Gloria E. Swanson v. HORSESHOE HAMMOND, LLC, d/b/a HORSESHOE CASINO HAMMOND

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2011 *
Decided October 25, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1983
GLORIA E. SWANSON,
Plaintiff‐Appellant,
v.
HORSESHOE HAMMOND, LLC,
d/b/a HORSESHOE CASINO HAMMOND,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 08 C 7410
William J. Hibbler,
Judge.
O R D E R
Gloria Swanson was confronted by a security officer when she entered the
Horseshoe Casino in Hammond, Indiana, in July 2008. Eight years earlier, when the facility
was operating under different ownership as Empress Casino, Swanson had given
management a signed directive to keep her out because of a gambling addiction. Then in
August 2002, after the ownership change, Swanson had been caught trying to slip past
security. On that occasion she was told that Horseshoe Casino would continue enforcing the
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
*After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).

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No. 11‐1983 Page 2
self‐exclusion given to the former owner. But she went back again in November 2002, and
that time when she was caught Swanson acknowledged in writing her receipt of a Notice of
Criminal Trespass, which explicitly warns that if she enters Horseshoe Casino she is
“subject to arrest and prosecution for the offense of criminal trespass.” So when she came
back in 2008, the security officer called the police and told Swanson she was under arrest.
He then waited with her in a private office until she was taken to jail. Swanson was charged
with criminal trespass, see IND. CODE § 35‐43‐2‐2, but the criminal case eventually was
dismissed. She then filed suit against the casino under 42 U.S.C. § 1983 and state law
claiming that its security officer violated the Fourth Amendment and engaged in malicious
prosecution by detaining her and calling the Hammond police. The district court dismissed
the Fourth Amendment claim because the casino is not a state actor, and granted summary
judgment on the malicious prosecution claim after concluding that the Notice of Criminal
Trespass gave the casino and its security officer probable cause to initiate the criminal
trespass proceedings.
On appeal Swanson challenges both rulings, although the casino counters that her
case should be dismissed on the ground that her brief “almost completely violates” Federal
Rule of Appellate Procedure 28. That rule does require litigants to make more than
generalized assertions of error, Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001), but
Swanson’s brief, while difficult to follow, is sufficient to convey her areas of disagreement
with the district court. So we decline to dismiss the appeal, which does not mean that
Swanson’s contentions have merit.
Her principal argument is that the security officer’s deposition testimony that he
would not have physically restrained her if she had tried to leave the casino before police
arrived is conclusive evidence that there wasn’t probable cause to believe she was
trespassing. The absence of probable cause is one element of malicious prosecution, Wells v.
Bernitt, 936 N.E.2d 1242, 1252 (Ind. Ct. App. 2010); Conwell v. Beatty, 667 N.E.2d 768, 778
(Ind. Ct. App. 1996), so Swanson could not prevail on her state‐law claim unless, at a
minimum, she could establish that the security officer lacked probable cause to believe she
was committing criminal trespass. Probable cause to initiate a criminal proceeding exists if a
reasonably prudent and intelligent person could conclude after reasonable inquiry that the
suspect committed a crime. Glass v. Trump Ind., Inc., 802 N.E.2d 461, 467 (Ind. Ct. App.
2004); Conwell, 667 N.E.2d at 778. Whether that standard was met on the undisputed facts of
this case did not turn on the security officer’s decision to avoid escalating his encounter
with Swanson into a physical confrontation. Anyway, in the state criminal case a judge
concluded that there was probable cause to believe that Swanson had committed the offense
of criminal trespass. That judicial determination is prima facie evidence of probable cause in
Swanson’s suit for malicious prosecution. See Glass, 802 N.E.2d at 467; Johnson Cnty. Rural
Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 992 (Ind. Ct. App. 1985). No evidence

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No. 11‐1983 Page 3
suggests that this judicial determination was based on false testimony, fraud, or improper
means, so Swanson did not rebut the prima facie showing. See Glass, 802 N.E.2d at 467. And
since a determination of probable cause defeats Swanson’s claim, there is no point in
discussing her other contentions about the continuing validity of her self‐exclusion, or what
she believed its validity to be, or whether she was treated similarly to other casino patrons.
Swanson also challenges the dismissal of her § 1983 claim. She asserts that by
adopting policies allowing for the detention and arrest of self‐excluded gamblers,
Horseshoe Casino exercised a government power. But a private party acts under color of
state law if the state effectively directs or controls its actions or has delegated a public
function to the private entity. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 823 (7th
Cir. 2009); Johnson v. LaRabida Children’s Hosp., 372 F.3d 894, 896 (7th Cir. 2004). Swanson’s
contention is wrong because the power to detain and arrest is not exclusively reserved to
the government and by itself does not constitute state action. See Wade v. Byles, 83 F.3d 902,
906 (7th Cir. 1996). And neither does regulation by the state make Horseshoe Casino a state
actor. See Gayman v. Principal Fin. Servs., Inc., 311 F.3d 851, 853 (7th Cir. 2002). Not that the
casino’s status even matters because the existence of probable cause to believe that Swanson
was committing a criminal trespass defeats not only her claim for malicious prosecution but
also any Fourth Amendment claim. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001);
Williams v. Jaglowski, 269 F.3d 778, 784 (7th Cir. 2001).
We have reviewed Swanson’s other contentions, but none has merit. The judgment
of the district court is AFFIRMED.

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