MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                        Dec 30 2016, 7:26 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR STATE
Jason Tye Myers                                          APPELLEES
Stockwell, Indiana                                       Gregory F. Zoeller
                                                         Attorney General

                                                         Aaron T. Craft
                                                         Elizabeth M. Littlejohn
                                                         Deputies Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason Tye Myers,                                         December 30, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         79A02-1604-PL-929
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
Nalin Desai, et al.,                                     The Honorable Robert B. Mrzlack,
Appellees-Defendants.                                    Special Judge
                                                         Trial Court Cause No.
                                                         79D04-1309-PL-42



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016      Page 1 of 16
                                          Case Summary
[1]   In November of 2013, Appellant-Plaintiff Jason Tye Myers stayed in a hotel

      that was owned and operated by Appellees-Defendants Nalin Desai, Bena

      Desai, and Kinjal, Inc. (collectively, “the Hotel Appellees”) for a number of

      weeks. On September 27, 2013, Myers filed a complaint for invasion of privacy

      against the Hotel Appellees, alleging that they had invaded his privacy by

      requiring him to provide the identification of a guest staying with him in the

      hotel and, upon request, subsequently providing this identification information

      to local law enforcement authorities. Myers subsequently amended his

      complaint to include various state and federal claims against the State of

      Indiana; Tippecanoe County Deputy Prosecutor Jonathan R. Dee; Tippecanoe

      Superior Court Judge Gregory Donat; Deputy Attorney General Cynthia L.

      Ploughe; Indiana Court of Appeals Judges John G. Baker, Paul D. Mathias,

      Melissa S. May, and Margret G. Robb; and Indiana Supreme Court Justices

      Brent Dickson, Robert D. Rucker, Steven H. David, and Mark S. Massa

      (collectively, “the State Appellees”). These claims pertained to the denial of

      Myers’s 2012 related petition for post-conviction relief (“PCR”).


[2]   The trial court eventually entered default judgment against the Hotel Appellees,

      after which the trial court awarded Myers zero dollars in damages. The trial

      court also dismissed the State Appellees from the lawsuit. Myers subsequently

      filed a motion to correct error, which was denied by the trial court.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 2 of 16
[3]   On appeal, Myers challenges the trial court’s award of zero dollars in damages

      and the dismissal of the State Appellees. Finding no error, we affirm.



                            Facts and Procedural History
              A. Facts Relating to Related Criminal and Post-
                         Conviction Proceedings
[4]   With respect to the facts leading to the instant appeal, this court’s

      memorandum decision in Myers’s related post-conviction proceedings provide

      as follows:

              As part of an ongoing criminal investigation involving Felicia
              Norris, Tippecanoe law enforcement officials learned that Myers
              and Norris were staying together at the Lincoln Lodge on U.S.
              Highway 52. There were outstanding arrest warrants for Norris
              in both Clinton and Pulaski counties.

              On November 13, 2003, police officers went to Myers’s room
              and asked him if Norris was there. Myers responded that a
              woman by the name of “Becky Best” was staying with him.
              Appellant’s App. p. 74. The officers warned Myers that he
              would be charged with harboring a fugitive if he was lying to
              them about the woman’s identity.

              Thereafter, the police officers learned that Norris was, in fact,
              staying with Myers after the motel manager supplied them with
              Myers’s motel room registration card that listed Norris as the co-
              occupant. The police officers then returned to Myers’s room and
              arrested Norris. Myers was also arrested and charged with
              possession of a legend drug, a class D felony, assisting a criminal,
              a class A misdemeanor, and false informing, a class A
              misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 3 of 16
        On June 15, 2004, Myers pleaded guilty to false informing, a
        class B misdemeanor, and was later sentenced to 180 days of
        incarceration. In exchange, the State dismissed the remaining
        charges.[1]

        On May 30, 2012, Myers filed a petition for post-conviction
        relief, alleging that his trial counsel was ineffective. Myers
        contended, among other things, that his counsel was ineffective
        for failing “to move to suppress evidence that [Myers] had lied
        about the fact that ... Norris ... was staying in his motel room.”
        Appellant’s Br. p. 4. The State responded that even if Myers’s
        assertions were true, he failed to present any material facts that
        entitled him to post-conviction relief. Thus, the State argued that
        the post-conviction court should deny Myers’s request for relief
        without a hearing.

