James Griffith v. Indiana Department of Corrections (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 05 2019, 9:20 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE James Griffith Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana

Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Griffith, February 5, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-993 v. Appeal from the Sullivan Superior Court Indiana Department of The Honorable Hugh R. Hunt, Corrections, Judge Appellee-Defendant. Trial Court Cause No. 77D01-1701-CT-35

Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CT-993 | February 5, 2019 Page 1 of 12

Case Summary [1] State prisoner1 James F. Griffith filed a complaint against the Indiana

Department of Correction (the DOC), as well as Correctional Officer R.

Brewer, Sergeant J. Lundy, and Correctional Officer F. Brannick, in their

official and individual capacities, alleging that the three officers either stole or

negligently lost some of his personal property while he was being temporarily

housed in segregation at the Wabash Valley Correctional Facility (WVCF).

Griffith filed a motion for summary judgment, and the DOC and the three

officers (collectively, the State Defendants) filed a response to Griffith’s motion

as well as a cross-motion for summary judgment.2 The trial court denied

Griffith’s motion for summary judgment and, later, it granted the State

Defendants’ cross-motion for partial summary judgment. Following the denial

of his motion to correct error, Griffith, pro se,3 appeals and raises two issues

relative to the propriety of the trial court’s grant of partial summary judgment in

favor of the State Defendants. Because we find that the trial court’s order on

summary judgment was not a final, appealable order, we dismiss Griffith’s

appeal.

1 Griffith is serving a life sentence for a murder conviction. 2 Although not captioned as such, and as we discuss later in this decision, we find that the State Defendants’ cross-motion is a motion for partial summary judgment, as it sought judgment on Griffith’s negligence claim but did not address Griffith’s theft claim. Accordingly, in our decision today, we refer to the State Defendants’ motion as a cross-motion for partial summary judgment. 3 At all times discussed in this decision, Griffith was proceeding pro se.

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Facts & Procedural History [2] On April 25, 2016, Griffith received a conduct report for threatening another

offender, and he was moved to segregation. Because Griffith had items of

personal property in his regular cell that, pursuant to DOC policy, he could not

take with him to segregation, Correctional Officer Brewer inventoried the items

and Sergeant Lundy signed the inventory list as a witness, and they placed the

items in storage in a property room. They had no further interaction with

Griffith’s property. On June 2, 2016, Griffith was released from the segregation

unit and returned to the general population. Correctional Officer Brannick

inventoried Griffith’s personal property on June 6, 2016. By all accounts, some

items listed on the April 25, 2016 inventory were not included on the June 6,

2016 inventory. The storage room was searched, but none of Griffith’s missing

property was found. [3] Griffith filed an informal grievance with the DOC, and on July 18, 2016, the

DOC issued a response that Griffith failed to list the missing items and further,

pursuant to policy, “personal property is non-grievable.” Appellees’ Appendix

Vol. 2 at 38. On August 5, 2016, Griffith mailed a Notice of Tort Claim to the

commissioner of the DOC, the Indiana Attorney General, and the

Superintendent of WVCF concerning his claims relating to his missing

property. WVCF’s tort claim investigator, Teresa Littlejohn, investigated

Griffith’s Notice of Tort Claim. On December 5, 2016, she issued a

Recommendation on Tort Claim finding that, based on the documentation

available and the statements she obtained, which included statements from

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Sergeant Lundy and Officer Brewer, she was “recommending this claim be

paid” because “no one [she] contacted could account for what happened to the

property after it was placed in the storage room.” Appellant’s Appendix Vol. II at

28. Griffith did not receive a response from the Attorney General relative to

his Notice of Tort Claim in ninety days, and it was deemed denied. 4 [4] On February 2, 2017, Griffith filed a Civil Tort Action Complaint “concerning

the theft or loss of this personal property, valued at $571.65.” Appellees’

Appendix Vol. 2 at 2. He alleged that officers Brewer, Lundy, and/or Brannick 5

either stole or failed to exercise due care with regard to the property that was

missing from the June 2, 2016 inventory. Griffith alleged that “[t]o the extent

that defendants Brewer, Lundy and or [Brannick] did not steal . . . [his] lost

property, [the DOC] is liable for defendants Brewer’s, Lundy’s and/or

[Brannick]’s negligence in losing [Griffith]’s property.” Id. at 4. [5] On August 16, 2017, Griffith filed a motion for summary judgment and

designated evidence. In asserting that there were no material facts in dispute

and that he was entitled to judgment as a matter of law, Griffith relied in part

on Littlejohn’s recommendation that his tort claim be paid and argued that “by

4 See Ind. Code § 34-43-3-11 (“Within ninety (90) days of the filing of a claim, the governmental entity shall notify the claimant in writing of its approval or denial of the claim. A claim is denied if the governmental entity fails to approve the claim in its entirety within ninety (90) days, unless the parties have reached a settlement before the expiration of that period.”). 5 In his initial complaint, Griffith identified the officer who inventoried his property on June 2, 2016, as John/Jane Doe because the signature on the inventory was not legible, and, with the court’s permission, he later amended the complaint to name Officer Brannick.

