Melody Barrows v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 28 2020, 10:12 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANTS PRO SE ATTORNEYS FOR APPELLEES
Melody Barrows Curtis T. Hill, Jr.
Nicholas Barrows Attorney General of Indiana
Peru, Indiana Frances H. Barrow
Aaron T. Craft
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melody Barrows, et al., December 28, 2020
Appellants-Plaintiffs, Court of Appeals Case No.
20A-CT-563
v. Appeal from the LaPorte Circuit
Court
State of Indiana, et al., The Honorable Thomas J. Alevizos,
Appellees-Defendants. Judge
Trial Court Cause No.
46C01-1604-CT-598
Bailey, Judge.
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Case Summary
[1] When Cole Lane (“Lane”) was incarcerated in the Indiana Department of
Correction (“the DOC”), he was targeted by a prison gang and physically
injured. The gang also extorted protection monies from Lane’s mother and
stepfather, Melody and Nicholas Barrows (“Melody” and “Nicholas,” at times,
collectively “the Barrows”). Lane and the Barrows filed suit against the State of
Indiana, the DOC, Corizon (a contracted health care provider), and individual
DOC employees. The complaint alleged claims of negligence, intentional
infliction of emotion distress, and violations of Lane’s civil rights. Corizon
removed the case to federal court, Lane settled his claims, and the matter was
remanded to state court for trial of the Barrows’ claims for negligence and
intentional infliction of emotional distress.1 Summary judgment was granted to
all defendants. The Barrows now appeal, pro-se. We affirm.
Issues
[2] The Barrows present the following restated issues for review:
I. Whether the trial court improvidently granted summary
judgment to the defendants on the intentional infliction of
emotional distress claims; and
1
Corizon was dismissed as a defendant and is not a party to these state claims.
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II. Whether the trial court improvidently granted summary
judgment to the defendants on the negligence claims.
Facts and Procedural History
[3] In 2011, Joseph Hiles (“Hiles”) called Melody, claiming that he had Lane tied
up and would release him upon payment of $250.00. The Barrows paid
$250.00 to Hiles and Lane was released, but Melody reported the incident to
police. Hiles was subsequently convicted of kidnapping and was sent to
Westville Correctional Facility (“Westville”). Lane and Melody obtained a no-
contact order to prohibit Hiles from contacting either of them.
[4] In 2013, Lane was sentenced to serve time in the DOC, and Melody pre-
emptively called the DOC Reception Diagnostic Center to advise of the no-
contact order. DOC personnel told Melody that Lane was classified as a low-
level offender and prisoners of this classification were typically not housed at
Westville. Melody was assured that the no-contact order and an internal DOC
order for separation were of record. Notwithstanding expectations, Lane was
sent to Westville.
[5] Shortly after Lane’s arrival at Westville in September of 2013, Melody received
a call from an individual claiming to be a member of the same gang as Hiles.
He demanded money not to tell Hiles that Lane was at Westville. Next,
different individuals purporting to be gang members began calling Melody
almost daily. Melody was typically instructed to buy a pre-paid debit card and
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give the card numbers to the next caller. She and Nicholas complied with the
demands until they were out of funds.
[6] On November 14, 2013, a person identifying himself as “Buddha” called
Melody and told her that “there was a price on Cole’s head.” (Appellee’s App.
at 13.) Two days later, “Buddha” called back to demand $1,500.00 or Lane
would be stabbed. Depleted of cash, the Barrows offered “Buddha” a vehicle
they estimated to be worth $1,500.00 to $2,000.00. “Buddha” sent his mother
to a repair shop in Peru, Indiana, where Melody surrendered the vehicle and
keys. Melody later mailed the vehicle title to an address provided to her.
Despite the Barrows’ compliance with many demands, Lane was beaten on
multiple occasions.
[7] Lane was transferred to Plainfield Correctional Facility (“Plainfield”), but the
demands for money from the Barrows continued. In April of 2014, Lane was
walking from the cafeteria when he was ambushed and beaten by six inmates.
