author: BARNES, Judge.

text:
    Cody WALDRIP, Appellant-Plaintiff, v. Angela WALDRIP, City of Bloomington, Indiana, Monroe County, Indiana, State of Indiana, Appellees-Defendants.
    No. 53A01-1203-CT-135.
    Court of Appeals of Indiana.
    Sept. 20, 2012.

      Carl Paul Lamb, Carl Lamb and Associates, Bloomington, IN, Attorney for Appellant.
    Andrew P. Wirick, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, IN, Attorney for Appellee, City of Blooming-ton, Indiana.
    James S. Stephenson, Ian L. Stewart, Stephenson Morow & Semler, Indianapolis, IN, Attorney for Appellee, Monroe County, Indiana.
   OPINION

BARNES, Judge.

Case Summary

Cody Waldrip appeals the trial court’s dismissal of his complaint against Angela Waldrip (“Angela”), the City of Blooming-ton (“Bloomington”), and Monroe County. We affirm in part, reverse in part, and remand.

Issues

The issues before us are:

I. whether Waldrip’s appeal was timely filed;
II. whether the trial court properly granted Bloomington’s motion for judgment on the pleadings;
III. whether the trial court properly dismissed all of Waldrip’s claims against Angela; and
IV. whether the trial court properly dismissed all of Waldrip’s claims against Monroe County.

Facts

Waldrip alleges that on April 15, 2008, his then-wife, Angela Waldrip, falsely stated to Bloomington Police Department officers that Waldrip had battered her. The officers arrested Waldrip, and he was charged with Class D felony domestic battery. After Waldrip was arrested, Angela filed for and obtained a protective order against him through the Monroe County Circuit Court. On April 17, 2008, Angela stated to Bloomington Police Department officers that Waldrip had violated the protective order. An officer then located Waldrip and arrested him, and he was charged with Class A misdemeanor invasion of privacy.

At the time of these arrests, Angela was employed by the Monroe County Circuit Court as a court reporter. Additionally, Waldrip and Angela were preparing to divorce and Waldrip alleges that Angela made false criminal accusations against him in order to gain an advantage regarding custody of their children. Waldrip further alleges that Angela abused her position as an employee of the Monroe County Circuit Court in obtaining the protective order against Waldrip.

Waldrip alleges that he was incarcerated in the Monroe County Jail while awaiting trial. The Monroe County Prosecutor’s Office tried Waldrip before a jury in September 2009; the jury acquitted Waldrip. Waldrip accuses Angela of having committed perjury during this trial. After his acquittal in this trial, Waldrip continued to be held on other pending charges against him. On December 2, 2009, the prosecutor dismissed the remaining charges against Waldrip.

On December 14, 2009, Waldrip filed a tort claims notice against Monroe County, Bloomington, and Angela. Waldrip filed a complaint in state court against those three parties on April 15, 2010, which stated both federal and state law claims and which was twice amended. The complaint was removed to federal court, but Waldrip later agreed to dismiss all of the federal claims, and the case was remanded to state court on January 25, 2011.

Waldrip’s second amended complaint raised claims against Angela for false imprisonment, abuse of process, malicious prosecution, defamation, intentional infliction of emotional distress, tortious interference with child custody and/or parenting time, and civil perjury. Against Blooming-ton, Waldrip alleged claims of false arrest, false imprisonment, abuse of process, malicious prosecution, and defamation. Against Monroe County, Waldrip alleged claims of false imprisonment, abuse of process, malicious prosecution, defamation, re-spondeat superior liability for Waldrip’s actions, and negligent hiring and/or retention of Waldrip. The complaint also sought punitive damages against all three parties.

Monroe County and Angela filed motions to dismiss Waldrip’s second amended complaint, and Bloomington filed a motion for judgment on the pleadings. On June 22, 2011, the trial court signed three separate orders granting those motions and dismissing Waldrip’s complaint in its entirety. However, apparently there was some confusion regarding distribution of those orders. Additionally, the chronological case summary (“CCS”) contains an entry on June 27, 2011, stating that Bloomington’s motion for judgment on the pleadings had been granted, and an entry on June 28, 2011, stating that Monroe County’s motion to dismiss had been granted. There was no mention in the CCS of Angela’s motion to dismiss having been granted. On November 28, 2011, Waldrip filed a “Request for Court Action,” asserting that it was “unclear to the Plaintiff which of the Defendants’ motions have or have not been ruled upon.” App. p. 167. On November 29, 2011, the trial court issued the following notice, entitled “Clerical Mistake Corrected”:

The Court notes that on June 22, 2011 Special Judge Eric Allen issued an Order on Monroe County’s Motion to Dismiss Pursuant To Trial Rule 12(b)(6), Order On City of Bloomington’s Motion For Judgment On The Pleadings Pursuant to Trial Rule 12(C) AND Order On Angela Waldrip’s Motion To Dismiss. Court issues all orders to parties of record.

Id. at 6.

Waldrip filed a motion to correct error on December 28, 2011. Monroe County filed a written response to the motion, claiming in part that it was untimely because it was filed more than thirty days after final judgment was entered. However, Monroe County did not appear at the hearing on the motion to correct error held on March 2, 2012. On March 6, 2012, the trial court denied the motion to correct error. Waldrip now appeals. This court’s motions panel previously has denied Monroe County’s motion to dismiss the appeal as untimely.

Analysis

I. Timeliness of Appeal

Before turning to the merits of Waldrip’s appeal, we address Monroe County’s restated argument in its brief that we should dismiss the appeal as untimely. Monroe County contends that there was a final judgment on June 28, 2011, making Waldrip’s motion to correct error in December 2011 and subsequent appeal from the denial of that motion untimely. Although our motions panel has already denied a request by Monroe County to dismiss this appeal, we are not precluded from reconsidering that decision. See Marlett v. State, 878 N.E.2d 860, 863 (Ind.Ct.App.2007), trans. denied. “Nonetheless, we generally are reluctant to reverse a ruling of the motions panel unless it clearly erred as a matter of law.” Id. at 863-64. We cannot reach that conclusion here.

The timeliness of an appeal affects our ability to consider the appeal. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003). An appeal must be initiated within thirty days of a final judgment, or alternatively within thirty days of a motion to correct error being denied or deemed denied, or the right to appeal is forfeited. Haste v. State, 967 N.E.2d 576, 577 (Ind.Ct.App.2012) (citing Ind. Appellate Rule 9(A)(1)). A motion to correct error likewise must be filed within thirty days of a final judgment. Ind. Trial Rule 59(C). As expressly stated in both Trial Rule 59(C) and Appellate Rule 9(A)(1), a judgment is “final” when it is noted in the CCS. Moreover, a final judgment is one that disposes of all claims as to all parties, ending the case and leaving nothing for future determination. Georgos, 790 N.E.2d at 451; see also Ind.App. R. 2(H)(1). This definition of “final judgment” applies in the context of both appeals and motions to correct error. See In re Barnett’s Estate, 159 Ind.App. 491, 497-98, 307 N.E.2d 490, 493-94 (1974).

Here, although the trial court signed three orders on June 22, 2011, granting Angela’s, Monroe County’s, and Blooming-ton’s motions to dismiss or for judgment on the pleadings, only the orders regarding Monroe County’s and Bloomington’s motions were contemporaneously noted in the trial court’s CCS. Thus, there was no “final judgment” at that time because the ruling on Angela’s motion to dismiss had not yet been noted in the CCS; it also appears that Waldrip did not receive actual notice of that ruling. The trial court did not enter a ruling in the CCS regarding the granting of Angela’s motion to dismiss until November 29, 2011. It was only at that time that there was a final judgment against Waldrip that resolved all claims as to all parties and it was only at that time that the thirty-day clock for filing a motion to correct error or notice of appeal began to run. Waldrip’s motion to correct error filed on December 28, 2011 was therefore timely, as was his later notice, of appeal. Consequently, we will not dismiss this appeal.

II. Claims Against Bloomington

We first address the dismissal of Wal-drip’s claims against Bloomington. Bloom-ington was the only defendant to file a motion for judgment on the pleadings, as opposed to a motion to dismiss. When ruling on a motion for judgment on the pleadings under Indiana Trial Rule 12(C), a court must view the pleadings in a light most favorable to the non-moving party and with every intendment regarded in his or her favor and determine whether the complaint is sufficient to constitute any valid claim. Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind.Ct.App.2005). Our standard of review is de novo, and we will affirm the trial court’s grant of a Rule 12(C) motion for judgment on the pleadings if it is clear from the face of the pleadings that one of the parties cannot in any way succeed under the operative facts and allegations made therein. Id. In applying this test, we may look only at the pleadings, with all well-pleaded material facts alleged in the complaint taken as admitted, supplemented by any facts of which a court may take judicial notice. Id.

If the pleadings present no issues of material fact and the acts shown by the pleadings clearly entitle a party to judgment, the entry of judgment on the pleadings is appropriate. Id. at 164. “But when a motion for judgment on the pleadings is predicated on matters extraneous to the pleadings, the motion should be treated in the same manner as a motion for summary judgment.” Id. Such matters include materials that would be admissible for summary judgment purposes, including depositions, answers to interrogatories, admissions, and affidavits. Id. If a trial court intends to treat a motion for judgment on the pleadings as a motion for summary judgment, as permitted by Trial Rule 12(C), it must give the parties notice that it intends to do so and provide the parties with a reasonable opportunity to present all pertinent material to the court. Id. at 164-65.

