Kathy L. Lynch v. UNITED STATES OF AMERICA and SCOTT NOWLAND

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 12, 2023
Decided December 5, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1640
KATHY L. LYNCH,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA and
SCOTT NOWLAND,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 17-CV-43
John E. Martin,
Magistrate Judge.
O R D E R
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
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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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. C ODE § 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. A DMIN. C ODE §§ 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. C ODE § 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

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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. A NALYSIS
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. C IV. 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

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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.1 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. 2 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.
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.3 See 28 U.S.C. § 1346(b)(1); Reynolds v.
1 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).
2 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 9:30–
10:19). 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.”).
3 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

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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.
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
‘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.

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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

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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.

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