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Aliane v. Bailey

United States District Court, S.D. Ohio, Eastern Division

January 5, 2018

Malek Bouzid Aliane, Plaintiff,
Lawrence Bailey, et al., Defendants.

          Magistrate Judge, Jolson



         Malek Bouzid Aliane ("Plaintiff'), a prisoner proceeding pro se, brings this Bivens action against Defendants Lawrence Bailey, Special Agent with the Office of Inspector General ("Special Agent Bailey"); Jason Roessner, Special Agent with the Internal Revenue Service, Criminal Investigation Division ("Special Agent Roessner"); Mark H. Stroh, Deputy United States Marshal for the Southern District of Ohio ("Deputy Stroh"); and Christine A. McKee, Operations Manager of the Alvis House for Men ("McKee") (together, "Defendants"). Plaintiff alleges that Defendants violated his Fourth Amendment right to be free from unlawful searches and seizures and engaged in a civil conspiracy to illegally search and seize his property. Plaintiff also brings a state-law claim against Defendant McKee for conversion.

         Magistrate Judge Jolson, to whom this case is assigned, issued a Report and Recommendation ("R&R") and Order that granted Plaintiffs motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). R&R and Order 1, ECF No. 3. The R&R also recommended that the Court dismiss Plaintiffs federal claims without prejudice for lack of federal subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3) because Plaintiff failed to state a claim for which relief may be granted. Id. at 6. Additionally, the R&R recommended that the Court decline to exercise supplemental jurisdiction over Plaintiffs state-law claim pursuant to 28 U.S.C. § 1367(c)(3). Id. Plaintiff objects to the recommendation that his federal claims be dismissed for lack of subject matter jurisdiction.

         For the following reasons, the Court OVERRULES Plaintiffs objections and AFFIRMS and ADOPTS the R&R and DISMISSES Plaintiffs Complaint.

         I. FACTS

         On January 25, 2016, Plaintiff pled guilty to charges of mail fraud and presenting false claims against the Internal Revenue Service ("IRS"). United States v. Aliane, 2:15-mj-465-TPK, ECF No. 33. Plaintiffs claims in this case arise from the events surrounding his arrest on those charges. Plaintiff alleges the following relevant facts in his Complaint.

         On July 21, 2015, while Plaintiff was living at the Alvis House for Men (a halfway house in Columbus, Ohio), Plaintiff was arrested by Deputy Stroh. During a search incident to arrest, Deputy Stroh removed the key to Plaintiffs Mercedes Benz from Plaintiffs pocket and placed it in his own pocket. Upon his arrest, Plaintiff was transferred to the Franklin County Corrections Center I.

         While at the Corrections Center, Plaintiff directed his "authorized agent" to collect his key from the jail and retrieve his car from the Alvis House parking lot. When Plaintiffs agent arrived at the jail on July 22, 2015, however, she was informed that the key was not with Plaintiffs personal property. Instead, she was referred to McKee. Apparently, Deputy Stroh had given the key to McKee earlier that morning without Plaintiff's consent. Thereafter, Plaintiff alleges that "under the guise" of protecting unsecured valuables in Plaintiffs car, McKee conducted an unauthorized search of Plaintiffs vehicle in an effort to assist the police with obtaining evidence to support the charges against Plaintiff. Compl. ¶¶ 17, 29, ECF No. 2. The search of the car produced "one or more bank receipts in the amounts of $10, 000 for Wood Forest Bank." Id. ¶19. McKee brought several items from the car into the Alvis House.

         When Plaintiffs agent later requested that McKee turn over the key to her, McKee allegedly stated that doing so would "run afoul of the various government agents and agencies." Id. ¶ 21. Plaintiff and his agent thereafter contacted McKee on various occasions from July 21 through July 28 to request the return of Plaintiffs property and car but with no luck.

         Plaintiff further alleges that, at an unspecified point in time, Special Agents Bailey and Roessner met McKee at the Alvis house and conducted an unauthorized "sneek [sic] and peek" of the property McKee previously removed from the car and moved inside the Alvis House. Id. ¶ 20. Plaintiff asserts that this evidence formed the basis, in part, of the probable cause affidavit supporting an application for a search warrant that Special Agents Bailey and Roessner obtained and executed on July 28, 2015. The warrant authorized the Special Agents to seize Plaintiffs car and Plaintiffs property that McKee had moved from the car to the Alvis House.

         Plaintiff asserts that McKee's search of his car prior to obtaining warrant, and Special Agents Roessner and Bailey's "sneak and peek" of the car's contents recovered by McKee, violated Plaintiff's Fourth Amendment rights. Plaintiff further asserts that all Defendants acted in tandem to violate his rights. He seeks a declaration that Defendants' actions violated his Fourth Amendment rights and compensatory and punitive money damages.[1]


         The Court will review de novo the portions of the R&R that have been properly objected to, pursuant to Federal Rule of Civil Procedure 72(b)(2). On de novo review, the Court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter ...

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