Graumenz v. Fritcher

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JACOB B. GRAUMENZ, and )

GARY DWIGHT GRAUMENZ, JR., )

)

Plaintiffs, )

)

vs. ) Case No. 23-cv-2234-DWD

)

UNITED STATES OF AMERICA, )

ROBERT FRITCHER, and )

UNKNOWN FBI OFFICERS/AGENTS,)

)

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiffs Jacob B. Graumenz and Gary Dwight Graumenz, Jr. filed this Amended

Complaint1 against Defendants Robert Fritcher and Unknown FBI Officers/Agents

seeking equitable relief and damages for the unlawful search of their residence and

detainment, and resulting property damage, loss, and reputational and emotional harms

(Doc. 14).2 Now before the Court are Plaintiff Jacob Graumenz’s Motion for Leave to

1 The document submitted by Plaintiffs as the “Amended Complaint” (Doc. 14) contains three separate

documents: a complaint signed by Plaintiff Jacob Graumenz, Plaintiff Jacob Graumenz’s signed affidavit,

and a complaint signed by Plaintiff Gary Graumenz. Because courts should liberally construe pro se filings

and afford pro se plaintiffs leniency in procedural matters, which includes consideration of materials

attached to complaints, see Otis v. Demarasse, 886 F.3d 639, 644-645 (7th Cir. 2018) (finding that supplemental

materials implicitly incorporated the first amended complaint by reference and screening the complaint

based on both the first amended complaint and supplemental materials), the Court considers these three

documents together as the “Amended Complaint.”

2 On October 25, 2023, the Court dismissed Plaintiffs’ Complaint (Doc. 2) without prejudice for failure to

state a claim and granted leave to file an amended complaint (Doc. 13). Accordingly, the Court also

denied without prejudice Plaintiffs’ Motion for Leave to Proceed in forma pauperis (Doc. 4), Motion for

Recruitment of Counsel (Doc. 5), and Motion for Service of Process at Government Expense (Doc. 6).

Proceed in forma pauperis (Doc. 15), Plaintiffs’ Motion for Recruitment of Counsel (Doc.

16), Plaintiffs’ Motion for Service of Process at Government Expense (Doc. 17), and

Plaintiff Gary Dwight Graumenz, Jr.’s Motion for Leave to Proceed in forma pauperis (Doc.

19).

Legal Standards

Under 28 U.S.C. § 1915(a)(1), a federal court is authorized to permit an indigent

party to commence a civil action without prepaying the required fees. Two issues must

be resolved before in forma pauperis status can be granted. First, the plaintiff must show

he is indigent by submitting an affidavit that includes a statement of all assets he

possesses and that demonstrates he is unable to pay such fees. 28 U.S.C. § 1915(a)(1).

Second, the Court must screen the indigent plaintiff’s complaint. The Court will dismiss

the complaint if it is clearly frivolous or malicious, fails to state a claim, or is a claim for

money damages against an immune defendant. 28 U.S.C. § 1915(e)(2)(B); see also Hoskins

v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003) (“District judges have ample authority to

dismiss frivolous or transparently defective suits spontaneously, and thus save everyone

time and legal expense.”).

Upon review of Plaintiffs’ Motions to Proceed in forma pauperis (Docs. 15, 19), the

Court is satisfied that Plaintiffs Jacob and Gary Graumenz are indigent at this time.

However, the second prong requires additional analysis. A complaint must include “a

short and plain statement of the claim showing that the pleader is entitled to relief.” See

Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The statement

must contain sufficient factual matter, accepted as true, to “state a claim to relief that is

plausible on its face,” which means that the pleaded facts must show there is “more than

a sheer possibility that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). When screening a pro se plaintiff’s complaint, courts construe the plaintiff’s

allegations liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Courts also

must “accept all well-pleaded facts as true and draw reasonable inferences in the

plaintiff’s favor.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016).

The Amended Complaint

Plaintiffs bring claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

1346, 2671-2680, and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging

violations under the Second, Fourth, Fifth, and Sixth Amendments (Doc. 14, p. 1).

