Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          FILED
any court except for the purpose of                          Oct 18 2012, 8:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

ROBERT PEACHER                                      GREGORY F. ZOELLER
Pendleton, Indiana                                  Attorney General of Indiana

                                                    ELIZABETH ROGERS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT PEACHER,                                     )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )       No. 48A02-1110-SC-1027
                                                    )
DENNIS DAVIS,                                       )
                                                    )
       Appellee-Defendant.                          )


                     APPEAL FROM THE MADISON SUPERIOR COURT
                          The Honorable Stephen Clase, Magistrate
                              Cause No. 48D05-1103-SC-1444



                                         October 18, 2012


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Plaintiff Robert Peacher appeals from the small claims court’s order

dismissing his action against Appellee-Defendant Dennis Davis. We affirm.

                            FACTS AND PROCEDURAL HISTORY

       Peacher was transferred to Pendleton Correctional Facility on January 7, 2011.

Department of Correction (“DOC”) Property Officer Davis provided Peacher with an

inventory of his property and a notice of confiscated property. Peacher was given the

personal property which Officer Davis determined Peacher was permitted to have in his cell

pursuant to DOC policy 02-01-101.

       On January 31, 2011, Peacher filed a Notice of Tort Claim alleging that Officer Davis

maliciously and deliberately lost or destroyed certain items of Peacher’s property, including

legal papers, a lock, a wrist brace, and a knee brace.1 On or about March 29, 2011, Peacher

filed a small claims action against Officer Davis. The Notice of Small Claim which was

provided to Officer Davis included Peacher’s claim that he suffered a loss due to Officer

Davis’s alleged “malicious and deliberate loss and destruction” of Peacher’s legal papers,

lock, wrist brace, and knee brace. Appellant’s App. p. 5. Peacher valued the legal papers at

$870.00, the lock at $10.22, the wrist brace at $30.00, and the knee brace at $17.00.

       On August 17, 2011, Officer Davis filed a motion to dismiss and memorandum in

support claiming that Officer Davis was immune from liability for Peacher’s claims because

to the extent he committed the alleged acts, he did so within the scope of his employment as a




       1
           These items were not included on the list of confiscated items provided to Peacher by Officer Davis.


                                                       2
DOC officer. The small claims court conducted a hearing on Officer Davis’s motion after

which it dismissed Peacher’s complaint. This appeal follows.

                             DISCUSSION AND DECISION

       Peacher contends that the small claims court erroneously granted Officer Davis’s

motion to dismiss which was filed pursuant to Indiana Trial Rule 12(B)(6). In challenging

the small claims court’s dismissal of his claim against Officer Davis, Peacher effectively

asserts that dismissal was erroneous because he asserted a set of facts that, if determined to

be true, would entitle him to the requested relief. For his part, Officer Davis claims that the

small claims court properly dismissed Peacher’s claim because he committed the alleged acts

in the scope of his duty as a prison official, and, as such, is immune from liability for

Peacher’s claim.

                                  A. Standard of Review

               A motion to dismiss under Ind. Trial Rule 12(B)(6) tests the legal
       sufficiency of the claim, not the facts which support it. Collard v. Enyeart,
       718 N.E.2d 1156, 1158-59 (Ind. Ct. App. 1999), trans. denied (2000). Review
       of a dismissal under Trial Rule 12(B)(6) is de novo, and thus deference is not
       required with regard to the trial court’s decision. Id. On review, we determine
       whether the complaint states any allegation upon which relief can be granted.
       Id. We evaluate the complaint in the light most favorable to the plaintiff with
       every inference in his favor. Runde v. Vigus Realty, Inc., 617 N.E.2d 572, 575
       (Ind. Ct. App. 1993). A complaint cannot be dismissed under 12(B)(6) unless
       it appears to a certainty that the plaintiff would not be entitled to relief under
       any set of facts. Collard, 718 N.E.2d at 1158-59.

Schulz v. State, 731 N.E.2d 1041, 1043-44 (Ind. Ct. App. 2000), trans. denied.

              B. Whether Davis was Subject to Governmental Immunity

       With respect to governmental immunity, Indiana Code section 34-13-3-3 (2010)



                                               3
provides, in relevant part, as follows:

       A governmental entity or an employee acting within the scope of the
       employee’s employment is not liable if a loss results from the following:
       …
        (8) The adoption and enforcement of or failure to adopt or enforce a law
       (including rules and regulations), unless the act of enforcement constitutes
       false arrest or false imprisonment.

“‘The party seeking immunity bears the burden of establishing its conduct comes within the

Act.’” King v. N.E. Sec., Inc., 790 N.E.2d 474, 480 (Ind. 2003) (quoting Mullin v. Mun. City

of South Bend, 639 N.E.2d 278, 281 (Ind. 1994)).

       Peacher filed a tort claim notice alleging that Officer Davis maliciously and

deliberately lost or destroyed certain items of Peacher’s property including legal papers, a

lock, a wrist brace, and a knee brace. In the tort claim notice, Peacher alleged that Officer

Davis lost or destroyed this property in violation of the DOC policy, and as such, could not

be said to have been acting within the scope of his employment. However, even assuming

that Officer Davis did commit the alleged acts in violation of DOC policy, Officer Davis still

committed the alleged acts within the scope of his employment as a DOC property officer.

See generally Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind.

1997) (providing that an employee is not acting outside the scope of his employment merely

because he violates a company rule and that the critical inquiry is not whether an employee

violates an employer’s rule, but rather whether the employee is acting in the service of the

employer).

       In the instant matter, Peacher alleges only that Officer Davis acted in violation of

DOC policy, and has failed to allege that Officer Davis committed the alleged acts or had any


                                              4
contact with Peacher or Peacher’s property outside of the scope of his employment as a DOC

property officer. As such, we conclude that Officer Davis was acting within the scope of his

employment at the time he committed the acts alleged by Peacher. Accordingly, we conclude

that the small claims court properly dismissed Peacher’s complaint against Officer Davis.

       The judgment of the small claims court is affirmed.

ROBB, C.J., and BAKER, J., concur.




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