MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 16 2016, 8:15 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Carl Johnson Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana
Kyle Hunter Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl Johnson, December 16, 2016 Appellant-Plaintiff, Court of Appeals Case No. 48A02-1602-PL-285 v. Appeal from the Madison Circuit Court Corrections Officer Captain The Honorable Thomas Newman, Blattner and Jr., Judge Corrections Officer Schell, Trial Court Cause No. Appellees-Defendants. 48C01-1507-PL-87
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 1 of 7 [1] Carl Johnson appeals the dismissal of his civil complaint against Corrections
Officer Captain Blattner (“CO Blattner”) and Corrections Officer Schell (“CO
Schell”) (collectively, “the Correctional Officers”). 1 We affirm in part, reverse
in part, and remand.
Facts and Procedural History [2] On July 28, 2015, Johnson filed a civil complaint asserting his Fourth
Amendment rights under the United States Constitution were violated when he
“was violated by the [Correctional Officers] as [he] was continually searched
and/or ordered to be searched by them by being stripped out each and every
time late at night while in [his] cell.” (Appellant’s App. at 6.) He alleged
specifically he “was told to bend over and open [his] anus cavity” and he had
been “psychologically damaged because of the abuse by all officers.” (Id.) He
also contended his Fourteenth Amendment rights under the United States
Constitution were violated “based on the fact that other inmates were not
subjected or treated in the same manner of abuse as [he] was.” (Id.)
[3] On December 22, 2015, the Correctional Officers filed a motion to dismiss
Johnson’s complaint pursuant to Indiana Trial Rule 12(B)(6) “because prisoners
do not have a right to privacy under the 4th Amendment of the United States
Constitution and the Plaintiff fails to allege sufficient facts to state an equal
1 The Corrections Officers are not referred to by their full names in the record. We refer to them as their names appear on the Chronological Case Summary.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 2 of 7 protection claim under the 14th Amendment to the United States
Constitution.” (Id. at i.) On January 11, 2016, the trial court granted the
Correction Officers’ motion to dismiss.
Discussion and Decision [4] We first note Johnson proceeds pro se. Litigants who proceed pro se are held to
the same established rules of procedure that trained counsel is bound to follow.
Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.
dismissed, 558 U.S. 1074 (2009). One risk a litigant takes when proceeding pro se
is that he will not know how to accomplish all the things an attorney would
know how to accomplish. Id. When a party elects to represent himself, there is
no reason for us to indulge in any benevolent presumption on his behalf or to
waive any rule for the orderly and proper conduct of his appeal. Foley v.
Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).
Standard of Review
[5] Our standard of review is well-settled:
We review de novo a ruling on a motion to dismiss a civil complaint for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). Putnam County Sheriff v. Price, 954 N.E.2d 451, 453 (Ind. 2011). “Such a motion tests the legal sufficiency of a claim, not the facts supporting it.” Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010). “That is to say, it tests whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Price, 954 N.E.2d at 453. In ruling on a Rule 12(B)(6) motion,
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 3 of 7 courts are required to view the complaint in the light most favorable to the non-moving party and with every inference in its favor. Id.
Medley v. Lemmon, 994 N.E.2d 1177, 1182 (Ind. Ct. App. 2013), reh’g denied,
trans. denied. Dismissals under T.R. 12(B)(6) are “rarely appropriate.” Obemski
v. Henderson, 497 N.E.2d 909, 910 (Ind. 1986).
Fourth Amendment Claim
[6] More than thirty years ago, our Indiana Supreme Court explained:
The United States Supreme Court recently held in Hudson v. Palmer [468 U.S. 517] (1984), that a prison inmate does not have a reasonable expectation of privacy in his prison cell entitling him to Fourth Amendment protection against unreasonable searches and seizures. The Court stated that a right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security.