Plaintiffs allege as follows in the Amended Complaint:

On May 10, 2022, twelve to fifteen FBI agents (“Unknown FBI Agents/Officers”),

led by Defendant Robert Fritcher, forcefully entered Plaintiffs’ residence (Id. at 5).

Defendants used concussion grenades and a vehicular battering ram, smashed through a

storm door, and broke a bathroom window (Id.). Defendants forced Plaintiffs to walk

barefoot across the road, which harmed Gary Graumenz’s healing broken leg (Id.).

Plaintiffs’ requests to see the warrant were initially denied (Id.). At some point,

Defendants provided the warrant to Gary Graumenz (Id.). But the warrant did not

describe the persons or items to be seized with particularity (Id.). Defendants admitted

they did not have a warrant for Plaintiffs’ cell phones but confiscated them nonetheless

(Id.).

Plaintiffs attached a portion of the warrant to their Amended Complaint (Doc. 14-

2, p. 6). The warrant identifies the premises located at 515 West Fillmore, Vandalia,

Illinois, Fayette County, as the property to be searched (Id.). The warrant further indicates

that the person or property to be searched are described in Attachment A, and that what

the search is expected to reveal is described in Attachment B (Id.). Plaintiffs, however, did

not receive a copy of attachments A and B, and they are not included as exhibits to the

Amended Complaint (Doc. 14, p. 5).

Plaintiffs were unlawfully detained at their residence and the Fayette

County Courthouse before being released without charges (Id.). Plaintiffs’ requests to

contact a lawyer were denied (Id.). Defendants also confiscated and have not returned

Plaintiffs’ personal property (Id.).

Plaintiffs estimate the events of that day resulted in property damage exceeding

$17,000.00 (Id. at 6). In addition, Plaintiff Jacob Graumenz lost his career as a satellite

installation technician because of this incident (Id. at 7). Plaintiffs seek over $2 million

dollars in monetary damages and equitable relief requiring Defendants to “undergo

retraining [and] acknowledge the violation of their oath to the United States

Constitution” and the return of their seized property (Id. at 2, 6, 17).4

Discussion

4 As the FTCA only authorizes monetary damages, Plaintiffs’ Bivens claims are the only possible avenue

for equitable relief. See Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011).

Based upon the allegations in the Amended Complaint and Plaintiffs’ articulation

of their claims, the Court designates the following claims in this pro se action.5 The

designation of the counts does not constitute an opinion as to their merit.

Count 1: A Fourth Amendment Claim for damages and equitable relief under

Bivens against Robert Fritcher in his individual capacity and against

Unknown FBI Officers/Agents in their individual capacities for

violating Plaintiffs’ right to be free from unreasonable search and

seizure.

Count 2: A Fourth Amendment Claim for damages and equitable relief under

Bivens against Robert Fritcher in his individual capacity and against

Unknown FBI Officers/Agents in their individual capacities for

wrongfully arresting Plaintiffs.

Count 3: A Sixth Amendment Claim for damages and equitable relief under

Bivens against Robert Fritcher in his individual capacity and against

Unknown FBI Officers/Agents in their individual capacities for

denying Plaintiffs’ right to counsel.

Count 4: An FTCA claim for damages against the United States for false

imprisonment.

Count 5: An FTCA claim for damages against the United States for

conversion.

Count 6: An FTCA claim for damages against the United States for trespass.

Count 7: An FTCA claim for damages against the United States for battery.

Bivens Claims

5 Although the Court liberally construed the narrative in Plaintiffs’ Amended Complaint, Plaintiffs do not

sufficiently allege claims under the Second or Fifth Amendments. See Moore v. Blair, 557 F. App'x 577, 578

(7th Cir. 2014) (“We give pro se appellants leeway and do our best to discern the legal basis for their

arguments....”). Any claims related to Second or Fifth Amendment violations, or any other claims

mentioned in the Amended Complaint but not addressed in this order, should be considered dismissed

without prejudice.

