author: BARNES, Judge.

text:
    Natalie MEDLEY, Appellant-Plaintiff, v. Bruce LEMMON, Julie Stout, Pam Ferguson, Stacey Milner, Sherry White, L.A. VanNatta, Mike Pavese, Virginia McCullough, Appellees-Defendants.
    No. 61A01-1209-PL-420.
    Court of Appeals of Indiana.
    July 17, 2013.
    Rehearing Denied Sept. 12, 2013.

      Natalie Medley, Rockville, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Natalie Medley appeals the dismissal of her complaint against Bruce Lemmon, Michael Pavese, Julie Stout, Stacey Milner, Pam Ferguson, Virginia McCullough, Sherry White, and L.A. VanNatta (collectively “the Defendants”). We affirm in part, reverse in part, and remand.

Issues

We restate the issues before us as:

I. whether the trial court had subject matter jurisdiction to address Medley’s claims that the Defendants violated provisions of the Indiana Code;
II. whether Medley adequately stated any claims against the Defendants under the Indiana Constitution; and
III. whether Medley adequately stated any claims against the Defendants under the United States Constitution.

Facts

Medley is a prisoner at the Rockville Correctional Facility (“Rockville”). On October 4, 2010, Rockville staff member McCullough recommended that Medley’s visitation privileges be modified to non-contact or video-only visitation for a period of six months after Medley was found to have violated prison rules by fleeing or resisting prison staff. This recommendation was agreed to by Milner, the Rockville assistant superintendent, and approved by Stout, the superintendent. On December 16, 2010, the non-contact visitation restriction was extended for an additional year, after Medley was found to have violated a prison rule by hugging another inmate in the bathroom, which was reported to be sexual in nature. Again, McCullough recommended the punishment, with Ferguson this time agreeing to the recommendation as assistant superintendent and Milner approving it as superintendent. These restrictions on visitation expired on March 13, 2012.

The visitation restrictions were imposed pursuant to a rule of the Indiana Department of Correction (“DOC”), No. 02-01-102, providing that “[Ujpon recommendation of staff and approval of the Facility Head, an offender may be considered for non-contact or video visits for violations of other disciplinary codes, including but not limited to: ... Sex related offenses; Physically resisting staff....” App. p. 91. The rule provides that visitation may be restricted for six months for a first offense, twelve months for a second offense, and permanently for a third offense. Furthermore, the rule, which we refer to as the “three strikes” policy, states that “[t]hese restrictions shall not be considered as a part of any disciplinary action taken against the offender for guilty findings for any of the indicated offenses; but, shall be an administrative action in addition to any disciplinary action taken against the offender.” Id. at 93.

Medley filed grievances regarding these visitation restrictions. They were initially denied by White, a grievance specialist at Rockville, and subsequently by VanNatta, a DOC Central Office grievance specialist. Medley also wrote to Pavese, DOC Policy Manager, regarding the restriction of her visitation, and she claimed that she was being treated unfairly as compared to other inmates who committed similar conduct violations. After the restriction of her visitation, Medley was temporarily transferred to the Indiana Women’s Prison (“IWP”) from January through May 2011.

On May 7, 2012, Medley filed a “Civil Rights Complaint” against Lemmon (the DOC Commissioner), Pavese, Stout, Mil-ner, Ferguson, McCullough, White, and VanNatta. Id. at 16. She stated that she was bringing the suit “pursuant to 42 USC section 1983” and alleged violations of the United States and Indiana Constitutions and Indiana statutes in connection with the restriction of her visitation privileges; Id. Medley also alleged that her temporary transfer to IWP was done in retaliation for her filing of multiple grievances and that she has continued to be retaliated against since her transfer back to Rockville, such as by being placed in an “observation” unit and by restriction of access to the law library. She also claimed that the visitation restrictions were imposed in personal retaliation for her filing of grievances, and that the restrictions were also generally related to a misleading survey conducted of inmates that labeled Rockville one of the worst prisons in America for prison rape. Medley sought injunctive relief prohibiting enforcement of the DOC’s “three strikes” policy regarding non-contact visitation, as well as monetary damages against the Defendants.

On July 5, 2012, the Defendants filed a motion to dismiss Medley’s complaint for failure to state a claim upon which relief could be granted. The trial court granted this motion in its entirety on August 13, 2012. Medley now appeals.

Analysis

We review de novo a ruling on a motion to dismiss a civil complaint for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). Putnam County Sheriff v. Price, 954 N.E.2d 451, 453 (Ind. 2011). “Such a motion tests the legal sufficiency of a claim, not the facts supporting it.” Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind.2010). “That is to say, it tests whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Price, 954 N.E.2d at 453. In ruling on a Rule 12(B)(6) motion, courts are required to view the complaint in the light most favorable to the non-moving party and with every inference in its favor. Id.

Before turning to the merits of Medley’s particular claims, we address her argument that the trial court should not have dismissed her complaint upon the Defendants’ motion because it had already declined to dismiss the complaint under Indiana Code Section 34-58-l-2(a)(2). That statute provides, “A court shall review a complaint or petition filed by an offender and shall determine if the claim may proceed. A claim may not proceed if the court determines that the claim ... is not a claim upon which relief may be granted....” We have noted that this statute “is akin to a legislative interpretation of Indiana Trial Rule 12(B)(6), a rule which has given judges in civil cases the authority ‘to consider a case in its early stages and, taking everything the plaintiff has alleged as true, determine whether it can proceed.’ ” Guillen v. R.D.C. Mail Clerk, 922 N.E.2d 121, 122-23 (Ind.Ct.App.2010) (quoting Peterson v. Lambert, 885 N.E.2d 719, 720 (Ind.Ct.App.2008)). The statute provides the same authority as Trial Rule 12(B)(6) in civil cases involving prisoners acting pro se, but “without requiring a motion by the defendant to trigger the determination.” Id. at 123.

Although Indiana Code Section 34 — 58—1—2(a)(2) and Trial Rule 12(B)(6) are very similar, we see nothing in the statute that would either preclude a defendant from moving to dismiss a pro se prisoner’s complaint under Trial Rule 12(B)(6) or a trial court from granting such a motion. Certainly, nothing in the statute indicates that permitting a pro se offender’s civil lawsuit to proceed is a final, irrevocable ruling that the complaint is legally sufficient. Additionally, it is well-settled that a trial court has the inherent authority to reconsider any previous rulings it has made, so long as the case remains pending (or “in fieri”). Yeager v. McManama, 874 N.E.2d 629, 639 (Ind.Ct.App.2007). Thus, nothing prohibited the trial court here from reconsidering its prior decision to allow Medley’s lawsuit to proceed upon the presentation of a motion to dismiss and supporting argument by the Defendants.

We also note that the State argues that Medley’s appeal is moot to the extent it claims she seeks injunctive relief regarding her six-month and one-year visitation restrictions, which expired on March 13, 2012. “Generally, an issue is deemed to be moot when the case is no longer live and the parties lack a legally cognizable interest in the outcome of its resolution or where no effective relief can be rendered to the parties.” Lake County Bd. of Elections and Registration v. Copeland, 880 N.E.2d 1288, 1291 (Ind.Ct.App.2008). However, it does not appear to us that Medley is requesting any kind of injunc-tive relief with respect to her personal visitation restrictions, as opposed to monetary damages for them having been imposed. She does seek injunctive relief with respect to barring the DOC from generally and prospectively enforcing its “three strikes” visitation policy, and that claim is not moot, nor are her claims seeking damages.

I. Statutory Claims

We first turn to Medley’s claims that the “three strikes” DOC visitation policy, generally and as applied to her, violates two statutes governing prison discipline and visitation, Indiana Code Sections 11-11-5-1 and 11-11-3-9. She notes that Indiana Code Section 11-11-5-4(4) states in part that the DOC “may not impose the following as disciplinary action: ... Restrictions on clothing, bedding, mail, visitation, reading and writing materials, or the use of hygienic facilities, except for abuse of these.” She contends that the “three strikes” policy violates this statute because it is used to restrict prisoner visitation for conduct offenses that have nothing to do with visitation and that her visitation was in fact restricted on the basis of conduct offenses that were unrelated to any “abuse” of her visitation.

