DECOLA v. STATE (2025)

MEMORANDUM DECISION

[1] Thomas DeCola appeals pro se the trial court's dismissal of his complaint pursuant to Indiana Trial Rule 12(B)(6). DeCola presents one issue for our review, which we restate as whether the trial court erred by concluding his complaint failed to state a claim upon which relief can be granted. We affirm.

Facts and Procedural History

[2] In January 2017, police officers in Porter County, Indiana, arrested DeCola following a traffic stop, and the State charged DeCola with Class A misdemeanor carrying a handgun without a license.¹ The trial court determined DeCola was guilty as charged, and we affirmed his conviction on appeal. See T.D. v. State, No. 64A03-1711-CR-2556, 2018 WL 4403432 (Ind. Ct. App. Sep. 12, 2018) (mem.), trans. denied. In our opinion affirming DeCola's conviction, we held the trial court did not abuse its discretion when it refused DeCola's proposed jury instructions stating the handgun permitting process was unconstitutional because DeCola's proposed instructions were “invalid and unsupported by law.” Id. at *6. The General Assembly later repealed the portion of the carrying a handgun without a license statute that DeCola had been convicted of violating, and that repeal became effective on July 1, 2022.

[3] On August 22, 2023, DeCola filed a complaint against the State alleging six counts:

COUNT 1 – LOSS OF PHYSICAL PROPERTY

1. DeCola asserts compensatory damages against the State for the loss of his Bersa Thunder pistol as literal highway robbery.

COUNT 2 – FALSE ARREST & IMPRISONMENT

2. DeCola asserts that the State falsely arrested & imprisoned him for freely exercising his constitutionally protected right, carrying a handgun without a license.

COUNT 3 – MALICIOUS PROSECUTION & SHAM PROCEEDING

3. DeCola asserts that the State maliciously prosecuted him for freely exercising his constitutionally protected right within the context of their sham proceedings.

COUNT 4 – VIOLATION OF A PROTECTED RIGHT

4. DeCola asserts that the State maliciously infringed upon his U.S. Const. amend. II right to be armed, thus causing him damages as shown above. The municipal and county governmental agents working in privity with the State recklessly committed a criminal act under 18 U.S.C. § 241 by depriving DeCola of his constitutionally protected right to carry a handgun without a license.

COUNT 5 – LEGAL ESTOPPEL

5. DeCola asserts that the State engaged in reckless legal estoppel by two-facing his free exercise of a constitutional right, carrying a handgun without a license by making the constitutional right illegal then changing the law to make it legal.

COUNT 6 – OUTRAGE

6. DeCola asserts he has suffered outrage and emotional distress caused by the State's legal estoppel, which deprived him from exercising a constitutionally protected right, carrying a handgun without a license, while causing damage.

(App. Vol. 2 at 6-7.) DeCola requested compensatory and punitive damages.

[4] The State moved to dismiss DeCola's complaint. It argued DeCola's claims were barred by the statute of limitations, the State was not a person capable of being sued for money damages under 42 U.S.C. § 1983, legal estoppel was not applicable in DeCola's circumstances, and Indiana did not recognize outrage as an actionable tort claim. After holding a hearing, the trial court granted the State's motion to dismiss. The trial court explained:

[T]he Court grants the Defendant's Motion to Dismiss. Court now dismisses the claims of false arrest/false imprisonment, malicious prosecutions [sic] and § 1983 clams with prejudice due to Plaintiff's claims not being timely, as they were not filed within the two-year statute of limitations. In addition, the Court grants the Defendant's Motion to Dismiss the claims of legal estoppel, outrage and sham proceeding without prejudice as well pursuant to Indiana Trial Rule 12(B)(6) for failure to state a claim.

(Id. at 185.) DeCola failed to replead those counts dismissed without prejudice within the timeframe allowed by the Indiana Trial Rules, and the trial court ruled those claims were dismissed with prejudice.

Discussion and Decision

[5] Initially, we note DeCola proceeds pro se. We hold pro se litigants to the same standard as trained attorneys and afford them no inherent leniency because of their self-represented status. Zavodinik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Pro se litigants “are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016). “One of the risks that a [litigant] takes when he decides to proceed pro se is that he will not know how to accomplish all of the things that an attorney would know how to accomplish.” Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. denied, 558 U.S. 1074 (2009).

[6] DeCola appeals following the trial court's order granting the State's motion to dismiss pursuant to Trial Rule 12(B)(6). “A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006). We review the trial court's ruling on such a motion de novo. Stephens v. Hart, 198 N.E.3d 376, 380 (Ind. Ct. App. 2022), trans. denied. “As part of our de novo review, we take the facts alleged in the complaint as true, consider all the allegations of the complaint in the light most favorable to the non-moving party, and draw every reasonable inference in the non-moving party's favor.” Id.

