      MEMORANDUM DECISION                                                       FILED
                                                                           Aug 16 2016, 8:15 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                              CLERK
                                                                            Indiana Supreme Court
      precedent or cited before any court except for the                       Court of Appeals
                                                                                 and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



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


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Charles Sweeney,                                         August 16, 2016

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




      Friedlander, Senior Judge

[1]   After Charles Sweeney filed his complaint alleging violations under 42

      U.S.C.A. section 1983, the trial court granted the motion to dismiss filed by

      Senator David C. Long, President Pro Tempore of the Indiana State Senate,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CT-425 | August 16, 2016         Page 1 of 6
                                                                                            1
      and the Indiana General Assembly among others. Sweeney appeals, arguing

      that the trial court erred by dismissing his complaint and failing to reach a

      decision on the merits. We affirm.


[2]   Sweeney, who was under investigation in a missing person case involving

      Danny Guthrie, believed that the lead detective in the case was hounding him

      during the investigation. See Sweeney v. State, 704 N.E.2d 86 (Ind. 1998).

      Sweeney was investigated by the Bureau of Alcohol, Tobacco, and Firearms in

      1992 concerning allegations he had placed a pipe bomb under that detective’s

      vehicle. Id. Pursuant to the terms of the guilty plea for the federal offense,

      Sweeney agreed to implicate all others involved in the bombing, disclose the

      location of Guthrie’s body and any information related to Guthrie’s cause of

      death. Id. A search warrant was executed on Sweeney’s property at which time

      Guthrie’s body was found at the location described by Sweeney. Testing




      1
        Sweeney is a prolific litigant, who has been cited by the United States Supreme Court for his repeated abuse
      of that Court’s process, such that the Clerk of that Court is directed not to accept further petitions in
      noncriminal matters from him unless the docketing fee is paid and the petition is submitted in compliance
      with United States Supreme Court rules. See In Re Sweeney, 134 S. Ct. 2690, 189 L. Ed. 2d 231, 82 USLW
      3686 (2014). See also, Sweeney v. City of Marion, 27C01-0907-CT-654, transferred to Sweeney v. City of Marion,
      27D03-0907-CT-216 (dismissed); Sweeney v. State of Indiana et al.,10C01-1008-PL-1284 (dismissed); Sweeney v.
      Clark County, 22D01-1009-CT-1798 (dismissed); Sweeney v. State of Indiana, 49D12-1010-PL-44297
      (dismissed); Sweeney v. Steve Stewart, 10C01-1206-MI-53 (dismissed); Sweeney v. Chief Justice Brent Dickson et al.,
      70C01-1306-MI-259 (dismissed); Sweeney v. State of Indiana, 10A01-1308-SP-367 (denial of request to file
      successive petition for post-conviction relief); Sweeney v. Indiana Court of Appeals, 94S00-1310-OR-679
      (dismissed); Sweeney v. State of Indiana, 10A01-1405-SP-199 (denial of request to file successive petition for
      post-conviction relief); Sweeney v. State of Indiana , 10A01-1411-CR-488 (denied); State of Indiana ex rel. Charles
      Sweeney v. Clark County, 10S00-1503-OR-150 (dismissed), trans. denied; Sweeney v. Vicki Carmichael, 10C01-
      1504-MI-71 (pending); Sweeney v. State of Indiana, 10A05-1507-SP-975 (denial of request to file successive
      petition for post-conviction relief); Sweeney v. Vaidik, 77A01-1509-MI-1556 (denied), trans. denied; Sweeney v.
      State of Indiana, 10A05-1511-SP-2037 (denial of request to file successive petition for post-conviction relief).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CT-425 | August 16, 2016                  Page 2 of 6
      revealed that the bullet causing Guthrie’s death had been fired from a 9mm gun

      belonging to Sweeney.


[3]   The judge of the Clark Circuit Court issued a warrant to arrest Sweeney for

      Guthrie’s death. At that time, Sweeney was being held in a Kentucky state

      correctional facility pending sentencing on federal charges. The State requested

      and the trial court issued a writ of habeas corpus ad prosequendum, for

      temporary custody of Sweeney. On the same day the writ was issued, Sweeney

      was scheduled for sentencing in the United States District Court for the

      Southern District of Indiana. Sweeney was transported to Clark County shortly

      after the writ was issued.


