Christopher Richardson v. Det. Arturo Azcona, Jr., Gary Police Department, and City of Gary, Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2018
• Docket: 45A05-1703-CT-599
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 29 2018, 9:32 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 APPELLEE Christopher Richardson Rodney Pol, Jr. Bunker Hill, Indiana Assistant City Attorney – City of Gary, IN Gary, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher Richardson, January 29, 2018 Appellant-Plaintiff, Court of Appeals Case No. 45A05-1703-CT-00599 v. Appeal from the Lake Superior Court Det. Arturo Azcona, Jr., Gary The Honorable Michael N. Police Department, and City of Pagano, Magistrate Gary, Indiana, Trial Court Cause No. Appellees-Defendants 45D09-1610-CT-00062

May, Judge.

[1] Christopher Richardson appeals the trial court’s grant of the motion to dismiss

filed by Detective Arturo Azcona, Jr., Gary Police Department, and the City of

Gary, Indiana (collectively, “the City”). Richardson argues the trial court erred

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 1 of 8 by not ruling on the motion as one for summary judgment and by not applying

the Indiana discovery rule when determining the date the statute of limitations

began to run. The City contends the trial court did not err because the alleged

violations accrued at the time of Richardson’s arrest, such that he is time-barred

from filing his claims.

[2] We affirm.

Facts and Procedural History [3] On August 20, 2010, Richardson shot Simmuel Mobley. Detective Azcona

arrested Richardson on September 15, 2010. Richardson was charged on

September 17, 2010. His initial hearing, before a magistrate, was on September

20, 2010. Richardson was held in the Lake County Jail until trial. A jury

found Richardson guilty. This court affirmed his conviction. Richardson v.

State, 968 N.E.2d 867 (Ind. Ct. App. 2012) (unpublished disposition), trans.

denied. Richardson sought but was denied post-conviction relief.

[4] On August 31, 2015, in federal court, Richardson filed a claim pursuant to 28

U.S.C. § 1983 (hereinafter, “§ 1983”) against the City of Gary and Detective

Azcona alleging he was arrested without probable cause and Mobley was

coerced into testifying falsely. On September 22, 2015, the federal court

dismissed his false arrest claim with prejudice finding it was barred by the

statute of limitations, and it dismissed his coercion claim as not yet ripe.

Richardson did not appeal the dismissals.

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 2 of 8 [5] On July 16, 2016, 1 Richardson filed the current claim in state court alleging

conspiracy, false arrest, false imprisonment, delay of prompt judicial

determination, and denial of a protected liberty interest. Richardson also added

the Gary Police Department as a party. The City filed a motion to dismiss as

the claims were barred by the statute of limitations, were barred by res judicata,

were unripe, and named parties that were improper because they had no control

over when Richardson was brought before a magistrate. Richardson requested

leave to amend his complaint to reflect he was pursuing only the claims of false

imprisonment, delay of prompt judicial determination, and denial of a protected

liberty interest. The trial court did not rule on Richardson’s motion to amend.

[6] After a hearing on the City’s motion to dismiss, the trial court requested

briefing on Indiana’s Journey’s Account Statute. 2 Thereafter, the trial court

1 Although the file-stamp on his claim reflects a later date, the trial court judge acknowledged Richardson’s claim had been misplaced by the court clerk. (See App. at 9.) 2 The Journey’s Account Statute says:

(a) This section applies if a plaintiff commences an action and: (1) the plaintiff fails in the action from any cause except negligence in the prosecution of the action; (2) the action abates or is defeated by the death of a party; or (3) a judgment is arrested or reversed on appeal. (b) If subsection (a) applies, a new action may be brought not later than the later of: (1) three (3) years after the date of the determination under subsection (a); or (2) the last date an action could have been commenced under the statute of limitations governing the original action; and be considered a continuation of the original action commenced by the plaintiff. Ind. Code § 34-11-8-1 (2005).

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 3 of 8 granted the City’s motion: “[T]he court now rules that Defendants’ Motion is

well taken in all respects. Furthermore, the court concludes that the Journeys

[sic] Account Statute does not save Plaintiff’s claim. Accordingly, all claims

still pending are dismissed with prejudice.” (App. Vol II at 135.) 3

Discussion and Decision 4

[7] We first note Richardson proceeds pro se. A litigant who proceeds pro se is held

to the same rules of procedure that trained counsel is bound to follow. Smith v.

Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed,

558 U.S. 1074 (2009). One risk a litigant takes when he proceeds pro se is that

he will not know how to accomplish all the things an attorney would know how

to accomplish. Id. When a party elects to represent himself, there is no reason

for us to indulge in any benevolent presumption on his behalf or to waive any

rule for the orderly and proper conduct of his appeal. Foley v. Mannor, 844

N.E.2d 494, 502 (Ind. Ct. App. 2006).

[8] We review summary judgment 5 using the same standard as the trial court:

summary judgment is appropriate only where the designated evidence shows

3 On August 8, 2017, pursuant to Richardson’s petition for writ of habeas corpus, the Seventh Circuit held that, due to Confrontation Clause errors, the State had 120 days to retry Richardson or he would be granted a writ of habeas corpus. Richardson v. Griffin, 866 F.3d 836 (7th Cir. 2017). 4 On appeal, Richardson challenges the dismissal of only those claims listed in his amended complaint. As such, we address only those claims. 5 Richardson argues the trial court erred in not ruling on the City’s motion to dismiss as a motion for summary judgment. The City argues the trial court treated its motion to dismiss as a motion for summary judgment and that any error in not naming its order as one for summary judgment is harmless. We will

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 4 of 8 there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).