Perkins v. State, 483 N.E.2d 1379, 1384 (Ind. 1985). The United States Supreme
Court has also ruled that body cavity searches such as those described by
Johnson are not unreasonable searches because the “[s]muggling of drugs,
weapons, and other contraband is all too common an occurrence. And inmate
attempts to secrete the items into the facility by concealing them in body
cavities are documented in this record and in other cases.” Bell v. Wolfish, 441
U.S. 520, 559 (1979). Thus, both types of searches of which Johnson complains
are not considered unreasonable under established case law, and his Fourth
Amendment argument fails as a matter of law.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 4 of 7 Fourteenth Amendment Claim
[7] The Fourteenth Amendment to the United States Constitution prohibits the
states from denying “to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. Amend. XIV §1. To establish a prima facie case of
violation of a person’s equal protection rights, a plaintiff must show “he or she
is a member of a protected class, that he or she is otherwise similarly situated to
members of the unprotected class, and that he or she was treated differently
from members of the unprotected class.” Dickson v. Aaron, 667 N.E.2d 759, 763
(Ind. Ct. App. 1996) (quoting Sims v. Mulcahy, 902 F.2d 524, 538 (7th Cir. 1990),
cert. denied, 498 U.S. 897 (1990)), trans. denied. “Moreover, a plaintiff alleging a
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 16 2016, 8:15 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Carl Johnson Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana
Kyle Hunter Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl Johnson, December 16, 2016 Appellant-Plaintiff, Court of Appeals Case No. 48A02-1602-PL-285 v. Appeal from the Madison Circuit Court Corrections Officer Captain The Honorable Thomas Newman, Blattner and Jr., Judge Corrections Officer Schell, Trial Court Cause No. Appellees-Defendants. 48C01-1507-PL-87
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 1 of 7 [1] Carl Johnson appeals the dismissal of his civil complaint against Corrections
Officer Captain Blattner (“CO Blattner”) and Corrections Officer Schell (“CO
Schell”) (collectively, “the Correctional Officers”). 1 We affirm in part, reverse
in part, and remand.
Facts and Procedural History [2] On July 28, 2015, Johnson filed a civil complaint asserting his Fourth
Amendment rights under the United States Constitution were violated when he
“was violated by the [Correctional Officers] as [he] was continually searched
and/or ordered to be searched by them by being stripped out each and every
time late at night while in [his] cell.” (Appellant’s App. at 6.) He alleged
specifically he “was told to bend over and open [his] anus cavity” and he had
been “psychologically damaged because of the abuse by all officers.” (Id.) He
also contended his Fourteenth Amendment rights under the United States
Constitution were violated “based on the fact that other inmates were not
subjected or treated in the same manner of abuse as [he] was.” (Id.)
[3] On December 22, 2015, the Correctional Officers filed a motion to dismiss
Johnson’s complaint pursuant to Indiana Trial Rule 12(B)(6) “because prisoners
do not have a right to privacy under the 4th Amendment of the United States
Constitution and the Plaintiff fails to allege sufficient facts to state an equal
1 The Corrections Officers are not referred to by their full names in the record. We refer to them as their names appear on the Chronological Case Summary.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 2 of 7 protection claim under the 14th Amendment to the United States
Constitution.” (Id. at i.) On January 11, 2016, the trial court granted the
Correction Officers’ motion to dismiss.
Discussion and Decision [4] We first note Johnson proceeds pro se. Litigants who proceed pro se are held to
the same established rules of procedure that trained counsel is bound to follow.
Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert.
dismissed, 558 U.S. 1074 (2009). One risk a litigant takes when proceeding pro se
is that he will not know how to accomplish all the things an attorney would
know how to accomplish. Id. When a party elects to represent himself, there is
no reason for us to indulge in any benevolent presumption on his behalf or to
waive any rule for the orderly and proper conduct of his appeal. Foley v.
Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).
Standard of Review
[5] Our standard of review is well-settled:
We review de novo a ruling on a motion to dismiss a civil complaint for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). Putnam County Sheriff v. Price, 954 N.E.2d 451, 453 (Ind. 2011). “Such a motion tests the legal sufficiency of a claim, not the facts supporting it.” Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010). “That is to say, it tests whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Price, 954 N.E.2d at 453. In ruling on a Rule 12(B)(6) motion,
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 3 of 7 courts are required to view the complaint in the light most favorable to the non-moving party and with every inference in its favor. Id.
Medley v. Lemmon, 994 N.E.2d 1177, 1182 (Ind. Ct. App. 2013), reh’g denied,
trans. denied. Dismissals under T.R. 12(B)(6) are “rarely appropriate.” Obemski
v. Henderson, 497 N.E.2d 909, 910 (Ind. 1986).