The Supreme Court's decision in Bivens “established that the victims of a

constitutional violation by a federal agent have a right to recover damages against the

official in federal court despite the absence of any statute conferring such a right.” Carlson

v. Green, 446 U.S. 14, 18 (1980). There are three commonly accepted Bivens claims:

unreasonable searches and seizures in violation of the Fourth Amendment, violations of

the Fifth Amendment right to due process for gender discrimination, and violations of

the Eighth Amendment for deliberate indifference to serious medical needs. See Bivens,

403 U.S. 388 (Fourth Amendment claim for warrantless search and seizure); Davis v.

Passman, 442 U.S. 228 (1979) (Fifth Amendment Due Process claim for gender-based

termination of female government employee); Carlson, 446 U.S. at 14 (Eighth Amendment

deliberate indifference claim regarding deceased inmate's asthma care regime). Unless

“special factors” counsel otherwise, federal courts should not expand Bivens actions to

new contexts (i.e., contexts that are “different in a meaningful way from previous Bivens

cases decided by the Court”). Ziglar, 137 S.Ct. at 1859-60; see also Hernandez v. Mesa, 140 S.

Ct. 735, 737 206 L. Ed. 2d 29 (2020) (“Bivens’ expansion has since become ‘a disfavored

judicial activity’ . . . and the Court has generally expressed doubt about its authority to

recognize causes of action not expressly created by Congress.”). An inquiry of “special

factors” requires a court to determine “whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the costs and benefits of

allowing a damages action to proceed.” Ziglar, 137 S.Ct. at 1857-58. The Ziglar Court

indicated that special factors to consider may include: the impact of a damages remedy

on governmental operations, respecting the role of Congress in determining federal-court

jurisdiction, and whether there is an alternative remedial structure present. Id. at 1858.

Count 1

Under the Fourth Amendment, individuals have “a right to be free from

unreasonable searches and seizures and [have] a right to be the subject of a warrant only

when the warrant was supported by probable cause and particularly described the place

and people to be searched.” Jones v. Wilhelm, 425 F.3d 455, 461-62 (7th Cir.

2005) (quoting U.S. CONST. Amend. IV). The warrant must describe the place to be

searched with particularity, and searches performed pursuant to warrants that fail to

meet the particularity requirement violate the Fourth Amendment. Id. at

462 (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987); Massachusetts v. Sheppard, 468 U.S.

981, 988 n.5 (1984)). Plaintiffs allege that the warrant they received was not sufficiently

particular (Doc. 14, p. 5). If proven to be true, Plaintiffs’ allegations could constitute a

violation of the Fourth Amendment. Accordingly, Count 1 survives against Robert

Fritcher and the Unknown FBI Officers/Agents.

However, Plaintiffs’ request for equitable relief cannot proceed.6 Equitable relief

is not an established remedy under Bivens, and there are no special factors which counsel

an extension in this case. Ziglar, 137 S.Ct. at 1859-60. Even if equitable relief was a

permitted remedy for Bivens claims, Plaintiffs have failed to demonstrate why monetary

damages are not an adequate remedy such that equitable relief is appropriate. “Damages

6 Plaintiff asks the Court to order Defendants to “undergo retraining [and] acknowledge the violation of

their oath to the United States Constitution” and return their seized property (Doc. 14, pp. 2, 6).

are a normal, and adequate, response to an improper search or seizure, which as a

constitutional tort often is analogized to (other) personal-injury litigation.” Campbell v.

Miller, 373 F.3d 834, 835-36 (7th Cir. 2004).

Count 2

An unlawful arrest claim requires a plaintiff to demonstrate that he was arrested

without probable cause. Gonzalez v. City of Elgin, 578 F.3d 526, 538 (7th Cir. 2009). An agent

has probable cause, if, at the time of the arrest, the “facts and circumstances within the

agent’s knowledge … are sufficient to warrant a prudent person, or one of reasonable

caution, in believing … that the suspect has committed, is committing, or is about to

commit an offense.” Id. at 537 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).

Probable cause is an absolute defense to a claim of wrongful arrest under the Fourth

Amendment and is evaluated from the perspective of a reasonable agent facing the same

situation. Ewell v. Toney, 853 F.3d 911 (7th Cir. 2017); Williams v. City of Chicago, 733 F.3d

749, 756 (7th Cir. 2013). Where the underlying facts supporting probable cause are

undisputed, a Court may decide probable cause existed at the time of arrest. Gonzalez,

578 F.3d at 537 (citing Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993)).

The Amended Complaint alleges Plaintiffs were arrested without probable cause.