All facts and reasonable inferences are construed in favor of the non-moving

party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the

challenge to summary judgment raises questions of law, we review them de

novo. Rogers, 63 N.E.3d at 320.

Due Process and Liberty Interest [9] Richardson’s claims of a delay of prompt judicial determination and denial of a

protected liberty interest are grounded in assertions of a due process violation

and a denial of his liberty interest. The trial court granted summary judgment

to the City on these claims because they are unripe. Such claims may be

brought only after a conviction has been set aside, as doing otherwise would be

considered a collateral attack on a valid conviction. Dominguez v. Hendley, 545

F.3d 585, 588 (7th Cir. 2008), reh’g denied, cert. denied 556 U.S. 1235 (2009).

Richardson’s underlying convictions have not been set aside; thus, the trial

court did not err when it granted summary judgment to the City on these

claims.

review this matter as an appeal from a summary judgment. See Dixon v. Siwy, 661 N.E.2d 600, 604 (Ind. Ct. App. 1996) (If the trial court treats a motion to dismiss as a motion for summary judgment and gives the parties “reasonable opportunity to present external material,” it does not err if it then fails to designate the motion as one for summary judgment instead of dismissal. The appellate court must simply review the case as though it arises from a grant of summary judgment.).

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 5 of 8 Statute of Limitations 6 [10] False imprisonment claims brought in federal court pursuant to § 1983 have a

statute of limitations equivalent to the personal injury tort statute of limitations

of the state in which they occurred. Wallace v. Kato, 549 U.S. 384, 389 (2007),

reh’g denied. Thus, for a federal § 1983 claim, the statute of limitations in

Indiana is two years. Ind. Code § 34-11-2-4 (2013). However, when, as here, a

public officer’s actions are implicated in a § 1983 claim filed in state court, the

proper statute of limitations is provided by Indiana Code section 34-11-2-6

(1998), which allows five years to file a claim. Myers v. Maxson, 51 N.E.3d

1267, 1281 (Ind. Ct. App. 2016), trans. denied. Thus, we review this matter

using the five-year statute of limitations.

[11] Richardson argues the trial court erred when it granted summary judgment to

the City as to this claim because he filed it within the statute of limitations.

Richardson asserts that, pursuant to Indiana’s Discovery Rule, the statute of

limitations for his claim should commence on the second day of his jury trial,

i.e., July 27, 2011, rather than when he was arraigned, i.e., September 20, 2010.

“Reflective of the fact that false imprisonment consists of detention without

legal process, a false imprisonment ends once the victim becomes held pursuant

6 Although the City’s motion to dismiss argues Richardson’s claims should be dismissed for three different reasons—failure to name the proper party, res judicata, and statute of limitations—the trial court’s order of dismissal is a general order and it is unclear as to which reasons the trial court dismissed Richardson’s claims. Richardson argues only his claim should not be dismissed because it was not barred by the statute of limitations; thus, we address only this argument.

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 6 of 8 to such process—when, for example, he is bound over by a magistrate or

arraigned on charges.” Wallace, 549 U.S. at 389 (emphasis in original); see also

Johnson v. Blackwell, 885 N.E.2d 25, 31 (Ind. Ct. App. 2008) (“cause of action

for false imprisonment/false arrest accrued when [arrestee] was bound over for

trial”). As such, the proper day for the statute of limitations on Richardson’s

false imprisonment claim to commence was, at the latest, September 20, 2010,

at his initial hearing.

[12] Richardson filed his § 1983 claim in State court on July 16, 2016. More than

five years elapsed between the alleged violation and when Richardson filed his

claim. 7 As we hold the false imprisonment allegation accrued September 20,

2010, and not July 27, 2011, Richardson presents no issue of material fact that

brings his filing within the five-year statute of limitations. Richardson’s false

imprisonment claim is barred, and the trial court did not err when it granted

summary judgment to the City on his claim. See id. at 33 (when plaintiff files

complaint outside the statute of limitation, dismissal is proper).

Conclusion

7 The trial court considered the Journey’s Account Statute, Indiana Code section 34-11-8-1 (2005), when it made its order; however, it concluded Richardson’s claim was not saved by this statute. Richardson argues he never abandoned his claim regarding the Discovery Rule and offers no cogent argument as to the application of the Journey’s Account Statute in this appeal. (See Appellant’s Br. at 16.) Therefore, any possible argument as to the Journey’s Account Statute is waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (waiving arguments for failure to cite authority or provide cogent argument).

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 7 of 8 [13] Any error by the trial court in naming its order one of dismissal rather than of

summary judgment was harmless as the trial court effectively treated the

motion as one of summary judgment. Richardson’s due process and liberty

claims are unripe; thus, the trial court did not err in granting summary

judgment, and we affirm. As Richardson’s false imprisonment claim is time-

barred and he presented no issue of material fact to overcome that bar, we

affirm the trial court’s order.

[14] Affirmed.

Barnes, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A05-1703-CT-00599 | January 29, 2018 Page 8 of 8