MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 05 2019, 9:20 am

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


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

                                                         Andrea E. Rahman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Griffith,                                          February 5, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CT-993
        v.                                               Appeal from the Sullivan Superior
                                                         Court
Indiana Department of                                    The Honorable Hugh R. Hunt,
Corrections,                                             Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         77D01-1701-CT-35



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019               Page 1 of 12
                                                    Case Summary
[1]   State prisoner1 James F. Griffith filed a complaint against the Indiana

      Department of Correction (the DOC), as well as Correctional Officer R.

      Brewer, Sergeant J. Lundy, and Correctional Officer F. Brannick, in their

      official and individual capacities, alleging that the three officers either stole or

      negligently lost some of his personal property while he was being temporarily

      housed in segregation at the Wabash Valley Correctional Facility (WVCF).

      Griffith filed a motion for summary judgment, and the DOC and the three

      officers (collectively, the State Defendants) filed a response to Griffith’s motion

      as well as a cross-motion for summary judgment.2 The trial court denied

      Griffith’s motion for summary judgment and, later, it granted the State

      Defendants’ cross-motion for partial summary judgment. Following the denial

      of his motion to correct error, Griffith, pro se,3 appeals and raises two issues

      relative to the propriety of the trial court’s grant of partial summary judgment in

      favor of the State Defendants. Because we find that the trial court’s order on

      summary judgment was not a final, appealable order, we dismiss Griffith’s

      appeal.




      1
          Griffith is serving a life sentence for a murder conviction.
      2
        Although not captioned as such, and as we discuss later in this decision, we find that the State Defendants’
      cross-motion is a motion for partial summary judgment, as it sought judgment on Griffith’s negligence claim
      but did not address Griffith’s theft claim. Accordingly, in our decision today, we refer to the State
      Defendants’ motion as a cross-motion for partial summary judgment.
      3
          At all times discussed in this decision, Griffith was proceeding pro se.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019                   Page 2 of 12
                                   Facts & Procedural History
[2]   On April 25, 2016, Griffith received a conduct report for threatening another

      offender, and he was moved to segregation. Because Griffith had items of

      personal property in his regular cell that, pursuant to DOC policy, he could not

      take with him to segregation, Correctional Officer Brewer inventoried the items

      and Sergeant Lundy signed the inventory list as a witness, and they placed the

      items in storage in a property room. They had no further interaction with

      Griffith’s property. On June 2, 2016, Griffith was released from the segregation

      unit and returned to the general population. Correctional Officer Brannick

      inventoried Griffith’s personal property on June 6, 2016. By all accounts, some

      items listed on the April 25, 2016 inventory were not included on the June 6,

      2016 inventory. The storage room was searched, but none of Griffith’s missing

      property was found.


[3]   Griffith filed an informal grievance with the DOC, and on July 18, 2016, the

      DOC issued a response that Griffith failed to list the missing items and further,

      pursuant to policy, “personal property is non-grievable.” Appellees’ Appendix

      Vol. 2 at 38. On August 5, 2016, Griffith mailed a Notice of Tort Claim to the

      commissioner of the DOC, the Indiana Attorney General, and the

      Superintendent of WVCF concerning his claims relating to his missing

      property. WVCF’s tort claim investigator, Teresa Littlejohn, investigated

      Griffith’s Notice of Tort Claim. On December 5, 2016, she issued a

      Recommendation on Tort Claim finding that, based on the documentation

      available and the statements she obtained, which included statements from

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019   Page 3 of 12
      Sergeant Lundy and Officer Brewer, she was “recommending this claim be

      paid” because “no one [she] contacted could account for what happened to the

      property after it was placed in the storage room.” Appellant’s Appendix Vol. II at

      28. Griffith did not receive a response from the Attorney General relative to

      his Notice of Tort Claim in ninety days, and it was deemed denied. 4


[4]   On February 2, 2017, Griffith filed a Civil Tort Action Complaint “concerning

      the theft or loss of this personal property, valued at $571.65.” Appellees’

      Appendix Vol. 2 at 2. He alleged that officers Brewer, Lundy, and/or Brannick 5

      either stole or failed to exercise due care with regard to the property that was

      missing from the June 2, 2016 inventory. Griffith alleged that “[t]o the extent

      that defendants Brewer, Lundy and or [Brannick] did not steal . . . [his] lost

      property, [the DOC] is liable for defendants Brewer’s, Lundy’s and/or

      [Brannick]’s negligence in losing [Griffith]’s property.” Id. at 4.


