In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3336
MARSHALL G. WELTON,
Plaintiff-Appellant,
v.
SHANI J. ANDERSON, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-00355— Jane E. Magnus-Stinson, Judge.
ARGUED SEPTEMBER 11, 2014 — DECIDED OCTOBER 28, 2014
Before BAUER, MANION, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Marshall Welton (“Welton”) sued
police officer Shani Anderson, the National Bank of Indianapo-
lis, and George Keely (collectively the “Appellees”) under 42
U.S.C. § 1983, claiming that they engaged in a malicious
prosecution against him in violation of the Fourth and Four-
teenth Amendments and Indiana state law. Appellees moved
to dismiss Welton’s federal claims pursuant to Federal Rule of
Civil Procedure 12(b)(6). The district court granted Appellees’
2 No. 13-3336
motion and, after declining to exercise supplemental jurisdic-
tion over Welton’s remaining state law claims, dismissed the
suit. Welton challenges this ruling on appeal, asserting his
claims were improperly dismissed. For the reasons that follow,
we affirm the district court’s dismissal.
I. BACKGROUND
On review of this dismissal, we accept the facts of the
plaintiff’s complaint as true and draw all inferences in favor of
the plaintiff. Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013);
Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).
Welton is an Indiana businessman engaged in buying,
selling, and renting residential real estate. To facilitate his real
estate business, Welton maintained a line of credit with the
National Bank of Indianapolis (“NBI”), which was collateral-
ized with Welton’s real estate holdings. From 1994 through
2001, NBI renewed Welton’s line of credit annually.
In March 2002, NBI declined to extend Welton’s line of
credit. Instead, NBI reduced the line of credit to the balance
owed and gave Welton ninety days to pay off the account.
Initially, Welton was unable to make the payments, but by
2006 he reached an agreement with NBI to pay off his debt.
Pursuant to the agreement, Welton sent monthly checks to
NBI. Those checks were never cashed, however. In 2007, after
realizing the monthly checks remained uncashed, Welton sent
NBI a certified check in the amount of the uncashed checks.
Following these transactions, George Keely (“Keely”), NBI’s
Vice President of Loan Administration, contacted Officer Shani
Anderson (“Officer Anderson”) of the Indianapolis Metropoli-
No. 13-3336 3
tan Police Department in an effort to initiate a criminal
investigation against Welton. After meeting with Keely, Officer
Anderson submitted an affidavit in support of probable cause
charging Welton with two felonies: theft and fraud on a
financial institution; Welton was arrested, processed, and
released on his own recognizance pending trial. After a trial on
March 3, 2011, Welton was found not guilty of both crimes.
On March 4, 2013, Welton filed suit in federal court under
42 U.S.C. § 1983, claiming that several of Officer Anderson’s
statements were knowingly false and that Keely provided
many of the false statements to Officer Anderson. Specifically,
he complained their actions resulted in a malicious prosecution
and denied him his rights under the Fourth and Fourteenth
Amendments. In addition to these constitutional violations,
Welton complained that Keely’s and NBI’s actions constituted
malicious prosecution under Indiana law. Officer Anderson,
Keely, and NBI moved to dismiss the claims pursuant to
Federal Rule of Civil Procedure 12(b)(6). The district court
granted the motions, holding that Welton’s Fourth Amend-
ment malicious prosecution claim was foreclosed by this
circuit’s precedent. The district court also held Welton’s
Fourteenth Amendment claim must fail because there is no
constitutional right not to be prosecuted without probable
cause and because his bare allegations of “fundamental un-
fairness” were insufficient to implicate the Due Process Clause.
After dismissing Welton’s federal claims, the district court
declined to exercise supplemental jurisdiction over the
remaining state law claims.
4 No. 13-3336
II. DISCUSSION
On appeal, Welton argues that the district court improperly
dismissed his claims because his complaint states viable claims
under the Fourteenth Amendment’s Due Process Clause and
under the Fourth Amendment. We review de novo the district
court’s dismissal for failure to state a claim. See Fed. R. Civ. P.
12(b)(6); Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008). A claimant properly states a claim when he alleges
enough facts to render the claim not just conceivable, but
facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We may affirm
the district court’s decision on any ground contained in the
record. Serino, 735 F.3d at 590.
A. Malicious Prosecution in Violation of the Fourteenth
Amendment
As an initial matter, “[f]ederal courts are rarely the appro-
priate forum for malicious prosecution claims.” Ray v. City
of Chicago, 629 F.3d 660, 664 (7th Cir. 2011). This is because
“individuals do not have a ‘federal right not to be summoned
into court and prosecuted without probable cause.’” Id. (citing
Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010)). Rather, to
state a viable malicious prosecution claim under § 1983, a
plaintiff must “alleg[e] a violation of a particular constitutional
right, such as the right to be free from unlawful seizures under
the Fourth Amendment, or the right to a fair trial under the
Due Process Clause.” Serino, 735 F.3d at 592 (citing Newsome v.