Both the trial court and this court are unequivocally precluded from considering Medley’s claims regarding Section 11 — 11— 5-4. In Blanck v. Indiana Department of Correction, 829 N.E.2d 505 (Ind.2005), our supreme court addressed a prisoner lawsuit alleging that DOC discipline of him violated several statutes, including Section 11 — 11—5—4. The court first noted that, while it assumed the statutes conferred substantive rights upon inmates, none of them contained “any provision suggesting that inmates have a right to enforce any such rights in court.” Blanch, 829 N.E.2d at 509. The court also declined to find that the Legislature impliedly intended to confer a private right of action to enforce any of the statutes. Id. at 510. The court also noted that the Indiana Administrative Orders and Procedures Act, which provides the exclusive means for judicial review of agency action, expressly excludes from its scope any “agency action related to an offender within the jurisdiction of the department of correction.” Id. (quoting Ind.Code § 4-21.5-2-5(6)). In sum, the court held that Section 11-11-5-4 did not confer subject matter jurisdiction upon courts to review alleged violations of it. Id. Given this clear statement of law, the trial court correctly dismissed all claims related to that statute because it lacked subject matter jurisdiction to consider them. See id. at 508 (noting trial court dismissed complaint for failure to state a claim under Trial Rule 12(B)(6), but that it actually lacked subject matter jurisdiction, which falls under Trial Rule 12(B)(1)); see also Zimmerman v. State, 750 N.E.2d 387, 338 (Ind.2001) (holding prisoner could not challenge non-contact visitation restriction based on alleged violation of Section 11-11-5-4(4) by the DOC).

The Blanch court was not asked to decide whether a prisoner could obtain judicial review of a claim arising out of an alleged violation of Indiana Code Section 11-11-3-9. Medley claims violations of subsection (a) and (c) of that statute, which provide:

(a) A person may be prohibited from visiting a confined person, or the visit may be restricted to an extent greater than allowed under section 8 of this chapter, if the department has reasonable grounds to believe that the visit would threaten the security of the facility or program or the safety of individuals.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
(c) If the department prohibits or restricts visitation between a confined person and another person under this section, it shall notify the confined person of that prohibition or restriction. The notice must be in writing and include the reason for the action, the name of the person who made the decision, and the fact that the action may be challenged through the grievance procedure.

In a case decided by this court twelve days before Blanch was decided, this court addressed, on the merits, a prisoner’s claim that a DOC policy regarding visitation by minors violated subsection (b) of Section 11-11-3-9. See Doe v. Donahue, 829 N.E.2d 99 (Ind.Ct.App.2005). Our supreme court originally granted transfer in Doe but later rescinded that grant, over the dissent of two justices, thus reinstating Doe as precedent.

To the extent Medley seems to suggest Doe would permit her to bring a private cause of action for judicial review of her specific claims regarding alleged violations of subsections (a) and (c) of Section 11-11-3-9, we disagree. Doe did not address a situation involving prison discipline. Blanch and subsequent cases have made it clear that claims of prison discipline exceeding statutory limits cannot be subjected to judicial review. See, e.g., Israel v. Indiana Dep’t of Correction, 868 N.E.2d 1123, 1124 (Ind.2007). Additionally, in Kimrey v. Donahue, 861 N.E.2d 379, 383 (Ind.Ct.App.2007), this court extended Blanch's holding to bar a lawsuit claiming that a DOC regulation regarding printed materials violated Indiana Code Section 11-11-3-6, even though it was not strictly speaking a disciplinary matter. The policy Medley wishes to challenge and the restriction of her visitation are prison disciplinary matters and, in any event, this is a type of claim we held could not be subjected to judicial review in Kimrey even if it was not strictly a prison disciplinary matter. As with the claim arising under Section 11-11-5-4, the trial court lacked subject matter jurisdiction to consider the claim under Section 11-11-3-9, and it was correctly dismissed.

II. State Constitutional Claims

Next, we address Medley’s arguments based on the Indiana Constitution. First, she contends that the “three strikes” policy violates Article 1, Section 12 of that Constitution, by failing to provide adequate opportunity for a hearing and due process before a prisoner may be limited to non-contact visitation for the remainder of their incarceration. Article 1, Section 12 provides: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” Our supreme court, however, has held that with respect to prison disciplinary procedures and actions, “ ‘The current system of administrative review by policy makers and executive officers within the correction department establishes a fair procedure to resolve disputes, one adequate under due process.’ ” Zimmerman v. State, 750 N.E.2d 337, 338 (Ind.2001) (quoting Hasty v. Broglin, 531 N.E.2d 200, 201 (Ind.1988)).

Medley seems to argue that Zimmerman does not apply here because the DOC has decided to label restriction of visitation under the “three strikes” policy as an “administrative action” to be imposed in addition to any discipline for underlying misconduct, but not “discipline” in and of itself; thus, Medley contends, she is not entitled to the full range of due process protections under the “three strikes” policy because it falls outside of normal DOC disciplinary process channels. This does not change the fact, however, that Medley still has the full range of due process protections with respect to challenging an initial misconduct finding that could lead to a visitation restriction, and she also can challenge via grievance a decision to restrict visitation. Thus, the current grievance procedures by which Medley (or any other prisoner) can challenge a restriction on her visitation under the “three strikes” policy satisfies due process or “due course of law” concerns. Relatedly, the “Open Courts Clause” of Article 1, Section 12, confers no right to judicial review of prison disciplinary actions. See Blmck, 829 N.E.2d at 511.

Medley also argues that the “three strikes” policy, both generally and as applied to her and other inmates, violates Article 1, Section 28 of the Indiana Constitution. Article 1, Section 23 provides: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” The Defendants argue in part that this provision has no application in this case because Medley is challenging prison discipline regulations of the DOC, not any act of the General Assembly. Although Article 1, Section 23 does explicitly refer to acts of the General Assembly, our supreme court has clearly held that this provision governs “not only state statutes, but also the enactments and actions of county, municipal, and other governmental agencies and their equivalents.” Dvorak v. City of Bloomington, 796 N.E.2d 236, 238 (Ind.2003). Also, our supreme court has never given any indication that prisoners are categorically precluded from challenging prison discipline regulations and decisions as violating Article 1, Section 23. Cf. Ratliff v. Cohn, 693 N.E.2d 530, 545-46 (Ind.1998) (addressing on merits but ultimately rejecting claim that placement in adult prison as opposed to juvenile facility violated Article 1, Section 23).

Plaintiffs may raise either facial or as applied challenges under Article 1, Section 23. See Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind.1999). Medley suggests that the “three strikes” policy on its face treats inmates found guilty of consensual sex-related misconduct differently from inmates found guilty of other, more egregious misconduct, and that such differential treatment is not justified by institutional security concerns. However, the policy requires imposition of non-contact visitation for a number of other prison offenses, including possession, use, or distribution of controlled substances, possession of escape materials, possession of a deadly weapon, unauthorized possession or altering of an electronic device, and having incurred multiple tobacco-related offenses. For “sex related offenses,” imposition of non-contact visitation “may be considered” but is not required. App. p. 91. Such imposition also “may be considered” for batteries, resisting staff, possession, use, or making of intoxicants, escape or attempted escape, trafficking, and visiting room violations. Thus, the “three strikes” policy on its face does not single out misconduct for consensual sexual conduct for harsher or different treatment than other offenses. A number of offenses are covered by the policy, with many of them being subjected to harsher treatment than sex-related offenses. Medley has failed to state a claim that the “three strikes” policy facially violates Article 1, Section 23.

Medley also alleges that, in practice, those found guilty of consensual sex-related offenses are subjected to the visitation restrictions while those found guilty of other misconduct are not. Medley’s own complaint, however, contradicts this assertion. Namely, she alleged that the first, six-month imposition of non-contact visitation resulted from a finding that Medley had resisted staff, not that she had committed a sex-related offense. Although Medley’s complaint elsewhere asserts that “inmates guilty of consensual, non-violent sex-related conduct offenses are treated differently than all other similarly situated inmates at IDOC facilities,” we need not ignore the undisputed factual assertion in her complaint to the contrary, namely that she herself was subjected to non-contact visitation because of a non-sex-related offense. App. p. 24. As such, we conclude Medley has failed to state a claim that the “three strikes” policy, as applied to her and others found to have committed sex-related offenses, violates Article 1, Section 23.

III. Federal Constitutional Claims

Finally, we address Medley’s allegations that the Defendants violated her rights under the United States Constitution through implementation of the “three strikes” policy. These claims are governed by 42 U.S.C. § 1983. Section 1983 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. Rowe v. Lemmon, 976 N.E.2d 129, 134 (Ind.Ct.App.2012), trans. denied. “The statute does not provide any remedy against states, state entities, or state officials sued in their official capacity.” Id. Similarly, there is no such thing as vicarious liability under Section 1983. Id.

To establish a claim against a government employee acting in his or her individual capacity, 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.” Id. Generally, a prison employee’s denial of a prisoner grievance does not make that employee liable for the conduct of another prison employee that led to the grievance in the first place. Id. Exceptions to this rule might exist if, for example, a grievance examiner never actually read submitted grievances, or if the examiner improperly intervened in the conduct of others. Id. at 134 h. 3.

