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Stone v. Wright

Court of Appeals of Indiana

September 30, 2019

Heather Stone, Appellant,
v.
Doyle T. Wright and The City of Clinton, Indiana, Appellee.

          Appeal from the Vermillion Circuit Court No. 83C01-1610-CT-17. The Honorable Robert M. Hall, Special Judge

          Attorney for Appellant James E. Ayers Wernle, Ristine & Ayers Crawfordsville, Indiana

          Attorney for Appellees Daniel J. Paul Williams Barrett & Wilkowski, LLP Greenwood, Indiana

          BROWN, JUDGE.

         [¶1] Heather Stone appeals the trial court's dismissal of her second amended complaint against Doyle T. Wright and the City of Clinton (the "City, " and together with Wright, "Defendants") and denial of her motion for leave to file a third amended complaint. She raises five issues which we consolidate and restate as:

I. Whether the trial court erred in dismissing her second amended complaint; and
II. Whether the court abused its discretion in denying her motion for leave to file a third amended complaint.

         We affirm.

         Facts and Procedural History

         [¶2] On October 11, 2016, Stone filed a complaint against Wright, the Deputy Chief of Police for the City, and the City alleging that Deputy Chief Wright executed a false affidavit for probable cause on May 6, 2014, asserting that she touched A.M., a child, in a rude, insolent or angry manner resulting in bodily injury, that he conspired with Vermillion County Deputy Prosecutor Gregory S. Carter to charge her with a felony for which there was no probable cause as there was no injury nor any evidence of injury, and that she was wrongfully arrested and held in the Vermillion County Jail. She alleged that she suffered damages "by reason of such false charges, by her estrangement from her child, the expenses of living apart from her husband and family, the disruption of her marriage and home and the embarrassment in her community from the unfounded charges." Appellant's Appendix Volume II at 12.

         [¶3] On December 5, 2016, Defendants filed a motion to dismiss and alleged that state law claims of false arrest and malicious prosecution asserted by Stone were torts, that she filed a Notice of Tort Claim on May 23, 2016, that she failed to timely provide notice of her tort claims, and that they were entitled to immunity for her malicious prosecution claim. Defendants attached a Notice of Claim Against Political Subdivision dated May 25, 2016.

         [¶4] On January 19, 2017, Stone filed a first amended complaint which was similar to the initial complaint. On February 1, 2017, Stone filed a second amended complaint which was similar to the previous complaints but also referred to "causes of action for false arrest and malicious prosecution" and alleged that a remedy under the Fourteenth Amendment and 42 U.S.C. § 1983 was appropriate. Id. at 17.

         [¶5] In February 2017, Defendants filed a Notice of Removal of Civil Action to United States District Court. On August 15, 2017, the United States District Court for the Southern District of Indiana entered an order finding that Stone's false arrest claim began to accrue on May 9, 2014, when the state court found probable cause for battery resulting in bodily injury, issued an arrest warrant, and set an amount for bond. The court found that Stone had until May 9, 2016, to file her false arrest claim but waited until October 11, 2016, to file her complaint, and that "[a]ccordingly, her state law false arrest claim is time-barred by the statute of limitations." Appellees' Appendix Volume II at 58. The court found that Stone's "allegations are insufficient to state a claim for malicious prosecution pursuant to § 1983." Id. at 60. It also stated that "Stone has failed to allege any facts that demonstrate that Defendants acted with malice, and merely provided a conclusory allegation that Chief Deputy Wright acted without probable cause" and that "[a]ccordingly, Ms. Stone has failed to state a § 1983 malicious prosecution claim." Id. at 61. It stated that, "[b]ecause Ms. Stone's § 1983 false arrest and malicious prosecution claims are dismissed pursuant to this Order, her only remaining claims are state law claims of false arrest and malicious prosecution." Id. The court dismissed with prejudice Stone's false arrest and malicious prosecution claims pursuant to 42 U.S.C. § 1983 and remanded her state law claims of false arrest and malicious prosecution back to the Vermillion Circuit Court.[1]

         [¶6] On September 15, 2017, Defendants filed a motion to dismiss Stone's second amended complaint in the Vermillion Circuit Court pursuant to Ind. Trial Rule 12(B)(6) and asserted again that she failed to timely provide notice of her tort claim regarding her allegation of false arrest and that they were entitled to immunity with respect to her malicious prosecution claim.

         [¶7] On June 11, 2018, the court entered an order granting Defendants' motion to dismiss. On July 12, 2018, Stone filed a motion to correct error. On July 19, 2018, the court entered an order appointing a special judge and scheduled a hearing for August 6, 2018. On August 6, 2018, the court held a hearing at which Stone failed to appear and Defendants filed a response to the motion to correct error. On August 10, 2018, Stone filed a motion for enlargement of time to reply to Defendants' response. A chronological case summary entry dated August 14, 2018, states that Stone did not appear for the hearing on the motion to correct error, the court advised defense counsel that the motion to correct error was being taken under advisement, that Stone had filed a subsequent motion, "which is untimely, but, if [Stone] desires a telephonic conference, then the same may be arranged, otherwise, after August 20, 2018, the Court will consider the issue to be under advisement." Appellant's Appendix Volume II at 8. Following Stone's request, the court held a telephonic conference on August 20, 2018.

         [¶8] On August 27, 2018, Stone filed a motion for leave to file a third amended complaint alleging a claim of intentional infliction of emotional distress and that she served notice of her intent to assert her claims against Defendants on May 20, 2016 and "did so within 180 days of the dismissal of the charges against her . . . ." Id. at 54. On October 29, 2018, the court held a hearing on Stone's motion to correct error. On November 28, 2018, the ...


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