Cleverly Lockhart v. Robert Eutz (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 23 2019, 8:52 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Cleverly Lockhart Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cleverly Lockhart, April 23, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-PL-1553
v. Appeal from the Henry Circuit
Court
Robert Eutz, The Honorable Kit C. Dean Crane,
Appellee-Defendant. Judge
Trial Court Cause No.
33C02-1712-PL-65
Najam, Judge.
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Statement of the Case
[1] Cleverly Lockhart appeals the trial court’s dismissal of his complaint for failure
to state a claim upon which relief can be granted under Indiana Trial Rule
12(B)(6). Lockhart raises two issues for our review, which we consolidate and
restate as whether the trial court erred when it dismissed Lockhart’s complaint
for breach of contract. We reverse and remand for further proceedings.
Facts and Procedural History
[2] On December 13, 2017, Lockhart, an inmate at the New Castle Correctional
Facility, filed a civil complaint against Robert Eutz, an employee at the Miami
Correctional Facility. According to his complaint:
This cause of action is filed by Cleverly Lockhart, a state prisoner
alleging violations of his civil rights under 42 U.S.C.S. § 1983, 18
U.S.C.S. § 1001, 47 U.S.C.S. § 1038, and Indiana Code
[Sections] 34-11-2-7 and 34-14-1-9.
Plaintiff alleges that Robert Eutz assaulted plaintiff,
unnecessarily striking him repeatedly causing damage [and]
thereby inflicting cruel and unusual punishment.
Plaintiff alleges that Eutz entered into a contractual agreement to
remove himself from a civil complaint previously filed by
Plaintiff under Cause No. 52C01-1507-CT-000215.
Plaintiff alleges that Eutz’s failure to abide by the Notarized
Affidavit, a contractual agreement, amounts to fraud,
misrepresentation, deceit, promissory estoppel, breach of duty of
good faith and fair dealing, or a breach of a conditional contract
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under the Indiana Declaratory Judgments Act, Ind. Code § 34-
14-1-9.
Eutz continues to exhibit hostile treatment over [P]laintiff by
taunting and lauding the revoking of the contractual agreement
entered into by himself and [P]laintiff, Lockhart, who is currently
located at the New Castle Correctional Facility.
***
1. On August 31, 2015[,] Plaintiff Lockhart filed a Civil
Rights Complaint under the Indiana Constitution and 42 U.S.C.
§ 1983[] alleging the deprivation of rights under the color of state
law and the rights secured by the United States Constitution
alleging cruel and unusual punishment, excessive force[,] and
denial of medical treatment under Cause No. 52C01-1507-CT-
00215.
2. Defendant Eutz wrote . . . to Warden Keith Butts of the
New Castle Correctional Facility[] requesting permission to enter
into a contractual agreement with Lockhart in regards to a civil
matter arising out of Miami Circuit Court . . . Cause No. 52C01-
1507-CT-00215.
3. Defendant Eutz attempted to enter into negotiations with
Lockhart to pay $80,000.00 in anticipation that Lockhart would
remove Eutz from the initial civil complaint under Cause No.
52C01-1507-CT-00215; the payments consist of monthly
payments [in the amount of] $950.00.
4. Mr. Eutz requested of Warden Butts that Lockhart be
allowed to enter into a contract contrary to The Indiana
Department of Correction Policy and Procedure 04-03-103,
Information and Standards of Conduct for Department Staff, and
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Policy and Procedure Manual New Castle Correctional Facility,
Policy Number 03.009, Code of Ethics, in an attempt to
negotiate with Lockhart to avoid unfavorable court action.
5. Mr. Eutz continues to taunt Lockhart about the breach of
contract and the deplorable acts by continued communication
sent through certified mail to the New Castle Correctional
Facility.
LEGAL CLAIMS
6. Plaintiff has relied on agency regulations created for
guidance and benefit [sic]. Plaintiff has suffered substantially
because [of] the Defendant[’s] violation of the guidelines.
Plaintiff asserts that the violation perpetrated by Robert Eutz
amount[s] to the denial of due process[ and] equal protection
and[/]or treatment.
7. The [D]efendant made an unambiguous promise to the
[P]laintiff, the [P]laintiff relied on the promise, the [P]laintiff’s
reliance was expected and foreseeable by the [D]efendant, and
the [P]laintiff relied on the promise to his detriment.
8. Eutz violated Lockhart’s civil rights under 42 U.S.C.S. §
1983, 18 U.S.C.S. § 1001, 47 U.S.C.S. § 1038, and Indiana Code
[Sections] 34-11-2-7 and 34-14-1-9.
