MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                                         08/31/2017, 9:28 am
this Memorandum Decision shall not be                                                CLERK
                                                                                 Indiana Supreme Court
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                                                                                      and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Robert Oakley                                            Jeremy M. Dilts
Carmel, Indiana                                          Bloomington, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Melissa Burklow,                                         August 31, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         15A05-1611-PL-2519
        v.                                               Appeal from the Dearborn
                                                         Superior Court
Dearborn County and Dearborn                             The Honorable Jonathan N.
County Sheriff,                                          Cleary, Judge
Appellees-Defendants                                     The Honorable Darrell Auxier,
                                                         Special Judge
                                                         Trial Court Cause No.
                                                         15D01-1409-PL-64



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017           Page 1 of 10
[1]   Melissa Burklow appeals from the trial court’s grant of summary judgment in

      favor of Dearborn County (the County) on her claim alleging violations of Title

      II of the Americans with Disabilities Act (ADA) and in favor of the Dearborn

      County Sheriff (the Sheriff) (collectively, the Defendants) with respect to her

      claim for defamation.


[2]   We affirm.


                                        Facts & Procedural History


[3]   Burklow has been diagnosed with narcolepsy and cataplexy. 1 Throughout the

      course of 2011, Burklow was involved in a number of incidents involving the

      Sheriff’s Department. Burklow reported that she had been the victim of identity

      theft and made claims of theft of personal property and trespassing. In another

      incident, a neighbor reported being bitten by Burklow’s dog. Officers

      responding to these calls prepared police reports in which they noted the

      difficulty in communicating with Burklow and/or commented on her

      demeanor.


[4]   On or about October 11, 2011, Burklow’s adult daughter called the Sheriff’s

      Department out of concern for Burklow. Burlklow’s daughter reported that

      Burklow had been “drinking wine all day” and had been in bed and was




      1
       Cataplexy is defined as “a condition characterized by sudden, brief attacks of muscle weakness sometimes
      causing the body to fall helplessly, that is usually triggered by strong emotion: often associated with
      narcolepsy.” www.dictionary.com/browse/cataplexy?s=t (last visited July 11, 2017).

      Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017         Page 2 of 10
      “crying.” Appellant’s Appendix Vol. 2 at 60. Burklow’s daughter also reported

      that when she tried to console Burklow, Burklow hit her in the face. Burklow

      then left the residence and on her way out told her daughter that “she was going

      to a parking lot and was going to shoot herself.” Id.


[5]   Burklow returned home a couple hours later, and police were again dispatched

      to her residence. After officers confronted Burklow, she began to suffer a

      cataplectic episode in which she fell to the floor in a “curled up, stiff state.”2 Id.

      at 61. The officer reported that Burklow could not move, but that she was able

      to talk. Although Burklow was not arrested that day, she was eventually

      charged with battery for striking her adult daughter.


[6]   During the course of the investigation and prosecution of the battery charge and

      for purposes related to the identity-theft matter, Burklow made numerous visits

      to the Dearborn County Courthouse. Upon entering the courthouse, Burklow

      verbally requested the use of a wheelchair due to her fear of suffering a

      cataplectic episode. A wheelchair was provided on one occasion and she

      borrowed a wheelchair for another. Burklow asserts that on other occasions her

      wheelchair request was met “with suspicion and derision” or that she was

      simply told that no wheelchairs were available. Appellant’s Brief at 10.


[7]   Burklow maintains that she requested information from the County about how

      to contact the County’s ADA Coordinator. Burklow asserts that the



      2
          Burklow refers to these episodes of cataplexy as a “seizure.” Appellant’s Brief at 8.


      Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017      Page 3 of 10
      information was never provided to her and that she obtained the desired

      information only after it was added to the County’s website in January 2013.

      Thereafter, Burklow, with the help of her disability advocate, requested from

      the Sheriff copies of the police reports concerning the criminal proceedings

      involving her as well as reports related to her various interactions with police

      throughout 2011. Burklow’s request was denied and it was explained to her

      that such documents were not available for public access.


