Mueller v. Gallina

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0548n.06
Filed: June 24, 2005
Case No. 04-1578
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES B. MUELLER, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
Plaintiff-Appellant, ) THE EASTERN DISTRICT OF
) MICHIGAN
v. )
)
LAWRENCE GALLINA, and )
JOHN and JANE DOES, 1-10, )
)
Defendants-Appellees. )
Before: CLAY and GIBBONS, Circuit Judges; STAFFORD, District Judge.*
STAFFORD, District Judge. Appellant appeals the district court’s order granting
the defendant’s motion for judgment on the pleadings in this civil rights action under the
Fourth Amendment. We affirm.
I. BACKGROUND
A. THE ALLEGATIONS
The plaintiff, James Mueller (“Mueller”), is a special agent with the United States
Drug Enforcement Agency (“DEA”) who was assigned to the Detroit Field Division at all
times relevant to this action. The defendant, Lawrence Gallina (“Gallina”), was the
* The Honorable William Stafford, United States District Judge for the Northern
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District of Florida, sitting by designation.
Special Agent in Charge (“SAC”) of DEA’s Detroit Field Division from 1996 to 1999.
On July 11, 2000, a United States Magistrate Judge signed two search warrants,
one for Mueller’s personal residence and one for his office at DEA. The magistrate
judge found probable cause to support issuance of the warrants based upon facts
outlined in an eight-page affidavit prepared by William Faiella (“Faiella”), an Inspector
with DEA’s Office of Professional Responsibility (“OPR”). In his affidavit, which is
attached to the complaint, Faiella explained that he and others were conducting a
criminal investigation into allegations that Mueller:
(a) submitted a false document to a federal grand jury in
response to a grand jury subpoena; (b) supplied the same
false document in order to purchase two machine guns; (c)
provided the same false document to BATF [the Bureau of
Alcohol, Tobacco and Firearms] in order to register the two
machine guns; and (d) claimed an improper deduction that
caused his tax return to be false.
J.A. at 16.
Described in Faiella’s affidavit was a letter dated September 12, 1997,
purportedly from Gallina to Heckler and Koch, Inc., the manufacturer of the MP5
submachine gun, authorizing Mueller to purchase an MP5, a weapon not ordinarily
authorized for official use by DEA special agents. Faiella stated in his affidavit that,
when Gallina was interviewed as part of OPR’s investigation, Gallina denied having
reviewed, signed, or authorized the letter authorizing Mueller to purchase the MP5.
Also described in Faiella’s affidavit were the results of Faiella’s interviews with (a)
Gallina’s secretary, who not only noted a number of irregularities in the letter
purportedly written by Gallina but also said that she would not have forwarded such a
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letter to the SAC for his approval; (b) the owner and president of Great Lakes Police
Supply Co., Inc. (“Great Lakes”), who stated that, when Mueller purchased two MP5
submachine guns from Great Lakes, one in 1997 and a second in 1999, he provided
letters from DEA authorizing the purchases; (c) a Heckler & Koch representative, who
reported that Heckler & Koch had no record of receiving the September 12, 1997, letter
purportedly written by Gallina and no record of receiving any purchase requests for
firearms from Mueller; (d) the Detroit Division Primary Firearms Instructor (“PFI”), who
found no documents in the division’s records authorizing Mueller to carry or use a
submachine gun for official duties; and (e) all current and former PFIs and all
supervisory personnel, each of whom stated that Mueller had not been seen using or
carrying a submachine gun.
Based on his interviews and review of documents received from a number of
sources, Faiella determined that there was evidence to establish that Mueller purchased
two submachine guns from Great Lakes, that he submitted a copy of the authorization
letter purportedly written by Gallina on September 12, 1997, to Great Lakes when he
purchased the weapons, that he submitted a copy of the same letter to the Oakland
County Sheriff in order to obtain the Law Enforcement Certification needed to carry the
weapons, that he submitted a copy of the same letter to ATF-National Firearms Act
Branch (“ATF-NFA”) when he sought registration of the two submachine guns, and that
a copy of the same letter was submitted to an IRS case agent to explain a
“miscellaneous deduction” for job expenses, namely for the purchase of firearms.
Because Gallina denied having written the September 12, 1997, letter, Faiella
concluded that there was probable cause to believe that Mueller both created and
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forged a document that he then used to purchase, register, and obtain a license for
weapons that he was not authorized to carry. Faiella accordingly sought search
warrants for Mueller’s home and office, alleging that there was probable cause to
believe that Mueller’s home and/or office contained evidence of Mueller’s wrongdoing.
In late November, 2000, after the search of both his home and his office, Mueller
was told that the Department of Justice (“DOJ”) had declined to prosecute him for any
criminal violations. Indeed, according to Mueller’s allegations, DOJ had determined that
Gallina, and not Mueller, had signed the disputed letter and that Gallina had, in fact,
authorized the purchase of the MP5s.
