Opinion
22-1640
12-05-2024
KATHY L. LYNCH, Plaintiff-Appellant, v. UNITED STATES OF AMERICA and SCOTT NOWLAND, Defendants-Appellees.
NONPRECEDENTIAL DISPOSITION
Argued September 12, 2023
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 17-CV-43 John E. Martin, Magistrate Judge.
Before FRANK H. EASTERBROOK, Circuit Judge DAVID F. HAMILTON, Circuit Judge DORIS L. PRYOR, Circuit Judge
ORDER
After Kathy Lynch, an Indiana nurse, was acquitted of illegally prescribing controlled substances, she sued the United States and the Drug Enforcement Administration diversion investigator who signed the probable cause affidavit in support of her arrest warrant. She brought false arrest and malicious prosecution claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80. After finding probable cause existed at the time the arrest warrant was signed, the district court granted summary judgment in favor of the defendants. Because probable cause is an absolute bar to false arrest and malicious prosecution claims, we affirm.
I. Background
Between 2001 and 2015, Indiana law generally permitted only certain licensed physicians to prescribe Schedule III and Schedule IV controlled substances for weight loss purposes. IND. CODE § 35-48-3-11 (2001) (amended 2015). But Indiana law had an exception to the physician requirement for Advanced Practice Nurses ("APN"). Under Indiana's nursing regulations, APNs could prescribe controlled substances for weight loss if they, among other things: (1) possessed a valid Indiana Controlled Substances number; (2) possessed a valid DEA registration number; and (3) submitted proof of the APN's collaboration with a licensed medical practitioner to the Indiana State Board of Nursing. 848 IND. ADMIN. CODE §§ 5-1-1(a)(7), (d). Using another person's DEA registration number to distribute controlled substances was and still is a felony in Indiana. IND. CODE § 35-48-4-14(b)(2)(C) (2023).
Lynch, an APN in Indiana, owned and operated Kouts Family Health Care, a family medical practice, under the guidance of two fully licensed physicians, Dr. Lauren Harting and Dr. Patrick Sheets. Lynch obtained an Indiana Controlled Substances number on August 12, 2014, but she never received a DEA registration number. She entered a collaboration agreement with Dr. Harting, which was effective from August 15, 2009, until March 4, 2014. Lynch also signed a collaboration agreement with Dr. Sheets on February 13, 2014, but the Indiana Professional Licensing Agency did not receive it until August 4, 2014. Lynch nevertheless continued to write prescriptions without a valid collaboration agreement in place for the intervening six months.
Between 2012 and 2014, Lynch wrote approximately 1,500 prescriptions for phentermine and phendimetrazine-Schedule III and IV controlled substances used for weight loss-using Dr. Harting's and Dr. Sheets's DEA numbers. Patient charts containing prescriptions for those drugs show that the physicians reviewed and signed the charts as required by the collaboration agreements.
A state investigation into Lynch's prescriptive practices began in 2013 when a pharmacist reported that a nurse at Kouts Family Health Care attempted to fill a prescription for phentermine. Officers informed Lynch that it was a violation of Indiana law for nurses to prescribe weight loss medications, but Lynch claimed the law did not apply to her because her supervising physicians knew and approved of the practice. But when DEA Diversion Investigator Scott Nowland joined the state-led investigation, Dr. Harting and Dr. Sheets told Investigator Nowland they did not authorize Lynch to use their DEA numbers to write prescriptions for patients of Kouts Family Healthcare. Dr. Harting terminated her collaboration agreement with Lynch after learning Lynch had been using her DEA number to write these prescriptions.
As part of the investigation, Investigator Nowland consulted Michael Minglin, General Counsel to the Indiana Professional Licensing Agency, and Elizabeth Kiefner Crawford, the Director of the Indiana State Board of Nursing. Both Minglin and Kiefner Crawford stated that only Indiana physicians, not APNs, were permitted to prescribe Schedule III and IV controlled substances for weight loss under Indiana law. Accordingly, Investigator Nowland signed a probable cause affidavit alleging that Lynch unlawfully prescribed and distributed controlled substances, and a warrant was issued for her arrest. Lynch's case eventually went to trial, and she was acquitted of all charges.
After Lynch was acquitted, the Indiana Nursing Board initially revoked her nursing license. But after a state court reversed the Board's decision, her license was reinstated.
Lynch then sued Investigator Nowland for false arrest under the Fourth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). She also sued the United States under state-law false arrest and malicious prosecution theories pursuant to the FTCA. The parties voluntarily consented to proceeding before a United States Magistrate Judge under 28 U.S.C. § 636(c). Because the judge found probable cause supported Lynch's arrest, the district court granted the defendants' motion for summary judgment.
