Tina Ewell v. Eric Toney

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-1009

TINA M. EWELL,

Plaintiff-Appellant,

v.

ERIC TONEY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:14-cv-00931-PP — Pamela Pepper, Judge.

____________________

ARGUED DECEMBER 2, 2016 — DECIDED APRIL 10, 2017

____________________

Before WOOD, Chief Judge, and EASTERBROOK and

WILLIAMS, Circuit Judges.

WOOD, Chief Judge. Tina Ewell was a close friend and con-

fidante of her sister, Eve Nance. So close, in fact, that when

Nance shot and killed her husband, Ewell helped Nance dis-

pose of his body. For this, a Wisconsin court convicted Ewell

of a number of felony and misdemeanor charges in October

2016. But she is not asking us to second-guess those convic-

2 No. 16-1009

tions. Instead, she is complaining about an aspect of the crim-

inal investigation—namely, her initial arrest and detention

immediately after the murder. During the period between her

release from that detention and her indictment in the criminal

case, she filed a civil rights action complaining that the deten-

tion was not supported by probable cause but was instead for

the impermissible goal of building a case against her. Resolv-

ing the case before the state criminal proceeding began, the

district court dismissed her suit, and this appeal followed. Be-

cause we conclude that Ewell is not entitled to damages on

most of her claims, and that the defendants are entitled to

qualified immunity on the rest, we affirm.

I

Eve Nance shot and killed her husband, Timothy Nance,

as he stood in the shower of their Fond du Lac, Wisconsin,

home on November 1, 2013. Four days later, Nance reported

him missing. Two detectives from the Fond du Lac Police De-

partment, William Ledger and Matt Bobo (“the detectives”),

were assigned to investigate. What follows is their account of

their actions. They began by interviewing Timothy’s family,

his new girlfriend, and various friends, including Ewell. Some

of those friends told them about the Nance couple’s fraught

history of threats and violence, including recent discord over

Timothy’s new girlfriend and his purported plan to divorce

Nance. The detectives also said that a witness had noticed that

the shower curtain, liner, and hooks in the Nance bathroom

had been replaced after Timothy disappeared. Nance and her

daughter confirmed this detail, which one of the detectives

had observed independently.

The detectives also reviewed surveillance tapes from a lo-

cal store. The tapes showed Ewell and Nance buying new

No. 16-1009 3

shower curtain liners and hooks the night Timothy went miss-

ing. On November 20, the day after they reviewed the surveil-

lance tape, the detectives and crime lab technicians executed

a search warrant at the Nance house and seized “biological

specimens,” a “projectile” from the bathtub pipes, clothing,

and other evidence. That same day, the detectives spoke to

Ewell again. When they asked her to accompany them to the

police station for further questioning, she refused. They did

not take “no” for an answer: they arrested Ewell and trans-

ported her to the Fond du Lac police station sometime be-

tween 2 and 4 p.m.—approximately an hour after arresting

Eve Nance.

Ewell asserted her right to remain silent, requested coun-

sel, and was moved to the Fond du Lac County Jail around

3:45 or 4 p.m. that same day. She spent the next two days in

custody. At 4:02 p.m. on November 22, Detective Ledger

signed a probable cause statement in front of a Fond du Lac

County judge. In that statement, Ledger reported that he be-

lieved that Timothy Nance was murdered, that the shower

curtain and liner had been used to conceal evidence of Timo-

thy’s death, and that Nance and Ewell had removed Timothy’s

body and concealed it in an unknown location. At 4:15 p.m.,

the judge, relying exclusively on Ledger’s statement and ac-

companying affidavit, determined that probable cause ex-

isted to detain Ewell and denied Ewell bond pending a court

appearance. Ewell’s public defender filed a habeas corpus pe-

tition on her behalf with the Fond du Lac County Circuit

Court on November 26. The following afternoon, the same

judge who had found probable cause on November 22 con-

ducted a hearing on the habeas corpus petition. At that hear-

ing, Ewell’s public defender contended that the November 22

4 No. 16-1009

probable cause determination had occurred after the expira-

tion of the 48-hour period considered presumptively reason-

able under County of Riverside v. McLaughlin, 500 U.S. 44

(1991), and that there had not been an initial appearance or

the filing of a complaint within a reasonable time of arrest.