        On August 24, 2012, the post-conviction court summarily
        dismissed Myers’s petition, concluding that Myers had failed to
        allege any facts or issues not known to him at the time of the
        guilty plea, and that:


                 6. [Myers] had no expectation of privacy in the motel
                 ledger.

                 7. Entry into the motel room was obtained by
                 consent.

                 8. There is no colorable suppression issue in the case
                 at bar.




1
  At some point, Myers was placed on probation in lieu of incarceration following his guilty plea. While on
probation, Myers was charged with nine unrelated felony counts, including several Class A felony drug
charges. He was eventually convicted of four counts of Class A felony dealing in cocaine and sentenced to a
term of thirty years.

Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016         Page 4 of 16
                      9. [Myers] failed to allege that he would have been
                      acquitted had he proceeded to trial on this matter,
                      nor has he alleged facts that would rise to a
                      constitutional violation under the Indiana and
                      Federal Constitutions.


              Appellant’s App. p. 87.


      Myers v. State, 2013 WL 1858430 *1-2 (Ind. Ct. App. May 2, 2013), trans. denied.

      Myers appealed the post-conviction court’s August 24, 2012 summary dismissal

      of his petition. Id. at *2. Upon review, this court affirmed the judgment of the

      post-conviction court. Id. at *3. Myers’s subsequent petition for rehearing was

      denied on August 16, 2013. Myers then sought transfer to the Supreme Court

      of Indiana. On November 7, 2013, the Indiana Supreme Court denied Myers’s

      petition seeking transfer.


          B. Facts Relating to the Civil Claims at Issue in This
                                 Appeal
                                      1. The Hotel Appellees
[5]   On September 27, 2013, Myers filed a civil complaint for invasion of privacy

      against the Hotel Appellees. Specifically, Myers argued that the Hotel

      Appellees had violated his privacy by requiring him to provide them with the

      identification of the individual staying with him in his hotel room and by

      turning this identification over to representatives of the Clinton County Sheriff’s

      Department. Default Judgment was entered against the Hotel Appellees on

      June 22, 2015. The trial court then allowed Myers to plead damages via

      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 5 of 16
      affidavit. In an order dated February 4, 2016, the trial court awarded Myers

      zero dollars in damages.


                                      2. The State Appellees
[6]   On October 28, 2014, Myers amended his September 27, 2013 complaint to

      include various state and federal claims relating to the denial of his 2012 PCR

      petition against the State Appellees. In making these claims, Myers sought an

      order directing the named trial judge, the named judges of this court, and the

      named justices of the Indiana Supreme Court to further review his previously-

      considered PCR petition. Myers also sought that the deputy prosecutor and the

      deputy attorney general be ordered to “[f]urther prosecute the action underlying

      this one … in a manner that is consistent with [his/her] ethical duty[.]”

      Appellant’s App. pp. 252, 253. The State Appellees sought dismissal under

      Trial Rule 12(B)(6), arguing, among other things that each of the named parties

      was entitled to immunity. The trial court subsequently dismissed the claims

      against the State Appellees.


                                  3. Motion to Correct Error
[7]   On March 9, 2016, Myers filed a motion to correct error, challenging both the

      award of zero dollars in damages and the dismissal of the State Appellees. This

      motion was denied by the trial court on April 1, 2016. This appeal follows.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 6 of 16
[8]   Myers appeals following the denial of his motion to correct error. On appeal,

      we review a trial court’s decision on a motion to correct error for an abuse of

      discretion. Knowledge A-Z, Inc. v. Sentry Ins., 891 N.E.2d 581, 584 (Ind. Ct. App.

      2008), trans. denied. “An abuse of discretion occurs when the decision is against

      the logic and effect of the facts and circumstances before the court, and

      inferences that may be drawn therefrom.” Id. (citing Palmer v. Comprehensive

      Neurologic Serv., P.C., 864 N.E.2d 1093, 1102 (Ind. Ct. App. 2007), trans. denied).


                                     I. Award of Damages
[9]   With respect to the Hotel Appellees, Myers challenges the trial court’s award of

      zero dollars in damages. “‘The computation of damages is strictly a matter

      within the trial court’s discretion.’” Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d

      1018, 1034 (Ind. Ct. App. 2005) (quoting Romine v. Gagle, 782 N.E.2d 369, 382

      (Ind. Ct. App. 2003), trans. denied). “‘No degree of mathematical certainty is

      required in awarding damages as long as the amount awarded is supported by

      evidence in the record; however, an award may not be based upon mere

      conjecture, speculation, or guesswork.’” Id. (quoting Romine, 782 N.E.2d at

      382). To support an award of damages, “‘facts must exist and be shown by the

      evidence which afford a legal basis for measuring the plaintiff’s loss.’” Id. at

      135 (quoting Romine, 782 N.E.2d at 382). “‘To that end the damages must be

      referenced to some fairly definitive standard, such as market value, established

      experience, or direct inference from known circumstances.’” Id. (quoting

      Romine, 782 N.E.2d at 382-83).



      Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 7 of 16
[10]           In awarding zero dollars in damages, the trial court found as follows:


               [Myers] has failed to prove that the [Hotel Appellees] violated his
               right to privacy by cooperating with the police. Even if this
               violation was proven, [Myers] has failed to prove that it resulted
               in damage. Any damage claimed by [Myers] was self-inflicted
               and flowed from the fact that he entered a guilty plea to False
               Informing, a Class B Misdemeanor, pursuant to a plea agreement
               on June 15, 2004.


       Appellant’s App. pp. 455-56.


[11]   In challenging the trial court’s award of zero dollars in damages, Myers argues

       that his guilty plea did not act as a bar to recovery of damages from the Hotel

       Appellees. While Myers’s guilty plea might not act as a bar to recovering

       damages, it was within the trial court’s discretion to determine whether the

       evidence provided by Myers proved that the alleged invasion of his privacy by

       the Hotel Appellees resulted in measurable damage to him. Upon review, we

       conclude that the trial court acted within its discretion in making such a

       determination and, as a result, awarding zero dollars in damages.


                          II. Dismissal of the State Appellees
[12]   With respect to the State Appellees, Myers challenges the trial court’s order

       dismissing the claims levied against the State Appellees.


               A motion to dismiss under Rule 12(B)(6) tests the legal
               sufficiency of a complaint: that is, whether the allegations in the
               complaint establish any set of circumstances under which a
               plaintiff would be entitled to relief. See Kitco, Inc. v. Corp. for Gen.
               Trade, 706 N.E.2d 581 (Ind. Ct. App. 1999). Thus, while we do
       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 8 of 16
               not test the sufficiency of the facts alleged with regards to their
               adequacy to provide recovery, we do test their sufficiency with
               regards to whether or not they have stated some factual scenario
               in which a legally actionable injury has occurred.

               A court should “accept[ ] as true the facts alleged in the
               complaint,” Minks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App.
               1999), and should not only “consider the pleadings in the light
               most favorable to the plaintiff,” but also “draw every reasonable
               inference in favor of [the non-moving] party.” Newman v. Deiter,
               702 N.E.2d 1093, 1097 (Ind. Ct. App. 1998). However, a court
               need not accept as true “allegations that are contradicted by other
               allegations or exhibits attached to or incorporated in the
               pleading.” Morgan Asset Holding Corp. v. CoBank, ACB, 736
               N.E.2d 1268, 1271 (Ind. Ct. App. 2000) (citations omitted).


       Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134-35 (Ind. 2006). On

       review, we will affirm the trial court’s grant of a Rule 12(B)(6) motion to

       dismiss “if it is sustainable on any theory or basis found in the record.” Deiter,

       702 N.E.2d at 1097.


                                A. Dismissal of Federal Claims
[13]   Although Myers’s arguments below and on appeal are somewhat unclear, it

       appears that Myers has asserted federal claims under 42 U.S.C. § 1983 (“§

       1983”) against all of the State Appellees. § 1983 provides as follows:


               Every person who, under color of any statute, ordinance,
               regulation, custom, or usage, of any State or Territory or the
               District of Columbia, subjects, or causes to be subjected, any
               citizen of the United States or other person within the jurisdiction
               thereof to the deprivation of any rights, privileges, or immunities
               secured by the Constitution and laws, shall be liable to the party

       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 9 of 16
               injured in an action at law, suit in equity, or other proper
               proceeding for redress, except that in any action brought against
               a judicial officer for an act or omission taken in such officer’s
               judicial capacity, injunctive relief shall not be granted unless a
               declaratory decree was violated or declaratory relief was
               unavailable.


       (Emphasis added).


[14]   The United States Supreme Court has held that “neither a State nor its officials

       acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t

       of State Police, 491 U.S. 58, 71 (1989). In reaching this holding, the United

       States Supreme Court explained the following:

               Obviously, state officials literally are persons. But a suit against a
               state official in his or her official capacity is not a suit against the
               official but rather is a suit against the official’s office. As such, it
               is no different from a suit against the State itself.


