MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Mar 30 2015, 9:32 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 APPELLEES
Eric D. Smith                                            Gregory F. Zoeller
Plainfield, Indiana                                      Attorney General of Indiana
                                                         Kristin Garn
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Eric D. Smith,                                           March 30, 2015

Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A02-1406-MI-440
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable James B. Osborn,
The Marion County Prosecutor’s                           Judge.
Office, Terry R. Curry, John G.                          Cause No. 49D14-1105-MI-18642
Baker, Margrett Robb, Justice
May, Justice Mathias, Justice
Sullivan, Sr., and The Indiana
General Assembly,
Appellees-Defendants.




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015        Page 1 of 11
                                      Statement of the Case
[1]   Eric D. Smith appeals the trial court’s grant of the Appellees’ motion to dismiss

      his amended complaint for injunctive and declaratory relief. We affirm.


                                                     Issue
[2]   Smith presents two issues for our review, one of which is dispositive: whether

      the trial court erred by dismissing Smith’s complaint for failure to state a claim.


                               Facts and Procedural History
[3]   In August 2001, Smith was convicted by a jury of nine counts of arson, all Class

      B felonies, and one count of conspiracy to commit arson, also a Class B felony.

      Ind. Code §§ 35-43-1-1 (1999), 35-41-5-2 (1977). The evidence at trial showed

      that in February 2001, in order to exact revenge on his ex-girlfriend, Smith

      started a fire on the patio of her apartment using a stack of Duraflame Logs, a

      towel, gasoline, and matches. The three-alarm fire destroyed twelve apartment

      units. Smith was sentenced to twenty years.


[4]   Smith filed a direct appeal alleging that the State failed to present sufficient

      evidence to support his convictions. A panel of this Court affirmed his

      convictions in a memorandum decision. See Smith v. State, No. 49A04-0201-

      CR-31 (Ind. Ct. App. Nov. 19, 2002). Smith subsequently filed a petition for

      post-conviction relief, which was denied following a hearing. He appealed the

      denial of relief, and this Court affirmed the post-conviction court’s




      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 2 of 11
      determination. See Smith v. State, No. 49A05-0409-PC-495 (Ind. Ct. App. April

      13, 2006).


[5]   Since that time, Smith has filed copious motions to modify sentence, motions to

      correct erroneous sentence, appeals of the denials of these motions, and

      successive petitions for post-conviction relief. After Smith filed several

      unsuccessful successive petitions for post-conviction relief, we issued an order

      imposing restrictions on Smith with respect to filing future successive petitions

      due to his “propensity toward endless litigation [that] warrants the unusual step

      of establishing a screening mechanism to forestall future frivolous lawsuits.”

      Smith v. State, No. 49A02-0704-SP-341 (Ind. Ct. App. Order of July 9, 2007).


[6]   Subsequently, in December 2007, out of concern for Smith’s continuous,

      meritless filings, we issued a further order requiring him to seek leave from this

      Court before filing any additional appeals arising from his arson convictions.

      The order provided, in pertinent part:

              4. A. Appellant may first file a motion for leave of this Court to
              file any additional appeal directed to this Court seeking review of
              any criminal matter arising out of Appellant’s conviction for
              arson.

              B. Any motion for leave to file an appeal that is tendered by
              Appellant must include an Appellant’s case summary, a current
              certified copy of the chronological case summary, the motion
              filed with the trial court, any answer to the motion, a certified
              copy of the trial court’s judgment from which Appellant seeks
              review, and a copy of the timely filed notice of appeal from the
              final judgment. Any motion for leave filed after the date of this
              order shall include a copy of this order. Failure to include any of
      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 3 of 11
           the above-listed documents shall subject Appellant’s motion for
           leave to file an appeal to dismissal with prejudice.

           ….