The county judge agreed that the Riverside determination

was outside the 48-hour window, and so the burden shifted

to the state to show extraordinary circumstances. The state,

the judge decided, satisfied that burden, given the activity re-

lated to the case on the court calendar. The judge stated that

although Detective Ledger had contacted him earlier to sign

the statement, he (the judge) could not have diligently re-

viewed and signed it any earlier than he did. The judge then

reiterated his conclusion that probable cause existed to detain

Ewell. Immediately thereafter, the court held a bond hearing

and set a $50,000 cash bond for Ewell. The court was closed

from November 28 through December 1 for the Thanksgiving

holiday and weekend. On December 2, 2013, the Fond du Lac

County District Attorney, Eric Toney, requested Ewell’s re-

lease, and the state court ordered her release that same day.

At that point, the state had filed no charges against her; in all,

she had spent 12 days in custody.

On August 4, 2014, Ewell filed a complaint in federal court

under 42 U.S.C. § 1983, alleging that the detectives and DA

Toney had arrested and held her without probable cause and

had conspired to deprive her of her constitutional rights by

false arrest and unlawful detention. The district court granted

the defendants’ motions to dismiss on January 4, 2016, finding

that some of Ewell’s allegations against DA Toney failed to

state a claim and that he was entitled to qualified immunity

on the remaining claims; that the detectives were entitled to

No. 16-1009 5

qualified immunity because probable cause existed to arrest

Ewell; and that, on the understanding that her complaint al-

leged a conspiracy to interfere with her civil rights in a man-

ner prohibited by 42 U.S.C. § 1985, Ewell failed to state a claim

because she had not named any private actors. Ewell filed a

timely notice of appeal from the court’s final judgment on Jan-

uary 8, 2016.

While her appeal was pending before our court, the Fond

du Lac District Attorney filed charges against Ewell on April

12, 2016. See Wisconsin v. Tina M. Ewell, Fond du Lac County

Case No. 2016-CF-231. She was accused of committing four

crimes: (1) felony hiding a corpse, Wis. Stat. Ann. § 940.11(2);

(2) felony harboring or aiding a felony, Wis. Stat. Ann.

§ 946.47(1)(b); (3) misdemeanor resisting or obstructing an of-

ficer, Wis. Stat. Ann. § 946.41(1); and (4) misdemeanor failure

to report a death under unusual or suspicious circumstances,

Wis. Stat. Ann. § 979.01(1)(a). After those charges were filed,

the detectives moved this court to stay the appellate proceed-

ings in her civil rights case, arguing that Younger abstention

was appropriate. We denied that motion and invited the de-

tectives to address Younger in their responsive brief. On Octo-

ber 28, 2016, prior to oral arguments before our court, a state

jury found Ewell guilty of the first three counts. (The prose-

cutor had dismissed the fourth count a few days earlier.) The

detectives again asked us to dismiss the proceedings, this time

on the basis of both Younger abstention and the bar established

in Heck v. Humphrey, 512 U.S. 477 (1994). We ordered this mo-

tion to be taken with the case for resolution after oral argu-

ment. On December 8, 2016—six days after we heard oral ar-

gument on her appeal—the state court sentenced Ewell to two

years’ imprisonment.

6 No. 16-1009

II

Simultaneous state and federal court cases relating to the

same events pose important questions relating to federal-state

comity. These are not jurisdictional questions, but the defend-

ants have properly raised them, and they should be resolved

before we push on to the merits.

A

The Younger abstention doctrine, which is rooted in tradi-

tional principles of equity, comity, and federalism, requires

federal courts to refrain from exercising their jurisdiction

when relief may interfere with certain state proceedings. SKS

& Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th Cir. 2010) (citing

Younger v. Harris, 401 U.S. 37, 53–54 (1971)). Situations in

which Younger abstention is appropriate include those in

which there is an ongoing state proceeding that is judicial in

nature, involves important state interests, provides the plain-

tiff an adequate opportunity to raise the federal claims, and

no exceptional circumstances exist. Stroman Realty, Inc. v. Mar-

tinez, 505 F.3d 658, 662 (7th Cir. 2007). In addition, the consti-

tutional issues raised must be capable of being raised in the

state proceedings, including in the state appellate process.

