                                                                              FILED
                                                                         May 06 2019, 8:35 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
      Kirk S. Freeman                                            Curtis T. Hill, Jr.
      Law Office of Kirk Freeman                                 Attorney General of Indiana
      Lafayette, Indiana
                                                                 Natalie F. Weiss
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kirk S. Freeman,                                           May 6, 2019
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 18A-SC-2718
              v.                                                 Appeal from the Tippecanoe
                                                                 Superior Court
      Tricia L. Thompson,                                        The Honorable Robert B. Mrzlack,
      Appellee-Defendant.                                        Special Judge
                                                                 Trial Court Cause No.
                                                                 79D04-1806-SC-2140



      Najam, Judge.


                                        Statement of the Case
[1]   Kirk S. Freeman, a Lafayette-based attorney, appeals the trial court’s dismissal

      of his defamation complaint against Tippecanoe Superior Court Magistrate

      Tricia L. Thompson for failure to state a claim upon which relief can be

      Court of Appeals of Indiana | Opinion 18A-SC-2718 | May 6, 2019                             Page 1 of 6
      granted. Freeman raises a single issue for our review, which we restate as

      whether Magistrate Thompson has immunity from Freeman’s allegation that

      she defamed him when she reported to courthouse law enforcement officers

      that Freeman was in possession of a firearm inside the Tippecanoe County

      Courthouse in violation of state law and local ordinance. We hold that

      Magistrate Thompson is immune from Freeman’s allegation, and, as such, we

      affirm the trial court’s dismissal of Freeman’s complaint.


                                     Facts and Procedural History
[2]   On June 28, 2018, Freeman filed his complaint against Magistrate Thompson,

      which Freeman later amended. According to his amended complaint, on May

      17, 2017, Magistrate Thompson informed law enforcement officers inside the

      Tippecanoe County Courthouse that Freeman was carrying a firearm inside the

      courthouse in violation of Indiana Code Section 35-47-2-1 (2018) 1 and

      Tippecanoe County Code § 130.01(C). 2 Freeman alleged that Magistrate

      Thompson’s report “was a false accusation of a crime” and, as such, “was

      defamatory per se.” Appellant’s App. Vol. 2 at 28-29. Freeman sought

      “[p]unitive damages” from Magistrate Thompson for her allegedly “extreme

      and outrageous” report, which he claimed was “done in retaliation for a lawful

      inquiry into a matter of public record in his government,” namely, a prior




      1
          This statute generally prohibits the unlicensed carrying of a handgun.
      2
       This provision states that “[n]o person shall possess a deadly weapon in the County Courthouse . . . .”
      Appellant’s App. Vol. 2 at 11.

      Court of Appeals of Indiana | Opinion 18A-SC-2718 | May 6, 2019                                   Page 2 of 6
      Access to Public Records Act (“APRA”) request Freeman had made

      “concerning the establishment/creation of the courtroom in the County office

      annex building . . . .” Id. at 7-10, 30. Freeman also alleged that Magistrate

      Thompson’s report was in retaliation for Freeman having “openly discussed”

      the Indiana Supreme Court’s recent opinion in Pinner v. State, 74 N.E.3d 226

      (Ind. 2017).


[3]   Thereafter, the State, on behalf of Magistrate Thompson, moved to dismiss

      Freeman’s complaint under Indiana Trial Rule 12(B)(6) for failure to state a

      claim upon which relief can be granted. In particular, the State asserted that

      Magistrate Thompson’s report to law enforcement, as alleged in Freeman’s

      complaint, was a judicial act that entitled her to immunity from Freeman’s

      claim. After a hearing, the trial court agreed with the State and dismissed

      Freeman’s complaint. This appeal ensued.


                                      Discussion and Decision
[4]   Freeman appeals the trial court’s dismissal of his complaint pursuant to Trial

      Rule 12(B)(6). As the Indiana Supreme Court has stated:


              A 12(B)(6) motion tests the legal sufficiency of the complaint,
              requiring that we accept as true all facts alleged in the complaint.
              We review 12(B)(6) motions de novo and will affirm a dismissal if
              the allegations are incapable of supporting relief under any set of
              circumstances. We will also affirm the dismissal if the decision is
              sustainable on any basis in the record.




