Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
                                                             Sep 29 2014, 9:59 am




APPELLANT PRO SE:

SHAVAUGHN CARLOS WILSON-EL
Pendleton, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAVAUGHN CARLOS WILSON-EL,                      )
                                                 )
        Appellant,                               )
                                                 )
               vs.                               )    No. 49A02-1312-MI-1073
                                                 )
T. ESTEB, ET AL.,                                )
                                                 )
        Appellee.                                )


                      APPEAL FROM THE MARION CIRCUIT COURT
                           The Honorable David J. Dreyer, Judge
                            Cause No. 49D10-1306-MI-23416


                                     September 29, 2014

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

       Shavaugh Wilson-El appeals the dismissal of his complaint against T. Esteb, D.

Majors, S. Harter, D. Keithly, C. Waltz, M. Johnson, S. Proffitt, T. Johnson, T. White, W.

Weaver, E. Cole, A. Nonweiler, John or Jane Doe #2, John or Jane Doe #3, G. Kruse, C.

Bailey, J. Lakas, D. Crisler, Jr., J. Wernke, D. Hendry, J. Layton, John Doe, Chaplain, D.

Vantreese, J. Vantreese, C. Tate, J. Johnson, M. Foley, and A. Rachel, each in their

individual and/or official capacities (collectively “the Defendants”). We affirm in part

and reverse in part.

                                          Issue

       Wilson-El raises one issue, which we restate as whether the trial court properly

dismissed his complaint based on 42 U.S.C. § 1983 alleging violations of his federal and

state constitutional rights.

                                          Facts

       On June 6, 2013, Wilson-El filed a 42 U.S.C. § 1983 complaint alleging that the

Defendants, employees of the Marion County Jail, committed misconduct against him

while he was incarcerated and the misconduct violated his United States and Indiana

constitutional rights. Wilson-El requested that the trial court award compensatory and

punitive damages.

       The Defendants requested extensions of time and were given until October 12,

2013, to respond to the complaint. On October 15, 2013, the Defendants filed an Indiana

Trial Rule 12(B)(6) motion to dismiss the complaint with prejudice. On October 21,

2013, the trial court dismissed the complaint with prejudice and, on November 19, 2013,

                                            2
Wilson-El filed a motion to correct error. The trial court did not rule on the motion to

correct error and, on December 17, 2013, Wilson-El filed a motion of appeal.

                                           Analysis

       “‘A motion to dismiss for failure to state a claim tests the legal sufficiency of the

claim, not the facts supporting it.’” Kitchell v. Franklin, 997 N.E.2d 1020, 1025 (Ind.

2013) (quoting Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007)).

We review a trial court’s grant or denial of a motion based on Trial Rule 12(B)(6) de

novo. Id. When reviewing the ruling on a motion to dismiss, we view the pleadings in

the light most favorable to the nonmoving party, Wilson-El, with every reasonable

inference construed in his favor. See id. A complaint may not be dismissed on this basis

unless it is clear on the face of the complaint that the complaining party is not entitled to

relief. Id.

       As an initial matter, the Defendants have not filed an appellees’ brief. Under that

circumstance, we do not undertake to develop arguments for them. See Morton v. Ivacic,

898 N.E.2d 1196, 1199 (Ind. 2008). Rather, we will reverse upon Wilson-El’s prima

facie showing of reversible error. See id. Prima facie error means at first sight, on first

appearance, or on the face it. Id.

       Wilson-El first contends that the Defendants’ October 15, 2013 motion to dismiss

was untimely because the trial court had granted them an extension up to and including

October 12, 2013 to answer the complaint.1 October 12, 2013 fell on a Saturday, and


1
  As Wilson-El points out, the motion was entered in the chronological case summary (“CCS”) on
October 17, 2013. However, as the CCS indicates, the motion was file stamped on October 15, 2013.
                                               3
October 14, 2013 was Columbus Day, a State holiday. As such, we conclude that the

motion was timely filed on the next business day—Tuesday, October 15, 2013. See Ind.

