Agee v. Hickenbottom

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JACQUELINE J. AGEE, et al.,

Plaintiffs,

v. Case No. 2:23-CV-404-GSL-AZ

PAIGE N. HICKENBOTTOM, et al.,

Defendants.

OPINION AND ORDER

Plaintiffs, a mother and son, bring suit against Defendants, who are police officers for St.

John, Indiana, for claims of malicious prosecution and false arrest. [DE 1]. For the reasons

below, Defendants’ Motion to Dismiss [DE 12] is GRANTED.

BACKGROUND

At the time of the events alleged in the Complaint, Defendants Hickenbottom, Jacobs,

and Stickle were law enforcement officers employed by St. John, and were acting pursuant to

that office and under color of state law. [DE 1, Page 3:11-16]. On November 22, 2022,

Defendants were dispatched to investigate a complaint that someone had pointed a weapon at a

group of students. [DE 1, Page 4:22-23]. The Defendants were informed by dispatch “…the

mother that lives at the offending address advised it was an air rifle.” [DE 1, Page 4:23].

The parents of one student who witnessed the events told Defendant Stickle that the

person pointed what turned out to be an air rifle and was a male, twenty to twenty-five years old.

[DE 1, Page 5:24]. Defendants Hickenbottom and Jacobs interviewed another student, who told

them that a male pointed what he believed to be a BB gun at him and three others, but he could

not provide a further description. [DE 1, Page 5:29-30]. The father of two other students told

Defendants Jacobs, Stickle, and Hickenbottom that the “older boy” at Plaintiff’s residence

pointed “what looked like a gun at” the students. [DE 1, Page 6:33].

Defendants Jacobs, Stickle, and Hickenbottom then responded to Plaintiffs’ residence.

[DE 1, Page 6:35]. Defendants questioned Plaintiff John Agee (“Plaintiff John”), a minor at the

time, without the consent of his mother, Plaintiff Jacqueline Agee (“Plaintiff Jacqueline”).1 [DE

1, Page 8:43]. [DE 1, Page 8:43]. John admitted to working on his airsoft gun and looking at

targets in the backyard, but denied the other allegations. [DE 1, Page 8]. The Defendants cleared

the scene without issuing a citation. [DE 1, Page 8:46-50].

Later, Defendant Stickle mailed Plaintiff Jacqueline an ordinance violation stating that,

on November 22, 2022, Plaintiff Jacqueline knowingly permitted Plaintiff John to discharge a

pellet gun in St. John town limits. [DE 1, Page 9:53]. Because of the proceedings initiated by

Defendants, Plaintiff Jacqueline retained counsel. [DE 1, Page 10:59]. On or about August 31,

2023, Plaintiff Jacqueline’s ordinance violation was dismissed with prejudice. [DE 1, Page

10:61].

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows for a complaint to be dismissed if it fails

to “state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion, a

complaint “must contain 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 Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). When analyzing a motion to dismiss, pled facts must be

construed in favor of the plaintiff. Carter v. Sturgeon, 643 F. Supp. 3d 862, 865-866 (N. D. Ind.

1 The Court recognizes the serious nature of an allegation that a minor was questioned without parental

consent. In this matter, Plaintiff John did not confess to any crime, nor was he ever charged with one.

2022) (citing Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995)). Although the court accepts

“the well-pleaded facts in the complaint as true, legal conclusions and conclusory allegations ...

are not entitled to this presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616

(7th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)).

DISCUSSION

I. False Arrest

In their Complaint, Plaintiffs alleged that they were arrested without probable cause

while being questioned by Defendants. [DE 1]. To state a false arrest claim under § 1983, a

Plaintiff must show that he was arrested without probable cause. Gaddis v. Demattei, 30 F.4th

625, 630-631 (7th Cir. 2022). Probable cause does not require certainty. It is a “fluid concept that

relies on the common-sense judgment of the officers based on the totality of the circumstances.”

Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015) (citing United States v. Reed, 443 F.3d 600,

603 (7th Cir. 2006)). An officer has probable cause when, “at the time of the arrest, the facts and

circumstances within the defendant’s knowledge ‘are sufficient to warrant a prudent person, or

one of reasonable caution, in believing, in the circumstances shown, that the suspect has

committed ... an offense.’” Madero v. McGuinness, 97 F.4th 516, 522 (7th Cir. 2024) (quoting

Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008)).