[5]   On August 16, 2017, Griffith filed a motion for summary judgment and

      designated evidence. In asserting that there were no material facts in dispute

      and that he was entitled to judgment as a matter of law, Griffith relied in part

      on Littlejohn’s recommendation that his tort claim be paid and argued that “by




      4
        See Ind. Code § 34-43-3-11 (“Within ninety (90) days of the filing of a claim, the governmental entity shall
      notify the claimant in writing of its approval or denial of the claim. A claim is denied if the governmental
      entity fails to approve the claim in its entirety within ninety (90) days, unless the parties have reached a
      settlement before the expiration of that period.”).
      5
        In his initial complaint, Griffith identified the officer who inventoried his property on June 2, 2016, as
      John/Jane Doe because the signature on the inventory was not legible, and, with the court’s permission, he
      later amended the complaint to name Officer Brannick.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019                    Page 4 of 12
      the State Defendant[s’] own admission the property was lost/stolen/or

      destroyed.” Id. at 26. In support of his motion, Griffith designated evidence of

      Littlejohn’s Recommendation on Tort Claim as well as her email requests to

      staff about the matter, their responses, and the April 25, 2016 inventory list.


[6]   On September 21, 2017, the State Defendants filed a combined motion that

      included both a response in opposition to Griffith’s motion for summary

      judgment and a cross-motion for partial summary judgment, along with

      designated evidence. In opposing Griffith’s motion, the State Defendants

      asserted that, although DOC could not account for what happened to the

      property, a genuine issue of material fact remained as to what caused the

      property to be missing and whether the loss occurred because the State

      Defendants breached a duty. In their cross-motion, the State Defendants

      argued that they were entitled to governmental immunity on Griffith’s

      negligence claims under the law enforcement immunity provision of the

      Indiana Tort Claims Act (ITCA) because, at the time that the officers

      inventoried and stored Griffith’s property, they were engaged in the

      enforcement of law and were acting within the scope of their employment. The

      State Defendants designated evidence, including Griffith’s complaint and

      exhibits and DOC/WVCF Operational Procedures Policy 02-01-101, entitled

      “Offender Personal Property,” that addresses procedure for inventorying and

      storing an inmate’s personal property while he or she is housed in segregation.


[7]   The trial court issued an order denying Griffith’s motion for summary judgment

      and giving Griffith thirty days to respond to the State Defendants’ cross-motion

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019   Page 5 of 12
      for partial summary judgment. On October 23, 2017, Griffith filed a motion to

      voluntarily dismiss his complaint without prejudice. This motion listed his

      current address at the New Castle Correctional Facility. On October 30, the

      trial court denied his motion to dismiss, but gave Griffith an additional thirty

      days in which to respond to the State Defendants’ cross-motion. The trial

      court’s October 30 order was mailed to WVCF, although Griffith no longer was

      housed there.


[8]   On December 7, 2017, the trial court issued an order granting the State

      Defendants’ cross-motion for partial summary judgment as follows:


              Whereas [Griffith] has failed to file a response together with any
              supporting affidavits to the [State] Defendants’ [Cross-]Motion
              for Summary Judgment in the time frame allotted by the Court in
              its order dated October 30, 3017, the Court hereby grants said
              Motion.


      Appellant’s Appendix Vol. II at 8.


