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,

Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-662 | August 14, 2015   Page 1 of 7
      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.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-662 | August 14, 2015         Page 2 of 7
      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.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-662 | August 14, 2015   Page 3 of 7
[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.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-662 | August 14, 2015                  Page 4 of 7
       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.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-662 | August 14, 2015           Page 5 of 7
[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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-662 | August 14, 2015            Page 6 of 7
       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.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-PL-662 | August 14, 2015               Page 7 of 7
