Court of Appeals of Indiana | Memorandum Decision 79A02-1604-PL-929 | December 30, 2016 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Jason Tye Myers

Stockwell, Indiana

ATTORNEYS FOR STATE 

APPELLEES

Gregory F. Zoeller

Attorney General

Aaron T. Craft

Elizabeth M. Littlejohn

Deputies Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jason Tye Myers,

Appellant-Plaintiff,

v.

Nalin Desai, et al.,

Appellees-Defendants.

December 30, 2016

Court of Appeals Case No.

79A02-1604-PL-929

Appeal from the Tippecanoe 

Superior Court

The Honorable Robert B. Mrzlack, 

Special Judge

Trial Court Cause No.

79D04-1309-PL-42

Bradford, Judge.
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Case Summary

[1] In November of 2013, Appellant-Plaintiff Jason Tye Myers stayed in a hotel 

that was owned and operated by Appellees-Defendants Nalin Desai, Bena 

Desai, and Kinjal, Inc. (collectively, “the Hotel Appellees”) for a number of 

weeks. On September 27, 2013, Myers filed a complaint for invasion of privacy 

against the Hotel Appellees, alleging that they had invaded his privacy by 

requiring him to provide the identification of a guest staying with him in the 

hotel and, upon request, subsequently providing this identification information 

to local law enforcement authorities. Myers subsequently amended his 

complaint to include various state and federal claims against the State of 

Indiana; Tippecanoe County Deputy Prosecutor Jonathan R. Dee; Tippecanoe 

Superior Court Judge Gregory Donat; Deputy Attorney General Cynthia L. 

Ploughe; Indiana Court of Appeals Judges John G. Baker, Paul D. Mathias, 

Melissa S. May, and Margret G. Robb; and Indiana Supreme Court Justices 

Brent Dickson, Robert D. Rucker, Steven H. David, and Mark S. Massa 

(collectively, “the State Appellees”). These claims pertained to the denial of 

Myers’s 2012 related petition for post-conviction relief (“PCR”). 

[2] The trial court eventually entered default judgment against the Hotel Appellees, 

after which the trial court awarded Myers zero dollars in damages. The trial 

court also dismissed the State Appellees from the lawsuit. Myers subsequently 

filed a motion to correct error, which was denied by the trial court.
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[3] On appeal, Myers challenges the trial court’s award of zero dollars in damages 

and the dismissal of the State Appellees. Finding no error, we affirm.

Facts and Procedural History

A. Facts Relating to Related Criminal and PostConviction Proceedings

[4] With respect to the facts leading to the instant appeal, this court’s 

memorandum decision in Myers’s related post-conviction proceedings provide 

as follows:

As part of an ongoing criminal investigation involving Felicia 

Norris, Tippecanoe law enforcement officials learned that Myers 

and Norris were staying together at the Lincoln Lodge on U.S. 

Highway 52. There were outstanding arrest warrants for Norris 

in both Clinton and Pulaski counties.

On November 13, 2003, police officers went to Myers’s room 

and asked him if Norris was there. Myers responded that a 

woman by the name of “Becky Best” was staying with him. 

Appellant’s App. p. 74. The officers warned Myers that he 

would be charged with harboring a fugitive if he was lying to 

them about the woman’s identity.

Thereafter, the police officers learned that Norris was, in fact, 

staying with Myers after the motel manager supplied them with 

Myers’s motel room registration card that listed Norris as the cooccupant. The police officers then returned to Myers’s room and 

arrested Norris. Myers was also arrested and charged with 

possession of a legend drug, a class D felony, assisting a criminal, 

a class A misdemeanor, and false informing, a class A 

misdemeanor.
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On June 15, 2004, Myers pleaded guilty to false informing, a 

class B misdemeanor, and was later sentenced to 180 days of 

incarceration. In exchange, the State dismissed the remaining 

charges.[1]

On May 30, 2012, Myers filed a petition for post-conviction 

relief, alleging that his trial counsel was ineffective. Myers 

contended, among other things, that his counsel was ineffective 

for failing “to move to suppress evidence that [Myers] had lied 

about the fact that ... Norris ... was staying in his motel room.” 

Appellant’s Br. p. 4. The State responded that even if Myers’s 

assertions were true, he failed to present any material facts that 

entitled him to post-conviction relief. Thus, the State argued that 

the post-conviction court should deny Myers’s request for relief 

without a hearing.