The sole basis for Bloomington’s motion for judgment on the pleadings was its claim that Waldrip did not comply with the notice provision of the Indiana Tort Claims Act (“ITCA”). Generally, ITCA bars claims against a political subdivision of the State unless a plaintiff has filed notice of the claim with the entity’s governing body within 180 days after a loss occurs. Ind.Code § 34-13-3-8(a). A loss occurs for purposes of ITCA “ ‘when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another.’ ” Reed v. City of Evansville, 956 N.E.2d 684, 691 (Ind.Ct. App.2011) (quoting Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind.1992)), trans. denied. Compliance with the notice provisions of ITCA is a procedural precedent the plaintiff must prove and the trial court must determine prior to trial. Brown v. Alexander, 876 N.E.2d 376, 383 (Ind.Ct.App.2007), trans. denied. A governmental defendant may raise the issue of a plaintiffs noncompliance with ITCA’s notice provision in a responsive pleading listing it as an affirmative defense. Id. at 383-84. If the defendant raises such a defense, the plaintiff bears the burden of proving compliance. Id. at 384.

Here, Bloomington asserts that the entirety of the conduct upon which Waldrip’s claims against it rests occurred in April 2008, in connection with Waldrip’s initial arrests and confinement by officers of the Bloomington Police Department and the officers’ written reports of those arrests. Waldrip’s filing of a tort claim notice on December 14, 2009, was much later than 180 days after April 2008. Waldrip makes two arguments as to why his tort claim notice was timely.

First, he contends that his “loss” did not become complete and the ITCA 180-day notice period did not start until December 2, 2009, when the prosecutor dismissed the remaining charges against him, pursuant to the “continuing wrong” doctrine. See, e.g., Fox v. Rice, 936 N.E.2d 316, 322 (Ind.Ct.App.2010). As we held in Fox, however, this doctrine does not apply if a plaintiff knows of facts that should lead to the discovery of a cause of action, even if his or her relationship with the tortfeasor continues beyond that point. Id. Here, Waldrip’s complaint establishes that he knew of his claims regarding false arrest, false imprisonment, and abuse of process at the time of his original arrests in April 2008, as well as who was responsible for those claims. In addition, his claim of defamation is based upon the probable cause reports prepared by the Blooming-ton police officers, which also were written in April 2008 and distributed to a prosecutor at that time.

At least one of Waldrip’s claims against Bloomington, however, was in fact not tangible until the final dismissal of the remaining criminal charges against him on December 2, 2009. In particular, a claim of malicious prosecution requires proof that a proceeding was terminated in the plaintiffs favor. See Butt v. McEvoy, 669 N.E.2d 1015, 1017 (Ind.Ct.App.1996). Waldrip’s claim for malicious prosecution against Bloomington—or against Angela and Monroe County for that matter—did not accrue until December 2, 2009.

In Fox, we held that when a plaintiff makes a claim of false imprisonment against the government, the false imprisonment ends when the person being detained is served with legal process, such as an arrest warrant. Fox, 936 N.E.2d at 322 (citing Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). Thus, the plaintiffs ITCA notice filed more than 180 days after the false imprisonment ended via service of an arrest warrant while imprisoned was untimely, and we refused to apply the “continuing wrong” doctrine to extend the notice time period to include the entire time that the plaintiff was incarcerated. Id. On rehearing, however, we clarified that although the service of such process may have ended the plaintiffs false imprisonment, it did not necessarily extinguish all wrongful conduct such that the plaintiff had no legal redress. Fox v. Rice, 942 N.E.2d 167, 168 (Ind.Ct.App.2011), trans. denied. In particular, we noted the availability of a malicious prosecution action, even after a false imprisonment has ended. Id.

Here, we conclude that Waldrip’s tort claim notice was timely as to his claims of malicious prosecution, against Bloomington as well as Angela and Monroe County. However, the notice was not timely under the continuing wrong doctrine as to his claims against Bloomington for false arrest, false imprisonment, abuse of process, and defamation. See Livingston v. Consolidated City of Indianapolis, 398 N.E.2d 1302, 1303-04 (Ind.Ct.App.1979) (holding that tort claim notice was untimely as to claims of false arrest, false imprisonment, and assault and battery, but timely as to claim of malicious prosecution).

The second argument Waldrip makes to excuse the delay in the filing of a tort claim notice—and which would save his claims against Bloomington for false arrest, false imprisonment, abuse of process, and defamation—is that he was incapacitated until December 2, 2009, by reason of his incarceration in the Monroe County Jail while awaiting trial on the allegedly false charges initiated by Angela. Indiana Code Section 34-13-3-9 provides that if a person is incapacitated, that .person has 180 days after removal of the incapacity to file an ITCA notice. Thus, Waldrip asserts, his notice filed twelve days after his release from incarceration and removal of his alleged incapacity was timely.

In McGill v. Indiana Dep’t of Corr., 636 N.E.2d 199 (Ind.Ct.App.1994), we addressed whether an incarcerated person is incapacitated for purposes of filing an ITCA notice. We noted that under the version of ITCA then in existence, “incapacitated” had the meaning set forth in the Probate Code. McGill, 636 N.E.2d at 201 (citing I.C. § 34-4-16.5-2 (1994)). The Probate Code defined then, and still defines, an incapacitated person as one who is unable:

(A) to manage in whole or in part the individual’s property;
(B) to provide self-care; or
(C) both;
because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity. ...

I.C. § 29-3-1-7.5(2) (emphasis added). Under this definition of incapacitated, we held:

A prisoner’s ability to provide notice in a timely fashion may be impaired by his incarceration, but the mere status of being incarcerated, without more, by no means renders compliance with the notice statute impossible.... [A] prisoner is not without resources in exercising his legal rights. We conclude, therefore, that the status of incarceration alone is insufficient to render a claimant incapacitated under the Act, but where a prisoner can demonstrate incapacity by virtue of his incarceration, a notice deadline exemption may be permitted.

McGill, 636 N.E.2d at 204.

The prisoner in McGill claimed to have attempted to timely submit an ITCA notice against the State, but that he had been unable to do so because of the unavailability of the prison’s law librarian, who handled the mailing of legal notices, at the deadline date. We reversed the trial court’s grant of summary judgment in favor of the State on the issue of untimely notice, stating that there was an outstanding factual issue regarding whether the prisoner had been incapacitated by virtue of his incarceration, thus warranting an extension of the ITCA notice deadline. Id.

More recently, we revisited McGill in Fox. We continued to rely upon the Probate Code’s definition of “incapacitated” in analyzing a prisoner’s claim that his incarceration had rendered him incapacitated for purposes of filing an ITCA notice. Fox, 936 N.E.2d at 323 n. 4. Similar to McGill, the governmental defendants filed a motion for summary judgment after a prisoner filed claims for false arrest, false imprisonment, and violations of the Indiana and United States Constitutions, based on untimely filing of an ITCA notice. The plaintiff/prisoner in Fox apparently did not designate any evidence regarding the particular circumstances of his incarceration, instead solely asserting that “ ‘he was without realistic access to civil attorneys to consult regarding his potential civil claims.’” Fox, 936 N.E.2d at 323. We held that such an allegation was insufficient under McGill to state specific facts of incapacitation and affirmed the grant of summary judgment to the governmental defendants based on untimely filing of an ITCA notice. Id. at 324.

Although Bloomington contends that this case is very similar to Fox, we cannot ignore the difference in procedural posture between Fox and this case. Bloomington asserts in its brief, “there was a period of time after April 15, 2008, in which [Wal-drip] was out of jail, so even if jail did ‘incapacitate’ him it did not do so sufficient to extend the Notice of Tort Claim.” Ap-pellee Bloomington’s brief, p. 6. Waldrip states in his brief, by contrast, that he was “incarcerated in the Monroe County Jail under lockdown for twenty-three (23) hours per day” while his first criminal trial was pending, and that after conclusion of that trial in September 2009, he “was remanded to custody on other allegations which were pending, for which he was held until December 2, 2009.” Appellant’s Br. p. 16. These factual allegations are not supported by any citation to the record in either brief. Indeed, there could be no facts in the record that would support either assertion, or any facts at all regarding the particulars of Waldrip’s incarceration, because this case was resolved on a motion for judgment on the pleadings and motions to dismiss, not summary judgment. The trial court gave no indication that it was treating the defendants’ motions as ones for summary judgment and the parties submitted no evidence in support of them. Additionally, no evidence was presented at the motion to correct error stage of these proceedings regarding Waldrip’s incarceration.

It is only the contents of the pleadings that are relevant here. Wal-drip’s complaint refers to the particulars of Waldrip’s incarceration only once, when it states that he “was incarcerated for over one (1) year and forced to stand two (2) criminal trials.” App. p. 47. Waldrip did not in any way plead in his complaint that he complied with ITCA’s notice requirement or that any delay in filing such a notice was the result of incapacitation, and he clearly was not required to do so. A plaintiff filing suit against a governmental entity is not required to plead compliance with ITCA’s notice requirement, because such requirement is not an element of the tort claim itself. Thompson v. City of Aurora, 263 Ind. 187, 194-95, 325 N.E.2d 839, 843-44 (1975). Rather, noncompliance with the notice requirement is a defense for the governmental entity to raise in its responsive pleading. Id.

