Opinion
23A-CT-2577
08-26-2024
Kevin Michael Cardwell, Appellant-Plaintiff v. Paul David Bojrab, M.D., and Carol B. Sheridan, M.D., et al., Appellees-Defendants
APPELLANT PRO SE Kevin M. Cardwell Indianapolis, Indiana ATTORNEYS FOR APPELLEE PAUL DAVID BOJRAB, M.D. Michael E. O'Neill Nicholas J. Assise O'Neill McFadden &Willett LLP Schererville, Indiana ATTORNEYS FOR APPELLEE CAROL B. SHERIDAN, M.D. Edna M. Koch Joseph D. McPike Erin E. Meyers Zeigler Cohen &Koch Indianapolis, Indiana ATTORNEYS FOR APPELLEE ATTORNEY GENERAL TODD ROKITA Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Howard Superior Court The Honorable Matthew J. Elkin, Judge Trial Court Cause No. 34D01-2309-CT-2645
APPELLANT PRO SE Kevin M. Cardwell Indianapolis, Indiana
ATTORNEYS FOR APPELLEE PAUL DAVID BOJRAB, M.D. Michael E. O'Neill Nicholas J. Assise O'Neill McFadden &Willett LLP Schererville, Indiana
ATTORNEYS FOR APPELLEE CAROL B. SHERIDAN, M.D. Edna M. Koch Joseph D. McPike Erin E. Meyers Zeigler Cohen &Koch Indianapolis, Indiana
ATTORNEYS FOR APPELLEE ATTORNEY GENERAL TODD ROKITA Theodore E. Rokita Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
MATHIAS, JUDGE.
[¶ 1] Kevin Michael Cardwell appeals the trial court's dismissal of his complaint against Dr. Paul David Bojrab and Dr. Carol B. Sheridan (collectively, the "Hospital Defendants") and against three unknown Kokomo Police Department officers, an officer of the Indiana Attorney General's Office, the Indiana Attorney General, and the Attorney General of the United States (collectively, the "Government Defendants"). Cardwell raises three issues for our review, which we restate as the following two issues:
1. Whether the trial court erred when it dismissed his complaint for failure to state a claim upon which relief can be granted.
2. Whether the trial court abused its discretion when it denied Cardwell's request for the appointment of appellate counsel.
[¶ 2] We affirm.
Facts and Procedural History
[¶ 3] According to Cardwell's second amended complaint, on September 30, 2021, Cardwell went to a Kokomo hospital for hernia surgery. In the surgical room, Dr. Bojrab administered anesthesia. As he was doing so, another man entered the surgical room and said that he did not care if Cardwell lived or died because Cardwell was a child molester who would continue to hurt and molest children. Cardwell then heard doctors in the room discussing whether "they could over dose [sic] [Cardwell] and state that it was an accident." Hosp. Defs'. App. Vol. 2, p. 19.
[¶ 4] Afterward, Cardwell contacted the Kokomo Police Department. Officers told Cardwell "there w[ere] no violations" of law for them to follow-up on. Id. at 20. When Kokomo law enforcement officers failed to investigate, Cardwell complained to the Indiana Attorney General and, later, to the Attorney General for the United States. Due to the lack of investigation, Cardwell "hid[] in his apartment until he could get his brother to allow [Cardwell] to move [to] Indianapolis ...." Id. at 19.
[¶ 5] On September 21, 2023, Cardwell filed his complaint against the Hospital Defendants and the Government Defendants. The court dismissed his complaint the next day for failing to state a claim upon which relief can be granted. Cardwell then filed an amended complaint on October 2, which the court dismissed on October 6.
[¶ 6] On October 17, Cardwell filed his second amended complaint. In that complaint, Cardwell alleged that the Hospital Defendants and the Government Defendants had violated his civil rights. In particular, Cardwell alleged a cause of action against the Hospital Defendants and the Government Defendants under 42 U.S.C. §§ 1983, 1985, and 1986 for violating his Eighth Amendment right to be free from cruel and unusual punishment.
