Appellant pro se Attorneys for Appellees
Edward J. Niksich Steve Carter
Pendleton, Indiana Attorney General of
Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 48S02-0402-CV-80
Edward J. Niksich,
Appellant (Plaintiff below),
v.
Zettie Cotton and
Steve Van Cleave,
Appellees (Defendants below).
_________________________________
Appeal from the Madison County Court, No. 48E01-0205-SC-1105
The Honorable David W. Hopper, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 48A02-0210-
CV-851
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June 24, 2004
Boehm, Justice.
We hold that a small claims notice of claim is sufficient if it states
the general nature of the claim. A notice of claim need not allege facts
that establish a right to recovery. However, a small claims court may
grant a defendant’s motion to dismiss the notice of claim if it is apparent
from the face of the notice of claim that the plaintiff is precluded from
recovery. If the dismissal is for failure to meet a pleading requirement
applicable to the particular claim, the plaintiff is entitled as of right
to file an amended notice of claim within the ten-day period allowed by
Trial Rule 12(B). Finally, an incarcerated plaintiff does not have an
absolute right to be present at a civil trial.
Factual and Procedural Background
We take the allegations of the complaint as true for purposes of this
appeal from the trial court’s grant of a motion to dismiss for failure to
state a claim. Edward Niksich is incarcerated at the Pendleton
Correctional Facility. In September 2001, Niksich was transferred to a
dormitory that had no facilities for individual television sets. His
television set was transferred to the commissary, and when he retrieved it
two months later, it did not work. He filed this action in small claims
court seeking redress.
Section 5(c) of the Indiana Tort Claims Act, Ind. Code § 34-13-3-5(c)
(2003), requires a complaint against a government employee in the
employee’s individual capacity to allege that the employee’s act or
omission was either criminal, outside the scope of employment, malicious,
willful and wanton, or for the personal benefit of the employee. The
complaint is also required to set forth a reasonable factual basis
supporting those allegations. The Act also provides that a “lawsuit
alleging that the employee acted within the scope of the employee’s
employment bars an action . . . against the employee personally.” I.C. §
34-13-3-5(b).
Niksich sent a Tort Claims Act Notice in November 2001, and on May
22, 2002, he filed a “Notice of Small Claim and Attached Complaint” in
small claims court naming two employees of the facility as defendants. The
complaint identified the two individuals and their job titles, and alleged
the surrender and return of his television, but did not make clear whether
the alleged conduct of the two individuals was within the scope of their
employment, or whether the two defendants were sued in their official
capacities, in their individual capacities, or both. He also requested
that he be transported to the court for trial.
The defendants moved to dismiss on the basis that Niksich failed to
include the allegations necessary to sue the defendants individually, and
also failed to name the facility as the real party in interest. On August
12, 2002, the trial court granted the motion to dismiss with prejudice and
denied Niksich’s motion to be transported. Six days later, Niksich
attempted to amend his notice of claim. Niksich’s amended notice of claim
made clear that he named one of the defendants because he was the
superintendent of the prison and the other because he was the supervisor of
the department overseeing the custody of the television set. The trial
court denied leave to amend. On appeal, the Court of Appeals held that a
notice of claim could not be dismissed for failure to state a claim because
Trial Rule 12(B) does not apply in small claims cases and remanded.
Niksich v. Cotton, 793 N.E.2d 1189, 1190-91 (Ind. Ct. App. 2003). We
granted transfer. Niksich v. Cotton, 2004 Ind. LEXIS 129 (Ind. 2004).
This appeal raises three issues, which we restate as: 1) whether a
small claims court proceeding may be dismissed on motion, 2) whether the
trial court properly denied Niksich’s motion for leave to amend his notice
of claim, and 3) whether the trial court properly denied Niksich’s motion
to be present at the small claims trial.
I. Motions to Dismiss in Small Claims Proceedings
Indiana Trial Rule 1 provides that the Trial Rules govern “the
procedure and practice in all courts of the state of Indiana in all suits
of a civil nature . . . .” Small Claims Rule 1(A) provides that the Small
Claims Rules apply “to all small claims proceedings . . . .” The Court of
Appeals has held the Trial Rules govern small claims proceedings to the
extent the two sets of rules do not conflict, but where the two conflict,
the Small Claims Rules apply. Muenich v. Gulden, 579 N.E.2d 665, 666 (Ind.
Ct. App. 1991). We agree.
Small Claims Rule 10 provides for dismissal or default for the
failure of a party to appear. The Small Claims Rules have no express
counterpart to Trial Rule 12, and the Court of Appeals construed Small
Claims Rule 10 to provide the only basis for dismissal of a small claims
action without a trial. So viewed, Rule 10 would conflict with Trial Rule
12(B)(6) which permits dismissal of a complaint for failure to allege all
elements of a claim.
