MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  Oct 28 2015, 5:48 am

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 APPELLEES
Raymond McNeil Love                                      Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Raymond McNeil Love,                                     October 28, 2015
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         48A04-1502-PL-69
        v.                                               Appeal from the Madison Circuit
                                                         Court
Mike Herron, Daryl Kent, Jerry                           The Honorable Thomas Newman
Jones, and Pen Products                                  Jr., Judge
Correctional Industries,                                 Trial Court Cause No.
Appellees-Defendants,                                    48C03-1410-PL-137




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015          Page 1 of 9
                               Case Summary and Issues
[1]   Raymond McNeil Love, pro se, appeals the trial court’s grant of a motion to

      dismiss his complaint for failure to state a claim. Love raises the following

      restated issues: 1) whether the trial court erred when it dismissed his complaint

      for failure to state a claim; 2) whether the trial court abused its discretion by

      failing to convert defendants’ motion to dismiss to a motion for summary

      judgment; 3) whether the trial court abused its discretion by granting the motion

      to dismiss without giving him an opportunity to respond; and 4) whether the

      trial court abused its discretion by denying him the opportunity to amend the

      complaint. Concluding the trial court did not err by dismissing Love’s

      complaint for failure to state a claim and did not abuse its discretion in any

      regard, we affirm the trial court’s judgment in favor of PEN Products, PEN

      Director Mike Herron, and PEN Supervisors Daryl Kent and Jerry Jones.



                            Facts and Procedural History
[2]   Love is an inmate at the Pendleton Correctional Facility. On November 1,

      2012, Love was working at the PEN Products Furniture Factory when he

      suffered a laceration on his right hand requiring six stiches. PEN, an acronym

      for “Prison Enterprises Network,” is a division of the Indiana Department of

      Correction that “manufacture[s] goods and provide[s] services using offender

      labor.” PEN Career Focused Reentry, http://www.in.gov/idoc/penproducts/

      (last visited Oct. 15, 2015); see also Ind. Code § 11-10-6-2 (mandating the

      establishment and operation of “industry and farm programs for offenders”).

      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015   Page 2 of 9
[3]   Love contends this incident caused “irreparable damages and harm to his right

      hand.” Appellant’s Appendix at 12. He filed a Notice of Tort Claim against

      PEN Products on April 29, 2013, which the Office of the Attorney General

      denied on September 26, 2013.1 On October 28, 2014, Love filed a pro se

      complaint against PEN Products, Herron, Kent, and Jones. The complaint

      stated Love was suing defendants Herron, Kent, and Jones in their official and

      individual capacities and alleged violations of Love’s rights under the Eighth

      and Fourteenth Amendments of the United States Constitution and under

      Article 1, Sections 12, 15, and 16 of the Indiana Constitution. The complaint

      sought “punitive, compensatory damages and injunctive and declaratory relief

      as well as plaintiff’s cost.” Id. at 8.


[4]   On January 20, 2015, defendants Herron, Kent, and Jones filed a motion to

      dismiss for failure to state a claim under Indiana Trial Rule 12(B)(6), arguing

      “[t]here is no private right of action under either the United States or Indiana

      constitutions.” Id. at 64.2 The trial court granted the motion to dismiss on

      January 27, 2015. On February 19, 2015, Love filed a notice of appeal as well

      as a motion for relief from judgment. He filed an amended complaint with the



      1
        The Indiana Tort Claims Act (“ITCA”), Ind. Code § 34-13-3 et seq., governs tort claims against
      governmental entities and public employees. Brown v. Alexander, 876 N.E.2d 376, 380 (Ind. Ct. App. 2007),
      trans. denied. The ITCA limits the State’s liability by barring a potential plaintiff’s suit unless he or she
      complies with certain notice requirements. Id.; see Ind. Code § 34-13-3-8. In addition, “A person may not
      initiate a suit against a governmental entity unless the person’s claim has been denied in whole or in part.”
      Ind. Code § 34-13-3-13.
      2
       Although Love asserted only direct constitutional claims, the motion to dismiss further argued the
      defendants could not be held liable under 42 U.S.C. § 1983 (“Section 1983”) and would be entitled to
      immunity under the ITCA for any state tort claims.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015               Page 3 of 9
      trial court a week later. The trial court initially scheduled a hearing on the

      motion for relief from judgment, but vacated the hearing once the Notice of

      Completion of Clerk’s Record was filed.3



                                   Discussion and Decision
                                   I. Failure to State a Claim
[5]   Love appeals the trial court’s grant of defendants’ motion to dismiss for failure

      to state a claim.

