Eddie Townsend v. Matthew B. Wilson , 652 F. App'x 449 ( 2016 )


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  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted May 13, 2016 *
    Decided June 14, 2016
    Before
    MICHAEL S. KANNE, Circuit Judge
    DIANE S. SYKES, Circuit Judge
    DAVID F. HAMILTON, Circuit Judge
    No. 15-2894                                     Appeal from the
    United States District Court
    EDDIE TOWNSEND                                  for the Northern District of Indiana,
    Plaintiff-Appellant,                       Fort Wayne Division.
    v.                                        No. 1:13cv315
    MATTHEW B. WILSON, et al.,                      Susan L. Collins,
    Defendants-Appellees.                       Magistrate Judge.
    ORDER
    Eddie Townsend sued the City of Fort Wayne, Indiana, and several city police
    officers after he was arrested (but not prosecuted) for driving while intoxicated. He
    claimed that the officers did not have probable cause to arrest him or to file a criminal
    complaint, and he sought damages under both 42 U.S.C. § 1983 and state tort law. The
    district court (a magistrate judge presiding by consent) granted summary judgment for
    the defendants on all claims. We affirm.
    *
    After examining the briefs and record, we have concluded that oral argument
    is unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
    P. 34(a)(2)(C).
    No. 15-2894                                                                         Page 2
    The following facts are undisputed unless otherwise noted. In August 2012
    Townsend was involved in a traffic accident. Officer Matthew Wilson responded to the
    scene, and two witnesses told him that Townsend had driven past very quickly, [had
    run] a red light, and [had] hit another car. The driver of that car suggested to Officer
    Wilson—in the officer’s words—that he should “check Mr. Townsend because he might
    be intoxicated.” By Officer Wilson’s account, Townsend’s eyes were red, his breath
    smelled moderately of alcohol, and his speech was slurred. In contrast Townsend swears
    that he did not consume any alcohol that day and did not exhibit any of the physical
    symptoms described by Officer Wilson. The officer administered a portable breath test
    (“PBT”), which registered a blood-alcohol concentration of 0.12%, above Indiana’s legal
    limit of 0.08%.
    Two other Fort Wayne police officers then helped cuff Townsend and seat him in
    a squad car. Once at the jail, Officer Richard Page, a certified breath-test operator, read
    Townsend the Indiana Implied Consent Notice, and Townsend agreed to take a chemical
    test. Protocol required a 20-minute wait before that test could be administered, and
    during that lull, Townsend was given three field-sobriety tests, one of which he failed.
    Townsend then submitted to the chemical breath test. That test registered an “invalid”
    result, but instead of waiting another 20 minutes before retesting—as mandated by state
    regulations—Officer Page repeated the test after just 6 minutes. This second test
    registered an “incomplete” result.
    Officer Wilson then completed an “Affidavit for Probable Cause.” He said he
    thought Townsend had been driving while intoxicated based on his observations that
    Townsend needed support and staggered when walking, was swaying, had red eyes,
    slurred his speech and mumbled, was argumentative, and had a moderate odor of
    alcohol on his breath. (Again, Townsend denies that he displayed any of these signs of
    intoxication while interacting with Officer Wilson.) Wilson also checked the box
    indicating that Townsend had refused to take a breath test, which resulted in the
    immediate suspension of Townsend’s license. Townsend was jailed overnight and
    released the next morning after posting bond.
    Three days after Townsend’s release, a state judge concluded that there was
    probable cause to believe that he had operated a vehicle while intoxicated in a manner
    that endangered a person, see IND. CODE § 9-30-5-2(b), and he was charged by
    information with that misdemeanor offense. Townsend then sought to have his driver’s
    license reinstated by asking a judge to review Officer Wilson’s representation that he
    had refused to take a breath test. At an evidentiary hearing, Officer Page testified about
    No. 15-2894                                                                         Page 3
    the two chemical breath tests he had administered. Page opined that Townsend had not
    blown into the device properly, but he admitted that by waiting only 6 minutes before
    giving the second test instead of the required 20, he did not follow the State’s guidelines
    for administering chemical breath tests. This admission prompted the judge to reinstate
    Townsend’s license. Afterward the DWI charge was dismissed, and Townsend admitted
    only that he had run a red light. See 
    id. § 9-21-3-7.
    In September 2013, about a year after he was taken into custody and a month after
    the criminal proceedings had ended, Townsend filed a Notice of Claim under the
    Indiana Tort Claims Act. He also filed this action (which the defendants removed from
    state to federal court). Relying on federal law, Townsend claimed that Officer Wilson
    had lacked probable cause to administer the PBT or to arrest him and that both Wilson
    and Officer Page had engaged in a malicious prosecution. (Another federal claim against
    these officers and two other police officers has been abandoned on appeal.) Townsend
    also claimed that Wilson, Page, and the City were liable under state law for false arrest,
    false imprisonment, malicious prosecution, and negligence. The defendants moved for
    summary judgment, arguing that they were entitled to qualified immunity on the
    federal claims and that the state claims were either untimely or barred by the Indiana
    Tort Claims Act.
