Michael Alexander v. United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2190
M ICHAEL A LEXANDER,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:11-cv-00762-SEB-DKL—Sarah Evans Barker, Judge.
A RGUED JANUARY 15, 2013—D ECIDED JUNE 26, 2013
Before P OSNER, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. Michael Alexander, an Indiana
criminal defense lawyer, brings this suit for malicious
prosecution and intentional infliction of emotional
distress against the United States pursuant to the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680.
His core allegation is that Neal Freeman and James Howell,
agents with the Federal Bureau of Investigation (FBI),
conspired with Indiana state prosecutor Mark McKinney
2 No. 12-2190
and father-son criminal duo Stanley Chrisp and Adrian
Kirtz to frame him for bribery. The district court dis-
missed the complaint under Federal Rule of Civil Pro-
cedure 12(b)(6), finding that it failed to state a claim
for malicious prosecution and that the claim for inten-
tional infliction of emotional distress was time-barred.
For the reasons discussed below, we reverse.
I
Because the district court dismissed this case under
Rule 12(b)(6), for present purposes we accept the facts
presented in the complaint as true. The origins of the
conspiracy against Alexander date back to June 2006,
when FBI agents Freeman and Howell began to investi-
gate Alexander’s longtime investigator, Jeff Hinds, for
bribery. The agents suspected that Hinds was bribing
witnesses, including Kirtz, in cases involving Alexander’s
clients. In an effort to determine whether Alexander
was aware of or involved in Hinds’s extralegal
efforts for his clients, the agents equipped Kirtz and
Chrisp with recording devices and sent them to meet
with Alexander in July 2006 to discuss the bribes. At the
meeting, Alexander told Kirtz and Chrisp that he did
not know anything about Hinds’s bribery, but he said he
would attempt to figure out what was going on. Although
Kirtz and Chrisp both later confirmed that this meeting
took place and that they handed over recordings of the
meeting to the FBI, the agents never produced these
recordings and repeatedly claimed both that the
meeting had never occurred and that the recordings
did not exist.
No. 12-2190 3
After July 2006, the bribery investigation lay dormant
for months. It heated up again, however, in January
2007, when McKinney took office as the new prosecutor
for the 46th Indiana Judicial Circuit. McKinney harbored
a grudge against Alexander because Alexander had
been a vocal critic of McKinney’s handling of drug for-
feitures during his tenure as attorney for the City of
Muncie/Delaware County Drug Task Force. According
to the complaint, upon taking office McKinney entered
into a conspiracy with agents Freeman and Howell, as
well as Kirtz and Chrisp (both of whom were now
under investigation for their participation in an arson
ring) to manufacture evidence to support a bribery case
against Alexander.
As part of this conspiracy, agents Freeman and Howell
both participated in the destruction of the evidence of
Kirtz and Chrisp’s July 2006 meeting with Alexander;
they also worked with Kirtz to create false evidence
of Alexander’s guilt. On February 1, 2007, Freeman sent
Kirtz to meet with Alexander and record their conver-
sation. Freeman and Kirtz created a false “exit inter-
view” summarizing the meeting, in which Kirtz repre-
sented that Alexander had indicated that he was
involved in and aware of Hinds’s bribery scheme. Al-
though the tape of the meeting would have demon-
strated that Kirtz’s claims were false (and that
Alexander had again denied any knowledge of a bribery
scheme), the recording Freeman submitted to the FBI
was blank. The agents additionally manipulated a
third recorded conversation with Alexander from
February 15, 2007, to exclude exculpatory evidence.
4 No. 12-2190
Freeman then personally prepared a probable-cause
affidavit to charge Alexander with bribery. The affidavit
included the false and manipulated evidence from the
February 1 and 15 meetings with Alexander, while it
excluded the evidence from the July 2006 meeting in
which Alexander had denied knowing anything about
the bribery. Based on this affidavit, an arrest warrant
was issued, and Freeman led other officers in arresting
Alexander in February 2008.
Over a year passed between Alexander’s arrest and
trial. During that time, Freeman testified in two
separate depositions. In each one, he denied that the
July 2006 meeting between Alexander, Kirtz, and Chrisp
took place. Also during that time, Stanley Wills—one of
the people Hinds had allegedly bribed—met with Alex-
ander and gave a taped statement in which he con-
firmed that he had never interacted with Alexander
and swore that the entire bribery scheme had been fabri-
cated by Kirtz and Chrisp. The complaint alleges that
shortly after Alexander released this taped statement
to the court and to the media, Freeman met with Wills
and pressured Wills into falsely testifying that he had
made this statement only after being threatened with
physical harm.
