Opinion
24A-CT-996
10-08-2024
Gerald Lee Doll, Appellant v. Charlene Burkett, Appellee
APPELLANT PRO SE Gerald Lee Doll Michigan City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana John R. Oosterhoff 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable James A. Joven, Judge Trial Court Cause No. 49D13-2402-CT-5475
APPELLANT PRO SE
Gerald Lee Doll
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
John R. Oosterhoff
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge.
[¶1] Gerald Lee Doll, pro se, appeals the trial court's order dismissing his complaint against Charlene Burkett, the Director of the Department of Correction Ombudsman Bureau. We affirm.
Facts and Procedural History
[¶2] On February 8, 2024, Doll, an inmate at the Indiana State Prison in Michigan City, filed a "Verified Complaint" for a "Civil Tort" against Burkett alleging that the Department of Correction ("DOC") violated the policies regarding law library access and to provide proper and adequate food services. Appellant's Appendix Volume II at 11-12. He asserted that Burkett had a duty to properly investigate policy violations committed by the DOC, she "violated her oath and appointment by her repeated and constant (knowing and intentional) refusals to review policy violation(s) within the ISO [at the] Indiana State Prison -Michigan City Indiana," and her failure caused him injury "under 42 USC § 1983 and the 1st, 5th, 8th and 14th Amendments to the U.S. Constitution. (Individual liability.)." Id. at 16, 19. He argued that Burkett's conduct rose "to fraud, waste, abuse and wrongdoing within the Dep't of Administration." Id. at 29 (underlining omitted). He also asserted that Burkett was not entitled to qualified immunity under Ind. Code § 34-13-3-3(a)(9). He requested that Burkett pay the amount of "$521.00 (treble damages) for her acting with malice and ill will ...." Id. at 38.
Ind. Code § 34-13-3-3(a)(9) provides that "[a] governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following . . . (9) An act or omission performed in good faith and without malice under the apparent authority of a statute which is invalid if the employee would not have been liable had the statute been valid."
[¶3] On March 6, 2024, Burkett filed a motion to dismiss arguing that Doll's Section 1983 claims were barred by the doctrine of qualified immunity, the Section 1983 claims against her in her official capacity were barred because she in her official capacity was not a "person" for the purposes of Section 1983, any state law tort claims were barred by the Indiana Tort Claims Act, and Doll failed to state a cognizable federal or state law claim. Id. at 86. Doll filed a response to Burkett's motion, and Burkett filed a reply. On April 3, 2024, the trial court entered an order granting Burkett's motion to dismiss pursuant to Ind. Trial Rule 12(B)(6).
Discussion
[¶4] Pro se litigants are held to the same standards as trained attorneys and are afforded no inherent leniency simply by virtue of being self-represented. See Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). In the summary of argument section of his brief, Doll states that the trial court's grant of Burkett's motion to dismiss was arbitrary and capricious. He contends that Burkett was a person under Ind. Code §§ 4-13-1.2-2 and 4-2-6-1(a)(13) and is liable under Indiana tort law for damages caused by her willful and reckless conduct and should be removed from her position. The entirety of his argument follows:
Ind. Code § 4-13-1.2-2 provides: "As used in this chapter, 'ombudsman' means an employee of the bureau or an individual approved by the bureau to investigate and resolve complaints that the department of correction endangered the health and safety of any person, or that the department of correction violated specific laws, rules, or written policies."
Ind. Code § 4-2-6-1(a)(13) provides: "(a) As used in this chapter, and unless the context clearly denotes otherwise: . . . (13) "Person" means any individual, proprietorship, partnership, unincorporated association, trust, business trust, group, limited liability company, or corporation, whether or not operated for profit, or a governmental agency or political subdivision."
Argument
Standard of Review
A Trial Rule 12(B)(6) Motion tests the legal sufficiency, not the factual sufficiency of a complaint. Burress v. Ind. Farmers Mut. Ins. Group., 1993 Ind.App. Lexis 1524. Olmstead v. U.S., 277 U.S. 438, 485 (1928); Dissent by Louis Brandeis J., "Decency -security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen." "If the government (i.e. the DOC Ombudsman Charlene Burkett) becomes a law breaker, it breeds contempt for the law." Id. Appellee should be held to account for her willful negligence and disregard for public service. Ms. Burkett - shows complete disregard for the "so-called" mission statement[] of the DOC as; -
Discussion
"The Mission of The (DOC) is to protect the public by operating facilities and programs in a safe, secure, effective and accountable manner." This point Appellee has completely and utterly failed at. To include the trial court. (See) AP 00-00-101-Attachment II - Mission Statement.
To incl., 2014 Ind.App. Unpub. LEXIS 1256 Ftn. #1 (Clements v. Hanley).Appellant's Brief at 16-18 (some capitalization and underlining omitted).
To the extent Doll's reference to Clements v. Hanley constitutes a citation to Clements v. Hanley, 2014 WL 4722708 (Ind.Ct.App. Sept. 23, 2014), trans. denied, we note that that decision was unpublished and concluded that the pro se appellants had not demonstrated that their motion to correct error was improperly denied. See Clements, 2014 WL 4722708, at *5. With respect to Doll's mention of "Ftn. #1," Appellant's Brief at 18, the first footnote in Clements merely found that the appellants' brief violated the Appellate Rules. Clements, 2014 WL 4722708, at *1 n.1.
[¶5] Doll does not support his contention with cogent argument. Accordingly, his claims are waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding the defendant's contention was waived because it was supported neither by cogent argument nor citation to authority). See also Ind. Appellate Rule 46(A)(8)(a) (providing that the argument "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning" and "[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22").
[¶6] For the foregoing reasons, we affirm the trial court.
[¶7] Affirmed.
Mathias, J., and Kenworthy, J., concur.