In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3237
M ICHAEL T ULLY,
Plaintiff-Appellant,
v.
R USH C OUNTY P ROSECUTOR
P AUL BA RADA, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-01243-LJM-DML—Larry J. McKinney, Judge.
A RGUED JANUARY 19, 2010—D ECIDED M ARCH 17, 2010
Before B AUER and W OOD , Circuit Judges, and K ENNELLY,
District Judge.
B AUER, Circuit Judge. Michael Tully sued Paul Barada
and Catherine Custer under 42 U.S.C. § 1983, asserting
that they violated his rights under the Fourth and Four-
The Honorable Matthew F. Kennelly, United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 09-3237
teenth Amendments by summoning him into court and
initiating juvenile proceedings against him without
probable cause. The district court dismissed Tully’s case
for failure to state a claim upon which relief can be
granted. We affirm.
I. BACKGROUND
Wayne Elwell was in his home, located about a football
field’s length from a county-road bridge in Rush County,
Indiana, when he observed that near the bridge were the
headlights of a vehicle and a separate spotlight. He heard
a gunshot coming from that direction, so he called the
Sheriff’s Department. He heard a second shot, saw some-
one go into the ditch, and called the sheriff again.
Deputy Sheriff Randy Chandler chased down a vehicle
that had passed him on the way to the bridge. In the
vehicle were Michael Tully, his friend Brock Carfield, a
spotlight, a .22-caliber rifle, and a dead raccoon. Chandler
asked the boys whether they knew it was wrong to
shoot from a roadway, and they responded yes.
Tully and Carfield were charged in the Rush County
Juvenile Court for shooting on or across a public highway
in violation of Indiana Code § 14-22-6-9, with a charging
document prepared by prosecutor Paul Barada based on
a report completed by probation officer Catherine
Custer. The trial court found that the allegations against
Tully were true, and adjudicated him to be a delinquent
child. Indiana’s appellate court reversed, finding insuffi-
cient evidence to support Tully’s delinquency adjudica-
No. 09-3237 3
tion. M.P.T. v. State, 878 N.E.2d 542, 2007 WL 4555513, at *3
(Ind. App. Dec. 28, 2007).
Then Tully complained in the district court that
Barada and Custer were liable under 42 U.S.C. § 1983 for
violating his constitutional rights under the Fourth
Amendment and the Fourteenth Amendment’s Pro-
cedural Due Process Clause not to be summoned into
court and prosecuted without probable cause. Barada
and Custer each moved to dismiss. The district court
granted the motions, finding that a court summons is not
a “seizure” under the Fourth Amendment, and that there
is “no constitutional right not to be prosecuted without
probable cause.” Tully v. Barada, 2009 WL 2447807, at *4
(S.D. Ind. Aug. 7, 2009) (quoting Penn v. Harris, 296
F.3d 573, 576 (7th Cir. 2002)).
II. DISCUSSION
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). Tully
states a claim only if he alleges enough facts to render
the claim not just conceivable, but facially plausible.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atl. v.
Twombly, 550 U.S. 544, 570 (2007).
The Supreme Court has neither recognized nor fore-
closed the possibility of plausibly asserting a right not to
be prosecuted without probable cause under § 1983,
either under the Fourth Amendment, Wallace v. Kato, 549
U.S. 384, 390 n.2 (2007) (“We have never explored the
4 No. 09-3237
contours of a Fourth Amendment malicious-prosecution
suit under § 1983.”), or the Fourteenth Amendment’s
Procedural Due Process Clause. See Albright v. Oliver, 510
U.S. 266, 316 (1996) (Stevens, J., dissenting) (finding
that “in the aggregate, [the Albright Court’s fractured]
opinions do not reject [the notion that] the Due Process
Clause of the Fourteenth Amendment constrains the
power of state governments to accuse a citizen of an
infamous crime.”).
So the Courts of Appeals have taken “a range of ap-
proaches” on § 1983 malicious prosecution claims. See Kato,
549 U.S. at 390 n.2 (citing Martin A. Schwartz, 1 Section
1983 Litigation § 3.18[C], pp. 3-605 to 3-629 (4th ed. 2004)).
Indeed, one reason the case law on this issue remains
uncrystallized among the Courts of Appeals is that we
infrequently need to decide whether plaintiffs can assert
a right not to be prosecuted without probable cause
under § 1983, because prosecutors (and probation
officers engaging in prosecutorial functions) usually
render the question moot by taking the simpler avenue
of claiming absolute immunity. See, e.g., Kalina v. Fletcher,
522 U.S. 118, 130 (1997) (finding absolute immunity
affordable to a prosecutor’s “determination that the
evidence was sufficiently strong to justify a proba-
ble-cause finding, her decision to file charges, and her
presentation of the information and the motion to the
court”); Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (“[I]n
initiating a prosecution, . . . the prosecutor is immune
from a civil suit for damages under § 1983.”); Smith v.
Power, 346 F.3d 740, 742 (7th Cir. 2003) (“[A]bsolute
immunity shields prosecutors even if they act . . . without
No. 09-3237 5
probable cause.”) (internal quotation omitted); Copus v.
City of Edgerton, 151 F.3d 646, 649-50 (7th Cir. 1998) (finding
that a probation officer enjoys absolute immunity for
engaging in prosecutorial functions).
But the defendants waived their absolute-immunity
defense by failing to raise it in the district court. See Scruggs
v. Moellering, 870 F.2d 376, 378 (7th Cir. 1989), rev’d on
other grounds, Antoine v. Byers & Anderson, Inc., 508 U.S.
429 (1993).