Medley claims a violation of her Due Process Clause rights under the Fourteenth Amendment with respect to the manner in which visitation restrictions are imposed under the “three strikes” policy, in that such restrictions are not treated as “discipline” according to the DOC and the decision whether to impose such restrictions is not subject to the ordinary DOC disciplinary and grievance procedures. We have already addressed this issue in the context of Medley’s claim under the Due Course of Law provision of Article 1, Section 12 of the Indiana Constitution, having noted that Medley still enjoys the full due process protections associated with challenging whatever underlying misconduct is used to support a visitation restriction.

Additionally, the United States Supreme Court has held that the type of liberty interests afforded state prisoners that are protected by the Due Process Clause generally is limited to a freedom from restraint that “imposes atypical and significant hardship, on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483-484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418(1995). In other words, procedural due process under the Fourteenth Amendment is not required with respect to prison disciplinary actions unless the discipline represents “a dramatic departure” from what might normally be expected to be the basic conditions of a prisoner’s sentence. Id. at 485, 487, 115 S.Ct. at 2801, 2802. We conclude that here, the change in visitation provided by the “three strikes” policy, from allowing some (albeit limited) physical contact with visitors to no physical contact at all, is not such a draconian punishment that it is a “dramatic departure” from the normal conditions of serving a prison sentence, which necessarily already entails a significant curtailment on interactions with those outside prison. As such, procedural due process protections do not apply to the “three strikes” policy. See Henry v. Dep’t of Corr., 131 Fed.Appx. 847, 849-50 (3rd Cir.2005) (holding state law permitting prisoners to have contact visitation in most circumstances did not create liberty interest in that type of visitation and its revocation was not subject to due process protections).

The Sandin court noted that even if procedural due process does not apply to a prisoner’s claim of improper discipline, the prisoner may still make claims under the First and Eighth Amendments of the Constitution, as well as the Equal Protection Clause of the Fourteenth Amendment. Sandin, 515 U.S. at 487 n. 11, 115 S.Ct. at 2302 n. 11. Medley does argue in part that the “three strikes” policy and its restriction on visitation unconstitutionally infringes upon her “right of association” under the First Amendment. It is true that courts must recognize legitimate constitutional claims of prison inmates. Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). Conversely, courts are reluctant to intervene in prison disciplinary matters because “[rjunning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Id. at 84-85, 107 S.Ct. at 2259. Thus, when a prisoner challenges a prison regulation, he or she must establish that the regulation burdens the exercise of a fundamental constitutional right and that the regulation is not reasonably related to legitimate penological objectives, or that the regulation represents an exaggerated response to those concerns. Id. at 87, 107 S.Ct. at 2260-61.

Medley alleges in her complaint that the “three strikes” policy, in particular as applied as a punitive response to consensual sexual activity between inmates, is an exaggerated response to prison security concerns and serves no legitimate penological objective. However, assuming Medley has a fundamental constitutional right to enjoy continued visitation with outsiders, she fails to cite any authority or make cogent argument for the proposition that there is a fundamental constitutional right to have visitation in which some physical contact is allowed, which is the only limitation imposed by the “three strikes” policy. The Supreme Court has noted that “freedom of association is among the rights least compatible with incarceration.... Some curtailment of that freedom must be expected in the prison context.” Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 2167, 156 L.Ed.2d 162 (2003). Additionally, this court has noted that the DOC “is specifically empowered to place restrictions on visitation to maintain security, promote safety and retain manageability of correctional institutions.” Indiana Dep’t of Corr. v. Stagg, 556 N.E.2d 1338, 1342 (Ind.Ct.App.1990). A number of courts have held that prisoners do not have a constitutional right to contact visitation, or to any particular form of visitation. See Berry v. Brady, 192 F.3d 504, 508 (5th Cir.1999) (holding that manner in which prisoner visitation privileges are exercised are subject to the discretion of prison officials); Thorne v. Jones, 765 F.2d 1270, 1274 (5th Cir.1985) (holding prisoners have no First Amendment right to “physical association” with visitors), cert. denied; Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir.1994); Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir.1998) (citing Kentucky Dep’t of Corn v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989)). Especially in the absence of any cogent argument by Medley to the contrary, we conclude that, as an incarcerated prisoner, she does not have a First Amendment “right to association” that includes the right to contact visitation. As such, we decline to apply the Turner balancing test to her claim regarding the “three strikes” policy.

Medley also claims that the policy and its application to her violate the Equal Protection Clause of the Fourteenth Amendment. This claim parallels her claim under Article 1, Section 23 of the Indiana Constitution, and we reject it for the same reason: inadequate pleading of actual differential treatment under the “three strikes” policy. To the extent Medley claims she personally, as a “class of one,” was singled out for harsher treatment by the Defendants, we believe that claim is more appropriately addressed solely with respect to her claim of improper retaliation. This is because when a prisoner claims an Equal Protection violation by prison officials, he or she must show that the discrimination was intentional or deliberate. Faver v. Bayh, 689 N.E.2d 727, 730-31 (Ind.Ct.App.1997). Also, when an Equal Protection claim is based on alleged “selective enforcement” of regulations by government officials, a plaintiff must show that he or she was selectively treated compared with others similarly situated, and that the selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure the plaintiff. LeClair v. Saunders, 627 F.2d 606, 611 (2nd Cir.1980), cert. denied. Medley’s only allegation of impermissible considerations or intentional conduct boils down to her claim that the Defendants were retaliating against her.

We therefore address that claim: that the Defendants retaliated against Medley for exercising her First Amendment rights to free speech and to seek redress of grievances. Medley states in her complaint that, in September 2010, she filed three grievances complaining about visitation and recreation limitations while being housed in segregated secure quarters. She alleges that the October 2010 restriction on her visitation was imposed in retaliation for those grievances, and that the December 2010 visitation restriction was imposed for the initial grievances as well as her grievances related to the October 2010 visitation restriction. She further alleges that, in January 2011, she was transferred to IWP in retaliation for her filing of grievances and letters that she wrote to the DOC Central Office complaining about her visitation restrictions; she was transferred back to Rockville in May 2011.

It is well-settled by the federal courts that a prisoner may sue prison officials under 42 U.S.C. § 1983 when they are alleged to have retaliated against a prisoner’s exercise of First Amendment rights. See, e.g., Franco v. Kelly, 854 F.2d 584, 590 (2nd Cir.1988); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009); Peterson, 149 F.3d at 1144. The various federal circuits state the requirements of a First Amendment retaliation claim slightly differently, though they are all roughly similar. The Seventh Circuit has held that in order to prevail on such a claim, a prisoner must show that: (1) he or she engaged in activity protected by the First Amendment; (2) he or she suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the prison official’s decision to take the retaliatory action. Bridges, 557 F.3d at 546. The third element implies that there must be a causal connection between the protected activity and the deprivation or “adverse action” taken by a prison official. See Dawes v. Walker, 239 F.3d 489, 492 (2nd Cir.2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Peterson, 149 F.3d at 1144 (holding that a prisoner must prove “but for” retaliatory motive, disciplinary action would not have taken place).

There is no doubt that Medley has adequately alleged the first two elements of a First Amendment retaliation claim. It is generally accepted that a prisoner has a First Amendment right to pursue grievances and that prison officials may not retaliate against a prisoner for exercising that right. See Graham v. Henderson, 89 F.3d 75, 80 (2nd Cir.1996); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.2005). Thus, Medley engaged in protected activity in her filing of grievances. As for whether Medley suffered a deprivation or adverse action, the imposition of visitation restrictions against a prisoner may support a retaliation claim. See Powers v. Snyder, 484 F.3d 929, 933 (7th Cir.2007). The transfer of a prisoner to another facility also may support a retaliation claim. See Hill v. Lappin, 630 F.3d 468, 473 (6th Cir.2010).

The closer question is whether Medley adequately alleged that her visitation restrictions and subsequent prison transfer were causally related to her protected First Amendment activity, or in other words whether the discipline was motivated by her activity. We note that the Eighth and Eleventh Circuits both hold that “an inmate cannot state a claim of retaliation for a disciplinary charge involving a prison rule infraction when the inmate was found guilty of the actual behavior underlying that charge after being afforded adequate due process.” O’Bryant v. Finch, 637 F.3d 1207, 1215 (11th Cir.2011), cert. denied; see also Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir.1990). It does not appear, however, that most other circuits have adopted an iron-clad rule that discipline imposed for a non-falsified rule violation by a prisoner automatically precludes a retaliation action based on the discipline. Again, as stated by the Seventh Circuit, a prisoner need only establish that protected activity was “at least” a motivating factor in the prison official’s decision to take the retaliatory action, not that it must be the sole motivating factor. Bridges, 557 F.3d at 546. Granted, it may be difficult to prove retaliation when, in fact, a prisoner has committed a rule violation and discipline has subsequently been imposed. It is not clear, however, that a retaliation claim should automatically be defeated in such a situation, especially where the decision of what punishment to impose on a prisoner for a rules infraction is entirely discretionary. As the Fifth Circuit has stated:

We emphasize that our concern is whether there was retaliation for the exercise of a constitutional right, separate and apart from the apparent validity of the underlying disciplinary report. An action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate.

Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir.1995) (citing, in part, dissenting opinion in Orebaugh), cert. denied. See also Rauser v. Horn, 241 F.3d 330, 334 (3rd Cir.2001) (declining to follow Eighth Circuit and holding that, in a First Amendment retaliation claim brought by a prisoner, the prisoner must establish that exercise of constitutional right was “a substantial or motivating factor” in a disciplinary decision, which prison officials may rebut with proof that they would have imposed same discipline absent protected activity by prisoner) (citing Mount Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).

Here, Medley does not deny that she committed the offense of resisting staff, which was the basis for her first visitation restriction. She does, however, allege that the second offense for touching another inmate in the restroom was not sexual in nature, but that it was construed that way by prison staff so that it would qualify as a “sex offense” under the “three strikes” policy. Additionally, that policy provides that for either resisting or “sex offenses,” the decision whether to impose non-contact visitation is a discretionary matter. Finally, there is no clear reason in the record currently before us for Medley’s temporary transfer to IWP. We conclude that if prison officials in fact decided to exercise their discretion so as to punish Medley more harshly by revoking her contact visitation privileges and to transfer her to IWP in retaliation for her protected activity and they would not have done so if she had not engaged in that activity, it would be sufficient to state a First Amendment retaliation claim.

We also note that because “the ultimate fact of retaliation for the exercise of a constitutionally protected right rarely can be supported with direct evidence of intent that can be pleaded in a complaint, courts have found sufficient complaints that allege a chronology of events from which retaliation may be inferred.” Benson v. Cady, 761 F.2d 335, 342 (7th Cir.1985) (citation omitted). Similarly, the Second Circuit finds there to be sufficient pleading of causation in a prisoner retaliation case “where the adverse action occurs soon after the protected activity.” Mateo v. Fischer, 682 F.Supp.2d 423, 435 (S.D.N.Y.2010) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2nd Cir.1995)). The chronology of events as listed in Medley’s complaint — i.e., the close proximity in time between her grievance filings and her visitation restrictions and IWP transfer — is sufficient to permit an inference of retaliation. We emphasize that whether Medley will be able to support her retaliation claim at trial, or possibly even on summary judgment, is a different matter altogether and one on which we have no opinion. But for purposes of a motion to dismiss, she has adequately stated a First Amendment retaliation claim.

That being said, the question is against which Defendants she has adequately stated such a claim. Here, Lem-mon, as the DOC Commissioner, had no direct involvement in the disciplinary actions against Medley. All Section 1983 claims against him can only-be characterized as “official capacity” claims and were automatically subject to dismissal. Pavese is a policy coordinator with the DOC, who appears to have responded to letters from Medley regarding restriction of her visitation. Again, at most he merely reviewed the allegedly improper conduct of others at Rockville; this was not enough to sustain any Section 1988 claims against him. The same is true of VanNatta, who works at the DOC Central Office and merely was the second level grievance examiner for Medley’s complaints; all Section 1983 claims against VanNatta were properly dismissed. As for Stout, Milner, McCullough, and Ferguson, they were each alleged to have directly participated in the initial visitation restrictions. These allegations are sufficient to support individual capacity Section 1983 claims against these persons for purposes of a motion to dismiss. Regarding White, although as a grievance examiner at Rockville she might ordinarily be automatically exempt from Section 1983 liability, Medley has alleged that she failed to investigate Medley’s grievances, prevented their processing, and gave inaccurate information regarding the grievance process. At least for purposes for a motion to dismiss, Medley has adequately stated individual capacity Section 1983 claims against White. Medley also specifically alleges in her complaint that Stout, Ferguson, Milner, McCullough, and White were involved in the decision to transfer her to IWP. Thus, Medley has adequately stated First Amendment retaliation claims as to those five individuals.

Conclusion

We affirm the dismissal of all of Medley’s claims related to alleged violations of the Indiana Code and the Indiana Constitution. We also affirm the dismissal of Medley’s Due Process and Equal Protection claims under the United States Constitution, as well as her claim that the “three strikes” policy infringes upon her First Amendment “right of association.” However, we reverse the dismissal of Medley’s First Amendment retaliation claims against Stout, Ferguson, Milner, McCullough, and White; the dismissal of those claims as to Lemmon, Pavese, and Van-Natta is affirmed. We remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

NAJAM, J., and BAILEY, J., concur.

      . Ordinarily, inmate contact with visitors is limited to holding hands, in addition to briefly embracing, kissing, or shaking hands at the beginning and end of visitation: small children who are unable to sit in a chair may sit in an inmate’s lap.

      . After a "permanent” contact visitation revocation, a prisoner may petition after two years to have contact visitation privileges reinstated.

      . The other statutes were Indiana Code Sections 11-10-1-7, 11-11-5-5, 11-11-5-6, and 11-11-5-7.

      . A claim that prison discipline exceeded constitutional, as opposed to statutory, limits is subject to judicial review. See Ratliff v. Cohn, 693 N.E.2d 530, 548 (Ind.1998); Smith v. Indiana Dep’t of Corn, 871 N.E.2d 975, 984 (Ind.Ct.App.2007), trans. denied, cert. denied.

      . In Malone v. Butts, 974 N.E.2d 1025 (Ind.Ct.App.2012), trans. denied, another panel of this court addressed the validity of the “three strikes” policy under Indiana Code Sections 11-11 — 5—4(4) and 11-11-3-9 on the merits after concluding that subject matter jurisdiction existed to address the claim because the prisoner had challenged the policy via a petition for writ of mandate: the panel ultimately held that the "three strikes” policy did not violate the statutes. We respectfully disagree that courts have subject matter jurisdiction to address claims of violations of Indiana Code Sections 11-11-5-4 and 11-11-3-9 under any circumstances. In Zimmerman, the challenge to Section 11-11-5-4(4) had been brought by a petition for writ of mandate, and the court held, "Regardless of the procedural vehicle employed. — whether mandate to compel compliance with statute or direct judicial review of a prison disciplinary decision,” prisoners had no right to judicial review of prison disciplinary actions. Zimmerman, 750 N.E.2d at 338.

      . Medley’s argument on the Indiana Constitution issues is short, and she attempts to refer us to additional argument she made in a brief filed with the trial court. However, "a party may not present an argument entirely by incorporating by reference from a source outside the appellate briefs.” Bigler v. State, 732 N.E.2d 191, 197 (Ind.Ct.App.2000), trans. denied. Our review of these issues is limited to the arguments Medley has made in her brief filed with this court.

      . It appears that the propriety of the "three strikes” policy under the United States Constitution has been repeatedly and unsuccessfully challenged in Indiana federal district courts, albeit in cases resolved by unpublished decisions. See, e.g., Bronson v. Buss, 2010 WL 1418391 (N.D.Ind. April 5, 2010); Thrash v. Levenhagen, 2009 WL 3617682 (N.D.Ind. Oct. 29, 2009); Crawford v. Levenhagen, 2009 WL 2905469 (N.D.Ind. Sept. 9, 2009).

      . To the extent Medley also claims retaliation based upon a prison rape survey that she and others at Rockville completed, her argument on this point lacks cogency because it fails to explain why the Defendants would have used the survey, completed by all Rockville inmates, to single Medley out for harsher treatment.

      . The Defendants argue in part that in Medley’s communications with DOC officials regarding her visitation restrictions, which were attached as "exhibits” to her complaint, she did not directly accuse the officials of retaliating against her, and thus she cannot raise that claim now. We do not believe these communications, even if we considered them to be part of Medley’s complaint, are dispositive at this point in the litigation on the issue of retaliation.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    CONSOLIDATED INSURANCE COMPANY, Appellant, v. NATIONAL WATER SERVICES, LLC, Appellee.
    No. 59A05-1212-PL-632.
    Court of Appeals of Indiana.
    Aug. 27, 2013.

