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Ex-deputy’s suit against Marion County deputy prosecutor proceeds

November 15, 2016

A former Marion County deputy sheriff’s malicious prosecution lawsuit will proceed against a deputy prosecutor he claims pressed for a misconduct investigation against him at the request of a show-business connection. The suit claims the officer was forced to resign and stand trial on charges for which he was later acquitted.

In May 2014, then-Deputy Paul McGann was working the Coke Lot at the Indianapolis Motor Speedway when he arrested Zachary Pollack for misdemeanor resisting arrest and possessing alcohol as a minor. McGann’s civil suit says the charges against Pollack were dropped less than a month later, and Pollack’s father, Michael Pollack, requested McGann be prosecuted for allegedly assaulting Zachary Pollack. The suit says on July 1, 2014, Sheriff John Layton asked McGann to resign or be fired. McGann was charged in October and forced to resign.

McGann denied assaulting Zachary Pollack, and in September 2015, a jury found McGann not guilty of Class D felony official misconduct and Class A misdemeanor battery resulting in bodily injury.

Earlier this year, McGann filed a federal suit against Marion County Prosecutor Terry Curry, Sheriff John Layton, and deputy prosecutor Barbara Trathen. Her early career as a prosecutor was the basis for 2005-2007 CBS television drama “Close to Home,” which Michael Pollack produced, according to McGann’s suit. “The criminal investigation into Mr. McGann by the Marion County Sheriff’s Department was personally requested by Trathen,” his complaint says.

McGann also alleges that during depositions in his criminal case, “sheriff’s deputies testified that they would not have pursued an investigation of Mr. McGann if not for the insistence of Trathen.”

Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana last week granted a motion to dismiss McGann’s suit as it pertained to Curry, but denied the motion with respect to Trathen. McGann’s malicious prosecution claim against her in her individual capacity survives, and the judge rejected Trathen’s argument that she was entitled to absolute immunity.

A spokeswoman for the Marion County Prosecutor’s Office declined to comment on the case.

“The Court must consider the well-pleaded allegations of Mr. McGann’s Complaint to be true, and he specifically alleges that Deputy Prosecutor Trathen ‘personally requested’ that Mr. McGann be … investigated because of her ties to Zachary Pollack’s father,” Magnus-Stinson wrote. “These allegations sufficiently characterize Deputy Prosecutor Trathen’s actions as investigative, rather than prosecutorial, such that she is not entitled to absolute immunity as a matter of law on the pending motion.

“… (T)he involvement of Deputy Prosecutor Trathen in Mr. McGann’s resignation could be relevant to the showing of malice, or personal animosity,” Magnus-Stinson wrote in an order last week. “Thus, Mr. McGann’s malicious prosecution claim against Deputy Prosecutor Trathen survives the pending motion.”

The suit also alleges deliberate indifference by Layton for failing to conduct an independent investigation into the criminal charges against McGann.

The case is Paul McGann v. John Layton, et al., 1:16-cv-1235.
 

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