On August 24, 2012, the post-conviction court summarily 

dismissed Myers’s petition, concluding that Myers had failed to 

allege any facts or issues not known to him at the time of the 

guilty plea, and that:

6. [Myers] had no expectation of privacy in the motel 

ledger.

7. Entry into the motel room was obtained by 

consent.

8. There is no colorable suppression issue in the case 

at bar.

 

1

 At some point, Myers was placed on probation in lieu of incarceration following his guilty plea. While on 

probation, Myers was charged with nine unrelated felony counts, including several Class A felony drug 

charges. He was eventually convicted of four counts of Class A felony dealing in cocaine and sentenced to a 

term of thirty years.
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9. [Myers] failed to allege that he would have been 

acquitted had he proceeded to trial on this matter, 

nor has he alleged facts that would rise to a 

constitutional violation under the Indiana and 

Federal Constitutions.

Appellant’s App. p. 87. 

Myers v. State, 2013 WL 1858430 *1-2 (Ind. Ct. App. May 2, 2013), trans. denied. 

Myers appealed the post-conviction court’s August 24, 2012 summary dismissal 

of his petition. Id. at *2. Upon review, this court affirmed the judgment of the 

post-conviction court. Id. at *3. Myers’s subsequent petition for rehearing was 

denied on August 16, 2013. Myers then sought transfer to the Supreme Court 

of Indiana. On November 7, 2013, the Indiana Supreme Court denied Myers’s 

petition seeking transfer. 

B. Facts Relating to the Civil Claims at Issue in This 

Appeal

1. The Hotel Appellees

[5] On September 27, 2013, Myers filed a civil complaint for invasion of privacy

against the Hotel Appellees. Specifically, Myers argued that the Hotel 

Appellees had violated his privacy by requiring him to provide them with the 

identification of the individual staying with him in his hotel room and by 

turning this identification over to representatives of the Clinton County Sheriff’s 

Department. Default Judgment was entered against the Hotel Appellees on 

June 22, 2015. The trial court then allowed Myers to plead damages via 
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affidavit. In an order dated February 4, 2016, the trial court awarded Myers 

zero dollars in damages. 

2. The State Appellees

[6] On October 28, 2014, Myers amended his September 27, 2013 complaint to 

include various state and federal claims relating to the denial of his 2012 PCR 

petition against the State Appellees. In making these claims, Myers sought an 

order directing the named trial judge, the named judges of this court, and the 

named justices of the Indiana Supreme Court to further review his previouslyconsidered PCR petition. Myers also sought that the deputy prosecutor and the 

deputy attorney general be ordered to “[f]urther prosecute the action underlying 

this one ... in a manner that is consistent with [his/her] ethical duty[.]” 

Appellant’s App. pp. 252, 253. The State Appellees sought dismissal under 

Trial Rule 12(B)(6), arguing, among other things that each of the named parties 

was entitled to immunity. The trial court subsequently dismissed the claims 

against the State Appellees. 

3. Motion to Correct Error

[7] On March 9, 2016, Myers filed a motion to correct error, challenging both the 

award of zero dollars in damages and the dismissal of the State Appellees. This 

motion was denied by the trial court on April 1, 2016. This appeal follows. 

Discussion and Decision
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[8] Myers appeals following the denial of his motion to correct error. On appeal, 

we review a trial court’s decision on a motion to correct error for an abuse of 

discretion. Knowledge A-Z, Inc. v. Sentry Ins., 891 N.E.2d 581, 584 (Ind. Ct. App. 

2008), trans. denied. “An abuse of discretion occurs when the decision is against 

the logic and effect of the facts and circumstances before the court, and 

inferences that may be drawn therefrom.” Id. (citing Palmer v. Comprehensive 

Neurologic Serv., P.C., 864 N.E.2d 1093, 1102 (Ind. Ct. App. 2007), trans. denied). 