Fourth Amendment Claim
[6] More than thirty years ago, our Indiana Supreme Court explained:
The United States Supreme Court recently held in Hudson v. Palmer [468 U.S. 517] (1984), that a prison inmate does not have a reasonable expectation of privacy in his prison cell entitling him to Fourth Amendment protection against unreasonable searches and seizures. The Court stated that a right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security.
Perkins v. State, 483 N.E.2d 1379, 1384 (Ind. 1985). The United States Supreme
Court has also ruled that body cavity searches such as those described by
Johnson are not unreasonable searches because the “[s]muggling of drugs,
weapons, and other contraband is all too common an occurrence. And inmate
attempts to secrete the items into the facility by concealing them in body
cavities are documented in this record and in other cases.” Bell v. Wolfish, 441
U.S. 520, 559 (1979). Thus, both types of searches of which Johnson complains
are not considered unreasonable under established case law, and his Fourth
Amendment argument fails as a matter of law.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 4 of 7 Fourteenth Amendment Claim
[7] The Fourteenth Amendment to the United States Constitution prohibits the
states from denying “to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. Amend. XIV §1. To establish a prima facie case of
violation of a person’s equal protection rights, a plaintiff must show “he or she
is a member of a protected class, that he or she is otherwise similarly situated to
members of the unprotected class, and that he or she was treated differently
from members of the unprotected class.” Dickson v. Aaron, 667 N.E.2d 759, 763
(Ind. Ct. App. 1996) (quoting Sims v. Mulcahy, 902 F.2d 524, 538 (7th Cir. 1990),
cert. denied, 498 U.S. 897 (1990)), trans. denied. “Moreover, a plaintiff alleging a
violation of the equal protection clause must not only establish that she was
treated differently, but she must also establish that the defendants acted with
discriminatory intent.” Id. In the alternative, “a plaintiff who is not part of an
identifiable class but is singled out for discriminatory treatment can raise a
‘class of one’ equal protection claim.” City of Indianapolis v. Armour, 946 N.E.2d
553, 565 (Ind. 2011), cert. granted, opinion affirmed by Armour v. City of
Indianapolis, Ind., 132 S.Ct. 2073 (2012). “Class of One” cases are marked with
a claim that “underlying the government’s decision [to treat the plaintiff
differently] is animus or ill-will toward the plaintiff.” Id.
[8] As stated in Price, dismissal of a claim is not appropriate if “the allegations in
the complaint establish any set of circumstances under which a plaintiff would
be entitled to relief.” Price, 954 N.E.2d at 453. In his complaint, Johnson
alleged, “my 14th Amendment of equal protection and equal treatment was
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 5 of 7 violated under the U.S Constitution based on the fact that other inmates were
not subjected or treated in the same manner of abuse as I was.” (Appellant’s
App. at 6) (errors in original). To support his claim, Johnson asserted:
This claim 2 is in regards to my 14th Amendment right of equal protection under the law as I was being stripped out naked by these officers continually even though they knew that I had already been violated several times already. They knew because I told them that the other officers had looked up my anus at least three times without finding any wrong doing on my part. I also asked every officer what was the reason that I was being violated of my rights. They wouldn’t give me any explanation. Now I have been psychologically damages because of the abuse by all officers.
(Id.) (errors in original). Johnson’s allegations fit those of a “class of one” equal
protection claim in that he contends he was treated differently than other
prisoners and provided details of that treatment. The dismissal of Johnson’s
equal protection claim under the Fourteenth Amendment was not appropriate. 2
Conclusion [9] The trial court properly dismissed Johnson’s Fourth Amendment claim, as it
had no basis in law. However, it erred when it dismissed Johnson’s Fourteenth
2 Johnson also complains on appeal he was not permitted to amend his complaint following dismissal as required by T.R. 12(B). However, as we hold the dismissal was inappropriate, we need not decide this issue.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 6 of 7 Amendment claim. Accordingly, we affirm in part, reverse in part, and
remand.
[10] Affirmed in part, reversed in part, and remanded.
Baker, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1602-PL-285 | December 16, 2016 Page 7 of 7