      Court of Appeals of Indiana | Opinion 18A-SC-2718 | May 6, 2019            Page 3 of 6
      Esserman v. Ind Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017) (citations

      and quotation marks omitted).


[5]   And as we have explained:


              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 undertaken in the complete absence of
              jurisdiction. Mendenhall v. City of Indianapolis, 717 N.E.2d 1218,
              1226 (Ind. Ct. App. 1999), trans. denied 735 N.E.2d 225 (Ind.
              2000). The policy underlying this grant of immunity is the
              preservation of judicial independence in the decision-making
              process. Id. In determining whether a person is entitled to the
              benefit of judicial immunity, we employ the functional approach
              established by the United States Supreme Court. Id.


                       [T]he factors determining whether an act by a judge is a
                       “judicial” one relate to the nature of the act itself, i.e.,
                       whether it is a function normally performed by a judge,
                       and to the expectations of the parties, i.e., whether they
                       dealt with the judge in his judicial capacity.


              Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 55 L. Ed.
              2d 331 (1978), reh’g denied. A third related factor considered by
              courts is “whether the act or decision involves the exercise of
              discretion or judgment, or is rather a ministerial act which might
              as well have been committed to a private person as to a judge.”
              Lowe v. Letsinger, 772 F.2d 308, 312 (7th Cir. 1985) (citing Ex
              Parte Virginia, 100 U.S. 339, 348, 25 L. Ed. 676 (1879)).


      Dawson v. Newman, 845 N.E.2d 1076, 1080-81 (Ind. Ct. App. 2006) (alteration

      original to Dawson), trans. denied.



      Court of Appeals of Indiana | Opinion 18A-SC-2718 | May 6, 2019                 Page 4 of 6
[6]   We have no hesitation concluding that Magistrate Thompson’s report to law

      enforcement within the Tippecanoe County Courthouse that a person inside the

      courthouse was in possession of a firearm, in violation of state law and local

      ordinance, was an act taken in her judicial capacity. As to the first Stump

      factor, it is beyond dispute that our trial judges have “considerable discretion in

      matters of maintaining order and security for the courtroom . . . .” Williams v.

      State, 690 N.E.2d 162, 169 n.11 (Ind. 1997); see also In re Courthouse Security in

      Tippecanoe Cnty., 765 N.E.2d 1254, 1256 (Ind. 2002) (“We would expect that

      the Sheriff would continue to work, as always, with the local judiciary to

      understand and address their particularized security concerns.”).


[7]   As to the second factor, a magistrate or other member of the judiciary who

      makes an in-courthouse report of a security concern is dealing with others from

      her position as a member of the judiciary. And, as to the third factor,

      Magistrate Thompson’s report plainly involved the exercise of her discretion in

      maintaining security and was not a mere ministerial act. Accordingly, as a

      matter of law, Magistrate Thompson is entitled to absolute judicial immunity

      for her report—even if erroneously made—of Freeman’s alleged possession of a

      firearm inside the Tippecanoe County Courthouse.


[8]   Nonetheless, Freeman asserts on appeal that Magistrate Thompson did not act

      in her judicial capacity but rather out of retaliation for his APRA request and

      his open discussion of Pinner. We cannot agree. Freeman’s assertions go to

      Magistrate Thompson’s intent, not to whether she was acting in her judicial

      capacity. Because we have determined that Magistrate Thompson’s report to

      Court of Appeals of Indiana | Opinion 18A-SC-2718 | May 6, 2019             Page 5 of 6
      law enforcement was a judicial act, her intent is immaterial. We have long

      recognized that “judicial immunity is granted even when judges act maliciously

      or corruptly.” Martin v. Heffelfinger, 744 N.E.2d 555, 558 (Ind. Ct. App. 2001)

      (citing Lake Cnty. Juvenile Court v. Swanson, 671 N.E.2d 429, 435 (Ind. Ct. App.

      1996), trans. denied). Accordingly, Freeman cannot show that the trial court

      erred when it dismissed his complaint, and we affirm the trial court’s judgment.


[9]   Affirmed.


      Baker, J., and Robb, J., concur.




      Court of Appeals of Indiana | Opinion 18A-SC-2718 | May 6, 2019          Page 6 of 6