    The district court granted summary judgment for the defendants. The court first
    reasoned that Officer Wilson had needed only reasonable suspicion, not probable cause,
    to detain Townsend and administer the PBT. And there was reasonable suspicion, the
    court continued, because of the eyewitness accounts given to Officer Wilson. Those same
    witness statements plus the results of the PBT, the court explained, had given the officers
    probable cause to take Townsend into custody for further investigation. In addition,
    although acknowledging that Officer Page had administered the chemical breath tests
    improperly, the district court concluded that this failure to follow protocol had not
    affected the state judge’s assessment of probable cause because the results of the two
    tests were not relied on in the Affidavit for Probable Cause. As a result, the judge
    concluded, Townsend’s claims of false arrest, false imprisonment, and malicious
    prosecution could not succeed. Finally, the judge held that under the Indiana Tort
    Claims Act, the defendants were immune from liability for malicious prosecution and
    negligence under state law, and that all of the state claims except for malicious
    prosecution were untimely.
    On appeal Townsend challenges the grant of summary judgment as to each of his
    federal and state claims against Officer Wilson, Officer Page, and the City. We begin
    No. 15-2894                                                                             Page 4
    with the federal claims against Officer Wilson. Townsend argues generally that Wilson
    lacked probable cause to administer the PBT and arrest him. We recently concluded that
    a “breathalyzer examination constitutes a search implicating the Fourth Amendment”
    and “must be supported by probable cause to believe that the test will yield evidence of
    a crime.” Seiser v. City of Chicago, 
    762 F.3d 647
    , 654 (7th Cir. 2014). But the PBT in this case
    was administered two years before our decision, and at that time Indiana courts had
    opined that the Fourth Amendment required only reasonable suspicion before a PBT
    could be administered. See Indiana v. Whitney, 
    889 N.E.2d 823
    , 829 (Ind. Ct. App. 2008);
    see also North Dakota v. Baxter, 
    863 N.W.2d 208
    , 212–13 (N.D. 2015); Vermont v. McGuigan,
    
    965 A.2d 511
    , 515–17 (Vt. 2008). A police officer in Wilson’s position thus reasonably
    would have believed that the higher threshold of probable cause was not
    constitutionally required. See generally Sornberger v. City of Knoxville, 
    434 F.3d 1006
    , 1013
    (7th Cir. 2006) (officer is entitled to qualified immunity if conduct would reasonably
    have been thought constitutional). Additionally, an officer reasonably would have
    believed that although slim evidence, Townsend’s driving, combined with the other
    driver’s observation that Townsend may have been drinking, constituted reasonable
    suspicion. See United States v. Rivera, 
    906 F.2d 319
    , 321 (7th Cir. 1990) (erratic driving
    supported reasonable suspicion of driving while intoxicated); Bogetti v. State, 
    723 N.E.2d 876
    , 879 (Ind. Ct. App. 2000) (reasonable suspicion to stop vehicle after citizen reported
    that driver “may be intoxicated”); State v. Springmier, 
    559 N.E.2d 319
    , 320–21 (Ind. Ct.
    App. 1990) (reasonable suspicion to stop vehicle after 911 call reporting erratic driving
    by potential drunk driver). Officer Wilson is therefore entitled to qualified immunity on
    Townsend’s claim that the administration of the PBT violated the Fourth Amendment.
    And once the PBT was administered, Wilson had probable cause to arrest Townsend
    because the test revealed that his blood-alcohol content was over the legal limit.
    See Jones v. City of Elkhart, 
    737 F.3d 1107
    , 1115 (7th Cir. 2013).
    We next turn to Townsend’s federal claim of malicious prosecution, which he
    brought against both Officer Wilson and Officer Page, and conclude that the district
    court properly granted summary judgment in favor of the defendants. Townsend
    contended that Wilson and Page had prosecuted him based on the chemical breath tests
    that Page administered in violation of Indiana’s guidelines. But Townsend was not
    prosecuted because of those chemical breath tests. The Affidavit for Probable Cause
    prepared by Wilson noted that the first chemical test result was invalid and did not rely
    on either test result to support probable cause.
    Still, the Affidavit for Probable Cause did rely on Wilson’s disputed observations
    of Townsend, and an officer who makes misstatements to a prosecutor, causing charges
    No. 15-2894                                                                           Page 5
    to be brought, can be liable for malicious prosecution. See Snodderly v. R.U.F.F. Drug Enf't
    Task Force, 
    239 F.3d 892
    , 901 (7th Cir. 2001). Although federal court is “rarely the
    appropriate forum for malicious prosecution claims,” Howlett v. Hack, 
    794 F.3d 721
    , 727
    (7th Cir. 2015) (quotation marks and citation omitted), Indiana does not provide an
    adequate state remedy for these claims, so they can be pursued in federal court under
    the Due Process Clause, 1 Julian v. Hanna, 
    732 F.3d 842
    , 846–47 (7th Cir. 2013). To succeed
    on this claim, the plaintiff must have suffered a liberty or property deprivation as a
    result of legal process. See Serino v. Hensley, 
    735 F.3d 588
    , 593–94 (7th Cir. 2013); Newsome
    v. McCabe, 
    256 F.3d 747
    , 751 (7th Cir. 2001).