Looking solely to the contents of the complaint, we cannot say that Bloom-ington has established as a matter of law that Waldrip failed to comply with ITCA’s notice requirement. To the contrary, Waldrip’s notice regarding malicious prosecution was timely as a matter of law. As for the other counts of the complaint, there simply is an insufficient record at present to address Waldrip’s claim that he was incapacitated by virtue of his incarceration and that such incapacitation prevented him from timely filing a notice. We anticipate that the notice argument could be resolved one way or the other through summary judgment proceedings, by which evidence could be presented regarding the extent and nature of Waldrip’s incarceration while awaiting trial. At this juncture, however, dismissal of the false arrest, false imprisonment, abuse of process, and defamation counts of Waldrip’s complaint against Bloomington on the basis of lack of notice is premature. Bloomington presents no other argument in support of its motion for judgment on the pleadings and, therefore, we reverse the granting of that motion.

III. Claims Against Angela

Next, we address Waldrip’s argument that the trial court improperly dismissed his claims against Angela. Unlike Bloom-ington, Angela filed a motion to dismiss under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief could be granted. A motion to dismiss under this rule tests the legal sufficiency of the claims in a complaint, not the facts supporting them. Droscha v. Shepherd, 931 N.E.2d 882, 887 (Ind.Ct.App.2010). Our review of the granting of a motion to dismiss under Rule 12(B)(6) is de novo. Id. We must view the complaint in a light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant’s favor. Id. “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.” Id. We must accept all of a complaint’s allegations as true and determine whether it states any set of allegations upon which the trial court below could have granted relief to the plaintiff. Id. Dismissal of a complaint under Trial Rule 12(B)(6) is disfavored generally because such motions undermine the policy of deciding causes of action on their merits. Id.

Angela has not filed a brief in this appeal. In such a situation, we need not undertake the burden of developing arguments on behalf of an appellee and may reverse if the appellant demonstrates pri-ma facie error. Fifth Third Bank v. PNC Bank, 885 N.E.2d 52, 54 (Ind.Ct.App.2008). Prima facie error means “at first sight, on first appearance, or on the face of it.” Id. We will affirm if an appellant does not meet this burden. Id.

We note that Waldrip has not provided any argument on appeal as to the propriety of the dismissal of the following claims he originally made against Angela: false imprisonment, civil perjury, tortious interference with child custody and/or parenting time, and defamation. Waldrip has not demonstrated prima facie error in the trial court’s dismissal of those counts of the complaint against Angela, and we affirm the dismissal of those counts. That leaves claims remaining against Angela for abuse of process, malicious prosecution, and intentional infliction of emotional distress.

Angela’s motion to dismiss argued in part that dismissal of Waldrip’s complaint was required because of the alleged untimely filing of an ITCA notice. Our reasoning rejecting that argument as made by Bloomington also applies to Angela and we will not affirm the dismissal of Waldrip’s complaint against Angela on that basis. Unlike Bloomington, however, Waldrip also argued that she was entitled to immunity as a governmental employee under different provisions of ITCA. We will address those provisions.

Regarding the abuse of process claim, Waldrip alleged that Angela, “while using her official capacity as an Official Court Reporter, abused her power in said position by gaining special favors ... to expedite and/or otherwise enter an Ex Parte Protective Order against Cody,” and that she “abused her power in said position to gain an advantage over Cody in a dissolution of marriage action.” App. p. 50. For the malicious prosecution claim, Waldrip alleged that Angela “individually and/or in concert [with the other defendants] acted with malice,” and that she “individually or in concert did not have probable cause to institute the prosecutions, including both the Protective Order action and/or the criminal proceedings.” Id. Finally, regarding the intentional infliction of emotional distress claim, Waldrip alleged that Angela “knowingly and intentionally made false and misleading statements against Cody, which resulted in a Protective Order being entered and criminal charges and prosecution being initiated,” that her “conduct was extreme and outrageous,” and that it caused Waldrip “severe emotional distress.” Id. at 55-56. There are two clear overarching themes to these allegations: first, that Angela intentionally and/or knowingly but falsely accused Wal-drip of battering her and invading her privacy in order to gain a personal advantage in child custody proceedings; and second, that she abused her position as a court reporter to procure the protective order.

In her motion to dismiss, Angela argued that she was immune from all liability under ITCA pursuant to Indiana Code Section 34-13-8-3(6), which provides that a “governmental ... employee acting within the scope of the employee’s employment is not liable if a loss results from ... [t]he initiation of a judicial or an administrative proceeding.” Angela also relied upon Indiana Code Section 34-13-3-5(c), which provides:

A lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee’s employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the allegations.

The mere fact of government employment does not by itself mean that ITCA applies to that employee. See Burke v. Board of Directors of Monroe County Pub. Library, 709 N.E.2d 1036, 1040 (Ind.Ct.App.1999), aff'd in relevant part on r’hg. trans. denied. Rather, a causal relationship must exist between the plaintiffs injury and government employment. Id. Additionally, because ITCA is in derogation of common law, we construe it narrowly against a grant of immunity. East Chicago Police Dep’t v. Bynum, 826 N.E.2d 22, 26 (Ind.Ct.App.2005), trans. denied.

Here, with respect to the claims of malicious prosecution and intentional infliction of emotional distress, we believe Waldrip sufficiently alleged in his complaint that Angela made false accusations against him outside the scope of her employment and purely in her role as a private citizen. At the very least, the complaint alleges a mixture of purely private and official conduct by Angela. Additionally, the alleged false accusations by themselves not only bore no causal relationship to her employment as a court reporter, but were solely for her personal benefit in the child custody proceedings against Waldrip. We also note that the general purpose of ITCA’s immunity provisions is to permit public employees to exercise the independent judgment necessary to carry out their duties without the threat of harassment by litigation or threats of litigation over decisions made in the scope of their employment. Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 452 (Ind.2000). Angela’s alleged decision to attempt to “frame” Waldrip with false criminal accusations would not fulfill this purpose. As such, and in the absence of any argument by Angela to the contrary, we conclude she is not entitled to rely upon the governmental employee immunity provisions of Indiana Code Sections 34-13-3-3(6) and 34-13-3-5(c) with respect to Waldrip’s claims of malicious prosecution and intentional infliction of emotional distress.

The abuse of process claim is more complicated. Even if the complaint clearly alleged that Angela was acting for her own benefit in abusing her position to obtain the protective order, thus negating immunity under Indiana Code Section 34-13 — B—5(c)(5), we still must address the separate grant of immunity under Section 34-13-3-3(6) to government employees acting within the scope of their employment and losses resulting from “[t]he initiation of a judicial or an administrative proceeding.” Under this count of the complaint, Waldrip repeatedly — and solely — alleged that Angela was acting in “her official capacity as an Official Court Reporter” when she abused that position to obtain the protective order against Waldrip. App. p. 50. Thus, Waldrip alleges Angela was acting within the scope of her employment with respect to the abuse of process claim.

We also conclude that Angela’s obtaining of a protective order and Waldrip’s alleged damages flowing therefrom — the sole basis for the abuse of process claim — clearly is related to the initiation of a judicial proceeding. A “judicial proceeding” for purposes of this provision of ITCA has been defined as follows: Livingston v. Consolidated City of Indianapolis, 398 N.E.2d 1302, 1304-05 (Ind.Ct.App.1979) (quoting Treloar v. Harris, 66 Ind.App. 59, 68, 117 N.E. 975, 978 (1917)). This definition would apply to the obtaining of a protective order from a court. Even if we accept as true that Angela abused her position as a court reporter in obtaining the protective order against Wal-drip, that abuse allegedly was -within the scope of her employment and related to the initiation of a judicial proceeding. Angela is immune from liability for abuse of process as alleged in Waldrip’s complaint, pursuant to Indiana Code Section 34-13-3-3(6), and the trial court correctly dismissed that count against Angela.

“Judicial proceeding means any proceeding for the purpose of obtaining such remedy as the law allows.... When a regularly constituted court of justice is clothed with authority to hear and determine a question of fact or a mixed question of law and fact, upon evidence, written or oral, to be produced before such court, and thereupon to render a decision affecting the material rights or interests of one or more persons or bodies corporate, Such proceeding by the court must be regarded as judicial, and the decision by the court may properly be denominated a judgment.”

Turning back to the claims of malicious prosecution and intentional infliction of emotional distress, Angela also generally alleged in her motion to dismiss that Waldrip’s complaint did not set forth sufficient facts to support those claims. Indiana Trial Rule 8(A) requires only that a complaint set forth a “short and plain statement of the claim showing that the pleader is entitled to relief....” This rule does not require a complaint to recite in detail all of the facts upon which the claim is based. Trail v. Boys & Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 141 (Ind.2006). Rather, “a complaint is sufficient if it states any set of allegations, no matter how unartfully pleaded, upon which the trial court could have granted relief.” Id. A plaintiff need only provide a clean and concise statement that will give notice to defendants as to what has allegedly taken place and the theory or theories the plaintiff plans to pursue. Id.