           E. Upon receipt of any filings from Appellant, the entire matter,
           including but not limited to: (A) the trial court clerk’s obligation
           to assemble the clerk’s record and file the notice of completion of
           clerk’s record; (B) the trial court reporter’s obligation to prepare
           the transcript and file the notice of completion of transcript; and
           (C) all briefing shall be automatically held in abeyance until such
           time as this Court issues an order either allowing the appeal to go
           forward or dismissing the appeal.


Smith v. State, No. 49A04-0706-CR-325 (Ind. Ct. App. Order of December 19,

2007). In spite of these restrictions, Smith has continued to file meritless

motions and appeals in this Court, as well as filing countless motions in the trial
                                                                                1
courts of this state, in circumvention of our prior orders.




1
    Because of Smith’s persistent filings, this Court, on September 9, 2014, issued an order expanding its

December 19, 2007 order. The order provided:


1. This Court’s December 19, 2007 order is hereby expanded to include all appeals arising out of
cases in any court in Indiana where a conviction was entered before the date of this order.
2. The restrictions put in place by this Court’s December 19, 2007 order remain in effect except
that Smith is no longer required to file an Appellant’s Case Summary because that document has
been abolished under the Appellate Rules.
3. Failure by Smith to fully comply with this order and the December 19, 2007 order will result in
the imposition of a penalty which may include incarceration for which good time credit is not
applicable.


Smith v. Butts, No. 33A01-1402-MI-87 (Ind. Ct. App. Order of September 9, 2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015                 Page 4 of 11
[7]   In October 2011, Smith filed the amended complaint that is the basis of the

      current appeal. In the complaint, Smith requested declaratory and injunctive

      relief for alleged violations of his constitutional rights by the Marion County

      Prosecutor’s Office, the Marion County Prosecutor, certain judges of the Court

      of Appeals, and the entire Indiana General Assembly for their part in allegedly
                                                                                    2
      depriving him of obtaining a modification of his sentence. The defendants in

      the action filed a motion to dismiss for failure to state a claim, and, following a

      hearing, the trial court dismissed Smith’s complaint. This appeal followed.


                                     Discussion and Decision
[8]   This Court reviews de novo the trial court’s grant of a motion to dismiss

      pursuant to Indiana Trial Rule 12(B)(6). Veolia Water Indianapolis, LLC v. Nat’l

      Trust Ins. Co., 3 N.E.3d 1, 4 (Ind. 2014). A motion to dismiss under Rule

      12(b)(6) tests the legal sufficiency of a complaint to determine whether the

      allegations in the complaint establish any set of circumstances under which a

      plaintiff would be entitled to relief. Id. When evaluating the trial court’s grant

      of a Rule 12(B)(6) motion, this Court accepts as true the facts alleged in the

      complaint, considers the pleadings in the light most favorable to the plaintiff,

      and draws every reasonable inference in favor of the nonmoving party. Id. at 4-

      5. We affirm the trial court’s grant of the motion only when it is apparent that




      2
       In their brief, the Appellees note that it does not appear that service of process was ever attempted on the
      Indiana General Assembly. Appellees’ Br. p. 1, n.1. Smith indeed acknowledges that “[t]he Indiana General
      Assembly were [sic] named as a defendant, but was not served the complaint yet.” Appellant’s Br. p. 16.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015             Page 5 of 11
       the facts alleged are incapable of supporting relief under any set of

       circumstances. Id. at 5.


[9]    In his complaint, Smith alleged that Indiana Code section 35-38-1-17(b) (1991)

       (setting forth the required circumstances for modification of sentences), Post-

       Conviction Rule 1, section 12(b) (authorizing the filing of a successive petition

       for post-conviction relief if the petitioner establishes a reasonable possibility that

       he is entitled to post-conviction relief), and Appellate Rule 57(B) (providing that

       an order declining to authorize the filing of a successive petition for post-

       conviction relief is not considered an adverse decision from which transfer may

       be sought) are being used by judges and prosecutors to “retaliate” against him

       for his “legal endeavors,” “anarchist political beliefs,” and “political reasons.”

