Tavitas, J.
Case Summary
Lee Dunigan appeals the trial court’s dismissal of his complaint against the State of Indiana arising from alleged misconduct related to Dunigan’s 2020 child molestation conviction. We find that the trial court did not err in dismissing Dunigan’s complaint pursuant to the screening statute, which applies to actions filed by prison inmates. Moreover, given the mounting burden that Dunigan is placing on our court system, we find it appropriate to impose sanctions. We affirm the trial court’s dismissal of Dunigan’s complaint in the instant matter.
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Before proceeding to the facts pertinent to this particular case, some context is in order. On October 1, 2018, the State charged Dunigan with one count of child molesting, a Level 1 felony. Dunigan v. State, No. 20A-CR-1301, slip op. at 1 (Ind. Ct. App. Nov. 30, 2021). Dunigan chose to represent himself, and after a series of filings spanning many months, the trial court convicted Dunigan following a bench trial. On June 26, 2020, the trial court sentenced Dunigan to forty-two years in the Department of Correction. Since then, Dunigan has become “a prolific, abusive litigant.” See Zavodnik v. Harper, 17 N.E.3d 259, 262 (Ind. 2014) (referring to Zavodnik). Our case management system reveals some forty-nine different suits filed by Dunigan, including suits against the Governor and multiple suits against the Chief Justice of Indiana. At least one of these matters has been removed to federal court. Appellant’s App. Vol. II p. 46.
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We address the prosecutorial misconduct claims first. It is well known that a defendant may raise an objection to prosecutorial misconduct during the criminal trial phase and, indeed, must do so in order to preserve the issue for direct appeal. See, e.g., Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). Here, however, Dunigan has filed a civil action. As such, his claims of prosecutorial misconduct are not cognizable. We are aware of no authority—and Dunigan has provided none—holding that prosecutorial misconduct can sound in tort, either as a matter of statute or as a matter of common law.
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To the extent that Dunigan makes any claims that his civil rights were violated by the State, the trial court did not err in dismissing those claims. Ordinarily, federal constitutional claims must be brought under 42 U.S.C. § 1983, which Dunigan fails to mention either in his briefing on appeal or in his complaint below. Nevertheless, it is well settled that a State cannot be liable under a Section 1983 claim, as that section applies only to “persons.” 42 U.S.C. § 1983; City of Warsaw v. Orban, 884 N.E.2d 262, 267-68 (Ind. Ct. App. 2007) (citing Ross v. Indiana State Bd. of Nursing, 790 N.E.2d 110, 117 (Ind. Ct. App. 2003) (“a state or state agency may not be sued under § 1983 regardless of the type of relief requested . . . .”). Thus, the trial court did not err in concluding that these were claims upon which relief could not be granted.
With respect to State constitutional claims, we are aware of no Indiana court recognizing a right to a private cause of action for monetary damages under the Indiana Constitution. See, e.g. Smith v. Indiana Dep’t of Correction, 871 N.E.2d 975, 985-86 (Ind. Ct. App. 2007). [Footnote omitted.] Dunigan presents neither argument nor authority to the contrary. His claims, therefore, are not only meritless, they are waived. See Ind. Appellate Rule 46(A)(8); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding that the failure to present a cogent argument waives the issue for appellate review), trans. denied.
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Thus, “[t]he courts of this state, after due consideration of an abusive litigant’s entire history, may fashion and impose reasonable conditions and restrictions . . . on the litigant’s ability to commence or continue actions in this state that are tailored to the litigant’s particular abusive practices.” Id. at 266…
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Trial courts may use the statutes at their disposal, including the Three Strikes Statute where applicable, to address further complaints filed by Dunigan. Moreover, to the extent that the Three Strikes Statute is inapplicable to future complaints filed by Dunigan, with respect to any future lawsuits that arise directly or indirectly from any alleged conspiracies or misconduct by public officials related to Dunigan’s arrest, prosecution, conviction or confinement for child molestation, we impose the following conditions:
- Prior to filing any such lawsuit, Dunigan shall submit to the trial court a copy of the complaint that complies with the Indiana Rules of Trial Procedure that he wishes to file, accompanied by an affidavit certifying under the penalty of perjury that the allegations are true to the best of his knowledge, information, and belief;
- Dunigan shall also file a copy of all of the relevant documents pertaining to the ultimate disposition of each and every previous case instituted by Dunigan against the same defendant or emanating, directly or indirectly, from any alleged conspiracy or misconduct by public officials. This includes, but is not limited to, the complaint, any motions to dismiss or motions for summary judgment filed by the defendants in those actions, the trial court order announcing disposition of the case, and any opinions issued in the case by any appellate court;
- Dunigan shall file a legal brief, complete with competent legal argument and citation to authority, explaining to the court why the new action is not subject to dismissal by application of the doctrines of res judicata, collateral estoppel, or law of the case. If, after reviewing these materials, the trial court determines that the proposed lawsuit is frivolous, malicious, fails to state a claim upon which relief may be granted, or is otherwise utterly without merit, the court shall dismiss with prejudice the proposed complaint;
- Dunigan is required to verify his new complaint pursuant to Indiana Trial Rule 11(B); and
- Dunigan is specifically instructed to attach to such complaint a separate copy of this opinion.
See, e.g., Zavodnik, 17 N.E.3d at 265 (discussing sanctions imposed upon Mario Sims). For the many already existing lawsuits filed by Dunigan, trial courts may follow our Supreme Court’s guidance in Zavodnik and may be justified in imposing restrictions such as the ones discussed in Zavodnik.
Conclusion
The trial court did not err in dismissing Dunigan’s claims. Dunigan is instructed to heed the sanctions imposed herein. We affirm.
Affirmed. Riley, J., and May, J., concur.