[¶ 7] The trial court again dismissed Cardwell's complaint. Cardwell then requested the court to appoint him appellate counsel at public expense on the ground that "he has the beginning effect[s] of Alzheimer's" and he "is unaware of how fast he may deteriorate ...." Att'y Gen. App. Vol. 2, p. 18. The trial court denied that request.
The Hospital Defendants ask that we strike Cardwell's filings and, in effect, dismiss this appeal due to Cardwell's substantial noncompliance with our appellate rules. Although the Hospital Defendants' request is well-taken, we nonetheless elect to decide this appeal on its merits.
1. The trial court properly dismissed Cardwell's complaint for failing to state a claim.
[¶ 9] On appeal, Cardwell first asserts that the trial court erred when it dismissed his complaint under Indiana Trial Rule 12(B)(6) for failing to state a claim. As our Supreme Court has stated:
A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. When ruling on a motion to dismiss, the court must view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the non-movant's favor. We review a trial court's grant or denial of a Trial Rule 12(B)(6) motion de novo. We will not affirm such a dismissal unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (internal quotation marks and citations omitted).
[¶ 10] We begin our review of this issue with some qualifications. First, Cardwell's brief on appeal limits his arguments to his putative claims under 42 U.S.C. § 1983. See Appellant's Br. at 7 ("This is a 1983 Claim ...."). Thus, insofar as his complaint identified other possible statutory causes of action, Cardwell has forfeited appellate review of the dismissal of his complaint under those statutes. Second, Cardwell's brief on appeal also limits his arguments to the dismissal of his complaint against the Hospital Defendants. He has therefore forfeited appellate review of the dismissal of his complaint against the Government Defendants.
Insofar as Cardwell attempts to resurrect his forfeitures in his Reply Brief, we note that a party may not raise an issue for the first time in his Reply Brief. E.g., Bunch v. State, 778 N.E.2d 1285, 1290 (Ind. 2002). We also note that, in Indiana, pro se litigants are held to the same standards as licensed attorneys. E.g., Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014).
[¶ 11] As for the dismissal of Cardwell's putative § 1983 claims against the Hospital Defendants, we affirm. Section 1983 provides a cause of action against state actors and those acting in collaboration with state actors. E.g., K.M.K. v. A.K., 908 N.E.2d 658, 662 (Ind.Ct.App. 2009), trans. denied. The Hospital Defendants are not state actors, and the complaint does not allege that they acted in collaboration with state actors. The trial court therefore properly dismissed Cardwell's complaint.
The Hospital Defendants assert that the merits of Cardwell's complaint should be assessed under Indiana's Medical Malpractice Act. But we decide this case based on the face of the complaint, which alleges a putative claim under 42 U.S.C. § 1983. We express no opinion on whether the substance of any such claim is in fact a claim under the Medical Malpractice Act.
2. The trial court did not abuse its discretion when it denied Cardwell's request for the appointment of appellate counsel at public expense.
[¶ 12] Cardwell also argues that the trial court abused its discretion when it did not appoint appellate counsel for him at public expense. As relevant here, Indiana Code section 34-10-1-2(b)(2) (2023) permits a trial court to appoint counsel at public expense in a civil action "under exceptional circumstances." One factor the court may consider in its decision on such a request is "[t]he likelihood of the applicant prevailing on the merits ...." I.C. § 34-10-1-2(c)(1).
[¶ 13] Cardwell requested the appointment of appellate counsel on the ground that he was suffering from early stages of Alzheimer's and was unsure how long he might have before that disease became too serious for him to adequately represent himself. The trial court was not obliged to appoint counsel on the basis of an unrealized future concern, especially, as demonstrated above, given the low likelihood of Cardwell prevailing on the merits of this appeal.
[¶ 14] We therefore affirm the trial court's denial of Cardwell's request for the appointment of appellate counsel.
Conclusion
[¶ 15] For all of these reasons, we affirm the trial court's dismissal of Cardwell's complaint and the court's denial of Cardwell's request for the appointment of appellate counsel.
[¶ 16] Affirmed.
Vaidik, J., and Weissmann, J., concur.