Pursuant to Ind. Appellate Rule 65(D), this                             Oct 01 2013, 5:31 am
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.


APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

KENNETH W. GIBBS-EL                              GREGORY F. ZOELLER
Bunker Hill, Indiana                             Attorney General of Indiana

                                                 ELIZABETH ROGERS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH W. GIBBS-EL,                             )
                                                 )
       Appellant-Plaintiff,                      )
                                                 )
              vs.                                )      No. 49A04-1303-PL-101
                                                 )
CHRISTOPHER E. MELOY, ET AL.,                    )
                                                 )
       Appellees-Defendants.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable John F. Hanley, Judge
                           Cause No. 49D11-1207-PL-28820



                                      October 1, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       The appellant-plaintiff Kenneth W. Gibbs-El appeals the trial court’s grant of the

appellees-defendants’ Indiana Parole Board members including Christopher E. Meloy’s

(collectively referred to as the Parole Board) motion to dismiss his “civil plenary action

suit for damages.” Appellant’s Br. p. 13-25. Gibbs-El sued the Parole Board and its

members in their individual and official capacities. Gibbs-El alleged that his right to due

process and equal protection were violated because only three of the five members of the

Parole Board were present during his parole hearing and two of them voted against the

grant of parole.

       The trial court subsequently granted the Parole Board’s motion to dismiss Gibbs-

El’s complaint under Trial Rule 12(B)(6), for failing to state a claim upon which relief

can be granted. In the motion to dismiss, the Parole Board alleged, among other things,

that the relevant statute does not require all five members of the Parole Board to vote on

parole eligibility, that the Parole Board members are immune for their actions in denying

Gibbs-El’s parole, and that Gibbs-El’s action is barred under the two-year statute of

limitations.

       We conclude that the relevant statute does not require all of the Parole Board

members be present at the hearing. Rather, all that is required is a majority vote. We

also note that Gibbs-El did not file his complaint in a timely fashion. Thus, we affirm the

trial court’s decision to grant the Parole Board’s motion to dismiss.




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                                           FACTS

       On October 2, 2009, the Parole Board conducted a hearing before three of its five

members to vote on Gibbs-El’s request for parole. Gibbs-El was not granted parole

because two of the three members voted to deny his request.

       On July 20, 2012, Gibbs-El filed a “plenary action suit for damages” pursuant to

42 U.S.C. section 1983 against the Parole Board and its members, claiming that the

parole hearing that was conducted on October 2, 2009, resulted in “private injuries and

violation of due process of law, violation of state and federal statute of violation of equal

protection of the law, fraud, and dishonor.” Appellant’s App. p. 13-14. Gibbs-El also

alleged that the parole hearing injured his “right to life, liberty, and pursuit of happiness.”

Id. Gibbs-El contended that his rights were violated because all five members of the

Parole Board did not participate in the hearing.

       On September 21, 2012, the Parole Board filed a motion to dismiss Gibbs-El’s

complaint pursuant to Trial Rule 12(B)(6), alleging that the statute upon which Gibbs-El

relies, Indiana Code section 11-13-3-3(b), does not require a five-member Parole Board

vote to determine parole eligibility. The Parole Board maintained that the statute only

requires a “majority vote” and there is no requirement that a particular number of Parole

Board members participate. Appellees’ App. p. 1. The Parole Board also contended that

the trial court should grant its motion to dismiss because Gibbs-El’s allegations against

the Parole Board concerned the hearing that was conducted on October 2, 2009, and



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because Gibbs-El did not file his complaint until July 20, 2012, the action is barred under

the two-year statute of limitations set forth in Indiana Code section 34-11-2-4.

       The trial court granted the Parole Board’s motion to dismiss Gibbs-El’s complaint

and he now appeals.

                                  I. Standard of Review

       A motion to dismiss under Indiana Trial Rule 12(B)(6) tests the legal sufficiency

of the claim. Hosler ex rel. Caterpillar, Inc., 710 N.E.2d 193, 196 (Ind. Ct. App. 1999).