I. Award of Damages

[9] With respect to the Hotel Appellees, Myers challenges the trial court’s award of 

zero dollars in damages. “‘The computation of damages is strictly a matter 

within the trial court’s discretion.’” Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 

1018, 1034 (Ind. Ct. App. 2005) (quoting Romine v. Gagle, 782 N.E.2d 369, 382 

(Ind. Ct. App. 2003), trans. denied). “‘No degree of mathematical certainty is 

required in awarding damages as long as the amount awarded is supported by 

evidence in the record; however, an award may not be based upon mere 

conjecture, speculation, or guesswork.’” Id. (quoting Romine, 782 N.E.2d at 

382). To support an award of damages, “‘facts must exist and be shown by the 

evidence which afford a legal basis for measuring the plaintiff’s loss.’” Id. at 

135 (quoting Romine, 782 N.E.2d at 382). “‘To that end the damages must be 

referenced to some fairly definitive standard, such as market value, established 

experience, or direct inference from known circumstances.’” Id. (quoting 

Romine, 782 N.E.2d at 382-83).
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[10] In awarding zero dollars in damages, the trial court found as follows:

[Myers] has failed to prove that the [Hotel Appellees] violated his 

right to privacy by cooperating with the police. Even if this 

violation was proven, [Myers] has failed to prove that it resulted 

in damage. Any damage claimed by [Myers] was self-inflicted 

and flowed from the fact that he entered a guilty plea to False 

Informing, a Class B Misdemeanor, pursuant to a plea agreement 

on June 15, 2004.

Appellant’s App. pp. 455-56. 

[11] In challenging the trial court’s award of zero dollars in damages, Myers argues 

that his guilty plea did not act as a bar to recovery of damages from the Hotel 

Appellees. While Myers’s guilty plea might not act as a bar to recovering 

damages, it was within the trial court’s discretion to determine whether the 

evidence provided by Myers proved that the alleged invasion of his privacy by 

the Hotel Appellees resulted in measurable damage to him. Upon review, we 

conclude that the trial court acted within its discretion in making such a 

determination and, as a result, awarding zero dollars in damages. 

II. Dismissal of the State Appellees

[12] With respect to the State Appellees, Myers challenges the trial court’s order 

dismissing the claims levied against the State Appellees.

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. See Kitco, Inc. v. Corp. for Gen. 

Trade, 706 N.E.2d 581 (Ind. Ct. App. 1999). Thus, while we do 
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not test the sufficiency of the facts alleged with regards to their 

adequacy to provide recovery, we do test their sufficiency with 

regards to whether or not they have stated some factual scenario 

in which a legally actionable injury has occurred.

A court should “accept[ ] as true the facts alleged in the 

complaint,” Minks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App.

1999), and should not only “consider the pleadings in the light 

most favorable to the plaintiff,” but also “draw every reasonable 

inference in favor of [the non-moving] party.” Newman v. Deiter, 

702 N.E.2d 1093, 1097 (Ind. Ct. App. 1998). However, a court 

need not accept as true “allegations that are contradicted by other 

allegations or exhibits attached to or incorporated in the 

pleading.” Morgan Asset Holding Corp. v. CoBank, ACB, 736 

N.E.2d 1268, 1271 (Ind. Ct. App. 2000) (citations omitted).

Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134-35 (Ind. 2006). On 

review, we will affirm the trial court’s grant of a Rule 12(B)(6) motion to 

dismiss “if it is sustainable on any theory or basis found in the record.” Deiter, 

702 N.E.2d at 1097.

A. Dismissal of Federal Claims

[13] Although Myers’s arguments below and on appeal are somewhat unclear, it 

appears that Myers has asserted federal claims under 42 U.S.C. § 1983 (“§ 

1983”) against all of the State Appellees. § 1983 provides as follows:

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 
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injured in an action at law, suit in equity, or other proper 

proceeding for redress, except that in any action brought against 

a judicial officer for an act or omission taken in such officer’s 

judicial capacity, injunctive relief shall not be granted unless a 

declaratory decree was violated or declaratory relief was 

unavailable. 

(Emphasis added).

[14] The United States Supreme Court has held that “neither a State nor its officials 

acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t 

of State Police, 491 U.S. 58, 71 (1989). In reaching this holding, the United 

States Supreme Court explained the following:

Obviously, state officials literally are persons. But a suit against a 

state official in his or her official capacity is not a suit against the 

official but rather is a suit against the official’s office. As such, it 

is no different from a suit against the State itself. 

Id. (internal citations omitted).