      William H. Kelley, Thaddeus Craig Kelley, Kelley, Belcher & Brown, Blooming-ton, IN, Attorneys for Appellant.
    James C. Tucker, Marilyn Tucker Ful-len, Tucker and Tucker, P.C., Paoli, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

In this interlocutory appeal, Consolidated Insurance Company (“CIC”) appeals from the denial of its motion for judgment on the pleadings pursuant to Ind. Trial Rule 12(C) in favor of National Water Services, LLC (“NWS”). CIC raises one issue which we revise and restate as whether the court erred in denying its motion for judgment on the pleadings. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

NWS obtained employee dishonesty coverage from CIC under Policy CBP8370511 (“the Policy”). The Policy contained the following provision as Section D, Paragraph 19 (“Paragraph 19”):

Transfer of Your Rights of Recovery Against Others to Us: You must transfer to us all your rights of recovery against any person or organization for any loss you sustained and for which we have paid or settled. You must also do everything necessary to secure those rights and do nothing after loss to impair them.

Appellant’s Appendix at 20. NWS suffered losses which were covered by the Policy and submitted a claim to CIC, and CIC ultimately denied coverage to NWS.

On October 11, 2011, NWS filed a complaint in the Orange Circuit Court stating that it was entitled to recover $497,500.00 plus interest from CIC under the Policy. NWS attached a copy of the Policy to its complaint. On December 19, 2011, CIC filed its answer and third party complaint. In its answer portion, CIC noted as a defense that NWS “is barred from recovery because ... [NWS] may have failed to protect and preserve [CIC’s] subrogation rights under the policy” and that accordingly NWS should “take nothing by way of it's Complaint....” Id. at 39. CIC also stated a third-party complaint against David Arnold noting that NWS’s “claim arises out of its allegations that [Arnold] did certain things that are allegedly covered by the [Policy] and that [NWS] has suffered damages as a result of such action” and that CIC “is therefore subrogat-ed to the rights of [NWS] and may be entitled to recover against [Arnold].” Id. at 40.

On February 17, 2012, Arnold filed his answer to third-party complaint and counterclaim against NWS. In his answer, Arnold stated that NWS previously filed suit against him in the same court, and the action was removed to the United States District Court for the Southern District of Indiana, that the claims NWS asserted against him “form the basis of the claim against CIC in this cause,” and that “[a]ll claims against [him] in the federal court action were released by NWS as part of a settlement.” Id. at 43. Arnold also claimed the doctrine of release as an affirmative defense. On March 22, 2012, NWS filed its reply to Arnold’s counterclaim in which it raised the affirmative defense of release, among others, and attached a copy of a Settlement and Release Agreement (the “Release”) entered into between NWS and Arnold, dated September 19, 2011. The Release notes in the caption that it is pursuant to a claim filed in the United States District Court for the Southern District of Indiana at New Albany and stated in part that Arnold agreed to pay NWS a sum of $30,000.00 and that “NWS hereby releases and discharges Arnold for all claims which it has or could have asserted, known and unknown, arising out of the employment of Arnold by NWS both as an employee and an independent contractor.” Id. at 49.

On April 26, 2012, CIC filed its motion for judgment on the pleadings stating that NWS destroyed CIC’s subrogation rights under Paragraph 19 when it settled with Arnold and, as a result, extinguished its right of action under the Policy. CIC also filed a document entitled “Materials in Support of Motion for Judgment on Pleadings” noting that, pursuant to Ind. Trial Rule 56(C), it designated the following materials: the complaint and attached Policy, CIC’s third-party complaint against Arnold, Arnold’s counterclaim against NWS, and NWS’s reply to Arnold’s counterclaim with the attached Release. Id. at 65. On June 21, 2012, NWS filed its response in opposition to CIC’s motion for judgment on the pleadings, and on August 8, 2012, CIC filed its reply to, NWS’s response in opposition to motion for judgment on the pleadings. Also, on September 10, 2012, Arnold filed his response to the motion for judgment on the pleadings filed by CIC supporting CIC’s motion, specifically stating that “Arnold agrees with the argument submitted by [CIC] that NWS is barred from any right to recover under the insurance contract with [CIC] because of the NWS settlement and release of Arnold” and that “[t]he case of Hockelberg v. Farm Bureau Ins. Co., 407 N.E.2d 1160 (Ind.Ct.App.1980)[,] is directly on point_” Id. at 123.

On September 18, 2012, the court held a hearing on CIC’s motion, the parties presented their arguments, and the court asked the parties to submit proposed findings of fact and conclusions of law. CIC and NWS each filed proposed findings, and on October 31, 2012, the court entered its Findings of Fact, Conclusions of Law, and Rule (the “Order”) denying CIC’s motion. CIC filed a motion for certification of interlocutory order to permit immediate appeal, and, on November 19, 2012, the trial court certified its Order for an interlocutory appeal. CIC filed its motion for interlocutory appeal in this court on December 15, 2012, which was granted on January 18, 2013.

ISSUE AND STANDARD OF REVIEW

The issue is whether the court erred in denying CIC’s motion for judgment on the pleadings. We review de novo a trial court’s ruling on a Rule 12(C) motion for judgment on the pleadings. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind.2010). We accept as true the well-pleaded material facts alleged in the complaint, and base our ruling solely on the pleadings. Id. (citing Noblesville Redevelopment Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558, 562 (Ind.1996)). A Rule 12(C) motion for judgment on the pleadings is to be granted “only where it is clear from the face of the complaint that under no circumstances could relief be granted.” Id. (quoting Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 801 (Ind.2001) (quoting Culver-Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind.1994))).

When reviewing a Rule 12(C) motion, we may look only at the pleadings and any facts of which we may take judicial notice, with all well-pleaded material facts alleged in the complaint taken as admitted. Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind.Ct.App.2012). “The ‘pleadings’ consist of a complaint and an answer, a reply to any counterclaim, an answer to a cross-claim, a third-party complaint, and an answer to a third-party complaint.” Id. (citing Fox Dev., Inc. v. England, 837 N.E.2d 161,164 n. 1 (Ind.Ct.App.2005)). “Pleadings” also consist of any written instruments attached to a pleading, pursuant to Ind. Trial Rule 9.2. LBM Realty, LLC v. Mannia, 981 N.E.2d 569, 576 n. 10 (Ind.Ct.App.2012); see also Ind. Trial Rule 10(C) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”).

The provisions of an insurance contract are subject to the same rules of construction as are other contracts. Cincinnati Ins. Co. v. Adkins, 935 N.E.2d 190, 192 (Ind.Ct.App.2010). Thus, the construction of CIC’s Policy presents a pure question of law that we review de novo. Id. If a contract’s terms are clear and unambiguous, courts must give those terms their clear and ordinary meaning. Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind.2005). Courts should interpret a contract so as to harmonize its provisions, rather than place them in conflict. Id. “We will make all attempts to construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless.” Rogers v. Lockard, 767 N.E.2d 982, 992 (Ind.Ct.App.2002). “A contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind.2002), reh’g denied. “When a contract’s terms are ambiguous or uncertain and its interpretation requires extrinsic evidence, its construction is a matter for the fact-finder.” Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind.2010).

DISCUSSION

CIC argues that NWS admits that its claim against CIC is based upon the wrongful acts committed by Arnold and that NWS executed a release with Arnold, and “[i]t is crystal clear after looking at the ‘pertinent parts’ of the” Policy and the Release that NWS “has destroyed [CIC’s] subrogation rights, and therefore has extinguished their right of action against [CIC] under Indiana law.” Appellant’s Brief at 8-9. CIC emphasizes that Paragraph 19 requires NWS to “do everything necessary to secure [its rights of recovery] and do nothing after loss to impair them.” Id. at 9 (emphasis omitted). CIC discusses specific examples in Indiana case law including Hockelberg and Adkins, cited to above, as well as Allstate Ins. Co. v. Meek, 489 N.E.2d 530 (Ind.Ct.App.1986), and maintains that such examples make “abundantly clear” that NWS’s right to recover under the Policy was extinguished when it executed the Release with Arnold. Id. at 10.

NWS argues that the cases cited by CIC are “clearly distinguishable from the instant matter,” noting specifically that Hockelberg is “factually distinguishable” because the claim here is one of “employee fraud and misconduct and not personal injury” and that the settlement in that case “encompassed all claims whereas the release of Arnold ... did not address the claim against [CIC].” Appellee’s Brief at 5-6. NWS cites to Capps v. Klebs, 178 Ind.App. 293, 382 N.E.2d 947 (1979), for the propositions that “subrogation was to be allowed only after the policyholder is fully compensated for his adjudged losses” and that the right to subrogation “does not exist unless the whole debt has been paid.” Id. at 6. NWS also argues that, under Capps, an “insurance company [is] not entitled to proceeds of the settlement unless the insurance policy clearly and unequivocally permitted such subrogation,” and the contract language here is not clear, unequivocal, or certain. Id. at 7.