Plaintiffs’ false arrest claim fails for several reasons. First, Plaintiffs have not sufficiently

alleged that they were arrested. Plaintiffs alleged “the interaction by the officers was not brief

nor was it a detention,” [DE 1, Page 7] and that “as alleged above, Plaintiffs were under arrest by

Defendant[s].” [DE 1, Page 14]. Mere legal conclusions, as the Supreme Court has underscored,

are “not entitled to be assumed true” at the pleading stage. Ashcroft, 556 U.S. 662, 681. Plaintiffs

alleged that Defendants were uniformed, arrived in marked patrol cars, and parked their cars in

such a way to block Plaintiffs’ ability to leave. [DE 1, Page 7]. However, in Askew, the Seventh

Circuit found that surrounding a suspect’s car to prevent him from leaving did not convert an

investigatory stop, which does not require probable cause, into an arrest, which would. United

States v. Askew, 403 F.3d 496, 508-09 (7th Cir. 2005). Plaintiffs alleged that Defendant Jacobs

ordered Defendant Stickle to stay with Plaintiffs when he and Defendant Hickenbottom left, but

this allegation too is insufficient. [DE 1, Page 7]. Leaving a handcuffed suspect alone with an

officer does not convert an investigatory stop into an arrest, and here, neither Plaintiff was ever

handcuffed. United States v. Smith, 697 F.3d 625, 632 (7th Cir. 2012). Plaintiffs also allege that

“the cover sheet of the Probable Cause Affidavit states, ‘Arresting Agency,’ ‘Arresting Officer,’

‘Date of Arrest,’ and ‘Place of Arrest.’” [DE 1, Page 7]. This Court is not aware of any caselaw

supporting the proposition that the presence of a standard form with the word “arrest” on it

creates custodial arrest. Plaintiffs have not sufficiently alleged they were arrested, and as a result,

they do not have a false arrest claim.

However, even if Plaintiffs had sufficiently alleged they were arrested, Defendants had

probable cause to do so. Here, Defendants received reports that someone pointed a firearm at

students in the middle of the afternoon. [DE 1, Page 4]. Defendants questioned three sets of

witnesses who each corroborated the initial reports. [DE 1, Pages 4-5]. In two of the interviews

Plaintiff’s residence was identified as the home where the person with the firearm was. Id.

Defendants continued their investigation after speaking with the witnesses and questioned the

residents of the home where the students reported the person with the firearm was, which were

the Plaintiffs. [DE 1, Pages 4-6]. These facts would “warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances shown, that the suspect has committed ...

an offense.’” Even if Plaintiffs were arrested, which they were not, Defendants had probable

cause to do so.

Finally, Plaintiffs’ own allegations and descriptions of their “arrests” seem more akin, but

not exactly analogous, to an investigatory stop, which would only require reasonable suspicion,

not probable cause. Police officers may carry out an investigatory, or Terry, stop when they

“have a reasonable suspicion, grounded in specific and articulable facts” that an individual has

committed a felony or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21-27 (1968). The

reasonable suspicion standard is a lower bar than the probable cause standard necessary for an

arrest, but police cannot detain a person for questioning based on only a hunch. Terry, 392 U.S.

1, 22. Here again, after interviewing the students and parents who witnessed the events,

Defendants had, at a minimum, “reasonable suspicion, grounded in specific and articulable facts”

that a crime already had or was going to be committed by the residents of the house where the

students said the person with the gun was. [DE 1, Pages 5-6]. For all these reasons, Defendants’

Motion to Dismiss on the false arrest claim is GRANTED.

II. Malicious Prosecution

Plaintiff John does not allege he was ever indicted, ticketed, charged, or arrested, so he

does not have a malicious prosecution claim. Plaintiff Jacqueline alleged she was maliciously

prosecuted when Defendants issued her a civil ordinance violation for allowing Plaintiff John to

discharge a pellet gun within town limits. A federal malicious prosecution claim is not actionable

if there is an adequate state-law remedy, but here, where the Indiana Tort Claims Act immunizes

governmental entities and their employees from malicious-prosecution suits, there is no adequate

state law remedy and Plaintiffs are entitled to bring their federal claim. See Julian v. Hanna, 732

F.3d 842, 845-49 (7th Cir. 2013). In Avila, the Seventh Circuit found that although “malicious

prosecution does not violate the Constitution’s due process clauses[,] [t]here might be a problem

under the Fourth Amendment if a person is arrested without probable cause.” Avila v. Pappas,

591 F.3d 552, 553 (7th Cir. 2010). The court went on, “but when the suit is directed against the

prosecution itself, rather than any attendant custody, there is no constitutional wrong.” King v.

