United States District Court, S.D. Indiana, Indianapolis Division
DANIEL W. OWENS, Plaintiff,
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.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
DANIEL W OWENS, Plaintiff: Matthew S. Schoettmer, Thomas W.
Vander Luitgaren, VAN VALER LAW FIRM, LLP, Greenwood, IN.
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.
CHARLES E BEAVER, SHELLY BEAVER, CHARLES W BEAVER, BRIEANNA
BEAVER, Defendants: Glen Emmett Koch, II, BOREN OLIVER &
COFFEY, Martinsville, IN.
ON DEFENDANTS' MOTIONS TO DISMISS
Jane Magnus-Stinson, United States District Judge.
pending before the Court are: (1) a Motion to Dismiss filed
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" ), [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
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)).
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.
factual allegations in Mr. Owens' Amended Complaint,
which the Court must accept as true, are as follows.
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.]
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. [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.]
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.]
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.]
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.]
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.]
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 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.]
Owens' Amended Complaint asserts a 42 U.S.C. § 1983
claim for malicious prosecution in violation of the Fourth
Fourteenth Amendments against the Morgan County Defendants, a
civil conspiracy claim 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.]
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)." ).
Court will first address the arguments raised by the Morgan
County Defendants and then the arguments raised by Beaver
Morgan County Defendants
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.
§ 1983 Claim for Malicious Prosecution
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
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
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 §
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 ...