In its reply brief, CIC notes that NWS “makes no attempt to distinguish or argue against” Adkins, presumably because it “has no available argument to make against the applicability of that holding.” Appellant’s Reply Brief at 9. CIC argues that the Adkins Court discussed “the same language that [NWS] has attempted to argue is not clear and unequivocal and finds that [such an] interpretation ... is inconsistent with the plain language of the policy.” Id. at 10.

In Hockelberg, plaintiff Hockelberg was involved in an automobile accident, sustaining personal injuries, and she sued the driver and the driver’s employer, eventually settling the lawsuit for $15,000. 407 N.E.2d at 1161. As a part, of the settlement, Hockelberg “entered into a release wherein [the defendants] were discharged from all liability arising out of the accident,” and “the cause was dismissed with prejudice to Hockelberg.” Id. Prior to the dismissal, Hockelberg filed a claim with her insurer, Farm Bureau, for $2,000 in medical expenses stemming from the accident, and Farm Bureau informed her that before it would tender payment she “would have to sign a medical subrogation receipt and trust agreement thereby assigning her right of recovery against” the defendants, basing its stance “on the subrogation clause contained in the policy.” Id. Specifically, the subrogation clause stated the following: Id. Hockelberg refused to sign the subro-gation agreement and, following dismissal against the defendants, she renewed her demand against Farm Bureau in which the trial court ultimately granted summary judgment in Farm Bureau’s favor. Id.

In the event of any payment under this policy, the company shall be subro-gated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.

On appeal, Hockelberg argued that summary judgment was improper because there was no evidence that the release prejudiced Farm Bureau’s subrogation rights, and she suggested that the defendants “might waive the affirmative defense of release in a separate suit brought by Farm Bureau against them, thus preserving the right of subrogation.” Id. The court disagreed, noting that “[w]hen the insurer is claiming a right through subro-gation it stands in the shoes of the insured and takes no rights other than those which the insured had. Id. at 1162. The court discussed subrogation as follows:

“Literally, the word means the substitution of one person for another, and as applied in law, it means the substitution of some other person in the place of the creditor, so that the person for whom it is exercised will succeed to the rights of the creditor in relation to the debt. There has been some confusion in the decided cases by a failure to keep in mind the fundamental principle that the creditor for whom the substitution takes place must necessarily have had some right to which the substituted person can succeed. Equity will not do a useless thing, and unless there is thus some right to which the substituted person can succeed, the doctrine of subrogation will not be applied.” First & Tri S.N.B. & T. Co. v. Mass. B. & I. Co. (1936), 102 Ind.App. 361, at 367, 200 N.E. 449, at 452.
Moreover, where the insured releases his right of action against the wrongdoer before settlement with the insurer, the release destroys by operation of law his right of action on the policy. Auto Owners’, etc., Exchange v. Edwards (1922), 82 Ind.App. 558, 136 N.E. 577.

Id. The court affirmed the trial court, holding that Hockelberg foreclosed Farm Bureau’s right to subrogation by granting the defendants a complete release, and that, as a matter of law, she could not recover under the policy. Id.

Next, in Allstate Ins. Co. v. Meek, this court reversed the trial court’s denial of insurer Allstate’s summary judgment motion against Meek, the insured. 489 N.E.2d at 531. Meek had been involved in an automobile accident and sought compensation against the other driver, Bruce. Id. Meek settled with Bruce and executed a release barring further action by her against Bruce, and Allstate denied Meek coverage under her policy because her release prejudiced Allstate’s right of subro-gation. Id. Meek filed a lawsuit against Allstate, and Allstate filed a motion for summary judgment based in part on grounds that the release, as a matter of law, prejudiced its contractual right of sub-rogation, therefore releasing Allstate from its contractual obligations. Id.

After the trial coui't denied summary judgment, an interlocutory appeal ensued in which this court noted the subrogation provision in the insurance policy as follows: “Upon payment under [the policy], Allstate shall be subrogated to the extent of such payment to all of the insured’s rights of recovery therefore. The insured shall do whatever is necessary to secure such rights and do nothing before or after the loss to prejudice such rights.” Id. at 532. We observed:

The policy imposes upon Allstate a duty to pay for damage to Meek’s automobile, regardless of whether the insured or a third party causes the damage. Hoivever, if a third, party causes the damage, the policy contract gives Allstate a right of subrogation after payment to the insured and also imposes a duty upon the insured to refrain from taking any action which prejudices that right. Finally, the insured cannot maintain an action against the insurer if the insured fails to comply with his obligations under the contract.

Id. (emphasis added). Allstate argued, and we agreed, that the matter was governed by Hockelberg, and we reversed and remanded with instructions to enter judgment in Allstate’s favor. Id. at 532-533.

In reversing, we noted Meek’s argument that Allstate’s right of subrogation had not been prejudiced by the release because she “did not receive full compensation for her loss.” Id. at 532. Meek cited to Capps and Willard v. Auto. Underwriters Inc., 407 N.E.2d 1192 (Ind.Ct.App.1980), for the proposition that “until the insured receives full compensation any rights of subrogation are not prejudiced by the release,” and she argued that a factual dispute existed over whether the settlement she received from Bruce constituted payment in full for her loss, therefore precluding summary judgment. Id. In dismissing Meek’s argument, we observed that “Capps and Willard hold an insurer’s right of action against its own insured to recover payments the insurer has made under its policy does not mature until and unless the insured’s debt, i.e. loss, is paid in full” and that “[a] casual reading of these two cases would seem to contradict, if not overrule, Hockelberg....” Id. at 532-533 (emphasis added). We then noted that “in fact, the cases are critically distinguishable” because “[i]n Capps and Willard, the insurer’s contractual right of subrogation continued, although it was held in abeyance until insured received full compensation” whereas “[i]n Hockelberg .... the insurer’s contractual right of subrogation was destroyed. Thus, the two lines of cases are not in conflict but rather are entirely consistent.” Id. at 533 (emphases added) (footnote omitted). We also noted that “[i]n Capps the insured pursued the tort-feasor through judgment and, accordingly, a release or other conduct of the insured was not an issue,” and “[i]n Willard the insurer had given notice to the alleged tortfeasor of its payment to its insured. Therefore, the insurer’s right of subrogation was fully protected even though the insured subsequently released the tortfea-sor.” Id. at 533 n. 2.

Indeed, as noted by CIC, the rule expressed in Hockelberg and Meek was recently reaffirmed in Cincinnati Ins. Co. v. Adkins. Adkins involved an automobile accident between Anita Adkins and Emily Strack in which Adkins held, in addition to primary insurance through Safeco, an umbrella policy with Cincinnati which provided excess underinsured motorist protection. 935 N.E.2d at 191. The policy contained the following provision: “The ‘insured’ must do nothing after loss to impair [any rights held by the insured to recover a payment]. At [Cincinnati’s] request, the ‘insured’ will bring ‘suit’ or transfer those rights to [Cincinnati] and help [Cincinnati] enforce them.” Id. at 191-192. Adkins and Strack settled for a sum of $100,000, and Adkins did not inform Cincinnati of the settlement until after the release had been executed. Id. at 192. After Adkins sought coverage from Cincinnati, Cincinnati asked for a declaratory judgment regarding whether she breached the policy by settling with Strack without informing Cincinnati or seeking its consent. Id. The parties filed cross-motions for summary judgment, and the court granted summary judgment in favor of Adkins, finding that she did not breach the terms of her insurance policy when she settled with Strack without notice or consent of Cincinnati. Id. at 191— 192.

On appeal, we began by observing that Adkins’s release of Strack was a breach of the insurance contract, citing the following language:

[A]n insured who destroys the insurer’s contractual subrogation rights breaches the insurance contract and, as a result, extinguishes his right of action on the policy. An insured destroys the insurer’s contractual subrogation right by releasing the tortfeasor prior to settling with the insurer because it is that very settlement which enables the insurer to protect its subrogation right by giving notice thereof to the tortfeasor.

Id. at 193 (quoting Tate v. Secura Ins., 587 N.E.2d 665, 670 (Ind.1992) (quoting Meek, 489 N.E.2d at 533)) (emphasis added). We held specifically:

The trial court interpreted the Cincinnati policy language that “[i]f the ‘insured’ has rights to recover all or part of any payment ‘we’ have made under this policy, those rights are transferred to ‘us’,” ... to mean “there must be a payment made under the policy that the insured has a right to recover. Then, and only then, must the insured do nothing to impair subrogation rights.”
That interpretation is inconsistent with the plain language of the policy. The policy language is that “[t]he ‘insured’ must do nothing after loss to impair [Cincinnati’s subrogation rights].” As “loss” must necessarily happen before an insurer makes a payment under its policy, it is apparent from the policy language that Adkins’ obligation to notify Cincinnati and obtain its consent before settling with the tortfeasor arose at the time of the accident, not at some later date after Cincinnati made a payment.

