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Owens v. Downey

United States District Court, S.D. Indiana, Indianapolis Division

December 15, 2015

DANIEL W. OWENS, Plaintiff,

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          For DANIEL W OWENS, Plaintiff: Matthew S. Schoettmer, Thomas W. Vander Luitgaren, VAN VALER LAW FIRM, LLP, Greenwood, IN.

         For ROBERT J. DOWNEY, Morgan County Sheriff, BRIAN K GABEHART, Deputy Sheriff, MORGAN COUNTY SHERIFF'S DEPARTMENT, Defendants: James S. Stephenson, Ronald J. Semler, STEPHENSON MOROW & SEMLER, Indianapolis, IN.


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         Hon. Jane Magnus-Stinson, United States District Judge.

         Presently pending before the Court are: (1) a Motion to Dismiss filed by Defendants

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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 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.


         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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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.



         The factual allegations in Mr. Owens' Amended Complaint, which the Court must accept as true, are as follows.

         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

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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 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.]

         After the installation of the siren, the Morgan County Sheriff's Department triggered

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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. 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

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Fourteenth Amendments against the Morgan County Defendants, a civil conspiracy claim[4] against all Defendants, and state law claims for intentional infliction of emotional distress, malicious prosecution, false arrest, and abuse of process against all Defendants. [Filing No. 33 at 23-29.]



         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.

         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 state-law remedy exists. Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001) (citing Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)).

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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 was terminated in the plaintiff's favor." Id. (citing Golden Years Homestead, Inc. v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009)). Malice ...

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