They also waived the argument that, because Tully’s
complaint showed probable cause on its face, it could not
plausibly assert prosecution without probable cause. (The
complaint recited the report of a gunshot, the sheriff
finding Tully and his companion in the area, that they
had the gun and the dead racoon, and that they re-
sponded yes when the sheriff asked whether they knew
it was illegal to shoot from the road. Cf. United States v.
Arvizu, 534 U.S. 266, 274 (2002) (describing probable
cause as less likely than by a preponderance of the evi-
dence)). Custer made this argument in the district court,
Custer’s Answer to Compl. at 6, ¶ 9 (“As to claims for
malicious prosecution, they are barred by . . . the existence
of probable cause.”), but not on appeal, and Barada
raised it on appeal, Appellee Barada’s Br. at 5 (“[T]he
facts he did allege shows there was probable cause for
the delinquency charges.”), but not in the district court.
Only if a party raises an argument both here and in
the district court may we use it as an alternate means to
affirm the district court’s granting of a motion to dismiss.
See, e.g., Bus. Sys. Eng’g, Inc. v. Int’l Bus. Machs. Corp., 547
6 No. 09-3237
F.3d 882, 889 n.3 (7th Cir. 2008) (“Arguments not raised
before the district court are waived on appeal.”); O’Neal v.
City of Chicago, 588 F.3d 406, 409 (7th Cir. 2009) (“[A]rgu-
ments not raised on appeal are waived.”).
Nor can the defendants avoid waiver of the probable-
cause affirmative defense by characterizing it as juris-
dictional under Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923), and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983). See Int’l Union Pac. of Operating Eng’rs,
Local 150, AFL-CIO v. Ward, 563 F.3d 276, 282 (7th Cir.
2009) (finding that arguments that the court lacks juris-
diction are not waivable). The Rooker-Feldman doctrine
denies federal jurisdiction to plaintiffs seeking to set
aside a state court’s judgment. But Tully does not seek to
set aside the state court’s judgment that probable cause
of his guilt existed. Instead, he presents an “independent
claim, albeit one that denies [the state court’s] legal con-
clusion,” and so another possible defense here was not a
lack of jurisdiction, but rather res judicata, GASH Assocs. v.
Vill. of Rosemont, 995 F.2d 726, 728 (7th Cir. 1993), an
argument that the defendants also waived by failing
to raise.
In sum, Tully has managed to overcome the affirmative
defenses of absolute immunity, the existence of probable
cause, and res judicata, because the defendants waived
them all. So we must reach the merits of the issue to
which the parties devote their arguments, which is
whether a plaintiff may assert a federal right not to be
summoned into court and prosecuted without probable
cause, under either the Fourth Amendment or the Four-
No. 09-3237 7
teenth Amendment’s Procedural Due Process Clause. The
answer is no, as we held in Bielanski v. County of Kane,
550 F.3d 632, 642 (7th Cir. 2008) (“[A] summons alone does
not equal a seizure for Fourth Amendment purposes. . . .
[A] false accusation is not a seizure.”), and Penn v.
Harris, 296 F.3d 573, 576 (7th Cir. 2002) (“[T]here is no ‘con-
stitutional right not to be prosecuted without probable
cause.’ ”) (quoting Newsome v. McCabe, 256 F.3d 747, 751
(7th Cir. 2001)).
Our holding should not be misconstrued to deny any
rights to parties whom prosecutors or other officials
falsely accuse by way of fabricating evidence, withholding
exculpatory evidence, tampering with witnesses, or
committing any other independent constitutional viola-
tion, none of which Tully alleged in his complaint. Nor
should it be misconstrued to deny any rights to parties
unlike Tully who have been wrongfully jailed or impris-
oned. These are different types of malicious prosecu-
tion claims. See Schwartz, 1 Section 1983 Litigation § 3.18[a],
p. 3-596.2 (2008 Supplement) (“It is not particularly
helpful to characterize the plaintiff’s claim as a § 1983
malicious prosecution claim. In every § 1983 constitutional
case, the plaintiff must identify the precise constitutional
right or rights relied upon.”). We hold only that a plain-
tiff cannot initiate a § 1983 claim asserting only that he
was summoned and prosecuted without probable cause.
Having found that this particular type of “malicious
prosecution” claim is untenable in federal courts—given
that Tully alleged no facts to imply malice, his claim might
be characterized more aptly as one for “negligent prosecu-
tion,” see Bus. Guides, Inc. v. Chromatic Commc’ns Enters.,
8 No. 09-3237
Inc., 498 U.S. 533, 567 (1991) (Kennedy, J., dissenting);
Campbell v. City of San Antonio, 43 F.3d 973, 981 (5th Cir.
1995); Jeffers v. Heavrin, 10 F.3d 380, 382 n.2 (6th Cir.
1993)—we need not decide whether Indiana provides
Tully an adequate post-deprivation remedy despite that
it also recognizes an affirmative immunity defense for
governmental actors acting within the scope of their
employment. See Newsome, 256 F.3d at 750 (“[T]he ex-
istence of a tort claim under state law knocks out any con-
stitutional theory of malicious prosecution.”); cf. Belcher
v. Norton, 497 F.3d 742, 754 (7th Cir. 2007) (finding
that common law immunity deprives plaintiffs “of any
meaningful avenue to seek redress” in state court for
deprivation of property rights).
We find that Tully was not seized within the meaning
of the Fourth Amendment merely by being summoned to
appear in court, and that he received procedural due
process under the Fourteenth Amendment when the
state court system vindicated him. To the extent any harm
to his reputation remains, his recourse is to expunge
the juvenile court’s records. See Indiana Code §§ 31-39-8-1
et seq.
III. CONCLUSION
The district court properly found that a § 1983 claim
cannot lie for a mere court summons and prosecution
without probable cause. Therefore, its grant of the defen-
dants’ motion to dismiss is A FFIRMED.
3-17-10