Opinion
24A-SC-994
10-23-2024
APPELLANT PRO SE James Gilman Carlisle, Indiana ATTORNEYS FOR APPELLEES Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Sullivan Superior Court The Honorable Hugh R. Hunt, Judge Trial Court Cause No. 77D01-2403-SC-73
APPELLANT PRO SE
James Gilman
Carlisle, Indiana
ATTORNEYS FOR APPELLEES
Theodore E. Rokita
Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] The Sullivan Superior Court dismissed inmate James Gilman's small claims complaint against Warden Frank Vanihel and Correctional Officer Gayhart.Gilman appeals, arguing he pleaded sufficient facts to state a claim upon which relief can be granted.
Correctional Officer Gayhart's first name is not in the record.
[¶2] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
Facts and Procedural History
[¶3] Gilman is an inmate in the Indiana Department of Correction, and he is housed at the Wabash Valley Correctional Facility. On June 14, 2023, Gilman filed a grievance with the DOC and alleged that numerous items were stolen from his MHU left-side jail cell on June 8. Some of Gilman's stolen property was not recovered. The person who stole the items put a towel over his head so he could not be identified on the security cameras. Gilman believed that an inmate identified only as Brody had stolen his items because Gilman's cellmate's coat was found in Brody's cell. Brody's cell was located in MHU right-side. Gilman alleged that Correctional Officer Gayhart allowed Brody to roam freely on MHU left-side during recreational time, which was contrary to DOC policy.
Presumably, "MHU" is an acronym for Main Housing Unit.
[¶4] Shortly after his property was stolen, Gilman filed a grievance and demanded reimbursement for his stolen property. In the grievance, he listed the items that were alleged to have been stolen and their values. On June 30, the DOC responded to his grievance. The response stated that monetary compensation was inappropriate "[b]ut[] this may qualify for a tort claim." Appellant's App. p. 8.
[¶5] On August 11, Gilman filed a tort claim notice, which contained allegations substantially similar to those raised in his grievance. Gilman listed the allegedly stolen items and their values, and he requested compensation from the DOC in the amount of $101.29. On December 18, the Attorney General's Office denied Gilman's tort claim.
[¶6] Gilman filed a small claims complaint in Sullivan Superior Court on March 11, 2024, naming Warden Frank Vanihel and Correctional Officer Gayhart as defendants. The trial court dismissed Gilman's complaint on March 12, but instructed Gilman that he had thirty days to amend his complaint. Gilman filed his amended complaint on March 28. Consistent with his grievance and tort claim, in his amended complaint, Gilman alleged that Gayhart had allowed inmate Brody into his cell in violation of DOC policy, Brody took property from Gilman, and Gayhart was responsible for the loss of Gilman's missing items. Gilman also alleged that Vanihel knew that Gayhart was responsible for Brody's theft and noted that Gayhart was reassigned to a different post after the incident. Gilman requested damages for the loss of his stolen property. Appellant's App. p. 18. Gilman's amended complaint named Vanihel and Gayhart as defendants. He named them with their DOC titles and gave the correctional facility as their address.
[¶7] On April 1, the trial court dismissed the amended complaint after concluding that Gilman had failed to allege how Vanihel and Gayhart's actions were "criminal, malicious, willful and wanton, outside the scope of their employment or calculated to benefit them personally." Id. at 2. Gilman now appeals.
Discussion and Decision
[¶8] Gilman argues that the trial court erred when it dismissed his amended complaint. Indiana's Screening Statute, Indiana Code section 34-58-1-2, provides that a trial court shall screen complaints filed by an offender to "determine if the claim may proceed." A claim may not proceed if the court determines that the claim is not a claim upon which relief may be granted. Id. We review de novo a trial court's dismissal of an offender's complaint under this statute. Guillen v. R.D.C. Mail Clerk, 922 N.E.2d 121, 122 (Ind.Ct.App. 2010).
Our General Assembly enacted the offender complaint screening procedure in Indiana Code section 34-581-2 "to prevent 'abusive and prolific offender litigation in Indiana.'" Taylor v. Antisdel, 185 N.E.3d 867, 873 (Ind.Ct.App. 2022) (quoting Smith v. Ind. Dep't of Corr., 883 N.E.2d 802, 804 (Ind. 2008)), trans. denied.
[¶9] Like the trial court, we look only to the well-pleaded facts contained in the complaint. Id. The statute is akin to a legislative interpretation of Indiana Trial Rule 12(B)(6), a rule which allows judges in civil cases "to consider a case in its early stages and, taking everything the plaintiff has alleged as true, determine whether it can proceed." Id. at 122-23 (quoting Peterson v. Lambert, 885 N.E.2d 719, 720 (Ind.Ct.App. 2008)).