Id. (internal citations and footnote omitted) (emphasis added).

DECISION

The situation presented by the instant case is not unlike those in Hockelberg, Meek, and Adkins. Again, the relevant subrogation clause found in Paragraph 19 states: ‘You must transfer to us all your rights of recovery against any person or organization for any loss you sustained and for which we have paid or settled. You must also do everything necessary to secure those rights and do nothing after loss to impair them.” Appellant’s Appendix at 20. This language is substantially similar to that in the cases discussed above. Also, just as in those cases, here NWS settled with Arnold and, in so doing, executed the Release which released Arnold “for all claims which [NWS] has or could have asserted, known and unknown, arising out of the employment of Arnold by NWS both as an employee and an independent contractor.” Id. at 49. This Release “after loss” destroyed CIC’s right of subrogation and was a breach of contract on NWS’s part, therefore discharging CIC from obligation under the Policy to provide coverage. Accordingly, we conclude that the court erred when it denied CIC’s motion for judgment on the pleadings.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s denial of CIC’s motion for judgment on the pleadings and remand with instructions to enter judgment for CIC.

Reversed and remanded.

RILEY, J., and BRADFORD, J., concur.

      . We note that the court’s order in its Findings of Fact recites certain dates which, although discussed by the attorneys at the September 18, 2012 hearing, do not appear to be contained in the pleadings or CIC’s Materials in Support of Motion for Judgment on Pleadings. Specifically, the court’s order notes that the Policy was in effect from October 31, 2009 until September 15, 2010, that NWS submitted its claim to CIC on March 7, 2011, and that CIC denied NWS’s claim on September 23, 2011, which, as discussed further below, was four days following the settlement between NWS and David Arnold, NWS’s former employee, whose actions gave rise to the claim.

      . In his counterclaim, Arnold stated that "NWS filed a claim ... that Arnold had dishonestly misappropriated money from NWS in the amount of $1,178,054,” that the allegations were "totally false and untrue," and that "NWS committed libel against Arnold by making false statements in writing to ... CIC, which were defamatory per se...." Appellant's Appendix at 43-44.

      . The Release contains similar language in which Arnold released NWS for all claims arising out of the employment of Arnold by NWS. Appellant’s Appendix at 49.

      . We note that CIC in its motion for judgment on the pleadings recited the standard of review for summary judgment motions pursuant to Ind. Trial Rule 56(C). Also, the court in its order noted both the standards of review under Ind. Trial Rules 12(C) and 56(C). Ind. Trial Rule 12(C) states that "[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” (Emphasis added). Indeed, this court has observed that if a trial court intends to treat a motion for judgment on the pleadings as a motion for summary judgment by considering materials outside of the pleadings, 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. See Waldrip, 976 N.E.2d at 110.
      Matters outside the pleadings include materials such as depositions, answers to interrogatories, admissions, and affidavits. See Fox, 837 N.E.2d at 164. After reviewing the record, it is clear that the court did not consider matters outside of the pleadings, and on review we similarly consider only the pleadings and written instruments attached pursuant to Ind. Trial Rule 9.2. Thus, our appropriate standard of review is under Ind. Trial Rule 12(C) and not Trial Rule 56.

      . We note that NWS filed an appellee’s appendix containing two letters sent by NWS for the proposition that CIC was on notice of the litigation involving NWS and Arnold, that CIC did not intervene despite such notice, and that it was CIC’s duty to intervene if it wanted to preserve its subrogation rights. See Appellee’s Brief at 4-5 (citing Stewart v. Walker, 597 N.E.2d 368, 372 (Ind.Ct.App.1992), reh’g denied, and Ind. Ins. Co. v. Noble, 148 Ind.App. 297, 265 N.E.2d 419, 433-434 (1970)). However, the issue of existence of these letters was not presented to the trial court, and they are being submitted for the first time on appeal, which NWS may not do. Therefore, this issue is waived. See Yoost v. Zalcberg, 925 N.E.2d 763, 770 (Ind.Ct.App.2010) (holding that issues not raised before trial court on summary judgment cannot be argued for first time on appeal and are waived), reh'g denied, trans. denied. NWS could have submitted affidavits attesting to the existence of such letters under Trial Rule 56, but it chose not to do so.
      Further, we note that CIC in its reply brief makes several arguments that NWS's notice argument fails. First, CIC argues that the rules announced in Stewart and Noble "only apply to uninsured motorist claims.” Appellant’s Reply Brief at 4. Second, regarding the letters themselves, CIC notes that the first letter was sent to a company who investigated the insurance claim for CIC and not CIC itself and that it dealt with an investigation rather than to provide notice of a pending action. CIC also notes that the second letter is dated September 29, 2011, which is after the Release was executed. Third, CIC notes, as we similarly observe above, that the letters "were clearly known to [NWS] at the time of the Motion for the Judgment on the Pleadings, and they were not introduced at the trial level” and that, in any event, they are inadmissible hearsay because they were not authenticated by affidavit under Ind. Evidence Rule 803(6) or otherwise. Id. at 6.


author: BAILEY, Judge.

text:
    PERU CITY POLICE DEPARTMENT and City of Peru, Appellants-Defendants, v. Gregory MARTIN, Appellee-Plaintiff.
    No. 52A02-1304-PL-350.
    Court of Appeals of Indiana.
    Sept. 3, 2013.
    Rehearing Denied Nov. 20, 2013.

      William F. Berkshire, Peru, IN, Attorney for Appellants.
    Kristina L. Lynn, Lynn and Stein, P.C., Wabash, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

City of Peru Chief of Police Steve Hoover (“Chief Hoover”) recommended the termination of Gregory Martin (“Martin”) from the City of Peru police force on account of excessive force and conduct unbecoming an officer with regard to his repeated use of a Taser upon an elderly nursing home patient. The City of Peru Board of Public Works and Safety (“the Board”) conducted a hearing and terminated Martin’s employment. On appeal, the trial court entered judgment reversing the termination decision, finding the Board decision to be unsupported by substantial evidence and arbitrary and capricious. The City of Peru and the Peru City Police Department now appeal, presenting the sole issue of whether the trial court erroneously substituted its decision for that of the Board. We reverse the trial court.

Facts and Procedural History

On June 17, 2012, Martin was dispatched to Miller’s Merry Manor, after nurse Adam Chambers (“Chambers”) called 9-1-1 and requested assistance to transport a combative patient to a hospital. Martin was joined by Officer Jeremy Brindle (“Officer Brindle”). The officers were admitted to the locked Alzheimer’s ward.

After ordering the staff to stay away, the officers entered the room of James Howard (“Howard”), a sixty-four-year-old Alzheimer’s patient. They found Howard sitting in a chair and staring straight ahead. He was naked except for his socks. The officers commanded Howard to get on a gurney but he did not comply. Rather, Howard began “shuffling” toward Officer Brindle. (Tr. 217.) Howard’s fists were clenched at his sides and he had a “blank look” as he advanced, backing Officer Brindle down a hallway to a “T” intersection. (Tr. 217.) Officer Brindle reached out and took hold of Howard’s wrists in order to handcuff him, but lost control of one wrist.

Martin yelled “Taser” and deployed his Taser, with the prongs contacting Howard’s torso. (Tr. 62.) Howard fell to the floor and onto his back. He was unable or unwilling to comply with officer commands to turn onto his stomach for handcuffing, and exhibited some voluntary or involuntary movement when he was not immobilized by the Taser. Ultimately, Martin used the Taser device upon Howard five times, with a total deployment of thirty-one seconds. Three were no-prong, skin-contact deployments referred to as a drive-stun. The Taser data printout revealed the following sequence:

Initial deployment: 5 seconds
Taser off: 6 seconds
Second deployment: 5 seconds
Taser off: 19 seconds
Drive-Stun: 5 seconds
Taser off: 2 seconds
Drive-Stun: 5 seconds
Taser off: 7 seconds
Drive-Stun: 11 seconds

(Tr. 586-89.) After the third Taser application, Howard was handcuffed. He was taken to the hospital, where his injuries were documented and found to include a black eye, bruising, marks on his side, and skin abrasions.

After Howard’s wife complained about the treatment her husband had received, an internal investigation was launched and Martin was placed on administrative leave. Chief Hoover recommended Martin’s dismissal due to his opinion that Martin had used excessive force and due to alleged inconsistencies between Martin’s initial report and his statements during the internal investigation.

On July 30 and August 10, 2012, the Board conducted a hearing at which several police officers and medical providers testified. Generally, the nursing home staff described Howard as combative before the 9-1-1 call, although he was more subdued and sitting in a chair when the officers arrived. The nursing home staff uniformly opined that Howard could have been controlled without- Taser deployment. By contrast, each of the officers involved, Dukes Hospital EMT Marcus Corn, and paramedic Nikki Shambarger opined that Martin did not use excessive force. However, Officer Brindle conceded that he and Martin could likely have gained control over Howard had each grabbed a wrist.

