Boy can't sue for lack of probable cause

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The 7th Circuit Court of Appeals declined to decide whether Indiana provides a plaintiff an adequate post-deprivation remedy despite the state's recognition of an affirmative immunity defense for government workers acting in the scope of their employment.

In Michael Tully v. Rush County Prosecutor Paul Barada, et al., No. 09-3237, Michael Tully sued prosecutor Paul Barada and probation officer Catherine Custer under 42 U.S.C. Section 1983, claiming they violated his Fourth and 14th Amendment rights by summoning him to court and initiating juvenile proceedings without probable cause. A deputy sheriff stopped the car Tully and a friend were in to investigate shots fired in the area. In the car he found a spotlight, rifle, and dead raccoon. The boys admitted they knew it was wrong to shoot from a roadway.

Tully was adjudicated as a delinquent child, but the Indiana Court of Appeals reversed due to insufficient evidence. Tully then filed his federal claims. The District Court dismissed, ruling that a court summons is not a "seizure" under the Fourth Amendment and there isn't a constitutional right not to be prosecuted without probable cause.

The United States Supreme Court hasn't recognized nor foreclosed the possibility of plausibly asserting a right not to be prosecuted without probable cause under Section 1983. One reason why this issue remains "uncrystallized" among Courts of Appeals is because prosecutors can render the question moot by claiming absolute immunity, wrote Judge William Bauer. But Barada and Custer failed to raise that defense in the District Court. In fact, Tully overcame the affirmative defenses of absolute immunity, the existence of probable cause, and res judicata because Barada and Custer waived all of them.

"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 Fourteenth Amendment's Procedural Due Process Clause," wrote the judge.

But the answer is no, because a plaintiff can't initiate a Section 1983 claim asserting only that he was summoned and prosecuted without probable cause. Judge Bauer cautioned that the holding shouldn't be misconstrued to deny rights to parties in which prosecutors or other officials falsely accuse, tamper with evidence, or commit other independent constitutional violations that Tully didn't allege in his complaint.

Tully's claim is more like one for "negligent prosecution, but the 7th Circuit elected not to decide whether he has an adequate post-deprivation remedy in Indiana, where it recognizes an affirmative immunity defense.

"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," wrote Judge Bauer.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.