Edward Bontkowski v. Brian Smith

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3342
E DWARD B ONTKOWSKI ,
Plaintiff-Appellant,
v.
B RIAN S MITH , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 6353—Wayne R. Andersen, Judge.
____________
S UBMITTED J ULY 25, 2002—D ECIDED S EPTEMBER 26, 2002
____________
Before POSNER , K ANNE , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. This is a suit that is going no-
where; but the district court, by granting a motion to dis-
miss 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), aff’d, 860 F.2d 1082 (7th Cir. 1988); Bontkowski
v. United 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

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2 No. 01-3342
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, No. 01-2182, 2002 WL
31040726, at *1 (7th Cir. Sept. 13, 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 pro-
ceeds from their sale, and another injunction to prohibit
lawyers employed by the federal government from repre-
senting Agent Smith—was relief to which he was not en-
titled. 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 tele-
phone harassment of which he 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

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No. 01-3342 3
as an FBI agent to authorize his representation by the Jus-
tice 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 peo-
ple 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 pro-
tection 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 com-
plaint “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 stand-
ing 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 Los
Angeles v. Lyons, 461 U.S. 95 (1983); O’Shea v. Littleton,
414 U.S. 488, 495-96 (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 men-
tioned. Whether he had standing to obtain a declaratory

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4 No. 01-3342
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 plain-
tiff wants a change in the defendant’s conduct but be-
lieves that it will ensue from a declaration of the plain-
tiff’s rights, and by seeking just the declaration the plain-
tiff 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 plaintiff’s use or disposition of his property. DeWeerth
v. Baldinger, 38 F.3d 1266, 1276 (2d Cir. 1994). And third,
it is a method of depriving the defendant of delay as a
weapon, 10B Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2751 (3d
ed. 1998); an example of this use of declaratory relief is
an insurance company’s suit for a declaration that it has
no duty to indemnify, motivated by fear that if the com-
pany refuses to indemnify its insured and its refusal is later
held to have been mistaken, it will have to pay punitive
damages. See, e.g., Winstead v. J.C. Penney Co., 933 F.2d 576,
577 (7th Cir. 1991).
None of these grounds is available to Bontkowski; nor
can declaratory relief be sought simply as a predicate for
a subsequent damages claim. Liberty Mutual Ins. Co. v.
Wetzel, 424 U.S. 737, 742-44 (1976); Mercer v. Magnant,
40 F.3d 893, 896 (7th Cir. 1994); California ex rel. California
Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772,
776-77 (9th Cir. 1998). That would circumvent the rule
that a judgment in a suit for damages is not final and

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No. 01-3342 5
appealable until the amount of damages is determined
and the defendant ordered to pay it. Liberty Mutual Ins. Co.
v. Wetzel, supra, 424 U.S. at 742-44; Abbs v. Sullivan, 963
F.2d 918, 923 (7th Cir. 1992); Albright v. UNUM Life Ins. Co.
of America, 59 F.3d 1089, 1092-93 (10th Cir. 1995). But in
asking for a declaration of his right to the return of the
prints or, if they’ve been sold, to the proceeds of the sale,
Bontkowski may have meant that he wanted an order that
would give him either the prints or the proceeds, and
so, especially in light of his pro se status, his suit should
have been interpreted as an action for replevin or for an
affirmative injunction or (so far as the proceeds are con-
cerned), in the alternative, for damages. See Community
for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.
Cir. 1987). Moreover, if he can prove his case (a tremen-
dous if, obviously) he would be entitled to the imposition
of a constructive trust on the prints and the proceeds;
his plea for an injunction commanding the return of
the prints or the rendering up of the proceeds if the de-
fendants have sold them can be interpreted as a request
for the imposition of such a trust, a form of equitable re-
lief and thus a cousin to an injunction. See, e.g., Great-
West Life & Annuity Ins. Co. v. Knudson, 122 S. Ct. 708, 714
(2002); Smithberg v. Illinois Municipal Retirement Fund,
735 N.E.2d 560, 565 (Ill. 2000); Davis v. Combes, 294 F.3d 931,
936 (7th Cir. 2002) (Illinois law); In re Barnes, 276 F.3d 927,
929 (7th Cir. 2002); Beatty v. Guggenheim Exploration Co.,
122 N.E. 378, 380 (N.Y. 1919) (Cardozo, J.).
And even if the district court was right that Bontkowski
is seeking relief to which he’s not entitled, this would
not justify dismissal of the suit. Although Rule 8(a)(3) of
the civil rules requires that a complaint contain “a de-
mand for judgment for the relief the pleader seeks,” the
demand is not itself a part of the plaintiff’s claim, Laird
v. Integrated Resources, Inc., 897 F.2d 826, 841-42 and n. 69