Alexander went to trial in Delaware County in March
2009. Freeman testified at trial, where he claimed (falsely)
that recordings of Alexander containing exculpatory evi-
dence did not exist, and repeated the (false) story that
Wills had been coerced into giving a taped statement
to Alexander. The jury acquitted Alexander after just
over an hour of deliberations.
No. 12-2190 5
Although he was eventually acquitted, Alexander
alleges that the ordeal of his arrest and trial on trumped-
up charges was quite distressing to him. In addition, as
a result of the trial he suffered considerable negative
publicity, which damaged his reputation and hurt his
law practice. Accordingly, Alexander filed a Notice of
Tort Claim with the FBI on October 21, 2010, announcing
his intention to sue the United States under the FTCA.
After the FBI declined to act on the claim, Alexander
initiated this suit in federal district court, bringing
claims for, as is relevant for this appeal, malicious pros-
ecution and intentional infliction of emotional distress.
The district court dismissed the complaint pursuant to
Rule 12(b)(6), finding that Alexander failed to state a
claim for malicious prosecution and that his claim for
intentional infliction of emotional distress was untimely.
This appeal followed.
II
A
Because this appeal hinges on what, precisely, the
pleading standards embodied in Rule 8 of the Federal
Rules of Civil Procedure require Alexander to allege in
order to state a claim, we begin with a brief review of
those standards. Although the Supreme Court’s recent
interpretations of Rule 8 in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
have clarified that a plaintiff must do something more
than “put[] a few words on paper that, in the hands of
an imaginative reader, might suggest that something
6 No. 12-2190
has happened to her that might be redressed by the
law,” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir.
2010) (emphasis in original), neither decision questions
the ongoing validity of Rule 8(a)(2) itself. The Rule re-
quires, as it always has, that a complaint include “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” To meet this standard, a
plaintiff is not required to include “detailed factual al-
legations.” Indeed, the Supreme Court has signaled
on several occasions that it has not amended the rules
of civil procedure sub silentio to abolish notice pleading
and return to the old fact pleading standards that
pre-dated the modern civil rules. See Skinner v. Switzer,
131 S. Ct. 1289, 1296 (2011); Erickson v. Pardus, 551 U.S.
89, 93 (2007); Twombly, 550 U.S. at 570. Instead, in order
to assure that a pleading suffices to give effective notice
to the opposing party, the Court has said that a com-
plaint must contain facts that are sufficient, when ac-
cepted as true, to “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. “Plausibility” for
purposes of Rule 8 is not synonymous with “proba-
bility”; it is not, for instance, necessary (or appropriate) “to
stack up inferences side by side and allow the case to
go forward only if the plaintiff’s inferences seem more
compelling than the opposing inferences.” Swanson, 614
F.3d at 404; see also Iqbal, 556 U.S. at 678 (plausibility is
“not akin to a probability requirement”) (internal quota-
tion marks omitted). Rather, the plausibility require-
ment demands only that a plaintiff provide sufficient
detail “to present a story that holds together.” Swanson,
614 F.3d at 404.
No. 12-2190 7
Turning to the particulars of Alexander’s case, we
begin with his claim for malicious prosecution. Because
the FTCA generally provides for liability in circum-
stances in which a private person would be liable to
the plaintiff under the laws of the state where the
wrongful acts occurred, 28 U.S.C. § 1346(b)(1), and the
intentional torts alleged here appear to fall within its
scope, see 28 U.S.C. § 2680(h), the first task is to identify
what state we are talking about. Here, it is Indiana,
where all of the relevant events took place and Alexander’s
injury occurred. The Indiana tort of malicious prosecu-
tion requires a plaintiff to establish that: “(1) the
defendant . . . instituted or caused to be instituted an
action against the plaintiff . . .; (2) the defendant acted
with malice in doing so; (3) the defendant had no
probable cause to institute the action; and (4) the
original action was terminated in the plaintiff’s favor.”
City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.
2001). While no party disputes that the fourth element
is satisfied here (since Alexander was acquitted of the
charges against him), the district court found the com-
plaint deficient with respect to the other three.
In our view, the court asked too much of Alexander.