Generally, a plaintiff must move prove the following four elements of a malicious prosecution claim: “(1) the defendant instituted or caused to be instituted a prosecution against the plaintiff; (2) the defendant acted with malice in doing so; (3) the prosecution was instituted without probable cause; and (4) the prosecution terminated in the plaintiffs favor.” Butt v. McEvoy, 669 N.E.2d 1015, 1017 (Ind.Ct.App.1996). Waldrip’s complaint clearly states facts against Angela regarding all four elements: that she caused a prosecution or prosecutions to be initiated against Waldrip, without probable cause (by lying to police), with malice (i.e., to use the prosecutions against Waldrip in child custody proceedings), and that the prosecutions terminated in Waldrip’s favor, by an acquittal and by dismissal of the remaining charges against him. The complaint adequately states a claim against Angela for malicious prosecution.

The elements of intentional infliction of emotional distress are that a defendant: (1) engages in extreme and outrageous conduct; (2) which intentionally or recklessly; (3) causes; (4) severe emotional distress to another. York v. Fredrick, 947 N.E.2d 969, 976 (Ind.Ct.App.2011), trans. denied. Intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by a decent society and causes mental distress of a very serious kind. Lachenman v. Stice, 838 N.E.2d 451, 457 (Ind.Ct.App.2005), trans. denied. Here, again, Waldrip alleges that Angela falsely accused him of criminal conduct, leading to a lengthy period of incarceration before the criminal charges against him were resolved, and which led Waldrip to have reduced contact with his minor children and which charges Angela attempted to use as leverage in child custody proceedings. Waldrip further alleges that this conduct was “extreme and outrageous,” that it was done intentionally, and that it caused him severe emotional distress. On a motion to dismiss, we believe Waldrip has sufficiently alleged the existence of intentional conduct by Angela that could be found to exceed all bounds of decent society and lead one to suffer severe emotional distress.

We also observe that our supreme court recognizes a qualified privilege for communications that private citizens make to police officers in reporting crime. See Williams v. Tharp, 914 N.E.2d 756, 763-64 (Ind.2009). However, a statement may not be privileged if ‘“(1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statements; or (3) the statement was made without belief or grounds for belief in its truth.’ ” Id. (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.1992)). Deliberate lies to police officers fall well outside this privilege, and “[a] citizen who reports wrongdoing to police knowing that the information is faulty fails to earn protection against a later civil action.” Id. at 766. Waldrip alleges that Angela deliberately lied to police regarding criminal conduct by him, leading to malicious prosecution and intentional infliction of emotional distress. We conclude — again, in the absence of any argument by Angela to the contrary — that the complaint adequately states claims against Angela for malicious prosecution and intentional infliction of emotional distress and that the trial court erred in dismissing those counts of the complaint against Angela. As required, we have taken the allegations of Waldrip’s complaint as true; whether those allegations can or will be proven. to be true remains to be seen.

IV. Claims Against Monroe County

Finally, we address Waldrip’s claims against Monroe County. Those claims are based on three factors: Monroe County’s purported relationship as Angela’s employer and vicarious liability for her actions and liability in negligently hiring and retaining her; Waldrip’s incarceration in the Monroe County Jail while awaiting trial; and his prosecution, which necessarily was conducted by the Monroe County Prosecutor’s Office. Like Angela, Monroe County filed a Rule 12(B)(6) motion to dismiss, and the same standard of review applies to its arguments as it did to Angela’s motion. Also, as with Bloomington and Angela, Monroe County’s argument that Waldrip did not timely file an ITCA tort claims notice is not a basis for supporting dismissal of the complaint against Monroe County.

First, we note that Waldrip only generically named “Monroe County” as a defendant in this cause of action. By doing so, Waldrip necessarily was suing the Board of Commissioners of Monroe County. “The board of commissioners is the corporate entity representing the county through which it acts, and is in legal contemplation the county.” Owen County Council v. State, 175 Ind. 610, 619, 95 N.E. 253, 256 (1911). Generally, except in the case of consolidated city-counties, a county board of commissioners is the county executive. I.C. § 36-2-2-2.

First, with respect to Angela’s employment as a reporter for the Monroe County Circuit Court, she necessarily was appointed to that position by a judge and likewise was subject to removal by the judge. See I.C. §§ 33-41-1-1, 33-41-1-4 (stating that official circuit court reporters are appointed by judge and subject to removal by judge). Although the courts in any given county are thought of as county courts, and although funded by county government, such courts are actually state courts. Allen County Council v. Allen Circuit Court, 38th Judicial Dist., 549 N.E.2d 364, 365 (Ind.1990). “County courts in Indiana are exclusively units of the judicial branch of the state’s constitutional system.... ” Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 434 (Ind.Ct.App.1996) (citing Ind. Const. art. 3, § 1), trans. denied. Therefore, the Monroe County Circuit Court is a state, not county, entity. See id. If certain criteria are met and if the Indiana Supreme Court gives it approval, a trial court may mandate county governments to pay court employees a salary demanded by the court. Allen County Council, 549 N.E.2d at 367. This is further indication that state trial court employees are not subject to control by the county executive. Given Angela’s employment by the Monroe County Circuit Court, a state entity, at the discretion of the Circuit Court judge, she was not subject to hiring, supervision, or firing by Monroe County and its Board of Commissioners. All claims against Monroe County related to alleged vicarious liability for Angela’s actions, or her hiring and retention, were properly dismissed. See Delk v. Board of Comm’rs of Delaware County, 503 N.E.2d 436, 440 (Ind.Ct.App.1987) (holding county commissioners could not be held vicariously liable for actions of county sheriff, which was a separate constitutional office not subject to control by the commissioners).

Next, we address the claims against Monroe County related to Wal-drip’s incarceration in the Monroe County Jail while awaiting trial. The Monroe County Board of Commissioners is statutorily required to build and maintain a county jail. See I.C. § 36-2-2-27(a). However, this duty only extends to keeping the jail open and in good repair. Weatherholt v. Spencer County, 639 N.E.2d 354, 356 (Ind.Ct.App.1994). Actual administration of the jail and treatment of prisoners falls to the county sheriff. Id. As with county trial courts, county sheriffs occupy a constitutionally-created office that is separate from the county executive. See Delk, 503 N.E.2d at 440 (citing Ind. Const. art. 6, § 2). “The law is well-settled that county commissioners do not have control over the acts of a sheriff.” Robins v. Harris, 740 N.E.2d 914, 919 (Ind.Ct.App.2000), summarily aff'd in relevant part, 769 N.E.2d 586, 587 (Ind.2002). Waldrip makes no argument that the jail building was inadequately maintained; his claims are solely related to his alleged false arrest and imprisonment while awaiting trial, but claims of that type could only be stated against the Monroe County Sheriff if they could be stated at all. See Delk, 503 N.E.2d at 440.

Finally, it is equally evident that the Monroe County Board of Commissioners cannot be held liable in any way for the decision of the Monroe County Prosecutor’s Office to file charges against Waldrip based on Angela’s accusations. The Monroe County Prosecutor is a constitutionally-created office that is separate from the Monroe County Board of Commissioners. See Ind. Const, art. 7, § 16. Likewise, all criminal prosecutions are carried out in the name of the State of Indiana, not individual counties. See Ind. Const, art. 7, § 18. A county cannot be held liable for a prosecutor’s actions in trying a case. See Mendenhall v. City of Indianapolis, 717 N.E.2d 1218, 1225-26 (Ind.Ct.App.1999) (citing Mendenhall v. Goldsmith, 59 F.3d 685, 691 (7th Cir.1995), cert. denied), trans. denied. This necessarily precludes any liability of Monroe County related to the charging decisions of the Monroe County Prosecutor’s Office regarding Waldrip.

In sum, Waldrip’s complaint fails to state any claims that could be properly presented against “Monroe County,” which without further differentiation or clarification by Waldrip includes only the Monroe County Board of Commissioners. The trial court properly dismissed all of Waldrip’s claims against Monroe County.

Conclusion

We affirm the dismissal of the complaint against Monroe County in its entirety. We also affirm the dismissal of those counts of the complaint against Angela that raised claims of false imprisonment, abuse of process, civil perjury, tortious interference with child custody and/or parenting time, and defamation. Waldrip has demonstrated prima facie error in dismissal of the counts against Angela for malicious prosecution and intentional infliction of emotional distress; we reverse the dismissal of those counts and remand for further proceedings on them. We also reverse the granting of Bloomington’s motion for judgment on the pleadings and remand for further proceedings on all of Waldrip’s claims against Bloomington.

Affirmed in part, reversed in part, and remanded.

VAIDIK, J„ and MATHIAS, J., concur.

      . The record is unclear as to which charges were tried in September 2009 and what remained pending after that trial and acquittal. There is some reference in the record to other allegations made by Angela against Waldrip, aside from the original domestic battery and invasion of privacy charges. Waldrip's complaint, however, describes only the April 2008 arrests and battery and invasion of privacy charges.

      . Bloomington seems to assert that the claims of malicious prosecution and abuse of process do not apply to it. However, on those counts the complaint clearly refers to "the Defendants” jointly. App. p. 50.

      . The current version of ITCA has no "Definitions” section that defines "incapacitated” or any other word, unlike the version of ITCA we analyzed in McGill. The parties make no argument, however, that we should not continue to rely upon the Probate Code’s definition of "incapacitated.”

      . Technically, in reviewing a motion for judgment on the pleadings, a court is to review all of the pleadings, including answers. Fox Development, 837 N.E.2d at 164 n. 1. However, any answer Bloomington may have filed in this case was not transmitted to this court on appeal, nor has Bloomington made any reference to it in its brief.

