Lavelle Malone v. Keith Butts and Bruce Lemmon

FOR PUBLICATION
FILED
Sep 19 2012, 8:58 am
CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
LAVELLE MALONE GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
JANINE STECK HUFFMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LAVELLE MALONE, )
)
Appellant-Petitioner, )
)
vs. ) No. 48A02-1203-MI-228
)
KEITH BUTTS and BRUCE LEMMON, )
)
Appellees-Respondents. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Dennis Carroll, Judge
Cause No. 48C06-1112-MI-586
September 19, 2012
OPINION - FOR PUBLICATION
BROWN, Judge
Lavelle Malone, pro se, appeals from the trial court’s order granting a motion to
dismiss filed by Keith Butts, Superintendent of the Pendleton Correctional Facility and
Bruce Lemmon, Commissioner of the Indiana Department of Correction (collectively, the
“DOC”). Malone raises one issue which we revise and restate as whether the court erred
in dismissing his Action for Mandate for failure to state a claim upon which relief can be
granted. We affirm.
The relevant facts follow. On April 1, 2011, Malone was found guilty by the
Disciplinary Hearing Board (“DHB”) of violating Adult Disciplinary Procedures
(“ADP”) Code 102 for committing battery with a weapon. The DHB sanctioned Malone
to disciplinary segregation for one year, recommended that he be deprived of 365 days of
earned credit time, and also recommended that his credit class be demoted from credit
class one to class three. On April 4, 2011, the DOC issued a Modification of Visiting
Privileges, labeled as State Form 43324, stating that as a result of the DHB sanction
under ADP Code 102, Malone’s visitation privileges were to be restricted to non-contact
visits for a period of one year. The modification form noted that “[t]he decision to
restrict you to NON-CONTACT visits may be appealed through Policy 00-02-301,
‘Offender Grievance Process.’” Appellant’s Appendix at 11. The modification was
signed by the Superintendent.
On April 13, 2011, Malone filed an Offender Grievance Response Report stating
that his visits were “restricted because of disciplinary reasons pursuant to being found
guilty of Code 102 – This restriction is in violation of State law Indiana Code 11-11-5-
4(4) also Disciplinary policy 02-04-101 – As I have never violated any rules or polices
2
[sic] of the visitation procedures.” Id. at 10. Malone received a letter dated May 10,
2011, from the DOC stating that his correspondence concerning the disciplinary action
against him had been received, that his appeal was denied by the final reviewing
authority on April 28, 2011 and he had “exhausted all appeal rights and no further action
will be taken,” and that “[a]ny further correspondence on this issue will simply be noted
and filed.” Id. at 12.
On June 3, 2011, Malone filed a Petition for Writ of Mandate with the trial court.
Malone sought an order directing the Indiana Department of Correction to comply with
Ind. Code § 11-11-5-4(4), contending “that according to clear and unambiguous language
of the aforementioned statute, restrictions on visitation privileges may not be used as a
form of punishment for violation of prison rules unless the [] violation involved
visitation.” Id. at 6.
On February 3, 2012, Keith Butts and Bruce Lemmon filed a motion to dismiss the
petition. On February 24, 2012, Malone filed his response in opposition to the DOC’s
motion to dismiss. On February 28, 2012, the court entered its order of dismissal, finding
that Malone failed to state a claim upon which relief can be granted.1
The issue is whether the court erred in dismissing Malone’s Petition for Writ of
Mandate for failure to state a claim upon which relief can be granted. Ind. Code § 34-27-
3-1 governs actions for mandate and provides:
An action for mandate may be prosecuted against any inferior tribunal,
corporation, public or corporate officer, or person to compel the
performance of any:
1
On March 5, 2012, the DOC filed a reply in support of the motion to dismiss.
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(1) act that the law specifically requires; or
(2) duty resulting from any office, trust, or station.
“An action for mandate, an extraordinary remedy of an equitable nature, is
generally viewed with disfavor.” State ex rel. Steinke v. Coriden, 831 N.E.2d 751, 757
(Ind. Ct. App. 2005), trans. denied. “Mandamus does not lie unless the petitioner has a
clear and unquestioned right to relief and the respondent has failed to perform a clear,
absolute, and imperative duty imposed by law.” Id. (internal quotations and citations
omitted). “‘[T]he mandamus action does not lie to establish a right or to define and
impose a duty. Public officials, boards, and commissions may be mandated to perform
ministerial acts when under a clear legal duty to perform such acts.’” Perry v. Ballew,
873 N.E.2d 1068, 1072 (Ind. Ct. App. 2007) (quoting Perry Twp. v. Hedrick, 429 N.E.2d
313, 316 (Ind. Ct. App. 1981)), reh’g denied. Mandate actions exist “only where no
adequate remedy at law is available.” Varner v. Ind. Parole Bd., 905 N.E.2d 493, 498
(Ind. Ct. App. 2009), summarily aff’d in relevant part, 922 N.E.2d 610, 611 (Ind. 2010).
A motion to dismiss for failure to state a claim tests the legal sufficiency of the
claim, not the facts supporting it. Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602,
604 (Ind. 2007). Thus, our review of a trial court’s grant or denial of a motion based on
Trial Rule 12(B)(6) is de novo. Id. A court should accept as true the facts alleged in the
complaint, and should not only consider the pleadings in the light most favorable to the
plaintiff, but also draw every reasonable inference in favor of the nonmoving party. Trail
v. Boys & Girls Clubs of Northwest Ind., 845 N.E.2d 130, 134 (Ind. 2006). A complaint
may not be dismissed for failure to state a claim upon which relief can be granted unless
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it is clear on the face of the complaint that the complaining party is not entitled to relief.
Charter One Mortg. Corp., 865 N.E.2d at 604. We will affirm a trial court’s granting of a
Rule 12(B)(6) motion to dismiss if it is sustainable on any basis found in the record. City
of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001).
Malone argues that his “visitation privileges were restricted to non-contact as a
result of receiving a disciplinary sanction,” and that Ind. Code § 11-11-5-4(4) “does not
permit the DOC to impose restrictions on visitation resulting from a disciplinary action,
and there is nothing in the statute which suggests an inmate may not bring an action in
court to enforce its provisions.”2 Appellant’s Brief at 3. Malone also cites to DOC
policy # 02-01-102, noting that it “provides that ‘non-contact or video visits shall not be
imposed as a disciplinary sanction unless the basis for the imposition of non-contact
visits is an action that took place during a visit and the sanction is listed on the Report of
Disciplinary Hearing.’” Id. at 5 (quoting DOC policy # 02-01-102). The State argues
that “contrary to Malone’s claim,” the non-contact visit “restriction was not imposed via
Indiana Code Section 11-11-5-4,” and instead was “pursuant to Indiana Code Section 11-
11-3-9 by administrative action . . . .” Appellee’s Brief at 6.
Our review of the record reveals that the State is correct that Malone’s argument
is based on an erroneous assumption that his visitation rights were restricted pursuant to a
disciplinary decision, which pursuant to Ind. Code § 11-11-5-4(4) would be
2
Ind. Code § 11-11-5-4 provides in part that “The department may not impose the following as
disciplinary action: . . . (4) Restrictions on clothing, bedding, mail, visitation, reading and writing
materials, or the use of hygienic facilities, except for abuse of these.” (Emphasis added).
5
impermissible. Ind. Code § 11-11-3-9, titled “Visitors; prohibition; notice to confined
person,” provides in relevant part:
(a) A person may be prohibited from visiting a confined person, or the
visit may be restricted to an extent greater than allowed under
section 8 of this chapter, if the department has reasonable grounds to
believe that the visit would threaten the security of the facility or
program or the safety of individuals.
*****
(c) If the department prohibits or restricts visitation between a confined
person and another person under this section, it shall notify the
confined person of that prohibition or restriction. The notice must be
in writing and include the reason for the action, the name of the
person who made the decision, and the fact that the action may be
challenged through the grievance procedure.
(d) The department shall establish written guidelines for implementing
this section.
In accordance with this statute, the DOC promulgated Administrative Procedure # 02-01-
102, which provides:
Non-contact or video visits shall not be imposed as a disciplinary sanction
unless the basis for the imposition of non-contact visits is an action that
took place during a visit and the sanction is listed on the REPORT OF
DISCIPLINARY HEARING. Non-contact or video visits may be imposed
as an administrative action by the Facility Head based upon a staff
member’s written recommendation and justification indicating reasonable
knowledge or information and belief that non-contact visitation is
appropriate.
Any imposition of non-contact or video visits must have the written
approval of the Facility Head or designee.
*****
[U]pon recommendation of staff and approval of the Facility Head, an
offender may be considered for non-contact or video visits for violations of
other disciplinary codes, including but not limited to:
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 Batteries; . . . .
*****
These restrictions shall not be considered as a part of any disciplinary
action taken against the offender for guilty findings for any of the indicated
offenses; but, shall be an administrative action in addition to any
disciplinary action taken against the offender. The Disciplinary Hearing
Body or Screening Officer shall notify the Facility Head or designee of any
offender who has been found guilty of any disciplinary code violation
which may result in a recommendation for non-contact or video visits.
When a decision is made to permit only non-contact or video visits, the
offender shall be notified in writing by use of State Form 43324,
MODIFICATION OF VISITING PRIVILEGES. This notification shall
include: the reason for the imposition of the non-contact or video visits; the
time period for the imposition of non-contact visits; and, the offender’s
right to appeal the decision through the procedures for Policy 00-02-301,
“Offender Grievance Process.” In those cases where the non-contact or
video visits apply only to a specific visitor, the visitor shall be notified in
writing of the decision and his/her right to appeal this action to the
Executive Director of Adult Facilities or Executive Director of Juvenile
Services.