***
10. The fraudulent actions perpetrated by Robert Eutz caused
Lockhart to remove him from the initial civil complaint lodged in
the Miami Circuit Court.
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11. Eutz’s attempt to circumvent the Indiana Department of
Correction policy 04-03-103, Information and Standards of
Conduct for Department Staff, by entering into a contractual
agreement vaunts [sic] willful deceitfulness to defraud Lockhart
of the agreed upon payment.
Appellant’s App. Vol. 2 at 11-14. As relief, Lockhart sought “[a]ll monies
including the $80,000.00 promised in [the] original action plus 10% apr. [sic]
interest since the initiation of the contractual agreement . . . .” Id. at 14.
[3] On May 23, 2018, prior to filing any responsive pleading, Eutz moved to
dismiss Lockhart’s complaint in part and moved for a more definitive statement
from Lockhart in part. Specifically, Eutz requested the court to dismiss
Lockhart’s 42 U.S.C. § 1983 claims because Lockhart’s complaint “failed to
allege with any specificity as to how Eutz’s actions caused or participated in a
deprivation of Plaintiff’s rights.” Id. at 15. Eutz further requested dismissal of
Lockhart’s “claims under the various federal and state codes . . . cite[d] . . . in
[the] Complaint . . . as . . . they do not provide a private right of action for
Plaintiff.” Id. at 16. And, “[i]n relation to any claims that appear to be
allegations of a breach of contract,” Eutz continued, “Plaintiff should be
required to comply with Indiana Trial Rule 9.2(A) to amend his Complaint and
include the omitted written instrument.” Id. at 15.
[4] On April 14, Lockhart timely responded and moved to amend his complaint to
attach the contract and other correspondence between Lockhart and Eutz.
According to the contract:
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3 From June 04, 2012[,] to December 30, 2013[,] [P]en
[P]roducts employed [Lockhart] to work at Miami Accessible
Media Project. [Eutz] employed [Lockhart] at the request of Mr.
Mark Sevier[,] Superintendent of Miami Correctional
Facility. . . .
4 [Eutz] was very aware that [Lockhart had] made
complaints against [Eutz]. [Eutz] did have meetings with Mr.
Sevier on [Lockhart’s] and others[’] complaints about [Eutz’s]
behavior.
5 [Lockhart] was certified in Braille Transcription . . . .
6 [Lockhart] did transcribe books for various agencies. . . .
7 It was brought to [Eutz] that [Lockhart] is a witness and
involved in litigation involving [Eutz] and [P]en [P]roducts in
several different cases. . . .
8 On December 26, 2013[,] . . . [Eutz,] during a heated
conversation . . . while on medication[,] did strike [Lockhart
with] the cameras shut off. [Eutz] was clouded due to the
medication. [Eutz] believes that he did not strike Lockhart with
much force. [Eutz] further would not allow [Lockhart] to see
medical or discuss the issue with [P]en [P]roducts officers. At
around 1:00 p.m. [Eutz] tried to apologize to [Lockhart;]
however[,] [Lockhart] was not receptive. . . .
9 On January 09, 2014[, Eutz] mailed [Lockhart] a letter out
of anger. Said letter was threatening. [Eutz] had an offender
write said letter[. Eutz] did mail this from . . . Indianapolis.
10 [Eutz] was questioned by internal affairs on several
occasions[. Eutz] was not truthful with the investigators.
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11 [Eutz] has viewed the evidence of [Lockhart] on this case
and feels it is now in the best interest to settle the matter in
question.
12 [Lockhart] agrees not to testify in any other matters
dealing with other litigations against [Eutz].
It is agreed by both parties that [Eutz] and [Lockhart] settle in the
amount of [$80,000]. . . .
Id. at 54-56. The contract shows that both parties executed it before notaries
public.
[5] Lockhart also moved to attach various correspondence between him and Eutz
both before and after the formation of the contract. In particular, in a letter to
Lockhart dated May 6, 2016, after the execution of the contract, Eutz stated
that “[t]he only way I will make any payments to you is for the entire case to be
dismissed” as to all defendants “and I receive the original agreement.” Id. at
61. Eutz further stated that Lockhart was “not to discuss any of the events or
conversations that took place in the braille shop.” Id.
[6] Eutz did not object to Lockhart’s motion to amend his complaint to attach the
contract and correspondence. Nonetheless, on May 29, 2018, the trial court
granted Eutz’s motion to dismiss as to all counts—including breach of
contract—and denied Lockhart’s motion to amend his complaint. This appeal
ensued.