    Townsend offered no evidence that he suffered actionable harm resulting from
    the filing of criminal charges by the prosecutor, before which he could not have had a
    claim for malicious prosecution. See Wallace v. Kato, 
    549 U.S. 384
    , 389–90 (2007); 
    Serino, 735 F.3d at 594
    –95; Wiley v. City of Chicago, 
    361 F.3d 994
    , 998 (7th Cir. 2004). Having to
    appear in court to defend against charges is not an actionable deprivation of liberty.
    See Cairel v. Alderden, No. 14-1711, 
    2016 WL 2641836
    , at *5 (7th Cir. May 5, 2016); 
    Serino, 735 F.3d at 594
    ; Alexander v. McKinney, 
    692 F.3d 553
    , 557 n.2 (7th Cir. 2012). And
    Townsend did not introduce evidence of any other restrictions on his liberty; he was
    released on bond the morning after his arrest and was not detained again.
    See Saunders-El v. Rohde, 
    778 F.3d 556
    , 561 (7th Cir. 2015) (concluding that plaintiff who
    was released on bond the day after his arrest and was acquitted could not succeed on a
    claim of due-process violation based on allegation that police had fabricated evidence);
    
    Alexander, 692 F.3d at 557
    (same). Townsend did post a $750 surety bond, and we assume
    that the premium was not refunded after the criminal case had ended and the bond was
    released. See Smith v. City of Hammond, 
    388 F.3d 304
    , 308 (7th Cir. 2004); Lake Cnty. Clerk's
    Office v. Smith, 
    766 N.E.2d 707
    , 709–10 (Ind. 2002). But we have explained that fees paid
    in lieu of a cash bond are an “incidental expense” not protected by the Due Process
    Clause. Albright v. Oliver, 
    975 F.2d 343
    , 347–48 (7th Cir. 1992), aff'd, 
    510 U.S. 266
    (1994).
    And in any event, because the bond amount was predetermined by a bail schedule and
    1
    Other circuits allow claims of malicious prosecution to rest on the Fourth
    Amendment. See Julian v. Hanna, 
    732 F.3d 842
    , 846 (7th Cir. 2013) (citing cases). Though
    we have rejected this approach, the Supreme Court has granted certiorari to address this
    question. See Manuel v. City of Joliet, 590 F. App’x 641 (7th Cir. 2015), cert. granted
    
    136 S. Ct. 890
    (Jan. 15, 2016). But because Townsend was released on bond the morning
    after his arrest and was not detained after charges were filed, he did not suffer a Fourth
    Amendment injury that would support a claim of malicious prosecution. See Bianchi v.
    McQueen, No. 14-1635, 
    2016 WL 1213270
    , at *10 n.6, *11 (7th Cir. Mar. 29, 2016).
    No. 15-2894                                                                          Page 6
    set before Townsend had appeared before a judge, the premium he paid was the result
    of his arrest and not the allegedly false statements Officer Wilson had made in his
    affidavit. See IND. CODE § 35-33-7-1(b) (allowing payment of bail before initial hearing
    with judge); ALLEN COUNTY BAIL SCHEDULE (2010), http://www.in.gov/ipdc/public/
    bailbonds/Allen%20County.pdf (setting $750 bail amount for operating vehicle while
    intoxicated). Townsend thus lacked evidence from which a jury could infer that he
    suffered constitutionally significant harm even if Wilson did mislead the prosecutor into
    filing charges.
    Finally, we conclude that the district court correctly granted summary judgment
    for the defendants on Townsend’s state-law claims. The Indiana Tort Claims Act
    requires that notice under that statute be given within 180 days of a loss attributable to a
    municipality or the municipality’s employees acting within the scope of their
    employment. IND. CODE § 34-13-3-8(a); Waldrip v. Waldrip, 
    976 N.E.2d 102
    , 110 (Ind. Ct.
    App. 2012). Townsend does not argue that the defendant police officers were acting
    beyond the scope of their employment, and except for his claim of malicious
    prosecution, the loss for Townsend’s state-law claims occurred at the time of his arrest.
    See 
    Waldrip, 976 N.E.2d at 111
    . But Townsend waited more than one year before
    tendering the statutory notice. And as for his claim of malicious prosecution, because the
    officers were acting within the scope of their employment, the City and the officers are
    immune from liability. See IND. CODE § 34-13-3-3(6); Ball v. City of Indianapolis, 
    760 F.3d 636
    , 645 (7th Cir. 2014); 
    Julian, 732 F.3d at 848
    –49.
    AFFIRMED.