 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.



APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

DAVID DARST                                       GREGORY F. ZOELLER
Indiana State Prison                              Attorney General of Indiana
Michigan City, Indiana
                                                  KATHY BRADLEY
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana
                                                                                   FILED
                                                                                Dec 27 2012, 9:42 am

                               IN THE                                                   CLERK
                     COURT OF APPEALS OF INDIANA                                      of the supreme court,
                                                                                      court of appeals and
                                                                                             tax court




DAVID DARST,                                      )
                                                  )
       Appellant-Plaintiff,                       )
                                                  )
               vs.                                )        No. 46A03-1206-CT-288
                                                  )
INDIANA DEPARTMENT OF CORRECTION                  )
and BRUCE LEMMON in his official capacity         )
as COMMISSIONER,                                  )
                                                  )
       Appellee-Defendants.                       )


                      APPEAL FROM THE LAPORTE CIRCUIT COURT
                          The Honorable Thomas J. Alevizos, Judge
                              Cause No. 46C01-1112-CT-593



                                       December 27, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       David Darst, an inmate at the Indiana State Prison, filed suit against the Department of

Correction (“the DOC”) and its commissioner, Bruce Lemmon, in which he alleged that he

was injured while riding in a prison van. The DOC and Commissioner Lemmon filed a

motion to dismiss in which they argued that Darst had not exhausted administrative remedies

and that Commissioner Lemmon was immune from liability. The trial court granted the

motion to dismiss, and Darst appeals. Darst has not presented any argument concerning

Commissioner Lemmon’s immunity, and we affirm the dismissal of Darst’s claim against

Commissioner Lemmon. However, the DOC concedes that the record is inadequate to

determine the exhaustion issue. Therefore, we reverse the dismissal of Darst’s claims against

the DOC.

                              Facts and Procedural History

       On December 23, 2011, Darst filed a complaint against the DOC and Commissioner

Lemmon. The complaint alleged that Darst was injured while riding in a prison van. Darst

claimed that prison personnel had restrained his hands and feet, but had not secured his seat

belt, and when the driver of the van braked abruptly, he was flung from his seat into a

“restraining screen.” Appellant’s App. at 4. The attorney general entered an appearance on

behalf of the defendants and filed a motion to dismiss. The motion to dismiss asserts that

Darst failed to exhaust administrative remedies and that Lemmon is immune from liability

pursuant to the Indiana Tort Claims Act (“ITCA”). On May 15, 2012, the trial court

dismissed Darst’s complaint without stating the grounds therefor. Darst now appeals.


                                              2
                                   Discussion and Decision

       The motion to dismiss was based partially on Indiana Trial Rule 12(B)(1) (dismissal

for lack of subject matter jurisdiction) and partially on Trial Rule 12(B)(6) (dismissal for

failure to state a claim on which relief can be granted). “Failure to exhaust administrative

remedies is a defect in subject matter jurisdiction.” State ex rel. Atty. Gen. v. Lake Superior

Court, 820 N.E.2d 1240, 1247 (Ind. 2005), cert. denied. Therefore, if an administrative

remedy is available, the plaintiff must pursue that remedy before proceeding in court. Sun

Life Assur. Co. of Can. v. Ind. Comprehensive Health Ins. Ass’n, 827 N.E.2d 1206, 1209

(Ind. Ct. App. 2005), trans. denied. A motion to dismiss for lack of subject matter

jurisdiction is the proper vehicle for challenging a plaintiff’s failure to exhaust administrative

remedies. Id.

       The standard of review for a Trial Rule 12(B)(1) motion “is dependent upon: (i)

whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed

facts, whether it conducted an evidentiary hearing or ruled on a ‘paper record.’” GKN Co. v.

Magness, 744 N.E.2d 397, 401 (Ind. 2001). Where, as here, the trial court ruled on a paper

record, our review is de novo. See id. (when trial court rules on paper record without

conducting evidentiary hearing, “no deference is afforded the trial court’s factual findings or

judgment because under those circumstances a court of review is in as good a position as the

trial court to determine whether the court has subject matter jurisdiction”) (internal quotation

omitted).




                                                3
       A Trial Rule 12(B)(6) motion to dismiss is also reviewed de novo. Dawson v.

Newman, 845 N.E.2d 1076, 1080 (Ind. Ct. App. 2006), trans. denied.

       Such a motion tests the legal sufficiency of a claim, not the facts supporting it.
       Under T.R. 12(B)(6), a trial court’s grant of a motion to dismiss is proper if the
       facts alleged in the complaint are incapable of supporting relief under any set
       of circumstances. In making this determination, the court must look only to
       the complaint and may not resort to any other evidence in the record. The
       court considers the allegations in the complaint to be true. Such a motion
       should be viewed in the light most favorable to the non-moving party and all
       inferences should be resolved in the non-moving party’s favor.

Id. (citations omitted). “We may affirm the grant of a motion to dismiss if it is sustainable on

any theory.” Id.

                                 I. Commissioner Lemmon

       The only allegation in the complaint that specifically mentions Commissioner

Lemmon asserts that he “was negligent in failing to properly establish a policy mandating the

use of seat belts as directed by Indiana law, and in failing to establish the supervision of

prison van transport officers.” Appellant’s App. at 6. The ITCA limits when a person may

sue a public employee personally as opposed to the governmental entity employing that

person.

       A lawsuit filed against an employee personally must allege that an act or
       omission of the employee that causes a loss is:

              (1) criminal;

              (2) clearly outside the scope of the employee’s employment;

              (3) malicious;

              (4) willful and wanton; or


                                               4
              (5) calculated to benefit the employee personally.

       The complaint must contain a reasonable factual basis supporting the
       allegations.

Ind. Code § 34-13-3-5(c).

       Commissioner Lemmon argues that the allegations of Darst’s complaint do not fit any

of these categories. Darst did not respond to this argument at the trial level or on appeal. We

conclude that Darst has failed to make a cogent argument regarding the dismissal of

Commissioner Lemmon as a defendant. See Ind. Appellate Rule 46(A)(8)(a) (arguments

must be supported by cogent reasoning). Therefore, we affirm the trial court’s order with

regard to Commissioner Lemmon.

                                          II. DOC

       Without citation to authority or the record, Darst asserts that the DOC does not have a

grievance procedure for personal injuries and is not authorized to pay damages for personal

injuries. Alternatively, Darst argues that exhaustion of administrative remedies would be

futile. See Smith v. State Lottery Comm’n of Ind., 701 N.E.2d 926, 931 (Ind. Ct. App. 1998)

(exhaustion is not required “when the remedy is inadequate or would be futile, or when some

equitable consideration precludes application of the rule”), trans. denied (1999).

       The DOC contends that there is a grievance procedure, citing Higgason v. Lemmon,

818 N.E.2d 500, 502-03 (Ind. Ct. App. 2004), trans. denied (2005). Higgason indicates that

the DOC has a grievance procedure for loss of personal property. The details of the

grievance procedure were not spelled out in the Higgason opinion, and there is no mention of

whether it encompasses personal injury claims. Thus, the record before us is silent as to

                                              5
whether there is a grievance procedure available to Darst. Further, without knowing whether

there is a grievance procedure available, we cannot say whether compliance would be futile.1

Therefore, we remand for the trial court to determine whether the DOC has a grievance

procedure that addresses personal injury claims and, if so, whether exhaustion of that remedy

would have been futile.

                                                Conclusion

        We affirm the dismissal of Darst’s claim against Commissioner Lemmon. However,

the record needs further development before it can be determined whether the claims against

the DOC should be dismissed. Therefore, we reverse the dismissal as to the DOC and

remand for further proceedings.

        Affirmed in part, reversed in part, and remanded.

KIRSCH, J., and MATHIAS, J., concur




        1
            The DOC concedes that the record is inadequate as to the issue of futility:

        Although the evidence put forth by the DOC in the trial court suggests Darst did not grieve,
        there is no additional evidence to show that if he had, it would not have been futile.
        Therefore, the trial court’s dismissal of Darst’s claim for exhaustion at this stage was
        improper and this matter should be remanded for further proceedings with respect to the
        claims only against the DOC.

Appellees’ Br. at 5 (citation to record omitted).

                                                       6
