                                                                                     FILED
                                                                                May 18 2018, 9:29 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Anthony W. Reed                                           Curtis T. Hill, Jr.
      Greencastle, Indiana                                      Attorney General of Indiana

                                                                Abigail R. Recker
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Wayne Reed,                                       May 18, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                67A01-1708-MI-1768
              v.                                                Appeal from the Putnam Superior
                                                                Court
      Leann White and Darrin                                    The Honorable Charles D. Bridges,
      Chaney,                                                   Judge
      Appellees-Defendants.                                     Trial Court Cause No.
                                                                67D01-1706-MI-30



      Najam, Judge.


                                        Statement of the Case
[1]   Anthony Wayne Reed appeals the trial court’s order dismissing his complaint

      against Leann White and Darrin Chaney. Reed presents a single issue for our

      review, namely, whether the trial court erred when it dismissed his complaint

      Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018                            Page 1 of 7
      for a failure to state a claim upon which relief can be granted. We reverse and

      remand for further proceedings.


                                    Facts and Procedural History
[2]   On December 11, 2015, Reed, who was then incarcerated at the Putnamville

      Correctional Facility (“PCF”), mailed four handmade crosses1 to family

      members. However, on December 30, two envelopes containing three of the

      crosses were returned to PCF for insufficient postage. Reed was notified of the

      problem, but the crosses were not returned to him, and he was not able to

      resend them to his family members. Reed later learned that White, who

      worked in the PCF mail room, had confiscated the crosses. White, in turn,

      gave the crosses to Chaney, an internal affairs officer for the PCF Security

      Threat Group (“STG”).


[3]   After Reed filed an informal grievance with PCF on January 20, 2016, he was

      informed that “STG policy 02-03-105 prohibits the possession, making or

      display of any handmade jewelry (rings, necklaces and bracelets) by [the]

      offender population as these items can be used to show STG [sic] affiliation by

      utilizing color and symbols.” Appellant’s App. at 13. Reed responded by

      stating that the colors used in making the crosses were “not in any way

      connected with any (known) Gang-memberships.” Id. at 15. Reed then filed




      1
          The crosses had been constructed with paper and glue.


      Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018   Page 2 of 7
      with the Indiana Department of Correction (“IDOC”) a Grievance Appeal,

      which was denied.


[4]   On June 13, Reed filed a tort claim notice with IDOC, and on October 26,

      Reed filed a complaint against White and Chaney with the trial court.2 In his

      complaint, Reed alleged that the reason given for White’s confiscation of the

      crosses was invalid, White did not follow IDOC policies governing the seizure

      of items in the mail, and White and Chaney committed “criminal conversion”

      when they took the crosses. Id. at 20. The trial court dismissed Reed’s

      complaint, stating that he had failed to state a claim upon which relief can be

      granted, “as the Defendants were following IDOC policies and procedures.”

      Appellant’s Br. at 12. This appeal ensued.


                                       Discussion and Decision
[5]   Indiana Code Section 34-58-1-2 provides that a trial court shall screen

      complaints filed by an offender to “determine if the claim may proceed.” A

      claim may not proceed if the court determines that the claim is not a claim

      upon which relief may be granted. Id. We review de novo a trial court’s

      dismissal of an offender’s complaint under this statute. Guillen v. R.D.C. Mail

      Clerk, 922 N.E.2d 121, 122 (Ind. Ct. App. 2010). Like the trial court, we look




      2
        In May 2017, the trial court dismissed Reed’s complaint for failure to state a claim upon which relief may
      be granted, and Reed appealed. By order dated July 5, we dismissed that appeal, but remanded to the trial
      court with instructions to docket the complaint, which the court had not done, and to otherwise comply with
      Indiana Code Section 34-58-1-3 in the event the court dismissed the complaint. On remand, the trial court
      complied with our instructions, dismissed the complaint by order dated July 21, and this appeal ensued.

      Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018                          Page 3 of 7
      only to the well-pleaded facts contained in the complaint. Id. The statute is

      akin to a legislative interpretation of Indiana Trial Rule 12(B)(6), 3 a rule which

      has given judges in civil cases the authority “to consider a case in its early stages

      and, taking everything the plaintiff has alleged as true, determine whether it can

      proceed.” Id. at 122-23 (quoting Peterson v. Lambert, 885 N.E.2d 719, 720 (Ind.