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Discussion and Decision
[7] On appeal, Lockhart contends that the trial court erred when it dismissed his
complaint under Indiana Trial Rule 12(B)(6) for failure to state a claim upon
which relief can be granted. “A 12(B)(6) motion tests the legal sufficiency of
the complaint,” and we review the trial court’s judgment under Rule 12(B)(6) de
novo. Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017).
As our Supreme Court has explained:
In reviewing a 12(B)(6) motion to dismiss, we look at the
complaint in the light most favorable to the plaintiff, with every
inference drawn in [his] favor, to determine if there is any set of
allegations under which the plaintiff could be granted relief. A
12(B)(6) dismissal is improper unless it appears to a certainty on
the face of the complaint that the complaining party is not
entitled to any relief. Dismissals under T.R. 12(B)(6) are rarely
appropriate. Though Indiana’s notice pleading rules do not
require the complaint to state all elements of a cause of action,
the plaintiff must still plead the operative facts necessary to set
forth an actionable claim.
State v. Am. Fam. Voices, Inc., 898 N.E.2d 293, 295-96 (Ind. 2008) (citations,
quotation marks, and footnote omitted). And, when a complaint arises out of a
written instrument that should be attached to the complaint pursuant to Trial
Rule 9.2(A), it is “[t]he complaint itself, and not simply the written instrument,”
that “must give the defendant some minimal notice of the plaintiff’s claim.”
Noblesville Redev. Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558, 564-65
(Ind. 1996).
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[8] We initially note the limited scope of Lockhart’s argument on appeal.
Although his complaint identifies numerous federal and state statutes along
with various common-law causes of action, on appeal Lockhart argues that the
trial court erred only with respect to Lockhart’s breach-of-contract claim. In
particular, the clear thrust of Lockhart’s argument on appeal is that the trial
court erred when it dismissed his complaint for not having properly attached
the contract and denied Lockhart’s request to amend the complaint to attach
the contract. Those arguments are only relevant to his breach-of-contract claim.
[9] The State’s brief on appeal, by contrast, argues that the trial court correctly
dismissed the statutory and common-law causes of action but omits any
reference to Lockhart’s original breach-of-contract claim. 1 As Lockhart does
not argue that the trial court erred when it dismissed his claims under the non-
breach-of-contract theories, we do not consider them. And, as the State does
not respond to Lockhart’s argument that the trial court erred when it dismissed
his original breach-of-contract claim, we review Lockhart’s argument on that
issue for prima facie error. E.g., Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct.
App 2002).
1
The State asserts that Lockhart’s proposed amended complaint would have narrowed his breach-of-
contract claim to a claim under the statute of frauds and that, as the subject matter of the contract does not
relate to real property, the amended breach-of-contract claim too must fail. We need not consider this
argument as we hold that the trial court erred when it dismissed Lockhart’s originally pleaded breach-of-
contract claim.
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[10] There is no dispute that Lockhart’s original complaint, while less than clear,
was sufficient to put Eutz on notice of a breach-of-contract claim. Indeed, prior
to filing any responsive pleading, Eutz moved not to dismiss that claim but to
require Lockhart to more clearly present it by attaching the contract to the
complaint. Lockhart then moved to amend the complaint by attaching the
contract, but the trial court instead dismissed Lockhart’s complaint in its
entirety.
[11] Indiana Trial Rule 15(A) unambiguously states that “[a] party may amend his
pleading once as a matter of course at any time before a responsive pleading is
served . . . .” Accordingly, Lockhart was entitled to amend his complaint by
attaching the contract, which would have satisfied Eutz’s concern to have
Lockhart provide a more definite statement on the breach-of-contract claim.
See also Ind. Trial Rule 9.2(F). Indeed, the State does not suggest on appeal that
Rule 15(A) should not have applied here; rather, it simply asserts that attaching
the contract to Lockhart’s original complaint would have been futile. We
cannot agree as, again, there is no dispute that Lockhart’s original complaint
sufficiently stated a claim for breach of contract. Accordingly, we reverse the
trial court’s dismissal of Lockhart’s original complaint on his claim for breach
of contract and we remand for further proceedings. 2
2
While we hold that Lockhart’s breach-of-contract claim should not have been dismissed, we express no
opinion on the merits of his claim.
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[12] Reversed and remanded for further proceedings.
Pyle, J., and Altice, J., concur.
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