
Courts disagree as to whether private process servers are state actors. In United States v.
Wiseman, 445 F.2d 792, 796 (2d Cir. 1971), for example, the Second Circuit found that private
process servers could be considered state actors under 18 U.S.C. § 353—the criminal counterpart
to 42 U.S.C. § 1983. Like Severit and ProVest, the defendants in Wiseman were private process
servers accused of falsifying affidavits of service. Id. at 795. “The State did not pay them; their
employer was hired by various attorneys for the purpose of effecting service of papers in
connection with lawsuits.” Id. That said, “[u]nlike most functions involved in the conduct of a
lawsuit by private parties, the service of summons is essentially and traditionally a public
function.” Id. at 796. The Second Circuit therefore found that the private process servers were state
actors under 18 U.S.C. § 353 and subject to suit. Id.
Other courts, however, came to the opposite conclusion. E.g., Schrader v. Turner, 338 Fed.
App’x 761, 761–63 (10th Cir. 2009) (affirming the dismissal of a private process server because
he was not a state actor under § 1983); accord. Clowers v. Cradduck, No. 5:15–CV–05260, 2016
WL 5886893, at 4 (W.D. Ark. Oct. 6, 2016) (“Process servers are not state actors . . . .”). And
some found that other professionals like private process servers are not state actors. E.g. Dean v.
Olibas, 129 F.3d 1001, 1006 n.4 (8th Cir. 1997) (bail bondsmen).
Berry contends that § 1983 “clearly establish[es] the right to sue anyone who will violate
constitutional rights . . . .” (Pl.’s Resp. 2) (emphasis added). He also argues that Severit “acted as
an officer of the court” when he made “a sworn statement in an affidavit under the penalty of
perjury.”(Id.). The Court disagrees. Severit and ProVest were not acting “under color of” state law
when they made misrepresentations in the Affidavit of Service. “[T]o qualify as a traditional,
exclusive public function . . . , the government must have traditionally and exclusively performed
the function.” Manhattan Cmty. Access Corp., 139 S. Ct. at 1929 (emphasis in original). “ ‘[V]ery
few’ functions fall into that category.” Id. (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158
(1978)). True enough, due process requires defendants to receive notice of suits against them. But
even public defenders—whose duties are rooted in the Sixth Amendment guarantee to criminal
representation—are not considered state actors. See Polk Cty., 454 U.S. at 451–52. The same could
be said about private process servers: private citizens that interact with the State only in pursuing
their own private interests.
What’s more, although the State of Illinois typically, though not exclusively, delegates
service of process to the local sheriff, see 735 Ill. Comp. Stat. § 5/2-202(a), the Seventh Circuit
has held that “[n]on-judicial officials whose official duties have an integral relationship with the
judicial process are entitled to absolute immunity for their quasi-judicial conduct,” Henry,
808 F.2d at 1238; accord. Heller v. Heller, No. 86 C 7872, 1989 WL 152556, at *4 (N.D. Ill. Dec.
6, 1989) (finding that a special process server under § 5/2-202(a) enjoyed absolute immunity). In
other words, even if Severit and ProVest could be considered state actors, they could also be
considered quasi-judicial officials acting within the scope of their official duties and thus immune
from liability.
III. CONCLUSION
The Court DISMISSES Plaintiff Gary Louis Berry’s Complaint WITHOUT
PREJUDICE and DIRECTS the Clerk of Court to enter judgment.
IT IS SO ORDERED.
Dated: Tuesday, June 23, 2020
S/J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE