OWENS v. DOWNEY et al
Filing
47
ENTRY ON DEFENDANTS' MOTIONS TO DISMISS. Presently pending before the Court are: (1) a Motion to Dismiss filed by Defendants Sheriff Robert J. Downey ("Sheriff Downey"), in his individual capacity, Deputy Brian K. Gabehart ("De puty Gabehart"), in his individual capacity, and the Morgan County Sheriff's Department (collectively the "Morgan County Defendants"), [Filing No. 37]; and (2) a Motion to Dismiss filed by Defendants Charles E. Beaver ("Ch arlie"), Shelly Beaver, Charles W. Beaver ("Chuck"), and Brieanna Beaver (collectively the "Beaver Defendants"), [Filing No. 42]. For simplicity, at times the Court will refer to the moving parties collectively as "Defendants" for purposes of this motion. For the reasons detailed herein, the Court GRANTS in part and DENIES in part Defendants' Motions to Dismiss. SEE ENTRY. Signed by Judge Jane Magnus-Stinson on 12/15/2015. (BGT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANIEL W. OWENS,
Plaintiff,
vs.
ROBERT J. DOWNEY, in his individual
capacity,
BRIAN K. GABEHART, in his individual
capacity,
MORGAN COUNTY SHERIFF’S
DEPARTMENT,
NORMAN VOYLES, in his official
capacity,
MORGAN COUNTY, INDIANA,
CHARLES E. BEAVER,
SHELLY BEAVER,
CHARLES W. BEAVER, and
BRIEANNA BEAVER,
Defendants.
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No. 1:15-cv-00776-JMS-DKL
ENTRY ON DEFENDANTS’ MOTIONS TO DISMISS
Presently pending before the Court are: (1) a Motion to Dismiss filed by Defendants Sheriff
Robert J. Downey (“Sheriff Downey”), in his individual capacity, Deputy Brian K. Gabehart
(“Deputy Gabehart”), in his individual capacity, and the Morgan County Sheriff’s Department
(collectively the “Morgan County Defendants”), 1 [Filing No. 37]; and (2) a Motion to Dismiss
filed by Defendants Charles E. Beaver (“Charlie”), Shelly Beaver, Charles W. Beaver (“Chuck”),
and Brieanna Beaver (collectively the “Beaver Defendants”), [Filing No. 42]. For simplicity, at
1
The Morgan County Defendants’ brief includes Norman Voyles and Morgan County as moving
defendants. [Filing No. 37 at 1.] Although Mr. Owens included both defendants in the caption of
the Amended Complaint, he clarifies in his response that he no longer intends to keep them as
defendants. [Filing No. 45 at 1.] The claims against them are therefore dismissed.
1
times the Court will refer to the moving parties collectively as “Defendants” for purposes of this
motion. For the reasons detailed herein, the Court GRANTS in part and DENIES in part
Defendants’ Motions to Dismiss.
I.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Fed. R. Civ. P. 8(a)(2)). “Specific facts are not necessary, the statement need only ‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson,
551 U.S. at 93 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
A 12(b)(6) motion to dismiss asks whether the complaint “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing the sufficiency of a
complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in
favor of the plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.
2011). The Court will not accept legal conclusions or conclusory allegations as sufficient to state
a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
II.
BACKGROUND
The factual allegations in Mr. Owens’ Amended Complaint, which the Court must accept
as true, are as follows.
2
Mr. Owens alleges that the Beaver Defendants conspired with the Morgan County
Defendants to wrongfully prosecute him for trespassing the property line located between the
Beaver Defendants’ property and Mr. Owens’ property (the “Disputed Property”). [Filing No. 33
at 5.] Charlie is married to Shelly and Charlie’s son, Chuck, is married to Brieanna. [Filing No.
33 at 2.] Charlie previously served as the Sheriff of the Morgan County Sheriff’s Department for
three years, and continues to have strong political connections in Morgan County. [Filing No. 33
at 4.] Charlie has known Sheriff Downey for most of his life. [Filing No. 33 at 3-4.] When Charlie
was Sheriff, he hired Sheriff Downey to work at the Morgan County Sheriff’s Department and
subsequently endorsed Sheriff Downey’s campaign for Sheriff of Morgan County. [Filing No. 33
at 4.] Shelly has also worked at the Morgan County Sheriff’s Department for many years. [Filing
No. 33 at 4.] Mr. Owens claims that the Beaver Defendants treat him as an outsider of the Morgan
County “good ole boys” network. [Filing No. 33 at 4.]
Mr. Owens purchased his house in Morgan County in 2006 and additional acreage in 2009.
[Filing No. 33 at 3.] His property is located next the Beaver Defendants’ property. 2 [Filing No.
33 at 4.] In prior years before Mr. Owens purchased the property, several surveyors performed
surveys of the properties, and the surveys indicated gaps in the deed descriptions and uncertainties
in the lines of occupation around the Disputed Property. [Filing No. 33 at 10.]
Mr. Owens makes several allegations of harassment by the Beaver Defendants. [Filing No.
33 at 4.] Upon moving in, Mr. Owens made improvements on his property to operate a septic
business and a horse training and breeding business. [Filing No. 33 at 5.] In the fall of 2008, the
Beaver Defendants notified the Morgan County Planning Department (“Planning Department”) of
2
Mr. Owens does not clarify which of the Beaver Defendants owns the property next to his
property, and simply refers to “the Beavers” when discussing the properly line dispute.
3
Mr. Owens’ improvements. [Filing No. 33 at 5.] When Mr. Owens was notified of the complaint,
he filed a variance application with the Planning Department, attended a subsequent hearing, and
was granted the variance. [Filing No. 33 at 5.] Subsequently, Charlie and Chuck filed an affidavit
falsely accusing Mr. Owens of using underground storage tanks on his property, but the Indiana
Department of Environmental Management found no evidence of illegal use. [Filing No. 33 at 6.]
The Beaver Defendants then contacted the trustee of Jackson Civil Township of Morgan County
to have him speak with Mr. Owens about establishing an easement for a tornado siren on his
property. [Filing No. 33 at 6.] Mr. Owens expressed concern due to his horse business, but agreed
to the installation after the trustee reassured Mr. Owens that the siren would not affect the horses.
[Filing No. 33 at 6.]
During the installation of the siren in 2009, a surveyor commissioned by the trustee wrote
the legal descriptions for an access easement, utility easement, and location easement. [Filing No.
33 at 8.] The surveyor omitted uncertainties regarding the reference monuments of record, the title
documents of record, and the lines of active occupation, and the Beaver Defendants directed the
surveyor to move the boundary line to gain title over a property adjoining Mr. Owens’ property.
[Filing No. 33 at 8-10.] After the survey work was completed, the Beaver Defendants sent Mr.
Owens a “Consent to Encroach” document, which purported to show that the gravel drive located
on Mr. Owens’ property was partly Mr. Owens’ property and partly the Beaver Defendants’
property. [Filing No. 33 at 10.] Mr. Owens refused to sign the Consent to Encroach document,
and the Beaver Defendants sent him a letter threatening to erect a fence on the gravel drive. [Filing
No. 33 at 10.] Mr. Owens’ counsel sent a letter to the Beaver Defendants, acknowledging the
property line dispute and requesting an amicable solution. [Filing No. 33 at 10.]
4
After the installation of the siren, the Morgan County Sheriff’s Department triggered the
siren many times, which caused Mr. Owens’ horse business to shut down because of the significant
impact on his horses. [Filing No. 33 at 7.] Mr. Owens filed a lawsuit against the trustee and a
hearing was held in June 2013, where Charlie and Chuck testified in favor of the trustee. [Filing
No. 33 at 7-8.] The trial court entered judgment in favor of Mr. Owens and ordered the trustee to
relocate the siren. [Filing No. 33 at 8.]
Prior to the June 2013 trial related the tornado siren, Charlie and Shelly contacted Sheriff
Downey at his home and accused Mr. Owens of trespass when he mowed the grass on the Disputed
Property. [Filing No. 33 at 11-12.] Charlie and Sheriff Downey agreed to confront Mr. Owens
and both of them went to Mr. Owens’ home on May 16, 2013. [Filing No. 33 at 12.] Sheriff
Downey accused Mr. Owens of trespassing on Charlie’s property and threatened to arrest him if
he trespassed again. [Filing No. 33 at 12-13.] Mr. Owens told Sheriff Downey that there was a
property line dispute and that he owned the Disputed Property through adverse possession. [Filing
No. 33 at 13.] However, Sheriff Downey threatened to arrest Mr. Owens if Mr. Owens disobeyed
his orders. [Filing No. 33 at 13.]
On May 18, 2013, Shelly called Sheriff Downey at his home to tell him that Brieanna saw
Mr. Owens mowing the Disputed Property. [Filing No. 33 at 13.] Brieanna gave an unsigned,
written statement to Shelly, who delivered it to Sheriff Downey. [Filing No. 33 at 13.] On May
30, 2013, Mr. Owens’ attorney sent a letter to Sheriff Downey to inform him about the property
line dispute between the Beaver Defendants and Mr. Owens. [Filing No. 33 at 14.] Sheriff
Downey prepared a probable cause affidavit based on Brieanna’s written statement and the Morgan
County Prosecutor’s Office charged Mr. Owens with two counts of criminal trespass. [Filing No.
33 at 15.] Thereafter, Deputy Gabehart received a written statement from Chuck accusing Mr.
5
Owens of mowing the Disputed Property. [Filing No. 33 at 16.] Based on that written statement
and a conversation he had with Charlie, Deputy Gabehart drafted a probable cause affidavit and
the Morgan County Prosecutor’s Office charged Mr. Owens with an additional count of criminal
trespass and one count of criminal mischief. [Filing No. 33 at 16.] These charges were filed two
weeks prior to the tornado siren trial. [Filing No. 33 at 16.] Additionally, Mr. Owens was arrested 3
and while on bond and during the pendency of his prosecution, he was deprived of using his
driveway without the Beaver Defendants’ permission and with threat of incarceration due to the
proximity to the Disputed Property. [Filing No. 33 at 18.] In the three months leading up to Mr.
Owens’ criminal trial, Mr. Owens alleges that he was pulled over twenty-six times by deputies
from the Morgan County Sheriff’s Department and troopers from the Indiana State Police as a
form of intimidation. [Filing No. 33 at 20-21.] Mr. Owens’ criminal trial was held on October 7,
2013, and the jury returned a verdict of not guilty on October 8, 2013, fully acquitting Mr. Owens
of all charges. [Filing No. 33 at 21.] On January 14, 2015, Mr. Owens provided a tort claim notice
to the Morgan County Sheriff’s Department, Sheriff Downey, Deputy Gabehart, and the Beaver
Defendants. [Filing No. 33 at 21.]
Mr. Owens’ Amended Complaint asserts a 42 U.S.C. § 1983 claim for malicious
prosecution in violation of the Fourth and Fourteenth Amendments against the Morgan County
Defendants, a civil conspiracy claim 4 against all Defendants, and state law claims for intentional
3
Mr. Owens does not discuss any details of his arrest, such as when or by whom he was arrested.
4
Mr. Owens does not raise the civil conspiracy claim as a separate count in the Amended
Complaint. The Amended Complaint contains allegations, however, that allude to a civil
conspiracy between the Defendants. Additionally, the Morgan County Defendants and the Beaver
Defendants challenge Mr. Owens’ civil conspiracy claim in their briefs.
6
infliction of emotional distress, malicious prosecution, false arrest, and abuse of process against
all Defendants. [Filing No. 33 at 23-29.]
III.
DISCUSSION
The Morgan County Defendants and the Beaver Defendants filed two separate motions to
dismiss Mr. Owens’ Amended Complaint, challenging Mr. Owens’ claims on various grounds.
The Court notes, however, that the parties’ briefs complicated the Court’s review of the issues.
The Court faced difficulty addressing the issues that the parties raised because the issues were not
aligned in their briefs, and many arguments regarding Mr. Owens’ constitutional violations were
not sufficiently specific to each defendant. At times, the parties did not cite authority to support
their arguments and presented inapplicable legal arguments or omitted material language from
case law. The Court will address each issue to the extent possible and any arguments the parties
intend to raise that the Court did not address are considered waived for purposes of the pending
motion. Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964 (7th Cir. 2004) (“We have repeatedly
made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived (even where those arguments raise constitutional issues).”).
The Court will first address the arguments raised by the Morgan County Defendants and
then the arguments raised by Beaver Defendants.
A. Morgan County Defendants
The Morgan County Defendants first dispute Mr. Owens’ § 1983 claim for federal
malicious prosecution on various grounds. Second, the Morgan County Defendants argue that Mr.
Owens does not plead a conspiracy claim. Third, the Morgan County Defendants challenge Mr.
Owens’ state law claims, arguing that he failed to provide timely notice and that they are barred
by the Indiana Tort Claims Act (“ITCA”). The Court will address the issues in turn.
7
1. § 1983 Claim for Malicious Prosecution
Because the Morgan County Defendants challenge the elements and constitutional grounds
of Mr. Owens’ federal malicious prosecution claim, the Court will first lay out the relevant legal
principles.
“Federal courts are rarely the appropriate forum for malicious prosecution claims.” Welton
v. Anderson, 770 F.3d 670, 673 (7th Cir. 2014). This is because “individuals do not have a ‘federal
right not to be summoned into court and prosecuted without probable cause.’” Id. In order to state
a viable malicious prosecution claim under § 1983, a plaintiff must “alleg[e] a violation of a
particular constitutional right, such as the right to be free from unlawful seizures under the Fourth
Amendment, or the right to a fair trial under the Due Process Clause.” Id. Further, a federal
constitutional claim of malicious prosecution under § 1983 is actionable when no adequate statelaw remedy exists. Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001) (citing Albright v.
Oliver, 510 U.S. 266 (1994)). In Indiana, state officers and employees acting within the scope of
their employment for the “initiation of a judicial or an administrative proceeding” are granted
absolute immunity, thus opening the door for federal malicious prosecution claims. Julian v.
Hanna, 732 F.3d 842, 846-848 (7th Cir. 2013) (citing Ind. Code § 34–13–3–3(6)).
To state a malicious prosecution claim under § 1983, a plaintiff must demonstrate that (1)
he has satisfied the elements of a state law cause of action for malicious prosecution; (2) the
malicious prosecution was committed by state actors; and (3) he was deprived of liberty or was
subject to some other constitutional deprivation. Welton, 770 F.3d at 674 (citations omitted).
Under Indiana law, “the elements of a malicious prosecution action are: (1) the defendant instituted
or caused to be instituted an action against the plaintiff; (2) the defendant acted maliciously in so
doing; (3) the defendant had no probable cause to institute the action; and (4) the original action
8
was terminated in the plaintiff’s favor.” Id. (citing Golden Years Homestead, Inc. v. Buckland,
557 F.3d 457, 462 (7th Cir. 2009)). Malice may be shown “by evidence of personal animosity or
inferred from a complete lack of probable cause or a failure to conduct an adequate investigation
under the circumstances.” Welton, 770 F.3d at 674.
a. Probable Cause
The Morgan County Defendants argue that the facts as pleaded negate the probable cause
element of the state law cause of action for malicious prosecution. They argue that Sheriff Downey
and Deputy Gabehart each had probable cause to believe that Mr. Owens trespassed the Disputed
Property. [Filing No. 37 at 16.] They argue that Charlie claimed legal title to the Disputed
Property, and that Brieanna stated that Mr. Owens mowed the Disputed Property despite being
denied entry. [Filing No. 37 at 15-16.] The Morgan County Defendants argue that Mr. Owens
does not deny mowing the Disputed Property and that there is no reason to question or disregard
Charlie’s and Brieanna’s statements. [Filing No. 37 at 16.] The Morgan County Defendants cite
to Kelley v. Myler, 149 F.3d 641 (7th Cir. 1998), and Bozdin v. City of Dallas, 768 F.2d 722 (5th
Cir. 1985), to argue that officers are not required to check official records to determine the
boundary lines before making an arrest for trespass. [Filing No. 37 at 17-18.] They claim that
since Mr. Owens asserts ownership through adverse possession, such records would not exist.
[Filing No. 37 at 18.]
In response, Mr. Owens argues that the Morgan County Defendants did not have probable
cause to pursue criminal charges of trespass against Mr. Owens. [Filing No. 45 at 5.] He argues
that the Morgan County Defendants were aware of the Beaver Defendants’ grudge against Mr.
Owens. [Filing No. 45 at 5.] Mr. Owens claims that his attorney sent a letter to Sheriff Downey
to inform him about the property line dispute between the Beaver Defendants and Mr. Owens.
9
[Filing No. 45 at 5.] Additionally, he argues that Brieanna’s unsigned, written statement alone
was insufficient to establish probable cause and that Sheriff Downey neither spoke to Brieanna nor
observed Mr. Owens trespass the disputed property. [Filing No. 45 at 6.] He contends that he
sufficiently alleges that probable cause was induced by false testimony, fraud, and other improper
means. [Filing No. 45 at 7.] Lastly, he argues that Kelley and Bodzin are inapposite because the
plaintiffs in both cases did not claim ownership of the property that they trespassed, and the police
had no reason to doubt that private establishments owned the property in question. [Filing No. 45
at 7.]
In reply, the Morgan County Defendants reiterate that there was probable cause to think
Mr. Owens committed trespass and that there is nothing suspicious about Brieanna’s statement to
Sheriff Downey. [Filing No. 46 at 7-8.] They argue that the only grudge that Sheriff Downey was
aware of is that the Beaver Defendants believed they were the victims of a crime. [Filing No. 46
at 8.] Due to the timing of Mr. Owens’ letter to Sheriff Downey, the Morgan County Defendants
claim it is unlikely that Sheriff Downey reviewed the letter or that Deputy Gabehart had access to
it. [Filing No. 46 at 8-9.] The Morgan County Defendants argue that Kelley and Bozdin are
relevant because the police officers in both cases had probable cause to arrest the plaintiffs without
an obligation to review official records to determine the property boundary lines. [Filing No. 46
at 9-10.]
“Probable cause to commence criminal proceedings” in the context of malicious
prosecution exists when a reasonable inquiry would induce a reasonably intelligent and prudent
person to believe that the accused committed the crime charged. Glass v. Trump Indiana, Inc.,
802 N.E.2d 461, 466-67 (Ind. Ct. App. 2004) (citing Conwell v. Beatty, 667 N.E.2d 768, 778-79
(Ind. Ct. App. 1996). Indiana courts have held that a judicial determination of probable cause in a
10
criminal proceeding constitutes prima facie evidence of probable cause in a subsequent civil
lawsuit alleging malicious prosecution. Glass, 802 N.E.2d at 467; Conwell, 667 N.E.2d at 778.
The plaintiff may rebut such a prima facie case of probable cause by introducing evidence that
shows the finding of probable cause was induced by false testimony, fraud, or other improper
means such as the defendant withholding material facts at the hearing. Glass, 802 N.E.2d at 467.
The Court concludes that Mr. Owens sufficiently alleges that Sheriff Downey and Deputy
Gabehart lacked probable cause to pursue criminal charges of trespass. Mr. Owens’ Amended
Complaint provides a detailed narrative of the Beaver Defendants’ history of animosity toward
Mr. Owens. Additionally, the Beaver Defendants, particularly Charlie, had a close relationship
with Sheriff Downey and Charlie contacted Sheriff Downey to accuse Mr. Owens of trespass.
Further, Charlie and Sheriff Downey personally visited Mr. Owens to confront him about Mr.
Owens trespassing on the Disputed Property. In regards to Sheriff Downey’s probable cause
affidavit, Sheriff Downey relied on the unsigned, written statement from Brieanna. Likewise,
Deputy Gabehart, who works under the direction of Sheriff Downey, relied on Chuck’s written
statement and Charlie’s testimony that Mr. Owens trespassed the Disputed Property. Lastly, Mr.
Owens’ attorney sent Sheriff Downey a letter that put him on notice about the property line dispute.
These allegations, particularly when coupled with the allegations of cronyism, sufficiently claim
that Sheriff Downey and Deputy Gabehart lacked probable cause.
Moreover, the Court points out that the Morgan County Defendants omitted a relevant
portion of the language from the rule in Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012), when
they argue that the identification from a single eyewitness is generally enough to establish probable
cause for an arrest. As Mr. Owens points out in his response, Phillips actually states that
“[i]dentification of a single eyewitness who lacks an apparent grudge against the accused person
11
supplies probable cause for an arrest.” 5 Phillips, 668 F.3d at 915 (emphasis added). The Court
reminds the Morgan County Defendants’ attorney that an attorney has an ethical duty not to file
briefs advancing arguments that rely upon mischaracterizations of the law.
This
mischaracterization greatly undermines the attorney’s credibility and the argument’s merit. Thus,
moving forward, the Court will carefully construe the Morgan County Defendants’ citations to
assure that the attorney’s ethical obligations are met.
b. State Law Elements of Malicious Prosecution
The Court concludes that Mr. Owens pleads sufficient allegations to set forth a state law
cause of action for malicious prosecution. Although the Morgan County Defendants do not
challenge the other elements of a state law malicious prosecution claim, the Court will nonetheless
address Mr. Owens’ allegations in accordance to each element.
As stated above, “the elements of a malicious prosecution action are: (1) the defendant
instituted or caused to be instituted an action against the plaintiff; (2) the defendant acted
maliciously in so doing; (3) the defendant had no probable cause to institute the action; and (4) the
original action was terminated in the plaintiff’s favor.” Welton, 770 F.3d at 674 (citing Buckland,
557 F.3d at 462). Malice may be shown “by evidence of personal animosity or inferred from a
complete lack of probable cause or a failure to conduct an adequate investigation under the
circumstances.” Welton, 770 F.3d at 674.
First, Mr. Owens sufficiently alleges that Sheriff Downey and Deputy Gabehart caused to
be instituted an action against Mr. Owens. Both officers investigated the trespass incidents and
drafted the probable cause affidavits, which were the basis of the criminal charges against Mr.
5
Ultimately, Phillips has no bearing in this case because Mr. Owens does not dispute whether
there was probable cause to make an arrest, but whether there was probable cause to pursue
criminal charges against him.
12
Owens. Second, Mr. Owens sufficiently alleges the requisite malice. He alleges that the Beaver
Defendants conspired with Sheriff Downey to pursue criminal charges, that Sheriff Downey and
Deputy Gabehart lacked probable cause, and that they both failed to conduct an adequate
investigation. Third, as addressed above, Mr. Owens sufficiently alleges that both officers lacked
probable cause when pursuing criminal charges against Mr. Owens.
Lastly, the criminal
proceedings ended in Mr. Owens’ favor because he was acquitted of all charges at the criminal
trial.
c. Fourth Amendment Violation
The Morgan County Defendants present two challenges to Mr. Owens’ Fourth Amendment
claim for federal malicious prosecution. First, they challenge Mr. Owens’ claim that Mr. Owens
was deprived of his property from the state court’s order imposing restrictions on the use of his
property because Mr. Owens had the opportunity to appear with counsel and present arguments at
the hearing. [Filing No. 37 at 9, 21.] They allege that the court order restricting the use of property
was a result of a continuing problem between the Beaver Defendants and Mr. Owens and that
neither Sheriff Downey nor Deputy Gabehart were connected with that court order. [Filing No.
37 at 10, 21.] Second, the Morgan County Defendants argue that Mr. Owens’ allegations of being
pulled over twenty-six times does not rise to a Fourth Amendment violation. They claim that Mr.
Owens does not allege that Sheriff Downey or Deputy Gabehart were personally involved in the
stops, and that the Morgan County Sheriff’s Department has no control over the traffic stops from
the Indiana State Police. [Filing No. 37 at 20.] Lastly, they argue that Mr. Owens fails to show
that such conduct was an express department policy or a wide practice or custom. [Filing No. 37
at 21.]
13
In response, Mr. Owens argues that his Fourth Amendment rights were violated because
during the pendency of his criminal action, he was prohibited from entering and using his own
driveway with the threat of incarceration. [Filing No. 45 at 13.] Mr. Owens claims that reasonable
inferences can be drawn that either Sheriff Downey or Deputy Gabehart were aware of or involved
in the twenty-six traffic stops. [Filing No. 45 at 12.] He argues that since Sheriff Downey is the
chief executive and final decision maker of the Morgan County Sheriff’s Department, there is a
reasonable inference that he was aware of, directed, or condoned Mr. Owens’ stops. [Filing No.
45 at 13.] Similarly, he argues that there is a reasonable inference that Deputy Gabehart was aware
of or deliberately turned a blind eye to the twenty-six traffic stops. [Filing No. 45 at 13.]
In reply, the Morgan County Defendants argue that Mr. Owens’ restrictions on the use of
his property were imposed with due process and that Sheriff Downey and Deputy Gabehart were
not involved in or aware of the proceeding involving the court order. [Filing No. 46 at 10-11.]
They reiterate that Mr. Owens provides no facts that Sheriff Downey or Deputy Gabehart were
directly involved in Mr. Owens’ twenty-six traffic stops. [Filing No. 46 at 10.]
Although the Seventh Circuit has not specifically articulated what type of seizures
constitute a Fourth Amendment violation in terms of a § 1983 claim for malicious prosecution, it
has indicated that the Fourth Amendment protects against malicious prosecution, at least before
arraignment. See McCullah v. Gadert, 344 F.3d 655 (7th Cir. 2003) (Discussing Seventh Circuit
precedent dealing with malicious prosecution and stating that it is possible to state a § 1983 claim
that relies on the Fourth Amendment); Avila v. Pappas, 591 F.3d 552, 553 (7th Cir. 2010)
(Although “malicious prosecution does not violate the Constitution’s due process clauses[,] [t]here
might be a problem under the [F]ourth [A]mendment if a person is arrested without probable
cause.”). To make out a claim for an unreasonable seizure in violation of the Fourth Amendment,
14
the plaintiff must allege that the defendants’ conduct constituted a seizure, and that the seizure was
unreasonable. See Bielanski v. Cnty. of Kane, 550 F.3d 632, 637 (7th Cir. 2008); Belcher v. Norton,
497 F.3d 742, 747 (7th Cir. 2007). A seizure of a person is generally defined in terms of an
intentional limitation of a person’s freedom of movement. Bielanski, 550 F.3d at 637.
To the extent that the court order restricted Mr. Owens’ use of his property, the Court finds
that Mr. Owens sufficiently alleges a predicate Fourth Amendment violation. Although the
language of the Fourth Amendment “suggest[s] that the core meaning of ‘seizures’ is arrests, or
similar acts that impose an immediate physical restraint on a person,” Llovet v. City of Chicago,
761 F.3d 759, 764 (7th Cir. 2014), at this stage of the litigation, the Court looks to whether Mr.
Owens has satisfied the notice pleading standards of Rule 8 and if the facts that he presented would
entitle him to relief under any applicable legal theory, see McCullah, 344 F.3d at 659. Thus, Mr.
Owens sufficiently alleges a connection between the restraint on the use of his property and his
criminal prosecution for trespass. The probable cause affidavits of Sheriff Downey and Deputy
Gabehart triggered the criminal proceedings against Mr. Owens and, as a consequence, the state
court imposed restrictions on the use of Mr. Owens’ property through a court order. The Court is
not making a decision on the ultimate merits of the case, but it merely concludes that Mr. Owens
sufficiently alleges a constitutional violation for a federal malicious prosecution claim to proceed
at this time.
The Court is not convinced, however, that Mr. Owens’ twenty-six traffic stops constitute a
predicate Fourth Amendment violation. In terms of his malicious prosecution, he fails to allege a
connection between his twenty-six traffic stops and his criminal proceedings for trespass. First,
Mr. Owens fails to provide any context regarding each of the traffic stops and does not allege
whether he was placed under arrest or to what extent he was seized during each of the stops.
15
Second, Mr. Owens concedes that Sheriff Downey and Deputy Gabehart were not personally
involved in all the twenty-six stops. Instead, he alleges that law enforcement from the Morgan
County Sheriff’s Department and the Indiana State Police were involved in those stops. Third, the
assertion that Sheriff Downey was aware of or condoned the twenty-six stops is a conclusion not
supported by any specific factual allegations.
d. Fourteenth Amendment Violation
The Morgan County Defendants argue that Mr. Owens has not presented a predicate
Fourteenth Amendment violation in connection with his federal malicious prosecution claim.
They argue that since Mr. Owens posted bond after his arrest and was tried and acquitted of all the
charges, he was not deprived of his liberty. [Filing No. 37 at 9.] They claim that Mr. Owens
provides no allegations that Sheriff Downey and Deputy Gabehart knowingly made false
statements in their probable cause affidavits. [Filing No. 37 at 10.] Moreover, the Morgan County
Defendants claim that Mr. Owens does not make a proper claim under Brady v. Maryland, 373
U.S. 83 (1963), since Mr. Owens was acquitted of all the charges and cannot show that suppression
of any exculpatory evidence prejudiced his defense. [Filing No. 37 at 10-11.] They further argue
that there is no allegation that Sheriff Downey and Deputy Gabehart suppressed Mr. Griffin’s
survey work and that if Mr. Griffin was a state witness, the prosecutor would be liable for failure
to produce such evidence. [Filing No. 37 at 12.] Regarding Mr. Owens’ twenty-six traffic stops,
the Morgan County Defendants argue that such incidents did not cause Mr. Owens to testify falsely
and did not deprive him of a fair trial. [Filing No. 37 at 13.]
In response, Mr. Owens argues that he sufficiently alleges an infringement of his
procedural due process rights. [Filing No. 45 at 10.] Mr. Owens argues that the Morgan County
Defendants withheld information or evidence necessary for a fair trial. [Filing No. 45 at 10.] He
16
claims that Sheriff Downey failed to disclose his knowledge of the personal animosity between
the Beaver Defendants and Mr. Owens, and that Sheriff Downey based his probable cause affidavit
entirely on Brieanna’s unsigned, written statement. [Filing No. 45 at 10.] Additionally, he argues
that the Morgan County Defendants departed from the department’s policy when they did not refer
the matter to a neutral third party. [Filing No. 45 at 10-11.] Lastly, Mr. Owens argues that being
pulled over twenty-six times by deputies from the Morgan County Sheriff’s Department
immediately preceding the tornado siren trial was a pattern of witness intimidation and bullying.
[Filing No. 45 at 10.]
In reply, the Morgan County Defendants argue that Mr. Owens does not respond to any of
their Brady arguments. [Filing No. 46 at 3.] They claim that Mr. Owens provides no allegations
that Sheriff Downey was aware of any animosity between the Beaver Defendants and Mr. Owens,
and that in addition to Brieanna’s written statement, Sheriff Downey had Shelly’s statement
regarding what Brieanna reported. [Filing No. 46 at 4.] They also claim that such conduct
occurred prior to the arraignment and would not be part of the malicious prosecution claim. [Filing
No. 46 at 3-4.] The Morgan County Defendants argue that Mr. Owens does not allege the existence
of a policy that required the Morgan County Sheriff’s Department to refer the investigation of his
case to the state police and that even if such policy existed, it would not violate the Constitution.
[Filing No. 46 at 5.]
“[C]ourts have recognized that the harm caused by malicious prosecutions may implicate
liberty and property interests, as contemplated by the Due Process Clause.” See Serino v. Hensley,
735 F.3d 588, 594-95 (7th Cir. 2013). “[W]hen brought under federal law, the claim referred to
colloquially and under state common law as ‘malicious prosecution’ is typically based on the
deprivation of liberty without due process of law, in violation of the Fourteenth Amendment.”
17
Freeman v. City of Crown Point, 2014 WL 545511, at *6 (N.D. Ind. Feb. 11, 2014) (citing 3 U.S.
Const. amend. XIV, § 1); see Julian, 732 F.3d at 845 (7th Cir. 2013).
The Court finds that Mr. Owens’ allegations that Sheriff Downey and Deputy Gabehart
withheld exculpatory evidence sufficiently alleges a procedural due process violation. The
Morgan County Defendants’ Brady argument that Mr. Owens was not prejudiced by any
suppressed exculpatory information because he was successful in his criminal trial is irrelevant.
The Court’s duty at this stage of the proceedings is to determine if Mr. Owens presented a claim
for relief and not to make a determination of that claim on the merits. Moreover, contrary to the
Morgan County Defendants’ arguments, Mr. Owens sufficiently alleges that Sheriff Downey and
Deputy Gabehart knowingly withheld material evidence from the prosecutor. For instance, Mr.
Owens alleges that Sheriff Downey had a close relationship with the Beaver Defendants, that
Sheriff Downey and Deputy Gabehart were aware of the animosity between the Beaver Defendants
and Mr. Owens, and that both officers intentionally concealed that information in their probable
cause affidavits. Additionally, Mr. Owens alleges that Sheriff Downey received a letter from Mr.
Owens’ attorney regarding the properly line dispute. Such factual allegations are sufficient to state
a constitutional violation for malicious prosecution. See Reed v. City of Chicago, 77 F.3d 1049
(7th Cir. 1996) (The Court held that the plaintiff failed to allege that the detectives gave perjured
testimony at the hearings, falsified evidence, or withheld exculpatory information after his arrest,
indicating that such allegations could state a claim for malicious prosecution); Serino, 735 F.3d at
588 (The plaintiff failed to allege that the chief of police’s statements were knowingly false, that
he withheld exculpatory evidence from the prosecutor, or that he took steps to wrongfully further
a baseless prosecution).
