Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A PPELLANT P RO S E Corey Hamersley Sheridan , Indiana A TTORNEY S FOR A PPELLEE I N DIANA D EPARTMENT OF C ORRECTION Curtis T. Hill, Jr. Attorney General of Indiana Frances H. Barrow Deputy Attorney General Indianapolis, Indiana A TTORNEYS FOR A PPELLEE A MERICAN B ROADCASTING C OMPANY , I NC

. Steven M. Badger Kara M. Kapke Barnes & Thornburg LLP Indianapolis, Indiana Nathan Siegel Alison Schary Davis Wright Tremaine LLP Washington, District of ColumbiaCourt of Appeals of Indiana | Memorandum Decision 18A

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### I N T H E 

# COURT OF APPEALS OF INDIANA
Corey Hamersley , Appellant

- Plaintiff ,
v. 

### Indiana De partment of Correction , and American Broadcasting Company, Inc. , Appellee s - Defendants

. February 5, 2019 Court of Appeals Ca se No. 18A

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- 955 Appeal from the Madison Circuit Court The Honorable Mark Dudley, Judge Trial Court Cause No. 48C06

- 1704

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- 33

Shepard , Senior Judge .
[1] Corey Hamersley appeals the dismissal of his lawsuit against the Indiana Department of Correction ( DOC ) and the American B roadcasting Company, Inc. (ABC) . Concluding that the trial court correctly dismissed , we affirm.



## Facts and Procedural History

[2] While incarcerated on unrelated charges, Hamersley was interviewed by former FBI agent Brad Garrett and investigator Bill Benjam in regarding the June 3, 2011 disappearance of Indiana University student Lauren Spierer. The interview was recorded, and a portion of it was included in a report called “Looking for Lauren,” which ABC aired on its newsmagazine program “20/20

. ” Hamersley says in his brief that “[t] he entire prison interview and recording lasts between 35

- 40 minutes which was mostly unaired.” Appellant’sCourt of Appeals of Indiana | Memorandum Decision 18A

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Br. p. 6 n.3. In the report, Hamersley’ s photo wa s shown with the three men who were last seen with Lauren on the night she disa ppeared. The report explained that the Spierer family received a tip from a former inmate of Hamersley who reported that Hamersley had told him he knew the men involved in Lauren’s disappearance. The report included footage from an int erview with the former inmate recount ing a conversation in which Hamersley told him Lauren and the men were drinking and taking the drug ecstasy, and Lauren overdosed. The men were scared and disposed of her body.

[3] The footage from Hamersley’s interview that was included in the report consisted of Garrett asking Hamersley if he helped move Lauren’s body. Hamersley resp onded , “‘Absolutely not. I’ve never met this person before in my life.’” Id. at 6; Appellee ABC’s Br. p. 11. When Garrett asked if he w ould contact Garrett if he remembered or heard anything about the case, Hamersley responded, “‘Honestly, probably not. I do not want to be associated with this at all. ’” Id. During a discussion between Garrett and an ABC news journalist a t the end of th e report, Garrett stated his belief that Hamersley was lying to him and that he would continue investigating to find out why.

[4] Hamersley subsequently filed a complaint against DOC and ABC. He alleged that DOC negligently allowed Garrett and Benjamin to enter the correctional facility, meet with him, and videotape their conversation. As to ABC, Hamersley claimed that its report slandered and defamed him

. Both DOC and ABC filed motions to dismiss, which the trial court granted.Court of Appeals of Indiana | Memorandum Decision 18A

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## Issues

[5] Hamersley presents two issues for our review, which we restate as:

I. Whether the trial court erred in dismissing his lawsuit against DOC

. II. Whether the trial court erred in dismissing his lawsuit against A BC. 

## Discussion and Decision

I. D epartment of C orrection
[6] The trial court dismissed Hamersley’ s action against DOC for failure to state a claim upon which relief can be granted. Hamersley appeals the dismissal , contending DOC wa s negligent for allowing him to be interviewed because he

was not made aware that Garrett and B enjamin were ABC investigators

. Rather, he believed the y were with law enforcement and, had he known they were with the media, he would not have spoken to them. He suggests that DOC ’s failure to obtain from him a waiver permitting the release of the interview r esulted in hi s giving an involuntary interview to his detriment.