[9]   On January 5, 2018, Griffith filed a motion to correct error and supporting

      memorandum, asking the trial court to set aside its December 7, 2017 order that

      granted partial summary judgment in the State Defendants’ favor. Griffith

      argued that (1) he did not receive the trial court’s October 30 order granting him

      thirty additional days to respond because it was incorrectly mailed to WVCF,

      and (2) he mailed to the trial court his response in opposition to the State

      Defendants’ cross-motion on November 23, 2017, but that if the trial court did

      not receive it, the prison officials were responsible for any delay in mailing it.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019   Page 6 of 12
       In support of his motion to correct error, he identified three proposed exhibits:

       (1) his response in opposition to the State Defendants’ cross-motion for partial

       summary judgment, along with exhibits, (2) receipts and remittances related to

       his mailing of the response, and (3) his own affidavit. Griffith thereafter

       requested and received permission to file with the trial court his exhibits in

       support of his motion to correct error, which included his response in

       opposition to the State Defendants’ cross-motion, a supporting memorandum,

       and designated exhibits, including DOC policies and administrative procedures

       for offender personal property and for offender disciplinary restrictive status

       housing, and the two inventory lists.


[10]   In his response in opposition to the State Defendants’ cross-motion for partial

       summary judgment, Griffith referred to DOC/WVCF Policy and Procedure 02-

       04-102, which states, “Personal property not allowed for possession by an

       offender in a facility disciplinary restrictive status housing unit shall be secured

       in a second personal property storage box and stored in the disciplinary

       restrictive status housing unit property room.” Id. at 83 (emphasis in original);

       see also id. at 113 (page 7 of Policy Number 02-04-102).6 Griffith argued that it

       was a “clear breach” of the State Defendants’ duty to secure his property while

       it was in the State Defendants’ possession, or, alternatively, that questions of

       fact remained as to causation precluding summary judgment in the State




       6
        We note that Griffith’s manual pagination of his Appendix does not always match the pagination reflected
       by the Clerk’s office after electronic filing. We will refer to the electronic page numbers.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019               Page 7 of 12
       Defendants’ favor. Id. at 82. In addition to the above arguments concerning

       the State Defendants’ alleged negligence, Griffith argued that the State

       Defendants were not immune under the ITCA, asserting that DOC policy

       required staff to inventory and store Griffith’s property, which prison staff did

       not properly do given that some of his property was missing, and therefore, the

       State Defendants were not acting within the scope of their employment and

       were not immune from liability.


[11]   On January 25, 2018, after having reviewed Griffith’s exhibits to his motion to

       correct error, i.e., Griffith’s response to the State Defendants’ cross-motion, as

       well as his designated evidence, the trial court denied Griffith’s motion to

       correct error. He now appeals.


                                        Discussion & Decision
[12]   Griffith asserts that the trial court erred when it denied his motion to correct

       error that sought to set aside the trial court’s December 7, 2017 order, which

       provided:


               Whereas [Griffith] has failed to file a response together with any
               supporting affidavits to the [State] Defendants’ [Cross-]Motion
               for Summary Judgment in the time frame allotted by the Court in
               its order dated October 30, 2017, the Court hereby grants said
               Motion.


       Appellant’s Appendix Vol. II at 8. On appeal, the State Defendants properly

       concede that it is improper for a court to grant summary judgment based on the

       opposing party’s failure to respond, and, thus, it was error for the trial court in

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019   Page 8 of 12
       this case to grant summary judgment in favor of the State Defendants on this

       basis. See Ind. Trial Rule 56 (“Summary judgment shall not be granted as of

       course because the opposing party fails to offer opposing affidavits or

       evidence[.]”).


[13]   The State Defendants urge that, even though it was error for the trial court to

       grant their motion based on Griffith’s failure to respond, this court nevertheless

       may affirm a summary judgment on any basis found in the record and that,

       here, the State Defendants were entitled to summary judgment because they

       were immune from liability under the ITCA. Specifically, the State Defendants

       argue that that they are entitled to summary judgment because, even if

       negligent conduct occurred, they are immune from liability pursuant to Ind.