Administrative Procedure # 02-01-102, at 19-21, available at www.in.gov/idoc/files/
Visitation.pdf (last visited August 24, 2012) (emphases added).3
As noted above, following Malone’s disciplinary sanction issued by the DHB
under ADP Code 102 for battery with a weapon, the DOC, on April 4, 2011, issued a
Modification of Visiting Privileges, labeled as State Form 43324. The modification
noted that it was a result of the ADP Code 102 sanction, that Malone’s visitation
privileges were to be restricted to non-contact visits for a period of one year, and that
“[t]he decision to restrict you to NON-CONTACT visits may be appealed through Policy
3
Malone included pages 19 and 21 of Administrative Procedure # 02-01-102 in his appellant’s
appendix; we note, however, that page 20 containing the list of disciplinary violations which were eligible
for administrative non-contact visitation orders, was conspicuously absent from the appendix.
7
00-02-301, ‘Offender Grievance Process.’” Appellant’s Appendix at 11. The
modification was signed by the Superintendent. Pursuant to this, Malone filed an
offender grievance on April 13, 2011. The DOC complied with the requirements of Ind.
Code § 11-11-3-9 when it administratively imposed restrictions on Malone’s visits, and
accordingly we conclude that the trial court properly dismissed the action for failure to
state a claim upon which relief can be granted.
Also, we note that the State raises an argument in a footnote that “the trial court
also lacked subject matter jurisdiction allowing dismissal of Appellants’ mandate action.”
Appellee’s Brief at 5 n.2. The Indiana Supreme Court has repeatedly held that “inmates
have no common law, statutory, or federal constitutional right to review in state court
DOC disciplinary decisions,” and that “the threshold inquiry in [] prison discipline cases
is whether the trial court has jurisdiction over the subject matter.” Blanck v. Ind. Dep’t
of Corr., 829 N.E.2d 505, 507-508 (Ind. 2005) (citing Zimmerman v. State, 750 N.E.2d
337 (Ind. 2001); Adams v. Duckworth, 274 Ind. 503, 412 N.E.2d 789 (1980); Riner v.
Raines, 274 Ind. 113, 409 N.E.2d 575 (1980)). This court, in Kimrey v. Donahue, 861
N.E.2d 379 (Ind. Ct. App. 2007), trans. denied, extended the rule in Blanck. In Kimrey,
inmates “filed a complaint alleging that the IDOC has in place an administrative
procedure which they contend violates their rights as set forth in Indiana Code § 11-11-3-
6” and “requested a judgment ordering the IDOC to revise the challenged administrative
procedure to provide for the rights conferred by” that statute. 861 N.E.2d at 380-381
(footnotes omitted). The court held that trial courts lack jurisdiction over inmate claims
for violations of alleged statutory rights “unless an explicit private right of action is
8
afforded by statute or an allegation is made that constitutional rights are being violated.”
Id. at 382.
However, unlike the appellant in Kimrey, here Malone brought his claim by a
petition for writ of mandate. This court addressed inmate claims by writs of mandate in
Varner v. Ind. Parole Bd., 905 N.E.2d 493, 497-500 (Ind. Ct. App. 2009), summarily
aff’d in relevant part, 922 N.E.2d 610, 611 (Ind. 2010). In Varner, the court began its
jurisdiction analysis by noting that “[s]ubject matter jurisdiction entails a determination
of whether a court has jurisdiction over the general class of actions to which a particular
case belongs,” and that “[i]n making this determination, ‘[t]he only relevant inquiry . . . is
to ask whether the kind of claim which the plaintiff advances falls within the general
scope of authority conferred upon such court by the constitution or by statute.” Id. at 497
(quoting State v. Schuetter, 503 N.E.2d 418, 420 (Ind. Ct. App. 1987)). The court noted
that “Indiana Code section 4-21.5-2-5(6) (“Section 5(6)”) . . . precludes judicial review of
“[a]n agency action related to an offender within the jurisdiction of the department of
correction,” that it therefore appeared “that Varner had no adequate remedy at law,” and
that “a mandate action is designed to provide a remedy in such an instance.” Id. at 498.
The court held that “we think this is precisely the type of claim that ‘falls within the
general scope of authority conferred upon such court by the constitution or by statute,’”
and concluded that the trial court did not lack subject matter jurisdiction over Varner’s
mandate action. Id. The court went on to distinguish cases including Blanck and
Kimrey, noting that Varner’s case “differs substantially . . . in terms of the type of claim
asserted and the scope of the claim” and that “[r]egarding the type of claim, Varner’s
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mandate action can hardly be described as pertaining to regulation of the inmate
population generally, let alone pertaining to a prison disciplinary decision.” Id. at 500.
See also Montgomery v. Ind. Dep’t of Corr., 794 N.E.2d 1124, 1125-1127 (Ind. Ct. App.
2003) (noting that the prisoner appellant filed a petition entitled “Verified Petition for
Judicial Review of Administrative Decision Violative of Indiana Code/Policy and/or a
Petition for Writ of Mandate to Either Enjoin Non-compliance with Indiana Code or
Order Compliance with Indiana Code,” examining Section 5(6) of the Administrative
Orders and Procedures Act (“AOPA”), and holding that “[t]he statute exempting certain
DOC actions from the AOPA does not divest the judiciary of subject-matter jurisdiction
over alleged violations of constitutional rights or . . . statutory and constitutional rights.”),
reh’g denied, trans. denied.
For the foregoing reasons, we affirm the trial court’s grant of the DOC’s motion to
dismiss for failure to state a claim.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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