Plaintiffs claim that the agents “openly said they had no idea Jacob Graumenz lived at

the residence meaning his rented space could not have been listed in the warrant not

meeting the specific requirements listed in the 4th amendment” and that Defendants

denied Plaintiffs’ requests “to see the reason the raid was justified” (Doc. 14, p. 5).

Plaintiffs claim they were held for one hour while agents searched their residence and

then were transferred to cells at the Fayette County Courthouse for six hours, where they

were not provided “any explanation” for their detention (Id. at 5). These facts are

sufficient to proceed on the unlawful arrest claim.

Accordingly, Count 2 may proceed as to Robert Fritcher and the Unknown FBI

Officers/Agents. However, as with Count 1, Plaintiffs’ request for equitable relief does

not survive screening.

Count 3

As discussed in detail below, there is no right of a civil litigant to have counsel

appointed. It is in a criminal case setting where “[t]he right to counsel attaches only at or

after the initiation of adversary judicial proceedings against the defendant.” United States

v.Gouveia, 467 U.S. 180 104 S. Ct. 2292, 2293, 81 L. Ed. 2d 146 (1984) (citing Kirby v. Illinois,

406 U.S. 682, 688-89, 92 S. Ct. 1877, 1881-82, 32 L. Ed. 2d 411 (1972). And, an arrest or

issuance of an arrest warrant, without formal charges, is insufficient to trigger the Sixth

Amendment right to counsel. Id. at 190 (“we have never held that the right to counsel

attaches at the time of arrest”); see also Moran v. Burbine, 475 U.S. 412, 428 106 S. Ct. 1135,

89 L. Ed. 2d 410 (1986) (“[T]he defendant has the right to the presence of an attorney

during any interrogation occurring after the first formal charging proceeding, the point

at which the Sixth Amendment right to counsel initially attaches.”). The Amended

Complaint states that Plaintiffs were detained at their residence and then released

without charges. There is no allegation that either of the Plaintiffs were interrogated.

Accordingly, the Sixth Amendment right to counsel did not attach (Doc. 14, p. 5).

But, even if the Sixth Amendment right to counsel did attach, Plaintiff’s Sixth

Amendment claim does not fit within any of the three scenarios recognized by Bivens.

The Seventh Circuit has not ruled on whether Bivens extends to Sixth Amendment claims,

but has questioned whether, after Ziglar, such claims are cognizable. See Petrunak v. Krofta,

858 F. App’x. 922, 924 (7th Cir. 2021) (declining to decide the issue of whether Sixth

Amendment violations are actionable under Bivens because the amended complaint

failed to state a plausible claim for relief on the merits); Sebolt v. Samuels, 749 F. App’x

458, 459-60 (7th Cir. 2018) (suggesting in dicta that there is no Bivens remedy for Sixth

Amendment violations); see also White v. Collis, No. 20-CV-01117-JPG, 2021 WL 847987 *3

(S.D. Ill. Mar. 5, 2021) (“Neither the Supreme Court nor the Seventh Circuit has declared

a Sixth Amendment violation actionable under Bivens.”). Neither are there any “special

factors” in this case that would urge expanding Bivens here. Consistent with the previous

rulings cited, the Court declines to extend Bivens to Plaintiff’s claim for denial of counsel

under the Sixth Amendment. Therefore, Count 3 in its entirety is DISMISSED without

prejudice.

FTCA Claims

The FTCA waives the United States’ sovereign immunity “for certain torts

committed by federal employees.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). It “makes the

United States liable to the same extent as a private individual under like circumstances,

under the law of the place where the tort occurred, subject to enumerated exceptions to

the immunity waiver.” Levin v. United States, 568 U.S. 503, 506–07 (2013) (internal

punctuation and citations omitted). “In FTCA cases, state law applies to substantive

questions and federal rules govern procedural matters.” Gil v. Reed, 535 F.3d 551, 558 n.2

(7th Cir. 2008). Plaintiffs’ claims in this case are governed by Illinois law because it is the

state where the alleged torts occurred. See Parrott v. United States, 536 F.3d 629, 637 (7th

Cir. 2008); see also Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003).

