MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Feb 05 2019, 7:55 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.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Corey Hamersley                                           INDIANA DEPARTMENT OF
Sheridan, Indiana                                         CORRECTION
                                                          Curtis T. Hill, Jr.
                                                          Attorney General of Indiana

                                                          Frances H. Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana

                                                          ATTORNEYS FOR APPELLEE
                                                          AMERICAN BROADCASTING
                                                          COMPANY, INC.
                                                          Steven M. Badger
                                                          Kara M. Kapke
                                                          Barnes & Thornburg LLP
                                                          Indianapolis, Indiana

                                                          Nathan Siegel
                                                          Alison Schary
                                                          Davis Wright Tremaine LLP
                                                          Washington, District of Columbia




Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019                 Page 1 of 13
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Corey Hamersley,                                          February 5, 2019
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-PL-955
              v.                                                Appeal from the Madison Circuit
                                                                Court
      Indiana Department of                                     The Honorable Mark Dudley,
      Correction, and American                                  Judge
      Broadcasting Company, Inc.,                               Trial Court Cause No.
      Appellees-Defendants.                                     48C06-1704-PL-33




      Shepard, Senior Judge.


[1]   Corey Hamersley appeals the dismissal of his lawsuit against the Indiana

      Department of Correction (DOC) and the American Broadcasting Company,

      Inc. (ABC). Concluding that the trial court correctly dismissed, we affirm.


                               Facts and Procedural History
[2]   While incarcerated on unrelated charges, Hamersley was interviewed by former

      FBI agent Brad Garrett and investigator Bill Benjamin regarding the June 3,

      2011 disappearance of Indiana University student Lauren Spierer. The

      interview was recorded, and a portion of it was included in a report called

      “Looking for Lauren,” which ABC aired on its newsmagazine program

      “20/20.” Hamersley says in his brief that “[t]he entire prison interview and

      recording lasts between 35-40 minutes which was mostly unaired.” Appellant’s

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019       Page 2 of 13
      Br. p. 6 n.3. In the report, Hamersley’s photo was shown with the three men

      who were last seen with Lauren on the night she disappeared. The report

      explained that the Spierer family received a tip from a former inmate of

      Hamersley who reported that Hamersley had told him he knew the men

      involved in Lauren’s disappearance. The report included footage from an

      interview with the former inmate recounting a conversation in which

      Hamersley told him Lauren and the men were drinking and taking the drug

      ecstasy, and Lauren overdosed. The men were scared and disposed of her

      body.


[3]   The footage from Hamersley’s interview that was included in the report

      consisted of Garrett asking Hamersley if he helped move Lauren’s body.

      Hamersley responded, “‘Absolutely not. I’ve never met this person before in

      my life.’” Id. at 6; Appellee ABC’s Br. p. 11. When Garrett asked if he would

      contact Garrett if he remembered or heard anything about the case, Hamersley

      responded, “‘Honestly, probably not. I do not want to be associated with this at

      all.’” Id. During a discussion between Garrett and an ABC news journalist at

      the end of the report, Garrett stated his belief that Hamersley was lying to him

      and that he would continue investigating to find out why.


[4]   Hamersley subsequently filed a complaint against DOC and ABC. He alleged

      that DOC negligently allowed Garrett and Benjamin to enter the correctional

      facility, meet with him, and videotape their conversation. As to ABC,

      Hamersley claimed that its report slandered and defamed him. Both DOC and

      ABC filed motions to dismiss, which the trial court granted.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 3 of 13
                                                     Issues
[5]   Hamersley presents two issues for our review, which we restate as:


              I. Whether the trial court erred in dismissing his lawsuit against
              DOC.


              II. Whether the trial court erred in dismissing his lawsuit against
              ABC.


                                   Discussion and Decision
                                  I. Department of Correction
[6]   The trial court dismissed Hamersley’s action against DOC for failure to state a

      claim upon which relief can be granted. Hamersley appeals the dismissal,

      contending DOC was negligent for allowing him to be interviewed because he

      was not made aware that Garrett and Benjamin were ABC investigators.

      Rather, he believed they were with law enforcement and, had he known they

      were with the media, he would not have spoken to them. He suggests that

      DOC’s failure to obtain from him a waiver permitting the release of the

      interview resulted in his giving an involuntary interview to his detriment.