Simpson v. Rowan, 73 F.3d 134, 138 (7th Cir. 1995).

If Ewell’s federal case were in its infancy in the federal

courts, the district court might have had good reason to stay

its proceedings while the state criminal case was underway.

Ewell could have contested probable cause in the state courts.

But the timeline of the two cases did not lend itself to Younger

abstention, which is proper only when state court proceed-

ings are initiated “before any proceedings of substance on the

No. 16-1009 7

merits have taken place in the federal court … .” Hicks v. Mi-

randa, 422 U.S. 332, 349 (1975). This does not call for a simple

check of the calendar to see which case was filed first. A fed-

eral court should abstain when a state criminal complaint is

filed while the federal litigation is an “embryonic stage” and

no contested matter has been decided. Doran v. Salem Inn, Inc.,

422 U.S. 922, 929 (1975). In all other cases, “federal courts must

normally fulfill their duty to adjudicate federal questions

properly brought before them.” Hawaii Hous. Auth. v. Midkiff,

467 U.S. 229, 238 (1984). Once a case has progressed beyond

the embryonic stage, “considerations of economy, equity, and

federalism counsel against Younger abstention … .” Id.

Here, the district court considered the issues, entertained

numerous motions, and finally resolved the federal case four

months before the state’s initiation of criminal proceedings

against Ewell. In those circumstances, nothing called for ab-

stention at the district court level, nor should we take that step

at the appellate level. Instead, we will heed our “virtually un-

flagging obligation … to exercise the jurisdiction given” to us,

Colo. River Water Conservation Dist. v. United States, 424 U.S.

800, 817 (1976), and proceed.

B

There is, however, another preliminary obstacle to some of

Ewell’s section 1983 claims now that she has been convicted

and sentenced by a state court—a court whose proceedings

are relevant to this matter and the proper subject of judicial

notice. Opoka v. I.N.S., 94 F.3d 392, 394–95 (7th Cir. 1996). At

her sentencing, Ewell received credit for the 12 days she spent

in custody following her initial arrest—the same time for

which she now contends she was unlawfully detained. See

Wisconsin v. Ewell, No. 16-CF-231, Sentencing Tr., Dec. 8, 2016.

8 No. 16-1009

The problem she faces is this: a section 1983 plaintiff may not

receive damages for time spent in custody, if that time was

credited to a valid and lawful sentence. Bridewell v. Eberle, 730

F.3d 672, 677 (7th Cir. 2013); Ramos v. City of Chicago, 716 F.3d

1013, 1020 (7th Cir. 2013).

After reviewing Ewell’s complaint and the 2016 state crim-

inal proceedings, we conclude that Ewell is not entitled to

seek damages related to her detention and therefore to this

extent has no injury that a favorable decision by a federal

court may redress. Without a redressable injury, Ewell lacks

Article III standing to press this claim. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560–62 (1992).

We note in passing that the Supreme Court recently held

in Manuel v. City of Joliet, No. 14-9496, 2017 WL 1050976 (U.S.

Mar. 21, 2017), that the Fourth Amendment continues to gov-

ern at least some claims for unlawful pretrial detention even

after the legal process has begun through a judicial probable-

cause determination or comparable procedure. The rule in

this circuit had been that claims (such as Ewell’s) for unlawful

detention could be brought only under the Due Process

Clause once legal process had begun. See, e.g., Llovet v. City of

Chicago, 761 F.3d 759, 763 (7th Cir. 2014). Nothing in Manuel,

however, affects the question now before us, which is

whether Ewell is entitled to damages for time spent in cus-

tody that was fully credited to her state sentence.

This means that Ewell’s conspiracy allegations are out as

well. She asserts almost in passing at the end of her appellate

brief that the district court misread her allegation that the de-

tectives and DA Toney had engaged in a conspiracy to hold

her without charge or probable cause as a claim under section

1985, when she was relying on section 1983. Insofar as she

No. 16-1009 9

notes that plaintiffs do not need to plead legal theories, she is

correct. In addition, it is true that claims for alleged conspira-

cies between state actors are possible under section 1983,

though as we have observed, they add nothing but needless

complexity. See Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir.