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6 No. 01-3342
(5th Cir. 1990); Schoonover v. Schoonover, 172 F.2d 526, 530
(10th Cir. 1949); 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1255 (2d ed. 1990), and so
failure to specify relief to which the plaintiff was entitled
would not warrant dismissal under Rule 12(b)(6) (dismissal
for failure to state a claim). Any doubt on this score is
dispelled by Rule 54(c), which provides that a prevailing
party may obtain any relief to which he’s entitled even if
he “has not demanded such relief in [his] pleadings.” See
Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66 (1978);
Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d
1077, 1081 (7th Cir. 1998); Felce v. Fiedler, 974 F.2d 1484, 1501-
02 (7th Cir. 1992); Lehman v. Revolution Portfolio LLC, 166
F.3d 389, 394 (1st Cir. 1999); Pension Benefit Guaranty Corp.
v. East Dayton Tool & Die Co., 14 F.3d 1122, 1127 (6th Cir.
1994). It would be appropriate and indeed quite sensible
for a judge confronting a complaint that does not demand
proper relief to ascertain whether the plaintiff wants the
improper relief sought in the complaint or nothing; if so,
the complaint must be dismissed. But there is no indica-
tion that Bontkowski has his heart set on declaratory and
injunctive relief. That would make no sense. Obviously he
wants his Dali prints back or, if they’ve been sold, the
proceeds.
Smith defends the dismissal of the suit against him
(remember that Bront, the other defendant, has not both-
ered to appear in the case) on the alternative ground
that Bontkowski’s federal claim is barred by the applicable
statute of limitations, which is two years. See Delgado-
Brunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996). The alleged
theft of the Dali prints occurred approximately three
years before Bontkowski sued. He reported the theft to
the police and was aware that Smith had asked them to
halt their investigation of the alleged theft of another work

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No. 01-3342 7
of art (not one of the Dali prints) owned by him. But he
argues, and on the present undeveloped state of the rec-
ord we must accept, that he didn’t know that Smith was
complicit in Bront’s theft of his Dali prints. He may not
even have known that they knew each other. If a rea-
sonable person in Bontkowski’s position could not have
learned that he had a claim against Smith earlier than he
learned (which he contends was not until January 1999,
after he filed this suit!) or if the defendants actively con-
cealed the claim from him until the statute of limita-
tions ran, he would have a defense to the statute of limita-
tions, by virtue of the doctrines of equitable tolling and
equitable estoppel respectively. E.g., Mitchell v. Donchin,
286 F.3d 447, 450-51 (7th Cir. 2002); Shropshear v. Corpora-
tion Counsel, 275 F.3d 593, 595 (7th Cir. 2001); Athmer v.
C.E.I. Equip. Co., 121 F.3d 294, 297 (7th Cir. 1997)—or at
least the latter, for there is continuing uncertainty whether
the doctrine of equitable tolling exists in Illinois, and it is
that doctrine, not the federal, that applies to cases such
as this in which the statute of limitations is not specified
in federal law but instead is borrowed from a state’s law.
Shropshear v. Corporation Counsel, supra, 275 F.3d at 596.
What is more, the complaint states a claim under Illinois
law for conversion of the prints, and the statute of lim-
itations applicable to such a claim is five years, not two.
735 ILCS 5/13-205. The district judge expressed a disin-
clination to exercise his supplemental jurisdiction over
any state-law claims (and thus not only conversion but
also malicious prosecution) made by Bontkowski. But
Bontkowski also based federal jurisdiction of those claims
on diversity of citizenship, and while he failed to allege
the citizenship of either himself or the defendants, it ap-
pears from the record that he is a citizen of Florida and
Smith and Bront are citizens of Illinois; true, he was in jail
in Illinois when he filed the suit, and that is the operative

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8 No. 01-3342
date for determining the existence of diversity jurisdiction,
but incarceration in a state does not make one a citizen of
that state. A prisoner is a citizen of “the state of which he
was a citizen before he was sent to prison unless he
plans to live elsewhere when he gets out, in which event
it should be that state.” Singletary v. Continental Illinois
National Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir. 1993);
see also Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir. 1996);
Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991); Stifel
v. Hopkins, 477 F.2d 1116, 1124 (6th Cir. 1973) (per curiam).
Florida was Bontkowski’s last state of citizenship before
he was jailed in Illinois and there is no indication that he
intends to move to Illinois (for since filing his suit he
has been transferred to a prison in Florida) when he gets
out of prison.
So we must reverse, but we warn Bontkowski that if
he persists in this litigation and his suit turns out to be
frivolous, as we believe highly likely, he is courting sanc-
tions. Marques v. Federal Reserve Bank, 286 F.3d 1014, 1018
(7th Cir. 2002); In re Mann, 229 F.3d 657, 659 (7th Cir. 2000);
Berwick Grain Co. v. Illinois Dept. of Agriculture, 217 F.3d
502, 504-06 (7th Cir. 2000) (per curiam).
R EVERSED AND R EMANDED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-26-02

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