MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 20 2018, 5:50 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
Antwoin Richmond                                        Curtis T. Hill, Jr.
New Castle, Indiana                                     Attorney General of Indiana

                                                        Frances Barrow
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Antwoin Richmond,                                       November 20, 2018
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        18A-CT-833
        v.                                              Appeal from the Marion Superior
                                                        Court
Drew Adams, Melissa Pine, and                           The Honorable John F. Hanley,
John Doe #1,                                            Judge
Appellees-Defendants                                    Trial Court Cause No.
                                                        49D11-1712-CT-46012



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018                Page 1 of 6
[1]   Antwoin Richmond filed a pro-se complaint against Drew Adams, Melissa

      Pine, and John Doe #1 (collectively, Defendants) under 42 U.S.C. § 1983. He

      sought to amend his original complaint as a matter of course pursuant to Ind.

      Trial Rule 15(A), but the trial court never ruled on the motion to amend.

      About this same time, the Defendants filed a motion to dismiss the original

      complaint pursuant to Ind. Trial Rule 12(B)(6). The trial court summarily

      granted the motion to dismiss with prejudice. Richmond filed a motion to

      correct error, emphasizing that he had moved to amend his complaint before

      the dismissal was sought or granted. The trial court summarily denied the

      motion to correct error. We agree with Richmond that he had a right to amend

      his complaint, and the trial court erred by failing to grant him leave to do so

      and then dismissing the original complaint for failure to state a claim.


[2]   We reverse and remand.


                                       Facts & Procedural History


[3]   In December 2007, Richmond pled guilty to Class A felony child molesting and

      was sentenced to twenty years. He was released on parole in February 2013.

      On April 21, 2016, Richmond was instructed by Pine, his parole agent, to

      report to the parole office. Richmond did as requested and was administered a

      urine test, which another parole agent, John Doe #1, determined was

      adulterated or diluted. This, along with other evidence, led to the swift

      revocation of Richmond’s parole and his return to the Indiana Department of

      Correction (DOC).


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018   Page 2 of 6
[4]   Richmond filed his original complaint on December 14, 2017, alleging that the

      testing procedures used by Pine and John Doe #1, and approved by their

      supervisor Adams, failed to comply with established DOC requirements in

      several respects. He also alleged malicious and nefarious intent in this regard

      and claimed the Defendants violated his constitutional rights, including his

      right to due process.


[5]   On January 10, 2018, before any responsive pleading was filed, Richmond filed

      an amended complaint. The trial court then directed Richmond to submit a

      motion and proposed order. Accordingly, on February 2, 2018, Richmond filed

      three documents with the trial court: a motion to amend civil complaint; an

      amended verified civil complaint; and, a proposed order granting plaintiff’s

      motion to amend civil complaint.1 We note that the captions for these

      documents, as well as all subsequently filed by Richmond, indicate that the

      Defendants were being sued in their official and personal capacities. The trial

      court did not rule on the motion to amend the complaint.


[6]   On February 9, 2018, the Defendants filed a motion to dismiss the original

      complaint for failure to state a claim upon which relief may be granted. The




      1
         We note that several relevant documents that were filed with the trial court are not included in the
      appendices filed on appeal. Thus, we have taken judicial notice of the documents filed with the trial court,
      which we have obtained via the Odyssey case management system. See Horton v. State, 51 N.E.3d 1154,
      1160-61 (Ind. 2016) (observing that Ind. Evidence Rule 201(b)(5) “now permits courts to take judicial notice
      of ‘records of a court of this state,’” and that such records are presumptively sources of facts “that cannot
      reasonably be questioned”); see also Ind. Appellate Rule 27 (providing that the “Record on Appeal…consist[s]
      of the Clerk’s Record and all proceedings before the trial court…whether or not transcribed or transmitted to
      the Court on Appeal”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018                  Page 3 of 6
      Defendants argued that they were entitled to judicial immunity and that they

      had complied with the requirements of due process. Richmond filed a

      document with the trial court strongly opposing the motion to dismiss. The

      trial court, however, summarily granted the motion to dismiss.


[7]   On or about March 21, 2018, Richmond mailed from prison both a motion to

      correct error and a notice of appeal. In his motion to correct error, Richmond

      noted that the trial court had failed to rule upon his motion to amend the

      complaint. Richmond observed that he had a right to amend his complaint

      pursuant to T.R. 15(A). Additionally, he cited relevant authority and argued

      that the Defendants did not have immunity for their activities involving the

      collection and handling of the urine sample. See e.g., Dawson v. Newman, 419

      F.3d 656, 662 (7th Cir. 2005) (no absolute judicial immunity for parole officers’

      actions involving “day-to-day duties in the supervision of a parolee”).


[8]   The trial court denied Richmond’s motion to correct error on May 4, 2018,

      about two weeks after the notice of completion of clerk’s record had been noted

      on the CCS and, thus, after this court had acquired jurisdiction. See Ind.

      Appellate Rule 8. The denial of the motion to correct error is, therefore, for

      naught. See Snemis v. Mills, 24 N.E.3d 468, 470 n.2 (Ind. Ct. App. 2014).

      Richmond now appeals. Additional information will be provided as needed.


                                          Discussion & Decision


[9]   Richmond contends that the trial court improperly dismissed his complaint

      without ruling on his motion to amend. Additionally, he argues that the

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018   Page 4 of 6
       Defendants’ mishandling of his urine sample was not subject to absolute

       immunity and that he sufficiently pled a violation of his due process rights.


[10]   On appeal, the Defendants have abandoned the arguments raised in their

       motion to dismiss. Their new argument is that they were sued only in their

       official capacity and that “[n]either the State nor its officials are ‘persons’ who

       may be sued for damages under Section 1983.” Appellees’ Brief at 8. This

       argument is disingenuous.


[11]   As observed by the Defendants, we may look to the language of the caption of

       the case to determine whether a defendant is being sued in his or her personal

       or official capacity, or both. See Lake Cty. Juvenile Court v. Swanson, 671 N.E.2d

       429, 434 (Ind. Ct. App. 1996) (“If a plaintiff seeks to sue public officials in their

       personal capacities or in both their personal and official capacities, the plaintiff

       should expressly state so in the complaint.”), trans. denied; Crawford v. City of

       Muncie, 655 N.E.2d 614, 620 (Ind. Ct. App. 1995) (“One indicia of the capacity

       in which a government agent has been sued under § 1983 is the language of the

       caption of the case.”), trans. denied.


[12]   Richmond’s amended complaint, filed on February 2, 2018, clearly indicates

       that the Defendants are being sued in their “official and personal capacity”.

       Amended Verified Civil Complaint at 1 (document obtained from Odyssey).

       Further, it is well established that amendments to pleadings are to be liberally

       allowed and that “[a] party may amend his pleading once as a matter of course

       at any time before a responsive pleading is served”. T.R. 15(A); Rusnak v. Brent


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018   Page 5 of 6
       Wagner Architects, 55 N.E.3d 834, 842 (Ind. Ct. App. 2016), trans. denied.

       Richmond timely sought to amend his complaint and was entitled to do so.

       The trial court erred by not allowing the amendment and by, instead,

       dismissing the original complaint.


[13]   We reverse the dismissal and direct the trial court on remand to proceed under

       the amended complaint.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018   Page 6 of 6
