885 N.E.2d 25 (Ind.App. 2008), 49A02-0709-CV-759, Johnson v. Blackwell

Docket Nº:49A02-0709-CV-759.
Citation:885 N.E.2d 25
Party Name:Jon S. JOHNSON, Appellant-Plaintiff, v. Stephon BLACKWELL, Individually, Cliff Cole, Individually, Anderson Police Department, Madison County Sheriff's Department, Appellees-Defendants.
Case Date:April 28, 2008
Court:Court of Appeals of Indiana

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885 N.E.2d 25 (Ind.App. 2008)

Jon S. JOHNSON, Appellant-Plaintiff,


Stephon BLACKWELL, Individually, Cliff Cole, Individually, Anderson Police Department, Madison County Sheriff's Department, Appellees-Defendants.

No. 49A02-0709-CV-759.

Court of Appeals of Indiana.

April 28, 2008

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[Copyrighted Material Omitted]

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Nathaniel Lee , Marcelino Lopez , Lee Cossell Kuehn & Love, LLP, Indianapolis, IN, Attorneys for Appellant.

Renee J. Mortimer , Jennifer Kalas , Hinshaw & Culbertson, LLP, Schererville, IN, Attorneys for Appellees, Stephon Blackwell and Madison County.

Jason A. Childers , Hulse Lacey Hardacre Austin & Shine, P.C., Anderson, IN, Attorney for Appellees, Cliff Cole and Anderson Police Department.


VAIDIK , Judge.

Case Summary

Following his conviction in federal district court for possession with intent to distribute crack cocaine, the Seventh Circuit reversed Jon S. Johnson's conviction in 2005, and the indictment against him was dismissed in 2006. Nearly four years after his February 27, 2003, arrest, Johnson

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filed a complaint against Stephon Blackwell, Cliff Cole, the Anderson Police Department, and the Madison County Sheriff's Department (collectively “Defendants" ) on November 21, 2006, in Marion Superior Court alleging civil rights violations, false imprisonment/false arrest, wrongful infliction of emotional distress, and invasion of privacy by intrusion. Finding that these causes of action accrued when Johnson was arrested or bound over for trial in 2003 and that the doctrines of continuing wrong and fraudulent concealment do not operate to toll the statute of limitations, we conclude that Johnson's complaint is barred by the two-year statute of limitations for injury to person. We therefore affirm the trial court.

Facts and Procedural History

We take our underlying facts for this case from the Seventh Circuit's opinion reversing Johnson's conviction for possession with intent to distribute crack cocaine, United States v. Johnson, 427 F.3d 1053 (7th Cir.2005) . Johnson largely relies upon Johnson to set forth the facts in his complaint in this case. On February 27, 2003, Stephon Blackwell, a detective assigned to a Madison County, Indiana, narcotics task force, received an anonymous tip that a “John Johnson" 1 was in possession of a large amount of crack. The female caller stated that Johnson had picked up the crack in Muncie, Indiana, and brought it back to his “Fulton Street address" in Anderson, Indiana. The tipster also stated that Johnson picked up crack shipments on Thursdays and drove a white vehicle; however, she offered no other details and did not explain the basis of her knowledge. The information was not otherwise corroborated. Blackwell and another detective, Cliff Cole, went to Johnson's home to investigate the tip.

After watching Johnson's house for about five minutes, the detectives approached his girlfriend as she was leaving the house. She verified that Johnson lived there and was inside at the time. The detectives asked her to knock on the door, and, after she did, Johnson answered. The detectives told Johnson about the anonymous tip and asked to search his house. Johnson denied that there were drugs inside. After speaking to the detectives for several minutes, Johnson turned his back on them and retreated down a hallway. Detective Blackwell responded by drawing his gun, pointing it at the ground, and saying, “[I]f you go down that hallway, John, now it's an officer safety issue." Id. at 1055. Johnson stopped and turned back toward the detectives, and Detective Blackwell returned the gun to its holster. Detective Blackwell asked again if he could search the house while Detective Cole phoned a supervisor to discuss whether they could get a search warrant. When Cole returned, Johnson said, “Well, you might as well come on in." Id. The detectives entered the house, and Johnson told them to “go ahead and search." Id. The detectives found a package of crack in a dresser.

Johnson was charged in the United States District Court for the Southern District of Indiana with possession with intent to distribute crack cocaine. Johnson moved to suppress the drugs, arguing that his consent was involuntary and tainted by his illegal detention. The district court denied his motion to suppress, and, on May 1, 2003, Johnson was convicted as charged. The district court sentenced him to 240 months of imprisonment and 10 years of supervised release.

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Thereafter, Johnson appealed the district court's denial of his motion to suppress to the Seventh Circuit. The Seventh Circuit retained jurisdiction but remanded the case to the district court for the limited purpose of allowing the court to make additional findings of fact on whether the detectives reasonably suspected that Johnson was engaged in or was about to engage in criminal activity and to analyze Johnson's motion in light of those findings. United States v. Johnson, 2004 WL 1873217, 107 Fed.Appx. 674 (7th Cir. Aug.18, 2004) .

On remand, the district court heard additional evidence and concluded that the detectives lacked reasonable suspicion to seize Johnson. United States v. Johnson, 2005 WL 1528140, *4 (S.D.Ind. June 3, 2005) . The case returned to the Seventh Circuit, which, on October 27, 2005, reversed Johnson's conviction and remanded the case to the district court. Johnson, 427 F.3d at 1058. The indictment was dismissed on July 14, 2006.

On November 21, 2006-nearly four years after his arrest-Johnson filed a four-count complaint against Defendants in Marion Superior Court. Specifically, Count I alleged civil rights violations 2 ; Count II alleged false imprisonment/false arrest 3 ; Count III alleged wrongful infliction of emotional distress 4 ; and Count IV alleged invasion of privacy by intrusion.5 All counts were based upon the search of Johnson's home and his arrest on February 27, 2003. On February 16, 2007, Defendants filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(6) arguing that Johnson's complaint was barred by the applicable two-year statute of limitations. Defendants also argued that Blackwell and Cole were improper parties because they were government employees acting within the scope of their employment. Following a hearing, the trial court dismissed this case on August 6, 2007. Johnson now appeals. Appellees Madison County and Blackwell and Appellees Anderson Police Department and Cole respond with separate briefs.

Discussion and Decision

Johnson contends that the trial court erred in dismissing his complaint pursuant to Indiana Trial Rule 12(B)(6) . A civil action may be dismissed under Trial Rule 12(B)(6) for “failure to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the claim, not the facts supporting it. Charter One Mortgage Corp. v. Condra, 865 N.E.2d 602, 604 (Ind.2007) . Thus, our review of a trial court's grant or denial of a motion based on Trial Rule 12(B)(6) is de novo. Id. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. Id. at 605. A complaint may not be dismissed for failure to state a claim upon which relief can be

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granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief. Id.

As detailed above, Johnson brings four state law claims in his complaint, namely, civil rights violations, false imprisonment/false arrest, wrongful infliction of emotional distress, and invasion of privacy by intrusion. Johnson, however, does not point to a specific statute of limitations for any of these claims. Rather, he proceeds under the assumption that a two-year statute of limitations applies to all of them. Defendants, on the other hand, argue that the statute of limitations governing injury to person, which is located at Indiana Code § 34-11-2-4 , applies to all four counts. We agree with Defendants. Specifically, Indiana Code § 34-11-2-4 provides that “[a]n action for ... injury to person ... must be commenced within two (2) years after the...

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