MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 29 2019, 8:40 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEES Rebekah A. Atkins STEVEN E. RIPSTRA, SCOTT Marengo, Indiana BLAZEY, ARTHUR C. NORDHOFF, JR., AND JACOB WAHL Steven E. Ripstra Ripstra Law Office Jasper, Indiana
ATTORNEYS FOR APPELLEE ATTORNEY GENERAL CURTIS T. HILL, JR.
Curtis T. Hill, Jr. Attorney General of Indiana
Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 1 of 7 Rebekah A. Atkins, April 29, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-MI-2491 v. Appeal from the Dubois Superior Court Steven E. Ripstra, Scott Blazey, The Honorable Mark R. Arthur C. Nordhoff, Jr., Jacob McConnell, Judge Wahl, John E. Birk, and Curtis Trial Court Cause No. T. Hill, Jr., 19D01-1808-MI-559 Appellees-Defendants.
Shepard, Senior Judge.
[1] Rebekah Atkins appeals the trial court’s grant of the Appellees’ motions to
dismiss. We affirm.
[2] This case stems from Atkins’s assertion that on June 2, 2017, she was informed
by unnamed law enforcement officers that her identity had been stolen and was
being used in “numerous false & fraudulent lawsuits (scams) in Indiana Courts
without [her] permission or knowledge.” Appellant’s App. Vol. 2, p. 21. She
believed “that all these ID theft & Lawsuits Scams are illegally filed and
illegally hidden under a judge’s seal in the Courts; and [she] is systematically
blocked and denied all access.” Id.
[3] The case began on August 22, 2018, when, instead of filing a civil complaint,
Atkins filed the following documents in the Dubois Superior Court: (1)
“Verified Motion[s]” for the trial court to order Arthur Nordhoff, John Birk,
and the Ripstra Law Office “to Release to Plaintiff All Files and Court
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 2 of 7 Documents Cases/Records in/with Plaintiff’s Identity;” (2) “Verified Motion
for this Court to Issue an Order to Curtis Theophilus Hill–Indiana Attorney
General to Release to Plaintiff all Files and Court Documents Cases/Records
in/with Plaintiff’s Identity;” and (3) “Verified Motion for this Court to Set a
Hearing in the Matter of the Above Attorneys Participating and Perpetrating ID
Theft, Scam Lawsuits & Barratry Against Plaintiff in Numerous Courts and
Illegally Sealed Lawsuits Without Plaintiff’s Knowledge or Permission”
(“Motion to Set Hearing”). Id. at 6-7.
[4] In summary, Atkins alleged that defendants Steven Ripstra, Scott Blazey, and
Jacob Wahl (all attorneys) had claimed “that they represent Plaintiff to
numerous courts and to numerous Defendants in the matter of ID Theft &
Lawsuits Scams under a Judge’s Seal being perpetrated against Plaintiff,” that
the three defendants had “never represented Plaintiff in any matter what so
ever,” and that the “Conduct of these Defendants are injurious and destructive
against Plaintiff.” Id. at 18. She further alleged that Nordhoff, “the current
Dubois County Attorney,” has failed to provide documents to her even though
he is allegedly “defending lawsuits in Plaintiff’s identity . . . which are filed
illegally against Dubois County Government officials & agencies/entities.” Id.
at 19. Next, Atkins claimed Birk “appears to be involved somehow; but he
refuses to provide any documents.” Id. at 18. She also alleged that “Defendant
[Curtis T. Hill,] the current Elected Indiana Attorney General [sic] refuses to
meet with Plaintiff, refuses to release any court documents to Plaintiff or help
Plaintiff in this matter.” Id. at 18.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 3 of 7 [5] Atkins asked for: an injunction requiring that defendants “cease[ ] and desist[ ]
in their injurious and grievous misconduct against Plaintiff,” Id. at 19, and an
order directing the defendants to “release to Plaintiff all claimed client files,
court cases/records/documents in/with or pertain to Plaintiff’s identity and in
regards to all lawsuits, legal actions and or [sic] actions or any documents in
regards to these matters.” Id. at 22.
[6] Attorneys Ripstra, Blazey, Wahl, and Nordhoff filed a joint response, asking
the court to dismiss Atkins’s claims for failure to state a claim upon which relief
can be granted, under Indiana Trial Rule 12(B)(6). Attorney General Hill filed 1 a similar motion. The court granted both motions, and this appeal followed.
[7] Atkins argues the court should have: denied the motions to dismiss; issued an
order setting the matter for a hearing; required the attorneys to release to Atkins
all requested files; and show cause as to why they should not be held in 2 contempt of court. Appellant’s Br. p. 28.
