MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Apr 23 2019, 8:52 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Cleverly Lockhart                                         Curtis T. Hill, Jr.
New Castle, Indiana                                       Attorney General of Indiana

                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cleverly Lockhart,                                        April 23, 2019
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-PL-1553
        v.                                                Appeal from the Henry Circuit
                                                          Court
Robert Eutz,                                              The Honorable Kit C. Dean Crane,
Appellee-Defendant.                                       Judge
                                                          Trial Court Cause No.
                                                          33C02-1712-PL-65



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019                  Page 1 of 11
                                        Statement of the Case
[1]   Cleverly Lockhart appeals the trial court’s dismissal of his complaint for failure

      to state a claim upon which relief can be granted under Indiana Trial Rule

      12(B)(6). Lockhart raises two issues for our review, which we consolidate and

      restate as whether the trial court erred when it dismissed Lockhart’s complaint

      for breach of contract. We reverse and remand for further proceedings.


                                  Facts and Procedural History
[2]   On December 13, 2017, Lockhart, an inmate at the New Castle Correctional

      Facility, filed a civil complaint against Robert Eutz, an employee at the Miami

      Correctional Facility. According to his complaint:


              This cause of action is filed by Cleverly Lockhart, a state prisoner
              alleging violations of his civil rights under 42 U.S.C.S. § 1983, 18
              U.S.C.S. § 1001, 47 U.S.C.S. § 1038, and Indiana Code
              [Sections] 34-11-2-7 and 34-14-1-9.


              Plaintiff alleges that Robert Eutz assaulted plaintiff,
              unnecessarily striking him repeatedly causing damage [and]
              thereby inflicting cruel and unusual punishment.


              Plaintiff alleges that Eutz entered into a contractual agreement to
              remove himself from a civil complaint previously filed by
              Plaintiff under Cause No. 52C01-1507-CT-000215.


              Plaintiff alleges that Eutz’s failure to abide by the Notarized
              Affidavit, a contractual agreement, amounts to fraud,
              misrepresentation, deceit, promissory estoppel, breach of duty of
              good faith and fair dealing, or a breach of a conditional contract


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 2 of 11
        under the Indiana Declaratory Judgments Act, Ind. Code § 34-
        14-1-9.


        Eutz continues to exhibit hostile treatment over [P]laintiff by
        taunting and lauding the revoking of the contractual agreement
        entered into by himself and [P]laintiff, Lockhart, who is currently
        located at the New Castle Correctional Facility.


                                                ***


        1.     On August 31, 2015[,] Plaintiff Lockhart filed a Civil
        Rights Complaint under the Indiana Constitution and 42 U.S.C.
        § 1983[] alleging the deprivation of rights under the color of state
        law and the rights secured by the United States Constitution
        alleging cruel and unusual punishment, excessive force[,] and
        denial of medical treatment under Cause No. 52C01-1507-CT-
        00215.


        2.     Defendant Eutz wrote . . . to Warden Keith Butts of the
        New Castle Correctional Facility[] requesting permission to enter
        into a contractual agreement with Lockhart in regards to a civil
        matter arising out of Miami Circuit Court . . . Cause No. 52C01-
        1507-CT-00215.


        3.   Defendant Eutz attempted to enter into negotiations with
        Lockhart to pay $80,000.00 in anticipation that Lockhart would
        remove Eutz from the initial civil complaint under Cause No.
        52C01-1507-CT-00215; the payments consist of monthly
        payments [in the amount of] $950.00.


        4.    Mr. Eutz requested of Warden Butts that Lockhart be
        allowed to enter into a contract contrary to The Indiana
        Department of Correction Policy and Procedure 04-03-103,
        Information and Standards of Conduct for Department Staff, and

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 3 of 11
        Policy and Procedure Manual New Castle Correctional Facility,
        Policy Number 03.009, Code of Ethics, in an attempt to
        negotiate with Lockhart to avoid unfavorable court action.


        5.     Mr. Eutz continues to taunt Lockhart about the breach of
        contract and the deplorable acts by continued communication
        sent through certified mail to the New Castle Correctional
        Facility.


                                       LEGAL CLAIMS


        6.     Plaintiff has relied on agency regulations created for
        guidance and benefit [sic]. Plaintiff has suffered substantially
        because [of] the Defendant[’s] violation of the guidelines.
        Plaintiff asserts that the violation perpetrated by Robert Eutz
        amount[s] to the denial of due process[ and] equal protection
        and[/]or treatment.


        7.     The [D]efendant made an unambiguous promise to the
        [P]laintiff, the [P]laintiff relied on the promise, the [P]laintiff’s
        reliance was expected and foreseeable by the [D]efendant, and
        the [P]laintiff relied on the promise to his detriment.