       Appellant’s App. p. 20. He further claimed that these deprivations violated his

       constitutional rights. For relief of these alleged abuses, he sought a declaratory

       judgment proclaiming the unconstitutionality of Indiana Code section 35-38-1-

       17, Post-Conviction Rule 1, section 12(b), and Appellate Rule 57(B). In

       addition, he sought an injunction restraining this Court from denying him leave

       to file a successive petition for post-conviction relief as well as an injunction

       against the Marion County Prosecutor and the Marion County Prosecutor’s

       Office prohibiting them from withholding their approval of a sentence

       modification.


[10]   Smith’s claims are, in essence, an impermissible collateral attack on his

       convictions and sentence as well as an attack on all of the prior determinations

       concerning his numerous attempts to modify his sentence. “A collateral attack

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 6 of 11
       on a judgment has been defined as a judicial proceeding pursued to avoid,

       defeat, evade, or deny the validity and effect of a valid judgment or decree.”

       City of Gary Common Council v. White River Envtl. P’Ship-Gary, 713 N.E.2d 893,

       895 (Ind. Ct. App. 1999), trans. denied. Here, dissatisfied with the rulings he has

       received from this Court regarding the filing of an additional successive petition

       for post-conviction relief and with the prosecutor’s refusal to approve a sentence

       modification in the trial court, Smith brought this civil action in order to obtain

       a modification of his sentence. Smith has attempted to go outside the bounds of

       his criminal case and collaterally attack his sentence in a civil action; this he

       cannot do.


[11]   Additionally, Smith contends that certain judges of this Court have violated his

       rights by refusing to allow him to file additional successive petitions for post-

       conviction relief pursuant to Post-Conviction Rule 1, section 12(b). Judges in

       this state are entitled to absolute judicial immunity for all actions taken in their

       judicial capacity, unless those actions are taken in the complete absence of any

       jurisdiction. Droscha v. Shepherd, 931 N.E.2d 882, 888-89 (Ind. Ct. App. 2010).

       There is nothing in this case to suggest that jurisdiction was lacking. Thus, the

       judges of this Court have absolute immunity for their acts in carrying out their

       judicial duties, including exercising their discretion to determine not to allow

       Smith to file additional successive petitions.


[12]   Smith also argues that because he seeks injunctive relief, his claim against the

       appellate judges is not barred by judicial immunity. In support of his allegation,

       Smith cites Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S. Ct. 1970, 80 L. Ed. 2d

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 7 of 11
       565 (1984), which states that judicial immunity is not a bar to prospective

       injunctive relief against a judicial officer acting in his or her judicial capacity.

       However, as Smith recognizes, his claims arise under 42 U.S.C. Section 1983

       (1996), which provides for a civil action for the redress of a deprivation of rights

       by any person acting under the color of state law. Since 1996, Section 1983 has

       prohibited the grant of injunctive relief in any action brought against a judicial

       officer for an act or omission taken in the officer’s judicial capacity unless a

       declaratory decree was violated or declaratory relief was unavailable. See 42

       U.S.C. § 1983; Smith v. City of Hammond, 848 N.E.2d 333, 339 (Ind. Ct. App.

       2006), trans. denied. There has been neither an allegation nor a showing that a

       declaratory decree was violated or that declaratory relief was unavailable in this

       cause of action.


[13]   Moreover, in his complaint, Smith requested relief in the form of an injunction

       ordering judges of this Court to refrain from denying his request to file yet

       another successive petition for post-conviction relief. This action is beyond the

       authority of the trial court — a trial court does not have the authority to order

       the Court of Appeals or its judges to act or refrain from acting, and Smith cites

       no authority in support of his requested relief.