18
The Court, however, dismisses the rest of Mr. Owens’ allegations against the Morgan
County Defendants. Although Mr. Owens does not allege that he was deprived of his liberty due
to his arrest, 6 he also does not respond to the Morgan County Defendants’ argument and, therefore,
waives this issue. Moreover, as discussed above, Mr. Owens’ twenty-six traffic stops do not state
a predicate constitutional violation for malicious prosecution against Sheriff Downey and Deputy
Gabehart. Lastly, the Court is not persuaded by Mr. Owens’ allegation that the Morgan County
Sheriff’s Department and Sheriff Downey violated his constitutional rights when his case was not
referred to a neutral third party per department policy. He fails to sufficiently allege that a
department policy existed and was violated, and to what extent such violation might constitute a
procedural due process violation in connection with his criminal prosecution. Thus, the Court
dismisses all of Mr. Owens’ claims against the Morgan County Sheriff’s Department.
e. Qualified Immunity
The Morgan County Defendants argue that they are entitled to qualified immunity for any
malicious prosecution claim or any claim of false arrest under the Fourth Amendment. [Filing No.
37 at 22-23.] They allege that given the holdings of Kelley, 149 F.3d at 641 and Bozdin, 768 F.2d
722, the law is not clearly established regarding whether a law enforcement officer is required to
make an independent determination of boundary lines before determining that probable cause
exists to make an arrest for trespass. [Filing No. 37 at 22-23.]
In response, Mr. Owens argues that Sheriff Downey and Deputy Gabehart are not entitled
to qualified immunity. [Filing No. 45 at 14.] He reiterates that each officer based his probable
cause affidavit on the written statement of a single witness who was personal friends with Sheriff
6
The Amended Complaint does not provide any context regarding Mr. Owens’ arrest, other than
he was “falsely arrested and charged.” [Filing No. 33 at 18.]
19
Downey and had a personal grudge against Mr. Owens. [Filing No. 45 at 15.] Mr. Owens further
alleges that Sheriff Downey was aware of the property line dispute between the Beaver Defendants
and Mr. Owens and that he never spoke to Brieanna, but rather received her unsigned, written
statement from Shelly. [Filing No. 45 at 15.]
In reply, the Morgan County Defendants argue that there is no clearly established law that
requires law enforcement to verify boundary lines of property, and that they are entitled to rely on
the representations of the person claiming ownership of the property against the alleged trespasser.
[Filing No. 46 at 11.] They further allege that Mr. Owens has not cited authority that allows a
person who claims adverse possession of a property to roam freely on that property. [Filing No.
46 at 12.]
“The doctrine of qualified immunity protects government officials from liability for civil
damages when their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” McAllister v. Price, 615 F.3d 877, 881 (7th
Cir. 2010) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To determine whether a
defendant is entitled to qualified immunity, the Court must address two issues: “(1) whether the
defendant violated the plaintiff’s constitutional rights and (2) whether the right at issue was clearly
established at the time of the violation.” Rooni v. Biser, 742 F.3d 737, 742 (7th Cir. 2014)
(citations omitted).
The Court denies the Morgan County Defendants’ claim for qualified immunity, which at
the juncture is based solely on the allegations raised in Mr. Owens’ complaint. Their arguments
essentially challenge Mr. Owens’ factual allegations, particularly with the issue of probable cause,
and therefore the Court cannot make a determination of qualified immunity at this stage of the
litigation. Moreover, “a[n amended] complaint is generally not dismissed under Rule 12(b)(6) on
20
qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001); see
Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000) (“The plaintiff is not required
initially to plead factual allegations that anticipate and overcome a defense of qualified
immunity”); See Hunafa v. Murphy, 907 F.2d 46, 49 (7th Cir. 1990) (“The principle that the
determination of immunity need not be made at the earliest opportunity if a fuller development of
the record would be helpful to a sound decision is well established.”).
2. Conspiracy
The Morgan County Defendants claim that the only agreement that Mr. Owens has alleged
is that Sheriff Downey and Charlie agreed to speak with Mr. Owens about the trespass issue.
[Filing No. 37 at 23.] They argue that Mr. Owens provides no allegations of an agreement between
the Morgan County Defendants and that Mr. Owens has not presented a constitutional violation to
provide a basis for a conspiracy claim. [Filing No. 37 at 23.]
In response, Mr. Owens claims that he provides sufficient allegations of a civil conspiracy
involving Sheriff Downey, Deputy Gabehart, and the Morgan County Sheriff’s Department.
[Filing No. 45 at 16-17.] He argues that Sheriff Downey is a personal friend of the Beaver
Defendants and that Sheriff Downey was aware of the property line dispute between the Beaver
Defendants and Mr. Owens. [Filing No. 45 at 16.] He further claims the Morgan County
Defendants acted with an improper motive to help the Beaver Defendants and to intimidate Mr.
Owens. [Filing No. 45 at 16.] Mr. Owens argues that even if he did not know of the conspiracy,
Deputy Gabehart violated Mr. Owens’ rights by charging him with additional criminal charges
without probable cause. [Filing No. 45 at 17.] He also argues that the deputies of the Morgan
County Sheriff’s Department violated Mr. Owens’ clearly established rights by pulling him over
twenty-six times in order to intimidate him before trial. [Filing No. 45 at 17.]
21
The Morgan County Defendants do not reply to Mr. Owens’ arguments.
Conspiracy is not an independent basis of liability. Smith v. Gomez, 550 F.3d 613, 617
(7th Cir. 2008). “In a [§ 1983] case[,] . . . the function of conspiracy doctrine is merely to yoke
particular individuals to the specific torts charged in the complaint.” Jones v. City of Chicago, 856
F.2d 985, 992 (7th Cir. 1988). To adequately plead a conspiracy under § 1983, a plaintiff must
show that a defendant voluntarily participated in a common venture to violate a plaintiff’s
constitutional rights. Id.
The Court agrees with Mr. Owens that he sufficiently pleads a civil conspiracy involving
Sheriff Downey, Deputy Gabehart, and the Beaver Defendants. 7 “[I]t is enough in pleading a
conspiracy merely to indicate the parties, general purpose, and approximate date, so that the
defendant[s] ha[ve] notice of what [they are] charged with.” Walker v. Thompson, 288 F.3d 1005,
1007 (7th Cir. 2002). First, the Court already established that Mr. Owens sufficiently alleges that
Sheriff Downey and Deputy Gabehart violated his constitutional rights. Second, Mr. Owens
sufficiently pleads that Sheriff Downey and the Beaver Defendants, who have a personal
relationship, conspired together to seek and pursue trespass charges against Mr. Owens. Mr.
