Melissa Burklow v. Dearborn County and Dearborn County Sheriff (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 31, 2017
• Docket: 15A05-1611-PL-2519
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 08/31/2017, 9:28 am this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES Robert Oakley Jeremy M. Dilts Carmel, Indiana Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

Melissa Burklow, August 31, 2017 Appellant-Plaintiff, Court of Appeals Case No. 15A05-1611-PL-2519 v. Appeal from the Dearborn Superior Court Dearborn County and Dearborn The Honorable Jonathan N. County Sheriff, Cleary, Judge Appellees-Defendants The Honorable Darrell Auxier, Special Judge Trial Court Cause No. 15D01-1409-PL-64

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 1 of 10 [1] Melissa Burklow appeals from the trial court’s grant of summary judgment in

favor of Dearborn County (the County) on her claim alleging violations of Title

II of the Americans with Disabilities Act (ADA) and in favor of the Dearborn

County Sheriff (the Sheriff) (collectively, the Defendants) with respect to her

claim for defamation.

[2] We affirm.

Facts & Procedural History

[3] Burklow has been diagnosed with narcolepsy and cataplexy. 1 Throughout the

course of 2011, Burklow was involved in a number of incidents involving the

Sheriff’s Department. Burklow reported that she had been the victim of identity

theft and made claims of theft of personal property and trespassing. In another

incident, a neighbor reported being bitten by Burklow’s dog. Officers

responding to these calls prepared police reports in which they noted the

difficulty in communicating with Burklow and/or commented on her

demeanor.

[4] On or about October 11, 2011, Burklow’s adult daughter called the Sheriff’s

Department out of concern for Burklow. Burlklow’s daughter reported that

Burklow had been “drinking wine all day” and had been in bed and was

1 Cataplexy is defined as “a condition characterized by sudden, brief attacks of muscle weakness sometimes causing the body to fall helplessly, that is usually triggered by strong emotion: often associated with narcolepsy.” www.dictionary.com/browse/cataplexy?s=t (last visited July 11, 2017).

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 2 of 10 “crying.” Appellant’s Appendix Vol. 2 at 60. Burklow’s daughter also reported

that when she tried to console Burklow, Burklow hit her in the face. Burklow

then left the residence and on her way out told her daughter that “she was going

to a parking lot and was going to shoot herself.” Id.

[5] Burklow returned home a couple hours later, and police were again dispatched

to her residence. After officers confronted Burklow, she began to suffer a

cataplectic episode in which she fell to the floor in a “curled up, stiff state.”2 Id.

at 61. The officer reported that Burklow could not move, but that she was able

to talk. Although Burklow was not arrested that day, she was eventually

charged with battery for striking her adult daughter.

[6] During the course of the investigation and prosecution of the battery charge and

for purposes related to the identity-theft matter, Burklow made numerous visits

to the Dearborn County Courthouse. Upon entering the courthouse, Burklow

verbally requested the use of a wheelchair due to her fear of suffering a

cataplectic episode. A wheelchair was provided on one occasion and she

borrowed a wheelchair for another. Burklow asserts that on other occasions her

wheelchair request was met “with suspicion and derision” or that she was

simply told that no wheelchairs were available. Appellant’s Brief at 10.

[7] Burklow maintains that she requested information from the County about how

to contact the County’s ADA Coordinator. Burklow asserts that the

2 Burklow refers to these episodes of cataplexy as a “seizure.” Appellant’s Brief at 8.

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 3 of 10 information was never provided to her and that she obtained the desired

information only after it was added to the County’s website in January 2013.

Thereafter, Burklow, with the help of her disability advocate, requested from

the Sheriff copies of the police reports concerning the criminal proceedings

involving her as well as reports related to her various interactions with police

throughout 2011. Burklow’s request was denied and it was explained to her

that such documents were not available for public access.