The complaint must be viewed in the light most favorable to the non-moving party with

the issue being whether that complaint states any facts upon which the trial court could

grant relief. Id. In determining whether any facts will support a claim, the court looks

only at the complaint and the reasonable inferences to be drawn from it and may not rely

on any evidence that is not in the record. Id. If a complaint states a set of facts which,

even if true, would not support the relief requested, the case must be dismissed. Newman

v. Deiter, 702 N.E.2d 1093, 1097 (Ind. Ct. App. 1998).

                                   II. Gibbs-El’s Contentions

       As noted above, Gibbs-El argues that his complaint should not have been

dismissed because all five members of the Parole Board did not participate at the hearing

on October 2, 2009. Thus, Gibbs-El maintains that the participation of only three of

those members violated his due process and equal protection rights.

       In addressing this contention, we first note that Indiana Code section 11-13-3-3(b)

provides:

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              A person sentenced for an offense under laws other than IC 35-50 who is
              eligible for release on parole, or a person whose parole is revoked and is
              eligible for reinstatement on parole under rules adopted by the parole board
              shall, before the date of the person’s parole eligibility, be granted a parole
              release hearing to determine whether parole will be granted or denied. The
              hearing shall be conducted by one (1) or more of the parole board members.
              If one (1) or more of the members conduct the hearing on behalf of the
              parole board, the final decision shall be rendered by the full parole board
              based upon the record of the proceeding and the hearing conductor’s
              findings.

       In interpreting this statute, our Supreme Court in Varner v. State concluded that

the Parole Board had lawfully complied with this statute when a determination of a

parolee’s eligibility was made by three members of the Parole Board. 922 N.E.2d 610

(Ind. 2010). In Varner, four members of the Parole Board conducted a hearing with

regard to an inmate’s parole eligibility. Varner’s parole was denied because a majority

did not vote in favor of granting parole.        Id. at 611.   Varner subsequently filed a

mandamus action, claiming that the Parole Board was obligated under Indiana Code

section 11-13-3-3(b) to determine his parole eligibility by a five-member vote.          Id.

Varner based his argument on the phrase “full parole board,” set forth in the statute,

claiming that this language meant that all five members of the Parole Board must

participate in the decision on whether to grant or deny parole. Id.

       Our Supreme Court rejected Varner’s contention and determined that “a ‘full

parole board’ in Indiana Code section 11-13-3-3(b) requires that the Board’s final

decision on an inmate’s parole eligibility be rendered by a majority of the Board, not

necessarily each of the five Board members.” Id. at 612. As a result, it was held that a


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decision on an inmate’s parole could be rendered by three of the five parole board

members because that constituted a majority of the Parole Board. Id. at 612-13.

         In light of our Supreme Court’s interpretation of Indiana Code section 11-13-3-

3(b) in Varner, Gibbs-El has failed to state a claim for relief because the Parole Board

was in compliance with the statute when it conducted the parole hearing. Thus, the trial

court properly granted the Parole Board’s motion to dismiss Gibbs-El’s complaint on this

basis.

         Finally, we note that Gibbs-El based his cause of action regarding the hearing that

took place on October 2, 2009. Indiana Code section 34-11-2-4 states in part that “An

action for: (1) injury to person or character . . . must be commenced within two . . . years

after the cause of action accrues.” Gibbs-El did not file his complaint until July 20, 2012,

more than two years after his alleged injuries occurred. Thus, Gibbs-El’s claims are

barred, and the trial court properly dismissed the complaint on this basis, as well. See

Parks v. Madison Cnty., 783 N.E.2d 711, 718 (Ind. Ct. App. 2002) (holding that the

statute of limitations for claims brought under 42 U.S.C. section 1983 is the same as for

personal injury actions).

         The judgment of the trial court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.




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