[7]   An appellate court engages in a de novo review of the trial court’s grant or

      denial of a motion based on Trial Rule 12(B)(6). Brown v. Vanderburgh Cty.

      Sheriff’s Dep’t, 85 N.E.3d 866 (Ind. Ct. App. 2017). A motion to dismiss under

      Rule 12(B)(6) tests the legal sufficiency of a claim, not the supporting facts. Id.

      Accordingly, we must determine if the trial court erred in its application of the

      law, and we consider the complaint in the light most favorable to the non-
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 4 of 13
       moving party and draw every reasonable inference in favor of that party.

       Chenore v. Plantz, 56 N.E.3d 123 (Ind. Ct. App. 2016). The grant of a motion to

       dismiss is proper if it is apparent that the facts alleged in the complaint are

       incapable of supporting relief under any set of circumstances. Brown, 85 N.E.3d

       866.


[8]    To prevail on a claim of negligence, a plaintiff must show: (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 (Ind. Ct. App. 2015). Absent a duty, there can be no negligence or

       liability based upon a breach. Powell v. Stuber, 89 N.E.3d 430 (Ind. Ct. App.

       2017), trans. denied. Whether a duty exists is a question of law for the courts to

       decide. Podemski v. Praxair, Inc., 87 N.E.3d 540 (Ind. Ct. App. 2017), trans.

       denied.


[9]    DOC is neither a guarantor of prisoners’ safety, nor has it been relieved of all

       responsibility for their safekeeping. Cole v. Ind. Dep’t of Corr., 616 N.E.2d 44

       (Ind. Ct. App. 1993), trans. denied. Rather, its responsibility toward its charges

       lies somewhere in between: DOC has the duty “to take reasonable precautions

       to preserve the life, health, and safety of prisoners.” Id. at 45-46.


[10]   At the heart of Hamersley’s argument is DOC Policy and Procedure number

       00-03-101, which sets forth, in pertinent part:


                 The offender must sign a waiver permitting release of his/her
                 image and/or words (ATTACHMENT I) or the request [for an
                 interview] shall be denied. The interview may take place in
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 5 of 13
               person or by telephone, in accordance with this Administrative
               Procedure, and at the convenience of the facility. The written
               release or decision not to be interviewed shall be retained on file
               in the offender’s facility packet.


       Appellant’s App. Vol. 2, p. 44.


[11]   We first observe that internal procedures and policies are expected in the prison

       context, particularly those concerning deterrence of crime, rehabilitation of

       prisoners, and institutional safety. See Kimrey v. Donahue, 861 N.E.2d 379 (Ind.

       Ct. App. 2007), trans. denied. As a result, there exists a long-standing principle

       in this state that the judiciary is constrained from interfering with the internal

       procedures and policies of DOC. Id. The rationale for this hands-off approach

       has been explained as follows:


               Courts are ill equipped to deal with the increasingly urgent
               problems of prison administration and reform. The operation of
               a prison is an inordinately difficult undertaking that requires
               expertise, planning, and the commitment of resources, all of
               which are peculiarly within the province of the legislative and
               executive branches of government. The complex and intractable
               problems in prisons are not readily susceptible of resolution by
               judicial decree. Thus, courts will afford substantial deference to
               the professional expertise of correction officials with respect to
               the day-to-day operation of prisons and the adoption and
               execution of prison policies.


       Cohn v. Strawhorn, 721 N.E.2d 342, 346 (Ind. Ct. App. 1999) (internal citations

       omitted), trans. denied. A DOC internal policy/procedure does not necessarily

       or even generally create a legal duty on the part of DOC. We have been


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 6 of 13
       presented with no evidence that DOC instituted this policy with the intent of

       creating an additional duty or expanding its current duty, and we will not

       interfere with the internal workings of DOC by doing so on its behalf.


[12]   Moreover, under these circumstances we find no responsibility on the part of

       DOC under its recognized broader duty to preserve Hamersley’s life, health,

       and safety. There is no indication that his decision to speak with Garrett and

       Benjamin had any bearing on the preservation of his life, health, or safety or

       that it was coerced or involuntary in any way. Rather, Hamersley seeks to

       expand the duty of DOC to include protection of the reputations of Indiana’s

       inmates. He has not provided any support for such an expansion of DOC’s

       duty however, and we decline to create it. Absent a duty, there can be no

       negligence, Powell, 89 N.E.3d 430; therefore, the trial court’s dismissal of

       Hamersley’s negligence claim was proper.