       Id. (internal citations omitted).


[15]   In determining whether an individual was sued in their official or personal

       capacity, we look to the caption of the case and the allegations and language

       used in the body of the complaint. See Lake Cty. Juvenile Court v. Swanson, 671

       N.E.2d 429, 434 (Ind. Ct. App. 1996).


               If a plaintiff seeks to sue public officials in their personal
               capacities or in both their personal and official capacities, the
               plaintiff should expressly state so in the complaint. We also note
               that courts ordinarily assume that an official is sued only in her



       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 10 of 16
               official capacity when a plaintiff alleges that a state official acted
               under the color of state law giving rise to liability under § 1983.


       Id. (internal citations ommitted).


[16]   In filing suit against each of the State Appellees, Myers indicated that each was

       being sued in their official capacities only. Further, the nature of the claims

       brought against each of the State Appellees indicates that they are being sued in

       only their official capacities. Therefore, we will review the propriety of the

       dismissal only as it relates to claims brought against the State and State officers

       in their official capacities.


[17]   Neither a state nor a state agency is a person under § 1983 regardless of whether

       the claims raised sought retrospective or prospective relief. See Severson v. Bd. of

       Trustees of Purdue Univ., 777 N.E.2d 1181, 1189 (Ind. Ct. App. 2002). As such,

       the trial court correctly dismissed the claims levied against the State of Indiana

       under § 1983. Further, if a plaintiff requests retrospective relief, then a state

       official sued in his official capacity is also not a “person” under § 1983. See id.

       The trial court, therefore, also correctly dismissed the claims levied against the

       remaining State Appellees by Myers which sought retrospective relief because

       the State Appellees were not “persons” under § 1983.


[18]   If, however, a plaintiff requests prospective relief, then a state official may be

       considered a “person” under § 1983. See id. It appears that at least some of

       Myers’s claims are seeking prospective relief. Specifically, it seems that Myers

       is seeking a court order or injunction that would authorize him to seek another

       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 11 of 16
       round of PCR, during which the State Appellees would be compelled to

       conduct said review in a manner consistent with Myers’s view of the law.


[19]   In Martin v. Heffelfinger, 744 N.E.2d 555, 558-59 (Ind. Ct. App. 2001), we

       concluded that in order to seek prospective injunctive relief against a state

       official under § 1983, a plaintiff must prove that his remedies at law are

       inadequate before he can state a claim for equitable relief. A legal remedy is

       adequate “where it is as practical and efficient to the ends of justice and its

       prompt administration as the remedy in equity.” Martin, 744 N.E.2d at 559.


[20]   In Martin, the plaintiff filed a complaint under § 1983 against a number of state

       officials, including the judge who revoked his probation. Id. at 557. Martin

       sought declarative and injunctive relief to bar the judge from presiding over any

       action involving him, claiming that he was entitled to relief because the

       revocation of his probation had caused him to lose his job. Id. The trial court

       dismissed Martin’s claim against the judge. Id. Upon review, we affirmed,

       concluding that the trial judge was entitled to judicial immunity because Martin

       had failed to prove that he was entitled to declarative or injunctive relief. Id. at

       559. Specifically, we concluded that Martin had failed to prove why the

       remedies available to him at law were inadequate. Id. In reaching this

       conclusion, we noted that Martin could raise the issues presented through the

       proper channels on a direct appeal from his conviction or in post-conviction

       proceedings. Id.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 12 of 16
[21]   Just as in Martin, here Myers has failed to show that the legal remedies

       available to him are inadequate. Myers filed an unsuccessful PCR petition.

       Myers does not cite to any authority suggesting that he is entitled to relief under

       § 1983 merely because his PCR petition was subsequently denied. Further, the

       Indiana Post-Conviction Rules set forth a procedure by which one may request

       permission to file a second or successive PCR petition. Nothing in the record

       indicates that Myers has been denied, or even sought, permission to file a

       successive PCR petition. Because we conclude that Myers has failed to show

       that the legal remedies available to him are inadequate, we further conclude

       that the trial court correctly dismissed the claims levied against the remaining

       State Appellees by Myers which sought prospective relief.


