Lyndale R. Ivy v. Mary Dorsett Kilgore, Anita Williams, and Corizon, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2019
• Docket: 18A-MI-2840
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 12 2019, 8:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEES Lyndale R. Ivy Jeb A. Crandall Pendleton, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lyndale R. Ivy, June 12, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-MI-2840 v. Appeal from the Jennings Superior Court Mary Dorsett Kilgore, Anita The Honorable Gary L. Smith, Williams, and Corizon, Inc. Judge Appellees-Defendants The Honorable Timothy B. Day, Special Judge Trial Court Cause No. 40D01-1807-MI-67

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-MI-2840 | June 12, 2019 Page 1 of 6 [1] Lyndale R. Ivy filed a civil complaint in Jennings County Superior Court

against Mary Dorsett Kilgore, Anita Williams, and Williams’s employer,

Corizon, Inc. The claims raised against Kilgore were entirely unrelated to the

claims against Williams and Corizon. Williams moved to dismiss the action as

to her on two separate grounds: 1) the claims were improperly joined with the

claims against Kilgore and, therefore, the claims against her should be severed

and transferred to Henry County, a county of preferred venue; and 2) Ivy failed

to state a claim upon which relief can be granted.

[2] The trial court entered an order granting Williams’s motion, which the court

entitled, ORDER TO DISMISS/CORRECT VENUE. In granting the motion,

the court referred only to the “improper venue” ground but then dismissed

Williams as a party “effective immediately” without any mention of

transferring the case. Appellant’s Appendix Vol. 2 at 13.

[3] On appeal, Ivy makes no argument regarding venue and focuses entirely on

whether he stated claims against Williams for which relief can be granted. It

does not appear, however, that the trial court dismissed on this ground. But

then again, the trial court did not transfer the case as required by Ind. Trial Rule

75(B). Given the perplexing nature of the appealed order, we find ourselves

unable to review it. Accordingly, we remand for clarification of the order and

for transfer of the case to Henry County if indeed venue was improper.

[4] We remand with instructions.

Facts & Procedural History

Court of Appeals of Indiana | Memorandum Decision 18A-MI-2840 | June 12, 2019 Page 2 of 6 [5] Ivy is incarcerated in the Indiana Department of Correction (the IDOC),

serving a 100-year sentence that was imposed in 1978. See Ivy v. State, 861

N.E.2d 1242, 1244 (Ind. Ct. App. 2007), trans. denied. As alleged by Ivy, in

August 2016, the IDOC transferred him to the New Castle Psychiatric Facility

(NCP) without providing Ivy written notice of the transfer, without a hearing,

and without Ivy’s consent. He claims the transfer was not a transfer between

prisons. According to Ivy, NCP is “the mental hospital of the IDOC that treats

and provides care for the most severe mentally ill or disturbed inmates confined

within the IDOC.” Appellant’s Appendix Vol. 2 at 17. Corizon is a private

company under contract with the IDOC to provide medical and clinical care

and services to inmates. Williams is a Corizon social worker and was involved

in the transfer of Ivy to NCP under policies established by Corizon. Several

months after an evaluation and diagnosis, Ivy was transferred out of NCP.

[6] On July 27, 2018, Ivy filed the instant complaint in Jennings Superior Court.

In the complaint, Ivy alleged various claims against Kilgore, who was the

Jennings County Clerk. Unrelated to these claims, Ivy asserted separate claims

against Williams and Corizon for their alleged violation of his right to due

course of law under Article 1, § 12 of the Indiana Constitution and for false

imprisonment. His claims against Williams and Corizon related to his

involuntary transfer to NCP.

[7] Williams filed a motion to dismiss on August 17, 2018, asserting the following

alternative grounds:

Court of Appeals of Indiana | Memorandum Decision 18A-MI-2840 | June 12, 2019 Page 3 of 6 1. Under Indiana Trial Rule 12(b)(3), a defendant may move to dismiss an action on the basis of improper venue as set forth in Rule 75 or any statutory provision. There is no basis to join the claims against co-defendant Mary Kilgore and Williams. Thus, the claims against Williams should be severed and transferred to Henry County, Indiana, because venue is improper in Jennings County. T.R. 75(A)(1)-(10).

2. Under Indiana Rule 12(b)(6), a defendant may move to dismiss an action when the plaintiff fails to state a claim for which he can recover. In these circumstances, Plaintiff does not state a valid claim under the Indiana State Constitution or under Indiana State law; therefore, his claims must be dismissed.

Appellant’s Appendix Vol. 2 at 22. Williams filed a memorandum with her

motion. Related to venue, Williams noted that the only party with any

connection to Jennings County was Kilgore and that the NCP was not located

in Jennings County. Because the claims against Williams and Corizon were

improperly joined with the claims against Kilgore pursuant to Ind. Trial Rule

20(A), Williams argued that these claims should be severed and venue

transferred to Henry County, where NCP is located.

[8] On September 25, 2018, the trial court issued the following order:

ORDER TO DISMISS/CORRECT VENUE

Comes now the Defendant, Anita Williams, by counsel and files herein a Motion to Dismiss due to improper venue and the Court having read said motion and the Plaintiff’s response thereto hereby finds that said motion should be granted.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-2840 | June 12, 2019 Page 4 of 6 IT IS THEREFORE ORDERED by the Court that the Defendant, Anita Williams is hereby dismissed as a party to this cause of action, effective immediately.

Appellant’s Appendix Vol. 2 at 13. Thereafter, Ivy filed a motion to correct error,

arguing in part that “the Court should have severed [Williams] as a party to this

suit and ordered venue transferred to Henry County instead” of outright

dismissing the lawsuit against her. The trial court did not rule on the motion to

correct error, and it was deemed denied on or about November 15, 2018. Ivy

now appeals.

Discussion & Decision

[9] On appeal, Ivy argues that his claims against Williams should not have been

dismissed for failure to state a claim, pursuant to T.R. 12(B)(6). Williams

disagrees and also argues that Ivy’s appeal is premature because the dismissal as

to only Williams was not a final judgment.

[10] Ind. Appellate Rule 14(A)(8) permits interlocutory appeals as a matter of right

for orders “[t]ransferring or refusing to transfer a case under Trial Rule 75”.

The first ground asserted in Williams’s motion to dismiss was based on T.R.

12(B)(3) and T.R. 75, claiming improper venue and seeking transfer to a county

of preferred venue. As noted above, the trial court’s order is exceedingly vague,

directly referencing the improper venue ground and saying nothing of the T.R.

12(B)(6) ground. Despite seemingly dismissing for improper venue, the trial

court did not order the case transferred to Henry County. See T.R. 75(B)(1)

Court of Appeals of Indiana | Memorandum Decision 18A-MI-2840 | June 12, 2019 Page 5 of 6 (“Whenever a claim or proceeding is filed which should properly have been

filed in another court of this state, and proper objection is made, the court in

which such action is filed shall not then dismiss the action, but shall order the

action transferred to the court in which it should have been filed.”) (emphasis

supplied).

[11] We conclude that this order is an appealable interlocutory order pursuant to

App. R. 14(A)(8) that requires clarification and/or correction. On remand, the

trial court is directed to expressly determine whether preferred venue lies in

Jennings County. If it does not, then the court shall transfer the matter to

Henry County, as there appears to be no dispute that Henry County is a county

of preferred venue. If transfer is not appropriate, the trial court shall consider

whether Ivy has a claim against Williams for which relief can be granted.

[12] Remanded.

Kirsch, J. and Vaidik, C.J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-2840 | June 12, 2019 Page 6 of 6