[8] In addition to the above legal proceedings, Burklow was involved in custody

proceedings with her ex-husband. In preparation therefor, Burklow met with

Bobbie Hopes, a clinical psychologist charged with conducting an evaluation

for the court’s consideration of the custody matter. Dr. Hopes had been

provided with police reports and various call sheets for incidents involving

Burklow,3 and Dr. Hopes discussed those matters with her. Dr. Hopes then

submitted a report to the court to assist with the custody determination. In her

report, Dr. Hopes discussed the various police reports and the information

contained therein, quoting specifically an officer’s statement that Burklow “was

a known abuser of perscription [sic] medication.”4 Appellant’s Appendix Vol. 2 at

45. Dr. Hopes also noted in her report the characterization in the police records

3 It is unclear from the record how Dr. Hopes became privy to the police and call reports. In any event, Burklow does not challenge the manner in which the reports were provided. 4 This police report was prepared on October 20, 2011.

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 4 of 10 that Burklow was a “mental person” and notations that Burklow was alleged to

have been diagnosed with “Bipolar Disorder.” Id.

[9] On September 23, 2014, Burklow filed a complaint alleging that the County

violated the ADA and that the Sheriff was liable for defamation. The

Defendants filed a motion for summary judgment on February 29, 2016. The

trial court held a summary judgment hearing on May 23, 2016. On August 10,

2016, the trial court entered its order granting summary judgment in favor of

the Defendants and expressly determined such to be a final, appealable

judgment. Burklow filed a motion to correct error, which the trial court denied.

Burklow now appeals. Additional facts will be provided as necessary.

Discussion & Decision

[10] We review summary judgment de novo, applying the same standard as the trial

court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). A party seeking

summary judgment must establish that “the designated evidentiary matter

shows that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). The

party moving for summary judgment bears the initial burden of establishing its

entitlement to summary judgment. Pfenning v. Lineman, 947 N.E.2d 392, 396-97

(Ind. 2011). “Only then does the burden fall upon the non-moving party to set

forth specific facts demonstrating a genuine issue for trial.” Id. at 397. The

reviewing court must construe the evidence in favor of the non-movant and

resolve all doubts against the moving party. Id. The party appealing the grant

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 5 of 10 of summary judgment has the burden of persuading this court that the ruling

was erroneous. See Perkins v. Stesiak, 968 N.E.2d 319, 321 (Ind. Ct. App. 2012),

trans. denied.

ADA

[11] Burklow argues that the trial court erred in granting summary judgment in favor

of the County with respect to her claims under the ADA. The County argues

that summary judgment was appropriate because Burklow’s ADA claims are

barred by the applicable statute of limitation. Even if timely filed, the

Defendants argue that Burklow’s claims fail on the merits.

[12] Congress enacted the ADA to eliminate discrimination and to create causes of

action for qualified people who have faced discrimination. See 42 U.S.C. §

12101(b). The ADA provides in pertinent part:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. The ADA requires that the public entity make “reasonable

modification” to allow the disabled person to receive the services or to

participate in the public entity’s programs. 28 C.F.R. § 35.130(b)(7).

[13] Burklow claims that the County violated the ADA when the County did not

provide her with her requested accommodation in the form of a wheelchair for

use during court hearings. The basis for Burklow’s request was her “fear of

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 6 of 10 possible injury” if she were “to suffer onset of cataplexy while appearing in

court.” Appellant’s Brief at 15. Burklow, however, cannot show that she was

entitled to a reasonable accommodation in the form of a wheelchair. In fact, it

is undisputed that Burklow has not been prescribed a wheelchair or other

assistive device and that she does not use a wheelchair when she is in any other

public area, including running errands or shopping. We conclude that

Burklow’s subjective fear does not support a finding that the County was

obligated under the ADA to provide her with her requested accommodation.

See Sistrunk v. Khan, 931 F.Supp.2d 849, 857 (N.D.Ill. 2013) (holding that

plaintiff’s preference to use a wheelchair did not give rise to a tenable claim

under the ADA). Thus, even if timely filed, Burklow’s ADA claim based on

the denial of her request for a wheelchair fails as a matter of law. Summary

judgment was therefore proper.