               We review de novo the trial court’s grant or denial of a motion
               based on Indiana Trial Rule 12(B)(6). Such a motion tests the
               legal sufficiency of a claim, not the facts supporting it. Viewing
               the complaint in the light most favorable to the non-moving
               party, we must determine whether the complaint states any facts
               on which the trial court could have granted relief.


      Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010)

      (citations omitted).


[6]   The complaint sought compensatory and punitive damages4 for violations of

      Love’s rights under the Eighth and Fourteenth Amendments of the United




      3
        “The Court on Appeal acquires jurisdiction on the date the Notice of Completion of Clerk’s Record is noted
      in the Chronological Case Summary.” Ind. Appellate Rule 8.
      4
        The complaint also sought declaratory and injunctive relief. Love contends his constitutional claims “were
      not part of the request for monetary damages.” Brief of Appellant at 3. But he makes no further argument
      regarding his request for declaratory or injunctive relief and cites no authority establishing the trial court
      could have granted such relief. The issue is therefore waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring
      each contention be supported by cogent reasoning and citations); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015              Page 4 of 9
      States Constitution and under Article 1, Sections 12, 15, and 16 of the Indiana

      Constitution. Appellant’s App. at 13.5 As we have previously held “there is no

      express or implied right of action for monetary damages under the Indiana

      Constitution,” the trial court did not err in dismissing Love’s claims under the

      Indiana Constitution for failure to state a claim. Smith v. Ind. Dep’t of Corr., 871

      N.E.2d 975, 986 (Ind. Ct. App. 2007), trans. denied, cert. denied, 552 U.S. 1247

      (2008).


[7]   Likewise, a plaintiff alleging a violation of the Fourteenth Amendment must

      bring suit under Section 1983; no direct cause of action exists. Benedetto v. Ind.

      Univ., 707 N.E.2d 1062, 1063 (Ind. Ct. App. 1999); see also Azul-Pacifico, Inc. v.

      City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (collecting cases), cert.

      denied, 506 U.S. 1081 (1993). Accordingly, the trial court did not err by

      dismissing Love’s claim asserting a direct cause of action under the Fourteenth

      Amendment.




      2015) (“A litigant who fails to support his arguments with appropriate citations to legal authority and record
      evidence waives those arguments for our review.”).
      5
        After filing a notice of appeal, Love filed an amended complaint “in order to clarify his relief under the
      Indiana Tort Claims Act.” Br. of Appellant at 1. On appeal, Love contends his “claims were a cause of
      action under the Indiana Tort Claims Act . . . and not the United States, or Indiana Constitution.” Reply
      Brief of Appellant at 2. We disagree. The complaint asserts only direct constitutional claims and does not
      include any state tort claims. We therefore disregard the portions of the briefs concerning the ITCA. See
      Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003) (“[O]ne who
      proceeds pro se is held to the same established rules of procedure that a trained legal counsel is bound to
      follow and, therefore, must be prepared to accept the consequences of his or her action . . . . We will not
      become an advocate for a party . . . .”) (citations and internal quotation marks omitted).

      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015               Page 5 of 9
[8]   As to the Eighth Amendment claims, the United States Supreme Court inferred

      a direct cause of action for violations of the Cruel and Unusual Punishments

      Clause in Carlson v. Green, 446 U.S. 14 (1980), extending the implied damages

      remedy recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of

      Narcotics, 403 U.S. 388, 389 (1971) (holding a “violation of [the Fourth

      Amendment] by a federal agent acting under color of his authority gives rise to

      a cause of action for damages consequent upon his unconstitutional conduct”).

      However, no direct right of action exists against state actors in a manner

      comparable to that provided against federal actors under Bivens. Universal

      Outdoor, Inc. v. Elk Grove Vill., 969 F. Supp. 1124, 1125 (N.D. Ill. 1997). Where

      defendants are state actors, Section 1983 is utilized. Bieneman v. City of Chicago,

      864 F.2d 463, 469 (7th Cir. 1988), cert. denied, 490 U.S. 1080 (1989). Thus, as to

      defendants Herron, Kent, and Jones in their individual capacities, the trial court

      did not err in dismissing Love’s Eighth Amendment claim.


