David Darst v. Indiana Dept. of Correction and Bruce Lemmon in his official capacity as Commissioner ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DAVID DARST GREGORY F. ZOELLER
Indiana State Prison Attorney General of Indiana
Michigan City, Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
FILED
Dec 27 2012, 9:42 am
IN THE CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
DAVID DARST, )
)
Appellant-Plaintiff, )
)
vs. ) No. 46A03-1206-CT-288
)
INDIANA DEPARTMENT OF CORRECTION )
and BRUCE LEMMON in his official capacity )
as COMMISSIONER, )
)
Appellee-Defendants. )
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Thomas J. Alevizos, Judge
Cause No. 46C01-1112-CT-593
December 27, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
David Darst, an inmate at the Indiana State Prison, filed suit against the Department of
Correction (“the DOC”) and its commissioner, Bruce Lemmon, in which he alleged that he
was injured while riding in a prison van. The DOC and Commissioner Lemmon filed a
motion to dismiss in which they argued that Darst had not exhausted administrative remedies
and that Commissioner Lemmon was immune from liability. The trial court granted the
motion to dismiss, and Darst appeals. Darst has not presented any argument concerning
Commissioner Lemmon’s immunity, and we affirm the dismissal of Darst’s claim against
Commissioner Lemmon. However, the DOC concedes that the record is inadequate to
determine the exhaustion issue. Therefore, we reverse the dismissal of Darst’s claims against
the DOC.
Facts and Procedural History
On December 23, 2011, Darst filed a complaint against the DOC and Commissioner
Lemmon. The complaint alleged that Darst was injured while riding in a prison van. Darst
claimed that prison personnel had restrained his hands and feet, but had not secured his seat
belt, and when the driver of the van braked abruptly, he was flung from his seat into a
“restraining screen.” Appellant’s App. at 4. The attorney general entered an appearance on
behalf of the defendants and filed a motion to dismiss. The motion to dismiss asserts that
Darst failed to exhaust administrative remedies and that Lemmon is immune from liability
pursuant to the Indiana Tort Claims Act (“ITCA”). On May 15, 2012, the trial court
dismissed Darst’s complaint without stating the grounds therefor. Darst now appeals.
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Discussion and Decision
The motion to dismiss was based partially on Indiana Trial Rule 12(B)(1) (dismissal
for lack of subject matter jurisdiction) and partially on Trial Rule 12(B)(6) (dismissal for
failure to state a claim on which relief can be granted). “Failure to exhaust administrative
remedies is a defect in subject matter jurisdiction.” State ex rel. Atty. Gen. v. Lake Superior
Court, 820 N.E.2d 1240, 1247 (Ind. 2005), cert. denied. Therefore, if an administrative
remedy is available, the plaintiff must pursue that remedy before proceeding in court. Sun
Life Assur. Co. of Can. v. Ind. Comprehensive Health Ins. Ass’n, 827 N.E.2d 1206, 1209
(Ind. Ct. App. 2005), trans. denied. A motion to dismiss for lack of subject matter
jurisdiction is the proper vehicle for challenging a plaintiff’s failure to exhaust administrative
remedies. Id.The standard of review for a Trial Rule 12(B)(1) motion “is dependent upon: (i)
whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed
facts, whether it conducted an evidentiary hearing or ruled on a ‘paper record.’” GKN Co. v.
Magness, 744 N.E.2d 397, 401 (Ind. 2001). Where, as here, the trial court ruled on a paper
record, our review is de novo. See id. (when trial court rules on paper record without
conducting evidentiary hearing, “no deference is afforded the trial court’s factual findings or
judgment because under those circumstances a court of review is in as good a position as the
trial court to determine whether the court has subject matter jurisdiction”) (internal quotation
omitted).
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A Trial Rule 12(B)(6) motion to dismiss is also reviewed de novo. Dawson v.
Newman, 845 N.E.2d 1076, 1080 (Ind. Ct. App. 2006), trans. denied.
Such a motion tests the legal sufficiency of a claim, not the facts supporting it.
Under T.R. 12(B)(6), a trial court’s grant of a motion to dismiss is proper if the
facts alleged in the complaint are incapable of supporting relief under any set
of circumstances. In making this determination, the court must look only to
the complaint and may not resort to any other evidence in the record. The
court considers the allegations in the complaint to be true. Such a motion
should be viewed in the light most favorable to the non-moving party and all
inferences should be resolved in the non-moving party’s favor.
Id. (citations omitted). “We may affirm the grant of a motion to dismiss if it is sustainable on
any theory.” Id.I. Commissioner Lemmon
The only allegation in the complaint that specifically mentions Commissioner
Lemmon asserts that he “was negligent in failing to properly establish a policy mandating the
use of seat belts as directed by Indiana law, and in failing to establish the supervision of
prison van transport officers.” Appellant’s App. at 6. The ITCA limits when a person may
sue a public employee personally as opposed to the governmental entity employing that
person.
A lawsuit filed against an 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
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(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the
allegations.
Ind. Code § 34-13-3-5(c).
Commissioner Lemmon argues that the allegations of Darst’s complaint do not fit any
of these categories. Darst did not respond to this argument at the trial level or on appeal. We
conclude that Darst has failed to make a cogent argument regarding the dismissal of
Commissioner Lemmon as a defendant. See Ind. Appellate Rule 46(A)(8)(a) (arguments
must be supported by cogent reasoning). Therefore, we affirm the trial court’s order with
regard to Commissioner Lemmon.
II. DOC
Without citation to authority or the record, Darst asserts that the DOC does not have a
grievance procedure for personal injuries and is not authorized to pay damages for personal
injuries. Alternatively, Darst argues that exhaustion of administrative remedies would be
futile. See Smith v. State Lottery Comm’n of Ind., 701 N.E.2d 926, 931 (Ind. Ct. App. 1998)
(exhaustion is not required “when the remedy is inadequate or would be futile, or when some
equitable consideration precludes application of the rule”), trans. denied (1999).
The DOC contends that there is a grievance procedure, citing Higgason v. Lemmon,
818 N.E.2d 500, 502-03 (Ind. Ct. App. 2004), trans. denied (2005). Higgason indicates that
the DOC has a grievance procedure for loss of personal property. The details of the
grievance procedure were not spelled out in the Higgason opinion, and there is no mention of
whether it encompasses personal injury claims. Thus, the record before us is silent as to
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whether there is a grievance procedure available to Darst. Further, without knowing whether
there is a grievance procedure available, we cannot say whether compliance would be futile.1
Therefore, we remand for the trial court to determine whether the DOC has a grievance
procedure that addresses personal injury claims and, if so, whether exhaustion of that remedy
would have been futile.
Conclusion
We affirm the dismissal of Darst’s claim against Commissioner Lemmon. However,
the record needs further development before it can be determined whether the claims against
the DOC should be dismissed. Therefore, we reverse the dismissal as to the DOC and
remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
KIRSCH, J., and MATHIAS, J., concur
1
The DOC concedes that the record is inadequate as to the issue of futility:
Although the evidence put forth by the DOC in the trial court suggests Darst did not grieve,
there is no additional evidence to show that if he had, it would not have been futile.
Therefore, the trial court’s dismissal of Darst’s claim for exhaustion at this stage was
improper and this matter should be remanded for further proceedings with respect to the
claims only against the DOC.
Appellees’ Br. at 5 (citation to record omitted).
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