Alexander v. United States

• Decision Date: 26 June 2013
• Docket Number: No. 12–2190.,12–2190.
• Citation: 721 F.3d 418
• Parties: Michael ALEXANDER, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

721 F.3d 418

Michael ALEXANDER, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 12–2190.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 15, 2013.

Decided June 26, 2013.

Donald K. McClellan (argued), Attorney, McClellan & McClellan, Muncie, IN, for Plaintiff–Appellant.

Shelese M. Woods (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant–Appellee.

Before POSNER, WOOD, and TINDER, Circuit Judges.

WOOD, 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 and father-son criminal duo Stanley Chrisp and Adrian Kirtz to frame him for bribery. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6), finding that it failed to state a claim for malicious prosecution and that the claim for intentional 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 investigate 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.

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 forfeitures 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 conversation. Freeman and Kirtz created a false “exit interview” summarizing the meeting, in which Kirtz represented that Alexander had indicated that he was involved in and aware of Hinds's bribery scheme. Although the tape of the meeting would have demonstrated 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.

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 Alexander and gave a taped statement in which he confirmed that he had never interacted with Alexander and swore that the entire bribery scheme had been fabricated 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 evidence 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.

Although he was eventually acquitted, Alexander alleges that the ordeal of his arrest and trial on trumpedup 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 prosecution and intentionalinfliction 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 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 requires, 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 allegations.” 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, ––– U.S. ––––, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011); Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Instead, in order to assure that a pleading suffices to give effective notice to the opposing party, the Court has said that a complaint must contain facts that are sufficient, when accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “Plausibility” for purposes of Rule 8 is not synonymous with “probability”; 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, 129 S.Ct. 1937 (plausibility is “not akin to a probability requirement”) (internal quotation marks omitted). Rather, the plausibility requirement demands only that a plaintiff provide sufficient detail “to present a story that holds together.” Swanson, 614 F.3d at 404.

Turning to the particulars of Alexander's case, we begin with his claim for malicious prosecution. Because the FTCA generally provides for liability in circumstances 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 prosecution 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...