      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                             Mar 26 2019, 10:52 am

      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
      the defense of res judicata, collateral                                   Court of Appeals
                                                                                  and Tax Court
      estoppel, or the law of the case.


      APPELLANT PRO SE                                         ATTORNEY FOR APPELLEES
      Willie E. Taylor, Jr.                                    Susan M. Severtson
      Michigan City, Indiana                                   Merrillville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Willie E. Taylor, Jr.,                                   March 26, 2019
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               18A-CT-2268
              v.                                               Appeal from the Lake Superior
                                                               Court
      George Fields, et al.,                                   The Honorable Bruce D. Parent,
      Appellees-Defendants.                                    Judge
                                                               Trial Court Cause No.
                                                               45D04-1804-CT-77



      Sharpnack, Senior Judge.


                                      Statement of the Case
[1]   Appellant Willie E. Taylor appeals the trial court’s dismissal of his complaint

      against the Appellees. We affirm.



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2268 | March 26, 2019                 Page 1 of 7
                                                     Issue
[2]   Taylor presents three issues; however, one restated issue is dispositive: whether

      the trial court erred by dismissing Taylor’s complaint.


                                   Facts and Procedural History
                                                                                           1
[3]   In July 2007, the State charged Taylor with burglary as a Class C felony, auto
                                            2                                          3
      theft as a Class C felony, and two counts of theft as Class D felonies. In

      November, pursuant to a plea agreement, Taylor pleaded guilty to the burglary

      charge as well as a felony count of auto theft in a different cause. The court

      sentenced him to an aggregate sentence of fourteen years.


[4]   Although not clear from the documents on appeal, it appears Taylor filed a

      petition for post-conviction relief, which was denied. From 2007 through 2017,

      he also filed numerous documents with the court, including correspondence,

      requests for documents and exculpatory evidence, and requests for transcripts.


[5]   Eleven years later, in April 2018, Taylor filed this civil suit against several

      police officers, the mayor, assistant mayor, and town manager of the town of

      Merrillville, claiming that the information contained in the July 2007 police

      report, probable cause affidavit, and charging information was fabricated. On




      1
          Ind. Code § 35-43-2-1 (1999).
      2
          Ind. Code § 35-43-4-2.5 (1991).
      3
          Ind. Code § 35-43-4-2 (1985).


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2268 | March 26, 2019       Page 2 of 7
      June 20, 2018, the defendants filed a motion to dismiss the civil suit. Taylor

      filed a response, and thereafter the trial court granted the defendants’ motion

      with a detailed order on August 27. It is from this order that Taylor now

      appeals.


                                   Discussion and Decision
[6]   As a preliminary matter, we note that Taylor is proceeding pro se. It is well

      settled that pro se litigants are held to the same legal standards as licensed

      attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans.

      denied. This means that they must follow the established rules of procedure and

      accept the consequences when they fail to do so. Id.


[7]   An appellate court engages in a de novo review of the trial court’s grant or

      denial of a motion based on Trial Rule 12(B)(6). Brown v. Vanderburgh Cty.

      Sheriff’s Dep’t, 85 N.E.3d 866, 869 (Ind. Ct. App. 2017). A motion to dismiss

      under Rule 12(B)(6) tests the legal sufficiency of a claim, not the supporting

      facts. Id. Accordingly, we must determine if the trial court erred in its

      application of the law, and we consider the complaint in the light most

      favorable to the nonmoving party and draw every reasonable inference in favor

      of that party. Chenore v. Plantz, 56 N.E.3d 123, 126 (Ind. Ct. App. 2016). The

      grant of a motion to dismiss is proper if it is apparent that the facts alleged in

      the complaint are incapable of supporting relief under any set of circumstances.

      Brown, 85 N.E.3d at 869.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2268 | March 26, 2019   Page 3 of 7
[8]   In its order dismissing the lawsuit underlying this appeal, the trial court

      determined that Taylor had not complied with the notice requirements of the

      Indiana Tort Claim Act (ITCA). The ITCA governs civil lawsuits against

      governmental entities and their employees. Ind. Code §§ 34-13-3-1 (1998), -3

      (2006). “Governmental entity” for purposes of the ITCA means a political

      subdivision of the state, and a town’s police department and offices of the

      mayor, assistant mayor, and town manager are political subdivisions. Ind.

      Code §§ 34-6-2-49(a) (2002), -110(4) (2007). The ITCA provides that a claim

      against a political subdivision is barred unless notice is filed with the governing

      body of the political subdivision and the Indiana political subdivision risk

      management commission within 180 days after a loss occurs. Ind. Code § 34-

      13-3-8 (1998). Where a plaintiff elects to sue a governmental employee in his or

      her individual capacity, notice under Indiana Code section 34-13-3-8 is required

      only if the act or omission causing the alleged loss is within the scope of the

      defendant’s employment. Chang v. Purdue Univ., 985 N.E.2d 35, 51 (Ind. Ct.