[8] We initially note that Atkins is proceeding pro se. Pro se litigants are held to
the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980,
983 (Ind. Ct. App. 2016). “We will not become an ‘advocate for a party, or
1 On September 14, 2018, the trial court granted a separate motion to dismiss as to Defendant (now Appellee) John Birk. Birk has not filed a brief in this appeal. However, a party of record in the trial court shall be a party on appeal. Ind. Appellate Rule 17(A). 2 It does not appear that Atkins raised the matter of contempt of court in her trial court pleadings. Issues not raised at the trial court are waived on appeal. Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 4 of 7 address arguments that are inappropriate or too poorly developed or expressed
to be understood.’” Id. at 934 (quoting Perry v. Anonymous Physician 1, 25
N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied).
[9] Atkins argues the court should have held a hearing on the motions to dismiss,
but Rule 12(B)(6) does not require a court to hold a hearing or oral argument
“when the motion is addressed to the face of the complaint and not supported
by matters outside the pleadings.” Cobb v. Owens, 492 N.E.2d 19, 20 (Ind.
1986). In this case, the motions to dismiss were directed to the face of the
various documents Atkins filed with the trial court.
[10] We next turn to whether the court erred in granting the motions to dismiss.
Our standard of review under Indiana Trial Rule 12(B)(6) is well established:
A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Thus, our review of a trial court’s grant or denial of a motion based on Indiana Trial Rule 12(B)(6) is de novo.
When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant’s favor.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 29 2019, 8:40 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEES Rebekah A. Atkins STEVEN E. RIPSTRA, SCOTT Marengo, Indiana BLAZEY, ARTHUR C. NORDHOFF, JR., AND JACOB WAHL Steven E. Ripstra Ripstra Law Office Jasper, Indiana
ATTORNEYS FOR APPELLEE ATTORNEY GENERAL CURTIS T. HILL, JR.
Curtis T. Hill, Jr. Attorney General of Indiana
Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 1 of 7 Rebekah A. Atkins, April 29, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-MI-2491 v. Appeal from the Dubois Superior Court Steven E. Ripstra, Scott Blazey, The Honorable Mark R. Arthur C. Nordhoff, Jr., Jacob McConnell, Judge Wahl, John E. Birk, and Curtis Trial Court Cause No. T. Hill, Jr., 19D01-1808-MI-559 Appellees-Defendants.
Shepard, Senior Judge.
[1] Rebekah Atkins appeals the trial court’s grant of the Appellees’ motions to
dismiss. We affirm.
[2] This case stems from Atkins’s assertion that on June 2, 2017, she was informed
by unnamed law enforcement officers that her identity had been stolen and was
being used in “numerous false & fraudulent lawsuits (scams) in Indiana Courts
without [her] permission or knowledge.” Appellant’s App. Vol. 2, p. 21. She
believed “that all these ID theft & Lawsuits Scams are illegally filed and
illegally hidden under a judge’s seal in the Courts; and [she] is systematically
blocked and denied all access.” Id.
[3] The case began on August 22, 2018, when, instead of filing a civil complaint,
Atkins filed the following documents in the Dubois Superior Court: (1)
“Verified Motion[s]” for the trial court to order Arthur Nordhoff, John Birk,
and the Ripstra Law Office “to Release to Plaintiff All Files and Court
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 2 of 7 Documents Cases/Records in/with Plaintiff’s Identity;” (2) “Verified Motion
for this Court to Issue an Order to Curtis Theophilus Hill–Indiana Attorney
General to Release to Plaintiff all Files and Court Documents Cases/Records
in/with Plaintiff’s Identity;” and (3) “Verified Motion for this Court to Set a
Hearing in the Matter of the Above Attorneys Participating and Perpetrating ID
Theft, Scam Lawsuits & Barratry Against Plaintiff in Numerous Courts and
Illegally Sealed Lawsuits Without Plaintiff’s Knowledge or Permission”
(“Motion to Set Hearing”). Id. at 6-7.
[4] In summary, Atkins alleged that defendants Steven Ripstra, Scott Blazey, and
Jacob Wahl (all attorneys) had claimed “that they represent Plaintiff to
numerous courts and to numerous Defendants in the matter of ID Theft &
Lawsuits Scams under a Judge’s Seal being perpetrated against Plaintiff,” that
the three defendants had “never represented Plaintiff in any matter what so
ever,” and that the “Conduct of these Defendants are injurious and destructive
against Plaintiff.” Id. at 18. She further alleged that Nordhoff, “the current
Dubois County Attorney,” has failed to provide documents to her even though
he is allegedly “defending lawsuits in Plaintiff’s identity . . . which are filed
illegally against Dubois County Government officials & agencies/entities.” Id.
at 19. Next, Atkins claimed Birk “appears to be involved somehow; but he
refuses to provide any documents.” Id. at 18. She also alleged that “Defendant
[Curtis T. Hill,] the current Elected Indiana Attorney General [sic] refuses to
meet with Plaintiff, refuses to release any court documents to Plaintiff or help
Plaintiff in this matter.” Id. at 18.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 3 of 7 [5] Atkins asked for: an injunction requiring that defendants “cease[ ] and desist[ ]
in their injurious and grievous misconduct against Plaintiff,” Id. at 19, and an
order directing the defendants to “release to Plaintiff all claimed client files,
court cases/records/documents in/with or pertain to Plaintiff’s identity and in
regards to all lawsuits, legal actions and or [sic] actions or any documents in
regards to these matters.” Id. at 22.
