McCloud-Smith v. Sormaz

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CHARLES MCCLOUD-SMITH,

Plaintiff,

v. CAUSE NO. 2:23-CV-101-PPS-APR

PETE SORMAZ, et al.,

Defendants.

OPINION AND ORDER

Charles McCloud-Smith, a prisoner without a lawyer, filed a complaint against a

number of Schererville police officers involved in his arrest and later prosecution which

resulted in a four-year prison sentence. ECF 1. “A document filed pro se is to be

liberally construed, and a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Nevertheless, pursuant to

28 U.S.C. § 1915A, I must review the merits of a prisoner complaint and dismiss it if the

action is frivolous or malicious, fails to state a claim upon which relief may be granted,

or seeks monetary relief against a defendant who is immune from such relief. The

standard I apply is the same one as when deciding a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006).

To survive dismissal, a complaint must state a claim for relief that is plausible on

its face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602 (7th Cir. 2009). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (internal quotation marks and citation omitted). A plaintiff can plead himself out of

court if he pleads facts that preclude relief. See Edwards v. Snyder, 478 F.3d 827, 830 (7th

Cir. 2007); McCready v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

McCloud-Smith alleges he was “maliciously prosecuted” by the Schererville

Police Department on March 5, 2021. ECF 1 at 2. He claims Detective Norgle

interviewed and later arrested him “for probable cause” in state case number 45G02-

2103-F1-000018. Id. He was charged with attempted murder and various forms of

battery against two victims. Id. He believes multiple charges were “the same charges,

but only had been enhanced.” Id. Because of these various charges, McCloud-Smith

claims it hindered his ability to obtain private counsel, and he was forced to proceed

with a public defender. Id. Details about his criminal case “demonizing and slandering”

him were published in the newspaper. Id. at 1-2. McCloud-Smith and his family

suffered losses because of his incarceration. Id. at 2. Ultimately, the state dropped the

attempted murder charges—instead reducing them to a level six felony intimidation

charge—and McCloud-Smith entered into a plea agreement on two other lesser charges.

He believed he would be sentenced to work release, but instead he received the

maximum sentence and was sent to prison. Id. He has sued Schererville Police Chief

Pete Sormaz, Detective Ernest Norgle, Deputy Chief Steve McNamara, and the

Schererville Police Department for punitive damages.

Federal claims for malicious prosecution brought pursuant to 42 U.S.C. § 1983

have been recognized as arising under the Fourth Amendment. See Thompson v. Clark,

__U.S. __, 142 S. Ct. 1332, 1337 (2022). To prevail on such a claim, the plaintiff must

establish that the prosecution was instituted without probable cause, that the motive in

bringing the charge was “malicious,” and that the prosecution terminated in favor of

the accused. Id. at 1338. With regard to the probable cause element, “[p]olice officers

have probable cause to arrest an individual when the facts and circumstances within

their knowledge and of which they have reasonably trustworthy information are

sufficient to warrant a prudent person in believing that the suspect had committed an

offense.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006) (quotation marks

and citation omitted); see also Young v. City of Chicago, 987 F.3d 641, 644 (7th Cir. 2021)

(Probable cause is a “common-sense inquiry requiring only a probability of criminal

activity; it exists whenever an officer or a court has enough information to warrant a

prudent person to believe criminal conduct has occurred.”) (quoting Whitlock v. Brown,

596 F. 3d 406, 411 (7th Cir. 2010)).

Here, curiously, McCloud-Smith doesn’t allege he was arrested without probable

cause. In fact, he alleges the contrary; that he was arrested “for probable cause.” ECF 1

at 2. This is undoubtedly true. According to the state court electronic docket, on March

5, 2021, both a probable cause affidavit and an information were filed, a judge issued an

order finding probable cause, and McCloud-Smith was taken into custody. See State of

Ind. v. McCloud-Smith, cause no. 45G02-2103-F1-000018 (filed Mar. 5, 2021), available

online at: https://public.courts.in.gov/mycase (last visited May 17, 2023). I am

permitted to take judicial notice of public documents in screening the complaint. See

FED. R. EVID. 201; Tobey v. Chibucos, 890 F.3d 634, 647–48 (7th Cir. 2018); Daniel v. Cook

Cty., 833 F.3d 728, 742 (7th Cir. 2016) (“Courts routinely take judicial notice of the

actions of other courts or the contents of filings in other courts.”). Because some of the

relevant documents are available online to Indiana attorneys but not readily available

online to the public—in the spirit of N.D. Ind. L.R. 7-1(f)—the clerk will be directed to

attach a copy of those relevant filings to this order.

