APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Dean E. Blanck Steve Carter
Attorney General of Indiana
Joby Jerrells
Deputy Attorney General
______________________________________________________________________________
In the
Indiana Supreme Court
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No. 52S02-0409-CV-405
DEAN E. BLANCK,
Appellant (Plaintiff below),
v.
IND. DEP’T OF CORR.,
Appellee (Defendant below).
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Appeal from the Circuit Court of Miami County, No. 52C01-0308-CT-397
The Honorable Rosemary Higgins Burke, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 52A02-0309-CV-800
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June 22, 2005
Sullivan, Justice.
Dean E. Blanck, an inmate whose complaints against Indiana’s prison system are a regu-
lar topic of our federal cousins’ prose, 1 was disciplined for misconduct in prison and appealed to
1
See Blanck v. Vannatta, 115 Fed. Appx. 884 (7th Cir. 2004); Blanck v. Cohn, 65 Fed. Appx. 74 (7th Cir.
2003); Blanck v. Anderson, 22 Fed. Appx. 641 (7th Cir. 2001); Blanck v. Anderson, 14 Fed. Appx. 688
(7th Cir. 2001); Blanck v. Hobson, 2000 U.S. App. LEXIS 11093 (7th Cir. 2000).
one of our state courts. Following long-standing precedent precluding judicial review of prison
disciplinary decisions, the trial court dismissed his complaint. The Court of Appeals reversed,
finding that several provisions of the Indiana Constitution and Indiana Code entitled Blanck to
judicial review of his discipline. We hold that the complaint should have been dismissed for lack
of subject matter jurisdiction; none of the provisions relied upon by the Court of Appeals confer
subject matter jurisdiction over claims challenging judicial review of prison disciplinary deci-
sions.
Background
The papers submitted to us in this case suggest the following. While incarcerated at Mi-
ami Correctional Facility, a state prison, Dean Blanck was convicted pursuant to prison discipli-
nary procedures of violating prison rules. As punishment for his misconduct, Blanck was re-
moved from the general prison population and placed into a segregation unit. The Department of
Correction (“DOC”) did not conduct periodic reviews of his segregation. Blanck challenged his
discipline, alleging that certain statutory rights to periodic review of his segregation placement
had been violated and that he was entitled to judicial review under the Open Courts Clause of
Article I, Section 12, of the Indiana Constitution.
The trial court concluded that Blanck was “inviting judicial review of prison disciplinary
actions, prohibited by Hasty v. Broglin, 531 N.E.2d 200 (Ind. 1988),” and sua sponte dismissed
Blanck’s complaint for failure to state a claim upon which relief could be granted under Indiana
Trial Rule 12(b)(6). Miami Circuit Court Order, No. 52C01-03-08-CT-397 (Aug. 11, 2003).
The Court of Appeals reversed the trial court’s ruling. Blanck v. Ind. Dep’t of Corr., 806 N.E.2d
788, 789 (Ind. Ct. App. 2004). We granted transfer, 822 N.E.2d 975 (Ind. 2004), and now affirm
the trial court.
2
Discussion
I
For a quarter-century, our Court has held that DOC inmates have no common law, statu-
tory, or federal constitutional right to review in state court DOC disciplinary decisions. This was
the holding of Justice DeBruler’s opinion for a unanimous court in Riner v. Raines, 274 Ind. 113,
409 N.E.2d 575 (1980). We reaffirmed the holding of Riner in Justice Prentice’s opinion in Ad-
ams v. Duckworth, 274 Ind. 503, 412 N.E.2d 789 (1980); in Chief Justice Shepard’s opinion in
Hasty in 1988; and, most recently, in Justice Dickson’s opinion in Zimmerman v. State, 750
N.E.2d 337 (Ind. 2001).
In a separate opinion in Zimmerman, Justice Boehm wrote that in his view, a future state
court challenge by an inmate to prison discipline might not be subject to dismissal despite the
Riner-Adams-Hasty-Zimmerman line of cases because those cases left “open” the following
questions:
[D]oes Indiana Code Section 11-11-5-4, which prohibits the De-
partment of Corrections from imposing certain disciplinary actions,
create a statutory right? If so, does Article I, Section 12 of the
Indiana Constitution guarantee inmates a right to judicial review of
disciplinary proceedings allegedly in violation of that statute?
