MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 31 2018, 9:56 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kevin L. Martin                                          Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin L. Martin,                                         December 31, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CT-1980
        v.                                               Appeal from the Sullivan Circuit
                                                         Court
Hon. Nancy Vaidik, Charles                               The Honorable Robert E.
Dugan, Makenzy Gilbert, and                              Hunley, II, Judge
Greg Pachmayr,                                           Trial Court Cause No.
Appellees-Defendants                                     77C01-1804-CT-283




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-1980 | December 31, 2018                Page 1 of 5
[1]   Kevin Martin filed a complaint against a judge of this Court, two employees of

      the Department of Correction (DOC), and the court clerk. Martin now appeals,

      arguing that the trial court erred by dismissing his complaint. Finding no error,

      we affirm.


[2]   Martin is currently serving sentences for murder, battery, and battery by bodily

      waste. He filed a petition for post-conviction relief from his murder conviction

      in St. Joseph County; on December 1, 2017, his petition was denied. On

      December 16, 2017, Martin filed a notice of appeal regarding the denial of his

      petition for post-conviction relief. On January 4, 2018, he unsuccessfully filed

      his brief, which had incorrect pagination, lacked page headers, and included

      documents not permitted. Martin filed three other defective briefs on February

      7, March 5, and March 22, 2018.


[3]   On March 29, 2018, this Court issued an order that gave Martin a final

      extension to April 13, 2018, to file a brief and appendix free of defects. The

      order advised Martin that failure to comply could result in summary dismissal

      of his appeal. On April 4, 2018, Martin tendered a fifth brief with the same

      defects. On May 1, 2018, this Court ordered the appeal dismissed with

      prejudice because of Martin’s failure to file a defect-free brief and appendix.

      The dismissal order was signed by Chief Judge Vaidik.


[4]   On June 6, 2018, Martin filed a complaint in Sullivan County against Chief

      Judge Vaidik, DOC employees Charles Dugan and Makenzy Gilbert, and Greg

      Pachmayr, the clerk of the court (collectively, the Appellees). Martin alleged


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1980 | December 31, 2018   Page 2 of 5
      that he gave certain paperwork, which apparently was his brief and a motion for

      a new trial, to Dugan, a facility case worker; that Gilbert, a clerical assistant,

      could corroborate this allegation; that Pachmayr rejected the brief and motion;

      and that Chief Judge Vaidik misused the power of the court and was biased

      against him because he had filed a complaint against her. Martin sought release

      from prison and punitive damages. On July 13, 2018, the Appellees filed a

      motion to dismiss pursuant to Indiana Trial Rule 12(B)(1) and (6). On July 13,

      2018, Martin filed an opposing motion. On August 3, 2018, the trial court

      ordered Martin’s complaint dismissed. Martin now appeals.


[5]   Martin argues that the trial court erred by dismissing his complaint pursuant to

      Indiana Trial Rule 12(B)(1) and (6). Trial Rule 12(B)(1) allows for a dismissal

      of a complaint if there is a lack of subject matter jurisdiction. We review de

      novo a trial court’s ruling on a motion to dismiss under Trial Rule 12(B)(1)

      where the facts before the trial court are undisputed. GKN Co. v. Magness, 744

      N.E.2d 397, 401 (Ind. 2001). Trial Rule 12(B)(6) allows for a dismissal of a

      complaint if there is a failure to state a claim upon which relief can be granted.

      A motion to dismiss under Trial Rule 12(B)(6) “tests the legal sufficiency of a

      complaint: that is, whether the allegations in the complaint establish any set of

      circumstances under which a plaintiff would be entitled to relief.” Lockhart v.

      State, 38 N.E.3d 215, 217 (Ind. Ct. App. 2015) (internal quotations omitted).

      We apply a de novo standard of review to a trial court’s ruling on a Trial Rule

      12(B)(6) motion to dismiss. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1980 | December 31, 2018   Page 3 of 5
[6]   As for Martin’s allegations against Dugan and Gilbert, the trial court found that

      no facts were alleged against them on which relief could be granted and that

      they are merely witnesses. We agree. Dugan allegedly mailed paperwork to

      the Court, and Gilbert was a witness who could corroborate that Dugan mailed

      that paperwork. Similarly, Martin alleged that Pachmayr rejected Martin’s

      brief and motion for new trial. Indiana Trial Rule 8(A)(1) requires that a

      complaint contain “a short and plain statement of the claim showing that the

      pleader is entitled to relief[.]” Martin alleged no facts regarding Dugan,

      Gilbert, or Pachmayr that could be called a “claim” by which he would be

      entitled to relief. The trial court did not err by dismissing the complaint as it

      related to Dugan and Gilbert.


[7]   Regarding Martin’s allegations against Chief Judge Vaidik, the trial court found

      that the judge is immune for the actions alleged in the complaint. “It is well-

      settled that judges are entitled to absolute judicial immunity for all actions taken

      in the judge’s judicial capacity, unless those actions are taken in the complete

      absence of any jurisdiction.” Droscha v. Shepherd, 931 N.E.2d 882, 888-89 (Ind.

      Ct. App. 2010). Judicial immunity serves “to preserve judicial independence in

      the decision-making process.” Id. at 889. A judicial officer is immune even

      when the action she took was in error or outside her authority. Newman v.

      Deiter, 702 N.E.2d 1093, 1098 (Ind. Ct. App. 1998). It seems that Martin

      alleges that Chief Judge Vaidik misused the power of the court and was biased

      against him. We note that Martin offers no facts to substantiate his allegation.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1980 | December 31, 2018   Page 4 of 5
      Regardless, Chief Judge Vaidik has judicial immunity. The trial court did not

      err by dismissing the complaint as it related to Chief Judge Vaidik.


[8]   The judgment of the trial court is affirmed.


      May, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1980 | December 31, 2018   Page 5 of 5