2009); see also Geinosky v. City of Chicago, 675 F.3d 743, 749 (7th

Cir. 2012). But Ewell fails to develop this argument on appeal,

and we have repeatedly noted that perfunctory and undevel-

oped arguments do not preserve a claim for our appellate re-

view. See, e.g., Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th

Cir. 2012); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th

Cir. 1991). Even if she squeaks past forfeiture, she cannot suc-

ceed. In any case, there must be an underlying constitutional

injury or the conspiracy claim fails. Because Ewell cannot

maintain a claim for her alleged unlawful detention—the only

possible injury for this part of the case—her conspiracy claim

also fails.

C

Ewell’s claim of unreasonable delay in obtaining a prompt

judicial determination of probable cause under Riverside v.

McLaughlin, 500 U.S. 44 (1991), meets the same fate. In Bride-

well v. Eberle, we determined that a litigant in very similar cir-

cumstances, who was held for 63 hours after her arrest before

a judicial determination of probable cause, could not demon-

strate that she was injured by the presumptively unreasona-

ble delay of more than 48 hours. 730 F.3d at 676–77. The criti-

cal fact was that the judge ultimately found probable cause

and denied bail. The plaintiff thus would not have been enti-

tled to release any sooner. Id. Moreover, because her time in

custody was later credited to a criminal sentence on another

charge, she could not receive damages for the time she spent

10 No. 16-1009

in custody after her arrest. Id. at 677. So too here. The state

court judge found probable cause and denied bond pending

a further hearing in his November 22, 2013 determination.

Had the judicial determination occurred earlier, the outcome

would have been the same: Ewell would not have been re-

leased at that point.

Even if Ewell could show at least nominal damages from

the delay, our review of the state habeas corpus proceedings

convinces us that the detectives would not be the correct par-

ties to hold liable for any such damages. The judge indicated

that although Detective Ledger had contacted him to review

and sign the probable cause statement within the 48-hour pre-

sumptive period, the judge turned him away and indicated

that he could not possibly have made the determination any

sooner than he did. This suggests that the delay of longer than

48 hours was not a result of the detectives’ actions. And

Ewell’s amended complaint does not assert that either the

county or the police department had any policy or practice

that caused excessive delays. On these facts, she has not stated

a Riverside claim against the defendants she names.

III

That leaves Ewell’s claim for false arrest. While we are

skeptical that she could show any injury from the arrest, her

case was dismissed at the pleading stage, and so she never

had the opportunity to develop a record on this point. But giv-

ing Ewell the benefit of the doubt and assuming that she may

have suffered damages related to the arrest itself—perhaps

emotional injury or nominal damages independent of the

time already credited to her criminal sentence—we must con-

sider whether her suit against the detectives is nevertheless

barred by qualified immunity.

No. 16-1009 11

Our review of a district court’s ruling on qualified immun-

ity in response to a Rule 12(b)(6) motion is de novo; we con-

sider the facts, including all reasonable inferences from them,

in the light most favorable to the nonmoving party. Chasensky

v. Walker, 740 F.3d 1088, 1093 (7th Cir. 2014). But we need not

accept any legal assertions as true when we review a dismis-

sal under Rule 12(b)(6). Lodholtz v. York Risk Servs. Group, Inc.,

778 F.3d 635, 639 (7th Cir. 2015). We may affirm a district

court’s dismissal on any ground contained in the record.

Brooks v. Ross, 578 F.3d 574, 578 (7th Cir. 2009).

“Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory

or constitutional right that was clearly established at the time

of the challenged conduct.” Reichle v. Howards, 132 S.Ct. 2088,

2093 (2012). In other words, qualified immunity “shields from

liability police officers ‘who act in ways they reasonably be-

lieve to be lawful.’” Jewett v. Anders, 521 F.3d 818, 822 (7th Cir.

2008) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

Qualified immunity is an affirmative defense, but the plaintiff

carries the burden of defeating it once it is raised. Rabin v.

Flynn, 725 F.3d 628, 632 (7th Cir. 2013). To defeat the qualified

immunity defense, a plaintiff must show: (1) that the defend-

ant violated a constitutional right, and (2) that the right was

clearly established at the time so that it would have been clear

to a reasonable officer that her conduct was unlawful in the

situation. Saucier v. Katz, 533 U.S. 194, 201–02 (2001). These

questions can be addressed in either order. Pearson v. Callahan,

555 U.S. 223, 236 (2009); Locke v. Haessig, 788 F.3d 662, 667 (7th

Cir. 2015).