[¶10] The Indiana Tort Claims Act ("ITCA"), Indiana Code chapter 34-13-3, governs tort claims against governmental entities and employees. The ITCA generally shields prison officers from liability for acts undertaken in their official capacities. Smith v. Ind. Dep't of Corr., 871 N.E.2d 975, 986 (Ind.Ct.App. 2007) (citing I.C. ch. 34-13-3), trans. denied. However, the ITCA allows lawsuits against government employees personally where
The Act places limitations on the State's liability by barring a potential plaintiff's suit unless he or she complies with the Act's provisions. Brown v. Alexander, 876 N.E.2d 376, 380 (Ind.Ct.App. 2007), trans. denied. The State agrees that "Gilman satisfied the requirements of the" ITCA because he filed a grievance and a tort claim, which the Attorney General denied, before he filed his complaint. Appellee's Br. at 10.
an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.Ind. Code § 34-13-3-5(c). Moreover, the "complaint must contain a reasonable factual basis supporting the allegations ...." Id.
1. Gilman's claims against Gayhart
[¶11] First, Gilman claims that the facts alleged in his complaint, if proven to be true, would establish that Gayhart's allegedly tortious acts were clearly outside the scope of his employment with the DOC. In Burton v. Benner, 140 N.E.3d 848, 852 (Ind. 2020), our supreme court explained that "there is no precise formula to determine whether an act is 'clearly outside' the scope of employment ...."
However, the court offered the following guidance.
[A]n employee's act or omission falls within the scope of employment if the injurious behavior is incidental to authorized conduct or furthers the employer's business to an appreciable extent. Knighten [v. East Chicago Housing Authority, 45 N.E.3d [788,] 792 [(Ind. 2015)] (citation omitted). Conversely, "an employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer." Id. (quoting Barnett v. Clark, 889 N.E.2d 281, 284 (Ind. 2008)). But "an employee's wrongful act may still fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business, even if the act was predominantly motivated by an intention to benefit the employee himself." Id. Ultimately, we have found that "the scope of employment encompasses the activities that the employer delegates to employees or authorizes employees to do, plus employees' acts that naturally or predictably arise from those activities." Cox [v. Evansville], 107 N.E.3d [453,] 461 [(Ind. 2018)].Id. Scope of employment "may include acts that the employer expressly forbids" or "that violate the employer's rules, orders, or instruction." Cox, 107 N.E.3d at 461.
[¶12] In his amended complaint, Gilman alleged that, after he had reported his missing items, the sergeant on duty "stated that he already knew who had stolen my property. Since the sergeant had not had the chance to review the security video, C/O GAYHART must have told the sergeant that he had seen inmate Brody leaving the left-side of MHU with a bag of property." Appellant's App. p. 15. Gilman also alleged that he was told that inmate Brody could not be charged with theft because "he had a towel over his head and his face could not be seen on the video." Id. Gilman then claimed that the "video showed inmate Brody leaving the MHU left-side and returning to the MHU right-side, but instead of going to his cell, the video showed Brody going to a cell on the 300 range of MHU right-side with the property, which is where [Gilman's] T.V. was found." Id. at 15-16.
[¶13] Gilman further alleged that Gayhart had allowed Brody to "come over to the MHU left-side during every out-door recreation period" when he was on duty, which is against DOC policy because Brody was not housed in the MHU leftside cells. Id. at 16. Gilman therefore claimed that Gayhart "ignored his duties and ignored the fact that inmate Brody was coming into the MHU left-side when he was not housed there; C/O GAYHART was directly responsible for inmate Brody having access to" Gilman's cell when he stole Gilman's property on June 8, 2023. Id.
[¶14] Gilman's factual allegations, if true, do not establish that Gayhart was "clearly acting outside the scope of" his employment with the DOC. In his complaint, Gilman did not specifically allege that Gayhart was acting outside the scope of his employment. See Appellant's App. pp. 14-17. Moreover, Gilman alleged that Gayhart was "responsible to ensure the safety and security of the MHU left-side inmates." Id. at 16. While Gilman's factual allegation could support the conclusion that Gayhart was derelict in his assigned duties by allowing Brody to access the MHU left-side, which was prohibited by DOC policy unless Brody had express permission, his failure to follow DOC policy and remove Brody from MHU left-side is not "clearly acting outside the scope of" his employment. Gayhart's failure to remove Brody from the left-side MHU could "naturally or predictably arise" from his supervision of that area of the correctional facility. Cf. Burton, 140 N.E.3d at 853 (holding that an off-duty State Trooper driving his vehicle in excess of the speed limit, which State Police policy forbids in non-emergency situations, was not clearly acting outside the scope of his employment).
[¶15] Gilman also claims that Gayhart's failure to remove Brody from the left-side MHU was "willful and wanton," which is misconduct that is either
Gilman has not alleged any facts that would establish that Gayhart's conduct was malicious because Gayhart did not commit an intentional wrong against Gilman. See Higgason v. State, 789 N.E.2d 22, 29 n.5 (Ind.Ct.App. 2003) (quoting Black's Law Dictionary 969 (7th ed. 1999)) (defining a malicious act as "an intentional, wrongful act performed against another without legal justification or excuse"). Likewise, Gilman has not alleged any facts that would support an allegation that Gayhart's conduct was criminal or calculated to benefit him personally.
