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FOR PUBLICATION
ATTORNEY FOR APPELLANT: JAMES E. AYERS Wernle, Ristine & Ayers Crawfordsville, Indiana ATTORNEY FOR APPELLEE: KIRK A. HORN Mandel Horn McGrath & Reynolds P.C. Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRUCE ROBERT FOX, Appellant-Plaintiff, vs. DENNIS RICE, in his official capacity as MONTGOMERY COUNTY SHERIFF, and WEST CENTRAL COMMUNITY CORRECTIONS, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

FILED
Nov 04 2010, 9:24 am
of the supreme court, court of appeals and tax court

CLERK

No. 54A01-1003-PL-97

APPEAL FROM THE MONTGOMERY SUPERIOR COURT The Honorable Thomas K. Milligan, Judge Cause No. 54C01-0607-PL-288

November 4, 2010

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Bruce Robert Fox appeals the trial courts grant of summary judgment in favor of West Central Community Corrections ("WCCC") on Foxs claims of false arrest, false imprisonment, violation of rights under the Indiana Constitution and, pursuant to 42 U.S.C. section 1983, under the Fourth Amendment to the United States Constitution. Fox raises three issues for our review, which we restate as: 1) whether the trial court erred when it concluded the tort claim notice period expired before Fox filed his notice, 2) whether Foxs probation was revoked or tolled while he was imprisoned on other charges, and 3) whether WCCC caused Foxs allegedly false imprisonment. We hold the tort claim notice period expired before Fox filed his notice and therefore whether Foxs probation was revoked or tolled has no bearing on the summary judgment order before us. We also hold Foxs federal claim does not contain a genuine issue of material fact, and therefore affirm the trial courts entry of summary judgment in favor of WCCC. Facts and Procedural History1 Fox was arrested in January 1997 for child molestation and possession of marijuana. Fox pled guilty to possession of marijuana and was sentenced to one year of probation, among other things. He violated the conditions of this probation, and on February 25, 1998, the trial court modified his remaining probation to thirty-four days imprisonment with credit

We heard oral argument on October 8, 2010, at Westminster Village Retirement Community in West Lafayette, Indiana. We thank Westminster Village for its hospitality and counsel for their advocacy.

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for seventeen days already served and commitment to WCCC to administer 269 days of home detention. Fox began home detention on February 26, 1998. In March 1998, while Fox was serving his modified probation sentence, a jury found him guilty of several counts of child molestation stemming from his 1997 arrest and he was taken directly into custody. In April 1998, the trial court sentenced Fox to eighteen years in prison and committed him to the Indiana Department of Correction ("DOC"). At this point, Fox had served only a portion of his modified probation sentence for his 1997 conviction of possession of marijuana. The trial courts sentencing order did not mention Foxs modified probation sentence or orders entered in that cause, and no pleadings or other orders were filed in his child molestation case referring to his modified probation sentence for possession of marijuana. WCCC notified the trial court that Foxs modified probation sentence ceased until further notice. In June 1998, while in custody of the DOC, Fox signed an acknowledgment that a detainer had been filed regarding his conviction for possession of marijuana. And in February 2004, Fox signed an acknowledgement of his review and advisement of rebuttal rights on an offender evaluation and progress report, which states "Pending Charges: [cause number for Foxs 1997 possession of marijuana case], County Court Montgomery County, IN, issued 06-08-1998, hold type-C. community corrections." Appendix of the Appellant at 270. In July 2004, Fox became eligible for parole due to various good time and education credits. As a convicted sex offender, Fox could not be released completely without a

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physical address, but could be released to a county work release center for up to thirty days while he secured other housing. However, when the DOC released him on July 15, 2004, he was transferred to and retained by WCCC at the Montgomery County Jail pursuant to a hold on his record. Fox thought there was a mistake because he thought his home detention sentence had run and he had completed his required imprisonment. While under the authority of WCCC and in the custody of Montgomery County Jail, Fox sought an explanation for his continued imprisonment in several ways. He asked for an explanation from numerous jailors, who gave no meaningful response. He requested and received a chronological case summary from the Montgomery County Clerk of Court, and undertook independent legal research in the jail library. Fox spoke with his Terre Haute parole officer and with a corporal at Montgomery County Jail, who told Fox he "didnt have any paperwork on [Fox]." Id. at 181. Fox submitted four to six written special requests to the corporal-in-charge of the Montgomery County Jail to seek an explanation for his detention, all with no response. Still under the authority of WCCC, Fox was transferred to Warren County Jail in August 2004, where he continued to seek an explanation for his detention. He spoke to numerous jailors and submitted two to four written requests for an explanation, all with no meaningful response. In July or August of 2004, Charles Willis, a WCCC employee responsible for administering offender intake, received a call from a DOC official who informed him Fox "had completed whatever time he was sent there for and that they showed that he still had