Lynch now appeals. She maintains that the arrest warrant was not supported by probable cause because she was later acquitted of the charges and her nursing license reinstated.
II. Analysis
We review the entry of summary judgment de novo, taking a fresh look at the facts and construing them and all reasonable inferences in the light most favorable to Lynch as the nonmoving party. See Jump v. Village of Shorewood, 42 F.4th 782, 788 (7th Cir. 2022). We will affirm the entry of summary judgment if the movant shows no genuine dispute of material fact and establishes its entitlement to judgment as a matter of law. FED. R. CIV. P. 56(a).
We pause at the outset to note that Lynch is not clear in her briefs about whether she intends to pursue on appeal her Bivens claim against Investigator Nowland in addition to her FTCA claims against the United States. Lynch's briefs never mention Investigator Nowland by name, and her attorney admitted at oral argument that the appellee is the United States. The United States believes, on the other hand, that Investigator Nowland remains a party to the appeal. We need not resolve this issue, however, because we agree with the district court that the presence of probable cause is an absolute bar to Lynch's Bivens claim against Investigator Nowland and her FTCA claims against the United States.
In her Bivens claim, Lynch alleges that Investigator Nowland violated her Fourth Amendment rights. Under Bivens, plaintiffs may sue, in very limited circumstances, federal agents who are alleged to have committed constitutional violations while acting under color of their authority. Bivens, 403 U.S. at 391-92. Lynch alleges that she was subjected to a false arrest in violation of the Fourth Amendment. To survive summary judgment, Lynch must show a genuine dispute of material fact exists around whether law enforcement had probable cause to arrest her.
Investigator Nowland was a "Diversion Investigator" for the DEA. The parties do not dispute that he was a "federal agent acting under color of his authority" for purposes of Bivens claims, and because we resolve Lynch's Bivens claim on the presence of probable cause, we need not decide this issue. See United States v. Karmo, 109 F.4th 991, 995 (7th Cir. 2024) (resolving allegations of a Fourth Amendment violation on the presence of probable cause while assuming without deciding other elements of the allegations).
At oral argument, we asked the parties whether Lynch's Fourth Amendment claims may even be brought under Bivens after Egbert v. Boule, 596 U.S. 482 (2022). See Sargeant v. Barfield, 87 F.4th 358, 362-64 (7th Cir. 2023) (recounting history of Bivens claims at the Supreme Court and discussing the test for when a claim under Bivens may be brought). This question was not addressed in the district court or in briefing before us. When posed the question, counsel for the government stated that the government opted not to pursue that theory and instead opted only to pursue the probable cause theory. (Oral Argument at 9:3010:19). Therefore, we neither address nor express any opinion on the Bivens question. See United States v. Sineneng-Smith, 590 U.S. 371, 375-76 (2020) (explaining that parties "frame the issues for decision," while courts play "the role of neutral arbiter of matters the parties present."); Sargeant, 87 F.4th at 364 ("A silent assumption in an opinion cannot generate binding precedent.").
Lynch's other claims operate similarly. In addition to her Bivens claim, Lynch brings an FTCA action against the United States for false arrest and malicious prosecution under Indiana state law. Under the FTCA, plaintiffs may sue the United States for torts committed by federal officials if the same acts would make a private person liable in the state where the tort occurred. See 28 U.S.C. § 1346(b)(1); Reynolds v. United States, 549 F.3d 1108, 1112 (7th Cir. 2008). False arrest and malicious prosecution are intentional torts recognized by Indiana. See Ali v. Alliance Home Health Care, LLC, 53 N.E.3d 420, 431-33 (Ind.Ct.App. 2016); Garrett v. City of Bloomington, 478 N.E.2d 89, 92 (Ind.Ct.App. 1985). Indiana false arrest plaintiffs bear the burden to show the arresting officer did not have a good faith and reasonable belief that probable cause existed at the time of arrest. Garrett, 478 N.E.2d at 94. And Indiana malicious prosecution plaintiffs must show the officer maliciously and without probable cause triggered a prosecution that ended in the plaintiff's favor. Reynolds, 549 F.3d at 1114-15.