He was provided medical treatment (albeit allegedly minimal and delayed),
placed in protective custody, and transferred to the New Castle Correctional
Facility (“New Castle”). After Lane’s transfer to New Castle, the Barrows
considered him to be safely housed and did not comply with any further
demands for money.
[8] During these events, the Barrows did not contact law enforcement. But they
hired an attorney, who sent a letter dated November 25, 2013 addressed to
Mark Levenhagen (“Levenhagen”), the Westville superintendent, and to the
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Commissioner of the DOC. The letter detailed the extortion scheme and past
violence against Lane. Additionally, Melody initiated numerous telephonic
and e-mail contacts with DOC personnel.
[9] Melody had two telephone conversations discussing the situation with Sharon
Hawk (“Hawk”), whom Melody understood to be an educational director at a
Westville dorm. In November of 2013, Melody called Larry Steinbeck
(“Steinbeck”), a captain at Westville. Melody reported that Lane had been
“jumped” and beaten, and she asked that Lane be placed in protective custody
(Id. at 12.) Melody advised Steinbeck that she had Lane’s “power-of-attorney,”
but Steinbeck responded that Lane needed to personally request protective
custody. (Id.) Melody had “a string of” e-mail and telephone contacts with
Marshall Hayes (“Hayes”), of the DOC Internal Affairs Division. (Id. at 16.)
Melody disclosed the history of extortion and violence, and Hayes stated that
he would “get to the bottom of it” and “it would cease.” (Id. at 19.) Melody
spoke with Hayes a final time after Lane was injured at Plainfield. She also had
a telephone conversation with a Plainfield captain, Nathan Lagenour
(“Lagenour”), to check on Lane’s condition after the beating that took place in
that facility.
[10] On March 30, 2016, Lane and the Barrows filed a Complaint, naming as
defendants the State of Indiana, the DOC, Westville, Plainfield, Corizon,
Levenhagen, Hawk, Steinbeck, Lagenour, Hayes, and three other individuals
alleged to be DOC employees. Because Lane claimed that his civil rights had
been violated, the case was removed to federal court. Lane settled his claims
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against all defendants and, on July 25, 2017, the United States District Court,
Southern District of Indiana remanded the case to state court for trial of the
Barrows’ claims.
[11] On August 31, 2018, the defendants filed a motion for summary judgment and
designation of materials. On October 31, 2018, the Barrows filed a response in
opposition to the motion for summary judgment. On February 25, 2019, the
trial court conducted a summary judgment hearing, at which argument of
counsel was heard regarding whether the defendants had a duty to act to
prevent extortion of an inmate’s family members.
[12] On November 25, 2019, the trial court entered an order granting summary
judgment to all defendants. The trial court determined that the individual
defendants were immune from liability under the Indiana Tort Claims Act (“the
Act”)2 and the government entities did not owe the Barrows a duty of care.
Additionally, the trial court’s order stated that the designated evidence revealed
no contributory negligence by the Barrows, nor did it reveal an act that would
amount to intentional infliction of emotional distress. The Barrows filed a
motion to correct error, which was deemed denied. They now appeal.
2
Ind. Code § 34-13-3-1, et seq.
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Discussion and Decision
Summary Judgment Standard of Review
[13] We review summary judgment de novo, applying the same standard as the trial
court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment
is appropriate “if the designated evidentiary matter shows that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Ind. Trial Rule 56(C). We construe the evidence
in favor of the nonmovant and resolve all doubts against the moving party.
Pfenning v. Lineman, 947 N.E.2d 392, 397 (Ind. 2011) (quotation omitted). The
party moving for summary judgment bears the initial burden to establish its
entitlement to summary judgment. Id. at 396–97. Only then does the burden
fall upon the nonmoving party to set forth specific facts demonstrating a
genuine issue for trial. Id. at 397 (quotation omitted).
