Mysch

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION

MELISSA MYSCH PLAINTIFF

No. 3:25-cv-128-DPM

JOHN HUTCHINS, in his individual and

official capacities as an officer for the City

of Cherokee Village, Arkansas DEFENDANT

ORDER

Melissa Mysch was arrested and detained for interfering with her

grandson’s custody arrangement. She says that police officer John

Hutchins lied on the warrant affidavit that led to her arrest.

Mysch says he did so because she accused him of corruption, and he

vowed to “destroy [her] life.” Doc. 7at 2. She has sued Officer Hutchins

for violations of the First and Fourth Amendments and analogous

provisions in the Arkansas Constitution, the Arkansas Civil Rights Act,

abuse of process, and malicious prosecution. ARK. CONST. art. IL,

8§ 6 & 15; Ark. Code Ann. § 16-123-105. Officer Hutchins moves to

dismiss, arguing immunity and other grounds. In response, Mysch

questioned the constitutionality of the Arkansas immunity statute, Ark.

Code. Ann. § 21-9-301. The Court certified the challenge to the

Attorney General of Arkansas. Doc. 18. The Attorney General has not

intervened to defend the statute.

In ruling on Officer Hutchins’s motion, the Court takes all facts

alleged by Mysch as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

It will, however, consider the warrant affidavit that Officer Hutchins

included with his motion to dismiss. It’s embraced by Mysch’s

complaint. Enervations, Inc. v. Minnesota Mining & Manufacturing Co.,

380 F.3d 1066, 1069 (8th Cir. 2004). The Court analyzes Mysch’s federal

claims in step with her state Constitution and ACRA claims.

McCullough v. University of Arkansas for Medical Sciences, 559 F.3d 855,

865 (8th Cir. 2009) (freedom of speech); Glasper v. City of Hughes, 269 F.

Supp. 3d 875, 887 (E.D. Ark. 2017) (freedom from seizure).

First, Mysch’s claims against Officer Hutchins in his official

capacity fall short. They’re really claims against Cherokee Village.

Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).

But she has alleged no facts about a policy or custom that was the

moving force behind her arrest. Monell v. New York City Department of

Social Services, 436 U.S. 658, 694 (1978). She hasn’t pleaded facts

showing a pattern of Officer Hutchins, or other officers, lying on

warrant affidavits, either. Connick v. Thompson, 563 U.S. 51, 62 (2011).

Next are Mysch’s individual capacity claims. She says that Officer

Hutchins’s arrest warrant was no good, lacking in probable cause,

because he lied about bank records in his requesting affidavit.

Officer Hutchins said Mysch allowed her daughter to access her bank

-2-

accounts, had a duplicate ATM card made for her daughter, and bank

records indicated that Mysch, her daughter, and her grandson were

residing in Texas—none of which was true. Doc. 7 at 3.

Officer Hutchins responds by arguing qualified immunity from

§ 1983 liability. He’s entitled to it so long as the warrant affidavit,

reconstructed without the alleged lies, would still provide probable

cause to arrest Mysch. Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir.

2000). “Probable cause is not a high bar.” D.C. v. Wesby, 583 U.S. 48,

57 (2018) (quotations omitted).

Officer Hutchins swore to more than the bank record evidence.

His affidavit says:

e Mysch had been living with her daughter in Arkansas;

e Her daughter missed her custody exchange and hadn’t been

heard from since;

e Mysch set up a forwarding post office box for herself and her

daughter in Missouri;

e When officers investigated, she told the police that her daughter

and grandson had moved to Missouri, but she refused to initiate

a missing-persons report;

e Mysch sold her home in Arkansas and moved to North Carolina;

and

e Mysch changed her phone number several times after the missed

custody exchange, using friends’ phone numbers that weren't

registered to her.

-3-

Doc. 10 at 2-3. Without the false information about bank records, the

reconstructed affidavit still establishes probable cause that Mysch

interfered with her grandson’s visitation. Compare Hunter, 219 F.3d at

829; Ark. Code Ann. § 5-26-501(a). Officer Hutchins is therefore

entitled to qualified immunity on Mysch’s claim under Franks v.

Delaware, 438 U.S. 154 (1978).

For these same reasons, her retaliatory free-speech claim fails.

Again, the Court takes the facts in the light most favorable to Mysch.

Officer Hutchins’s reconstructed warrant affidavit created probable

cause. She alleges no “otherwise similarly situated” non-speakers.

All this defeats the plausibility of her Nieves claim. Nieves v. Bartlett,

587 U.S. 391, 401-08 (2019).

Mysch’s malicious prosecution claim also fails. Lack of probable

cause is an essential element of this tort. Wal-Mart Stores, Inc. v. Binns,

341 Ark. 157, 163, 15 S.W.3d 320, 324 (2000). Mysch hasn’t plausibly

alleged that Officer Hutchins’s reconstructed warrant affidavit

provided no probable cause.

Finally, her abuse of process claim fails, too. The parties agree on

the elements. South Arkansas Petroleum Co. v. Schiesser, 343 Ark. 492,

501, 36 S.W.3d 317, 323 (2001). Extortion or coercion is this tort’s core.

Ibid. When Mysch complained to Officer Hutchins about the quality of

his investigation, he threatened to “destroy [her] life.” He then called

Texas authorities and told them to keep her detained, even after a Texas

-4-

judge had ordered her released. Doc. 7 at 2-3. Based on the pleaded

facts, Officer Hutchins wasn’t trying to extort or coerce Mysch—he was

punishing her, following through on his promise to destroy her life.

Officer Hutchins’s motion to dismiss, Doc. 9, is granted.

Mysch’s motion to declare Arkansas’s immunity _ statute

unconstitutional, Doc. 11, is denied as moot. The Court need not, and

does not, resolve that challenge in this case.

So Ordered.

D.P. Marshall Jr.

United States District Judge

— 28 Fowmy 202

-5-