        8.     Eutz violated Lockhart’s civil rights under 42 U.S.C.S. §
        1983, 18 U.S.C.S. § 1001, 47 U.S.C.S. § 1038, and Indiana Code
        [Sections] 34-11-2-7 and 34-14-1-9.


                                                ***


        10. The fraudulent actions perpetrated by Robert Eutz caused
        Lockhart to remove him from the initial civil complaint lodged in
        the Miami Circuit Court.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 4 of 11
              11. Eutz’s attempt to circumvent the Indiana Department of
              Correction policy 04-03-103, Information and Standards of
              Conduct for Department Staff, by entering into a contractual
              agreement vaunts [sic] willful deceitfulness to defraud Lockhart
              of the agreed upon payment.


      Appellant’s App. Vol. 2 at 11-14. As relief, Lockhart sought “[a]ll monies

      including the $80,000.00 promised in [the] original action plus 10% apr. [sic]

      interest since the initiation of the contractual agreement . . . .” Id. at 14.


[3]   On May 23, 2018, prior to filing any responsive pleading, Eutz moved to

      dismiss Lockhart’s complaint in part and moved for a more definitive statement

      from Lockhart in part. Specifically, Eutz requested the court to dismiss

      Lockhart’s 42 U.S.C. § 1983 claims because Lockhart’s complaint “failed to

      allege with any specificity as to how Eutz’s actions caused or participated in a

      deprivation of Plaintiff’s rights.” Id. at 15. Eutz further requested dismissal of

      Lockhart’s “claims under the various federal and state codes . . . cite[d] . . . in

      [the] Complaint . . . as . . . they do not provide a private right of action for

      Plaintiff.” Id. at 16. And, “[i]n relation to any claims that appear to be

      allegations of a breach of contract,” Eutz continued, “Plaintiff should be

      required to comply with Indiana Trial Rule 9.2(A) to amend his Complaint and

      include the omitted written instrument.” Id. at 15.


[4]   On April 14, Lockhart timely responded and moved to amend his complaint to

      attach the contract and other correspondence between Lockhart and Eutz.

      According to the contract:



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 5 of 11
        3      From June 04, 2012[,] to December 30, 2013[,] [P]en
        [P]roducts employed [Lockhart] to work at Miami Accessible
        Media Project. [Eutz] employed [Lockhart] at the request of Mr.
        Mark Sevier[,] Superintendent of Miami Correctional
        Facility. . . .


        4      [Eutz] was very aware that [Lockhart had] made
        complaints against [Eutz]. [Eutz] did have meetings with Mr.
        Sevier on [Lockhart’s] and others[’] complaints about [Eutz’s]
        behavior.


        5        [Lockhart] was certified in Braille Transcription . . . .


        6        [Lockhart] did transcribe books for various agencies. . . .


        7     It was brought to [Eutz] that [Lockhart] is a witness and
        involved in litigation involving [Eutz] and [P]en [P]roducts in
        several different cases. . . .


        8      On December 26, 2013[,] . . . [Eutz,] during a heated
        conversation . . . while on medication[,] did strike [Lockhart
        with] the cameras shut off. [Eutz] was clouded due to the
        medication. [Eutz] believes that he did not strike Lockhart with
        much force. [Eutz] further would not allow [Lockhart] to see
        medical or discuss the issue with [P]en [P]roducts officers. At
        around 1:00 p.m. [Eutz] tried to apologize to [Lockhart;]
        however[,] [Lockhart] was not receptive. . . .


        9      On January 09, 2014[, Eutz] mailed [Lockhart] a letter out
        of anger. Said letter was threatening. [Eutz] had an offender
        write said letter[. Eutz] did mail this from . . . Indianapolis.


        10    [Eutz] was questioned by internal affairs on several
        occasions[. Eutz] was not truthful with the investigators.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 6 of 11
              11     [Eutz] has viewed the evidence of [Lockhart] on this case
              and feels it is now in the best interest to settle the matter in
              question.


              12    [Lockhart] agrees not to testify in any other matters
              dealing with other litigations against [Eutz].


              It is agreed by both parties that [Eutz] and [Lockhart] settle in the
              amount of [$80,000]. . . .


      Id. at 54-56. The contract shows that both parties executed it before notaries

      public.


[5]   Lockhart also moved to attach various correspondence between him and Eutz

      both before and after the formation of the contract. In particular, in a letter to

      Lockhart dated May 6, 2016, after the execution of the contract, Eutz stated

      that “[t]he only way I will make any payments to you is for the entire case to be

      dismissed” as to all defendants “and I receive the original agreement.” Id. at

      61. Eutz further stated that Lockhart was “not to discuss any of the events or

      conversations that took place in the braille shop.” Id.