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the State Defendant[s’] own admission the property was lost/stolen/or

destroyed.” Id. at 26. In support of his motion, Griffith designated evidence of

Littlejohn’s Recommendation on Tort Claim as well as her email requests to

staff about the matter, their responses, and the April 25, 2016 inventory list. [6] On September 21, 2017, the State Defendants filed a combined motion that

included both a response in opposition to Griffith’s motion for summary

judgment and a cross-motion for partial summary judgment, along with

designated evidence. In opposing Griffith’s motion, the State Defendants

asserted that, although DOC could not account for what happened to the

property, a genuine issue of material fact remained as to what caused the

property to be missing and whether the loss occurred because the State

Defendants breached a duty. In their cross-motion, the State Defendants

argued that they were entitled to governmental immunity on Griffith’s

negligence claims under the law enforcement immunity provision of the

Indiana Tort Claims Act (ITCA) because, at the time that the officers

inventoried and stored Griffith’s property, they were engaged in the

enforcement of law and were acting within the scope of their employment. The

State Defendants designated evidence, including Griffith’s complaint and

exhibits and DOC/WVCF Operational Procedures Policy 02-01-101, entitled

“Offender Personal Property,” that addresses procedure for inventorying and

storing an inmate’s personal property while he or she is housed in segregation. [7] The trial court issued an order denying Griffith’s motion for summary judgment

and giving Griffith thirty days to respond to the State Defendants’ cross-motion

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for partial summary judgment. On October 23, 2017, Griffith filed a motion to

voluntarily dismiss his complaint without prejudice. This motion listed his

current address at the New Castle Correctional Facility. On October 30, the

trial court denied his motion to dismiss, but gave Griffith an additional thirty

days in which to respond to the State Defendants’ cross-motion. The trial

court’s October 30 order was mailed to WVCF, although Griffith no longer was

housed there. [8] On December 7, 2017, the trial court issued an order granting the State

Defendants’ cross-motion for partial summary judgment as follows:

Whereas [Griffith] has failed to file a response together with any supporting affidavits to the [State] Defendants’ [Cross-]Motion for Summary Judgment in the time frame allotted by the Court in its order dated October 30, 3017, the Court hereby grants said Motion.

Appellant’s Appendix Vol. II at 8. [9] On January 5, 2018, Griffith filed a motion to correct error and supporting

memorandum, asking the trial court to set aside its December 7, 2017 order that

granted partial summary judgment in the State Defendants’ favor. Griffith

argued that (1) he did not receive the trial court’s October 30 order granting him

thirty additional days to respond because it was incorrectly mailed to WVCF,

and (2) he mailed to the trial court his response in opposition to the State

Defendants’ cross-motion on November 23, 2017, but that if the trial court did

not receive it, the prison officials were responsible for any delay in mailing it.

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In support of his motion to correct error, he identified three proposed exhibits:

(1) his response in opposition to the State Defendants’ cross-motion for partial

summary judgment, along with exhibits, (2) receipts and remittances related to

his mailing of the response, and (3) his own affidavit. Griffith thereafter

requested and received permission to file with the trial court his exhibits in

support of his motion to correct error, which included his response in

opposition to the State Defendants’ cross-motion, a supporting memorandum,

and designated exhibits, including DOC policies and administrative procedures

for offender personal property and for offender disciplinary restrictive status

housing, and the two inventory lists. [10] In his response in opposition to the State Defendants’ cross-motion for partial

summary judgment, Griffith referred to DOC/WVCF Policy and Procedure 02-

04-102, which states, “Personal property not allowed for possession by an

offender in a facility disciplinary restrictive status housing unit shall be secured

in a second personal property storage box and stored in the disciplinary

restrictive status housing unit property room.” Id. at 83 (emphasis in original);

see also id. at 113 (page 7 of Policy Number 02-04-102).6 Griffith argued that it

was a “clear breach” of the State Defendants’ duty to secure his property while

it was in the State Defendants’ possession, or, alternatively, that questions of

fact remained as to causation precluding summary judgment in the State

6 We note that Griffith’s manual pagination of his Appendix does not always match the pagination reflected by the Clerk’s office after electronic filing. We will refer to the electronic page numbers.

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Defendants’ favor. Id. at 82. In addition to the above arguments concerning

the State Defendants’ alleged negligence, Griffith argued that the State

Defendants were not immune under the ITCA, asserting that DOC policy

required staff to inventory and store Griffith’s property, which prison staff did

not properly do given that some of his property was missing, and therefore, the

State Defendants were not acting within the scope of their employment and

were not immune from liability. [11] On January 25, 2018, after having reviewed Griffith’s exhibits to his motion to

correct error, i.e., Griffith’s response to the State Defendants’ cross-motion, as

well as his designated evidence, the trial court denied Griffith’s motion to

correct error. He now appeals.

