546 F. App'x 576
7th Cir.2013Background
- Abu-Shawish, a Jordanian permanent resident, filed FTCA and Bivens claims after three prosecutions for fraud related to his festival.
- The prosecutions stemmed from a 2002 federal investigation into visa fraud tied to a embassy employee in Jordan.
- He was arrested in 2003 and charged with federal-program, mortgage, and later mail fraud; visa-fraud charges were dismissed.
- The mortgage-fraud conviction was upheld; the federal-program fraud conviction was vacated for improper charging, with mail fraud later resulting in acquittal.
- After exhausting administrative remedies, he filed a federal complaint asserting 10 FTCA tort claims (malicious prosecution, abuse of process) and 7 Bivens claims against 21 federal employees and 3 contractors.
- The district court dismissed untimely abuse-of-process claims, service issues for Bivens claims, and most remaining claims for failure to state a claim; the court denied leave to amend; the court dismissed the United States claims for lack of probable cause allegations; and the district court denied reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mal-prosecution claim against the United States is viable | Abu-Shawish argues lack of probable cause shows malicious prosecution | United States argues evidence supported probable cause | No, lack of plausible claim; probable cause supported by record |
| Whether continuing violations toll the limitations period | Equitable tolling applies for continuing violations | Each act starts a new clock; no tolling | No, each unlawful act starts a new clock; first two trials timely or untimely per timeline |
| Whether service defects bar Bivens claims or amendments | Service defects should be excused with liberal amendment | Service improper; no valid service; amendments futile | Service defective; leave to amend denied as futile |
| Whether district court properly denied amendment reinstating claims | Amendment would cure pleading deficiencies | Proposed amendments fail to tie defendants to conduct | Amendment properly denied; claims inadequately pleadable |
| Whether the United States claims lacked probable cause allegations | Allegations show investigators relied on misleading facts | Record supports probable cause; independent evidence used | Supported; absence of plausible malicious intent shown |
Key Cases Cited
- Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797 (7th Cir. 2008) (continuing violations and tolling principles; continuing injury does not toll)
- Krieg v. Dayton-Hudson Corp., 311 N.W.2d 641 (Wis. 1981) (conviction as conclusive evidence of probable cause; not actionable without fabrication evidence)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading standards; complaints must be plausible)
- Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009) (liberal amendment standard; notice requirements; plausibility)
- Engel v. Buchan, 710 F.3d 698 (7th Cir. 2013) (Bivens claims require specific defendants and conduct; no plausible claim)
- Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013) (liberal leave to amend; futile amendments denied)
- Engel v. Buchan, 710 F.3d 698 (7th Cir. 2013) (Bivens claims require specificity and notice)
- Krieg v. Dayton-Hudson Corp., 311 N.W.2d 641 (Wis. 1981) (probable cause evidence constraints)