Kelli Jack-Kelly v. City of Anderson, Indiana

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 12, 2023
Decided July 31, 2023
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 22-3299
KELLI JACK-KELLY,
Plaintiff-Appellant,
v.
CITY OF ANDERSON, INDIANA, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:20-cv-02998-DLP-JRS
Doris L. Pryor,
Magistrate Judge.
O R D E R
Kelli Jack-Kelly was charged with 12 felonies in Indiana state court, and after the
charges were dismissed, she sued the City of Anderson and the detective who had
investigated her alleging claims for malicious prosecution based on fabricated evidence.
The district court dismissed the suit as untimely because Jack-Kelly waited over two
years after the favorable termination of the criminal charges to sue. On appeal Jack-Kelly
argues that her claims did not accrue—or alternatively, that the limitations period was
equitably tolled—until she learned that the detective was responsible for fabricating the
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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evidence. Because Jack-Kelly raises these arguments for the first time on appeal, we
affirm.
I. Background
This case was resolved on a motion to dismiss, so we take the following factual
account from Jack-Kelly’s amended complaint, accepting the allegations as true for
present purposes. Towne v. Donnelly, 44 F.4th 666, 668 (7th Cir. 2022). Jack-Kelly is an
independent investigative journalist and has a long history investigating the Anderson
Police Department and Detective Mitchell Carroll. In 2006 Jack-Kelly contacted Detective
Carroll to address a tip that he was concealing criminal activity. During that
conversation, Detective Carroll threatened to damage Jack-Kelly’s career. In 2012
Detective Carroll “produced a police report in which he indicated” that Chet Babb, the
brother-in-law of Jack-Kelly’s husband, had said that Jack-Kelly committed financial
crimes involving fraud and deception against her mother-in-law. In 2014 Detective
Carroll executed a probable-cause affidavit repeating these allegations, and an arrest
warrant was issued for Jack-Kelly. At this stage of proceedings, we must assume, as
Jack-Kelly alleges, that reports of any financial misdeeds were false. But she was arrested
at her home and charged with 12 felony counts. See State v. Jack-Kelly, No. 48C05-1404-
FD-628 (Madison Cir. Ct., Ind.); State v. Jack-Kelly, No. 18A-CR-00647 (Ind. Ct. App.). She
was detained for three nights before posting bail. The charges were later dismissed.
In April 2016 Jack-Kelly sued Babb (among others) in state court for his role in her
arrest and prosecution. On April 17, 2019, Jack-Kelly deposed Babb; he denied providing
false information and identified Detective Carroll as the source of the allegations about
Jack-Kelly’s supposed wrongdoing.
Jack-Kelly filed this federal action on November 16, 2020, against various state
and local entities alleging malicious prosecution based on false information. In an
amended complaint, Jack-Kelly alleged that Detective Carroll violated her rights by
fabricating evidence and causing numerous harms, including damage to her reputation,
the ordeal of a criminal prosecution, and her arrest and detention. She also brought
state-law claims against Detective Carroll, the City of Anderson, and the Anderson
Police Department.
The defendants moved to dismiss the amended complaint, arguing in part that
the claims were untimely. They asserted that the two-year statute of limitations began to
run when the criminal proceedings terminated in Jack-Kelly’s favor. According to the