      App. 2013), 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 threats of harassment or litigation over decisions made within

      the scope of their employment. Id. Compliance with the ITCA is a question of

      law for the court to decide. Id.


[9]   In his complaint, Taylor alleges that the information provided in the police

      report, probable cause affidavit, and charging information was fabricated and


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2268 | March 26, 2019   Page 4 of 7
       that the police and the town officials are all involved in a conspiracy. Thus, all

       of the allegedly injurious actions upon which Taylor’s tort claim is based were

       performed squarely within the context of the defendants’ roles as the mayor,

       assistant mayor, town manager, and town police officers. Accordingly, notice

       under Indiana Code section 34-13-3-8 was required. See Chang, 985 N.E.2d at

       51.


[10]   In ruling upon the defendants’ motion to dismiss, the trial court thoroughly

       reviewed the record and found that Taylor had not alleged any compliance with

       Section 34-13-3-8. In addition, defendants attached as an exhibit to their

       memorandum of law supporting their motion the affidavit of Joseph Petruch,

       the Chief of the Merrillville Police Department. In his affidavit, Chief Petruch

       stated that he reviews and catalogs all tort claim notices filed against the police

       department and that his review of the department’s records revealed no tort

       claim notice being filed by Taylor. Appellant’s App. Vol. 2, pp. 97-98.


[11]   On appeal, Taylor asserts that he complied with Section 34-13-3-8 by filing a

       notice on December 19, 2017, but he fails to direct this Court to any

       documentation. Nevertheless, a review of Taylor’s Appendix reveals a form

       document entitled “NOTICE OF TORT CLAIM.” Id. at 11-20. Taylor’s

       name is handwritten on the top left corner of the first page, and it is dated

       November 27, 2017. The document bears a file stamp from the Clerk of the

       Lake County Circuit Court dated December 19, 2017. There is also a line to be

       filled in with a certified mail number, but the line is blank. The last page of the

       document contains Taylor’s signature with a date of November 27, 2017.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2268 | March 26, 2019   Page 5 of 7
       Taylor’s claims would have accrued at least by November 9, 2007, the date of

       his guilty plea and sentencing. Accordingly, pursuant to Section 34-13-3-8, his

       tort claim notice was to be filed with the governing bodies for the Merrillville

       mayor, assistant mayor, town manager, and the Merrillville police officers as

       well as the Indiana political subdivision risk management commission within

       180 days of that date—May 7, 2008. Consequently, the document Taylor filed

       with the Clerk of the Lake County Circuit Court in December 2017 failed to

       comply with the ITCA’s notice requirements. See Myers v. Maxson, 51 N.E.3d

       1267 (Ind. Ct. App. 2016) (affirming grant of summary judgment in favor of

       public defender and arresting officer in suit brought by defendant where actions

       upon which suit was based were performed within context of counsel and

       officer’s employment and defendant failed to file tort claim notice within 180

       days of date his claims accrued), trans. denied.


[12]   Although the only basis stated in the trial court’s order dismissing Taylor’s

       complaint is his failure to comply with Section 34-13-3-8, we can affirm a trial

       court’s dismissal on any theory or basis evident in the record. See Blackman v.

       Gholson, 46 N.E.3d 975, 977 (Ind. Ct. App. 2015). Therefore, we discuss

       additional grounds supporting the trial court’s dismissal of Taylor’s action.


[13]   First, we note that a suit against a public officer concerning the officer’s liability

       for an act or omission performed in the officer’s official capacity is subject to a

       five-year statute of limitation. Ind. Code § 34-11-2-6 (1998). Taylor filed his

       complaint in this action on April 20, 2018 alleging misconduct of public officers

       in 2007. Accordingly, Taylor’s action would also be barred based on his failure

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2268 | March 26, 2019   Page 6 of 7
       to bring it within the statute of limitation period established by Indiana Code

       section 34-11-2-6.


[14]   The trial court also could have properly dismissed Taylor’s complaint under the

       authority of Indiana Code section 34-11-2-4 (1998), which provides for a two-

       year statute of limitation in actions for injury to person or character. Again,

       Taylor’s cause of action accrued in 2007. The two-year statute of limitation

       provided for in Section 34-11-2-4 would have run in 2009. Consequently,

       Taylor’s cause of action filed in 2018 is time-barred.


                                                Conclusion
[15]   For the reasons stated, we conclude the trial court did not err by dismissing

       Taylor’s action because he failed to comply with the ITCA’s notice

       requirements. Further, his claim is otherwise barred by statutes of limitation.


[16]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2268 | March 26, 2019   Page 7 of 7
