United States District Court, S.D. Indiana, New Albany Division
ORDER ON MOTION TO DISMISS (DKT. 27)
EVANS BARKER, JUDGE.
before the Court is Defendants' partial motion to dismiss
for failure to state a claim. Dkt. 27. See Fed. R.
Civ. P. 12(b)(6). For the reasons given below, the motion is
granted in part and denied in part.
a warrant or a hearing, Defendants, officers of the Indiana
Department of Natural Resources (DNR), seized from Plaintiff
(appearing here pro se) a raccoon and a coyote they
believed he possessed illegally. Plaintiff brought suit,
presumably under 42 U.S.C. § 1983 (there is no other
option), for “an illegal seizure of [his]
property” in violation of his “Constitutional
civil rights.” Compl., at 2. Plaintiff seeks the return
of his property, compensatory damages, and “procedural
changes or federal oversight of state government in order to
prevent this type of event happening again.”
move to “dismiss any claims against them in their
‘official capacity,' and claims against them for
injunctive relief in their ‘individual
capacity.'” Mot., at 1. Defendants contend they are
not suable under Section 1983 in their official capacities,
see Will v. Mich. Dep't of State Police, 491
U.S. 58, 64 (1989); Kentucky v. Graham, 473 U.S.
159, 165-66 (1985); and that they are not proper targets of
injunctive relief in their individual capacities. See
Greenawalt v. Ind. Dep't of Corrs., 397 F.3d 587,
589 (7th Cir. 2005). In response, Plaintiff cites Ex
parte Young, 209 U.S. 123 (1908); the Supremacy Clause;
and the Fourth, Fifth, and Fourteenth Amendments to the
Constitution. Br. Opp. 1-2. Defendants reply that,
“[r]egardless of the legal basis for Plaintiff's
claims, Defendants' [motion] focuses on the relief
available to Plaintiff.” Reply Br. 1.
a duty to police our own subject-matter jurisdiction.
Fed.R.Civ.P. 12(h)(3); Everett v. BRP-Powertrain, GmbH
& Co. KG, 282 F.Supp.3d 1063, 1068 (E.D. Wis. 2017).
As for Plaintiff's request for an order “to prevent
this type of event happening again, ” we have no
jurisdiction to entertain it, so that claim to relief is
Article III of the Constitution, the jurisdiction of a
federal court extends only to actual cases or controversies.
City of Los Angeles v. Lyons, 461 U.S. 95, 101
(1983). One element of an actual case or controversy is the
plaintiff's “show[ing] that he ‘has sustained
or is immediately in danger of sustaining some direct
injury' as the result of the challenged official conduct
and the injury or threat of injury must be both ‘real
and immediate,' not ‘conjectural' or
‘hypothetical.'” Id. at 102 (citing
cases). Specifically, a plaintiff who seeks injunctive relief
against future harm (such as the relief Plaintiff seeks here)
must “establish a real and immediate threat” that
the harm will be suffered. Id. at 105.
case, there is no reason to believe that Plaintiff is in real
and immediate danger of having his property
unconstitutionally seized by DNR. Accordingly, as to this
claim to relief, there is no actual case or controversy, and
no federal jurisdiction. However, nothing here prevents
Plaintiff from pursuing his claim for money damages.
Plaintiff's request for the return of his seized
property, Defendants' motion must be denied. The
Court's power to order the return of Plaintiff's
property is beyond cavil, if Plaintiff is entitled to it and
it is in Defendants' possession. See Lee v. City of
Chicago, 330 F.3d 456, 465-66 (7th Cir. 2003); Okoro
v. Callaghan, 324 F.3d 488, 490- 92 (7th Cir. 2003).
That legal remedy is of long standing for Fourth Amendment
violations in criminal cases. See Fed. R. Crim. P.
41(g); Weeks v. United States, 232 U.S. 383, 387,
398 (1914). The Seventh Circuit has suggested that the remedy
is available as well in civil Bivens actions against
federal officers, Stuart v. Rech, 603 F.3d 409,
411-12 (7th Cir. 2010), and Defendants have given us no
reason to treat differently civil Section 1983 actions
against state officers. See, e.g., Cooper v. City of Fort
Wayne, No. 1:06-CV-161-TS, 2007 WL 3232456, at *6-*7
(N.D. Ind. Oct. 30, 2007) (assuming availability of remedy;
denying remedy where no evidence named defendants held
plaintiff's property or responsible for its disposition).
Seventh Circuit did hold in Greenawalt that Section
1983 “does not permit injunctive relief against state
officials sued in their individual as distinct from their
official capacity.” 397 F.3d at 589 (citing Luder
v. Endicott, 253 F.3d 1020, 1024-25 (7th Cir. 2001)).
See, e.g., Henley v. Sunier, No.
1:17-cv-02385-JMS-TAB, 2018 WL 6268297, at *5 (S.D. Ind. Nov.
30, 2018) (Magnus-Stinson, C.J.). But “[n]ot every
equitable order is an injunction . . . .” United
States v. Hansen, 795 F.2d 35, 38-39 (7th Cir. 1985)
(discussing interlocutory appealability under 28 U.S.C.
§ 1292). See, e.g., Bontkowski v. Smith, 305
F.3d 757, 761-62 (7th Cir. 2002) (constructive trust for
return of stolen property “cousin to an
injunction”). And the closest common law analogues to
Plaintiff's claim here-the actions for replevin and
detinue-are not equitable at all, but legal. Centurion
Reins. Co. v. Singer, 810 F.2d 140, 144 (7th Cir. 1987);
26B C.J.S. Detinue § 2 (2019). Accordingly, we
do not read Greenwalt to hold that return of
property wrongfully held is not an available remedy against
individual-capacity defendants in Section 1983 actions.
as Defendants concede, injunctive relief is available against
them in their official capacities under Ex parte
Young. Defendants insist that they are not proper Ex
parte Young defendants, see, e.g., Doe v.
Holcomb, 883 F.3d 971, 975-77 (7th Cir. 2018), but they
predicate that insistence on facts not pleaded in
Plaintiff's complaint (or even otherwise supported by
evidentiary submissions), see Reply Br. 3, and
therefore not properly considered by the Court on a Rule
12(b)(6) motion. Fed.R.Civ.P. 12(d); Jacobs v. City of
Chicago, 215 F.3d 758, 765-66 (7th Cir. 2000).
Plaintiff can show his entitlement to the seized property,
the return-of-property remedy he seeks is available to him no
matter whether Defendants are sued in their individual
capacity, official capacity, or both. Therefore,
Defendants' motion is denied as to this claim to relief.