                            II. American Broadcasting Company
[13]   The trial court also dismissed Hamersley’s action against ABC, citing

       Hamersley’s failure to comply with Indiana Code section 34-15-3-2 (1998).

       Hamersley asserts that he did in fact comply with the statute.


[14]   We begin with Indiana Code section 34-15-3-1 (1998), which states, in pertinent

       part:


               (a) This chapter applies to a suit brought for:


                        (1) publishing;

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 7 of 13
                        (2) speaking;


                        (3) uttering; or


                        (4) conveying by words, acts, or in any other manner;


               a libel or slander by any radio or television station or company in
               Indiana.


       Section 2 of the statute provides:


               At least three (3) days before filing a complaint in a suit described
               in section 1 of this chapter, the aggrieved party shall serve notice:


                        (1) in writing;


                        (2) on the manager of the radio or television station;


                        (3) at the principal office of the radio or television station;
                        and


                        (4) that specifies the words or acts that the aggrieved party
                        alleges to be false and defamatory.


       Ind. Code § 34-15-3-2 (emphasis added).


[15]   In his response to ABC’s motion to dismiss, Hamersley submitted a document

       he refers to as his pre-suit notice pursuant to Indiana Code §34-15-3-2. While

       the document contains both date and signature lines, it is undated and

       unsigned. In addition, although it states he has a claim against “ABC news


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019    Page 8 of 13
       network,” it does not show that it was sent to the manager of ABC at its

       principal office. Appellee ABC’s App. Vol. II, p. 71. Further, it states that

       Garrett and Benjamin interviewed him and made “false accusations that [he]

       helped move the missing women’s [sic] body and insinuated far worse.” Id. at

       71-72. Hamersley states that after he denied any involvement in Lauren’s

       disappearance, Garrett stated his opinion that Hamersley is lying and said he

       would “continue to investigate [Hamersley] to find out why he lied.” Id. at 72.

       Hamersley also alleged that “[t]hroughout the episode, [his] photo is shown

       alongside the photos of the last three men seen with the missing women [sic].”

       Id.


[16]   In its order dismissing Hamersley’s action against ABC, the trial court found

       his notice deficient because the document was “unsigned, undated, with no

       cover letter or any other indication that Hamersley made a written notice upon

       ABC at its principal office that it retract specific words or acts that he felt to be

       false and defamatory.” Appellant’s App. Vol. 2, p. 32. In his motion to correct

       error, Hamersley asserts he signed, dated and mailed a copy of his notice to

       ABC and then subsequently printed an additional copy from his computer for

       use as an exhibit. In the end, all we have are Hamersley’s self-serving claims;
                                                                           1
       there is no proof of compliance with the statute.




       1
         Hamersley also included in his appendix a copy of a certified mail return receipt that is undated and lacks
       any information linking it to any particular document. ABC asserts this document was not presented to the
       trial court. Our review of the record does not reveal that it was presented to the trial court, and it may not be
       submitted for the first time on appeal. See Morey v. Morey, 49 N.E.3d 1065, 1073 n.3 (Ind. Ct. App. 2016).

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019                      Page 9 of 13
[17]   Although the only basis stated in the trial court’s order of dismissal is

       Hamersley’s failure to comply with Indiana Code section 34-15-3-2, we can

       affirm a trial court’s dismissal on any theory or basis evident in the record. See

       Blackman v. Gholson, 46 N.E.3d 975 (Ind. Ct. App. 2015). Therefore, we discuss

       additional grounds supporting the trial court’s dismissal of Hamersley’s action

       against ABC.


[18]   The trial court also could have properly dismissed Hamersley’s complaint under

       the authority of Indiana Code section 34-58-1-2 (2004). That statute provides,

       in pertinent part:


               (a) A court shall review a complaint or petition filed by an
               offender and shall determine if the claim may proceed. A claim
               may not proceed if the court determines that the claim:


                        (1) is frivolous;


                        (2) is not a claim upon which relief may be granted; or


                        (3) seeks monetary relief from a defendant who is immune
                        from liability for such relief.