Owens alleges that Sheriff Downey was aware of the Beaver Defendants’ animosity toward Mr.
Owens, and that under the direction of the Beaver Defendants, Sheriff Downey confronted Mr.
Owens about his trespass and then filed a probable cause affidavit to pursue trespass charges
against Mr. Owens. Additionally, Mr. Owens sufficiently alleges that, at the very least, Deputy
Gabehart, who works under the direction of Sheriff Downey, relied on Charlie’s testimony and
Chuck’s written statement to pursue additional charges of trespass against Mr. Owens. The Court,
7
The Beaver Defendants’ arguments challenging Mr. Owens’ conspiracy claim are addressed later
in the decision.
22
however, dismisses the conspiracy claim against the Morgan County Sheriff’s Department
because, as discussed earlier, Mr. Owens fails to plead that the Morgan County Sheriff’s
Department violated Mr. Owens’ constitutional rights.
3. Timely Notice and Immunity Provisions under the ITCA
The Morgan County Defendants argue that Mr. Owens’ state law claims for false arrest,
abuse of process, and intentional infliction of emotional distress are barred because he failed to
provide timely notice of the tort claims as required by the ITCA.
[Filing No. 37 at 25.]
Additionally, the Morgan County Defendants argue that under the ITCA, Sheriff Downey and
Deputy Gabehart are immune from liability from Mr. Owens’ state law claims of malicious
prosecution, false arrest, abuse of process, and intentional infliction of emotional distress. [Filing
No. 37 at 26-27.] .
Mr. Owens does not respond to the Morgan County Defendants’ arguments.
In reply, the Morgan County Defendants reiterate that the Court should dismiss Mr. Owens’
state law claims for the aforementioned reasons. [Filing No. 46 at 12.]
By failing to respond, Mr. Owens is deemed to have waived the arguments on these issues
and the Court dismisses Mr. Owens’ state law claims against the Morgan County Defendants.
Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1075 (7th Cir. 2013) (“Because [the plaintiffs]
did not provide the district court with any basis to decide their claims, and did not respond to the
[defendant’s] arguments, these claims are waived.”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466
(7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver.”); Bratton v. Roadway
Package Sys., Inc., 77 F.3d 168, 173 n. 1 (7th Cir. 1996) (argument waived where appellants
“failed to develop the argument in any meaningful manner”). The Court therefore dismisses Mr.
Owens’s state law claims against the Morgan County Defendants.
23
B. The Beaver Defendants
The Beaver Defendants challenge Mr. Owens’ conspiracy claim and state law claims.
First, they argue that Mr. Owens does not adequately plead a conspiracy claim. Second, the Beaver
Defendants argue that Mr. Owens does not plead claims for intentional or reckless infliction of
emotional distress, malicious prosecution, false arrest, or abuse of process.
1. Conspiracy
The Beaver Defendants argue that Mr. Owens does not plead facts that show an agreement
involving all the defendants. [Filing No. 42 at 8.] They contend that the only agreement Mr.
Owens alleges is that Sheriff Downey and Charlie agreed to discuss the trespass issue with Mr.
Owens. [Filing No. 42 at 8.] They further claim that there was no constitutional violation to
provide a basis for a conspiracy claim. [Filing No. 42 at 8.]
In his response, Mr. Owens claims that he sufficiently alleges that the Beaver Defendants
were involved in a conspiracy with the Morgan County Defendants. [Filing No. 45 at 16-17.] Mr.
Owens argues that Sheriff Downey is a personal friend of the Beaver Defendants and that Sheriff
Downey was aware of the property line dispute between the Beaver Defendants and Mr. Owens.
[Filing No. 45 at 16.] He claims that the Morgan County Defendants acted with an improper
motive to help the Beaver Defendants settle a longstanding civil dispute with Mr. Owens. [Filing
No. 45 at 16.]
The Beaver Defendants did not file a reply brief.
“[P]rivate citizens may be brought within the grasp of section 1983 even though the statute
is limited to acts under color of state law. . . [where] the citizen[s] may have conspired with a
public employee to deprive the plaintiff of his constitutional rights.” Proffitt v. Ridgway, 279 F.3d
24
503, 507 (7th Cir. 2002) (citations omitted). As a conspirator, a citizen is liable for the wrongful
acts of the other conspirators committed within the scope of the conspiracy. Id.
The Court agrees with Mr. Owens that he provides sufficient allegations that the Beaver
Defendants were also involved in a civil conspiracy against Mr. Owens. First, the Court has
already determined that Mr. Owens sufficiently alleges that Sheriff Downey and Deputy Gabehart
violated Mr. Owens’ constitutional rights. Second, Mr. Owens sufficiently pleads that the Beaver
Defendants conspired with Sheriff Downey and Deputy Gabehart by falsely accusing Mr. Owens
of trespassing on their property to pursue criminal charges against him. Charlie contacted Sheriff
Downey to accuse and confront Mr. Owens of trespassing the Disputed Property. Shelly also
contacted Sheriff Downey to tell him that Brieanna witnessed Mr. Owens trespassing the property,
and she delivered Brieanna’s written statement to Sheriff Downey. Sheriff Downey’s probable
cause affidavit was based on Brieanna’s unsigned, written statement and once the trespass charges
were filed against Mr. Owens, Deputy Gabehart pursued additional charges of trespass based on
Charlie’s testimony and Chuck’s written statement. The Court concludes that these allegations are
sufficient to indicate that the Beaver Defendants were involved in the civil conspiracy.
2. Intentional or Reckless Infliction of Emotional Distress 8
The Beaver Defendants argue that Mr. Owens does not have a claim for intentional or
reckless infliction of emotional distress because he provides no evidence that Mr. Owens
experienced direct physical impact nor any allegations that the Beaver Defendants caused
“intentional reckless” infliction of emotional distress. [Filing No. 42 at 9.]
8
The Beaver Defendants also argue that Mr. Owens does not plead facts to support a claim for
negligent infliction of emotional distress, but Mr. Owens does not raise this claim in the Amended
Complaint. Thus, the Court will not address it.
25
In his response, Mr. Owens argues that a direct physical impact of the plaintiff is not an
element of intentional or reckless infliction of emotional distress. [Filing No. 45 at 19.] He argues
that the Beaver Defendants engaged in extreme and outrageous conduct by providing false reports
and false statements to the Morgan County Sheriff’s Department in order to pursue criminal
charges against Mr. Owens prior to the tornado siren trial. [Filing No. 45 at 19.] Mr. Owens
further claims that he alleged that the Beaver Defendants acted intentionally in causing false
criminal charges to be brought against Mr. Owens, and intended their conduct to cause him severe
emotional distress. [Filing No. 45 at 19.]
