FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
JAMES H. HIGGASON, JR. STEVE CARTER
Carlisle, Indiana Attorney General of Indiana
FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
JAMES H. HIGGASON, JR., )
)
Appellant-Plaintiff, )
)
vs. ) No. 77A05-0208-CV-362
)
STATE OF INDIANA, )
)
Appellee-Defendant. )
OPINION - FOR PUBLICATION
In addition, Indiana Trial Rule 3.1(E) requires parties to “promptly advise the clerk
of the court of any change in the information previously supplied to the
court.”
The State argues that “[b]ecause the Attorney General and the Office of Attorney
General had already appeared on behalf of the Defendants, it was not necessary
for Wilkins to enter an additional appearance.” (Appellee’s Br. at 9.)
We agree.
The Indiana Code permits the attorney general to “have such deputies, assistants, clerks,
and stenographers as he may deem necessary to promptly and efficiently perform the
duties of his office.” Ind. Code § 4-6-1-4. Accordingly, Ind. Code
§ 4-6-5-1 provides:
The attorney-general of the state of Indiana shall have the sole right and
power to appoint all necessary deputy attorneys-general, and to assign any deputy so
appointed to any agency of the state of Indiana to perform in behalf
of such agency and the state any and all of the rights, powers
or duties now or hereafter conferred by law or laws upon the attorney-general
or done by any attorney, counsellor, or deputy attorney-general for such agency.
Even after a deputy is assigned to work in an agency, the “deputy
shall be under the direction and control of the attorney-general.” Ind. Code
§ 4-6-5-2. Consequently, regardless of whether the Attorney General was being assisted
by Miller or Wilkins, the Attorney General represented Defendants at all pertinent times.
Under these circumstances, the trial court did not err when it considered
the motion to dismiss filed by Wilkins on behalf of the Attorney General.
See footnote
2.
Dismissal before Response
Higgason claims that the trial court erred when it granted Defendants’ motion to
dismiss thirteen days after it was filed because, pursuant to Ind. Trial Rule
6(C) and Ind. Trial Rule 12, Higgason had twenty days to respond to
Defendants’ motion. Higgason misreads the trial rules.
Defendants filed their motion to dismiss under Trial Rule 12(B)(6), which allows a
party to raise by motion the following defense: “Failure to state a
claim upon which relief can be granted, which shall include failure to name
the real party in interest under Rule 17.” Trial Rule 12(A) provides:
“The time allowed for the presentation of defenses and objections in a motion
or responsive pleading shall be computed pursuant to the provisions of Rule 6(C).”
Trial Rule 6(C) states:
A responsive pleading required under these rules, shall be served within twenty [20]
days after service of the prior pleading. Unless the court specifies otherwise,
a reply shall be served within twenty [20] days after entry of an
order requiring it. The service of a motion permitted under Rule 12
alters the time for service of responsive pleadings as follows, unless a different
time is fixed by the court:
(1) if the court does not grant the motion, the responsive pleading shall
be served in ten [10] days after notice of the court’s action;
(2) if the court grants the motion and the corrective action is allowed
to be taken, it shall be taken within ten [10] days, and the
responsive pleading shall be served within ten [10] days thereafter.
Trial Rule 6(C) requires a party to file a “required” responsive pleading within
twenty days of the prior pleading. In addition, that rule informs parties
how long after the trial court acts on a Trial Rule 12 motion
a party has to file an answer. However, contrary to Higgason’s claim,
nothing in the language of those rules gave him twenty days to respond
to Defendants’ motion.
As our supreme court has said:
There is no requirement in [Trial Rule 12] requiring the court to conduct
a hearing or oral argument upon, or to receive a response to a
motion to dismiss when the motion is addressed to the face of the
complaint and not supported by matters outside the pleadings. Where as here,
material has not been submitted in support of the motion, the motion should
be granted if it is clear from the face of the complaint that
under no circumstances could relief be granted. Appellant has presented no authority
supporting the proposition that a party should have access to the court before
the ruling upon an opponent’s motion to dismiss like the one here, and
for the lack of same he must bear the risk. The ruling
upon the motion to dismiss was not erroneous on this ground.
Cobb v. Owens, 492 N.E.2d 19, 20 (Ind. 1986) (internal citations omitted).
Because the trial court did not have to wait for a response from
Higgason, the trial court did not err when it ruled on Defendants’ motion
thirteen days after it was filed. See id.
3. Dismissal for Failure to Meet Ind. Code § 35-13-3-5
Finally, Higgason claims that the trial court erred when it granted Defendants’ motion
to dismiss under Trial Rule 12(B)(6). A Trial Rule 12(B)(6) motion tests
the legal sufficiency of a complaint, not the facts underlying the complaint.