[9]   Finally, we note the Indiana Department of Correction is a state agency, and a

      suit against a state official “in his official capacity” is the same as a suit against

      the entity of which the official is an agent. McMillian v. Monroe Cnty., 520 U.S.

      781, 785 n.2 (1997) (citation omitted). As such, even assuming PEN Products

      employees were federal actors, they would not, in their official capacities, be

      proper defendants for a Bivens action, and nor would PEN Products, a division

      of a state agency. “[T]he purpose of Bivens is to deter the officer.” FDIC v. Meyer,

      510 U.S. 471, 485 (1994) (emphasis in original) (refusing to imply a damages




      Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015   Page 6 of 9
       action directly against a federal agency because permitting claimants to bypass

       qualified immunity would eviscerate the Bivens remedy).


[10]   In sum, the trial court did not err in dismissing Love’s complaint for failure to

       state a claim, as none of the claims stated therein would entitle Love to relief.


                                      II. Abuse of Discretion
[11]   In addition, Love contends the trial court abused its discretion by failing to

       convert defendants’ motion to dismiss to a motion for summary judgment, by

       granting the motion to dismiss without giving him an opportunity to respond,

       and by denying him the opportunity to amend the complaint. We disagree.


[12]   Trial Rule 12(B) provides,

               If, on a motion . . . to dismiss for failure of the pleading to state a
               claim upon which relief can be granted, matters outside the
               pleading are presented to and not excluded by the court, the
               motion shall be treated as one for summary judgment and
               disposed of as provided in Rule 56.


       Here, defendants’ motion to dismiss did not present matters outside the

       pleading, so the trial court properly treated the motion as a motion to dismiss

       rather than a motion for summary judgment.


[13]   As to affording Love an opportunity to respond, Trial Rule 12 does not require

       a trial court to conduct a hearing or receive a response prior to granting a

       motion to dismiss for failure to state a claim. Higgason v. State, 789 N.E.2d 22,

       28-29 (Ind. Ct. App. 2003). The trial court did not have to wait for a response

       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015   Page 7 of 9
       from Love and therefore did not abuse its discretion when it ruled on the

       motion to dismiss seven days after the motion was filed.


[14]   Finally, Love was not denied the opportunity to amend the complaint. Love

       contends he was denied this opportunity because the order granting the motion

       to dismiss “was not presented to [him] in a timely manner.” Br. of Appellant at

       9. The date of service is unclear from the record, but Love believes he could not

       have satisfied the time limit imposed by Trial Rule 12(B) due to the date of

       service. Trial Rule 12(B) provides in relevant part,

               When a motion to dismiss is sustained for failure to state a claim
               . . . the pleading may be amended once as of right . . . within ten
               [10] days after service of notice of the court’s order sustaining the
               motion and thereafter with permission of the court . . . .


       It therefore does not matter when Love received the order granting the motion

       to dismiss; the rule plainly states he had ten days after the date of service, not

       the date of the order.6




       6
        Moreover, Love filed an amended complaint after filing a notice of appeal. He filed a notice of appeal on
       February 19, 2015, and then filed—without permission of the trial court—an amended complaint on
       February 27, 2015. Even if Love had sought permission to amend the complaint at that time, this court
       acquires jurisdiction under Indiana Appellate Rule 8 “on the date the Notice of Completion of Clerk’s
       Record is noted in the Chronological Case Summary,” in this case on March 9, 2015. See Crider v. Crider, 15
       N.E.3d 1042, 1064 (Ind. Ct. App. 2014) (stating orders issued by a trial court after the Court of Appeals
       acquires jurisdiction are generally void), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015            Page 8 of 9
                                               Conclusion
[15]   The trial court did not err by dismissing Love’s complaint for failure to state a

       claim and did not abuse its discretion. The trial court’s judgment in favor of

       PEN Products, PEN Director Herron, and PEN Supervisors Kent and Jones is

       affirmed.


[16]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1502-PL-69 | October 28, 2015   Page 9 of 9