[15] In determining whether an individual was sued in their official or personal 

capacity, we look to the caption of the case and the allegations and language 

used in the body of the complaint. See Lake Cty. Juvenile Court v. Swanson, 671 

N.E.2d 429, 434 (Ind. Ct. App. 1996). 

If a plaintiff seeks to sue public officials in their personal 

capacities or in both their personal and official capacities, the 

plaintiff should expressly state so in the complaint. We also note 

that courts ordinarily assume that an official is sued only in her 
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official capacity when a plaintiff alleges that a state official acted 

under the color of state law giving rise to liability under § 1983. 

Id. (internal citations ommitted).

[16] In filing suit against each of the State Appellees, Myers indicated that each was 

being sued in their official capacities only. Further, the nature of the claims 

brought against each of the State Appellees indicates that they are being sued in 

only their official capacities. Therefore, we will review the propriety of the 

dismissal only as it relates to claims brought against the State and State officers 

in their official capacities.

[17] Neither a state nor a state agency is a person under § 1983 regardless of whether 

the claims raised sought retrospective or prospective relief. See Severson v. Bd. of 

Trustees of Purdue Univ., 777 N.E.2d 1181, 1189 (Ind. Ct. App. 2002). As such, 

the trial court correctly dismissed the claims levied against the State of Indiana 

under § 1983. Further, if a plaintiff requests retrospective relief, then a state 

official sued in his official capacity is also not a “person” under § 1983. See id. 

The trial court, therefore, also correctly dismissed the claims levied against the 

remaining State Appellees by Myers which sought retrospective relief because 

the State Appellees were not “persons” under § 1983. 

[18] If, however, a plaintiff requests prospective relief, then a state official may be 

considered a “person” under § 1983. See id. It appears that at least some of 

Myers’s claims are seeking prospective relief. Specifically, it seems that Myers 

is seeking a court order or injunction that would authorize him to seek another 
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round of PCR, during which the State Appellees would be compelled to 

conduct said review in a manner consistent with Myers’s view of the law.

[19] In Martin v. Heffelfinger, 744 N.E.2d 555, 558-59 (Ind. Ct. App. 2001), we 

concluded that in order to seek prospective injunctive relief against a state 

official under § 1983, a plaintiff must prove that his remedies at law are 

inadequate before he can state a claim for equitable relief. A legal remedy is 

adequate “where it is as practical and efficient to the ends of justice and its 

prompt administration as the remedy in equity.” Martin, 744 N.E.2d at 559.

[20] In Martin, the plaintiff filed a complaint under § 1983 against a number of state 

officials, including the judge who revoked his probation. Id. at 557. Martin 

sought declarative and injunctive relief to bar the judge from presiding over any 

action involving him, claiming that he was entitled to relief because the 

revocation of his probation had caused him to lose his job. Id. The trial court 

dismissed Martin’s claim against the judge. Id. Upon review, we affirmed, 

concluding that the trial judge was entitled to judicial immunity because Martin 

had failed to prove that he was entitled to declarative or injunctive relief. Id. at 

559. Specifically, we concluded that Martin had failed to prove why the 

remedies available to him at law were inadequate. Id. In reaching this 

conclusion, we noted that Martin could raise the issues presented through the 

proper channels on a direct appeal from his conviction or in post-conviction 

proceedings. Id.
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[21] Just as in Martin, here Myers has failed to show that the legal remedies 

available to him are inadequate. Myers filed an unsuccessful PCR petition. 

Myers does not cite to any authority suggesting that he is entitled to relief under 

§ 1983 merely because his PCR petition was subsequently denied. Further, the 

Indiana Post-Conviction Rules set forth a procedure by which one may request 

permission to file a second or successive PCR petition. Nothing in the record 

indicates that Myers has been denied, or even sought, permission to file a 

successive PCR petition. Because we conclude that Myers has failed to show 

that the legal remedies available to him are inadequate, we further conclude 

that the trial court correctly dismissed the claims levied against the remaining 

State Appellees by Myers which sought prospective relief.

B. Dismissal of State Claims

1. Named Judges and Justices

[22] It is well-established that judicial officers are protected by a common law 

immunity from suit brought on the basis of their judicial acts. See Cato v. Mayes, 

270 Ind. 653, 655, 388 N.E.2d 530, 532 (1979) (citing Alexander v. Gill, 130 Ind. 

485, 489, 30 N.E. 525, 527 (1892)). “The reason for this rule is that such a 

liability for a judicial act would be inconsistent with the proper discharge of 

judicial duties.” Id. at 655, 388 N.E.2d at 532.