Baker v. Town of Middlebury, 753 N.E.2d 67, 70 (Ind. Ct. App. 2001),
reh’g denied, trans. denied, 774 N.E.2d 513. “Therefore, we view the complaint
in the light most favorable to the non-moving party, drawing every reasonable inference
in favor of this party,” without looking at any evidence that may be
in the record. Id. During our review, we stand in the
shoes of the trial court and determine whether the trial court misapplied the
law. Id. The trial court properly grants the motion to
dismiss if “it is apparent that the facts alleged in the complaint are
incapable of supporting relief under any set of circumstances.” Id. We
sustain the trial court’s ruling if we can affirm on any basis found
in the record. City of New Haven v. Reichhart, 748 N.E.2d 374,
378 (Ind. 2001).
Higgason’s tort complaint named three government employees as defendants. Defendants’ motion to
dismiss alleged that the trial court did not have personal jurisdiction over Defendants
due to Higgason’s failure to meet the requirements of Ind. Code § 34-13-3-5.
Based upon that allegation, the trial court dismissed Higgason’s complaint.
Ind. Code chapter 34-13-3 controls tort claims against governmental entities and employees.
A plaintiff may not maintain an action against a governmental employee personally if
that employee was acting within the scope of his or her employment.
Ind. Code § 34-13-3-5(b). Rather, to bring a suit against an employee
personally, the plaintiff must “allege that 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;
See footnote (4) willful and wanton;See footnote or (5) calculated to
benefit the employee personally.” I.C. § 34-13-3-5(c). In addition, the plaintiff’s
complaint “must contain a reasonable factual basis supporting the allegations.”
Id.
The purpose for granting immunity to governmental employees is to “ensure that public
employees can exercise their independent judgment necessary to carry out their duties without
threat of harassment by litigation or threats of litigation over decisions made within
the scope of their employment.” Celebration Fireworks, Inc. v. Smith, 727 N.E.2d
450, 452 (Ind. 2000). “To be within the scope of the employment,
conduct must be of the same general nature as that authorized, or incidental
to the conduct authorized.” Id. at 453 (citing Restatement (Second) Agency §
229 (1958)).
In addition, our supreme court has further explained:
In Indiana, an employee’s tortious act may fall within the scope of his
employment “if his purpose was, to an appreciable extent, to further his employer’s
business.” Even the commission of an intentional criminal act may be considered
as being within the scope of employment if “the criminal acts originated in
activities so closely associated with the employment relationship as to fall within its
scope.” The question of whether the tortious acts of an employee are
within the scope of his employment is usually a question of fact, but
may be determined as a matter of law. However, the question of
whether the governmental employee was acting within the scope of his employment at
the time of the incident (not the degree of culpability) remains the central
focus of the inquiry. Even willful or wanton behavior does not necessarily
remove one from the scope of his employment.
Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993) (internal citations omitted).
If authorized and unauthorized acts are sufficiently associated, the unauthorized acts can be
within the scope of employment. Konkle v. Henson, 672 N.E.2d 450, 457
(Ind. Ct. App. 1996). However, if some of an employee’s acts were
authorized, while other acts were not, the jury should determine whether the unauthorized
acts were within the scope of employment. Id.
Here, Higgason’s complaint alleged that seventeen items were taken from him. Different
circumstances surround Higgason’s loss of different sets of items; therefore, we will discuss
separately the validity of the trial court’s dismissal with regard to each of
these sets of items.
A. Plastic bottles
First, Higgason claims, on October 14, 1999, Brannick confiscated two bottles of shampoo
and one bottle of conditioner from Higgason’s cell pursuant to Barnett’s policy that
prisoners in Higgason’s cell block could not have sixteen ounce plastic bottles.
According to the complaint, McCullough disposed of these three items pursuant to another
WVCF policy adopted by Barnett, which required either the IDOC or the prisoner
to dispose of any confiscated materials because they would not be held for
the prisoner to retrieve at a later date.
Taking the facts in the complaint as true, Higgason has not provided a
“reasonable factual basis” to support his claim that Defendants were “stealing” these items
from him. See Ind. Code § 34-13-3-5(c) (“The complaint must contain a
reasonable factual basis supporting the allegations.”). Rather, Higgason alleges that Brannick and
McCullough were acting pursuant to WVCF policies.
See footnote As for Barnett, Higgason has
not claimed that she did not have authority to adopt the policies she
adopted.See footnote The trial court did not err when it dismissed Higgason’s claim
as to this property.
See, e.g., Miner v. Southwest School Corp., 755
N.E.2d 1110, 1115 (Ind. Ct. App. 2001) (holding summary judgment appropriately granted to
government employee individually when complaint did not provide facts to support an allegation
that employee acted “clearly outside the scope of the employee’s employment”).