[14] When the moving party is the defendant, the defendant must show that the
undisputed facts negate at least one element of the plaintiff’s cause of action or
that the defendant has a factually unchallenged affirmative defense that bars the
plaintiff’s claim. Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind. 1999). The
summary judgment process is not a summary trial. Hughley, 15 N.E.3d at
1003–04. Indiana consciously errs on the side of letting marginal cases proceed
to trial on the merits, rather than risk short-circuiting meritorious claims. Id. at
1004. Nevertheless, a grant of summary judgment is clothed with a
presumption of validity, and the appellant bears the burden of demonstrating
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that the trial court erred. Kramer v. Catholic Charities of Diocese of Fort Wayne-
South Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).
Intentional Infliction of Emotional Distress
[15] Count II of the Complaint, denominated “Intentional Infliction of Emotional
Distress,” alleged as follows:
Defendants, State of Indiana, Indiana Department of
Corrections, Westville Correctional Facility, Plainfield
Correctional Facility, Sharon Houck, Larry Steinbeck, Marshall
Hayes, Charles Whelan, Hector Valdez, Nathan Lagenour, Craig
Gage, acted willfully and intentionally to cause emotional
distress [to] Plaintiffs, which proximately caused damages to
them. WHEREFORE, Plaintiffs request judgment against all
Defendants[.]
(App. Vol. II, pg. 40.) Although the Barrows contend that summary judgment
was improperly granted, they do not specifically address whether or not an
element of their intentional tort claim was negated. Instead, they argue only
that a special relationship was formed when Melody sought help from DOC
staff and received certain assurances. The individual defendants claim to have
public employee immunity under the Act and the government entities argue
that, as a matter of law, the conduct of DOC employees does not constitute
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intentional infliction of emotional distress, for which the government entities
could be vicariously liable.3
[16] The tort of intentional infliction of emotional distress was first recognized as a
separate cause of action without the need for an accompanying tort in Cullison v.
Medley, 570 N.E.2d 27 (Ind. 1991). In Cullison, our Supreme Court defined the
tort of intentional infliction of emotional distress as: “‘one who by extreme and
outrageous conduct intentionally or recklessly causes severe emotional distress
to another is subject to liability for such emotional distress ....’” Id. at 31(quoting Restatement (Second) of Torts § 46 (1965)). It is the intent to harm the
plaintiff emotionally which constitutes the basis for this tort, the elements of
which are that the defendant: (1) engages in extreme and outrageous conduct
(2) which intentionally or recklessly (3) causes (4) severe emotional distress to
another. Lachenman v. Stice, 838 N.E.2d 451, 456 (Ind. Ct. App. 2005) (citing
Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 523 (Ind. Ct. App.
2001)). “The requirements to prove this tort are rigorous.” Id. Intentional
infliction of emotional distress is found where conduct “exceeds all bounds
usually tolerated by a decent society and causes mental distress of a very serious
3
Vicarious liability of an employer is premised upon the relationship between employer and employee, as
opposed to wrongdoing on the part of the employer. See Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107 (Ind. Ct.
App. 2014). Tortious acts are outside the scope of employment when they flow from a course of conduct that
is independent of activities that serve the employer. Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 462 (Ind.
2018). “[T]he scope of employment—which determines whether the employer is liable—may include acts
that the employer expressly forbids; that violate the employer’s rules, orders, or instructions; that the
employee commits for self-gratification or self-benefit; that breach a sacred professional duty; or that are
egregious, malicious, or criminal.” Id. at 461.
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kind.” Id. at 457. “In the appropriate case, the question can be decided as a
matter of law.” Id.[17] The Complaint, inclusive of factual assertions related to now-settled claims,
averred that Lane was deprived of adequate protection and proper medical
treatment. As to the facts in relation to the Barrows, the Complaint asserted
that they “were sent ransoms for Cole’s safety” and were “compelled to make
payments to gang members.” (App. Vol. II, pg. 39.)