The test by which the question of the liability of a judicial officer 

is to be governed is twofold: (1) was the act complained of an 

exercise of judicial authority? and (2) did the court have 

jurisdiction of the parties and subject matter? If these two 
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questions are answered affirmatively, judicial immunity will be 

accorded to the officer.

Id. at 655, 388 N.E.2d at 532 (internal citation omitted).

[23] Review of the record clearly establishes that acts complained of by Myers were 

exercises of judicial authority and that the named judges and justices had both 

personal and subject matter jurisdiction over the parties and claims before the 

respective courts. As such, judicial immunity covers each of the named judges 

and justices. 

2. Deputy Prosecutor and Deputy Attorney General

[24] The Indiana Supreme Court has also recognized that prosecuting attorneys and 

the Attorney General and his or her deputies are protected by absolute 

immunity for acts reasonably within the general scope of authority granted to 

prosecuting attorneys. See Foster v. Pearcy, 270 Ind. 533, 537-38, 387 N.E.2d 

446, 449 (1979). 

This decision will insure that the prosecutor will be able to 

exercise the independent judgment necessary to effectuate his 

duties to investigate and prosecute criminals and to apprise the 

public of his activities. It will also allay the apprehensions about 

harassment of prosecuting attorneys from unfounded litigation 

which deters public officials from their public duties.

Id. at 537, 387 N.E.2d at 449. 

[25] Again, review of the record clearly establishes that the acts complained of by 

Myers were acts within the general scope of authority granted to prosecuting 
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attorneys and the Attorney General. As such, both the deputy prosecutor and 

the deputy attorney general were protected against Myers’s claims by 

prosecutorial immunity.

3. The Indiana Tort Claims Act

[26] The State Appellees are further immune from liability under the Indiana Tort 

Claims Act (“ITCA”). The ITCA governs lawsuits against political 

subdivisions and their employees. Myers v. Maxson, 51 N.E.3d 1267, 1278 (Ind. 

Ct. App. 2016) (citing Irwin Mortg. Corp. v. Marion Cnty. Treasurer, 816 N.E.2d 

439, 445 (Ind. Ct. App. 2004)), trans. denied. 

The ITCA provides substantial immunity for conduct within the 

scope of a public employee’s employment “to ensure that public 

employees can exercise the independent judgment necessary to 

carry out their duties without threat of harassment by litigation or 

threats of litigation over decisions made within the scope of their 

employment.” Irwin Mortg. Corp., 816 N.E.2d at 445; see also Ind.

Code § 34-13-3-3 (setting forth twenty-four separate categories for 

which immunity attaches). Compliance with the ITCA is a 

question of law for the court to decide. Id. Generally, whether 

the tortious act of an employee is within the scope of 

employment is a question of fact; however, under certain 

circumstances the question may be determined as a matter of 

law. Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003).

Maxson, 51 N.E.3d at 1278-79. It is specifically of note in this matter that 

Indiana Code section 34-13-3-3(6) provides that “[a] governmental entity or an 

employee acting within the scope of the employee’s employment is not liable if 
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a loss results from the ... initiation of a judicial or an administrative 

proceeding.”

[27] As is discussed above, each of the State Appellees was sued only in their official 

capacities. It is evident from Myers’s complaint that each were acting within 

their scope of authority and performing discretionary functions of the 

government in relation to a judicial proceeding. The deputy prosecuting 

attorney and the deputy attorney general both acted in accordance with their 

duty to defend against Myers’s PCR petition. Each of the judicial officers were 

acting in accordance with their duty to adjudicate cases, including cases 

involving a request for PCR, which have come before their respective courts. 

As such, each of the State Appellees were entitled to immunity under the 

ITCA. 

Conclusion

[28] In sum, we conclude that the trial court did not abuse its discretion in (1) 

awarding Myers zero dollars in damages with respect to the Hotel Appellees or 

(2) dismissing the claims levied against the State Appellees. As such, we affirm 

the judgment of the trial court.

[29] The judgment of the trial court is affirmed.

Vaidik, C.J., and Brown, J., concur.