Count 4

The FTCA's waiver of sovereign immunity is subject to a number of exceptions set

forth in 28 U.S.C. § 2680. The “intentional tort exception” preserves the government's

immunity from suit for “[a]ny claim arising out of assault, battery, false imprisonment,

false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation,

deceit, or interference with contract rights,” except for claims arising “out of assault,

battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” that

are asserted against “investigative or law enforcement agents of the United States

Government” (i.e., the “law enforcement proviso”). 28 U.S.C. § 2680(h); Millbrook v. United

States, 569 U.S. 50, 54-57, 133 S. Ct. 1441, 185 L. Ed. 2d 531 (2013). The law enforcement

proviso defines an “investigative or law enforcement agent” as “any agent of the United

States who is empowered by law to execute searches, to seize evidence, or to make arrests

for violations of Federal law.” § 2680(h). Thus, sovereign immunity is waived with

respect to a claim alleging false imprisonment by federal law enforcement agents. See,

e.g., Liranzo v. United States, 690 F.3d 78, 94–95 (2d Cir.2012) (“[T]he United States has

indeed waived its sovereign immunity from suit as to Liranzo's ‘claim,’ which ‘aris[es] ...

out of ... false imprisonment [and] false arrest.’” (quoting § 2680(h))).

As stated above, state law provides the substantive law governing an FTCA claim.

Under Illinois law, to state a claim for false imprisonment, “the plaintiff must allege that

his personal liberty was unreasonably or unlawfully restrained against his will and that

defendant(s) caused or procured the restraint.” Arthur v. Lutheran Gen. Hosp., 295

Ill.App.3d 818, 230 Ill.Dec. 72, 692 N.E.2d 1238, 1243 (1998). A claim for false

imprisonment requires a showing that “the plaintiff was restrained or arrested by the

defendant, and that the defendant acted without having reasonable grounds to believe

that an offense was committed by the plaintiff.” Meerbrey v. Marshall Field & Co., 139 Ill.2d

455, 151 Ill.Dec. 560, 564 N.E.2d 1222, 1231 (1990). Stated differently, a plaintiff must show

that he was restrained unreasonably or without probable cause to succeed on a claim for

false imprisonment. Martel Enters. v. City of Chi., 223 Ill.App.3d 1028, 164 Ill.Dec. 945, 584

N.E.2d 157, 161 (1991).

As previously stated, when liberally construed, the Amended Complaint alleges

Plaintiffs were arrested and detained without probable cause. These allegations are

sufficient to allow Count 4 to proceed.

Count 5

Conversion under Illinois law requires a plaintiff to “establish that (1) he has a

right to the property; (2) he has an absolute and unconditional right to the immediate

possession of the property; (3); he made a demand for possession; and (4) the defendant

wrongfully and without authorization assumed control, dominion, or ownership over

the property.” Loman v. Freeman, 890 N.E.2d 446, 461 (Ill. 2013). In the Amended

Complaint, Plaintiffs provide a receipt from the FBI that lists the property seized from

Plaintiff Gary Graumenz along with handwritten annotations (Doc. 14-2, p. 7). The list

describes the following property: “[t]wo (2) purple capsules, suspected cannabis seeds,

HiPoint 9mm (ser # F229073), Taurus G39mm (Ser ACD791301), two (2) ammo boxes,

Smith & Wesson SD 40 (Ser FDP6770), green leafy substance, various pill bottles

containing residue and/or pills, vacuum chamber kit (bacoeng.com) scale, crystal-like

substance, and a tray (blue in color)” and “[two] cell phones [seized] without warrant”

(Doc. 14-2, p. 7). Plaintiffs allege that, although no charges have been filed against them,

the specified items on the list have not been returned (Doc. 14, pp. 6, 13).