[6] Attorneys Ripstra, Blazey, Wahl, and Nordhoff filed a joint response, asking
the court to dismiss Atkins’s claims for failure to state a claim upon which relief
can be granted, under Indiana Trial Rule 12(B)(6). Attorney General Hill filed 1 a similar motion. The court granted both motions, and this appeal followed.
[7] Atkins argues the court should have: denied the motions to dismiss; issued an
order setting the matter for a hearing; required the attorneys to release to Atkins
all requested files; and show cause as to why they should not be held in 2 contempt of court. Appellant’s Br. p. 28.
[8] We initially note that Atkins is proceeding pro se. Pro se litigants are held to
the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980,
983 (Ind. Ct. App. 2016). “We will not become an ‘advocate for a party, or
1 On September 14, 2018, the trial court granted a separate motion to dismiss as to Defendant (now Appellee) John Birk. Birk has not filed a brief in this appeal. However, a party of record in the trial court shall be a party on appeal. Ind. Appellate Rule 17(A). 2 It does not appear that Atkins raised the matter of contempt of court in her trial court pleadings. Issues not raised at the trial court are waived on appeal. Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 4 of 7 address arguments that are inappropriate or too poorly developed or expressed
to be understood.’” Id. at 934 (quoting Perry v. Anonymous Physician 1, 25
N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014), trans. denied).
[9] Atkins argues the court should have held a hearing on the motions to dismiss,
but Rule 12(B)(6) does not require a court to hold a hearing or oral argument
“when the motion is addressed to the face of the complaint and not supported
by matters outside the pleadings.” Cobb v. Owens, 492 N.E.2d 19, 20 (Ind.
1986). In this case, the motions to dismiss were directed to the face of the
various documents Atkins filed with the trial court.
[10] We next turn to whether the court erred in granting the motions to dismiss.
Our standard of review under Indiana Trial Rule 12(B)(6) is well established:
A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Thus, our review of a trial court’s grant or denial of a motion based on Indiana Trial Rule 12(B)(6) is de novo.
When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant’s favor. A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief.
Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604-05 (Ind. 2007) (internal
citations omitted). We will affirm the trial court’s grant of a motion to dismiss
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 5 of 7 “if it is sustainable on any theory or basis found in the record.” Newman v.
Deiter, 702 N.E.2d 1093, 1097 (Ind. Ct. App. 1998), trans. denied.
[11] Attorneys Ripstra, Blazey, Wahl, and Nordhoff claim that Atkins is, in
substance, seeking pre-lawsuit discovery without stating any actual facts upon
which such discovery could be ordered. We agree. Atkins asserts that this case
is “neither a civil lawsuit nor a tort per se . . . but [an action on] a
contract/obligation owed to the Appellant.” Appellant’s Br. p. 24. Under
limited circumstances, a person may request court permission to conduct
depositions prior to filing suit, but the person must state “the facts which he
desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it.” Ind. Trial Rule 27. There is no procedure under the Indiana
Trial Rules for pre-lawsuit requests for documents.
[12] Turning to Attorney General Hill, the Indiana Supreme Court has recognized
that the Attorney General is protected by absolute immunity for acts reasonably
within the general scope of authority granted to prosecuting attorneys. The
Court stated as follows in Foster v. Pearcy, 270 Ind. 533, 537, 387 N.E.2d 446,
449 (1979), while recognizing the existence of the immunity:
This decision will insure that the prosecutor will be able to exercise the independent judgment necessary to effectuate his duties to investigate and prosecute criminals and to apprise the public of his activities. It will also allay the apprehensions about harassment of prosecuting attorneys from unfounded litigation which deters public officials from their public duties.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 6 of 7 [13] A review of the record establishes that the acts Atkins alleges were within the
general scope of authority granted to the Attorney General. She does not argue
that Attorney General Hill has acted maliciously or outside the scope of his
employment. Atkins’s claims against Attorney General Hill, as alleged, are
barred by prosecutorial immunity.
[14] We conclude that the trial court did not err in dismissing Atkins’s claims
against all defendants pursuant to Trial Rule 12(B)(6). The judgment of the
trial court is affirmed.
Kirsch, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-MI-2491 | April 29, 2019 Page 7 of 7