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               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