The Board found that Martin had used excessive force and engaged in conduct unbecoming an officer. Martin was discharged from his employment and he sought review in the trial court pursuant to Indiana Code section 36-8-3-4.

On December 14, 2012, the trial court conducted a hearing at which counsel for the parties represented that there was no new evidence to submit. However, the trial court ordered the parties to submit proposed findings of fact and conclusions of law. According to the trial court’s March 18, 2013 order, the trial court “reviewed the statute, court filings, and read in its entirety the record of the Board of Public Works and Safety of the City of Peru related to this action.” (App. 7.) The trial court then entered more than one hundred “reasons that the decision should not be affirmed.” (App. 7.) This appeal ensiled.

Discussion and Decision

I. Standard of Review

This Court reviews a decision of a municipal safety board as it does that of one by an administrative agency. Ind. Code § 36-8-3-4. Our review of an administrative decision is limited to whether the agency decision rests upon substantial evidence, whether the decision was arbitrary and capricious, and whether it was contrary to any constitutional, statutory, or legal principle. Fornelli v. City of Knox, 902 N.E.2d 889, 892 (Ind.Ct.App.2009), tram, denied. We do not conduct a de novo trial, but defer to the fact-finding of the agency, so long as the findings are supported by substantial evidence. Id. Neither the trial court nor this court is permitted to reweigh the evidence or reassess witness credibility. Id.

Indiana Code section 36-8-3-4(h) provides that “[a] decision of the safety board is considered prima facie correct, and the burden of proof is on the party appealing.” Thus, an aggrieved party who is attacking the evidentiary support for the agency’s findings bears the burden of demonstrating that the agency’s conclusions are clearly erroneous. Davis v. City of Kokomo, 919 N.E.2d 1213, 1222 (Ind.Ct.App.2010). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Civil Rights Comm’n v. Marion Cnty. Sheriffs Dep’t, 644 N.E.2d 913, 915 (Ind.Ct.App.1994), trans. denied). An arbitrary and capricious decision is one which is “patently unreasonable” and made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion. City of Indpls. v. Woods, 703 N.E.2d 1087, 1091 (Ind.Ct.App.1998), trans. denied.

In addition, “the discipline of police officers is within the province of the government’s executive, rather than judicial, branch.” Sullivan v. City of Evansville, 728 N.E.2d 182, 187 (Ind.Ct.App.2000) (citing McDaniel v. City of Evansville, 604 N.E.2d 1223, 1225 (Ind.Ct.App.1992), trans. denied). “For this reason, we will not substitute our judgment for that of the administrative body when no compelling circumstances are present.” Id.

II. Analysis

The following testimony and documentary evidence supports the Board’s determination that Martin used excessive force and engaged in conduct unbecoming an officer. Martin was dispatched to transport an elderly nursing home patient to a hospital. He was admitted into a locked ward and was able to make certain observations upon his arrival at Howard’s room: Howard was unclothed except for socks, he was seated and staring straight ahead, and he was verbally uncommunicative. Although Martin may not have been privy to a specific Alzheimer’s diagnosis, he was in a position to ascertain that the individual to be transported was an elderly and infirm person. Lieutenant Matthew Feller (“Lieutenant Feller”) testified that, when he arrived at the hospital to photograph Howard’s injuries, he was able to determine, “within the first minute of meeting him,” that there were “apparent ... medical issues to the point that he could not even have a discussion ... or respond to any question.” (Tr. 38.)

Martin deployed the Taser and Howard hit the floor with a “slapping type thud.” (Tr. 189.) The impact was so forceful that several of the nursing home staff were concerned that Howard had broken a hip or shoulder. According to Chambers, Howard “kind of flail[ed] around on the floor” as Martin repeatedly deployed the Taser. (Tr. 189.) Howard tried to sit up, but was unsuccessful. The multiple electrical charges put Howard into a “zonked out” state that Chambers described as “very lethargic, if not moving at all.” (Tr. 190.) Chambers opined that the use of the Taser was unnecessary to induce compliance, as did nursing assistants U.L. Jones (“Jones”), Crystal Dunham, and Jodi Wor-den. Jones testified that he had personally been able to hold Howard at bay earlier in the day by placing his hand on Howard’s chest.

Martin had, in April of 2012, been recer-tified on the use of a Taser, missing only one question on his written examination. His trainer, Jon Jumper (“Jumper”) testified that Martin had specifically been instructed — in the recertification presentation — on the increased risk of death or serious injury for exposure over 15 seconds, whether due to multiple applications or continuous cycling. Martin had been instructed to avoid using a Taser on an “elevated-risk population” unless necessary and justifiable and was also instructed to attempt to verify “the person who is being Tased is capable of complying.” (Tr. 87.) However, during the investigation as to use , of force, Martin-stated to Lieutenant Feller: “I have no idea if [Howard] could understand commands or not, he never spoke to us the entire time.” (Tr. 85.)

The printed training materials (which had been displayed on a computer screen during training) advised: “Officer should consider that ECD exposure for longer than 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious injury,” (Ex. 5, pg. 4); “Any subsequent ECD exposure (beyond 15 seconds of multiple applications or continuous cycling) should be independently justifiable, and the risks should be weighed against other force options,” (Ex. 5, pg. 5); “[Officer] must give adequate time for volitional compliance: time ‘to recover from extreme pain’ experienced, opportunity to ‘gather herself,’ opportunity to ‘consider her refusal to comply’ with officer’s commands/directives before next force application,” (Ex. 5, pg. 13); “Person must be given a reasonable opportunity to comply with officer’s directives prior to each ECD drive-stun application,” (Ex. 5, pg. 14); “Any decision to apply multiple ECD [5 second] applications must take into consideration whether a suspect is capable of complying with officers’ commands,” (Ex. 5, pg. 24); “ECD use on these individuals [including the infirm and the elderly] could increase the risk of death or serious injury.” (Ex. 5, pg. 48.)

Although greater duration than 15 seconds is not absolutely prohibited, the training materials repeatedly reference 15 seconds as an important benchmark. The majority of testing has been done for up to 15 seconds. Continued application is considered riskier and greater justification is required. Also, it is made plain that risks are heightened in vulnerable populations.

Finally, the officer is mandated to allow time for compliance. According to Jumper, the police personnel appearing for re-certification training had been informed of a determination, in one particular case that had been litigated, that 36 seconds between Taser applications was insufficient to facilitate compliance. Here, the benchmark time was more than doubled — in five applications inflicted upon an elderly naked man in a nursing home, imminently destined for a hospital. Intervals to achieve compliance were very short, with only a two-second interval between the third and fourth deployments. Moreover, it is noteworthy that Howard was handcuffed after the third Taser application.

In sum, there is substantial evidence supporting the Board’s decision. It is not “patently unreasonable.” Woods, 703 N.E.2d at 1091. The trial court disregarded evidence favorable to that decision, credited the testimony of witnesses that the trial court did not personally hear, and misstated evidence regarding the scope of Martin’s training. In short, the trial court reweighed the evidence and reassessed the credibility of witnesses.

Substantial evidence supports the Board’s findings, and its decision to terminate Martin for use of excessive force and conduct unbecoming an officer was not arbitrary and capricious.

Reversed.

MAY, J., and BRADFORD, J., concur.

      . Howard had struck his roommate, a nursing assistant, and a nurse. A physician had ordered a shot of Ativan to calm Howard after the first incident. However, Howard had a documented history of adverse reactions to Ativan; after he was given the shot, he became more agitated. When the staff reported heightened agitation, the physician then ordered that Howard be transported to Dukes Hospital.

      .According to Taser trainer Jon Jumper, the drive-stun technique can "greatly increase the effect ... by touching it somewhere on the body,” completing the circuit, and involving more muscles. (Tr. 291.) The drive-stun can leave "signature marks” which are "essentially burns.” (Tr. 299.)

      . A report, in handwriting that Chief Hoover believed to be Martin’s, stated that zero "touch stuns” were implemented. (Tr. 334.)

      . Shambarger is Martin’s fiancée.

      . Indiana Code section 36 — 8—3—4(i) requires that the trial court enter specific findings.

      . No witness testified to having specifically told Martin of Howard's Alzheimer’s diagnosis. However, one employee reported during the internal investigation that he had told Martin he “was in the Alzheimer’s unit.” (Tr. 166.)

      . Jumper specified that Exhibit 5 (consisting of Version 18 materials, supplemented with Version 17 materials) were the recertification training materials taught to Martin via a slide presentation. Martin testified that he had seen the slides.