MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 06 2016, 5:58 am
regarded as precedent or cited before any
court except for the purpose of CLERK
Indiana Supreme Court
establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Gregory F. Zoeller
Charles Sweeney
Attorney General of Indiana
Carlisle, Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana.
IN THE
COURT OF APPEALS OF INDIANA
Charles Sweeney, December 6, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A05-1602-CT-425
v. Appeal from the Marion Superior
Court.
David C. Long, President Pro The Honorable Gary L. Miller,
Tempore, Indiana General Judge.
Trial Court Cause No.
Assembly, et al., 49D03-1510-CT-33234
Appellees-Defendants.
Friedlander, Senior Judge
Court of Appeals of Indiana |Mem. Dec. on Rehearing 49A05-1602-CT-425 | December 6, 2016 Page 1 of 3
[1] We grant rehearing for the limited purpose of clarifying the original decision in
this matter. We therefore grant Sweeney’s petition for this limited purpose, but
otherwise reaffirm the decision reached in our original opinion.
[2] Sweeney alleged he was entitled to prospective (injunctive) relief under 42
U.S.C. §1983, and named Senator David C. Long, President Pro Tempore of
the Indiana Senate, and the Indiana General Assembly as defendants. With
respect to prospective (injunctive) relief, the United States Supreme Court
observed in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,
2312, 105 L. Ed. 2d 45 n.10 (1989), that “[o]f course a state official in his or her
official capacity, when sued for injunctive relief, would be a person under §
1983 because ‘official-capacity actions for prospective relief are not treated as
actions against the State.’” Regardless of the relief requested, however, a state
or state agency may not be sued under § 1983. City of Warsaw v. Orban, 884
N.E.2d 262 (Ind. Ct. App. 2007), trans. denied.
[3] Sweeney’s complaint was properly dismissed as to the named defendants. The
Indiana General Assembly, a branch of state government, could not be sued
under § 1983. Senator Long, although a “person” for purposes of § 1983 with
respect to prospective relief only, was entitled to dismissal because Sweeney did
not state a claim upon which relief could be granted. A § 1983 claim need only
allege that a person has deprived the claimant of a federal right while that
person was acting under color of state or territorial law. Thornton v. State, 43
N.E.3d 585 (Ind. 2015). Sweeney has not met even this low bar as to Senator
Long, alleging only that the Indiana General Assembly has failed to act or
Court of Appeals of Indiana |Mem. Dec. on Rehearing 49A05-1602-CT-425 | December 6, 2016 Page 2 of 3
respond to his requests that Indiana Code section 35-33-10-5 be repealed.
Sweeney has not identified how Senator Long has deprived Sweeney of a
federal right while acting in his official capacity.
Mathias, J., and Barnes, J., concur.
Court of Appeals of Indiana |Mem. Dec. on Rehearing 49A05-1602-CT-425 | December 6, 2016 Page 3 of 3