Zimmerman, 750 N.E.2d at 338-39 (Boehm, J., concurring in result). Blanck presented Justice
Boehm’s questions to the Court of Appeals and our colleagues there answered them in the af-
firmative. The Court of Appeals held that Blanck had properly raised these two “issues of first
impression” and that the trial court had been wrong to dismiss his complaint. “[H]e is entitled,”
the Court of Appeals said, “to his day in court to have those issues decided on the merits.” B-
lanck, 806 N.E.2d at 791.
3
II
Indiana Trial Rule 12(B)(6) subjects to dismissal complaints that “fail[ ] to state a claim
upon which relief can be granted.” As noted above, it was on this basis that the trial court dis-
missed Blanck’s complaint. As our opinions in Riner, Hasty, and Zimmerman make clear, how-
ever, the threshold inquiry in these prison discipline cases is whether the trial court has jurisdic-
tion over the subject matter. If subject matter jurisdiction is lacking, a complaint is subject to
dismissal under Trial Rule 12(B)(1). Resolution of the subject matter jurisdiction issue involves
determining whether the claim advanced falls within the general scope of authority conferred
upon the court by constitution or statute. State ex rel. Camden v. Gibson Circuit Court, 640
N.E.2d 696, 697 (Ind. 1994); Williams v. Williams, 555 N.E.2d 142, 144-45 (Ind. 1990); State
ex rel. Young v. Noble Circuit Court, 263 Ind. 353, 356, 332 N.E.2d 99, 101 (1975). We are
constrained to observe that neither Blanck nor the Court of Appeals gives any explanation as to
how the provisions of the Indiana Constitution and Indiana Code on which they rely create sub-
ject matter jurisdiction over claims seeking judicial review of DOC discipline decisions.
III
In this case, the Court of Appeals held that the trial court had been wrong to dismiss
Blanck’s complaint because he was entitled to a ruling on the merits of his claim that:
he has a state created statutory right by the provisions of Ind.
Codes § 11-11-5-4, § 11-11-5-5, § 11-11-5-6, § 11-11-5-7 and §
11-10-1-7 protected by the State Constitution, and that Article [I],
Section 12 of the Indiana Constitution “Open Courts Clause” is a
guaranteed right to judicial review of state laws where prison offi-
cials have imposed arbitrary forms of disciplinary punishments in
direct violation of these statutes [i.e.] I.C. 11-11-5-4.
Blanck, 806 N.E.2d at 791 (quotations omitted).
4
A
Blanck contends that five provisions of the Indiana Code provide him with a right to ju-
dicial review of determinations made by the DOC:
Indiana Code Section 11-10-1-7, which requires periodic review of
the reasons for segregation of an offender where the DOC has
found that “segregation is necessary for the offender’s own physi-
cal safety or the physical safety of others.” 2 Ind. Code § 11-10-1-
7(a) (2004).
Indiana Code Section 11-11-5-4, which prohibits the DOC from
using various forms of discipline, e.g., corporal punishment; a sub-
stantial change in heating, lighting, or ventilation; restrictions on
medical and dental care.
Indiana Code Section 11-11-5-5, which prohibits the DOC from
imposing any discipline before affording the person charged with
misconduct a hearing to determine his or her guilt or innocence
and, if guilty, the appropriate action. This section also sets forth a
detailed set of procedural requirements for such hearings.
Indiana Code Section 11-11-5-6, which requires periodic review of
the reasons for segregation of an offender charged (but not yet
found guilty of) misconduct.
Indiana Code Section 11-11-5-7, which requires periodic review of
the reasons for segregation of an offender found guilty of miscon-
duct.
While each of these statutes imposes certain duties on the DOC and, we assume, confers
substantive rights on inmates, none of them contains any provision suggesting that inmates have
a right to enforce any such rights in court. So if there is subject matter jurisdiction over claims to
enforce any such rights, it must either be because the Legislature intended it to be inferred from
these statutes or because it is provided elsewhere in law.
2
Indiana Code Section 11-10-1-7, by its terms, does not apply to cases of segregation imposed on inmates
charged with or found guilty of misconduct. Blanck’s complaint indicates that he seeks judicial review of
“disciplinary punishments.” Thus it appears that Section 11-10-1-7 is not relevant to his situation.