1) an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time; or 2) an omission or failure to act when the actor has actual knowledge of the
natural and probable consequence of injury and his opportunity to avoid the risk.Witham v. Norfolk &W. Ry. Co., 561 N.E.2d 484, 486 (Ind. 1990). In his complaint, Gilman alleged that Gayhart was responsible for preventing inmates not housed in the MHU left-side from entering the left-side without explicit permission. Appellant's App. p. 16. Gilman alleged that Brody was housed in the MHU right-side. Gilman then alleged that Gayhart had allowed Brody "to come over to the MHU left-side during every out-door recreation period that he was assigned as the correctional officer on the MHU left-side." Id.
[¶16] Gilman has alleged sufficient facts, that if proven to be true, could establish that Gayhart willfully and wantonly allowed an inmate to repeatedly access areas of the left-side MHU without permission. DOC policy prohibited inmates not housed in the left-side unit from entering that unit without explicit permission. Brody's theft of Gilman's property could be found to be a natural and probable consequence of Gayhart's reckless disregard for ensuring the security of the leftside inmates. Therefore, Gilman alleged facts, which if proven to be true, could lead to the conclusion that Gayhart's conduct was willful and wanton. For this reason, the trial court erred when it dismissed Gilman's complaint against defendant Gayhart in his personal capacity.
2. Gilman's claims against Vanihel
[¶17] Turning to Gilman's claims against Vanihel, Gilman alleged that Vanihel knew Gayhart "was responsible, because just days after [Gilman] filed his Tort Claim, C/O GAYHART was moved out of his post as the MHU left side floor C/O on the night bracket" and reassigned "on the day bracket." Appellant's App. p. 17. Therefore, Vanihel "should not have recommended no settlement . . . ." Id. Gilman claims that Vanihel acted maliciously and wanted to save the DOC money by recommending that Gilman receive nothing for his stolen property. Appellant's Br. at 6.
[¶18] Gilman's claims concerning Vanihel's decision to reassign Gayhart to a new post and recommend no settlement are speculative at best. And even if Gilman's alleged facts were proven to be true, Vanihel's decisions concerning the assignment of DOC personnel within the prison are clearly within the scope of his employment. As alleged by Gilman, there are no facts that would support Gilman's claim that Vanihel's acts were willful or wanton. Vanihel's alleged conduct did not benefit him personally nor could it be considered criminal. Finally, there are no factual allegations in Gilman's complaint to support his allegation that Vanihel acted maliciously. Therefore, we affirm the trial court's dismissal of Gilman's complaint against Vanihel in his personal capacity.
Contrary to Gilman's claim in his complaint, the Special Investigations Division of the Attorney General's Office recommended that a "settlement is not warranted in this matter." Appellant's App. p. 12. But for the sake of argument, our analysis assumes that Gilman would be able to prove that Vanihel also recommended no settlement as alleged in Gilman's complaint.
3. The trial court erred when it failed to address the merits of Gilman's complaint against the State.
[¶19] Finally, we observe that the trial court dismissed Gilman's complaint only after considering his claims against the defendants in their individual capacities. Gilman listed Gayhart and Vanihel by their employee titles and provided their addresses at the correctional facility. As such, the trial court should have addressed the merits of Gilman's complaint against the defendants in both their individual and official capacities. See Banks v. Brown, 876 N.E.2d 335, 336 (Ind.Ct.App. 2007). A complaint filed against a state employee in his or her official capacity is the equivalent of a lawsuit against the State. See id.; see also Niksich v. Cotton, 810 N.E.2d 1003, 1007 (Ind. 2004) (explaining that "designating state employees as defendants by name or position is sufficient to sue a state agency"). And under the ITCA, an inmate may file a small claim suit for the loss of personal property. See Smith v. Ind. Dep't of Corr., 888 N.E.2d 804, 808 (Ind.Ct.App. 2008), trans. denied. Gilman's complaint claiming that DOC employees allowed Brody to steal his personal property "contains allegations concerning all of the material elements necessary to sustain a recovery under some viable legal theory." See Smith v. Donahue, 907 N.E.2d 553, 555 (Ind.Ct.App. 2009). We therefore reverse the trial court's order dismissing his complaint and remand with instructions to the trial court to reinstate Gilman's complaint against the State for further proceedings.
Conclusion
[¶20] The trial court properly dismissed Gilman's complaint against Vanihel in his individual capacity. However, Gilman alleged facts, which if proven to be true, could establish that Gayhart's conduct was willful and wanton. In addition, the trial court erred when it dismissed Gilman's complaint without considering whether he had stated a claim under the ITCA against the State before dismissing it under the screening statute, i.e. Indiana Code section 34-58-1-2.
The State claims that Vanihel and Gayhart are immune from liability even if they acted negligently. However, "assertion of immunity is an affirmative defense" See Reed v. White, 103 N.E.3d 657, 660 (Ind.Ct.App. 2018). Because Gilman's complaint was dismissed under the Screening Statute, the State and individually named defendants had not filed an answer or asserted any affirmative defenses in the trial court. And we will not consider their claims of immunity for the first time on appeal.
[¶21] Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
Kenworthy, J., and Felix, J., concur.