MEMORANDUM DECISION
ON REHEARING

Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Dec 06 2016, 5:58 am
regarded as precedent or cited before any
court except for the purpose of                                        CLERK
                                                                   Indiana Supreme Court
establishing the defense of res judicata,                             Court of Appeals
                                                                        and Tax Court

collateral estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEES
                                                        Gregory F. Zoeller
Charles Sweeney
                                                        Attorney General of Indiana
Carlisle, Indiana
                                                        Andrea E. Rahman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana.




                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Sweeney,                                        December 6, 2016
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        49A05-1602-CT-425
        v.                                              Appeal from the Marion Superior
                                                        Court.
David C. Long, President Pro                            The Honorable Gary L. Miller,
Tempore, Indiana General                                Judge.
                                                        Trial Court Cause No.
Assembly, et al.,                                       49D03-1510-CT-33234
Appellees-Defendants.




Friedlander, Senior Judge



Court of Appeals of Indiana |Mem. Dec. on Rehearing 49A05-1602-CT-425 | December 6, 2016   Page 1 of 3
[1]   We grant rehearing for the limited purpose of clarifying the original decision in

      this matter. We therefore grant Sweeney’s petition for this limited purpose, but

      otherwise reaffirm the decision reached in our original opinion.


[2]   Sweeney alleged he was entitled to prospective (injunctive) relief under 42

      U.S.C. §1983, and named Senator David C. Long, President Pro Tempore of

      the Indiana Senate, and the Indiana General Assembly as defendants. With

      respect to prospective (injunctive) relief, the United States Supreme Court

      observed in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,

      2312, 105 L. Ed. 2d 45 n.10 (1989), that “[o]f course a state official in his or her

      official capacity, when sued for injunctive relief, would be a person under §

      1983 because ‘official-capacity actions for prospective relief are not treated as

      actions against the State.’” Regardless of the relief requested, however, a state

      or state agency may not be sued under § 1983. City of Warsaw v. Orban, 884

      N.E.2d 262 (Ind. Ct. App. 2007), trans. denied.


[3]   Sweeney’s complaint was properly dismissed as to the named defendants. The

      Indiana General Assembly, a branch of state government, could not be sued

      under § 1983. Senator Long, although a “person” for purposes of § 1983 with

      respect to prospective relief only, was entitled to dismissal because Sweeney did

      not state a claim upon which relief could be granted. A § 1983 claim need only

      allege that a person has deprived the claimant of a federal right while that

      person was acting under color of state or territorial law. Thornton v. State, 43

      N.E.3d 585 (Ind. 2015). Sweeney has not met even this low bar as to Senator

      Long, alleging only that the Indiana General Assembly has failed to act or

      Court of Appeals of Indiana |Mem. Dec. on Rehearing 49A05-1602-CT-425 | December 6, 2016   Page 2 of 3
respond to his requests that Indiana Code section 35-33-10-5 be repealed.

Sweeney has not identified how Senator Long has deprived Sweeney of a

federal right while acting in his official capacity.


Mathias, J., and Barnes, J., concur.




Court of Appeals of Indiana |Mem. Dec. on Rehearing 49A05-1602-CT-425 | December 6, 2016   Page 3 of 3
