Derek Case v. MICHAEL MILEWSKI , MICHAEL HOYLE , and JOHN KNOWLTON

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3803
D EREK C ASE ,
Plaintiff-Appellant,
v.
M ICHAEL M ILEWSKI , M ICHAEL H OYLE ,
and J OHN K NOWLTON ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1914—Paul E. Plunkett, Judge.
____________
A RGUED S EPTEMBER 17, 2002—D ECIDED A PRIL 25, 2003
____________
Before C OFFEY , E VANS , and W ILLIAMS , Circuit Judges.
C OFFEY , Circuit Judge. Derek Case brought this suit
against three members of the Great Lakes Naval Train-
ing Center police force—officers Milewski, Hoyle, and
Knowlton—alleging that the officers violated his Fourth
and Fifth Amendment rights by seizing him without
probable cause and depriving him of freedom of movement.
Case argues that he may sue the officers pursuant to either
42 U.S.C. § 1983 or as part of an action authorized by
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). The
district court granted the officers’ motion to dismiss on
grounds that Case’s Amended Complaint failed to state
a cause of action, from which Case appeals. We affirm.

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2 No. 01-3803
I. BACKGROUND
On review, this court must accept as true all well-plead
factual allegations of the complaint, drawing all reason-
able inferences in petitioner’s favor. Midwest Grinding Co.
v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). Case alleges
that on June 15, 1999, he loaded his rottweiler and his
golf clubs into his car and drove to Willow Glen Golf
Course with the intent of playing a round of golf. The
course is located on the grounds of the Great Lakes Naval
Base in Illinois. The manager informed Case that he was
not properly dressed to play because his shirt lacked a
collar, instigating a dispute between Case and the manager
concerning the Golf Course’s dress code. Eventually, the
Great Lakes Police were called and officers Knowlton,
Hoyle, and Milewski responded. At the officers’ request,
Case left the golf shop and returned to his car with the
intention of taking his dog, which had been left in his car,
for a walk.
Case retrieved his dog and walked to Buckley Road, a
public state highway immediately adjacent to the golf
course. While Case stood waiting for a break in traffic, the
officers approached Case and asked him for identifica-
tion. Case responded that he did not have his identifica-
tion with him, but Case gave the officers his name and
birth date. When Case asked to leave the officers replied,
“sure, but you have to take your car or we will tow it.” Case
responded that his car was not illegally parked and that
he just wanted to take a walk. Officer Milewski then
cautioned, “you can’t go in the street, you’re a traffic haz-
ard” and further suggested that Case should return to his
car.
When Case returned to his car and got in, Officer
Milewski reminded Case that he could not drive because
he did not have his license with him. When Case responded
that he would search for his license in the car, one of

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No. 01-3803 3
the officers parked a squad car behind Case’s vehicle to
block him in. Case left the car with his rottweiler and
walked back to the roadway, off the grounds of the naval
base. Officers Knowlton and Hoyle walked alongside Case
as he walked east on the road’s median while Officer
Milewski followed in his squad car.
When Case attempted to cross the street and walk away
from the situation Officer Hoyle blocked his path. Officer
Hoyle took out his pepper spray and held it in his right
hand. In reply to Case’s inquiry about the pepper spray,
Officer Hoyle elbowed Case and informed him to return
to the parking lot. Case insisted that he had done nothing
wrong, that he was not a threat to the officers or others,
and that he just wanted to walk his dog, but Officer
Hoyle shoved Case at least twice and again demanded that
Case return to the parking lot. When Case told Officer
Hoyle to stop touching him, Officer Milewski shoved
Case from behind into Officer Hoyle, prompting Hoyle to
pepper spray Case. Case fell to the ground. When Case
failed to physically yield to the officers so that handcuffs
could be placed on him, a struggle ensued in which Case
was struck. After his arrest Case was charged under Illi-
nois law for disorderly conduct, assault, and resisting
arrest. Although the disorderly conduct and assault
charges were subsequently dismissed, Case plead guilty
to resisting arrest.
II. DISCUSSION
A. Case’s § 1983 Claim
Case filed a complaint under 42 U.S.C. § 1983 alleging
that the officers violated his rights under the Fourth
and Fifth Amendments to the United States Constitution.
To state a claim under § 1983 a plaintiff must allege two
elements: (1) the conduct complained of was committed
by a person acting under color of state law; and (2) the