Under the detained-goods exception, the FTCA preserves sovereign immunity for

suits arising from “the detention of goods, merchandise, or other property by any … law

enforcement agent.” 28 U.S.C. § 2680(c). The Seventh Circuit has held this exception

applies to any goods detained pursuant to a criminal investigation. See Smoke Shop, LLC

v. United States, 761 F.3d 779, 783-84 (7th Cir. 2014); see also Johnston v. Hoogland, 2017 WL

11500972, *3 (N.D. Ill. 2017) (holding that a conversion claim against federal agents

pursuant to the FTCA was barred by the detained-goods exception because the relevant

goods were seized during a criminal investigation). However, Congress created an

exception to the detained-goods exception in the Civil Asset Forfeiture Reform Act

(“CAFRA”). CAFRA’s exception applies only when the following four conditions have

been met:

(1) the property was seized for the purpose of forfeiture under any provision of

Federal law providing for the forfeiture of property other than as a sentence

imposed upon conviction of a criminal offense;

(2) the interest of the claimant was not forfeited;

(3) the interest of the claimant was not remitted or mitigated (if the property was

subject to forfeiture); and

(4) the claimant was not convicted of a crime for which the interest of the claimant

in the property was subject to forfeiture under a Federal criminal forfeiture law.

28 U.S.C. § 2680(c); see also Pearson v. U.S., 373 Fed.Appx. 622, 623 (7th Cir. 2010) (affirming

the district court’s finding that “CAFRA only ‘rewaived’ sovereign immunity when law

enforcement agents seized the property solely for the purpose of forfeiture; seizure for

any other purpose, or even for dual purposes including forfeiture, was not enough to

escape the ‘detention of goods’ exception.”); Al-Dahir v. United States, No. CIV.A. 08-4502,

2010 WL 3922177 (E.D. La. Sept. 30, 2010) (dismissing the plaintiff’s FTCA conversion

claim because the court was “not convinced that [CAFRA’s] application extends beyond

property seizures instituted as part of civil forfeiture proceedings . . . and the seizure at

issue [t]here did not occur as part of a civil forfeiture proceeding.” (citing Foster v. United

States, 522 F.3d 1071, 1075 (9th Cir.2008)).

At this early stage, the Court cannot resolve whether Plaintiffs’ property was

seized pursuant to a criminal investigation or forfeiture. Therefore, Plaintiffs’ claim for

conversion under the FTCA for the allegedly seized property survives screening.

Additionally, Plaintiffs attach a list of items allegedly damaged by agents during

the search of his home: a robot lawn mower, smart lock, various décor, gun safe, water

heater, and antique toolbox (Doc. 14-2, p. 9). The Court finds no exception barring

Plaintiffs’ conversion claim for the allegedly damaged property. The intentional torts

exception does not apply, as conversion is not among the intentional torts in § 2680(h).

Levin, 568 U.S. at 507 n.1 (“Section 2680(h) does not remove from the FTCA’s waiver all

intentional torts, e.g., conversion and trespass”); see also CHoPP Computer Corp. v. United

States, 5 F.3d 1344, 1347 (9th Cir. 1993) (holding that the plaintiffs’ “conversion claim can

be brought under the FTCA.”). Neither does the detained-goods exception apply, as the

allegedly damaged property was never removed from the property or in the possession

of law enforcement and plainly does not qualify as “detained.” On-Site Screening, Inc. v.

U.S., 687 F.3d 896, 898 (7th Cir. 2012) (“The ‘ordinary meaning of the words used’ governs

what constitutes a detention by a law enforcement agent … [a]nd ‘the fairest

interpretation’ of ‘any claim arising in respect of’ the detention of goods … includes a

claim resulting from negligent handling or storage of detained property.’” (quoting Kosak

v. United States, 465 U.S. 848, 853, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1894)). Accepting the

factual allegations in the Amended Complaint as true, the Court finds that Plaintiffs have

sufficiently plead a conversion claim under the FTCA for the allegedly damaged goods.

Accordingly, Count 5 survives screening.

