MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       FILED
this Memorandum Decision shall not be                             Dec 16 2016, 8:15 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Carl Johnson                                             Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Carl Johnson,                                            December 16, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         48A02-1602-PL-285
        v.                                               Appeal from the Madison Circuit
                                                         Court
Corrections Officer Captain                              The Honorable Thomas Newman,
Blattner and                                             Jr., Judge
Corrections Officer Schell,                              Trial Court Cause No.
Appellees-Defendants.                                    48C01-1507-PL-87




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016    Page 1 of 7
[1]   Carl Johnson appeals the dismissal of his civil complaint against Corrections

      Officer Captain Blattner (“CO Blattner”) and Corrections Officer Schell (“CO

      Schell”) (collectively, “the Correctional Officers”). 1 We affirm in part, reverse

      in part, and remand.



                              Facts and Procedural History
[2]   On July 28, 2015, Johnson filed a civil complaint asserting his Fourth

      Amendment rights under the United States Constitution were violated when he

      “was violated by the [Correctional Officers] as [he] was continually searched

      and/or ordered to be searched by them by being stripped out each and every

      time late at night while in [his] cell.” (Appellant’s App. at 6.) He alleged

      specifically he “was told to bend over and open [his] anus cavity” and he had

      been “psychologically damaged because of the abuse by all officers.” (Id.) He

      also contended his Fourteenth Amendment rights under the United States

      Constitution were violated “based on the fact that other inmates were not

      subjected or treated in the same manner of abuse as [he] was.” (Id.)


[3]   On December 22, 2015, the Correctional Officers filed a motion to dismiss

      Johnson’s complaint pursuant to Indiana Trial Rule 12(B)(6) “because prisoners

      do not have a right to privacy under the 4th Amendment of the United States

      Constitution and the Plaintiff fails to allege sufficient facts to state an equal




      1
       The Corrections Officers are not referred to by their full names in the record. We refer to them as their
      names appear on the Chronological Case Summary.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016             Page 2 of 7
      protection claim under the 14th Amendment to the United States

      Constitution.” (Id. at i.) On January 11, 2016, the trial court granted the

      Correction Officers’ motion to dismiss.



                                 Discussion and Decision
[4]   We first note Johnson proceeds pro se. Litigants who proceed pro se are held to

      the same established rules of procedure that trained counsel is bound to follow.

      Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.

      dismissed, 558 U.S. 1074 (2009). One risk a litigant takes when proceeding pro se

      is that he will not know how to accomplish all the things an attorney would

      know how to accomplish. Id. When a party elects to represent himself, there is

      no reason for us to indulge in any benevolent presumption on his behalf or to

      waive any rule for the orderly and proper conduct of his appeal. Foley v.

      Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).


                                            Standard of Review

[5]   Our standard of review is well-settled:


              We review de novo a ruling on a motion to dismiss a civil
              complaint for failure to state a claim pursuant to Indiana Trial
              Rule 12(B)(6). Putnam County Sheriff v. Price, 954 N.E.2d 451,
              453 (Ind. 2011). “Such a motion tests the legal sufficiency of a
              claim, not the facts supporting it.” Caesars Riverboat Casino, LLC
              v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010). “That is to say, it
              tests whether the allegations in the complaint establish any set of
              circumstances under which a plaintiff would be entitled to relief.”
              Price, 954 N.E.2d at 453. In ruling on a Rule 12(B)(6) motion,

      Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016   Page 3 of 7
              courts are required to view the complaint in the light most
              favorable to the non-moving party and with every inference in its
              favor. Id.


      Medley v. Lemmon, 994 N.E.2d 1177, 1182 (Ind. Ct. App. 2013), reh’g denied,

      trans. denied. Dismissals under T.R. 12(B)(6) are “rarely appropriate.” Obemski

      v. Henderson, 497 N.E.2d 909, 910 (Ind. 1986).


                                        Fourth Amendment Claim

[6]   More than thirty years ago, our Indiana Supreme Court explained:


              The United States Supreme Court recently held in Hudson v.
              Palmer [468 U.S. 517] (1984), that a prison inmate does not have
              a reasonable expectation of privacy in his prison cell entitling
              him to Fourth Amendment protection against unreasonable
              searches and seizures. The Court stated that a right of privacy in
              traditional Fourth Amendment terms is fundamentally
              incompatible with the close and continual surveillance of inmates
              and their cells required to ensure institutional security.