      Ct. App. 2008)).


[6]   Indiana Code Chapter 34-13-3 governs tort claims against governmental entities

      and employees. As relevant here, Indiana Code Section 34-13-3-5(c) provides

      as follows:


               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

                        (5) calculated to benefit the employee personally.

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




      3
        We note that Trial Rule 12(B)(6) refers to claims upon which relief can be granted, but the statute refers to
      claims upon which relief may be granted. For ease of discussion, we use “can” and “may” interchangeably.

      Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018                              Page 4 of 7
[7]   Here, in his thirty-two-paragraph complaint, Reed alleged that White and

      Chaney had no valid reason to confiscate the paper crosses, that they did not

      follow IDOC policies regarding confiscation of personal property, and that their

      conduct constituted criminal conversion. In particular, Reed stated that, “for

      both defendants to [have] seized [Reed’s] property items (his three Crosses)

      without following any of the set, [sic] IDOC policies (and/or Indiana I.C.

      Codes) set in place to protect against such seizure, amount[s] to the charge of:

      ‘Criminal Conversion.’” Appellant’s App. at 13. On its face, Reed’s complaint

      satisfies Indiana Code Section 34-13-3-5(c).


[8]   However, in its appellee’s brief, the State, on behalf of White and Chaney,

      maintains that the trial court properly dismissed Reed’s complaint because he

      “failed to provide a ‘reasonable factual basis’ to support his allegations.”

      Appellee’s Br. at 12. In particular, the State contends that, “as a matter of law,

      governmental employees may not be named for conduct that occurred within

      the scope of their employment.” Id. at 10. And, the State avers that,


              [t]aking Reed’s facts as true, it appears that White and Chaney
              were following IDOC policies and procedures when they
              confiscated the paper crosses. According to the grievance
              response, the crosses were confiscated in violation of STG
              policy. . . . White and Chaney confiscated the property in
              furtherance of their job duties to protect the security of the
              facility. Their alleged failure to provide Reed with a notice of
              confiscation form does not amount to criminal conversion or
              “illegal seizure.” Because Reed failed to support this claim with
              sufficient facts, he cannot now sue them individually.



      Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018     Page 5 of 7
       Id. at 13.


[9]    We cannot agree with the State for two reasons. First, the State is correct that a

       government employee is immune from liability if the alleged conduct occurred

       within the scope of his employment. But the assertion of immunity is an

       affirmative defense, and dismissal for failure to state a claim upon which relief

       can be granted is “rarely appropriate when the asserted ground for dismissal is

       an affirmative defense.” Bellwether Prop., LLC v. Duke Energy Ind., Inc., 87

       N.E.3d 462, 464 (Ind. 2017). Here, if Reed had alleged in his complaint that

       White and Chaney were acting within the scope of their employment, dismissal

       under Indiana Code Section 34-58-1-2(a)(2) would have been appropriate. See

       Bushong v. Williamson, 790 N.E.2d 467, 472 n.4 (Ind. 2003). But Reed makes no

       such allegation. Accordingly, looking only at the face of Reed’s complaint,

       there is no basis to dismiss the complaint because of White’s and Chaney’s

       possible immunity defenses.


[10]   Second, taking the facts stated in Reed’s complaint as true, as we must, there

       was no basis in any IDOC policy for White and Chaney to have confiscated the

       crosses. To the contrary, Reed alleges that the crosses did not violate the STG

       policy, and he maintains that White and Chaney’s reliance on that stated policy

       was merely a “pretense” to obscure their alleged theft of Reed’s personal

       property. Appellant’s App. at 12. Reed’s allegations may prove incorrect at a

       fact-finding hearing, but they state a claim.




       Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018    Page 6 of 7
[11]   In sum, taking as true all allegations upon the face of Reed’s complaint, we

       hold that the trial court erred when it dismissed the complaint for failure to state

       a claim upon which relief can be granted. The complaint is sufficient under

       Indiana Code Section 34-13-3-5(c) to require White and Chaney to respond

       thereto. See Guillen, 922 N.E.2d at 123 (reversing dismissal of offender’s

       complaint alleging prison officials negligently or deliberately violated both the

       Indiana Constitution and prison mail rules).


[12]   Reversed and remanded for further proceedings.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018    Page 7 of 7