B. THE PROCEEDINGS
Mueller filed a complaint in the district court on July 2, 2002, alleging violations of
federal constitutional law--specifically the Fourth Amendment--under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against
Gallina and various John and Jane Does, also DEA employees. Among other things,
Mueller alleged that Gallina’s statements to Faiella regarding the September 12, 1997,
letter were false and that such statements materially contributed to the unlawful
searches of Mueller’s home and office.
On May 2, 2003, Gallina filed a motion for judgment on the pleadings. After the
district court granted the motion, Mueller moved for a dismissal without prejudice
against the remaining defendants, John and Jane Does 1-10. The dismissal of the
charges against the Doe defendants was entered on April 22, 2004, and Mueller
thereafter filed a timely notice of appeal on April 26, 2004.
C. THE DISTRICT COURT’S DECISION
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In granting Gallina’s motion for judgment on the pleadings, the district court
determined that Gallina did not have “direct, personal participation” in the searches
alleged to constitute a Fourth Amendment violation. The allegations revealed that
Gallina did not execute or procure the allegedly defective search warrants, was not the
affiant on the warrants, did not initiate or conduct the investigation into Mueller’s alleged
wrongdoing, and did not supervise others who conducted the investigation that resulted
in the issuance of the search warrants. The district court characterized Gallina as “a
former administrator with personal, firsthand knowledge of the subject matter being
investigated by the OPR,” who only “spoke in the capacity of a witness.” J.A. at 29.
The district court concluded that, in such capacity, Gallina was not clothed with federal
authority and his alleged wrongdoing was outside the scope of the Fourth Amendment.
II. STANDARD OF REVIEW
This court reviews a district court's grant of a Rule 12(c) motion for judgment on
the pleadings under "the same de novo standard applicable to a motion to dismiss
under Rule 12(b)(6)." Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir.
2001). The court must “construe the complaint in the light most favorable to the plaintiff,
accept all of the complaint's factual allegations as true, and determine whether the
plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle
him to relief.” Id. at 512.
III. DISCUSSION
Mueller contends that the district court erred in dismissing his complaint for
failure to state a claim under Bivens.
In Bivens, the Supreme Court held that a violation of the Fourth Amendment by a
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federal agent acting under color of federal authority gives rise to a cause of action for
damages flowing from the unconstitutional conduct. Bivens, 403 U.S. at 389. In order
to state a cause of action under Bivens, the plaintiff must allege facts which show that
the individual defendant acted “under color of federal authority” and was personally
involved in the deprivation of the plaintiff's constitutional rights. See, e.g., Browning v.
Clinton, 292 F.3d 235, 250 (D.C. Cir. 2002) (explaining that action under “color of
federal authority” is critical to a Bivens claim); Gossmeyer v. McDonald, 128 F.3d 481,
495 (7th Cir.1997) (explaining that personal involvement is required to state a claim
under Bivens).
Not all actions of a government official are, “simply by virtue of the official
government's employ, accomplished under the color of [federal] law." Browning, 292
F.3d at 250 (quoting Johnson v. Knowles, 113 F.3d 1114, 1117-18 (9th Cir. 1997)). To
be “under color of authority,” the conduct must be “cloaked with official power [and the
official must] purport [ ] to be acting under color of official right.” Id. (quoting Lopez v.
Vanderwater, 620 F.2d 1229, 1236 (7th Cir. 1980)); see also West v. Atkins, 487 U.S.
42, 49 (1988) (explaining, in the context of a section 1983 case, that a person acts
under color of state law if he exercises power “possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law")
(quoting United States v. Classic, 313 U.S. 299, 326 (1941); Dang Vang v. Vang Xiong
X. Toyed, 944 F.2d 476, 479 (9th Cir. 1991) (stating that "generally, a public employee
acts under color of state law while acting in his official capacity or while exercising his
responsibilities pursuant to state law").
In this case, Mueller alleged that Gallina was the Special Agent in Charge of
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DEA’s Detroit Field Division from 1996 to 1999. He did not allege what, if any,
government position Gallina held when, in June of 2000, Gallina was interviewed by
Faiella during Faiella’s investigation into alleged wrongdoing by Mueller. Assuming, for
the sake of argument, that Gallina was, in fact, a government official when he answered
Faiella’s questions, Mueller alleged in his complaint that Gallina merely gave false
information during the course of an investigation; Mueller did not allege that Gallina in
any way initiated, supervised, or directed that investigation. Mueller’s complaint made
clear that it was Faiella, not Gallina, who took that false information, failed to establish
its veracity, and included that information in an affidavit presented to a federal
magistrate judge, thereby procuring purportedly defective search warrants. While
Gallina may have been cloaked with some federal authority by virtue of being a federal
employee, he did not exercise that authority during the course of Faiella’s investigation
into Mueller’s activities. The only action that Gallina allegedly took was answering the
questions of a federal investigator; he acted as a mere witness and nothing more.
Because Mueller did not allege that Gallina violated Mueller’s constitutional rights by
exercising powers that Gallina possessed by virtue of Gallina’s official position, the
district court was correct in granting Gallina judgment on the pleadings. Accordingly, we
AFFIRM.