[14] Burklow also claims that she was denied equal access to information and was

treated in a discriminatory manner by individuals working for the County. As

the basis for this claim, Burklow maintains that the County denied her requests

for police reports and information regarding the criminal proceedings against

her. The Sheriff designated evidence that Burklow’s request for the police

reports was denied because such records are not for public access. Burklow

makes no argument that the denial of her request was based on her disability.

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 7 of 10 Burklow’s ADA claim in this regard fails as a matter of law.5 As such,

summary judgment was properly granted.

Defamation

[15] Burklow argues that summary judgment was improperly granted as to her

defamation claim against the Sheriff. Burklow’s defamation claim is based on

officer’s statements included in police reports that were provided to Dr. Hope,

who incorporated the contents thereof in the psychological report she prepared

for the child custody proceedings. Burklow maintains that the Sheriff’s reports

contained false and inaccurate statements that had “a drastic affect [sic] on her

ability to successfully combat her ex-husband’s efforts to modify the custody of

their minor children.” Appellant’s Brief at 18. In support of its motion for

summary judgment, the Sheriff argues that Burklow’s defamation claim was

untimely filed. Even if timely filed, the Sheriff argues that qualified immunity

defeats Burklow’s defamation claim.

[16] To maintain an action for either per se or per quod defamation the plaintiff

must demonstrate (1) a communication with defamatory imputation; (2)

5 To the extent Burklow claims that the County’s failure to provide her with the contact information for the County’s ADA coordinator amounts to an ADA violation, Burklow has failed to provide cogent argument to support such a position. Burklow cites 28 C.F.R. § 35.163, which concerns the requirement that a public entity provide information and signage at inaccessible entrances to the public entity’s facilities that directs users to accessible entrances or a location where they can obtain information about accessible facilities. Burklow baldly asserts that such provision obligated the County to provide her the information she requested. Further, there is no evidence that even remotely suggests that the denial of her information request was in any way related to her disability. Thus, even accepting Burklow’s allegations as true, she fails to state a tenable claim under the ADA.

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 8 of 10 malice; (3) publication; and (4) damages. Kelley v. Tanoos, 865 N.E.2d 593, 596-

97 (Ind. 2007). The qualified privilege doctrine operates to protect

“communications made in good faith on any subject matter in which the party

making the communication has an interest or in reference to which he has a

duty, either public or private, either legal, moral, or social, if made to a person

having a corresponding interest or duty.” Kelley v. Tanoos, 865 N.E.2d 593, 597

(Ind. 2007) (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992)).

[17] As a defense to defamation, the qualified privilege operates not to “change the

actionable quality of the words published, but merely [to] rebut[] the inference

of malice that is [otherwise] imputed.” Holcomb v. Walter’s Dimmick Petroleum,

Inc., 858 N.E.2d 103, 106 (Ind. 2006) (internal quotation marks omitted). To

merit its protection, “[t]he burden is upon the defendant in the first instance to

establish the existence of a privileged occasion for the publication, by proof of a

recognized public or private interest which would justify the utterance of the

words.” Bals, 600 N.E.2d at 1356. In the absence of a factual dispute, the

applicability of the privilege is a question of law to be determined by the court.

Id. (citing Bals, 600 N.E.2d at 1356).

[18] The facts here are not in dispute. The alleged defamatory statements originated

in police records that were produced in conjunction with the incidents involving

Burklow. Notations in the police records that Burklow may abuse prescription

medication and that she had been diagnosed with bipolar disorder were

documented as they were reported by others to the responding officer. These

undisputed facts cannot support a finding of malice. The alleged defamatory

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 9 of 10 communications were clearly made in good faith by officers acting in the course

of their duties by documenting their interactions with Burklow. Such

statements fall within the qualified privilege doctrine.

[19] We further note that, at the very least, Burklow cannot establish the publication

element of a defamation claim. The reports were internal documents and only

produced to Dr. Hope who was charged with conducting an evaluation for

purposes of a judicial proceeding regarding custody. Assuming Burklow’s

defamation claim was timely filed, we conclude that the undisputed facts

establish that such claim cannot succeed as a matter of law. Summary

[20] Judgment affirmed.

[21] Kirsch, J. and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A05-1611-PL-2519 | August 31, 2017 Page 10 of 10