      . We need not delve into whether the Monroe County Circuit Court could be sued and held liable for Angela’s alleged actions.


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    Carlos HALE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1202-CR-83.
    Court of Appeals of Indiana.
    Sept. 24, 2012.

      Ellen M. O’Connor, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Here, a woman was robbed at gunpoint by two men right outside her apartment building. She identified the two men, including the defendant in this case, through what is known as a show-up identification. Specifically, the woman was transported by a police officer to where the suspects were located, and she was shown four suspects one at a time. Evidence of the show-up identification and the woman’s in-court identification of the defendant were admitted at trial with no objection. On appeal, the defendant argues that the admission of the show-up identification was fundamental error and asks that we reverse his conviction.

Inasmuch as the show-up identification was not unduly suggestive, the trial court did not err by admitting it into evidence. Moreover, in light of the woman’s in-court testimony identifying the defendant, no fundamental error could have occurred even if the admission of the show-up identification had been error. Accordingly, we decline the defendant’s request to reverse his conviction.

Finally, we note that the fundamental error doctrine is being casually invoked whenever there is a failure to timely object at trial. This is not the purpose of the fundamental error doctrine, which is extremely narrow and reserved only for the most egregious circumstances.

Appellant-defendant Carlos Hale appeals his conviction for Robbery, a class B felony. Specifically Hale argues that the victim’s show-up identification of him was unduly suggestive, insofar as police officers displayed him in handcuffs. Furthermore, Hale maintains that the introduction of this evidence was fundamental error. Concluding that Hale’s failure to object to the introduction of this evidence results in waiver on appeal and that the admission of the show-up identification was not error, let alone fundamental error, we affirm the decision of the trial court.

FACTS

On April 23, 2011, Berenice Martinez was tending bar at the Blue Iguana in Indianapolis, working the late shift. On April 24, when Martinez’s shift ended at 3:00 a.m., she left the bar with $100 in cash plus her tips for the night that she kept in her purse. Martinez also had a $50 bill in her pants pocket. Martinez got into her vehicle to start her twenty-minute drive home to the Forest Hills Apartments.

When Martinez arrived at Forest Hills Apartments, she noticed a silver vehicle behind her. When she exited her vehicle to go into her apartment, Martinez made it as far as the sidewalk before a man put a gun to her head. Martinez was frightened and screamed. She pressed her telephone, but the two men took it from her. One of the men called her a “b*tch,” but then told her she “smelled good” and “was pretty.” Tr. p. 21.

Hale checked the inside of Martinez’s purse and took the money out. The other man told Hale to recheck the purse. Hale took the $50 out of her pocket and checked her other pockets to see if she had any more. When Hale found money in her coat, Hale told the other man to check her purse again, and then he pushed her down. The other man threw all of the contents of the purse onto the ground.

When the two men found no more items of interest, they retreated to the silver vehicle that Martinez had seen earlier. Once the men were back at their vehicle, Martinez turned to look at them and then ran to knock on the door of her cousin’s apartment. The police arrived within fifteen to twenty minutes.

Indianapolis Metropolitan Police Department (IMPD) Officers George June and Roger Taylor were involved in a nearby traffic investigation. Officer June responded to a dispatch of a robbery in progress at the 500 block of Forest Hills. This dispatch related that the suspects were last seen leaving the apartment complex in a silver vehicle. Officer June saw a vehicle fitting the description traveling at a high rate of speed. When Officer June caught up to the vehicle, he activated his lights and siren and could see that there were four people in the vehicle.

Officer Taylor saw the same vehicle exit Forest Hills at a high rate of speed and only lost sight of the vehicle for less than thirty seconds. When the vehicle came to a stop, Officer Taylor pulled up behind Officer June, and Officer June explained that the language barrier between Martinez and the officers slowed communications but that the officers “were steadily getting more and more description” as he and Officer Taylor were waiting for additional officers to arrive on the scene. Tr, p. 46. The description the officers were provided matched the persons in the back seat, namely, Hale and Martell Stott.

As he approached the vehicle, Officer June could see a handgun magazine sitting under the passenger side door on the ground. After the door was opened, Officer June could see a handgun under the seat on the passenger side.

Less than an hour after the silver vehicle was stopped, Detective Benjamin Bierce arrived with Martinez. The suspects had been separated immediately after being taken into custody, were handcuffed from behind, and were being kept in an area that was not visible to Detective Bierce or Martinez from Detective Bierce’s vehicle.

Martinez was shown four suspects, each being brought around to Detective Bierce’s vehicle. Martinez remained in the vehicle while she viewed the four men. Martinez identified both Stott and Hale as the men who had robbed her. A purple cell phone cover belonging to Martinez and $286 in cash were found on Hale during a search incident to his arrest.

On April 25, 2011, the State charged Hale with class B felony robbery. On December 19, 2011, Hale’s jury trial commenced. In open court without objection, Martínez identified Hale as the man who had grabbed her purse. Additionally, through Detective Bierce’s testimony, the State presented evidence that Martinez identified Hale and Stott during a show-up identification. After all the evidence had been presented, the jury found Hale guilty as charged.

On January 18, 2012, the trial court held a sentencing hearing. The trial court sentenced Hale to seven years, six years in the Department of Correction (DOC) and one year in community corrections. Hale now appeals.

DISCUSSION AND DECISION

Hale argues that Martinez’s show-up identification of him was overly suggestive, inasmuch as he was in handcuffs. Hale further contends that even though he failed to object at trial, the admission of the show-up identification amounted to fundamental error and that without it, the evidence is insufficient to sustain his conviction for class B robbery.

The admission or exclusion of evidence falls within the sound discretion of the trial court, and its determination regarding the admissibility of evidence is reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind.Ct.App.2012).

The Fourteenth Amendment’s guarantee of due process of law requires the suppression of evidence when the procedure used during a pretrial identification is impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind.1999). Nevertheless, a contemporaneous objection is required to preserve an issue regardless of whether the defendant filed a pretrial motion to suppress. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.2000). Failure to make such an objection waives any claim on appeal that the evidence was improperly admitted. Brown v. State, 783 N.E.2d 1121, 1126 (Ind.2003). More particularly, “[t]o preserve an error for review on appeal, the specific objection relied upon on appeal must have been stated in the trial court as a basis for the objection.” Mitchell v. State, 690 N.E.2d 1200, 1205 (Ind.Ct.App.1998). The purpose of this rule is to give the trial court the opportunity to evaluate the objection under the basis relied upon. Id. at 1206.

Here, Hale concedes that defense counsel did not oppose the admission of the show-up identification. Specifically, defense counsel neither filed a pretrial motion to suppress it nor did he timely object to its admission at trial. Appellant’s Br. p. 10. Accordingly, the trial court was not afforded the opportunity to evaluate Hale’s objection to this evidence, and he has waived this issue on appeal.

Notwithstanding the above, Hale attempts to avoid waiver by invoking the fundamental error doctrine. The fundamental error doctrine is extremely narrow. Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). To be sure, it “applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” McQueen v. State, 862 N.E.2d 1237, 1241 (Ind.Ct.App.2007).

While our Supreme Court has cautioned against one-on-one show-ups because of their inherent suggestiveness, there is no per se rule of exclusion. Mitchell, 690 N.E.2d at 1203. Rather, the admissibility of a show-up identification turns on an evaluation of the totality of the circumstances and whether they lead to the conclusion that the confrontation was conducted in a manner that could guide a witness into making a mistaken identification. Id.

Here, the crime scene was lighted with street lights, and Martinez testified that she could clearly see Hale’s face because he was in front of her. Tr. p. 37. Furthermore, the show-up identification occurred soon after the robbery. See Mitchell, 690 N.E.2d at 1204 (listing several factors to consider when determining whether a show-up was permissible, including the witness’s opportunity to view the criminal, the distance between the witness and criminal, the lighting conditions, and the length of time between the commission of the crime and the show-up). Accordingly, the trial court did not err by admitting evidence of the show-up identification.

Notwithstanding our conclusion, we are compelled to point out that defense counsel did not object to Martinez’s in-court identification of Hale. Tr. p. 20-21. And it is well-settled that when a witness had an opportunity to observe the perpetrator during the crime, a basis for an in-court identification exists, independent of the propriety of pretrial identification. Brown v. State, 577 N.E.2d 221, 225 (Ind.1991); Adkins v. State, 703 N.E.2d 182, 185 (Ind.Ct.App.1998). Insofar as Martinez had an opportunity to clearly observe Hale, there was an independent basis for the in-court identification. Thus, even if the trial court had erred by admitting the evidence of the show-up identification, Hale’s claim of fundamental error would have failed under these circumstances. See Hoglund v. State, 962 N.E.2d 1230, 1239-40 (Ind.2012) (holding that fundamental error had not occurred when erroneously-admitted expert testimony was cumulative of other evidence properly before the jury).