B. “Altered” property
Next, Higgason claims that Brannick confiscated one pair of Koss Mac 5 Headphones
and one set of mono ear plugs because they were “altered” property.
Again, according to the complaint, McCullough disposed of these two items pursuant to
Barnett’s policy that confiscated items would not be kept.
As with the last set of items, Higgason alleged that Brannick and McCullough
acted pursuant to WVCF policies. Accordingly, Higgason has not provided factual support
for a claim that they were stealing those items. Because Higgason has
failed to support such a claim with facts, he cannot sue them personally
for these actions. See, e.g., id. The trial court did not
err when it dismissed Higgason’s complaint as to these items.
C. “Inadvertently misplaced” items
The next set of items consists of an ankle brace, an acrylic mirror,
a soap dish, a bar of soap, and a washcloth. According to
Higgason, Brannick took these items from him on October 14, 1999 when he
was placed on “strip cell status” and did not return these items to
him when he was removed from “strip cell status” on October 18, 1999.
The complaint further claims that Brannick placed these items in the laundry
cart with Higgason’s State-issued clothing and linens, rather than placing the items with
the things that would be returned to Higgason at a later date.
Taking Higgason’s allegations as true, Brannick misplaced Higgason’s property when converting Higgason’s cell
to strip cell status. These are not facts that support an allegation
that Brannick was “stealing” Higgason’s property. Moreover, as converting Higgason’s cell to
strip cell status appears to be a task within the scope of Brannick’s
employment, Higgason could not properly sue Brannick in his personal capacity for these
actions. Ind. Code § 34-13-3-5(b). The trial court did not err
when it dismissed Higgason’s complaint against Brannick as to these items.
Regarding these items, Higgason also claims that McCullough “‘unjustly’ had Higgason put on
strip cell status . . . as a means to gain access to
Higgason’s personal property and legal work . . . to overtly confiscate (steal)
Higgason’s personal property and hygiene as a means of harassment, and in retaliation
for suing his wife.” (Appellant’s App. at 22.) However, Higgason has
not provided a reasonable factual basis to support this allegation. McCullough’s act
of placing Higgason on strip cell status appears “to an appreciable extent, to
further his employer’s business” because it is an act that maintains order and
discipline in the correctional facility. Kemezy, 622 N.E.2d at 1298. Consequently,
as a matter of law, Higgason cannot sue McCullough in his personal capacity
for this act that was within the scope of his employment. See
Ind. Code § 34-13-3-5(b).
D. Property taken but not properly logged
The final set of items consists of a tube of Chapstick, two tubes
of toothpaste, five greeting cards, one tube of “Magic Shave Cream,” one bottle
of lotion, five magazines, and one washcloth. Higgason claims that these items
were taken from him when he was put on “strip cell status” on
October 14, 1999 and not returned when he was removed from “strip cell
status” four days later. However, Higgason has not specifically alleged what happened
to these items.
As we noted above, McCullough’s act of placing Higgason on strip cell status
was an act that furthered the business of the correctional facility by maintaining
order and discipline. Consequently, as a matter of law, McCullough could not
be sued in his personal capacity for this act without Higgason providing a
reasonable factual basis to support an allegation under Ind. Code § 34-13-3-5(c).
See id. In addition, Brannick’s act of logging Higgason’s property was an
act undertaken within the scope of Brannick’s employment. As Higgason has not
alleged that Brannick “stole” these particular items nor provided a reasonable factual basis
to support such an allegation, the trial court did not err when it
dismissed this claim. See Miner, 755 N.E.2d at 1115.
In summary, while Higgason’s complaint uses the words “steal,” (Appellant’s App. at 22)
and “retaliation,” (Id.), the facts alleged in the complaint do not suggest Defendants
were acting criminally or maliciously when they adopted policies, removed prohibited items from
Higgason’s possession, placed Higgason on strip-cell status, erroneously logged Higgason’s items, and accidentally
misplaced items. Consequently, the trial court did not err when it granted Defendants’
motion to dismiss.
(b) . . . A lawsuit alleging that an employee acted
within the scope of the employee’s employment must be exclusive to the complaint
and bars an action by the claimant against the employee personally. However,
if the governmental entity answers that the employee acted outside the scope of
the employee’s employment, the plaintiff may amend the complaint and sue the employee
personally. An amendment to the complaint by the plaintiff under this subsection
must be filed not later than one hundred eighty (180) days from the
date the answer was filed and may be filed notwithstanding the fact that
the statute of limitations has run.
(c) A lawsuit against [a government] employee personally must allege that 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. The complaint must
contain a reasonable factual basis supporting the allegations.