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some sort of a hold or still had some legal issues with a sentence in Montgomery County." Id. at 170. Willis conferred with the Montgomery County Prosecutors office and the director of the WCCC program, and concluded Fox must still complete the modified probation sentence of home detention. Willis informed Fox of his conclusion, and on August 26, 2004, Willis wrote a memorandum to the Montgomery County Prosecutors office that stated he met with Fox to discuss Foxs situation and frustration. Willis "advised [Fox] he would have to petition the court for release from this cause." Id. at 153. Also on August 26, 2004, Willis completed and submitted to the Montgomery County Prosecutor a "Petition to Revoke or Modify Community Corrections Placement," a form that states Fox was assigned to WCCC for nine months by the Montgomery County Court after conviction for possession of marijuana on February 25, 1998. Id. at 235. On this form, Willis selected the first of two available boxes on the second page to request "[a] warrant be issued for [Foxs] arrest and the matter be set for a hearing on this petition." Id. at 236. The Montgomery County Court subsequently issued an arrest warrant, which was served upon Fox in jail on September 21, 2004. The other choice on the form, which Willis did not select, requests "[a] summons be issued ordering the defendant to appear for a hearing in this petition." Id. Willis later stated he did not intend to cause Fox to continue to be incarcerated nor to indicate a violation. Willis intended his memorandum and petition submitted to the prosecutor to be informative, and he advised Fox of the same. Although Fox believed he should not have been in prison, Willis informed him he could not be released without a trial

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court order. Willis asserted this petition was the only way under WCCCs system to seek clarification by the trial court. On October 31, 2004, Fox submitted an inmate grievance form that explained his sentences for his possession of marijuana conviction, probation violation, and child molestation convictions, listed his time served, asserted he had completed his incarceration, and requested immediate release. Fox was then transferred back to Montgomery County Jail. On November 4, 2004, the trial court ordered Montgomery County Jail to release Fox for time served, and he was released that same day. Fox filed a Tort Claims Notice on May 3, 2005, and a complaint on July 11, 2006, alleging false arrest, false imprisonment, and violations of the Indiana Constitution against the Montgomery County Sheriff, the Montgomery County Prosecutor, and WCCC. He filed an amended complaint on September 22, 2008, adding an allegation of violation of rights under the United States Constitution, brought pursuant to 42 U.S.C. section 1983. In October 2008, the trial court entered summary judgment on all of Foxs state law claims against Fox and in favor of the Sheriff, the Prosecutor, and WCCC. In December 2009, the trial court entered summary judgment on his claim under the United States Constitution against Fox and in favor of the Sheriff, the Prosecutor, and WCCC. Fox now appeals the judgments as to WCCC. 2

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In September 2010, this court granted a motion to dismiss party to appeal filed by Rice, the

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Discussion and Decision I. Standard of Review The standard of review of a summary judgment order is well-settled: summary judgment is appropriate if the "designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). The moving party bears the burden of showing no genuine issue of material fact in reliance upon specifically designated evidence. Estate of Pflanz v. Davis, 678 N.E.2d 1148, 1150 (Ind. Ct. App. 1997). If the moving party satisfies its burden, the burden shifts to the non-movant to set forth specifically designated evidence showing there is a genuine issue for trial. Id. A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute, or where undisputed facts are capable of supporting conflicting inferences on such an issue. Briggs v. Finley, 631 N.E.2d 959, 963 (Ind. Ct. App. 1994), trans. denied. Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts. Gen. Accident Ins. Co. of Am. v. Hughes, 706 N.E.2d 208, 210 (Ind. Ct. App. 1999), trans. denied. We may affirm a trial courts grant of summary judgment upon any theory supported by the designated materials. Sims v. Barnes, 689 N.E.2d 734, 735 (Ind. Ct. App. 1997), trans. denied. On appeal, we are bound by the same standard as the trial court, and we consider only those materials which the parties designated at the summary judgment stage. Pflanz, 678

Montgomery County Sheriff. Neither is the Prosecutor a party to this appeal.

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N.E.2d at 1151. We liberally construe all designated evidentiary material in the light most favorable to the non-moving party to determine whether there is a genuine issue of material fact for trial. Dunifon v. Iovino, 665 N.E.2d 51, 55 (Ind. Ct. App. 1996), trans. denied. II. Tort Claims Notice The Indiana Tort Claims Act ("ITCA") bars tort claims against a political subdivision unless notice of a tort claim is filed within 180 days "after the loss occurs." Ind. Code

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