According to the probable cause affidavit by Detective David Nangle1, the

detective spoke with two officers who had personal knowledge regarding the incident.

Those officers had, in turn, interviewed the two victims of McCloud-Smith’s violent

activity. Here’s their harrowing account of what happened: McCloud-Smith—whom

they recognized because he was in a previous relationship and has a child with one of

1 It’s not clear whether McCloud-Smith incorrectly named Detective Ernest Norgle as a defendant

instead of Detective David Nangle, but, as will be explained below, he hasn’t stated any claims against

either of the officers.

the victims—broke into their apartment in the early morning hours of March 5, 2021. He

attacked one of the women who was sleeping on the couch, knocked her to the floor,

and “aggressively push[ed] his fingers into her eyes.” See Nangle Probable Cause Affidavit,

attached as Exhibit 3. He threatened both women, screaming at them, “You’re going to

die!” and proceeded to stab one of the women with a metal fork in her upper right arm

before fleeing. Id. The officers observed wounds on the victims, including a stab wound

consistent with a fork on the arm of one and a swollen eye that was actively bleeding on

the other. According to the affidavit, Detective Nangle also spoke directly with the

victims, and he concluded they were both “truthful and credible.” Id. One of the victims

went to the hospital for further medical treatment for her eye because it was swollen

shut and her vision was blurred.

McCloud-Smith was arrested and charged with a bevy of crimes: two counts of

felony attempted murder (a Level 1 felony under Indiana law), felony battery resulting

in serious bodily injury (a Level 5 felony), felony domestic battery by means of a deadly

weapon (Level 5), battery resulting in moderate bodily injury (Level 6), domestic

battery resulting in moderate bodily injury (Level 6), residential entry (Level 6), and

Class A misdemeanor theft. See Information, attached as Ex. 1. On July 27, 2021, an

amended information was filed that dropped the attempted murder charges and

replaced them with a Level 6 felony intimidation charge, but all other charges remained

the same. See Amended Information, attached as Ex. 2.

The probable cause affidavit clearly establishes there was probable cause to

arrest McCloud-Smith for at least one (and, in reality, many) of the charged crimes. For

example, the Level 6 felony battery charge—one of the charges he eventually ended up

pleading guilty to—requires the defendant to have knowingly or intentionally touched

another person in a rude, insolent, or angry manner, which resulted in moderate bodily

injury. See Ind. Code § 35-42-2-1(c)(1) & (e)(1). “’Moderate bodily injury’ means any

impairment of physical condition that includes substantial pain.” Ind. Code § 35-31.5-2-

204.5. The actions described in the affidavit are “sufficient to warrant a prudent person

in believing that the suspect had committed an offense.” Mustafa, 442 F.3d at 547

(quotation marks and citation omitted). He was then arrested and charged accordingly,

which forecloses his malicious prosecution claim. See Thompson, 142 S. Ct. at 1338.

What’s more, although McCloud-Smith takes issue with the “enhanced” charges

and the number of them, this does not save his claim because there was probable cause

to arrest and charge him with at least one of the crimes. See Williams v. Rodriguez, 509

F.3d 392, 399 (7th Cir. 2007) (noting the Supreme Court has “rejected the rule that the

offense establishing probable cause must be ‘closely related’ to, and based on the same

conduct as, the offense identified by the arresting officer at the time of the arrest”)

(quoting Devenpeck v. Alford, 543 U.S. 146, 153 (2004)); see also United States v. Williams,

495 F.3d 810, 817–18 (7th Cir. 2007) (once officers established probable cause to arrest a

defendant, “it is irrelevant that their investigation eventually found evidence of other

crimes, that he was originally charged with those other crimes, or that the [sic] those

crimes were charged based on an investigation that dragged out longer than was

warranted by their original suspicion”). The fact that the attempted murder charges

were later dropped, and an additional charge of intimidation was added, does not

negate the existence of probable cause at the time he was detained and charged.

Moreover, as mentioned above, McCloud-Smith pled guilty to two of the

offenses he was originally charged with—the Level 6 felony battery resulting in

moderate bodily injury and the Level 6 felony domestic battery. (The rest of the charges

were dismissed as part of the plea agreement.) See State of Ind. v. McCloud-Smith, cause

no. 45G02-2103-F1-000018 (filed Mar. 5, 2021), available online at:

https://public.courts.in.gov/mycase (last visited May 17, 2023). On October 27, 2021,

he was adjudged guilty of those crimes and sentenced to four years in prison. See id.