[18] Deposition testimony, designated as summary judgment evidence, reveals the
interactions upon which the Barrows base their intentional infliction of
emotional distress claims. Two of the named individuals are not known to the
Barrows; a third was referenced as possibly working in the DOC Internal
Affairs Division. As to Levenhagen, he was the named recipient of a letter
from the Barrows’ attorney but did not change Lane’s housing in response to
the letter. As to Hawk, she engaged in two telephone conversations with
Melody but apparently was not empowered to change Lane’s dorm assignment.
When speaking with Steinbeck, Melody requested protective custody for Lane;
Steinbeck did not arrange this. He was, in Melody’s opinion, rude. Hayes
assured Melody, in their e-mail conversation, that he would investigate the
circumstances surrounding Lane’s injuries and get the conduct stopped. But
Melody did not think that he had done anything to fulfill his promises.
Lagenour engaged in a telephone conversation with Melody to report on Lane’s
physical condition after the beating. Melody opined, in her deposition, that
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Lagenour should have obtained more extensive treatment of Lane’s injuries
than an ice pack and ibuprofen.
[19] The defendants have not contested the Barrows’ version of events. The
individually named defendants claim to have public employee immunity under
the Act. In general, a plaintiff may not maintain an action against a public
employee if the employee was acting within the scope of his or her
employment. Feldhake v. Buss, 36 N.E.3d 1089, 1093 (Ind. Ct. App. 2005)
(citing Indiana Code Section 34-13-3-5(a)). The Act expresses a legislative
policy to protect the State’s finances while ensuring that public employees can
exercise their independent judgment necessary to carry out their duties without
the threat of litigation over decisions made within the scope of their
employment. Noble Cnty. v. Rogers, 745 N.E.2d 194, 197 (Ind. 2001).
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
(5) calculated to benefit the employee personally.
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The complaint must contain a reasonable factual basis supporting
the allegations.
Ind. Code § 34-13-3-5(c).
[20] The Barrows did not comply with the foregoing pleading requirements in
seeking to impose personal liability upon individual defendants. Instead, the
Complaint specifically alleged that the individual defendants were acting within
the scope of their DOC employment, such that the public employer should be
held vicariously liable.4 When a plaintiff fails to comply with statutory pleading
requirements and does not cure the defect with an amended complaint, the
claim against the employee is barred and summary judgment is appropriate.
Feldhake, 36 N.E.3d at 1093. Here, the individual defendants are entitled to
summary judgment on the claims for intentional infliction of emotional distress.
We turn to consider the allegations of vicarious liability and whether the
government entities are entitled to summary judgment.
[21] According to the designated deposition testimony and responses to
Interrogatories, the Barrows suffered great emotional distress from learning that
Lane was injured and also being subjected to an extortion scheme. They
asserted that the extortion scheme would have been thwarted earlier had DOC
4
The named defendant Hector Valdez is an exception. The DOC did not employ a person named Hector
Valdez and Melody conceded in her deposition that she had used incorrect information in naming this
defendant. She had once believed that an employee named Hector Valdez took possession of debit card
information supplied by the Barrows and had used it for his own purposes. By the time of her deposition,
Melody believed that the act had been committed by a prison guard whom she could not identify.
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employees acted more diligently in the performance of their duties.
Considering the facts in the light most favorable to the Barrows as the non-
moving party, DOC employees at times made certain assurances to Melody.
But they did not promptly segregate Lane at Melody’s request; some were less
than empathetic with her circumstances. At bottom, very little action was taken
to avoid continuation of reported harms.
[22] That said, we can conclude as a matter of law that the actions or inactions
complained of do not constitute “outrageous” behavior as contemplated by the
narrow definition of the tort of intentional infliction of emotional distress.
There may have been apathy, negligence, or false promises, but we cannot say
that it was so extreme in degree as to go beyond all possible bounds of decency,
such that it would be regarded as atrocious and utterly intolerable in a civilized
society. See Bradley v. Hall, 720 N.E.2d 747, 752–53 (Ind. Ct. App. 1999).
Moreover, there is nothing in the record which would support a reasonable
inference that DOC employees intended to cause the Barrows emotional
distress. See Cullison, 570 N.E.2d at 31 (recognizing intent to cause emotional
harm to plaintiff as the basis for the tort of intentional infliction of emotional
distress). Under these circumstances, an employer could not be vicariously
liable under this tort theory. The trial court did not err in granting summary
judgment to the government entities upon the Barrows’ claims of intentional
infliction of emotional distress.
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Negligence
[23] The Complaint also alleged negligence by the government entities, as follows:
Defendants, State of Indiana, Indiana Department of
Corrections, Westville Correctional Facility, and Plainfield
Correctional Facility, did breach the standard of care to protect
the interests of Melody and Nicholas Barrows, which
proximately caused damages to them.
(App. Vol. II, pg. 40.) To recover on a negligence claim, a plaintiff must
establish: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that
duty; and (3) injury to the plaintiff resulting from the defendant’s breach. Miller
v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19 (Ind. Ct. App. 2015).
[24] Summary judgment is rarely appropriate in negligence cases because such cases
are particularly fact-sensitive and are governed by a standard of the objective
reasonable person, which is best applied by a jury after hearing all the evidence.
Kramer, 32 N.E.3d at 231. However, summary judgment for a defendant is
appropriate if the moving party negates at least one element of the negligence
claim. American Legion Pioneer Post No. 340 v. Christon, 712 N.E.2d 532 (Ind. Ct.
App. 1999). Absent a duty, there can be no breach and no recovery in
negligence. Sheley v. Cross, 680 N.E.2d 10, 12 (Ind. Ct. App. 1997), trans. denied.
Generally, the court decides as a matter of law whether a duty exists. Spears v.
Blackwell, 666 N.E.2d 974, 977 (Ind. Ct. App. 1996), trans. denied.
[25] Here, the trial court concluded that the government entities had no duty to the
Barrows, reasoning that the Barrows were not in the care or control of the DOC
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and public entities were not responsible to the Barrows for prevention of crime
within a penal facility. The government entities argue that there is no
recognized duty to prevent economic harm to parents of prisoners because of
other inmate conduct, and that the recognition of such a duty would be
contrary to public policy because it would impose an unduly onerous burden on
penal facilities. The Barrows argue only that Melody’s interactions with DOC
staff gave rise to a special relationship. They observe: “DOC was in control of
Cole Lane and his safety, as well as Hiles and his offender incarcerated gang
members (extortionists); therefore, DOC was in the best position to enforce the
non-contact order and cease the extortion and assaults.” Appellant’s Brief at
13.
[26] Without dispute, the DOC had a duty to Lane. The duty of a custodian of
inmates is “to exercise reasonable care to preserve the life, health, and safety of
the person in custody.” Sauders v. Cnty. of Steuben, 693 N.E.2d 16, 18 (Ind.
1998). The duty does not extend to taking action to prevent a particular act, for
example, suicide. Id. Rather, the custodian’s duty “is to take reasonable steps
under the circumstances for the life, health, and safety of the detainee.” Id. As
we have stated:
public policy considerations require that the DOC not be made
an absolute insurer of prisoners’ safety. Although the DOC is
not a guarantor, neither has it been relieved of all responsibility
for safekeeping its charges. Rather, the DOC’s responsibility
takes the middle ground: it has the duty “to take reasonable
precautions to preserve the life, health, and safety of prisoners.
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Cole v. Ind. Dep’t of Corr., 616 N.E.2d 44, 45-46 (Ind. Ct. App. 1993) (quoting
Reed v. State, 479 N.E.2d 1248, 1254 (Ind. 1985)), trans. denied. “Because of the
DOC’s unusual ability to control all aspects of its prisoners’ lives, the DOC’s
duty to take reasonable precautions may include an obligation to control the
conduct of third persons.” Id. at 46. See also Williams v. Ind. Dep’t of Correction,
142 N.E.3d 986, 1008 (Ind. Ct. App. 2020) (recognizing that the DOC owes a
duty to ensure that its contractors provide appropriate medical care for
inmates). Here, any claims arising from a breach of DOC duty to Lane were
settled.