5
Sometimes the Legislature will be quite explicit in providing that persons with appropri-
ate standing are entitled to go to court and ask for enforcement of a statute’s provisions. These
provisions are often referred to as “private rights of action” or “private causes of action.” (We
recently identified some statutes that provide for private rights of action in State Bd. of Tax
Comm’rs v. Town of St. John, 751 N.E.2d 657, 661 (Ind. 2001) (listing statutes that provide a
private right of action for recovery of attorney’s fees).) And where a legislative body does not
explicitly provide a private right of action to enforce the provisions of a particular statute, courts
are frequently asked to find that the Legislature intended that a private right of action be implied.
(One notable example is litigation in which courts have been asked to find an implied private
right of action against those who aid or abet violations of federal securities statutes. See Central
Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 169 (U.S. 1994) (noting that “the first
and leading case to impose the liability was Brennan v. Midwestern United Life Ins. Co., 259 F.
Supp. 673 (N.D. Ind. 1966)” (Eschbach, J.)).
Courts have developed certain rules for attempting to divine legislative intent in these
circumstances. A broad formulation of these rules is that a private cause of action generally will
be inferred where a statute imposes a duty for a particular individual’s benefit but will not be
where the Legislature imposes a duty for the public’s benefit. Americanos v. State, 728 N.E.2d
895 (Ind. Ct. App. 2000), transfer denied, 741 N.E.2d 1254. But this formulation barely crosses
the starting line before a series of interpretative questions arise. How do we know when a duty is
imposed for a particular individual’s benefit? For the public’s benefit? What happens when it
seems as if the duty is imposed for both?
We are able to sidestep these types of questions here. While an argument can be made
that the duties imposed on the DOC in these prison discipline statutes are for the public’s benefit,
the stronger argument seems to us to be that these duties are imposed for the benefit of the in-
mates, and, in any event, we assume they are. But even if that be so, the question here is ulti-
mately one of legislative intent, and we find that the Legislature does not intend that inmates
have a private right of action to enforce these statutes.
6
The Indiana Administrative Orders and Procedures Act, Indiana Code Sections 4-21.5-1-
1 through 4-21.5-7-9 (“AOPA”), governs the orders and procedures of state administrative agen-
cies, including the DOC. Chapter 5 of the AOPA “establishes the exclusive means for judicial
review of an agency action,” Ind. Code § 4-21.5-5-1 (2004), including agency action highly
analogous to the disciplinary action challenged in this case. 3 But as the State points out, the Leg-
islature has specifically excluded from the AOPA’s application any “agency action related to an
offender within the jurisdiction of the department of correction.” I.C. § 4-21.5-2-5(6). We con-
clude that the clear intent of the Legislature here is to deny to inmates charged with or found
guilty of misconduct the procedure specified in the AOPA, including judicial review. And with
the intent of the Legislature on this point being clear, we are not free to infer a private right of
action.
We further conclude that whatever doubt the statutes may leave as to whether inmate dis-
cipline decisions are subject to judicial review is resolved in the negative because of the long pe-
riod of legislative acquiescence to our decisions to that effect. As noted above, these decisions
date back to Riner and Adams in 1980. The topic has also been addressed with great frequency
by our federal court colleagues—a LEXIS search indicates that well over 100 such cases have
been reported. “[T]he failure of the Legislature to change a statute after a line of decisions of a
court of last resort giving the statute a certain construction, amounts to an acquiescence by the
Legislature in the construction given by the court, and that such construction should not then be
disregarded or lightly treated.” Miller v. Mayberry, 506 N.E.2d 7, 11 (Ind. 1987) (citing cases).
We hold that none of the prison discipline statutes cited confer subject matter jurisdiction
over claims challenging judicial review of prison disciplinary decisions.
3
See, e.g., Ind. Code § 4-2-6-4(b)(2)(D) (judicial review of proceedings for violations of the state ethics
code); Regester v. Ind. State Bd. of Nursing, 703 N.E.2d 147, 148 (Ind. 1998) (judicial review of the dis-
cipline of a nurse for writing prescriptions without a license); Pendleton v. McCarty, 747 N.E.2d 56, 60
(Ind. Ct. App. 2001) (judicial review of the discipline of insurance agents for dishonest practices), transfer
denied, 761 N.E.2d 425; Taylor v. Ind. Family & Soc. Servs. Admin., 699 N.E.2d 1186, 1188 (Ind. Ct.