[7] DeCola asserts “legal estoppel factually occurred” on July 1, 2022, the effective date when the General Assembly repealed the portion of the statute defining carrying a handgun without a license that the State had convicted DeCola of violating. (Appellant's Br. at 6.) He contends

legal estoppel is a cause of action against the State that begins the two (2) year statute of limitation under I. C. § 34-11-2-4 for injury on the day legal estoppel occurred. Occurrence of legal estoppel retro-activates the former untimeliness cause(s) for action over whatever injury sustained by the claimant(s). In this case, DeCola was injured by the State reversing their statutory mandate for a person to possess a pink-colored license for properly exercising their U.S. Const. amend. II right to be armed with a handgun or a criminal act if discovered to be without. DeCola was arrested, prosecuted, convicted, and sentenced for exercising his U.S. Const. amend. II right, which the State committed legal estoppel upon by repealing I. C. § 34-11-2-4. The resulting damages therefrom were argued by DeCola within the Trial Court to be atrocious.

(Id. at 6-7) (errors in original).

[8] However, DeCola provides no authority supporting his contention that the repeal of a criminal statute gives rise to a cause of action allowing an individual convicted under the statute to sue the State. See Ind. App. R. 46(8)(a) (argument must be “supported by cogent reasoning” and “[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal”).

[9] All six counts of DeCola's complaint are variations of his claim that his 2017 arrest and subsequent prosecution for carrying a handgun without a license violated his right to bear arms under the Second Amendment.² 42 U.S.C. § 1983 “provides a civil remedy against a person who, under color of state law, subjects a United States citizen to the deprivation of any rights, privileges, or immunities secured by the federal Constitution or federal laws.” City of Warsaw v. Orban, 884 N.E.2d 262, 267 (Ind. Ct. App. 2007), trans. denied. 42 U.S.C. § 1983 states, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

However, pursuant to the Eleventh Amendment of the United States Constitution,³ “a State may not be sued in either federal or state court without its consent under a federal statute grounded in [Congress's] Article I powers.” Montgomery v. Bd. of Trs. of Purdue Univ., 849 N.E.2d 1120, 1124 (Ind. 2006). Consequently, the Supreme Court of the United States held “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep't of State Police, 109 S. Ct. 2304, 2312 (1989). “Therefore, neither the State nor its officials when sued in their official capacity can be sued for money damages under” § 1983. Benedetto v. Ind. Univ., 707 N.E.2d 1062, 1063 (Ind. Ct. App. 1999). Here, DeCola's complaint failed to state a claim upon which relief could be granted because he named only the State as a defendant and sought redress for the alleged violation of his constitutional rights in the form of monetary damages. See, e.g., Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (holding inmate was prohibited from asserting § 1983 claim against the Indiana State Prison seeking monetary damages).

[10] Moreover, “[t]he statute of limitations for a § 1983 claim is governed by the personal injury statute of limitations of the state where the alleged injury occurred.” Riddle v. Khan, 168 N.E.3d 1017, 1023 (Ind. Ct. App. 2021). The personal injury statute of limitations in Indiana is two years from when the cause of action accrues. Ind. Code § 34-11-2-4(a). DeCola's arrest occurred in 2017, but he did not file the instant lawsuit until 2023. This is well outside the two-year statute of limitations period for asserting a claim under § 1983. See, e.g., Riddle, 168 N.E.3d at 1023 (holding plaintiffs’ § 1983 claim was time barred because it was filed more than two years after their claim accrued). In addition, to the extent DeCola's complaint seeks to assert tort claims related to his arrest and prosecution, such claims are likewise barred by the statute of limitations. See, e.g., Stone v. Wright, 133 N.E.3d 210, 216 (Ind. Ct. App. 2019) (holding plaintiff's false arrest and false imprisonment claims were barred by the statute of limitations). Therefore, we affirm the trial court's dismissal of DeCola's complaint.

Conclusion

[11] DeCola's complaint failed to state a claim upon which relief can be granted because the State is not a “person” who can be sued for money damages under § 1983 and DeCola's claims are barred by the statute of limitations. Accordingly, we affirm the trial court's dismissal of that complaint.

[12] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-2-1(a) (2014) (Subject to certain exceptions not applicable to DeCola, “a person shall not carry a handgun in any vehicle or on or about the person's body without being licensed under this chapter to carry a handgun.”).

2.   “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II.

3.   “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI.

May, Judge.

Tavitas, J., and Kenworthy, J., concur.