               (b) A claim is frivolous under subsection (a)(1) if the claim:


                        (1) is made primarily to harass a person; or


                        (2) lacks an arguable basis either in:


                                (A) law; or


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 10 of 13
                                (B) fact.


       Id. This statute is one of several enacted by the General Assembly in 2004 in

       response to prolific offender litigation. Smith v. Wal-Mart Stores E., LP, 853

       N.E.2d 478 (Ind. Ct. App. 2006), trans. denied. These statutes were “designed to

       balance an offender’s right to file a civil action with the heavy burden that those

       suits have placed on our judicial system.” Id. at 481.


[19]   The standard of review for dismissals under Indiana Code section 34-58-1-2 is

       de novo. Smith v. Huckins, 850 N.E.2d 480 (Ind. Ct. App. 2006). We look only

       to the well-pleaded facts contained in the complaint and determine whether it

       contains allegations concerning all of the material elements necessary to sustain

       a recovery under some viable legal theory. Id.


[20]   In his complaint, Hamersley has alleged a claim of defamation against ABC, a

       television station. However, the complaint does not refer in any way to Indiana

       Code section 34-15-3-2, or acknowledge its requirements, or state Hamersley’s

       compliance therewith. Thus, a second basis for the trial court’s dismissal is

       Indiana Code 34-58-1-2 (a)(2)—that is, Hamersley’s defamation claim is not a

       claim upon which relief may be granted due to his failure to comply with the

       mandatory dictates of Indiana Code section 34-15-3-2.


[21]   Moreover, to establish defamation, a plaintiff must prove: (1) a communication

       with defamatory imputation; (2) malice; (3) publication; and (4) damages.

       Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944 (Ind. Ct. App. 2014), trans.

       denied. A private individual who brings a defamation action involving an event

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 11 of 13
       of public interest or concern must prove actual malice. Kitco, Inc. v. Corp. for

       Gen. Trade, 706 N.E.2d 581 (Ind. Ct. App. 1999). Whether a matter is of public

       concern or interest is a question of law for the court. Brewington v. State, 7

       N.E.3d 946 (Ind. 2014).


[22]   In this instance, the disappearance of Lauren certainly constitutes a matter of

       widespread public interest and concern. Her disappearance and the ensuing

       investigation have received extensive media coverage spanning several years

       and are legitimate concerns for this state generally and for the city of

       Bloomington and Indiana University in particular. Accordingly, Hamersley

       must establish that ABC acted with actual malice.


[23]   Actual malice requires a defamatory falsehood to be published with knowledge

       of or reckless disregard of its falsity. Kitco, 706 N.E.2d 581. Publication is

       made with reckless disregard of the truth when the publisher has a high degree

       of awareness of its probable falsity. Id. Thus, the test is not whether a

       reasonably prudent person would have published the statement but rather

       whether there is sufficient evidence to permit the conclusion that the defendant

       in fact entertained serious doubts about the truth of the publication. Id.


[24]   In this case, the complaint makes no allegation of actual malice on the part of

       ABC. Even on appeal, the parties characterize the aired report as a

       presentation of the evidence and information gathered thus far and the opinions

       and theories of investigators as to possible scenarios concerning the unsolved

       disappearance of a college co-ed. In addition, ABC’s inclusion in the report of


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 12 of 13
       Hamersley’s denial of involvement tends toward demonstrating a lack of actual

       malice. This hardly qualifies as evidence that ABC knew or had a high degree

       of awareness of the report’s falsity. Thus, a review of Hamersley’s complaint

       through the lens of Section 34-58-1-2 reveals a lack of allegations concerning

       material elements necessary to sustain a recovery in an action for defamation.

       See Smith, 850 N.E.2d 480. Accordingly, a dismissal under the authority of

       Indiana Code 34-58-1-2(a)(2) would also have been appropriate.


                                                 Conclusion
[25]   Considering the complaint in the light most favorable to Hamersley, we cannot

       say the trial court erred in its application of the law. Accordingly, we affirm the

       trial court’s dismissal of his complaint against both DOC and ABC.


[26]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-955 | February 5, 2019   Page 13 of 13
