SMITH v. JOHNSON

Filing 44

ORDER denying Defendant's 29 Motion to Dismiss (see Order). Signed by Magistrate Judge Tim A. Baker on 12/14/2015. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KAILEE M. SMITH,
Plaintiff,
vs.
SCOTT JOHNSON,
Defendant.

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No. 1:14-cv-01692-TWP-TAB

ORDER ON DEFENDANT’S MOTION TO DISMISS
Defendant Scott Johnson asks the Court to decide whether Plaintiff Kailee M. Smith
establishes enough facts to infer that he acted in his official capacity. As discussed below, she
does. Subject matter jurisdiction is proper and the Court denies Johnson’s motion to dismiss.
This suit arises from Smith’s arrest and prosecution for her alleged failure to stop after
striking and killing Johnson’s dog with her car. Smith explains in her complaint that after
striking the dog, she recognized it belonged to Johnson, a law enforcement officer with the
Indiana Department of Natural Resources. Smith says that after the accident, she drove
approximately one mile to pick up her boyfriend and then promptly drove to Johnson’s house to
inform him of the accident. At Johnson’s house, Smith called police and made an accident
report. Smith alleges she made the report despite Johnson’s assurance it was unnecessary.
Six months later, Johnson approached an investigator with the prosecutor’s office and
allegedly asked him to file criminal charges against Smith for leaving the scene of the accident.
Johnson told the investigator that he found out about the accident from a neighbor the day after it
occurred. The investigator used Johnson’s information to swear out a probable cause affidavit.

Smith was subsequently arrested and charged with leaving the scene of an accident. The
criminal charges were ultimately dropped and this civil suit followed.
Smith’s civil complaint is made pursuant to 42 U.S.C. § 1983 and alleges that this Court
has subject matter jurisdiction over the federal question in her claim. In particular, Smith claims
that Johnson used his status as a law enforcement officer to influence her arrest and prosecution.
[Filing No. 1, at ECF p. 3.] Smith alleges the probable cause affidavit sworn to by the
investigator was based entirely on the information supplied by Johnson, taken as true because he
is a law enforcement officer. Smith alleges the prosecutor pressed charges because he was
influenced by Johnson’s desire to have Smith prosecuted. However, Johnson contends he only
acted in his capacity as a private citizen when speaking with the investigator. Johnson argues
that his actions are thus outside the reach of this Court’s subject matter jurisdiction. Johnson’s
arguments are not sustainable.
The purpose of a motion to dismiss is to test the sufficiency of the allegations in the
complaint, not the merits of the case. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770
F.3d 586, 588 (7th Cir. 2014). In determining whether to dismiss a case, a court must “accept as
true the well pleaded factual allegations, drawing all reasonable inferences in favor of the
plaintiff.” Id.
Johnson’s motion to dismiss is made pursuant to Federal Rule of Civil Procedure
12(b)(1), alleging subject matter jurisdiction is not proper. Faced with this challenge, Smith
bears the burden of establishing subject-matter jurisdiction to survive Johnson’s motion. Fed. R.
Civ. P. 12(b)(1); Ctr. for Dermatology & Skin Cancer, Ltd., 770 F.3d at 589; Apex Digital, Inc.
v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). The Court only has subject matter
jurisdiction over Smith’s case if Johnson’s actions were under color of law. Screws v. United

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States, 325 U.S. 91, 111 (1944). However, as this is a jurisdictional issue, the Court may look at
additional evidence submitted by the parties to determine whether subject matter jurisdiction
exists. Apex Digital, Inc., 572 F.3d at 444.
The Seventh Circuit clarified the limits of “under color of law” in United States v.
Christian, 342 F.3d 744 (7th Cir. 2003). Unlike Screws, where the officer was on duty and
performing official duties, the Christian court held that an officer may be acting under color of
law even when off duty. Id. at 751. The court found that determining whether an officer acted
under color of law turns on the nature of his acts rather than his assigned duties. Id. An officer
can be acting under color of law even when acting out of personal emotion such as jealousy or
anger if “an air of official authority pervaded the incident.” Id. (discussing United States v.
Tarpley, 945 F.2d 806, 809 (5th Cir.1991)).
The parties agree that Smith was arrested and prosecuted based on information Johnson
provided. Johnson admits he is a law enforcement officer but argues that his actions were not
under color of law because he never used his official authority arrest or prosecute Smith.
However, in light of Christian, the mere fact that he did not participate in Smith’s arrest and
prosecution is insufficient for his argument to prevail. Nor is it sufficient that Johnson
approached the investigator for personal reasons. Rather, Christian clarifies that Johnson may
have been acting under color of law if the prosecutor’s office simply regarded Johnson as official
when taking his statement.
Smith argues that the prosecutor’s office took Johnson’s information as true, knowing
Johnson is a law enforcement officer. The probable cause affidavit was signed by Steve Banks,
an investigator with the prosecutor’s office. [Filing No. 30-1.] Banks describes his role in the
prosecutor’s office as assisting various departments with conducting investigations and filing

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charges. [Filing No. 33-1, at ECF p. 7.] Banks said he was contacted about the accident
involving Smith by Johnson, who he identified as a conservation officer. [Filing No. 33-1, at
ECF p. 11-12.] According to Banks, Johnson called and met with him to discuss the accident,
telling him that Smith struck and killed his dog the day before she made the police report. Banks
stated that after discussing the accident with Johnson, he discussed it with the prosecutor. Banks
then swore out the probable cause affidavit for Smith’s arrest. Banks said that his only source of
information for the affidavit was Johnson’s statement and the accident report made by Smith.
[Filing No. 33-1, at ECF p. 18.]
Looking at these facts in a light most favorable to Smith, it is reasonable to infer that
even though Johnson did not personally arrest or prosecute Smith, he acted under color of law. It
is unclear whether Johnson was on duty or in uniform when he met with the investigator, but it is
clear that the investigator knew Johnson was a DNR officer. The nature of Johnson’s meeting
with the investigator that assists his department with official matters creates a reasonable
inference that Johnson used his status as a DNR officer to influence the prosecutor to bring
charges against Smith. Johnson may have believed he was acting as a private citizen, but the
facts support an inference that he acted with an air of authority, supporting Smith’s allegation
that Johnson acted under color of law. [Filing No. 1, at ECF p. 3.] This is sufficient for Smith’s
case to survive Johnson’s motion to dismiss.
Smith also argues Johnson was acting under color of law by pointing to the collective
knowledge doctrine, that “a law enforcement officer may rely on information conveyed to him
by another law enforcement officer or the agency for which he works.” Bruce v. Guernsey, 777
F.3d 872, 876 (7th Cir. 2015). Smith asserts that the investigator relied on Johnson’s
information without independently verifying it because Johnson is a law enforcement officer.

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Johnson contends that Smith’s reliance on the collective knowledge doctrine is inappropriate
here because it is a doctrine used to determine whether probable cause existed in an arrest.
Johnson argues the doctrine should not be used to determine whether the information that the
investigator relied on was given under color of law. The Court concludes it is not necessary to
wade into the collective knowledge doctrine given the conclusion above that Smith can survive
Johnson’s motion to dismiss.
For the foregoing reasons, it is reasonable to infer that Johnson acted under color of law
from the facts set forth in Smith’s complaint and the evidence presented by the parties. Thus,
Smith sufficiently establishes subject matter jurisdiction and Johnson’s motion to dismiss [Filing
No. 29] is denied.
Date: 12/14/2015
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution:
Jeffrey S. McQuary
BROWN TOMPKINS LORY
[e-mail]
AMEEN RICHARD NAJJAR
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
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