The complaint more or less tracks the first element of
the claim, because it expressly alleges that the agents’
actions directly caused Alexander’s arrest and trial. And,
perhaps to ensure that he has included enough to
escape the criticism that the complaint is nothing but
a “[t]hreadbare recital[] of the elements of [his] cause
of action, supported by mere conclusory statements,”
see Iqbal, 556 U.S. at 678, Alexander has provided numer-
8 No. 12-2190
ous supporting details: (1) a description of the steps
the agents took to manufacture evidence of Alexander’s
guilt and suppress evidence that tended to show his
innocence; (2) an allegation that Freeman personally
prepared the probable-cause affidavit that was the basis
for Alexander’s arrest; and (3) the identification of
the actions the agents took after Alexander’s arrest to
further the prosecution, which included testifying in
depositions and at trial and intimidating a potential
defense witness. Whatever the floor may be, these al-
legations are comfortably above it: they are more
than sufficient to assert a causal link between the
agents’ actions and the subsequent prosecution. The
district court thought this element insufficiently pleaded
because “it was not the United States that prosecuted
[Alexander] in state court,” but Indiana cases confirm
that a person may “cause” an action to be instituted
for purposes of malicious prosecution even if that
person does not conduct the prosecution personally. See
Kroger Food Stores, Inc. v. Clark, 598 N.E.2d 1084, 1086-87
(Ind. Ct. App. 1992) (affirming verdict in favor of plain-
tiff in a malicious prosecution case against employer
that caused employee to be prosecuted for theft); F.W.
Woolworth Co. v. Anderson, 471 N.E.2d 1249, 1253
(Ind. Ct. App. 1984) (first element of malicious prosecu-
tion claim “absolutely clear” when defendants prompted
prosecution by reporting alleged theft to local pros-
ecutor, who then instituted prosecution).
The complaint also adequately alleges that Alexander
was prosecuted in the absence of probable cause. It
states that the probable-cause affidavit that served as
No. 12-2190 9
the basis for Alexander’s arrest and prosecution was
based on fabricated evidence and excluded evidence that
favored Alexander. Knowingly false statements by the
affiant cannot support a finding of probable cause, and
as we read the complaint, that is all there was. Accord
K Mart Corp. v. Brzezinski, 540 N.E.2d 1276, 1280 (Ind.
Ct. App. 1989) (while a judicial determination of prob-
able cause is prima facie evidence of probable cause
in a subsequent malicious prosecution suit, that evi-
dence is rebutted if the judicial determination is made
in reliance on false information). Although the dis-
trict court may have assumed that there was
other, non-tainted evidence against Alexander, such an
assumption is not supported by anything in the com-
plaint. Although we acknowledge that Alexander
nowhere explicitly alleged that the probable cause af-
fidavit was based entirely on tainted information, that
is a fair inference from what the complaint does say,
and at this stage we are required to draw all reasonable
inferences in Alexander’s favor.
Finally, the complaint adequately pleads malice. In
Ziobron v. Crawford, 667 N.E.2d 202 (Ind. Ct. App. 1996), the
Indiana Court of Appeals held that “[m]alice may
be inferred from a total lack of probable cause.” Id. at 208
(citing Bd. of Comm’rs of Hendricks Cnty. v. King, 481
N.E.2d 1327, 1329 (Ind. Ct. App. 1985) (“Malice may be
inferred from a total lack of probable cause or from
failure to make a reasonable or suitable inquiry.”)); see
also Kroger Food Stores, 598 N.E.2d at 1089. This is not to
say that such an inference cannot be rebutted at a later
stage of the proceeding. Lack of probable cause might
10 No. 12-2190
be the result of stupidity or carelessness, rather than
malice or recklessness. But Alexander was not required
to anticipate this type of defense in his complaint. In
any event, the allegations about the feud between
McKinney and Alexander also provide notice of Alex-
ander’s reasons for believing that malice was present.
For purposes of pleading, this is enough.
The district court faulted Alexander for failing to
include any allegations that the agents harbored personal
animosity toward him. This failure, it thought, undercut
Alexander’s allegations of malice, but the court’s com-
ment may also have reflected a more general unease
that the pattern of events described in the complaint
was, at bottom, not “plausible.” The notion that
federal agents would participate in a retaliatory prosecu-
tion by fabricating evidence and committing perjury
is surely a shocking one, and the district court may
simply have found the allegations too difficult to credit,
at least absent additional allegations to suggest some
sort of motive. But Rule 8 does not demand that a
plaintiff prove his case at the outset of the litigation,
nor does it demand that a plaintiff come to court ready
to plead facts (such as the motivations of agents
Freeman and Howell) that he has no way of knowing
prior to discovery. And none of Alexander’s allega-
tions pulled him into the territory covered by the first
sentence of Rule 9(b), which does require more specific-
ity. (The second sentence helps Alexander: it provides
that “[m]alice, intent, knowledge, and other conditions
of a person’s mind may be alleged generally.”) While
we agree that Alexander’s tale would undoubtedly
No. 12-2190 11
seem more probable if he offered some reason for the
agents’ animus (for example, an allegation that Freeman
was romantically involved with Alexander’s wife or that
Howell owed money to prosecutor McKinney, who,
according to the complaint, did have a motive for
framing Alexander), probability is not the standard.