                                  B. Dismissal of State Claims
                                      1. Named Judges and Justices

[22]   It is well-established that judicial officers are protected by a common law

       immunity from suit brought on the basis of their judicial acts. See Cato v. Mayes,

       270 Ind. 653, 655, 388 N.E.2d 530, 532 (1979) (citing Alexander v. Gill, 130 Ind.

       485, 489, 30 N.E. 525, 527 (1892)). “The reason for this rule is that such a

       liability for a judicial act would be inconsistent with the proper discharge of

       judicial duties.” Id. at 655, 388 N.E.2d at 532.


               The test by which the question of the liability of a judicial officer
               is to be governed is twofold: (1) was the act complained of an
               exercise of judicial authority? and (2) did the court have
               jurisdiction of the parties and subject matter? If these two


       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 13 of 16
               questions are answered affirmatively, judicial immunity will be
               accorded to the officer.


       Id. at 655, 388 N.E.2d at 532 (internal citation omitted).


[23]   Review of the record clearly establishes that acts complained of by Myers were

       exercises of judicial authority and that the named judges and justices had both

       personal and subject matter jurisdiction over the parties and claims before the

       respective courts. As such, judicial immunity covers each of the named judges

       and justices.


                        2. Deputy Prosecutor and Deputy Attorney General

[24]   The Indiana Supreme Court has also recognized that prosecuting attorneys and

       the Attorney General and his or her deputies are protected by absolute

       immunity for acts reasonably within the general scope of authority granted to

       prosecuting attorneys. See Foster v. Pearcy, 270 Ind. 533, 537-38, 387 N.E.2d

       446, 449 (1979).

               This decision will insure that the prosecutor will be able to
               exercise the independent judgment necessary to effectuate his
               duties to investigate and prosecute criminals and to apprise the
               public of his activities. It will also allay the apprehensions about
               harassment of prosecuting attorneys from unfounded litigation
               which deters public officials from their public duties.


       Id. at 537, 387 N.E.2d at 449.


[25]   Again, review of the record clearly establishes that the acts complained of by

       Myers were acts within the general scope of authority granted to prosecuting

       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 14 of 16
       attorneys and the Attorney General. As such, both the deputy prosecutor and

       the deputy attorney general were protected against Myers’s claims by

       prosecutorial immunity.


                                     3. The Indiana Tort Claims Act

[26]   The State Appellees are further immune from liability under the Indiana Tort

       Claims Act (“ITCA”). The ITCA governs lawsuits against political

       subdivisions and their employees. Myers v. Maxson, 51 N.E.3d 1267, 1278 (Ind.

       Ct. App. 2016) (citing Irwin Mortg. Corp. v. Marion Cnty. Treasurer, 816 N.E.2d

       439, 445 (Ind. Ct. App. 2004)), trans. denied.


               The ITCA provides substantial immunity for conduct within the
               scope of a public employee’s employment “to ensure that public
               employees can exercise the independent judgment necessary to
               carry out their duties without threat of harassment by litigation or
               threats of litigation over decisions made within the scope of their
               employment.” Irwin Mortg. Corp., 816 N.E.2d at 445; see also Ind.
               Code § 34-13-3-3 (setting forth twenty-four separate categories for
               which immunity attaches). Compliance with the ITCA is a
               question of law for the court to decide. Id. Generally, whether
               the tortious act of an employee is within the scope of
               employment is a question of fact; however, under certain
               circumstances the question may be determined as a matter of
               law. Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003).


       Maxson, 51 N.E.3d at 1278-79. It is specifically of note in this matter that

       Indiana Code section 34-13-3-3(6) provides that “[a] governmental entity or an

       employee acting within the scope of the employee’s employment is not liable if




       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 15 of 16
       a loss results from the … initiation of a judicial or an administrative

       proceeding.”


[27]   As is discussed above, each of the State Appellees was sued only in their official

       capacities. It is evident from Myers’s complaint that each were acting within

       their scope of authority and performing discretionary functions of the

       government in relation to a judicial proceeding. The deputy prosecuting

       attorney and the deputy attorney general both acted in accordance with their

       duty to defend against Myers’s PCR petition. Each of the judicial officers were

       acting in accordance with their duty to adjudicate cases, including cases

       involving a request for PCR, which have come before their respective courts.

       As such, each of the State Appellees were entitled to immunity under the

       ITCA.



                                               Conclusion
[28]   In sum, we conclude that the trial court did not abuse its discretion in (1)

       awarding Myers zero dollars in damages with respect to the Hotel Appellees or

       (2) dismissing the claims levied against the State Appellees. As such, we affirm

       the judgment of the trial court.


[29]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016   Page 16 of 16