McCabe, 256 F.3d 747, 751 (7th Cir. 2001)). The absence of such
a constitutional violation in Welton’s complaint is fatal to his
claim.
No. 13-3336 5
Indeed, Welton’s claim fails for many of the same reasons
we discussed in Serino. In Serino, a case decided after the
district court’s decision in the instant case, we considered
whether the plaintiff, Serino, presented a cognizable § 1983
malicious prosecution claim. Id. at 592–95. Serino claimed that
his arresting officer, Hensley, made “‘false and misleading
recommendations’ that led to Serino’s ‘malicious’ charges,” but
failed to “allege that Hensley’s recommendations were
knowingly false, or that he withheld exculpatory evidence
from the prosecutor, or that he took steps to wrongfully further
what he knew was a baseless prosecution.” Id. at 594 (emphasis
omitted). Without a constitutional deprivation supporting his
claim, the court concluded that Serino was left with a wrongful
arrest claim, not a due process violation. Id. Because Serino
failed to state a predicate deprivation for his Fourteenth
Amendment malicious prosecution claim, the court held that
Serino’s claim failed for a “basic reason: he ha[d] not stated a
constitutional violation independent of the alleged wrongful
arrest.” Id. at 593.
Although malicious prosecution claims from Indiana may
be heard in federal court after our decision in Julian v. Hanna,
732 F.3d 842 (7th Cir. 2013),1 Welton’s malicious prosecution
claim still fails for the same “basic reason” as in Serino: Welton
failed to state a predicate constitutional violation in support of
his malicious prosecution claim. Serino, 735 F.3d at 593. Section
1983 requires an allegation of infringement of a specific
1
After the district court issued its order, we held in Julian that Indiana state
law does not provide an adequate remedy for malicious prosecution, thus
opening the door to federal claims. Julian, 732 F.3d at 846–48.
6 No. 13-3336
constitutional right as a prerequisite to claims brought under
a constitutional provision. See Baker v. McCollan, 443 U.S. 137,
140 (1979) (“[I]t is necessary to isolate the precise constitutional
violation with which [the defendant] is charged … . The first
inquiry in any § 1983 suit, therefore, is whether the plaintiff has
been deprived of a right secured by the Constitution and
laws.”) (internal citations omitted). See also Reichenberger v.
Pritchard, 660 F.2d 280, 284–85 (7th Cir. 1981) (“The first inquiry
in any [§] 1983 suit is whether the plaintiff has been deprived
of a right secured by the Constitution and laws of the United
States.”). Malicious prosecution is not by itself an infringement
on the constitutional right to due process under the Fourteenth
Amendment. Serino, 735 F.3d at 593–95 (requiring viable
constitutional violation in support of malicious prosecution
claim). It must also be based on a separate deprivation of a
constitutional right. Id. Welton states no additional constitu-
tional deprivation supporting his malicious prosecution claim.
He only alleges that Officer Anderson prosecuted him without
probable cause, but “there is no such thing as a constitutional
right not to be prosecuted without probable cause.” Id. at 593.
Even if we were to fill in the blanks of Welton’s complaint
and find a properly pleaded constitutional violation, he still
fails to demonstrate the requisite malice. To state a malicious
prosecution claim under § 1983, a plaintiff must demonstrate
that (1) he has satisfied the elements of a state law cause of
action for malicious prosecution; (2) the malicious prosecution
was committed by state actors; and (3) he was deprived of
liberty. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996).
Under Indiana law, “the elements of a malicious prosecution
action are: (1) the defendant instituted or caused to be insti-
No. 13-3336 7
tuted an action against the plaintiff; (2) the defendant acted
maliciously in so doing; (3) the defendant had no probable
cause to institute the action; and (4) the original action was
terminated in the plaintiff’s favor.” Golden Years Homestead, Inc.
v. Buckland, 557 F.3d 457, 462 (7th Cir. 2009) (internal citations
omitted). Malice may be shown “by evidence of personal
animosity or inferred from a complete lack of probable cause
or a failure to conduct an adequate investigation under the
circumstances.” Id.
While Welton contends in his complaint that Officer
Anderson “intentionally” presented false facts, he offers no
facts purporting to show malice. Instead, he merely concludes
that Officer Anderson’s behavior was malicious and that the
result of her conduct was a prosecution without probable
cause. Such conclusory allegations, without more, are insuffi-
cient to state a claim. See Ray, 629 F.3d at 662 (“[W]e need not
accept as true legal conclusions, or threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements.”) (internal citations omitted). See also Tully, 599
F.3d at 595 (finding no cognizable malicious prosecution claim
where plaintiff “alleged no facts to imply malice”). Absent
facts demonstrating the requisite malice element, Welton’s
claim fails.