Probable cause is an absolute defense to claims of wrong-

ful or false arrest under the Fourth Amendment in section

12 No. 16-1009

1983 suits. Williams v. City of Chicago, 733 F.3d 749, 756 (7th Cir.

2013). In other words, if an officer has probable cause to arrest

a suspect, the arrest was not false. Probable cause exists at the

time of an arrest if “the facts and circumstances within the of-

ficer’s knowledge … are sufficient to warrant a prudent per-

son, or one of reasonable caution, in believing … that the sus-

pect has committed, is committing, or is about to commit an

offense.” Id. (quoting Gonzalez v. City of Elgin, 578 F.3d 526, 537

(7th Cir. 2009)). Probable cause is gauged from the vantage

point of a reasonable officer facing the same situation. Id.

Ewell’s complaint said little about the detectives’ alleged

lack of probable cause. She pleaded only that “[n]othing [she]

said or did during the … police questioning could have

caused a reasonable law enforcement official to believe that

[she] had engaged in criminal wrongdoing,” and that they did

not have probable cause when they arrested her. But she also

referred to the probable cause affidavit prepared by Ledger in

her complaint. We may take notice of that complaint. See Wil-

liamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). Ewell con-

tends that it contained “several material false statements and

material omissions.” But she has not pointed to any specific

errors or misstatements, and in district court she asserted that

her claim was not that the detectives had lied or committed

misconduct. And when we asked at oral argument whether

she was contending that the detectives lied in their affidavit,

Ewell refrained from going that far. Instead, she repeated that

nothing in the affidavit established probable cause. We are

therefore free to rely on this affidavit to show what the detec-

tives at least believed to be true at the time, without needing

to make a finding about the truth of the underlying assertions.

No. 16-1009 13

This permits us to accept for present purposes that at the

time Ewell was arrested, the detectives knew or believed: that

she claimed she had not seen or talked to Timothy Nance

since Friday, November 1, 2013; that she admitted having had

the keys to the Nance house over the following weekend, in-

cluding having been in the house on the following Sunday,

and having spoken to her sister; that video surveillance

showed Ewell and Nance entering a local store and purchas-

ing shower curtain liners and hooks the Friday night that Tim-

othy went missing; that witnesses indicated that the curtains

were replaced after Timothy went missing; and that the

search at the Nance residence had turned up a “projectile”

from the bathtub plumbing pipes. This all plausibly supports

the detectives’ suspicion that Ewell had helped to hide a body

or conceal a homicide.

None of this, we assume, proves Ewell’s guilt. But the

question before us is a different one: whether a reasonable of-

ficer would have been justified in believing that he had proba-

ble cause to arrest Ewell. Here, it would not have been plain

to a reasonable officer that arresting and detaining Ewell un-

der those circumstances would have been unlawful under the

Fourth Amendment, and this is all that the qualified immun-

ity inquiry requires. Although qualified immunity is some-

times a factual question better reserved for summary judg-

ment, here the pleadings and items subject to judicial notice

support immunity for the detectives.

We note for the sake of completeness that we need not

reach the issue of absolute or qualified immunity for

DA Toney because Ewell’s allegations against him all stem

from conduct subsequent to her arrest. She alleges that he

learned of her arrest after it occurred, and that he was aware

14 No. 16-1009

while she was detained that probable cause was lacking. But

even assuming this were so, and that she could establish that

he was at least partially responsible for her continued deten-

tion, the only claim she would have had against him is for un-

lawful detention. And, as we already have concluded, she

cannot maintain that claim because she has been credited for

the time served.

Finally, the appellees contended that some of Ewell’s

claims would be barred by Heck v. Humphrey, 512 U.S. 477

(1994), which holds that a prisoner’s claims for damages that

would implicate the validity of her underlying conviction or

sentence are not cognizable under section 1983 until she re-

ceives favorable collateral relief, such as through the issuance

of a writ of habeas corpus. The Heck bar is not jurisdictional,

however, and we therefore are not concerned that it would

affect our power to hear this case. Because we may affirm a

dismissal on any ground contained in the record, Brooks, 578

F.3d at 578, we decline to reach the Heck issue.

We therefore AFFIRM the judgment of the district court.