Discussion & Decision [12] Griffith asserts that the trial court erred when it denied his motion to correct

error that sought to set aside the trial court’s December 7, 2017 order, which

provided:

Whereas [Griffith] has failed to file a response together with any supporting affidavits to the [State] Defendants’ [Cross-]Motion for Summary Judgment in the time frame allotted by the Court in its order dated October 30, 2017, the Court hereby grants said Motion.

Appellant’s Appendix Vol. II at 8. On appeal, the State Defendants properly

concede that it is improper for a court to grant summary judgment based on the

opposing party’s failure to respond, and, thus, it was error for the trial court in

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this case to grant summary judgment in favor of the State Defendants on this

basis. See Ind. Trial Rule 56 (“Summary judgment shall not be granted as of

course because the opposing party fails to offer opposing affidavits or

evidence[.]”). [13] The State Defendants urge that, even though it was error for the trial court to

grant their motion based on Griffith’s failure to respond, this court nevertheless

may affirm a summary judgment on any basis found in the record and that,

here, the State Defendants were entitled to summary judgment because they

were immune from liability under the ITCA. Specifically, the State Defendants

argue that that they are entitled to summary judgment because, even if

negligent conduct occurred, they are immune from liability pursuant to Ind.

Code § 34-13-3-3(8), commonly referred to as the law enforcement immunity

provision of the ITCA. The State Defendants maintain that, at the time of

Griffith’s loss, the correctional officers were “engaged in the enforcement of a

law” while they inventoried and stored Griffith’s property, which Griffith was

not allowed to possess while he was housed in segregation. Griffith contends

that the State Defendants are not immune because, given that it is undisputed

that some of his personal property is missing, one or more persons clearly failed

to properly secure and store his property and, as such, were not following policy

and were not “engaged in the enforcement of a law” as required by I.C. § 34-13-

3-3(8). [14] Based on the record before us, however, we are precluded from reaching the

merits of the case. The Indiana Court of Appeals has jurisdiction in all appeals

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from final judgments, except those wherein exclusive jurisdiction resides with

our Supreme Court. Ind. Appellate Rule 5(A). Whether an order is a final

judgment governs our subject matter jurisdiction, and it can be raised at any

time by any party or by the court itself. Bacon v. Bacon, 877 N.E.2d 801, 804

(Ind. Ct. App. 2007), trans. denied. Ind. Appellate Rule 2(H) defines final

judgments and states in relevant part:

A judgment is a final judgment if:

(1) it disposes of all claims as to all parties; [or]

(2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C) that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to fewer than all the issues, claims or parties[.]

[15] To fall under App. R. 2(H)(1), an order must dispose of all issues as to all

parties, ending the particular case and leaving nothing for future determination.

Bacon, 877 N.E.2d at 804. Here, the State Defendants acknowledge that their

cross-motion for summary judgment – which the trial court granted, albeit on

an improper basis – asserted that they were entitled to judgment on Griffith’s

negligence claims (on the basis that they were protected by immunity under the

ITCA), but their cross-motion did not address Griffith’s theft claims as raised in

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his complaint.7 Consequently, the order did not dispose of all issues as to all

parties and was not a final, appealable order under App. R. 2(H)(1). The trial

court in this case did not expressly determine there was no just reason for delay

and direct entry of judgment as outlined in App. R. 2(H)(2). Accordingly, the

order was not final, and Griffith cannot appeal unless the order is an appealable

interlocutory order. [16] An interlocutory order is one made before a final hearing on the merits and

requires something to be done or observed but does not determine the entire

controversy. Bacon, 877 N.E.2d at 804. The Indiana Court of Appeals has

jurisdiction “over appeals of interlocutory orders under Rule 14.” App. R. 5(B).

While certain interlocutory orders may be appealed “as a matter of right,” the

current order is not one of them. See App. R. 14(A) (listing nine types of orders

that qualify). An interlocutory order also may be appealed “if the trial court

certifies its order and the Court of Appeals accepts jurisdiction over the appeal.”

App. R. 14(B). No such certification and acceptance occurred here. [17] Because the order from which Griffith appeals is neither a final judgment nor

an interlocutory order appealable as of right, and Griffith neither sought nor

received permission to file a discretionary interlocutory appeal, we dismiss this

7 The State Defendants concede that their cross-motion “addressed only Griffith’s claim for negligence, not the theft claim” and suggest that because “the trial court did not properly address Griffith’s allegation of theft, [] that issue should be remanded for further briefing and review.” Appellees’ Brief at 11; see also id. at 15 (“Griffith’s allegation of theft was not properly addressed by the trial court and should be remanded for further review.”).

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appeal. See Radbel v. Radbel v. Midwestern Elec., Inc., 550 N.E.2d 340, 341 (Ind.

Ct. App. 1990) (dismissing appeal after determining, sua sponte, that trial

court’s entry of partial summary judgment was not final, appealable order). [18] Appeal dismissed.

Brown, J. and Tavitas, J., concur.

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