[4]   Later that year, a hearing was held on Sweeney’s motion to quash the writ,

      focusing on concerns that the State did not have jurisdiction over Sweeney. At

      the hearing, Sweeney argued that prior to his sentencing in federal court, the

      State could have sought temporary custody of him by way of the writ, but after

      sentencing, the State was required to follow the procedures set out in the

      Interstate Agreement on Detainers. The Clark Circuit Court judge granted

      Sweeney’s motion to quash and ordered that the writ be declared void on the

      ground of Sweeney’s custody status—a prisoner awaiting sentencing on federal

      charges but held in a state correctional facility. The State dismissed the charges

      against Sweeney.


[5]   The murder charges were refiled against Sweeney on March 30, 1994. The

      State requested and the trial court issued a second writ of habeas corpus ad


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      prosequendum. Sweeney, who was housed in federal prison in Kentucky at the

      time, filed a motion to quash the second writ arguing that since the writs were

      identical, enforcement of the second writ was barred by res judicata. Our

      Supreme Court held that the trial court’s denial of the motion to quash the

      second writ was not precluded by res judicata because Sweeney’s custody status

      had changed since the first writ was issued. Id.


[6]   Tracking language found in Article 1, section 31 of the Indiana constitution,

      Sweeney submitted an “Application To The General Assembly For Redress Of

      Grievances Pursuant To Article 1, § 31 Of The Indiana Constitution” to the

      Indiana General Assembly. Appellant’s App. pp. 3-6. Sweeney asked the

      legislature to repeal Indiana Code section 35-33-10-5 (West, Westlaw current

      with all legislation of the 2016 Second Regular Session of the 119th General

      Assembly), and declare that Indiana Code section 35-33-10-4 (West, Westlaw

      current with all legislation of the 2016 Second Regular Session of the 119th

      General Assembly), is the exclusive method for a state to produce a defendant

      in federal custody for the purpose of criminal prosecution on state charges. The

      Principal Secretary/Deputy Chief Legal Counsel for the Indiana Senate sent a

      reply to Sweeney indicating that the matter should be resolved “through the

      court” and that the General Assembly would not take action on his application.

      Id. at 7.


[7]   Sweeney’s current appeal challenges the trial court’s dismissal of the complaint

      he filed against Senator David C. Long, President Pro Tempore of the Indiana

      Senate, and the Indiana General Assembly, among others, after receiving the

      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CT-425 | August 16, 2016   Page 4 of 6
      response to his application. Sweeney’s complaint sought a declaration that

      Indiana Code section 35-33-10-5 was null and void and an invalid law since the

      repeal of 18 U.S.C.A. section 4085 on October 12, 1984. Sweeney also sought

      a declaration that the only way Indiana may obtain temporary custody of a

      defendant in federal custody for purposes of state criminal prosecution was

      under Indiana Code section 35-33-10-4, regarding the Interstate Agreement on

      Detainers. The trial court granted the defendants’ motion to dismiss, leading to

      Sweeney’s appeal.


[8]   Because the trial court granted the motion to dismiss without stating the

      grounds relied upon, we presume that the trial court granted the motion to

      dismiss on all grounds set forth in the motion, looking at the complaint and the

      arguments made in the motion. Godby v. Whitehead, 837 N.E.2d 146 (Ind. Ct.

      App. 2005), trans. denied. While the Appellees’ brief frames its argument in

      support of the dismissal that way, Sweeney’s brief and reply brief focuses on the

      merits of the complaint. Since the trial court did not reach the merits in

      deciding the issue presented for our review, our review is limited to whether the

      trial court’s dismissal was correct.


[9]   Section 1983 of Title 42 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. 42 U.S.C.A. § 1983.




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[10]   Long’s motion to dismiss was filed under Indiana Trial Rules 12(B)(1) (lack of

       subject matter jurisdiction) and 12(B)(6) (failure to state a claim). The trial

       court correctly dismissed the complaint for failure to state a claim.


[11]   In Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), our Supreme Court

       analyzed Section 1983 of Title 42, and followed United States Supreme Court

       precedent in Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304,

       105 L. Ed. 2d 45 (1989), which held as follows:

               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 . . . . We hold
               that neither a State nor its officials acting in their official
               capacities are “persons” under § 1983.
       Bayh, 573 N.E.2d at 403 (quoting Will, 491 U.S. at 71, 109 S. Ct. at 2311

       (citations omitted)).


[12]   As in Bayh, the defendants in this case, Senator David C. Long, President Pro

       Tempore of the Indiana Senate, and the Indiana General Assembly are not

       persons under section 1983. Sweeney’s complaint does not state a claim.


[13]   Judgment affirmed.


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




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