Finally, in a related matter, we note that Anders Briefs are not permissible in Indiana. See Mosley v. State, 908 N.E.2d 599, 601-02 (Ind.2009) (requiring that in any “direct criminal appeal as a matter of right, counsel must submit an advocative brief’). Nevertheless, this Court cannot ignore the alarming trend of questionable fundamental error claims. For instance, it is not uncommon for a criminal defendant to argue on appeal that the introduction of evidence amounted to fundamental error whenever the defendant failed to object to its admission at trial. See Brown v. State, 929 N.E.2d 204, 207-08 (Ind.2010) (agreeing with the Court of Appeals that the defendant’s failure to timely object to the admission of the evidence waived the error on appeal and did not amount to fundamental error); Absher v. State, 866 N.E.2d 350, 355 (Ind.Ct.App.2007) (concluding that the failure to object to the State’s substantive amendment to the charging information resulted in waiver and that “[sjimply asserting the legal conclusions that his trial was unfair and that he received ineffective assistance of counsel, without any cogent argument or citation to authority, is not enough to prove fundamental error”).

Again, the fundamental error doctrine is an “extremely narrow” doctrine that is available only in “egregious circumstances.” Brown, 929 N.E.2d at 207. This rationally follows from the purpose of requiring a contemporaneous objection in the first place, which is to give the trial court the opportunity to correct any errors before they become fundamental error.

The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.

      . Ind.Code§ 35-42-5-1.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: BRADFORD, Judge.

text:
    Ray EVANS, Appellant-Respondent, v. Eric L. THOMAS, Appellee-Petitioner.
    No. 73A04-1112-PO-670.
    Court of Appeals of Indiana.
    Sept. 25, 2012.

      Bryan Lee Ciyou, Ciyou and Dixon, P.C., Indianapolis, IN, Attorney for Appellant.
   OPINION

BRADFORD, Judge.

Appellant-Respondent Ray Evans appeals from the trial court’s issuance of a protection order (“PO”) at the request of Appellee-Petitioner Eric Thomas. Evans contends that the trial court abused its discretion in denying his motion for continuance, that Thomas’s petition did not allege conduct sufficient to support a PO, that the trial court was required to conduct an evidentiary hearing, and that Evans’s due process rights were violated by the trial court’s issuance of the PO. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 8, 2011, Thomas filed a request for an ex parte PO against Evans. The petition alleged a history of conflict between the two Shelby County neighbors, who share a driveway. Thomas alleged that Evans had attempted and threatened to cause him physical harm, caused him physical harm, placed him in fear of physical harm, committed stalking against him, and committed an act of animal cruelty. Specifically, Thomas alleged that Evans had pulled a gun on him in 2005, punched him during a November 2011 altercation arising from a discussion regarding money owed for driveway maintenance, taunted him and his children as they hung Christmas lights on December 2, 2011, shot and killed the family cat at some point, and threatened to shoot the family dog.

On December 12, 2011, the trial court denied Thomas’s request for an ex parte PO and set the matter for a hearing on December 20. Evans was served with notice of the hearing on December 15. On December 19, Evans filed a motion for continuance, contending that he would be unable to retain counsel by December 20.

At the hearing on December 20, the trial court denied Evans’s motion for continuance, citing the nature of the allegations and the fact that “protective orders are supposed to be dealt with within a fairly quick fashion[.]” Tr. p. 5. When asked if he objected to the issuance of the requested PO, Evans answered, “No.” Tr. p. 4. The trial court told Evans that “if after I grant this if your attorney wants to file a petition to modify it, I, I, would consider that. I’m not saying I would grant it, but I ... I would consider that.” Tr. p. 5. Without taking evidence, the trial court issued the requested PO providing, inter alia, that Evans surrender all of his firearms to the Shelby County Sheriffs Department. In a document file stamped on December 22, 2011, Evans, who had retained counsel, filed his notice of appeal.

DISCUSSION AND DECISION

At the outset, we note that Thomas has not filed an Appellee’s brief. In such cases, we do not need to develop an argument for Thomas, and we apply a less stringent standard of review. Fowler v. Perry, 830 N.E.2d 97, 102 (Ind.Ct.App.2005). We may reverse the trial court if Evans is able to establish prima facie error, which is error at first sight, on first appearance, or on the face of it. Id.

I. Whether the Trial Court Abused its Discretion in Denying Evans’s Motion for a Continuance

The decision to grant or deny a continuance is within the sound discretion of the trial court, and we will not reverse that decision unless the trial court has abused its discretion. Homehealth, Inc. v. Heritage Mut. Ins. Co., 662 N.E.2d 195, 198 (Ind.Ct.App.1996), trans. denied. A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of the facts or the reasonable and probable deductions which may be drawn therefrom. Id. If good cause is shown for granting the motion, denial of a continuance will be deemed to be an abuse of discretion. Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind.Ct.App.1988); see Ind. Trial Rule 53.5.
[A]mong the things to be considered on appeal from the denial of a motion for continuance, we must consider whether the denial of a continuance resulted in the deprivation of counsel at a crucial stage in the proceedings. See Homehealth, Inc., 662 N.E.2d at 198. We must also consider whether a delay would have prejudiced the opposing party to an extent sufficient to justify denial of the continuance. Id.

Hess v. Hess, 679 N.E.2d 153, 154 (Ind.Ct.App.1997).

While we recognize that only five days passed between Evans receiving notice of the hearing and the actual hearing, we cannot say, under the circumstances, that the trial court abused its discretion in denying his continuance motion. First and foremost, we conclude with little hesitation that the seriousness of the allegations in Thomas’s petition warranted the swiftest of judicial action. As previously mentioned, Thomas alleged that Evans had held a gun on him in 2005 and at some point had killed his cat and had threatened to kill his dog. Within the few weeks prior to the filing of the petition, Thomas and Evans had been in two confrontations, one of which became violent, involving blows and head-butting and resulting in criminal charges. Put another way, according to Thomas’s petition, the years-long dispute between Thomas and Evans was escalating quickly, warranting quick action on the trial court’s part.

Second, we do not believe that five days was too short a period of time in which to secure counsel. Evans might not have had time to shop around, but we have little doubt counsel could have been secured. We would note that, despite Evans’s contention that the holiday season makes it more difficult to secure counsel, he had, in fact, managed to secure counsel by December 22, two days after the hearing.

Third, although Evans did not have representation at a hearing after which a protection order was issued against him, this deprivation was not as significant as it might have been in other PO cases, given the trial court’s willingness to accommodate him. The trial court advised Evans twice on the record that it would set a new hearing if, after retaining counsel, he filed a petition to modify the PO. Essentially, the trial court gave Evans a chance to relitigate the allegations in Thomas’s petition, but Evans chose to appeal to this court instead.

Finally, we think that a continuance could have prejudiced Thomas a great deal. As previously mentioned, the conflict between Thomas and Evans was allegedly intensifying quickly and swift judicial action was seemingly justified. Further delay might have put Thomas at risk. Evans has not established an abuse of discretion in this regard.

II. Whether Thomas’s Petition Alleged Conduct Sufficient to Support a PO

Evans argues that Thomas failed to allege conduct in his petition that, even if true, would support a PO. Specifically, Evans contends that none of Thomas’s allegations amount to “stalking” pursuant to Indiana Code sections 34 — 36—5—2(a) (2) (2011) and 35-45-10-5 (2011). Evans, however, did not make any argument on this basis below. As such, Evans has waived this argument for appellate consideration. It is well-settled that “a party may not raise a new argument for the first time on appeal.” Art Country Squire, L.L.C. v. Inland Mortg. Corp., 745 N.E.2d 885, 892 n. 3 (Ind.Ct.App.2001).

III. Whether the Trial Court was Required to Take Evidence

Evans, while acknowledging that he agreed to the issuance of the PO, contends that a full evidentiary hearing was nonetheless required and that public policy demands that this argument is unwaivable. We disagree with Evans’s latter contention and so do not reach the former. Evans notes that one must understand what one is waiving and that the record of the hearing establishes that Evans “had no idea about the nature of the proceedings before him.” Appellant’s Br. p. 23. The record does not support this claim. Our review of the transcript indicates that Evans seems to have understood very well what was happening, and, while his decision not to contest the issuance of the PO may now strike him as unwise, there is no indication that it was the product of confusion.

IV. Whether the Issuance of the Protection Order Denied Evans Due Process

Finally, Evans contends that his due process rights under the United States and Indiana Constitutions were violated. Pursuant to the Due Process Clause of the Fourteenth Amendment, “[generally stated, due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses.” Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842 N.E.2d 885, 889 (Ind.Ct.App.2006). Article I, Section 12 of the Indiana Constitution provides that “every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.” “The same analysis is applicable to both the federal and state claims.” Ind. High Sch. Athletic Ass’n, Inc. v. Carlberg by Carlberg, 694 N.E.2d 222, 241 (Ind.1997).

Evans’s argument in this regard is premised on his contentions that he had insufficient time to obtain legal representation and did not understand the proceedings. As previously mentioned, however, we have little doubt that Evans could have found representation in the time available to him. As for Evans’s contention that he was befuddled by the proceedings, we have already noted that the record indicates otherwise. In any event, Evans does not explain how either of these things, even if true, denied him notice, the opportunity to be heard, or the opportunity to confront witnesses. Evans has not established that his rights to due process and due course of law were infringed.

The judgment of the trial court is affirmed.

BAKER, J., concurs.

ROBB, C.J., concurs in result.

      . This incident, during which Thomas claims he grabbed Evans and the duo butted heads, led to criminal charges being filed against Thomas, in cause number 73D02-1111-CM-1582.


text:
    Jeffrey Allen ROWE, Appellant-Plaintiff, v. Bruce LEMON, et al, Appellees-Defendants.
    No. 49A02-1204-PL-344.
    Court of Appeals of Indiana.
    Oct. 9, 2012.
    Rehearing Denied Nov. 26, 2012.