City of Indianapolis, 969 F. Supp. 2d 1085, 1095 (7th Cir. 2013) (quoting Avila 591 F.3d 552,

553)). This is because “individuals do not have a federal right not to be summoned into court and

prosecuted without probable cause.” See Ray v. City of Chi., 629 F.3d 660, 664 (7th Cir. 2011);

see also Albright v. Oliver, 510 U.S. 266 (1994).

The constitutional violation alleged in a Fourth Amendment malicious prosecution claim

is a type of unreasonable seizure—an arrest and detention of a person based on a criminal charge

lacking probable cause. Chiaverini v. City of Napoleon, 144 S. Ct. 1745, 1750 (7th Cir. 2024).

Recent Supreme Court cases reiterate the arrest and detention requirements of malicious

prosecution claims. See Chiaverini, 144 S. Ct. 1745, 1750 (malicious prosecution claims under

the Fourth Amendment require both the initiation of charges without probable cause and that

those charges lead to seizure); see also Thompson v. Clark, 142 S. Ct. 1332, 1337 n.2 (2022)

(malicious prosecution claims under the Fourth Amendment require Plaintiff to show that the

malicious prosecution resulted in a seizure).

As discussed at length in the previous section, Plaintiff Jacqueline has not sufficiently

alleged she was arrested. Mere legal conclusions, like “the interaction by the officers was not

brief nor was it a detention,” [DE 1, Page 7], are “not entitled to be assumed true” at the pleading

stage. Ashcroft, 556 U.S. 662, 681. Defendants positioning their vehicles to allegedly block

Plaintiffs’ ability to leave does not convert an investigatory stop, which does not require

probable cause, into an arrest, which would. Askew, 403 F.3d 496, 508-09. Plaintiffs alleged that

Defendant Jacobs ordered Defendant Stickle to stay with Plaintiffs when he and Defendant

Hickenbottom left, but this allegation too is insufficient, because leaving a handcuffed suspect

alone with an officer a does not convert an investigatory stop into an arrest. United States v.

Smith, 697 F.3d 625, 632 (7th Cir. 2012). Here, neither Plaintiff was ever handcuffed. Plaintiffs

also allege that “the cover sheet of the Probable Cause Affidavit states, ‘Arresting Agency,’

‘Arresting Officer,’ Date of Arrest,’ and ‘Place of Arrest,’” but without more, this does nothing

to further Plaintiff Jaqueline’s claim that Plaintiffs were arrested. Because Plaintiff Jacqueline

was not arrested, she does not have a claim of false arrest.

Assuming arguendo that Plaintiff Jacqueline had sufficiently alleged she was arrested, her

Fourth Amendment malicious prosecution claim still fails. To state a federal 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. Welton v. Anderson, 770 F.3d

670, 674 (7th Cir. 2014) (citing Reed v. City of Chi., 77 F.3d 1049, 1051 (7th Cir. 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.” Crosson v. Berry, 829 N.E.2d 184, 189 (Ind. Ct. App.

2005).

A failure to satisfy any one of those elements is fatal to a malicious prosecution claim.

Here, Plaintiffs have only alleged they had to hire legal counsel as result of the charges brought

against Plaintiff Jacqueline. [DE 1, Page 10]. This Court is unaware of any caselaw holding that

the expense of retaining a criminal-defense lawyer infringes a “fundamental” right or is a

deprivation of liberty. Avila v. Pappas, 591 F.3d 552, 554 (7th Cir. 2010). Deprivations of liberty

do not include court appearances, regardless of whether the outcome was favorable to the

Plaintiff. Alexander v. McKinney, 692 F.3d 553, 557 n.2 (7th Cir. 2012). Plaintiff Jacqueline

suffered no actionable deprivation of liberty, so she cannot satisfy the final element of the claim,

and as a result, her malicious prosecution claim under the Fourth Amendment fails.

As for Plaintiff Jacqueline’s malicious prosecution claim under the Fourteenth

Amendment, this claim fares no better. Malicious prosecution claims under the Fourteenth

Amendment arise when plaintiff is seized after conviction. Jones v. York, 34 F.4th 550, 564 (7th

Cir. 2022). Whether the Fourteenth Amendment’s procedural due process component ensures a

right to be free from malicious prosecution is an open question. Jones, 34 F.4th 550, 564 (citing

Thompson, 142 S. Ct. at 1337 n.2). Assuming that Plaintiff is entitled to pursue such a claim,

Plaintiff’s malicious prosecution claim under Fourteenth Amendment fails for the same two

reasons as above: Plaintiffs have not sufficiently alleged they were arrested post-conviction, nor

did they suffer an actionable deprivation of liberty, so they cannot satisfy all elements of their

claim. Plaintiffs’ malicious prosecution claim under the Fourteenth Amendment also fails.