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4 No. 01-3803
activity deprived a person of rights, privileges, or immuni-
ties secured by the Constitution or laws of the United
States. West v. Atkins, 487 U.S. 42, 48 (1988); Yang v.
Hardin, 37 F.3d 282, 284 (7th Cir. 1994); Moore v. Mar-
ketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir.
1985). The district court dismissed Case’s § 1983 claim,
pursuant to Rule 12(b)(6), finding that Case failed to state
a claim that the officers were acting under color of state
law. This court reviews a 12(b)(6) dismissal de novo. Pickrel
v. City of Springfield, Illinois, 45 F.3d 1115, 1118 (7th Cir.
1995). “A court may dismiss a complaint only if it is
clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.”
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
This court has recognized two circumstances in which
defendants may be found to act under color of state law.
The first is when the state has cloaked the defendants
in some degree of authority—normally through employ-
ment or some other agency relationship. See Yang, 37 F.3d
at 284 (finding that Chicago police officers were acting
under color of state law when “[t]hey were on duty, wearing
Chicago police uniforms, driving a marked squad car
and were investigating a crime”); Pickrel, 45 F.3d at
1118 (finding an off-duty Springfield, Illinois police offi-
cer could have been acting under color of state law be-
cause he was wearing his police uniform and displaying
his badge); Easter House v. Felder, 910 F.3d 1387, 1394
(7th Cir. 1990) (en banc) (recognizing that, in processing
a private adoption agency’s license application, an admin-
istrative agency acts under color of state law); but see
Honaker v. Smith, 256 F.3d 477, 484-85 (7th Cir. 2001)
(noting that “ ‘not every action by a state official or em-
ployee is deemed as occurring ‘under color’ of state law’. . . .
[A]cts by a state officer are not made under color of state
law unless they are related in some way to the perform-
ance of the duties of the state office.” (quoting Hughes v.

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No. 01-3803 5
Meyer, 880 F.2d 967, 971 (7th Cir. 1989))); Gibson v. City of
Chicago, 910 F.2d 1510, 1516-17 (7th Cir. 1990) (same).
The second circumstance in which we have recognized
that defendants may be found to act under color of state
law is when the defendants have conspired or acted in
concert with state officials to deprive a person of his civil
rights. Adickes v. S.H. Kress and Company, 398 U.S. 144,
152 (1970); Moore, 754 F.2d at 1352. “In order to establish
a conspiracy, the plaintiff must demonstrate that the
state officials and the private party somehow reached an
understanding to deny the plaintiffs their constitutional
rights.” Moore, 754 F.2d at 1352; see also Spear v. Town
of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992) (“To state
a claim against a private entity on a section 1983 conspir-
acy theory, the complaint must allege facts demonstrat-
ing that the private entity acted in concert with the state
actor to commit an unconstitutional act.”); Ciambriello
v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002)
(same). Although an action brought pursuant to § 1983
cannot lie against federal officers acting under color of
federal law, Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir.
1972) (on remand), it is assumed that a § 1983 action can
lie against federal employees—as it can against private
individuals—if they conspire or act in concert with state
officials to deprive a person of her civil rights under color
of state law. Billings v. United States, 57 F.3d 797, 801
(9th Cir. 1995).
Case argues that the officers were either cloaked in state
authority or conspired with the state to violate his civil
rights. To establish a connection between the defendants
and the state, Case points to the citations issued to him
after his encounter with the defendants. The citations
concern exclusively state criminal offenses—disorderly
conduct, assault, and resisting a peace officer. The cita-
tions are prepared on state forms, list the Circuit Court of

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6 No. 01-3803
Lake County, Illinois as the venue in which the offenses
were to be heard, and are signed by Officer Milewski. In
addition, Case also reminds this court that he was not
on federal property when the offenses allegedly occurred.
Case’s allegations, however, fail to meet either of the
§ 1983 tests for “under color of state law.” Nowhere in the
complaint does Case allege that the State of Illinois
cloaked the federal officers in any degree of state author-
ity. Nor do the facts presented in the Complaint support
such a conclusion. To the contrary, the facts plead in Case’s
Amended Complaint, by which this court is bound, establish
that the defendants are Great Lakes police officers. Great
Lakes is not a state, county, or municipality, but a fed-
eral naval base patrolled by federal officers.
Similarly, Case also fails to allege that there was a
conspiracy between state officials and the defendants
to deprive Case of his civil rights. Nowhere in the Com-
plaint does Case demonstrate that state officials and the
defendants reached an understanding to deny Case his
constitutional rights. Instead, the facts in the Complaint
show that the defendants’ actions were taken under color
of federal law; federal officers appeared at a federal prop-
erty in response to a complaint by a federal employee about
an allegedly disorderly person. After the federal officers
arrived at the golf course, their subsequent conduct re-
flected their federally-assigned duty to patrol federal
property.
Case’s argument that the defendants’ ceased to be
operating under color of federal law once they left the
federally owned golf course is without merit. After respond-
ing to the golf course manager’s call for intervention, all
subsequent interaction the officers had with Case was
an investigation of an incident on federal property. Whether
in continuing their investigation the federal officers vio-
lated Case’s civil rights, is not a question under § 1983.

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No. 01-3803 7
Rather, the officers’ conduct under color of federal law is
a question relevant to Case’s Bivens claims.
B. Case’s Bivens Claims
Case argues that the officers violated the Fourth
Amendment because they unconstitutionally seized him
and violated the Fifth Amendment by infringing on his
liberty, contrary to his procedural due process rights, and
harassing him, contrary to his substantive due process
rights. This court previously explained that “a seizure
that passes muster under the Fourth Amendment should
also satisfy the requirements of the due process clause.”
McKinney v. George, 726 F.2d 1183, 1187 (7th Cir. 1984);
see also Albright v. Oliver, 510 U.S. 266, 275 (holding
that substantive due process is not a basis for challenging
the lawfulness of arrest). Thus, if this court upholds Case’s
arrest when it is reviewed under Fourth Amendment rules,
Case will not succeed by recasting his challenge in the
language of due process. McKinney, 726 F.2d at 1187.
The Bivens Court held that a violation of the Fourth
Amendment by a federal agent acting under color of fed-
eral authority gives rise to a cause of action for damages
flowing from the unconstitutional conduct. Bivens, 403 U.S.
at 389. Case argues that he is entitled to damages be-
cause he was arrested without probable cause when he
was pepper sprayed. Case claims that at the time he was
sprayed, he was merely attempting to walk away from
the officers.
Because Case plead guilty to resisting arrest, however,
his claim is barred by Heck v. Humphrey, 512 U.S. 477
(1994). The Heck court held that:
[I]n order to recover damages for allegedly unconstitu-
tional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render

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8 No. 01-3803
a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to
make such a determination, or called into question by
a federal court’s issuance of a writ of habeas corpus.
Heck, 512 U.S. at 486-87. This court further held that, in
addition to § 1983 claims, Heck applies to Bivens claims.
Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997). If
this court were to allow Case to recover damages because
he was arrested without probable cause, Case’s conviction
would be rendered invalid because, under Illinois law, so
long as there is physical resistance an officer has probable
cause to arrest someone who resists an arrest attempt.
Ryan v. County of DuPage, 45 F.3d 1090, 1093 (7th Cir.
1995). Thus, because Case’s resisting arrest convic-
tion has not been called into question, Heck bars Case’s
Fourth Amendment claim. In upholding Case’s arrest un-
der Fourth Amendment standards, we further conclude
that his due process arguments fail. See McKinney, 726
F.2d at 1187.
Accordingly, we A FFIRM the decision of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-25-03

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