      Jeffrey Allen Rowe, Pendleton, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.
   OPINION

BARNES, Judge.

Case Summary

Jeffrey Rowe appeals the trial court’s grant of summary judgment in favor of Bruce Lemmon, L.A. VanNatta, Mark Dodd, Stephen Hall, and Wayne Seaife (collectively “the Defendants”). We affirm in part, reverse in part, and remand.

Issues

We restate the dispositive issues before us as:

I. whether Rowe is entitled to pursue monetary damages against the Defendants under either 42 U.S.C. § 1983 or the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); and
II. whether there is a genuine issue of material fact precluding summary judgment on Rowe’s claims under RLUIPA.

Facts

On December 8, 2010, Judge Magnus-Stinson of the United States District Court for the Southern District of Indiana entered a permanent injunction, to be effective within forty-five days, requiring the Indiana Department of Correction (“DOC”) to provide meals certified as kosher to “all inmates who, for sincerely held religious reasons, request them in writing.” App. p. 148. The injunction was not limited only to Jewish inmates, and it resulted from a class action lawsuit brought by DOC inmates under RLUIPA, a federal statute, after the DOC stopped offering certified kosher meals to inmates. In place of the kosher meals, the DOC had been offering a vegan diet option to those inmates instead. As stated by Judge Mag-nus-Stinson, the DOC had previously provided kosher meals not only to Jewish inmates, but also to non-Jewish inmates who had “a sincerely held religious reason” for requesting them. Id. at 121. Judge Magnus-Stinson also noted, as the DOC essentially conceded, that the vegan diet option was not kosher. In other words,

despite the fact that the ingredients used in vegan meals are themselves kosher, the parties agree that a meal made from these ingredients is not necessarily kosher: The problem lies in the preparation, for if, at any point, non-kosher ingredients, water, or plates/utensils that have touched non-kosher food contaminates the vegan food, the meal is no longer kosher.

Id. at 125-26. The kosher meals that the DOC had been serving were prepackaged offsite, so as to avoid any possible contamination with prohibited foods.

On January 19, 2011, Rowe, an inmate at the Pendleton Correctional Facility (“Pen-dleton”), filed an “Offender Request for Religious Accommodation” asking that he be provided kosher meals. Id. at 110. Rowe is not Jewish. Instead, he professes belief in “Identity Christianity,” also known as “The Church of Jesus Christ Christian, Aryan Nations.” Id. at 108. “Identity Christians” believe that members of the white race are the actual physical descendants of the Twelve Ancient Tribes of Israel. Id. Rowe’s request for kosher meals stated in part:

I follow the Biblical Food Laws in Leviticus 11 and Deuteronomy 14. This requires that I only eat animals that part the hoof and chew the cud (i.e., cattle, sheep, antelope, buffalo/bison, caribou, deer/venison, elk, goat, moose etc.), certain birds (i.e. chicken, dove, goose, pheasant, pigeon etc.), and clean “creeping things” (i.e., locusts, crickets and grasshoppers).... In addition, the Bible prohibits me from eating two (or more) different types of meat products at once (for instance, a chicken patty cannot be made from batter that has milk in it). In addition, genetically engineered meat and grain products are prohibited from consumption. Lastly, I am prohibited from eating fat and blood. (Processed food has a lot of by-products in them (which I am prohibited from eating)). Kosher diets follow all the biblical food laws I have listed above and has special requirements for food preparation and distribution to ensure these laws are followed.

Id. at 110. Rowe further stated that God commanded “my people” to follow the Biblical food laws “because our bodies are His temple — where He dwells in us in the person of the Holy Spirit.” Id. at 111. Rowe clarified that a Jewish rabbi did not need to bless his food, “but I do require that my food is biblically ‘clean,’ is prepared right and is served right.” Id. There apparently is not an official “Identity Christianity” doctrine that requires the eating of kosher food; rather, Rowe and a fellow inmate decided that it was required based on their own study of the Bible.

On February 23, 2011, Mark Dodd, the Pendleton Chaplain, wrote Rowe informing him that his request for a kosher diet had been denied by a DOC Central Office committee because his food requirements could be “met by current diet options.” Id. at 14. This letter did not specify what the other option would be, but apparently was referring to the vegan option. One of the members of the DOC Central Office committee that denied Rowe’s request was Chaplain Stephen Hall. In March 2011, Rowe filed a grievance with Wayne Scaife, a “grievance executive assistant” at Pen-dleton, which Scaife denied. Id. at 114. Rowe then filed a grievance appeal, which was denied by DOC employee L.A. Van-Natta for the stated reason that “your religious preference if [sic] Christian.” Id. at 202.

On July 20, 2011, Rowe filed a complaint against Dodd, Hall, Scaife, VanNatta, and Bruce Lemmon, the DOC Commissioner. The complaint specified that Rowe was suing Dodd, Hall, Scaife, and VanNatta in both their official and individual capacities and Lemmon in his official capacity only. Rowe sought compensatory, punitive, and nominal damages against the Defendants, as well as a declaratory judgment and injunction requiring that he be served kosher meals. The complaint invoked RLUIPA and 42 U.S.C. § 1983 for alleged violations of Rowe’s constitutional rights under the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment.

On November 28, 2011, Rowe filed a motion for partial summary judgment. The Defendants filed a cross-motion for summary judgment. On April 4, 2012, the trial court denied Rowe’s motion for partial summary judgment and granted the Defendants’ cross-motion for summary judgment, resulting in dismissal of Rowe’s complaint. Rowe now appeals.

Analysis

Our standard of review for the grant or denial of a motion for summary judgment is the same as it is for the trial court originally ruling on the motion: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind.2010). Summary judgment should be granted only if the designated evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 5. “All factual inferences must be construed in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party.” Id. “The fact that cross-motions for summary judgment are filed does not alter this standard of review.” Keckler v. Meridian Sec. Ins. Co., 967 N.E.2d 18, 22 (Ind.Ct.App.2012), trans. denied.

I. Scope of Available Remedies under RLUIPA and § 1983

Rowe sued the Defendants under RLUIPA and 42 U.S.C. § 1983. Before turning to the particulars of Rowe’s claims against the Defendants, we address the type of relief to which he might be entitled if he was successful in proving his claims and what he would not be entitled to. First, even if Rowe successfully proved a violation of RLUIPA by not being provided a kosher diet, he would not be entitled to recover any money damages on that basis against any of the Defendants. For purposes of federal litigation, suits against state employees acting in their official capacity are treated as suits against the state itself. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). It is clear that money damages cannot be imposed against a state or state employees acting in their official capacity in lawsuits alleging violations of RLUIPA. Sossamon v. Texas, — U.S. -, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). It also is well-settled that “RLUIPA does not authorize any kind of relief against public employees, as opposed to governmental bodies that receive federal funds and accept the conditions attached by the statute.” Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir.2011). Thus, regardless of whether Rowe’s claims against the Defendants are stated in terms of their official or individual capacities, he cannot recover monetary damages against them even if he proves a violation of RLUIPA. See id. The Defendants concede, however, that Rowe is not precluded from seeking injunctive relief against them under RLUIPA if he proves a violation of that law.

Turning to Section 1983, that statute provides a civil remedy against any “person” who, acting under color of state law, subjects an American citizen to a deprivation of any rights, privileges, or immunities secured by the United States Constitution or federal laws. 42 U.S.C. § 1983. The statute does not provide any remedy against states, state entities, or state officials sued in their official capacity. Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 433 (Ind.Ct.App.1996), trans. denied. Rowe, therefore, cannot recover any damages against any of the Defendants under Section 1983 based on any “official capacity” claims.

A government employee acting in his or her individual capacity, however, is a “person” who may be sued under Section 1983. To establish a government employee’s liability under Section 1983, a plaintiff must prove: (1) the existence of a constitutionally-protected right; (2) that he or she was deprived of that right; (3) that the defendant intentionally caused the deprivation; and (4) that the defendant acted under the color of state law. McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.1993). Vicarious liability cannot be imposed under Section 1983 to hold government employees liable for the actions of their subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). Additionally, the Seventh Circuit has specifically held that as a general rule, a prison employee who denies a prisoner’s grievance complaining about the conduct of another employee faces no Section 1983 liability for that act. See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir.2009). The grievance examiner has no duty to “rescue” the prisoner from unconstitutional conduct of others. See id. at 596. In other words, a prison employee’s denial of a prisoner grievance generally does not make that employee liable for the conduct that led to the grievance in the first place.

Here, the conduct that Dodd engaged in was communicating to Rowe a decision made by others — including Hall — that he would not receive kosher meals. The full extent of Scaife’s and VanNatta’s involvement in Rowe’s case was to deny his first level grievance and his grievance appeal. As a matter of law, none of this conduct is sufficient to support a basis of liability under Section 1983 as none of those three persons were alleged to have personally engaged in any deprivation of Rowe’s rights. The only person who might conceivably be subject to damages for a violation of Section 1983 would be Hall, who is the only defendant sued who participated in the original decision not to provide Rowe with kosher meals.