The Trial Rules differ from the Small Claims Rules in that a small
claims action is initiated by filing a “notice of claim” which is to
include “a brief statement of the nature . . . of the claim . . . .”
S.C.R. 1(B)(4). The Trial Rules require a complaint to include “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” T.R. 8(A)(1). There is a substantial body of law on the precise
meaning of this requirement. It is sufficient for these purposes to note
the summary often recited by this Court and the Court of Appeals: a
complaint in an ordinary civil action may not be dismissed for failure to
state a claim “unless it is clear on the face of the complaint that the
complaining party is not entitled to relief.” City of Gary v. Smith &
Wesson, 801 N.E.2d 1222, 1229 (Ind. 2003). As a general proposition,
however, a small claims notice of claim is not required to set forth facts
establishing a right to recover. Rather, small claims courts are intended
to be used by non-lawyers. A notice of claim is sufficient if it sets
forth, as the Rule provides, a “brief statement of the nature of the
claim.” This more relaxed standard may be met by setting forth facts
sufficient to identify the dispute, even if facts essential to recovery are
not alleged. Thus, a civil complaint subject to a Rule 12(B)(6) motion for
failure to include essential facts may nonetheless be sufficient to present
a claim in a small claims court.
Although a small claims “notice of claim” is granted substantial
leeway, a motion to dismiss may nevertheless be appropriate in some cases.
We do not view Small Claims Rule 10 as setting out an exclusive list of
grounds for dismissal of a small claims action. To the contrary, a small
claims case may be dismissed when it is apparent from the complaint that
the pleader is not entitled to relief. The Court of Appeals recently
wrestled with this issue in Bedree v. DeGroote, 799 N.E.2d 1167 (Ind. Ct.
App. 2003), decided about three months after the opinion of the Court of
Appeals in this case. Bedree involved a disgruntled plaintiff who filed
suit in Allen County Small Claims Court against the judge who presided over
a previous case brought by the plaintiff. Allen County Small Claims Rule
8(C), provides that “[t]he cause or any pending pleadings . . . may be
dismissed with or without prejudice upon order of the Court . . . .” The
defendant-judge successfully moved to dismiss based on judicial immunity
because the claim made clear the allegedly wrongful acts were the defendant-
judge’s judicial acts. On appeal, the Court of Appeals held that this rule
permitted dismissal if the “outcome is a foregone conclusion as a matter of
law.” Bedree, 799 N.E.2d at 1177.
We agree with Bedree that a motion to dismiss is appropriate if the
“brief statement of the claim” reveals that, as a matter of law, the
plaintiff cannot prevail. Where, as in Bedree, the brief statement makes
clear that the defendant’s actions consisted of judicial rulings, judicial
immunity is a bar, and dismissal is appropriate. A motion pursuant to Rule
12(B)(6) is an appropriate vehicle to present that issue to a small claims
court, whether or not there is a local rule similar to Allen County Small
Claims Rule 8(C). Other Rule 12(B) motions may also be appropriate in
small claims actions. Lack of personal or subject matter jurisdiction,
insufficient process, and a host of other dispositive issues are properly
asserted by motion. In sum, a 12(B)(6) motion may not dismiss a claim in
small claims court when a plaintiff merely fails to plead the facts of a
claim that would be required of a complaint subject to the Trial Rules.
But if a dispositive issue is revealed by the notice of claim, a 12(B)(6)
motion is available, just as other Rule 12 motions may be made in small
claims actions.
Subsection 5(c) of the Tort Claims Act provides that a claim against
employees in their individual capacities must allege that the acts
complained of were, “criminal, outside the scope of employment, malicious,
willful and wanton, or for the personal benefit of the employee.” Although
the statute formulates this as a pleading requirement, it also amounts to a
legislative establishment of substantive elements of a claim. Cf. Miner v.
Southwest Sch. Corp., 755 N.E.2d 1110, 1113-14 (Ind. Ct. App. 2001).
Niksich’s notice of claim did not allege any of these specific
circumstances necessary to establish a right to relief against the
individuals. For that reason, it did not state a claim against the
defendants in their individual capacities nor did it allege that the
employees were acting within the scope of their employment. However, we do
not agree that these pleading issues warranted dismissal of the notice of
claim with prejudice.
Unlike the subsection 5(c) requirements to sue a state employee
individually, there is no requirement of specific pleading for a claim
against the State that an employee is acting within the scope of
employment. We have held that a state employee may rely on the facts to
establish that the employee was within the scope and therefore there was no
individual liability. Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind.
2003). In that case, the plaintiff made clear the claim was against only
the employee, and not against the State. Here, Niksich did give a timely
notice of intent to sue the State and his notice of claim states that he
seeks redress against employees in their official capacities. Accordingly,
the original notice of claim was sufficient to present a claim against the
State. Indeed, by his timely tort claim notice in November, Niksich
alerted the State of his potential claim against it. The State was correct
in its contention that the proper party had not been named as the
defendant. We conclude, however, that failing to name the State as a party
is not a basis to dismiss a small claims action where the complaint
sufficiently alleges a claim against the State, the notice of claim names
state officials in their official capacities, and the Tort Claims Act
notice has been timely given.
