Lyndale R. Ivy v. Mary Dorsett Kilgore, Anita Williams, and Corizon, Inc. (mem. dec.) ( 2019 )

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
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[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
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[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.
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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)
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(“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.
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