[27] The Barrows were not under the control of the DOC. They do not argue that
Indiana has recognized a duty on the part of the DOC to act to prevent
pecuniary harm to family members of a person in custody. Nor do they address
the merits of extending the duty owed to those in custody to family members of
those in custody. Rather, the Barrows claim there is a duty here because of a
“special relationship” which arose when Melody “informed DOC of the no-
contact order” and “the extortion that was paid to keep her son alive and safe.”
Appellant’s Brief at 9.5 According to the Barrows, Melody was repeatedly given
5
Arguably, the DOC was in a “special relationship” with Lane, consistent with the Restatement (Third) of
Torts Phys. & Emot. Harm § 41 (2012), which provides in relevant part: “An actor in a special relationship
with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise
within the scope of the relationship. Special relationships giving rise to the duty provided in Subsection (a)
include: … (2) a custodian with those in its custody[.]” Comment c provides in part: “The duty imposed by
this Section is to exercise reasonable care under the circumstances. It is not to ensure that the other person is
controlled.”
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assurances of DOC action and she “detrimentally relied on the DOC staff to
take care of it as they had assured her they would.” Id.
[28] Where a duty has not been articulated, Indiana courts use a three-part
balancing test to determine whether or not a duty exists. Goodwin v. Yeakle’s
Sports Bar and Grill, Inc., 62 N.E.3d 384, 387 (Ind. 2016). The focus is upon (1)
the relationship between the parties; (2) the foreseeability of harm; and (3)
public policy concerns. Id.[29] To the extent that there was a relationship here, it was related to Lane’s
incarceration and consisted of communication between Melody and some DOC
employees. The minimal relationship militates against the imposition of a duty.
[30] Foreseeability in the context of duty involves the assessment of ‘“whether there
is some probability or likelihood of harm that is serious enough to induce a
reasonable person to take precautions to avoid it.”’ Id. at 392 (quoting
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367 (Tenn. 2008)). The
inquiry involves a general analysis of “the broad type of plaintiff and harm
involved, without regard to the facts of the actual occurrence.” Id. at 393.
Here, the broad type of plaintiff is a family member of a prison inmate and the
harm under consideration is extortion of a family member by a prison gang.
Although we can readily conclude that the plotting and commission of crime
within prison walls is likely, we do not reach the same conclusion with respect
to the likelihood of an ongoing extortion scheme directed to inmate family
members.
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[31] Finally, we consider the public policy aspect. The government entities argue:
It would be against public policy to extend the [DOC]’s duty of
care to the general public or families of incarcerated persons;
such would create virtually limitless liability for the [DOC] and
open the floodgates of litigation. In all practicality, it would be
virtually impossible and extremely burdensome for the [DOC] to
owe a duty to each family member of every inmate. Further, the
policy behind imposing a duty on the DOC to protect its inmates
is because those inmates do not have access to forms of self-
protection and police protection that they would have on the
outside.
Appellee’s Brief at 24-25. We find this argument persuasive. Although the
circumstances of incarceration justify a duty of care on the part of the custodian
to the inmate, these circumstances do not extend to family members. Persons
who are not incarcerated have access to law enforcement resources; the DOC
should not be obliged to foresee that some individuals will choose not to access
those resources. Balancing the factors relative to the recognition of a duty of
the government entities to the Barrows, we conclude as a matter of law that
there is no such duty.
Conclusion
[32] Summary judgment was properly granted to the individual defendants and
public entities upon the claims for intentional infliction of emotional distress.
Summary judgment was properly granted to the public entities upon the claims
of negligence.
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[33] Affirmed.
Robb, J., and Tavitas, J., concur.
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