[6]   Eutz did not object to Lockhart’s motion to amend his complaint to attach the

      contract and correspondence. Nonetheless, on May 29, 2018, the trial court

      granted Eutz’s motion to dismiss as to all counts—including breach of

      contract—and denied Lockhart’s motion to amend his complaint. This appeal

      ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 7 of 11
                                     Discussion and Decision
[7]   On appeal, Lockhart contends that the trial court erred when it dismissed his

      complaint under Indiana Trial Rule 12(B)(6) for failure to state a claim upon

      which relief can be granted. “A 12(B)(6) motion tests the legal sufficiency of

      the complaint,” and we review the trial court’s judgment under Rule 12(B)(6) de

      novo. Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017).

      As our Supreme Court has explained:


              In reviewing a 12(B)(6) motion to dismiss, we look at the
              complaint in the light most favorable to the plaintiff, with every
              inference drawn in [his] favor, to determine if there is any set of
              allegations under which the plaintiff could be granted relief. A
              12(B)(6) dismissal is improper unless it appears to a certainty on
              the face of the complaint that the complaining party is not
              entitled to any relief. Dismissals under T.R. 12(B)(6) are rarely
              appropriate. Though Indiana’s notice pleading rules do not
              require the complaint to state all elements of a cause of action,
              the plaintiff must still plead the operative facts necessary to set
              forth an actionable claim.


      State v. Am. Fam. Voices, Inc., 898 N.E.2d 293, 295-96 (Ind. 2008) (citations,

      quotation marks, and footnote omitted). And, when a complaint arises out of a

      written instrument that should be attached to the complaint pursuant to Trial

      Rule 9.2(A), it is “[t]he complaint itself, and not simply the written instrument,”

      that “must give the defendant some minimal notice of the plaintiff’s claim.”

      Noblesville Redev. Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558, 564-65

      (Ind. 1996).



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 8 of 11
[8]   We initially note the limited scope of Lockhart’s argument on appeal.

      Although his complaint identifies numerous federal and state statutes along

      with various common-law causes of action, on appeal Lockhart argues that the

      trial court erred only with respect to Lockhart’s breach-of-contract claim. In

      particular, the clear thrust of Lockhart’s argument on appeal is that the trial

      court erred when it dismissed his complaint for not having properly attached

      the contract and denied Lockhart’s request to amend the complaint to attach

      the contract. Those arguments are only relevant to his breach-of-contract claim.


[9]   The State’s brief on appeal, by contrast, argues that the trial court correctly

      dismissed the statutory and common-law causes of action but omits any

      reference to Lockhart’s original breach-of-contract claim. 1 As Lockhart does

      not argue that the trial court erred when it dismissed his claims under the non-

      breach-of-contract theories, we do not consider them. And, as the State does

      not respond to Lockhart’s argument that the trial court erred when it dismissed

      his original breach-of-contract claim, we review Lockhart’s argument on that

      issue for prima facie error. E.g., Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct.

      App 2002).




      1
        The State asserts that Lockhart’s proposed amended complaint would have narrowed his breach-of-
      contract claim to a claim under the statute of frauds and that, as the subject matter of the contract does not
      relate to real property, the amended breach-of-contract claim too must fail. We need not consider this
      argument as we hold that the trial court erred when it dismissed Lockhart’s originally pleaded breach-of-
      contract claim.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019                      Page 9 of 11
[10]   There is no dispute that Lockhart’s original complaint, while less than clear,

       was sufficient to put Eutz on notice of a breach-of-contract claim. Indeed, prior

       to filing any responsive pleading, Eutz moved not to dismiss that claim but to

       require Lockhart to more clearly present it by attaching the contract to the

       complaint. Lockhart then moved to amend the complaint by attaching the

       contract, but the trial court instead dismissed Lockhart’s complaint in its

       entirety.


[11]   Indiana Trial Rule 15(A) unambiguously states that “[a] party may amend his

       pleading once as a matter of course at any time before a responsive pleading is

       served . . . .” Accordingly, Lockhart was entitled to amend his complaint by

       attaching the contract, which would have satisfied Eutz’s concern to have

       Lockhart provide a more definite statement on the breach-of-contract claim.

       See also Ind. Trial Rule 9.2(F). Indeed, the State does not suggest on appeal that

       Rule 15(A) should not have applied here; rather, it simply asserts that attaching

       the contract to Lockhart’s original complaint would have been futile. We

       cannot agree as, again, there is no dispute that Lockhart’s original complaint

       sufficiently stated a claim for breach of contract. Accordingly, we reverse the

       trial court’s dismissal of Lockhart’s original complaint on his claim for breach

       of contract and we remand for further proceedings. 2




       2
         While we hold that Lockhart’s breach-of-contract claim should not have been dismissed, we express no
       opinion on the merits of his claim.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019               Page 10 of 11
[12]   Reversed and remanded for further proceedings.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1553 | April 23, 2019   Page 11 of 11