Unfortunately, in a world where public corruption is
hardly unknown, we cannot agree that Alexander’s
complaint is too implausible to hold together absent
allegations of this sort. We might wish to live in a world
in which such an egregious abuse of one’s official
position would be unthinkable, but experience suggests
that we do not. See, e.g., Dominguez v. Hendley, 545 F.3d
585, 589-90 (7th Cir. 2008); United States v. Maloney, 71
F.3d 645, 650-52 (7th Cir. 1995). We conclude that the
complaint for malicious prosecution sets forth enough
plausible detail to provide adequate notice to the de-
fendants and thus to survive a 12(b)(6) motion to dismiss.
B
The complaint further alleges that the agents’ actions
amounted to intentional infliction of emotional distress
(IIED), which Indiana law defines as “extreme and outra-
geous conduct [that] intentionally or recklessly causes
severe emotional distress to another.” Cullison v. Medley,
570 N.E.2d 27, 31 (Ind. 1991). Like all claims under the
FTCA, Alexander’s IIED claim is subject to a two-year
statute of limitations. 28 U.S.C. § 2401(b). Relying on
the general principle that a claim accrues when: “(A) the
plaintiff discovers; or (B) a reasonable person in the plain-
12 No. 12-2190
tiff’s position would have discovered that he has been
injured by an act or omission attributable to the gov-
ernment,” Arroyo v. United States, 656 F.3d 663, 668 (7th
Cir. 2011), the district court concluded that the claim
was time-barred. The court reasoned that Alexander
must have known that he had been framed at the time
of his arrest in February 2008, and that even if he was
not immediately aware that the trumped-up bribery
charges were attributable to the FBI agents (and thus
the federal government), he must have realized this no
later than July 2008, when Freeman falsely stated in a
deposition that exculpatory evidence from Alexander’s
July 2006 meeting with Kirtz and Chrisp did not exist.
Yet Alexander did not file his Notice of Tort Claim with
the FBI until October 2010, more than two years after
Freeman’s deposition. (Alexander did file his Notice of
Tort Claim within two years of his acquittal, which oc-
curred in March 2009. For this reason, his malicious
prosecution claim—which did not accrue until the
charges in the criminal case were resolved in his favor—
was timely.)
Though we have no quarrel with the district court’s
conclusion that Alexander knew or should have known
by the time of Freeman’s July 2008 deposition that agents
of the federal government potentially caused his injury,
it does not follow from this that Alexander’s IIED claim
is untimely, because the agents’ alleged extreme and
outrageous conduct did not cease with either Alex-
ander’s arrest or Freeman’s deposition. Rather, the com-
plaint alleges that the tortious conduct—which in-
cluded witness intimidation, perjury, and suborning of
No. 12-2190 13
perjury—continued right through Alexander’s trial. Any
one of these later actions might suffice to provide the
basis for a timely IIED claim. (We make no comment on
any other possible bar to an IIED claim based on a wit-
ness’s trial testimony, because the time for considering
such arguments never arrived in the district court.)
The complaint gives no reason for confining the IIED
analysis to events leading up to Alexander’s arrest. In
situations such as this, where the alleged injury can be
characterized as a continuing one, federal claim-accrual
rules (which govern in cases arising under the FTCA, id.)
dictate that the statute of limitations “does not start to
run any earlier than the last day of the ongoing injury.”
Devbrow v. Kalu, 705 F.3d 765, 770 (7th Cir. 2013) (emphasis
in original); see also Heard v. Sheahan, 253 F.3d 316, 318-19
(7th Cir. 2001) (discussing the federal “continuing viola-
tion” doctrine). And even if the continuing violation
doctrine has been modified by cases such as Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), and
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101(2002), Alexander has alleged many specific events that
fall well within the applicable limitation period. Re-
gardless of whether we view the agents’ conduct as a
continuing wrong or as a series of discrete, independently
actionable harms, some of which occurred within the
limitation period, we conclude that Alexander’s IIED
claim is timely.
All that remains is for us to determine whether the
complaint adequately states a claim for IIED. We
conclude that it does. The conduct described in the com-
plaint is extreme and outrageous (as well as criminal),
14 No. 12-2190
and there are sufficient allegations to support the in-
ferences both that this conduct was intended to cause
Alexander severe emotional distress and that Alexander
suffered such emotional distress as a result of his or-
deal. Mindful of the relatively low bar Alexander is
required to clear at this preliminary stage of his case,
we conclude that the IIED claim is also sufficient to
pass muster under Rule 12(b)(6).
Accordingly, we R EVERSE the district court’s judgment
dismissing Alexander’s claims for malicious prosecu-
tion and intentional infliction of emotional distress
and R EMAND for further proceedings consistent with
this opinion.
6-26-13