Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as

precedent or cited before any court except for the

purpose of establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES MARION

Robert M. Oakley COUNTY INDIANA, CITY OF

Daniel K. Dilley INDIANAPOLIS, MATTHEW PIETRZAK,

Dilley & Oakley, P.C. STEPHANIE BUTTZ, ERIC LEE, DIANNA

Carmel, Indiana JOHNSON

Amanda J. Dinges

Chief of Litigation Counsel

Office of Corporation Counsel

Indianapolis, Indiana

Aug 14 2015, 8:22 am ATTORNEYS FOR APPELLEES STATE OF

INDIANA AND THE INDIANA

DEPARTMENT OF CORRECTION

Gregory F. Zoeller

Attorney General of Indiana

Kristin Garn

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Randy L. Thornton,

Appellant, August 14, 2015

Court of Appeals Case No.

v. 49A02-1409-PL-662

Appeal from the Marion Superior

State of Indiana, Indiana Court

Department of Corrections, Cause No. 49D11-1402-PL-003833

Marion County, Indiana,

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Matthew Pietrzak, Stephanie

The Honorable John F. Hanley,

Buttz, Eric Lee, Dianna Johnson, Judge

Appellees

Friedlander, Judge.

[1] Randy L. Thornton appeals the dismissal of his complaint alleging state tort

claims as well as claims under 42 U.S.C. § 1983 against Marion County, the

City of Indianapolis, Matthew Pietrazak, Stephanie Buttz, Eric Lee, and

Dianna Johnson.1 Thornton presents the following restated issue for review:

Did the trial court err in dismissing his claims?

[2] We affirm.

[3] The following are the facts as alleged in the complaint and its accompanying

documents. On or about August 3, 2006, in Cause No. 49G20-0605-FC-081612

(Cause 81612), Thornton pleaded guilty to possession of cocaine and was

sentenced to six years of which two years were to be executed through

community corrections and four years were suspended. Thornton was ordered

to serve two years of probation following the executed portion of his sentence.

[4] Thornton began serving his period of probation on August 6, 2007, with a

scheduled end date of August 6, 2009. In an unrelated cause, Thornton was

1

These individuals were all employees of the Marion County Probation Department at the times relevant

herein.

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sentenced to an executed term of three years on February 7, 2008. As a result,

the Marion County Probation Department filed a memorandum with the court

noting the subsequent conviction and sentence and indicating that Thornton’s

probation in Cause 81612 would resume after the executed portion of the new

sentence was completed. The trial court took no action on the memorandum

and, specifically, did not enter an order tolling probation.

[5] On August 20, 2010, the Marion County Probation Department filed a notice

of probation violation in Cause 81612 following the filing of new criminal

charges. At the probation violation hearing on February 10, 2011, Thornton

argued that his probation in Cause 81612 ended on August 6, 2009, well before

the alleged violation. The court, however, found that Thornton had violated

probation and ordered him to serve four years executed in the Department of

Correction (the DOC).

[6] While incarcerated, Thornton made numerous attempts to correct what he

believed to be an erroneous revocation and sentence. On May 10, 2012, a

hearing was held on Thornton’s motion to reconsider. The court set aside the

revocation finding it “unclear whether the defendant’s probation was tolled

during the serving of an unrelated executed sentence.” Appellant’s Appendix at

15. The court noted further that it could find no case law on the matter and,

accordingly, it would construe the law against the State and in Thornton’s

favor. Thornton was ordered released from incarceration on May 10, 2012.

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[7] Thornton filed a notice of tort claim with the Indiana Attorney General on

December 14, 2012. Thereafter, on January 30, 2014, he filed the instant civil

action against Marion County, the City of Indianapolis, Pietrazak, Buttz, Lee,

and Johnson, as well as the State and the DOC. The complaint was based on

Thornton’s alleged wrongful incarceration lasting approximately fifteen

months. It included tort claims for wrongful arrest/detention/imprisonment,

malicious prosecution, and intentional infliction of emotional distress, as well

as a § 1983 claim for unconstitutional deprivation of liberty and due process.2

[8] On April 3, 2014, the State and the DOC (referred to collectively as the State

Defendants) filed a motion to dismiss. Following Thornton’s response, the trial

court dismissed the claims against the State Defendants with prejudice on June

17, 2014. Thornton has not provided us with any of the filings or the order

related to the State Defendants’ motion to dismiss and does not challenge this

ruling on appeal. Accordingly, we will not address the propriety of their

dismissal.