[8]   In addition to the above legal proceedings, Burklow was involved in custody

      proceedings with her ex-husband. In preparation therefor, Burklow met with

      Bobbie Hopes, a clinical psychologist charged with conducting an evaluation

      for the court’s consideration of the custody matter. Dr. Hopes had been

      provided with police reports and various call sheets for incidents involving

      Burklow,3 and Dr. Hopes discussed those matters with her. Dr. Hopes then

      submitted a report to the court to assist with the custody determination. In her

      report, Dr. Hopes discussed the various police reports and the information

      contained therein, quoting specifically an officer’s statement that Burklow “was

      a known abuser of perscription [sic] medication.”4 Appellant’s Appendix Vol. 2 at

      45. Dr. Hopes also noted in her report the characterization in the police records




      3
       It is unclear from the record how Dr. Hopes became privy to the police and call reports. In any event,
      Burklow does not challenge the manner in which the reports were provided.
      4
          This police report was prepared on October 20, 2011.


      Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017          Page 4 of 10
       that Burklow was a “mental person” and notations that Burklow was alleged to

       have been diagnosed with “Bipolar Disorder.” Id.


[9]    On September 23, 2014, Burklow filed a complaint alleging that the County

       violated the ADA and that the Sheriff was liable for defamation. The

       Defendants filed a motion for summary judgment on February 29, 2016. The

       trial court held a summary judgment hearing on May 23, 2016. On August 10,

       2016, the trial court entered its order granting summary judgment in favor of

       the Defendants and expressly determined such to be a final, appealable

       judgment. Burklow filed a motion to correct error, which the trial court denied.

       Burklow now appeals. Additional facts will be provided as necessary.


                                           Discussion & Decision


[10]   We review summary judgment de novo, applying the same standard as the trial

       court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). A party seeking

       summary judgment must establish that “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). The

       party moving for summary judgment bears the initial burden of establishing its

       entitlement to summary judgment. Pfenning v. Lineman, 947 N.E.2d 392, 396-97

       (Ind. 2011). “Only then does the burden fall upon the non-moving party to set

       forth specific facts demonstrating a genuine issue for trial.” Id. at 397. The

       reviewing court must construe the evidence in favor of the non-movant and

       resolve all doubts against the moving party. Id. The party appealing the grant


       Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017   Page 5 of 10
       of summary judgment has the burden of persuading this court that the ruling

       was erroneous. See Perkins v. Stesiak, 968 N.E.2d 319, 321 (Ind. Ct. App. 2012),

       trans. denied.


                                                       ADA


[11]   Burklow argues that the trial court erred in granting summary judgment in favor

       of the County with respect to her claims under the ADA. The County argues

       that summary judgment was appropriate because Burklow’s ADA claims are

       barred by the applicable statute of limitation. Even if timely filed, the

       Defendants argue that Burklow’s claims fail on the merits.


[12]   Congress enacted the ADA to eliminate discrimination and to create causes of

       action for qualified people who have faced discrimination. See 42 U.S.C. §

       12101(b). The ADA provides in pertinent part:

               [N]o qualified individual with a disability shall, by reason of such
               disability, be excluded from participation in or be denied the
               benefits of the services, programs, or activities of a public entity,
               or be subjected to discrimination by any such entity.


       42 U.S.C. § 12132. The ADA requires that the public entity make “reasonable

       modification” to allow the disabled person to receive the services or to

       participate in the public entity’s programs. 28 C.F.R. § 35.130(b)(7).


[13]   Burklow claims that the County violated the ADA when the County did not

       provide her with her requested accommodation in the form of a wheelchair for

       use during court hearings. The basis for Burklow’s request was her “fear of

       Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017   Page 6 of 10
       possible injury” if she were “to suffer onset of cataplexy while appearing in

       court.” Appellant’s Brief at 15. Burklow, however, cannot show that she was

       entitled to a reasonable accommodation in the form of a wheelchair. In fact, it

       is undisputed that Burklow has not been prescribed a wheelchair or other

       assistive device and that she does not use a wheelchair when she is in any other

       public area, including running errands or shopping. We conclude that

       Burklow’s subjective fear does not support a finding that the County was

       obligated under the ADA to provide her with her requested accommodation.

       See Sistrunk v. Khan, 931 F.Supp.2d 849, 857 (N.D.Ill. 2013) (holding that

       plaintiff’s preference to use a wheelchair did not give rise to a tenable claim

       under the ADA). Thus, even if timely filed, Burklow’s ADA claim based on

       the denial of her request for a wheelchair fails as a matter of law. Summary

       judgment was therefore proper.


[14]   Burklow also claims that she was denied equal access to information and was

       treated in a discriminatory manner by individuals working for the County. As

       the basis for this claim, Burklow maintains that the County denied her requests

       for police reports and information regarding the criminal proceedings against

       her. The Sheriff designated evidence that Burklow’s request for the police

       reports was denied because such records are not for public access. Burklow

       makes no argument that the denial of her request was based on her disability.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017   Page 7 of 10
       Burklow’s ADA claim in this regard fails as a matter of law.5 As such,

       summary judgment was properly granted.


                                                     Defamation


[15]   Burklow argues that summary judgment was improperly granted as to her

       defamation claim against the Sheriff. Burklow’s defamation claim is based on

       officer’s statements included in police reports that were provided to Dr. Hope,

       who incorporated the contents thereof in the psychological report she prepared

       for the child custody proceedings. Burklow maintains that the Sheriff’s reports

       contained false and inaccurate statements that had “a drastic affect [sic] on her

       ability to successfully combat her ex-husband’s efforts to modify the custody of

       their minor children.” Appellant’s Brief at 18. In support of its motion for

       summary judgment, the Sheriff argues that Burklow’s defamation claim was

       untimely filed. Even if timely filed, the Sheriff argues that qualified immunity

       defeats Burklow’s defamation claim.


[16]   To maintain an action for either per se or per quod defamation the plaintiff

       must demonstrate (1) a communication with defamatory imputation; (2)




       5
         To the extent Burklow claims that the County’s failure to provide her with the contact information for the
       County’s ADA coordinator amounts to an ADA violation, Burklow has failed to provide cogent argument to
       support such a position. Burklow cites 28 C.F.R. § 35.163, which concerns the requirement that a public
       entity provide information and signage at inaccessible entrances to the public entity’s facilities that directs
       users to accessible entrances or a location where they can obtain information about accessible facilities.
       Burklow baldly asserts that such provision obligated the County to provide her the information she requested.
       Further, there is no evidence that even remotely suggests that the denial of her information request was in
       any way related to her disability. Thus, even accepting Burklow’s allegations as true, she fails to state a
       tenable claim under the ADA.

       Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017            Page 8 of 10
       malice; (3) publication; and (4) damages. Kelley v. Tanoos, 865 N.E.2d 593, 596-

       97 (Ind. 2007). The qualified privilege doctrine operates to protect

       “communications made in good faith on any subject matter in which the party

       making the communication has an interest or in reference to which he has a

       duty, either public or private, either legal, moral, or social, if made to a person

       having a corresponding interest or duty.” Kelley v. Tanoos, 865 N.E.2d 593, 597

       (Ind. 2007) (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992)).


[17]   As a defense to defamation, the qualified privilege operates not to “change the

       actionable quality of the words published, but merely [to] rebut[] the inference

       of malice that is [otherwise] imputed.” Holcomb v. Walter’s Dimmick Petroleum,

       Inc., 858 N.E.2d 103, 106 (Ind. 2006) (internal quotation marks omitted). To

       merit its protection, “[t]he burden is upon the defendant in the first instance to

       establish the existence of a privileged occasion for the publication, by proof of a

       recognized public or private interest which would justify the utterance of the

       words.” Bals, 600 N.E.2d at 1356. In the absence of a factual dispute, the

       applicability of the privilege is a question of law to be determined by the court.

       Id. (citing Bals, 600 N.E.2d at 1356).


[18]   The facts here are not in dispute. The alleged defamatory statements originated

       in police records that were produced in conjunction with the incidents involving

       Burklow. Notations in the police records that Burklow may abuse prescription

       medication and that she had been diagnosed with bipolar disorder were

       documented as they were reported by others to the responding officer. These

       undisputed facts cannot support a finding of malice. The alleged defamatory

       Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017   Page 9 of 10
       communications were clearly made in good faith by officers acting in the course

       of their duties by documenting their interactions with Burklow. Such

       statements fall within the qualified privilege doctrine.


[19]   We further note that, at the very least, Burklow cannot establish the publication

       element of a defamation claim. The reports were internal documents and only

       produced to Dr. Hope who was charged with conducting an evaluation for

       purposes of a judicial proceeding regarding custody. Assuming Burklow’s

       defamation claim was timely filed, we conclude that the undisputed facts

       establish that such claim cannot succeed as a matter of law. Summary

       judgment was therefore proper.


[20]   Judgment affirmed.


[21]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017   Page 10 of 10