Defendants’ Motion to Dismiss on the malicious prosecutions claims is GRANTED.

III. Abuse of Process

The first time Plaintiffs reference, argue, or even allege their abuse of process claim is in

their Opposition to Defendants’ Motion to Dismiss [DE 25]. Plaintiffs assert that the “Court

should permit Count I to proceed under the legal theory of abuse of process because the same

logic applies to abuse of process claims as to malicious prosecution claims…” [DE 25, Page 13].

This argument holds no weight.

A plaintiff may not “defend a motion to dismiss by pleading new facts in his response to

the motion.” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 2012).

Furthermore, a plaintiff may not amend their complaint by raising entirely new claims in

response to a motion to dismiss. Reiter v. Noel, 2023 U.S. Dist. LEXIS 140225, *18 (S.D. Ind.

Aug. 11, 2023); see Wooley v. Jackson Hewitt, Inc., 540 F. Supp. 2d 964, 972 (N.D. Ill. 2008)

(“Plaintiff cannot amend his complaint by raising new claims in response to the motion to

dismiss”). The Court agrees with Plaintiffs that “[u]nder Indiana law, claims for malicious

prosecution and abuse of process are based on similar, yet separate, legal theories.” [DE 25, Page

13]. Because Plaintiffs did not allege an abuse of process claim in their complaint and only

raised it in response to Defendants’ Motion to Dismiss, they did not state an abuse of process

claim.2

IV. Monell Claim

In two sentences, Plaintiffs seem to attempt a Monell claim and allege that Defendants

were not properly trained and that the Town of St. John failed to develop appropriate policies

and procedures to ensure Defendants’ compliance with federal law and the Constitution. [DE 1,

Page 12:70-71]; see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). There can be no

municipal liability based on an official policy under Monell if the policy did not result in a

violation of [a plaintiff’s] constitutional rights.” Houskins v. Sheahan, 549 F.3d 480, 493-494

(7th Cir. 2008); see King v. East St. Louis School Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007) (It

is well established that there can be no municipal liability based on an official policy

2 The Court also notes that it appears unsettled in this Circuit whether abuse of process is a cognizable

claim under Section 1983. Painter v. Gray, 2022 U.S. Dist. LEXIS 18713, *5-6 (S.D. Ind. Feb. 2, 2022); Hart v.

Mannina, 798 F.3d 578 (7th Cir. 2015); Miller v. Schrader, 2010 U.S. Dist. LEXIS 115547, *20 (N.D. Ind. Oct. 27,

2010); Adams v. Rotkvich, 325 Fed. App’x 450, 453 (7th Cir. 2009).

under Monell if the policy did not result in a violation of [a plaintiff’s] constitutional rights”);

Alexander v. City of South Bend, 433 F.3d 550, 557 (7th Cir. 2006) (finding that a municipality

defendant cannot be liable under Monell for a policy or custom of inadequately training and

supervising its police officers, unless the defendant violated a constitutional guarantee); Aguilera

v. Baca, 510 F.3d 1161, 1167, 1174 (9th Cir. 2007) (noting that if no constitutional violation

occurred, the court need not consider qualified immunity or a claim brought pursuant to Monell).

Here, Plaintiffs’ constitutional claims fail. As a result, Plaintiffs’ Monell claim fails as well.

V. Failure to Intervene

“In order for there to be a failure to intervene, it logically follows that there must exist an

underlying constitutional violation ...” Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir. 2016)

(quoting Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005)). Plaintiffs have failed to

adequately allege an underlying constitutional violation here. As a result, the derivative claim of

a failure to intervene during the false arrest is dismissed. Rosado, 832 F.3d 714, 718.

VI. Qualified Immunity

As noted previously, Plaintiff did not suffer a constitutional violation, and therefore, an

analysis of whether Defendants are entitled to qualified immunity is moot.

VII. Indemnification

Because Plaintiffs’ claims against Defendants have been dismissed, there is nothing to

indemnify Plaintiffs for, so the indemnification claim is dismissed as well.

CONCLUSION

The Court hereby GRANTS the Defendants’ Motion to Dismiss [DE 12]. The Court

DIRECTS the Clerk of Court to enter judgment against the Plaintiffs and in favor of the

Defendants. The Plaintiffs take nothing by their Complaint.

SO ORDERED.

ENTERED: August 16, 2024

/s/ GRETCHEN S. LUND

Judge

United States District Court