Trial Rule 6 (explaining that in computing any period of time “the period runs until the

end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which

the office is closed.”). This argument is unavailing.

          As for the merits of the dismissal, Wilson-El only sought redress pursuant to 42

U.S.C. §1983 for purported violations of his federal and state constitutional rights.2 The

Defendants moved to dismiss Wilson-El’s complaint on the basis they were immune from

liability pursuant to the Indiana Tort Claims Act (“ITCA”) and that there is no right of

action for monetary damages for violations of the Indiana Constitution.

          Regarding the alleged state constitutional violations, “It is now well established

that section 1983 creates ‘a species of tort liability’ in favor of persons deprived of their




2
    This statute provides:

                  Every person who, under color of any statute, ordinance, regulation,
                  custom, or usage, of any State or Territory or the District of Columbia,
                  subjects, or causes to be subjected, any citizen of the United States or
                  other person within the jurisdiction thereof to the deprivation of any
                  rights, privileges, or immunities secured by the Constitution and laws,
                  shall be liable to the party injured in an action at law, suit in equity, or
                  other proper proceeding for redress, except that in any action brought
                  against a judicial officer for an act or omission taken in such officer’s
                  judicial capacity, injunctive relief shall not be granted unless a
                  declaratory decree was violated or declaratory relief was unavailable. For
                  the purposes of this section, any Act of Congress applicable exclusively
                  to the District of Columbia shall be considered to be a statute of the
                  District of Columbia.

42 U.S.C. § 1983.


                                                       4
federal constitutional rights.”3 Cantrell v. Morris, 849 N.E.2d 488, 506 n.26 (Ind. 2006)

(citations omitted) (emphasis added).             In support of their motion to dismiss, the

Defendants specifically asserted, “while a federal constitutional violation is actionable

under 42 U.S.C. section 1983, Indiana has no comparable statutory provision creating an

explicit civil remedy for constitutional violations.” App. p. 52 (citing Cantrell, 849

N.E.2d at 493). Wilson-El provides no argument or authority for the proposition that he

may seek redress for state constitutional violations via a §1983 claim. As such, he has

not made a prima facie showing that the dismissal of his state-based claims was

erroneous.

        Regarding the alleged federal constitutional violations, the Defendants

acknowledged that a federal constitutional violation is actionable under §1983 but did not

explain how ITCA applied to or barred claims based on alleged federal constitutional

violations. On appeal, Wilson-El relies on Cantrell for the proposition that, “By reason

of the Supremacy Clause and principles of federalism, to the extent the Federal

Constitution prohibits conduct by state officers, state laws are ineffective to shield the

officers from federal remedies.” Cantrell, 849 N.E.2d at 506. “Specifically, the ITCA

does not apply to claims based on 42 U.S.C. § 1983.” Id. Accordingly, the Defendants’

reliance on ITCA is not a reason for dismissing the claims based on purported federal




3
  Our supreme court has acknowledged, “filing suit in state court was permissible because the state courts
have concurrent jurisdiction with the federal courts to entertain actions brought under 42 U.S.C. § 1983.”
Love v. Rehfus, 946 N.E.2d 1, 19 n.21 (Ind. 2011).


                                                    5
constitutional violations. Thus, in light of Cantrell, Wilson-El has made a prima facie

showing of reversible error regarding the dismissal of his federal-based claims.

                                       Conclusion

       Because Wilson-El has not established that 42 U.S.C. §1983 is available for

purported violations of state constitutional rights, he has not made a prima facie showing

that dismissal of those claims was reversible error. However, because the Defendants’

arguments to the trial court in favor of dismissal did not specifically address the alleged

federal violations, Wilson-El has made a prima facie showing that the dismissal of those

claims was reversible error. We affirm in part and reverse in part.

       Affirmed in part and reversed in part.

BRADFORD, J., and BROWN, J., concur.




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