Finally, to the extent Welton argues that the criminal
proceeding against him was “fundamentally unfair” in
violation of the Due Process Clause, he again fails to state a
claim. Welton was acquitted of the charges against him
following trial; there is no evidence that he received anything
other than procedural due process. See Tully, 599 F.3d at 595
8 No. 13-3336
(“[H]e received procedural due process under the Fourteenth
Amendment when the state court system vindicated him.”).
Just as in Serino, the crux of Welton’s claim is that he was
prosecuted without probable cause, but it is well-settled that
there is no “constitutional right not to be prosecuted without
probable cause.” Serino, 735 F.3d at 593; see also Tully, 599 F.3d
at 594 (finding no federal right not to be prosecuted without
probable cause); Newsome, 256 F.3d at 751 (acknowledging
there is no constitutional right not to be prosecuted without
probable cause). Therefore, his malicious prosecution claim
under the Fourteenth Amendment must fail because he has not
stated a predicate constitutional violation.
B. Malicious Prosecution in Violation of the Fourth
Amendment
Welton also asks the court to reverse the district court’s
dismissal on the ground that he stated an independent mali-
cious prosecution claim under the Fourth Amendment. In
effect, Welton asks the court to expand actionable Fourth
Amendment claims beyond the point of arraignment under the
concept of “continuing seizure,” which he acknowledges could
only be accomplished by departing from our existing prece-
dent.
To state a Fourth Amendment claim, a plaintiff must allege
that the defendant’s conduct constituted a seizure and that the
seizure was unreasonable. Bielanski, 550 F.3d at 637. The scope
of a Fourth Amendment claim is typically limited up to the
point of arraignment. Id. at 638. Justice Ginsburg’s concurrence
in Albright v. Oliver, 510 U.S. 266, 279 (1994) (Ginsburg, J.,
concurring), however, urged an expanded scope under which
No. 13-3336 9
a defendant would be considered seized “so long as he is
bound to appear in court and answer the state’s charges,”
whether through summons or arrest. This position did not
garner support from a majority of the Court, however, and is
not law this circuit is required to follow. See Hertz v. Woodman,
218 U.S. 205, 213–14 (1910) (explaining “the principles of law
involved not having been agreed upon by a majority of the
court sitting prevents the case from becoming an authority for
the determination of other cases”).
We have repeatedly rejected the concept of “continuing
seizure” in the Fourth Amendment context, a fact which
Welton conceded both before the district court and on appeal.
See Bielanski, 550 F.3d at 638 (“[W]e have repeatedly rejected
the concept of a continuing seizure in the Fourth Amendment
context.”); Wallace v. City of Chicago, 440 F.3d 421, 429 (7th Cir.
2006) (“[W]e have already rejected a ‘continuing seizure’
theory in the Fourth Amendment context.”); Wiley v. City of
Chicago, 361 F.3d 994, 998 (7th Cir. 2004) (rejecting a claim for
wrongful prosecution under a Fourth Amendment continuing
seizure approach). “We require a compelling reason to
overturn circuit precedent,” but Welton presents none. United
States v. Lara-Unzueta, 735 F.3d 954, 961 (7th Cir. 2014) (quoting
Nunez-Moron v. Holder, 702 F.3d 353, 357 (7th Cir. 2012))
(internal quotation marks omitted). In light of our precedent,
Welton’s Fourth Amendment claim cannot stand. Welton’s
“seizure” ended when the prosecution began, thus a Fourth
Amendment claim based on conduct after that point is neces-
sarily foreclosed.
Moreover, even supposing we were to consider a broader
scope for Fourth Amendment claims, the facts in the instant
10 No. 13-3336
case are a poor fit for the continuing seizure approach because
Welton’s freedom of movement restrictions do not rise to the
level of a seizure. In fact, Welton presents no facts suggesting
a restriction on his freedom of movement. Instead, he states he
was arrested, processed, released on his own recognizance, and
eventually criminally prosecuted. At best, these are de minimis
restrictions. See Karam v. City of Burbank, 352 F.3d 1188, 1193–94
(9th Cir. 2003) (signing of own recognizance agreement which
obligated woman to obtain court’s permission before leaving
state and which compelled her appearance in court amounted
to de minimis restrictions not constituting a Fourth Amendment
seizure).
III. CONCLUSION
Dismissal was appropriate because Welton never presented
a viable constitutional violation in support of his § 1983
malicious prosecution claim. Therefore, the district court’s
grant of the defendants’ motions to dismiss is AFFIRMED.