Count 6

Trespass is committed under Illinois law when a person enters, or causes a thing

or third person to enter, land possessed by someone else without permission, invitation,

or other right. Schweihs v. Chase Home Fin. LLC, 2021 IL App (1st) 191779, 187 N.E.3d 1196

(citing Benno v. Central Lake County Joint Action Water Agency, 242 Ill. App. 3d 306, 313, 182

Ill.Dec. 522, 609 N.E.2d 1056 (1993)); see also City of E. St. Louis v. Netflix, Inc., 630 F. Supp.

3d 1003, 1017-18 (S.D. Ill. 2022), aff'd on other grounds sub nom. City of E. St. Louis, Illinois v.

Netflix, Inc., 83 F.4th 1066 (7th Cir. 2023) (collecting cases). A plaintiff must also allege “a

wrongful interference with his actual possessory rights in the property.” City of E. St.

Louis, 630 F. Supp. 3d at 1018 (quoting Loftus v. Mingo, 158 Ill.App.3d 733, 110 Ill.Dec. 368,

511 N.E.2d 203, 210 (1987)).

Here, Plaintiffs allege that Defendants forcefully entered their residence in “full

tactical gear with rifles,” a vehicular ram, and concussion grenades window (Doc. 14, p.

5). Plaintiffs claim the Defendants damaged a storm door, primary outer wall, and

bathroom window (Id.). These facts evince Plaintiffs’ lack of consent to the “raid” on their

residence. Plaintiffs also claim the Defendants did not possess a valid warrant to enter

their residence. These facts sufficiently allege trespass under Illinois law. Additionally,

like Plaintiffs’ conversion claim, trespass is not among the intentional torts waived in §

2680(h) of the FTCA. See Levin v. U.S., 568 U.S. at 507. Accordingly, Count 6 of the

Amended Complaint survives screening.

Count 7

“Under Illinois law, battery is the ‘unauthorized touching’ of another that ‘offends

a reasonable sense of personal dignity.’” Chelios v. Heavener, 520 F.3d 678, 692 (7th Cir.

2008) (quoting Cohen v. Smith, 269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329, 332

(1995)); see also Kling v. Landry, 292 Ill.App.3d 329, 226 Ill.Dec. 684, 686 N.E.2d 33, 41

(Ill.App.2d Dist.1997) (“In order to state a cause of action for intentional battery, a plaintiff

must allege a willful touching of another person without the consent of the person who

is touched.”).

Plaintiffs allege that, at some point during the search of their residence,

Defendants “forced” Plaintiffs “to walk barefoot across the road,” harming Plaintiff Gary

Graumenz’s “healing broken leg with no consideration for his wellbeing” (Doc. 14, p. 5).

Plaintiffs’ allegations indicate no touching by any of the Defendants. Accordingly, Count

7 in its entirety is DISMISSED without prejudice.

Motions to Proceed in forma pauperis

As stated above, Plaintiffs have established that they are indigent and have stated

at least one claim upon which relief may be granted. Accordingly, the Motions to Proceed

in forma pauperis (Docs. 15, 19) are GRANTED.

Motion for Service of Process at Government Expense

It is not necessary for litigants proceeding in forma pauperis to file a motion

requesting service of process by the United States Marshal Service or other process server.

Therefore, the Motion for Service of Process at Government Expense (Doc. 17) is DENIED

AS MOOT.

Motion for Recruitment of Counsel

As an initial matter, Plaintiff Gary Graumenz did not sign the motion in violation

of Fed. R. Civ. P. 11, which provides that “[e]very pleading, written motion, and other

paper must be signed . . . by a party personally if the party is unrepresented.” See Fed. R.

Civ. P. 11. As stated in the Court’s earlier Order directing Plaintiffs to sign all documents

for themselves (Doc. 13), it is inappropriate for non-attorneys to file or sign papers on

behalf of another litigant. Accordingly, the Court considers the Motion for Recruitment

of Counsel (Doc. 16) only as to Plaintiff Jacob Graumenz.

There is no constitutional or statutory right to counsel in federal civil cases.

Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d

1001, 1006 (7th Cir. 2006). In determining whether to recruit counsel, the Court considers

two factors—the plaintiff's efforts to secure his own counsel, and his competence to

represent himself given the difficulty of the case. See Pruitt v. Mote, 503 F.3d 647, 654 (7th

Cir. 2007). Here, Plaintiff has demonstrated attempts to secure counsel. With respect to

his ability to pursue this action pro se, Plaintiff indicates that, although he has some

college education, he needs counsel because the case is complicated, and he does not want

to make mistakes (Doc. 16, p. 2). The Court is not persuaded at this early juncture that

Plaintiff needs counsel to pursue this matter. See Kadamovas v. Stevens, 706 F.3d 843, 845

(7th Cir. 2013) (“[U]ntil the defendants respond to the complaint, the plaintiff's need for

assistance of counsel ... cannot be gauged.”). Moreover, the pleadings in this case

demonstrate that Plaintiff has the ability to prepare and file coherent pleadings.

Accordingly, the Motion for Recruitment of Counsel (Doc. 16) is DENIED without

prejudice.

Unknown FBI Agents Identification

Plaintiffs have been allowed to proceed against Unknown FBI Agents/ Officers.

Once the names of the Unknown FBI Agents/Officers are discovered, Plaintiff must file

a motion to substitute the newly identified defendant(s) in place of the generic

designation in the case caption and throughout the Amended Complaint.

Disposition

IT IS HEREBY ORDERED THAT:

e Count 1 will proceed as a claim for money damages against Defendants

ROBERT FRITCHER and the UNKNOWN FBI OFFICERS/AGENTS, in

their individual capacities, for violating Plaintiffs’ right to be free from

unreasonable search and seizure in violation of the Fourth Amendment and

pursuant to Bivens.

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e Count 2 will proceed as a claim for money damages against Defendants

ROBERT FRITCHER and the UNKNOWN FBI OFFICERS/AGENTS, in

their individual capacities, for wrongful arrest in violation of the Fourth

Amendment and pursuant to Bivens.

e Count 3 is DISMISSED without prejudice in its entirety.

e Counts 4, 5, and 6 will proceed against Defendant UNITED STATES as

claims brought pursuant to the Federal Tort Claims Act.

e Count 7 is DISMISSED without prejudice in its entirety.

The Clerk of Court is DIRECTED to complete, on Plaintiffs’ behalf, a summons

and form USM-285 for service of process on Defendants ROBERT FRITCHER and the

UNKNOWN FBI AGENTS/OFFICERS (once identified), in their individual capacities,

and the UNITED STATES; the Clerk shall issue the completed summons. The United

States Marshals SHALL serve Defendants ROBERT FRITCHER and the UNKNOWN

FBI AGENTS/OFFICERS (once identified) and the UNITED STATES pursuant to Fed.

R. Civ. P. 4(e). All costs of service shall be advanced by the United States, and the Clerk

shall provide all necessary materials and copies to the United States Marshals Service.

In addition, pursuant to Fed. R. Civ. P. 4(i), the Clerk shall (1) personally deliver

to or send by registered or certified mail addressed to the civil-process clerk at the office

of the United States Attorney for the Southern District of Illinois a copy of the summons,

the Amended Complaint (Docs. 14, 14-1, 14-2); and this Memorandum and Order; and

(2) send by registered or certified mail to the Attorney General of the United States at

Washington, D.C., a copy of the summons, the Amended Complaint (Docs. 14, 14-1, 14-

2), and this Memorandum and Order.

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Service shall not be made on the UNKNOWN FBI AGENTS/OFFICERS until

such time as Plaintiffs have identified them by name in a properly filed motion for

substitution of parties. Plaintiffs are ADVISED that it is their responsibility to provide

the Court with the names and service addresses for these individuals.

Defendants are ORDERED to timely file an appropriate responsive pleading to

the Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. §

1997e(g).

Plaintiffs are ADVISED that they are under a continuing obligation to inform the

Clerk of Court and each opposing party of any address changes; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later

than 7 days after a transfer or other change of address occurs. Failure to comply with this

order will cause a delay in the transmission of court documents and may result in

dismissal of this action for failure to prosecute. Fed. R. Civ. P. 41(b).

SO ORDERED.

Dated: July 26, 2024 U be LJ

DAVIDW.DUGAN

United States District Judge

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