II. Niksich’s Attempt to Amend His Notice of Claim
On August 12, 2002, the trial court dismissed Niksich’s claim with
prejudice. On August 14, 2002, the trial court denied Niksich’s motion to
reconsider and his motion to amend his notice of claim. In Niksich’s
tendered amended notice of claim, he stated he intended to sue the two
individuals in both their individual and official capacities. Trial Rule
12(B) provides that after a dismissal pursuant to Rule 12(B)(6), “the
pleading may be amended once as of right . . . within ten (10) days after
service of notice of the court’s order sustaining the motion . . . .” The
State contends that the amended notice of claim was just as deficient as
the first, and that to overcome this deficiency Niksich was required to
name the Pendleton correctional facility or state facts that establish a
claim against the employees individually.
The State is correct that even Niksich’s amended notice of claim does
not contain sufficient allegations to support a lawsuit against these
defendants in their individual capacities. But the amended notice
purported to name the defendants in both their individual and official
capacities. Moreover, in his amended complaint Niksich expressly stated he
“invokes the state doctrine of respondent [sic] superior” in the
defendant’s “supervisory responsibility.” This is sufficient to set out in
the “notice of the claim” that the defendants were acting within the scope
of their employment, and therefore is sufficient to sue the government
entity under Indiana Code section 34-13-3-5(b) (2003). Accordingly,
Niksich’s amended notice of claim was sufficient to present a claim against
the prison employees in their official capacities, thus effectively suing
the prison.
Even in an action governed by the Trial Rules, designating state
employees as defendants by name or position is sufficient to sue a state
agency. See Brown v. State, 781 N.E.2d 773, 774 n.1 (Ind. Ct. App. 2003).
Small Claims Rule 2(B) governs the notice of claims and provides that the
notice of claim shall contain, inter alia, “[t]he name, address and
telephone number of the claimant and defendant(s).” In section 1983
litigation the Court of Appeals has noted that “[i]f a plaintiff seeks to
sue public officials in their personal capacities or in both their personal
and official capacities, the plaintiff should expressly state so in the
complaint.” Lake County Juvenile Court v. Swanson, 671 N.E.2d 429, 434
(Ind. Ct. App. 1996). Niksich did exactly that when he filed his amended
complaint. As such, Niksich brought suit against the officials in their
official capacities and his amended complaint is sufficient to bring a
claim against the correctional facility.
Under the Trial Rules, if a motion is granted under Rule 12(B)(6) the
plaintiff, as a matter of right, has ten days to amend. Although the Small
Claims Rules include no express provision on this point, they should be
interpreted at least as liberally. The original complaint was defective as
to the individuals because of specific statutory pleading requirements, and
did not make clear that a claim against the State was asserted. After the
trial court chose to dismiss for failure to name the State, it erred in
denying leave to amend when the amended notice made clear that a claim was
being asserted for conduct within the scope of the individual’s employment.
Whether Niksich can successfully establish any of his claims is, of
course, another matter.
III. Niksich’s Right to be Present
The trial court refused either to issue a transport order or to hold
the trial at the prison. That issue was mooted by the trial court’s
dismissal of the notice of claim. However, because the issue will recur on
remand, we address it now. Niksich contends this violated his
constitutional right to bring and maintain a civil action. Niksich has the
right to bring a civil action. He does not have an absolute right to be
present as a matter of federal due process. See, e.g., Muhammad v. Warden,
Baltimore City Jail, 849 F.2d 107, 111-12 (4th Cir. 1988); Helminski v.
Ayerst Labs., 766 F.2d 208, 213 (6th Cir. 1985). As we recently observed
in Jordan v. Deery, 778 N.E.2d 1264, 1272 (Ind. 2002), even where the right
to a jury trial applies, the right of a party to be present is not
absolute. Rather, under “extraordinary circumstances” presence of a party
may not be required. Id. An incarcerated plaintiff may present such
circumstances. Niksich may seek to submit the case through documentary
evidence, to conduct the trial by telephonic conference, to secure someone
else to represent him at trial, or to postpone the trial until his release
from incarceration. Hill v. Duckworth, 679 N.E.2d 938, 940 n.1 (Ind. Ct.
App. 1997). We think the trial court has wide discretion in selecting any
of these options after evaluating the prisoner’s need to be present against
concerns of expense, security, logistics and docket control. Muhammad, 849
F.2d at 111.
Conclusion
The trial court’s dismissal of Niksich’s amended notice of claim is
reversed. The denial of Niksich’s request for a transport order is
affirmed. This case is remanded for further proceedings.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.