[14]   Next Smith asserts that the Marion County Prosecutor’s Office and the Marion

       County Prosecutor violated his rights when they declined to provide permission

       for him to pursue a sentence modification pursuant to Indiana Code section 35-

       38-1-17(b). The version of Indiana Code section 35-38-1-17(b) in effect at the

       time Smith committed these offenses stated that if a defendant sought a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 8 of 11
       sentence modification more than 365 days after he had begun serving his

       sentence, approval of the prosecutor was required in order for the court to

       reduce the sentence. See also Owens v. State, 886 N.E.2d 64, 67 (Ind. Ct. App.

       2008) (stating that typically trial court has no discretion to reduce or suspend

       defendant’s sentence pursuant to Indiana Code section 35-38-1-17(b) unless

       prosecuting attorney gives approval), trans. denied. The prosecutors of Indiana

       and their deputies are afforded absolute immunity in carrying out their duties of

       investigative, administrative, and prosecutorial activities. Foster v. Pearcy, 270

       Ind. 533, 537, 387 N.E.2d 446, 449 (1979). A determination as to a sentence

       modification is clearly within the bounds of the Marion County Prosecutor and

       his staff’s prosecutorial duties and is left to their discretion. Therefore, the

       Marion County Prosecutor and the Marion County Prosecutor’s Office are

       absolutely immune from civil suit based upon the performance of a

       prosecutorial function, including exercising their discretion to decline to agree

       to a modification of Smith’s sentence.


[15]   Finally, Smith contends that the trial court’s dismissal of his complaint should

       have been without prejudice. The Defendants filed a motion to dismiss

       pursuant to Indiana Trial Rule 12(B)(6), and the trial court ordered the cause

       dismissed with prejudice. Trial Rule 12(B) provides, in pertinent part:


               When a motion to dismiss is sustained for failure to state a claim
               under subdivision (B)(6) of this rule the pleading may be
               amended once as of right pursuant to Rule 15(A) within ten [10]
               days after service of notice of the court’s order sustaining the
               motion and thereafter with permission of the court pursuant to


       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 9 of 11
               such rule.


       Therefore, a Trial Rule 12(B)(6) dismissal is without prejudice because the

       complaining party remains able to file an amended complaint within the

       parameters of the rule. Thacker v. Bartlett, 785 N.E.2d 621, 624 (Ind. Ct. App.

       2003). Thus, the trial court erred in dismissing Smith’s complaint with

       prejudice. However, Smith has not shown on appeal, with sufficient specificity,

       how he would have amended his complaint to avoid a Trial Rule 12(B)(6)

       dismissal. In his brief, Smith merely states that “[a]ll [he] has to do is cite the

       elements of Indiana Code 34-13-3-5(c) [the Indiana Tort Claims Act] and then

       provide a reasonable factual basis to support the allegations.” Appellant’s Br. p.

       16. This information is not sufficiently specific so as to allow this Court to

       make a rational assessment of whether Smith was prejudiced by the trial court’s

       ruling. Without a demonstration of prejudice, we must conclude the trial

       court’s error was harmless. See Baker v. Town of Middlebury, 753 N.E.2d 67, 74

       (Ind. Ct. App. 2001) (holding that although trial court erred in dismissing with

       prejudice complaint for failure to state a claim, error was harmless because

       plaintiff failed to provide specific information as to how he would have

       amended his complaint to avoid dismissal), trans. denied.


[16]   Moreover, Smith argues that the dismissal did not apply to his claims against

       the Indiana General Assembly because it “was not served the complaint yet.”

       Appellant’s Br. p. 16. It is well settled that a party may not appeal invited error.

       Beeching v. Levee, 764 N.E.2d 669, 674 (Ind. Ct. App. 2002). Here, Smith failed



       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 10 of 11
       to act when it was his burden to do so; he cannot now complain of any error

       stemming therefrom.


                                                Conclusion
[17]   For the reasons stated, we conclude that the trial court properly dismissed

       Smith’s complaint.


[18]   Affirmed.


[19]   Friedlander, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-MI-440 | March 30, 2015   Page 11 of 11