App. 1998) (judicial review of the revocation of a foster home license for foster parent misconduct);
Common Cause v. State, 691 N.E.2d 1358, 1362 (Ind. Ct. App. 1998) (judicial review of civil sanctions
imposed for violations of a lobbyist registration law); Evansville State Hosp. v. Perry, 549 N.E.2d 44, 45
(Ind. Ct. App. 1989) (judicial review of the dismissal of a state employee for misconduct).
7
The effective appellate advocate identifies for the court authority contrary to the advo-
cate’s position and we express our appreciation to the Attorney General for doing so here. In
Ratliff v. Cohn, 693 N.E.2d 530, 548 (Ind. 1998), this Court rejected the DOC’s argument that
Indiana Code Section 4-21.5-2-5(6) barred an inmate’s claim. Neither Blanck nor the Court of
Appeals invokes Ratliff. In any event, we agree with the State that Ratliff’s claim was of a fun-
damentally different character than Blanck’s. Far from being related to prison discipline or mis-
conduct, Ratliff was a juvenile who sought declaratory and injunctive relief contending that her
incarceration with adult offenders violated the Indiana Constitution. Ratliff’s holding does not
extend to prison discipline or misconduct cases.
B
Blanck also contends, and the Court of Appeals held, that the Open Courts Clause of Ar-
ticle I, Section 12, 4 of the Indiana Constitution “guarantees” him judicial review of the DOC’s
disciplinary decisions.
While the question of whether relief is available under the Open Courts Clause in specific
situations divides the members of this Court from time to time, 5 we find no support for the con-
cept that the Open Courts Clause, standing alone, confers subject matter jurisdiction over claims
to judicial review of DOC disciplinary decisions. Nor do we find support for a more limited con-
tention to the effect that the Open Courts Clause entitles Blanck to judicial review to enforce the
rights arguably provided by the prison discipline statutes. Intuition from the preceding section of
this opinion suggests the opposite. If the Open Courts Clause, either standing alone or as kind of
a jurisdiction-conferring mechanism for statutory rights, entitles Blanck to judicial review, then it
would also entitle any person with appropriate standing to judicial review to enforce the rights
provided by any statute. But if that be so, it would never be necessary to analyze whether the
4
The first clause of Article I, Section 12, which we refer to as the Open Courts Clause for purposes of
this opinion, provides: “All courts shall be open.” It goes on to provide: “[A]nd 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 de-
lay.” Ind. Const. art. I, § 12.
5
See, e.g., McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000); Martin v. Richey, 711 N.E.2d 1273 (Ind.
1999).
8
Legislature intended that a private right of action be inferred from a statute; the Open Courts
Clause would provide it.
We observed in Martin v. Richey that we have never held that the Open Courts Clause
provides a substantive “right” of access to the courts or to bring a particular cause of action to
remedy an asserted wrong. 711 N.E.2d 1273, 1283 (Ind. 1999) (citing Rohrabaugh v. Wagoner,
274 Ind. 661, 664, 413 N.E.2d 871, 893 (1980)). (We have also held that the Open Courts
Clause does not prevent the Legislature from creating, modifying, or abolishing causes of action.
Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003); Martin, 711 N.E.2d at 1283.) The Open
Courts Clause requires that where a cause of action has been created (by constitution, statute, or
common law), courts must be open to provide remedy by due course of law. McIntosh v. Melroe
Co., 729 N.E.2d 972, 979 (Ind. 2000) (plurality opinion). The Open Courts Clause itself, how-
ever, does not confer subject matter jurisdiction, at least not over claims challenging judicial re-
view of prison disciplinary decisions.
Conclusion
Having previously granted transfer, we now affirm the trial court’s dismissal of Blanck’s
complaint; for the reasons discussed above, it should have done so for lack of subject matter ju-
risdiction under Trial Rule 12(b)(1), rather than for failure to state a claim upon which relief can
be granted under Trial Rule 12(b)(6).
Shepard, C.J., and Dickson, J., concur. Boehm, J., concurs in result with separate opinion, which
Rucker, J., joins.
9
Boehm, J., concurring in result.
For the reasons given by the majority, I agree that the legislature intended to create no
private cause of action under the statutory provisions Blanck cites. Because of that conclusion, I
do not believe this case presents any issue of subject matter jurisdiction or any issue under the
Open Courts provision of the Indiana Constitution. Rather, the complaint should be dismissed
because it fails to state a claim. In my view, if there were a private cause of action under these
statutes, it could presumably be presented in a court of general jurisdiction.
Rucker, J., joins.