[9] After the claims against the State Defendants were dismissed, the Marion

County, the City of Indianapolis, Matthew Pietrazak, Stephanie Buttz, Eric

2

§ 1983 provides a civil remedy against any person who, under color of state law, subjects a citizen of the

United States to the deprivation of any rights, privileges, or immunities secured by the federal constitution or

federal laws. See King ex rel. Jacob v. Secretary, 774 N.E.2d 1008 (Ind. Ct. App. 2002). “In order to recover

damages under § 1983, a plaintiff must show that (1) he held a constitutionally-protected right; (2) he was

deprived of this right; (3) the defendants acted with reckless indifference to cause this deprivation; and (4) the

defendants acted under color of state law.” Culver-Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231,

1232-33 (Ind. 1994) (emphasis supplied). See also Rowe v. Lemmon, 976 N.E.2d 129, 134 (Ind. Ct. App. 2012)

(to establish a government employee’s liability under § 1983, a plaintiff must prove, among other things, that

“the defendant intentionally caused the deprivation”), trans. denied.

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Lee, and Dianna Johnson (collectively referred to as the Local Defendants)

filed a motion to dismiss, along with a supporting memorandum. The Local

Defendants’ asserted grounds were failure to file a timely notice of tort claim,

failure to file the complaint within the two-year statute of limitations, and

immunity from liability for malicious prosecution. Thornton filed a timely

response, asserting that his claims did not accrue until his probation revocation

was vacated. The trial court summarily granted the Local Defendants’ motion

to dismiss on August 21, 2014. Thornton appeals this ruling.

[10] A motion to dismiss under T.R. 12(B)(6) for failure to state a claim upon which

relief can be granted tests the legal sufficiency of a claim, not the facts

supporting it. McPeek v. McCardle, 888 N.E.2d 171 (Ind. 2008). We review a

trial court’s dismissal pursuant this rule de novo. Id.

Viewing the complaint in the light most favorable to the non-moving

party, we must determine whether the complaint states any facts on

which the trial court could have granted relief. If a complaint states a

set of facts that, even if true, would not support the relief requested, we

will affirm the dismissal. And we may affirm the grant of a motion to

dismiss if it is sustainable on any theory.

[11] Id. at 173-74 (citations omitted). Further, a claimant’s failure to provide the

notices required by the Indiana Tort Claims Act entitles the State or political

subdivision3 to a dismissal. See Ind. Dep’t of Correction v. Hulen, 582 N.E.2d 380

(Ind. 1991).

3

Ind. Code Ann. § 34-6-2-110 (West, Westlaw current with all 2015 First Regular Session of the 119th

General Assembly legislation) defines “political subdivision” to include a county and city.

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[12] We observe initially that Thornton does not directly challenge the dismissal of

Marion County and the City of Indianapolis. Indeed, he appears to concede

that these parties are not subject to his § 1983 claim and admits (as he did

below) that he did not file a notice of tort claim with respect to these parties as

required by Ind. Code Ann. § 34-13-3-8 (West, Westlaw current with all 2015

First Regular Session of the 119th General Assembly legislation). Accordingly,

we restrict our review to the propriety of the trial court’s dismissal of the

individually named probation officers, Matthew Pietrazak, Stephanie Buttz,

Eric Lee, and Dianna Johnson.

[13] The parties focus much of their argument on whether Thornton’s claims

accrued on February 10, 2011—the date he was imprisoned for the probation

violation—or May 10, 2012—the date the probation revocation was vacated

and he was released from prison. The accrual date is significant insofar as it

relates to the possibility that the statute of limitations defeats Thornton’s claims.

In fact, the parties devote considerable attention to this subject. We need not

address the statute-of-limitations argument, however, because Thornton has

wholly failed to state a claim against these individuals even assuming his claims

were timely filed.

[14] Thornton alleges no tortious conduct, malicious motive, or illegal acts by these

defendants, who each acted within the scope of their employment as probation

officers.4 The complaint alleges only that Lee presented the court with a

4

I.C. § 34-13-3-3 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly

legislation) provides: “an employee acting within the scope of the employee’s employment is not liable if a

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mundane memorandum related to Thornton’s probation, Johnson signed this

memorandum in her supervisory capacity, Pietrazak filed a notice of probation

violation, and Buttz reviewed and signed the notice. Following a probation

hearing, at which Thornton presented his argument that he was no longer on

probation, the court revoked Thornton’s probation and sent him to prison.

[15] The fact that Thornton’s probation revocation was later vacated does not lead

to the conclusion that the named probation officers committed a tort or

intentionally or recklessly deprived him of his constitutional rights. As a matter

of law, the complaint does not allege any facts with respect to the named

probation officers upon which the trial court could have granted relief.

[16] Judgment affirmed.

Kirsch, J., and Crone, J., concur.

loss results from…[t]he initiation of a judicial…proceeding.” Further, I.C. § 34-13-3-5(c) (West, Westlaw

current with all 2015 First Regular Session of the 119th General Assembly legislation) provides with respect to

suits against governmental employees:

A lawsuit filed against an employee personally must allege that an act or omission of the

employee that causes a loss is:

(1) criminal;

(2) clearly outside the scope of the employee’s employment;

(3) malicious;

(4) willful and wanton; or

(5) calculated to benefit the employee personally.

The complaint must contain a reasonable factual basis supporting the allegations.

Thornton’s complaint makes no allegations of this type of conduct against the probation officers.

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