We further note that Rowe’s lawsuit alleging violations of the United States Constitution and federal statutes would be governed by the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e). See Koger v. Bryan, 523 F.3d 789, 804 (7th Cir.2008). Under the PLRA, a prisoner cannot recover compensatory or punitive damages for mental or emotional injury caused by constitutional torts or violations of federal statutes by prison officials, unless there has been a showing of prior physical injury. Id. There is no evidence here that Rowe has suffered any physical injury from Hall’s actions. Thus, to the extent there is the possibility that Rowe could recover damages against Hall, those damages could only be nominal. See id.

Having delineated the relief to which Rowe could be entitled if he was successful on all of his claims, we conclude that it is unnecessary to address the substance of his constitutional claims. RLUIPA provides greater protection for the exercise of religious practice than exists under traditional First Amendment jurisprudence. Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir.2008). Because the remedies to which Rowe would be entitled are virtually identical under either RLUIPA, or Section 1983 for his constitutional claims, and because courts generally seek to avoid adjudicating constitutional issues if at all possible, we will not review Rowe’s Section 1983 constitutional claims. See Borzych v. Frank, 439 F.3d 388, 390 (7th Cir.2006) (addressing prisoner’s claim of infringement of religious liberty solely under RLUIPA and refusing to address his First Amendment claims); see also Koger, 523 F.3d at 801 (same). Not allowing Rowe to proceed on his Section 1983 constitutional claims will preclude him from recovering nominal monetary damages against Hall, but such preclusion is not a reason for reversing the grant of summary judgment on those claims. See Gewartowski v. Tomal, 125 Ind.App. 481, 486, 123 N.E.2d 580, 582 (1955) (holding that even if there is error in failing to award nominal damages to a plaintiff, such error is not a basis for reversal). Thus, we affirm the grant of summary judgment against Rowe on his constitutional claims under Section 1983.

II. RLUIPA

RLUIPA prohibits prison systems that receive federal funding, including the DOC, from substantially burdening an inmate’s religious exercise unless the step in question is the least restrictive way to advance a compelling state interest. See 42 U.S.C. § 2000ec-l(a); see also Borzych, 439 F.3d at 390. RLUIPA allows the filing of a cause of action to enforce the rights it grants. 42 U.S.C. § 2000cc-2(a). To succeed on a claim under RLUIPA, a prisoner must demonstrate that “he wishes to engage in (1) a religious exercise (2) motivated by a sincerely held belief, which exercise (3) is subject to a substantial burden imposed by the government.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312-1313 (10th Cir.2010), cert, denied.

Questions concerning diets for prisoners allegedly mandated by their religious beliefs have generated a voluminous amount of federal litigation. The federal courts of appeal have held that “a prisoner’s religious dietary practice is substantially burdened when the prison forces him to choose between his religious practice and adequate nutrition.” Nelson v. Miller, 570 F.3d 868, 879 (7th Cir.2009) (citing Love v. Reed, 216 F.3d 682, 689-90 (8th Cir.2000) & McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.1987)). The key question in this case, therefore, is whether Rowe’s desire for a kosher meal plan was motivated by a sincerely held religious belief, “rather than a preference for the way a given diet tastes, a belief that the preferred diet is less painful for [some] animals, or a prisoner’s desire to make a pest of himself and cause trouble for his captors.” Vinning-El, 657 F.3d at 594. If Rowe is so motivated, then the DOC is required to provide him with kosher meals, particularly given that the Defendants make no argument that there is a compelling state interest in not providing them.

The sincerity of a person’s religious beliefs for purposes of RLUIPA is a question of fact. Beebe v. Birkett, 749 F.Supp.2d 580, 594 (E.D.Mich.2010) (citing United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863-64, 13 L.Ed.2d 733 (1965) (addressing standard of proof for conscientious objector draft status)); see also United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir.1996) (addressing sincerity standard for predecessor to RLUIPA, the Religious Freedom Restoration Act, cert, denied). Additionally, the question of sincerity is related to a plaintiffs state of mind, and summary judgment is rarely appropriate on such issues. Beebe, 749 F.Supp.2d at 594-95. To be valid and sincere, a religious belief or practice need not be “compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). “A personal religious faith is entitled to as much protection as one espoused by an organized group.” Vinning-El, 657 F.3d at 593. Also, a particular belief or practice need not be “orthodox” within a person’s chosen faith in order to be “sincere,” although orthodoxy of a belief or practice (or lack thereof) may be relevant to an inquiry into a prisoner’s sincerity. Id. at 593-94. We emphasize, for example, that a prison or court would not be required to agree with a prisoner’s asserted “sincere” religious belief that he must regularly eat T-bone steaks, where no such recognized religion required such a diet.

Here, Rowe asserted to the DOC that the kosher meal plan was necessary to comply with his personal religious belief regarding foods prohibited and allowed by the Bible. The DOC already had to provide such meals to persons requesting them for sincere religious beliefs pursuant to Judge Magnus-Stinson’s order. Although Rowe, obviously, is not Jewish, Judge Magnus-Stinson’s order quite clearly does not apply solely to persons of the Jewish faith. And, as the case law makes abundantly clear, there is no requirement that Rowe be Jewish in order to be entitled to kosher meals, nor does Rowe’s belief that he is required to eat such meals have to be orthodox within his chosen religion.

The Defendants do not argue that Rowe is insincere in his belief regarding the necessity of complying with the food laws found in Leviticus and Deuteronomy. However, they contend that the vegan meal option is sufficient to permit Rowe to comply with those laws. They submitted an affidavit from a representative of the contractor providing vegan meals to the DOC, which established that those meals provide all of a person’s necessary nutrition while containing none of the food items Rowe claimed he was forbidden from eating. Regardless, the affidavit does not establish that the vegan meal plan is kosher. In fact, Judge Magnus-Stinson addressed precisely that dilemma in her order. The vegan meal plan, while by itself not including ingredients prohibited by the Biblical food laws, does not guarantee against contamination by prohibited ingredients.

The Defendants essentially contend that Rowe failed to prove that his concept of “kosher” food included the prohibition against any possible contamination of his food by Biblically-prohibited foods. Rowe stated in his application for kosher meals, however, that a kosher diet “has special requirements for food preparation and distribution to ensure these laws are followed,” and that he is required to eat food that “is biblically ‘clean,’ is prepared right and is served right.” App. pp. 110-11. At least for purposes of summary judgment, these statements create a genuine issue of material fact as to whether Rowe sincerely believed, for religious reasons, that it was not only the ingredients of his diet that was important but also the manner of its preparation, so as to avoid contamination.

The Defendants have not established as a matter of law that Rowe lacked sincere religious reasons for requesting a kosher diet. Although the sincerity of Rowe’s adherence to “Identity Christianity” and his need for a kosher diet arguably could be eyebrow-raising, such sincerity, or lack thereof, is a question of fact. See Beebe, 749 F.Supp.2d at 594-95. The Defendants also make no argument that they have a compelling governmental interest in refusing to provide a kosher diet to Rowe. As such, the Defendants were not entitled to summary judgment on Rowe’s RLUIPA claims.

For similar reasons, we decline to direct that summary judgment be entered in Rowe’s favor on this point, as he requests. We decline to rule, as a matter of law and based on a paper record, that he is definitely sincere in his beliefs. In other words, there is a genuine issue of material fact regarding the sincerity of Rowe’s religious belief that he is required to eat only kosher meals that are certified as uncontaminated by “forbidden” foods. We reverse the grant of summary judgment against Rowe on his claims under RLUIPA and remand for further proceedings on those claims.

Conclusion

We affirm the grant of summary judgment against Rowe on his claims seeking recovery under Section 1983 for alleged constitutional violations committed by the Defendants. We reverse the grant of summary judgment against Rowe on his RLUIPA claims and remand for further proceedings on those claims, with the understanding that he is entitled only to declaratory and injunctive relief against the Defendants, i.e. requiring that he be provided with kosher meals, if he is successful in proving those claims.

Affirmed in part, reversed in part, and remanded.

VAIDIK, J., and MATHIAS, J., concur.

      . Because of our ultimate holding, it is unnecessary for us to address Rowe's argument regarding designation of evidence. Also, the State on appeal does not rely upon res judica-ta, and we need not address Rowe’s argument on that point.

      . There are different types of kosher food certifications, depending for example on the extent to which a rabbi has verified that the food is kosher. Rowe asserts that he would be satisfied with kosher meals bearing a "K” designation, which means that a rabbi has not verified that the food is kosher.

      . The Seventh Circuit recognized that there could be certain circumstances in which a grievance examiner could face Section 1983 liability: for example, for routinely shredding all grievances without reading them, or intervening In the conduct of others. Burks, 555 F.3d at 595. There is no evidence of any such conduct by the grievance examiners in Rowe’s case.

      . This order was designated as summary judgment evidence by the Defendants.

      . The Defendants cite Ran-Dav’s County Kosher, Inc. v. State, 129 N.J. 141, 608 A.2d 1353 (1992), for a definition of kosher that focuses primarily on its Jewish origins. As that opinion recognizes, however, "Adherents to certain other faiths, especially those forbidding the consumption of pork, purchase kosher food to comply with their own religious requirements.” Id. at 1356. In any event, it is Rowe's understanding and belief as to what kosher means that is dispositive, not what the traditional or “orthodox” definition of that word is.

      . The Defendants do not argue or direct us to any evidence that this contamination possibility has been eliminated since the time of Judge Magnus-Stinson's order.