      Perkins v. State, 483 N.E.2d 1379, 1384 (Ind. 1985). The United States Supreme

      Court has also ruled that body cavity searches such as those described by

      Johnson are not unreasonable searches because the “[s]muggling of drugs,

      weapons, and other contraband is all too common an occurrence. And inmate

      attempts to secrete the items into the facility by concealing them in body

      cavities are documented in this record and in other cases.” Bell v. Wolfish, 441

      U.S. 520, 559 (1979). Thus, both types of searches of which Johnson complains

      are not considered unreasonable under established case law, and his Fourth

      Amendment argument fails as a matter of law.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016   Page 4 of 7
                                     Fourteenth Amendment Claim

[7]   The Fourteenth Amendment to the United States Constitution prohibits the

      states from denying “to any person within its jurisdiction the equal protection of

      the laws.” U.S. Const. Amend. XIV §1. To establish a prima facie case of

      violation of a person’s equal protection rights, a plaintiff must show “he or she

      is a member of a protected class, that he or she is otherwise similarly situated to

      members of the unprotected class, and that he or she was treated differently

      from members of the unprotected class.” Dickson v. Aaron, 667 N.E.2d 759, 763

      (Ind. Ct. App. 1996) (quoting Sims v. Mulcahy, 902 F.2d 524, 538 (7th Cir. 1990),

      cert. denied, 498 U.S. 897 (1990)), trans. denied. “Moreover, a plaintiff alleging a

      violation of the equal protection clause must not only establish that she was

      treated differently, but she must also establish that the defendants acted with

      discriminatory intent.” Id. In the alternative, “a plaintiff who is not part of an

      identifiable class but is singled out for discriminatory treatment can raise a

      ‘class of one’ equal protection claim.” City of Indianapolis v. Armour, 946 N.E.2d

      553, 565 (Ind. 2011), cert. granted, opinion affirmed by Armour v. City of

      Indianapolis, Ind., 132 S.Ct. 2073 (2012). “Class of One” cases are marked with

      a claim that “underlying the government’s decision [to treat the plaintiff

      differently] is animus or ill-will toward the plaintiff.” Id.


[8]   As stated in Price, dismissal of a claim is not appropriate if “the allegations in

      the complaint establish any set of circumstances under which a plaintiff would

      be entitled to relief.” Price, 954 N.E.2d at 453. In his complaint, Johnson

      alleged, “my 14th Amendment of equal protection and equal treatment was

      Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016   Page 5 of 7
      violated under the U.S Constitution based on the fact that other inmates were

      not subjected or treated in the same manner of abuse as I was.” (Appellant’s

      App. at 6) (errors in original). To support his claim, Johnson asserted:

              This claim 2 is in regards to my 14th Amendment right of equal
              protection under the law as I was being stripped out naked by
              these officers continually even though they knew that I had
              already been violated several times already. They knew because
              I told them that the other officers had looked up my anus at least
              three times without finding any wrong doing on my part. I also
              asked every officer what was the reason that I was being violated
              of my rights. They wouldn’t give me any explanation. Now I
              have been psychologically damages because of the abuse by all
              officers.


      (Id.) (errors in original). Johnson’s allegations fit those of a “class of one” equal

      protection claim in that he contends he was treated differently than other

      prisoners and provided details of that treatment. The dismissal of Johnson’s

      equal protection claim under the Fourteenth Amendment was not appropriate. 2



                                                Conclusion
[9]   The trial court properly dismissed Johnson’s Fourth Amendment claim, as it

      had no basis in law. However, it erred when it dismissed Johnson’s Fourteenth




      2
        Johnson also complains on appeal he was not permitted to amend his complaint following dismissal as
      required by T.R. 12(B). However, as we hold the dismissal was inappropriate, we need not decide this issue.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016         Page 6 of 7
       Amendment claim. Accordingly, we affirm in part, reverse in part, and

       remand.


[10]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016   Page 7 of 7
