observing that Ind. Evidence Rule 201(b)(5) “now permits courts to take judicial notice of ‘records of a court of this state,’” and that such records are presumptively sources of facts “that cannot reasonably be questioned”
How later courts described this case
- observing that Ind. Evidence Rule 201(b)(5) “now permits courts to take judicial notice of ‘records of a court of this state,’” and that such records are presumptively sources of facts “that cannot reasonably be questioned”
- “If a plaintiff seeks to sue public officials in their personal capacities or in both their personal and official capacities, the plaintiff should expressly state so in the complaint.”
- “One indicia of the capacity in which a government agent has been sued under § 1983 is the language of the caption of the case.”
- no absolute judicial immunity for parole officers’ actions involving “day-to-day duties in the supervision of a parolee”
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 20 2018, 5:50 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Antwoin Richmond Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antwoin Richmond, November 20, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-833
v. Appeal from the Marion Superior
Court
Drew Adams, Melissa Pine, and The Honorable John F. Hanley,
John Doe #1, Judge
Appellees-Defendants Trial Court Cause No.
49D11-1712-CT-46012
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018 Page 1 of 6
[1] Antwoin Richmond filed a pro-se complaint against Drew Adams, Melissa
Pine, and John Doe #1 (collectively, Defendants) under 42 U.S.C. § 1983. He
sought to amend his original complaint as a matter of course pursuant to Ind.
Trial Rule 15(A), but the trial court never ruled on the motion to amend.
About this same time, the Defendants filed a motion to dismiss the original
complaint pursuant to Ind. Trial Rule 12(B)(6). The trial court summarily
granted the motion to dismiss with prejudice. Richmond filed a motion to
correct error, emphasizing that he had moved to amend his complaint before
the dismissal was sought or granted. The trial court summarily denied the
motion to correct error. We agree with Richmond that he had a right to amend
his complaint, and the trial court erred by failing to grant him leave to do so
and then dismissing the original complaint for failure to state a claim.
[2] We reverse and remand.
Facts & Procedural History
[3] In December 2007, Richmond pled guilty to Class A felony child molesting and
was sentenced to twenty years. He was released on parole in February 2013.
On April 21, 2016, Richmond was instructed by Pine, his parole agent, to
report to the parole office. Richmond did as requested and was administered a
urine test, which another parole agent, John Doe #1, determined was
adulterated or diluted. This, along with other evidence, led to the swift
revocation of Richmond’s parole and his return to the Indiana Department of
Correction (DOC).
Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018 Page 2 of 6
[4] Richmond filed his original complaint on December 14, 2017, alleging that the
testing procedures used by Pine and John Doe #1, and approved by their
supervisor Adams, failed to comply with established DOC requirements in
several respects. He also alleged malicious and nefarious intent in this regard
and claimed the Defendants violated his constitutional rights, including his
right to due process.
[5] On January 10, 2018, before any responsive pleading was filed, Richmond filed
an amended complaint. The trial court then directed Richmond to submit a
motion and proposed order. Accordingly, on February 2, 2018, Richmond filed
three documents with the trial court: a motion to amend civil complaint; an
amended verified civil complaint; and, a proposed order granting plaintiff’s
motion to amend civil complaint.1 We note that the captions for these
documents, as well as all subsequently filed by Richmond, indicate that the
Defendants were being sued in their official and personal capacities. The trial
court did not rule on the motion to amend the complaint.
[6] On February 9, 2018, the Defendants filed a motion to dismiss the original
complaint for failure to state a claim upon which relief may be granted. The
1
We note that several relevant documents that were filed with the trial court are not included in the
appendices filed on appeal. Thus, we have taken judicial notice of the documents filed with the trial court,
which we have obtained via the Odyssey case management system. See Horton v. State, 51 N.E.3d 1154,
1160-61 (Ind. 2016) (observing that Ind. Evidence Rule 201(b)(5) “now permits courts to take judicial notice
of ‘records of a court of this state,’” and that such records are presumptively sources of facts “that cannot
reasonably be questioned”); see also Ind. Appellate Rule 27 (providing that the “Record on Appeal…consist[s]
of the Clerk’s Record and all proceedings before the trial court…whether or not transcribed or transmitted to
the Court on Appeal”).
Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018 Page 3 of 6
Defendants argued that they were entitled to judicial immunity and that they
had complied with the requirements of due process. Richmond filed a
document with the trial court strongly opposing the motion to dismiss. The
trial court, however, summarily granted the motion to dismiss.
[7] On or about March 21, 2018, Richmond mailed from prison both a motion to
correct error and a notice of appeal. In his motion to correct error, Richmond
noted that the trial court had failed to rule upon his motion to amend the
complaint. Richmond observed that he had a right to amend his complaint
pursuant to T.R. 15(A). Additionally, he cited relevant authority and argued
that the Defendants did not have immunity for their activities involving the
collection and handling of the urine sample. See e.g., Dawson v. Newman, 419
F.3d 656, 662 (7th Cir. 2005) (no absolute judicial immunity for parole officers’
actions involving “day-to-day duties in the supervision of a parolee”).
[8] The trial court denied Richmond’s motion to correct error on May 4, 2018,
about two weeks after the notice of completion of clerk’s record had been noted
on the CCS and, thus, after this court had acquired jurisdiction. See Ind.
Appellate Rule 8. The denial of the motion to correct error is, therefore, for
naught. See Snemis v. Mills, 24 N.E.3d 468, 470 n.2 (Ind. Ct. App. 2014).
Richmond now appeals. Additional information will be provided as needed.
Discussion & Decision
[9] Richmond contends that the trial court improperly dismissed his complaint
without ruling on his motion to amend. Additionally, he argues that the
Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018 Page 4 of 6
Defendants’ mishandling of his urine sample was not subject to absolute
immunity and that he sufficiently pled a violation of his due process rights.
[10] On appeal, the Defendants have abandoned the arguments raised in their
motion to dismiss. Their new argument is that they were sued only in their
official capacity and that “[n]either the State nor its officials are ‘persons’ who
may be sued for damages under Section 1983.” Appellees’ Brief at 8. This
argument is disingenuous.
[11] As observed by the Defendants, we may look to the language of the caption of
the case to determine whether a defendant is being sued in his or her personal
or official capacity, or both. See Lake Cty. Juvenile Court v. Swanson, 671 N.E.2d
429, 434 (Ind. Ct. App. 1996) (“If a plaintiff seeks to sue public officials in their
personal capacities or in both their personal and official capacities, the plaintiff
should expressly state so in the complaint.”), trans. denied; Crawford v. City of
Muncie, 655 N.E.2d 614, 620 (Ind. Ct. App. 1995) (“One indicia of the capacity
in which a government agent has been sued under § 1983 is the language of the
caption of the case.”), trans. denied.
[12] Richmond’s amended complaint, filed on February 2, 2018, clearly indicates
that the Defendants are being sued in their “official and personal capacity”.
Amended Verified Civil Complaint at 1 (document obtained from Odyssey).
Further, it is well established that amendments to pleadings are to be liberally
allowed and that “[a] party may amend his pleading once as a matter of course
at any time before a responsive pleading is served”. T.R. 15(A); Rusnak v. Brent
Court of Appeals of Indiana | Memorandum Decision 18A-CT-833 | November 20, 2018 Page 5 of 6
Wagner Architects, 55 N.E.3d 834, 842 (Ind. Ct. App. 2016), trans. denied.
Richmond timely sought to amend his complaint and was entitled to do so.
The trial court erred by not allowing the amendment and by, instead,
dismissing the original complaint.
[13] We reverse the dismissal and direct the trial court on remand to proceed under
the amended complaint.
Brown, J. and Tavitas, J., concur.
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