Again, the Beaver Defendants did not file a reply brief.
To establish a claim for intentional infliction of emotional distress, the plaintiff must prove
that the defendants: (1) engaged in extreme and outrageous conduct (2) which intentionally or
recklessly (3) causes (4) severe emotional distress to another. Westminster Presbyterian Church
of Muncie v. Yonghong Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App. 2013) (citing Cullison v.
Medley, 570 N.E.2d 27, 31 (Ind. 1991)). Indiana courts use a rigorous standard to establish
extreme or outrageous conduct. Westminster, 992 N.E.2d at 870. Outrageous conduct must be
“so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. (citing Bradley v. Hall, 720 N.E.2d
747, 752-53 (Ind. Ct. App. 1999)).
The Court concludes that Mr. Owens sufficiently pleads a claim for intentional infliction
of emotional distress. The Beaver Defendants’ argument that Mr. Owens provides no evidence of
direct physical impact is immaterial because not only is Mr. Owens not required to present
evidence at the pleading stage, but a direct physical impact is not required for an intentional
infliction of emotional distress claim. Mr. Owens sufficiently pleads that the Beaver Defendants
26
engaged in outrageous conduct by causing criminal charges of trespass to be instituted against Mr.
Owens through cronyism with the Morgan County Defendants, and that such conduct caused him
severe emotional distress. The Court acknowledges, however, that extreme or outrageous conduct
is a rigorous standard, and notes that it is not deciding this issue on the merits, but merely
recognizing that Mr. Owens states a claim for relief at this stage of the litigation.
3. State Law Claims of Malicious Prosecution, False Arrest, and Abuse of Process
The Beaver Defendants challenge all of Mr. Owens’ state law claims. They argue that the
false arrest claim fails because they do not have the capacity or power to arrest Mr. Owens.
Further, the Beaver Defendants argue that Mr. Owens has no claims for abuse of process or
malicious prosecution, and that the only facts to substantiate such claims are those that allege that
Charlie filed a complaint against Mr. Owens at the Morgan County Board of Zoning Appeals.
In response, Mr. Owens claims that he has sufficiently pled a malicious prosecution claim
against the Beaver Defendants. He argues that the Beaver Defendants caused the criminal
prosecution to be initiated against Mr. Owens with their false statements, that they acted with
malice, and that the cause of action terminated in Mr. Owens’ favor.
Once again, the Beaver Defendants did not reply.
The essence of malicious prosecution rests on the notion that the plaintiff has been
improperly subjected to legal process. City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.
2001); Ziobron v. Crawford, 667 N.E.2d 202, 208 (Ind. Ct. App. 1996). Under Indiana law, “the
elements of a malicious prosecution action are: (1) the defendant instituted or caused to be
instituted an action against the plaintiff; (2) the defendant acted maliciously in so doing; (3) the
defendant had no probable cause to institute the action; and (4) the original action was terminated
in the plaintiff’s favor.” Welton, 770 F.3d at 674; (citing Buckland, 557 F.3d at 462).
27
The Court finds that Mr. Owens sufficiently pleads a malicious prosecution claim against
the Beaver Defendants. Additionally, the Court dismisses Mr. Owens’ claims for abuse of process
and false arrest against the Beaver Defendants. 9 As discussed in detail above, Mr. Owens
sufficiently alleges that the Beaver Defendants along with Sheriff Downey and Deputy Gabehart
caused criminal charges of trespass to be instituted against Mr. Owens. Mr. Owens alleges the
requisite malice by describing the Beaver Defendants’ history of animosity against Mr. Owens and
their false allegations that Mr. Owens trespassed their property. Regarding the probable cause
element, the Court concluded earlier that Mr. Owens sufficiently alleges that there was no probable
cause to pursue criminal charges of trespass against Mr. Owens. Lastly, Mr. Owens was successful
when he was acquitted of all charges at the end of his criminal trial. Thus, Mr. Owens’ state law
claim for malicious prosecution against the Beaver Defendants proceeds.
IV.
CONCLUSION
For the reasons stated herein, the Court GRANTS IN PART AND DENIES IN PART
the Morgan County Defendants’ and the Beaver Defendants’ Motions to Dismiss Mr. Owens’
Amended Complaint. No partial judgment shall issue at this time.
The Court makes the following rulings:
·
Plaintiff’s § 1983 claim for federal malicious prosecution based on a Fourth
Amendment violation for being deprived of the use of his property against Sheriff
Downey and Deputy Gabehart may proceed;
9
In his response, Mr. Owens raises no arguments pertaining to the abuse of process or false arrest
claims and merely states: “For the foregoing reasons, [Mr.] Owens’ Amended Complaint has
alleged sufficient facts to establish the basis of a claim for malicious prosecution against the Beaver
Defendants.” [Filing No. 45 at 20 (original emphasis).] This statement is insufficient to raise any
argument in opposition to the Defendants’ motion.
28
·
Plaintiff’s § 1983 claim for federal malicious prosecution based on a Fourteenth
Amendment violation for withholding exculpatory evidence against Sheriff
Downey and Deputy Gabehart may proceed;
·
Plaintiff’s civil conspiracy claim against Sheriff Downey, Deputy Gabehart, and
the Beaver Defendants may proceed;
·
Plaintiff’s state law claim for intentional infliction of emotional distress against the
Beaver Defendants may proceed;
·
Plaintiff’s state law claim for malicious prosecution against the Beaver Defendants
may proceed;
·
Plaintiff’s claim based upon being pulled over twenty-six times as part of his § 1983
claim for federal malicious prosecution against Sheriff Downey and Deputy
Gabehart is dismissed;
·
Plaintiff’s claim that the Morgan County Defendants violated department policy as
part of his § 1983 claim for federal malicious prosecution is dismissed;
·
Morgan County Defendants’ request for qualified immunity is denied without
prejudice;
·
Plaintiff’s state law claims for intentional infliction of emotional distress, malicious
prosecution, abuse of process, and false arrest against Sheriff Downey and Deputy
Gabehart are dismissed;
·
Plaintiff’s state law claims for abuse of process and false arrest against the Beaver
Defendants are dismissed; and
·
Norman Voyles, Morgan County, and the Morgan County Sheriff’s Department are
terminated as a defendants.
Date: December 15, 2015
_____________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution:
Glen Emmett Koch, II
BOREN OLIVER & COFFEY
glenkoch@boclawyers.com
29
James S. Stephenson
STEPHENSON MOROW & SEMLER
jstephenson@stephlaw.com
Ronald J. Semler
STEPHENSON MOROW & SEMLER
rsemler@stephlaw.com
Matthew S. Schoettmer
VAN VALER LAW FIRM, LLP
matt@vanvalerlaw.com
Thomas W. Vander Luitgaren
VAN VALER LAW FIRM, LLP
tom@vanvalerlaw.com
30
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