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defendants, the criminal case was dismissed on February 23, 2018, making this suit—
filed on November 16, 2020—about nine months late. The defendants also argued
against any possible suggestion that the limitations period should be equitably tolled
because Jack-Kelly did not learn of Detective Carroll’s behavior until April 17, 2019,
through Babb’s deposition.
In response Jack-Kelly agreed “in general” that a claim like hers accrues when the
criminal proceedings terminate in a plaintiff’s favor. But, she maintained, her criminal
case did not terminate until sometime after November 19, 2018, though she could not
identify an exact date. She submitted unverified exhibits purporting to show that the
Indiana Court of Appeals had granted a motion to reinstate the charges on
November 14, 2018, and that the circuit court had reinstated them on November 19,
2018. Jack-Kelly did not address the defendants’ preemptive argument about equitable
tolling and stated only that she had “diligently pursued her case … once she learned that
[Detective Carroll] was the source of the fabricated evidence.” The defendants
responded to Jack-Kelly’s argument about the accrual date by submitting the certified
record from the Indiana Court of Appeals showing that the State’s appeal was dismissed
on July 12, 2018, and that there was no action in the case after that.
A magistrate judge presiding with the parties’ consent, 28 U.S.C. § 636(c), granted
the motion and dismissed the case based on the statute of limitations. Because the
certified state-court records were publicly available and presumed reliable, the judge
took judicial notice of them. She explained that the court records showed that the case
terminated when the Indiana Court of Appeals dismissed the appeal with prejudice on
July 11, 2018. (The defendants have used July 12, the date the decision was docketed.)
And there was nothing to support Jack-Kelly’s allegation of court action in November
2018: Official sources contain no record of a motion to reinstate charges, nor any order
reinstating them. Finally, Jack-Kelly failed to develop an argument about equitable
tolling, so the judge deemed that argument waived. Because the claims accrued in July
2018 when the criminal proceedings ended, Jack-Kelly’s suit was untimely by several
months.
II. Discussion
On appeal Jack-Kelly argues that (1) her claim is timely because the statute of
limitations did not begin to run or was tolled until she discovered information about
Detective Carroll’s fabrication on April 17, 2019; and (2) the district court improperly
resolved a factual dispute about when the criminal case ended. The two-year limitations

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period for her claim under 42 U.S.C. § 1983 is borrowed from Indiana law. Logan v.
Wilkins, 644 F.3d 577, 581 (7th Cir. 2011); see IND. C ODE § 34-11-2-4; see also Wallace v. Kato,
549 U.S. 384, 387 (2007). Federal law determines the date of accrual. Logan, 644 F.3d at
581; see also Wallace, 549 U.S. at 388.
Jack-Kelly’s argument about a later accrual date is new on appeal. That’s a
waiver, as the defendants argue. Failure to present an argument in the district court
waives that argument on appeal. Wheeler v. Hronopoulos, 891 F.3d 1072, 1073 (7th Cir.
2018). In her response to the motion to dismiss, Jack-Kelly never identified April 17,
2019, as the date when the statute of limitations began to run. Rather, she focused her
argument on the supposed revival of the criminal case in November 2018.
Jack-Kelly responds that she is merely embracing certain cases that the defendants
and the magistrate judge cited for the proposition that her claims accrued when she
knew about the violation of her rights. She relies on Sidney Hillman Health Center v.
Abbott Laboratories, Inc., 782 F.3d 922, 927 (7th Cir. 2015), to argue that she may challenge
the legal theory on which the district court based its decision. In Sidney Hillman Health
Center, a cursory argument identifying unresolved factual questions about timeliness
preserved arguments on appeal about that issue. Id. But here, Jack-Kelly explicitly
agreed that her claims for malicious prosecution accrued when the criminal proceedings
terminated in her favor and then argued only about the date of termination. Jack-Kelly’s
legal theory on appeal is distinct from what she presented to the district court, so waiver
applies. See Wheeler, 891 F.3d at 1073.
Jack-Kelly also argues that accrual of her claim was delayed, or the statute of
limitations was equitably tolled, under the Indiana doctrines of continuing wrong and
fraudulent concealment. See Wallace, 549 U.S. at 394 (“We have generally referred to state
law for tolling rules … .”). She waived these arguments too, by failing to raise either of
them in response to the motion to dismiss. Jack-Kelly repeats her claim that she may
challenge the legal theory on which the magistrate judge based her decision, but the
judge specifically did not address equitable tolling, deeming the argument undeveloped.
Finally, Jack-Kelly alternatively argues that the magistrate judge improperly
weighed the evidence when she took judicial notice of the certified Indiana court records
that the defendants submitted. But the judge did not weigh evidence; she took judicial
notice of facts that “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” F ED. R. EVID. 201(b). Jack-Kelly’s own

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exhibits were uncertified and irreconcilable with the public records of two courts. There
was no competent evidence for the court to “weigh” in Jack-Kelly’s favor.
AFFIRMED

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