       Code § 34-13-3-3(8), commonly referred to as the law enforcement immunity

       provision of the ITCA. The State Defendants maintain that, at the time of

       Griffith’s loss, the correctional officers were “engaged in the enforcement of a

       law” while they inventoried and stored Griffith’s property, which Griffith was

       not allowed to possess while he was housed in segregation. Griffith contends

       that the State Defendants are not immune because, given that it is undisputed

       that some of his personal property is missing, one or more persons clearly failed

       to properly secure and store his property and, as such, were not following policy

       and were not “engaged in the enforcement of a law” as required by I.C. § 34-13-

       3-3(8).


[14]   Based on the record before us, however, we are precluded from reaching the

       merits of the case. The Indiana Court of Appeals has jurisdiction in all appeals

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019   Page 9 of 12
       from final judgments, except those wherein exclusive jurisdiction resides with

       our Supreme Court. Ind. Appellate Rule 5(A). Whether an order is a final

       judgment governs our subject matter jurisdiction, and it can be raised at any

       time by any party or by the court itself. Bacon v. Bacon, 877 N.E.2d 801, 804

       (Ind. Ct. App. 2007), trans. denied. Ind. Appellate Rule 2(H) defines final

       judgments and states in relevant part:


               A judgment is a final judgment if:


               (1) it disposes of all claims as to all parties; [or]


               (2) the trial court in writing expressly determines under Trial
               Rule 54(B) or Trial Rule 56(C) that there is no just reason for
               delay and in writing expressly directs the entry of judgment (i)
               under Trial Rule 54(B) as to fewer than all the claims or parties,
               or (ii) under Trial Rule 56(C) as to fewer than all the issues,
               claims or parties[.]


[15]   To fall under App. R. 2(H)(1), an order must dispose of all issues as to all

       parties, ending the particular case and leaving nothing for future determination.

       Bacon, 877 N.E.2d at 804. Here, the State Defendants acknowledge that their

       cross-motion for summary judgment – which the trial court granted, albeit on

       an improper basis – asserted that they were entitled to judgment on Griffith’s

       negligence claims (on the basis that they were protected by immunity under the

       ITCA), but their cross-motion did not address Griffith’s theft claims as raised in




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019   Page 10 of 12
       his complaint.7 Consequently, the order did not dispose of all issues as to all

       parties and was not a final, appealable order under App. R. 2(H)(1). The trial

       court in this case did not expressly determine there was no just reason for delay

       and direct entry of judgment as outlined in App. R. 2(H)(2). Accordingly, the

       order was not final, and Griffith cannot appeal unless the order is an appealable

       interlocutory order.


[16]   An interlocutory order is one made before a final hearing on the merits and

       requires something to be done or observed but does not determine the entire

       controversy. Bacon, 877 N.E.2d at 804. The Indiana Court of Appeals has

       jurisdiction “over appeals of interlocutory orders under Rule 14.” App. R. 5(B).

       While certain interlocutory orders may be appealed “as a matter of right,” the

       current order is not one of them. See App. R. 14(A) (listing nine types of orders

       that qualify). An interlocutory order also may be appealed “if the trial court

       certifies its order and the Court of Appeals accepts jurisdiction over the appeal.”

       App. R. 14(B). No such certification and acceptance occurred here.


[17]   Because the order from which Griffith appeals is neither a final judgment nor

       an interlocutory order appealable as of right, and Griffith neither sought nor

       received permission to file a discretionary interlocutory appeal, we dismiss this




       7
         The State Defendants concede that their cross-motion “addressed only Griffith’s claim for negligence, not
       the theft claim” and suggest that because “the trial court did not properly address Griffith’s allegation of theft,
       [] that issue should be remanded for further briefing and review.” Appellees’ Brief at 11; see also id. at 15
       (“Griffith’s allegation of theft was not properly addressed by the trial court and should be remanded for
       further review.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019                     Page 11 of 12
       appeal. See Radbel v. Radbel v. Midwestern Elec., Inc., 550 N.E.2d 340, 341 (Ind.

       Ct. App. 1990) (dismissing appeal after determining, sua sponte, that trial

       court’s entry of partial summary judgment was not final, appealable order).


[18]   Appeal dismissed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019   Page 12 of 12