The FTCA operates as a broad, yet qualified, waiver of sovereign immunity by the United States. Bunch v. United States, 880 F.3d 938, 941 (7th Cir. 2018). One qualification is that the United States still enjoys sovereign immunity in intentional torts cases, "unless [the allegations] stem from the conduct of 'investigative or law enforcement officers.'" Id. (quoting 28 U.S.C. § 2680(h)). The FTCA further defines "investigative or law enforcement officer" as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." Id. But like the "federal agent" requirement discussed above for Lynch's Bivens claims, the parties here do not dispute whether Investigator Nowland qualifies as such an officer. And because we determine this case turns on the presence of probable cause to arrest Lynch, we need not decide the issue.
Like her Bivens Fourth Amendment false arrest claims, then, Lynch's FTCA claims of Indiana false arrest and malicious prosecution require her to show a genuine dispute of fact as to whether her arrest was supported by probable cause. Garrett, 478 N.E.2d at 93. But if the record as a whole shows the presence of probable cause when Lynch was arrested, her Bivens and FTCA claims will fail, and our inquiry will go no further. Garrett, 478 N.E.2d at 93. We conclude that each of Lynch's claims fails because her arrest was supported by probable cause.
Probable cause exists if a reasonable officer in similar circumstances would believe that the accused had committed a crime given the facts and circumstances known to the officer when either making the arrest or seeking an arrest warrant. Garrett, 478 N.E.2d at 93; Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003); Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 622 (7th Cir. 2010). Probable cause is not evaluated in hindsight but "on the facts as they appeared to a reasonable person in the defendant's position, even if that reasonable belief turned out to be incorrect." Stokes, 599 F.3d at 622 . Although the officer must consider the elements of the applicable criminal statute in making the probable cause determination, he is under no duty to find conclusive proof that the crime occurred. Id.; see also Dollard v. Whisenand, 946 F.3d 342, 355 (7th Cir. 2019) (evidence supporting probable cause need not be so conclusive as to support a conviction).
What's more, the complaint of a single witness can be sufficient to establish probable cause unless the complaint would lead a reasonable officer to question its truthfulness. Beauchamp, 320 F.3d at 744. Under those circumstances, the officer has a duty to conduct additional investigation. Id. But when an officer learns "sufficient[ly] trustworthy" information, he is entitled to rely on what he knows in pursuing the arrest without further scrutiny. Id.
The above-recited undisputed facts establish that Investigator Nowland was told: (1) Lynch was an APN who did not have a DEA registration number; (2) the law of Indiana at the time prohibited APNs from prescribing Schedule III and IV controlled substances for weight loss; and (3) Lynch was prescribing Schedule III and IV controlled substances for weight loss using Drs. Harting's and Sheets's DEA numbers without authorization. Lynch nevertheless argues that the district court erred in granting summary judgment because it failed to consider her acquittal and the eventual reinstatement of her nursing license in its decision. But those events are irrelevant to whether Investigator Nowland reasonably believed Lynch had committed a crime when he signed the affidavit in support of his request for a warrant. Garrett, 478 N.E.2d at 94. The district court could not have considered these events in hindsight; instead, the court properly confined its consideration to the facts available to Investigator Nowland when he signed the probable cause affidavit, and those facts remain uncontested by Lynch.
There is similarly no evidence to suggest that either Dr. Harting or Dr. Sheets failed to provide Investigator Nowland with "sufficiently trustworthy" information regarding their supervision of Lynch. To be sure, Lynch did contest the doctors' claims that the doctors did not authorize her to use their DEA numbers and did not know she was doing so to prescribe weight loss medications illegally. But Investigator Nowland was under no duty to investigate further because he had no reason to doubt what the doctors told him other than Lynch's own word. See Beauchamp, 320 F.3d at 744. And although Lynch submitted evidence that Dr. Harting reviewed and signed off on charts for patients for whom weight loss medications were prescribed, that evidence was not available to Investigator Nowland when he signed the probable cause affidavit. That evidence, therefore, could not have been used to doubt Dr. Harting's statements made during the investigation.
Finally, Lynch points to no evidence-and we see none in the record-to suggest that Investigator Nowland knowingly, intentionally, or with reckless disregard for the truth made false statements when signing the probable cause affidavit. See Archer, 870 F.3d at 615. A reasonable officer in his position could have believed the uncontested evidence that Lynch was prescribing weight loss medications in violation of Indiana law.
There is no genuine dispute that Investigator Nowland had a reasonable, good faith belief that probable cause existed to arrest Lynch for prescribing controlled substances unlawfully. Because that is an absolute bar for each of Lynch's claims, we conclude the district court properly granted summary judgment to the defendants.
III. Conclusion
For these reasons, we AFFIRM the judgment of the district court.