That conviction has not been overturned; in fact, it was affirmed on appeal. See

McCloud-Smith v. State of Ind., cause no. 21A-CR-02607 (filed Nov. 24, 2021), available

online at: https://public.courts.in.gov/mycase (last visited May 17, 2023).2 Thus, I find

2 Of note, the appellate court referenced the fact that McCloud-Smith stipulated to the following

factual basis in his plea agreement:

On March 5, 2021, McCloud-Smith travelled—uninvited—to a home in Schererville.

Paige Mills was in the home, and she awoke to McCloud-Smith standing over her.

McCloud-Smith was angry and aggressively pushed his fingers into Mills’ eyes. Shyann

Bell—who shared a child with McCloud-Smith—was also present and attempted to

intervene. McCloud-Smith stabbed Bell in the arm with a fork and then fled.

See McCloud-Smith v. State of Ind., cause no. 21A-CR-02607 (filed Nov. 24, 2021), Memorandum Decision

dated May 19, 2022, available online at: https://public.courts.in.gov/mycase (last visited May 17, 2023).

that McCloud-Smith’s malicious prosecution claim must fail for this reason as well. See

Crowder v. Barrett, No. 22-1899, 2023 WL 3145312, at *4 (7th Cir. Apr. 28, 2023) (“Finally,

to the extent that [the plaintiff] intends to argue that he was unfairly prosecuted, that

argument must fail because his robbery charge ended in a conviction that has not been

overturned.”) (citing Thompson, 142 S. Ct. at 1341).

McCloud-Smith also alleges he couldn’t find a private attorney willing to

represent him because there were “so many” charges and they were “enhanced.” ECF 1

at 2. He later states that he “could not afford an attorney due to having these erroneous

enhanced charges.” Id. at 3. But the fact that he couldn’t retain a private attorney—

either because he lacked the finances to do so or because no attorney wanted to take the

case on his behalf—doesn’t constitute any sort of constitutional violation under §1983.

“[T]he Sixth Amendment guarantees a defendant the right to be represented by an

otherwise qualified attorney whom that defendant can afford to hire, or who is willing to

represent the defendant even though he is without funds.” United States v. Gonzalez-Lopez,

548 U.S. 140, 144 (2006) (citation omitted) (emphasis added). Because McCloud-Smith

couldn’t obtain counsel on his own, he admits that the court appointed counsel for him.

Although McCloud-Smith alleges he had “constant clashes” with his appointed public

defender (ECF 1 at 2), this doesn’t state a claim under § 1983. See Gonzalez-Lopez, 548

This stipulation alone establishes probable cause to support the arrest and prosecution of McCloud-

Smith.

U.S. at 151 (“the right to counsel of choice does not extend to defendants who require

counsel to be appointed for them”).

Finally, McCloud-Smith alleges the case was published in a newspaper, which

damaged his reputation by “demonizing and slandering” him. ECF 1 at 2–3. Putting

aside the vagueness of these allegations, his “interest in reputation asserted in this case

is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due

process of law.” Paul v. Davis, 424 U.S. 693, 712 (1976); see also Bone v. City of Lafayette,

Ind., 919 F.2d 64, 65–67 (7th Cir. 1990). Therefore, he hasn’t stated a viable federal claim

under § 1983.3

“The usual standard in civil cases is to allow defective pleadings to be corrected,

especially in early stages, at least where amendment would not be futile.” Abu-Shawish

v. United States, 898 F.3d 726, 738 (7th Cir. 2018). However, “courts have broad

discretion to deny leave to amend where . . . the amendment would be futile.” Hukic v.

Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (citation omitted). For the reasons I

described above, such is the case here.

Accordingly, this case is DISMISSED pursuant to 28 U.S.C. § 1915A because the

complaint fails to state any viable claims.

3 Under Indiana law, for a claim of defamation, “a plaintiff must prove four elements: (1) a

communication with defamatory imputation, (2) malice, (3) publication, and (4) damages.” Hamilton v.

Prewett, 860 N.E.2d 1234, 1243 (Ind. Ct. App. 2007). Publishing facts about a criminal case—especially one

that resulted in a conviction by way of a plea agreement—does not constitute malice. Therefore,

McCloud-Smith hasn’t stated any viable state law claims either.

SO ORDERED.

ENTERED: May 23, 2023.

/s/ Philip P. Simon

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT