      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
                                                                                  FILED
      court except for the purpose of establishing                            Feb 26 2020, 9:49 am

      the defense of res judicata, collateral                                     CLERK
                                                                              Indiana Supreme Court
      estoppel, or the law of the case.                                          Court of Appeals
                                                                                   and Tax Court




      APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
      Lyndale R. Ivy                                           Adam G. Forrest
      Pendleton, Indiana                                       BBKCC Attorneys
                                                               Richmond, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lyndale R. Ivy,                                          February 26, 2020
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               19A-MI-2508
              v.                                               Appeal from the Jennings Superior
                                                               Court
      Keith Butts,                                             The Honorable Frank M. Nardi,
      Appellee-Defendant.                                      Special Judge
                                                               Trial Court Cause No.
                                                               40D01-1806-MI-39



      Najam, Judge.


                                       Statement of the Case
[1]   Lyndale Ivy appeals the trial court’s grant of summary judgment in favor of

      Keith Butts on Ivy’s complaint alleging false imprisonment. Ivy presents a


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2508 | February 26, 2020               Page 1 of 7
      single dispositive issue for our review, namely, whether the trial court erred

      when it denied Ivy’s summary judgment motion and entered summary

      judgment in favor of Butts. We affirm.


                                 Facts and Procedural History
[2]   In 1978, Ivy pleaded guilty to two counts of felony murder and began serving a

      100-year sentence in the Department of Correction (“DOC”). Ivy v. State, 861

      N.E.2d 1242, 1244 (Ind. Ct. App. 2007), trans. denied. From December 2015 to

      November 2017, Ivy was incarcerated at the New Castle Correctional Facility,

      where Butts served as Warden under a contract with the DOC. On December

      21, 2018, Ivy filed an amended complaint against Butts alleging that the 1978

      judgment and “commitment order” were “void on their face” for the trial

      court’s lack of subject matter jurisdiction and that Butts held Ivy in custody

      “without legal process” and “without [Ivy’s] consent.” Appellant’s App. Vol. 2

      at 18.


[3]   On August 15, 2019, Ivy and Butts filed cross-motions for summary judgment.

      On October 3, the trial court issued an order denying Ivy’s summary judgment

      motion and granting Butts’ summary judgment motion. This appeal ensued.


                                     Discussion and Decision
[4]   Ivy contends that the trial court erred when it denied his summary judgment

      motion and granted Butts’ summary judgment motion. Our standard of review

      is clear. The Indiana Supreme Court has explained that



      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2508 | February 26, 2020   Page 2 of 7
              [w]e review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving
              party is entitled to judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).

              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

      alterations original to Hughley).


[5]   Further, as this Court has observed,


              [a]ffidavits in support of or in opposition to a motion for
              summary judgment are governed by Indiana Trial Rule 56(E),
              which provides, in relevant part, as follows: “Supporting and
              opposing affidavits shall be made on personal knowledge, shall

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2508 | February 26, 2020   Page 3 of 7
              set forth such facts as would be admissible in evidence, and shall
              show affirmatively that the affiant is competent to testify to the
              matters stated therein.” “‘Mere assertions in an affidavit or
              conclusions of law or opinions will not suffice.’” Dedelow v. Rudd
              Equip. Corp., 469 N.E.2d 1206, 1209 (Ind. Ct. App. 1984),
              (quoted in City of Gary v. McCrady, 851 N.E.2d 359, 364 (Ind. Ct.
              App. 2006)). The requirements of Trial Rule 56(E) are
              mandatory; hence, a court considering a motion for summary
              judgment should disregard inadmissible information contained in
              supporting or opposing affidavits. Price v. Freeland, 832 N.E.2d 1036,
              1039 (Ind. Ct. App. 2005). Further, the party offering the
              affidavit into evidence bears the burden of establishing its
              admissibility. Duncan v. Duncan, 764 N.E.2d 763, 766 (Ind. Ct.
              App. 2002), trans. denied.


      City of Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind. Ct. App. 2010)

      (emphasis added).


[6]   In his complaint, Ivy alleges that Butts falsely imprisoned him. “The tort of

      false imprisonment amounts to an ‘unlawful restraint upon one’s freedom of

      movement or the deprivation of one’s liberty without consent.’” Ali v. Alliance

      Home Health Care, LLC, 53 N.E.3d 420, 432 (Ind. Ct. App. 2016) (quoting Miller

      v. City of Anderson, 777 N.E.2d 1100, 1104-05 (Ind. Ct. App. 2002), trans. denied)

      (emphasis added). Here, in support of his summary judgment motion, Ivy

      designated as evidence his amended complaint, Butts’ answer to his amended

      complaint, and Ivy’s affidavit.


[7]   Thus, other than the allegations contained in the designated pleadings, which

      are not evidence, the only designated evidence Ivy submitted to the trial court



      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2508 | February 26, 2020   Page 4 of 7
      in support of his summary judgment motion was his affidavit. In his affidavit,

      Ivy stated in relevant part as follows:


              5. The 2 felony murder charges [filed in 1978] were not brought
              against me in the manner prescribed by law in effect at that time.

              6. As a result, the subject matter jurisdiction of the Jennings
              Circuit Court was never actually invoked over the 2 felony
              murder charges in the case, and thus, the said court was
              powerless to act with respect to those charges.

                                                      ***

              9. Because the said court lacked subject matter jurisdiction over
              the 2 felony murder charges in the case, its pretended judgment
              concerning those crimes was and is null and void.

              10. Also on August 18, 1978, the said court issued a pretended
              order committing me to the IDOC for a term of 100 years.

              11. The said commitment order was and is also void on its face
              for lack of subject matter jurisdiction.

                                                      ***

              13. I was held in the custody of Keith Butts against my will and
              without any actual legal process.

              14. Keith Butts held me in his custody in performance of a
              contract made between the IDOC and the GEO Group, Inc.


      Appellant’s App. Vol. 2 at 24-25.


[8]   To make a prima facie case that he was falsely imprisoned, Ivy had to designate

      evidence showing that his incarceration was unlawful. Ali, 53 N.E.3d at 432.
      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2508 | February 26, 2020   Page 5 of 7
      Again, Ivy alleged that his incarceration was unlawful because the judgment

      and sentence on his murder convictions were “void” for the trial court’s lack of

      subject matter jurisdiction. However, Ivy did not designate any admissible

      evidence in support of that allegation. In his affidavit, he merely stated a

      conclusion of law, which was improper. Again, mere assertions in an affidavit

      or conclusions of law or opinions will not suffice to create a genuine issue of

      material fact. Duffitt, 929 N.E.2d at 239. We hold that Ivy did not sustain his

      burden on summary judgment, and the trial court did not err when it denied his

      summary judgment motion.


[9]   In support of his summary judgment motion, Butts designated evidence

      showing that Ivy’s incarceration was, at all relevant times, lawful. In particular,

      in his affidavit, Butts stated as follows:


              7. In my capacity as the Warden of the [New Castle Correctional
              Facility (“NCCF”)], I had no authority to release an offender
              incarcerated therein, such as [Ivy], as those offenders were under
              the custody and control of the IDOC and GEO, my employer,
              was the contractor of the IDOC who managed the NCCF where
              the Plaintiff was incarcerated.

              8. [Ivy] herein was convicted of certain crimes in Jennings
              County, Indiana, in Cause Number 78-CR-36, described on the
              Offender Data sheet of the IDOC submitted herewith, that led to his
              incarceration by the IDOC subject to an earliest possible release
              date of December 2, 2028.

              9. Absent an Order of a Court or a directive of the IDOC to
              transfer or release an offender from the custody of the IDOC
              with placement at the NCCF, I had no authority, ability,


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2508 | February 26, 2020   Page 6 of 7
               or other discretion to release such an offender from custody at
               said facility.


       Appellant’s App. Vol. 2 at 29 (emphasis added). Thus, Butts made a prima

       facie case that he was entitled to summary judgment on Ivy’s complaint. On

       appeal, again, Ivy does not direct us to any designated evidence to satisfy his

       burden as the non-movant to show a genuine issue of material fact on the

       lawfulness of his incarceration. We hold that the trial court did not err when it

       entered summary judgment in favor of Butts on Ivy’s complaint.


[10]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2508 | February 26, 2020   Page 7 of 7