[7] An appellate court engages in a de novo review of the trial court’s grant or denial of a motion based on Trial Rule 12(B)(6). Brown v. Vanderburgh Cty. Sheriff’s Dep’t , 85 N.E.3d 866 (Ind. Ct. App. 2017). A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a claim, not the supporting facts. Id. Accordingly, we must determine if the trial court erred in its application of the law, and we consider the complaint in the light most fa vorable to the non

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moving party and draw every reasonable inference in favor of that party. Chenore v. Plantz , 56 N.E.3d 123 (Ind. Ct. App. 2016)

. The grant of a motion to dismiss is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Brown , 85 N.E.3d 866

.
[8] To prevail on a claim of negligence, a plaintiff must show : (1) a duty owed by the defendant to the plaintiff; (2) a breach of th at duty; and (3) injur y to the plaintiff resulting from the defendant’s breach

. Miller v. Rosehill Hotels, LLC , 45 N.E.3d 15 (Ind. Ct. App. 2015). Absent a duty, there can be no negligence or liability based upon a breach. Powell v. Stuber , 89 N.E.3d 430 (Ind. Ct. App. 2017) , trans. denied

. Whether a duty exists is a question of law for the courts to decide. Podemski v. Praxair, Inc. , 87 N.E.3d 540 (Ind. Ct. App. 2017), trans. denied

.
[9] DOC is neither a guarantor of prisoners’ safety, nor has it been relieved of all responsib ility for their safekeep ing. Cole v. Ind. Dep’t of Corr. , 616 N.E.2d 44 (Ind. Ct. App. 1993) , trans. denied

. Rather, its responsibility toward its charges lies somewhere in between : DOC has the duty “to take reasonable precautions to preserve the life, health, and safety of prisoners.” Id. at 45

- 46

.
[10] At the heart of Hamersley’s argument is DOC Policy and Procedure number 00

- 03

- 101, w hich sets forth, in pertinent part: The offender must sign a waiver permitting release of his/her image and/or words (ATTAC HMENT I) or the request [for an interview] shall be denied. The interview may take place inCourt of Appeals of Indiana | Memorandum Decision 18A

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person or by telephone, in accordance with this Administrative Procedure, and at the convenience of the facility. The written release or decision not to be interv iewed shall be retained on file in the offender’s facility packet. Appellant’s App. Vol. 2, p. 44.

[11] We first observe that i nternal procedures and policies are expected in the prison context, particularly those concerning deterrence of crime, rehabilitation of prisoners, and institutional safety. See Kimrey v. Donahue , 861 N.E.2d 379 (Ind. Ct. App. 2007) , trans. denied

. As a result, the re exists a long

- standing principle in this state that the judiciary is constrained from interfering with the internal procedures and policies of DOC

. Id. The rationale for this hands

- off approach has been explained as follows:
Courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. The operation of 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. The complex and intractable problems in prisons are not readily susceptible of resolution by judicial decree. Thus, courts will afford substantial deference to the professional expertise of correction officials with respect to the day

- to
- day operation of prisons and the adoption and execution of prison policies.
Cohn v. Strawhorn , 721 N.E.2d 342, 346 (Ind. Ct. App. 1999) (internal citations omitted) , trans. denied

. A DOC interna l policy/procedure does not necessarily or even generally create a legal duty on the part of DOC

. We have beenCourt of Appeals of Indiana | Memorandum Decision 18A

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presented with no evidence that DOC instituted this policy with the intent of creating a n additional duty or expanding its current duty, and we will not interfere with the internal workings of DOC by doing so on its behalf.

[12] Moreover, under these circumstances we find no responsibility on the part of DOC under its recognized broader duty to preserve Hamersley ’ s life, health, and safety

. T here is no indication that his decision to speak with Garrett and Benjamin had any bearing on the preservation of his life, health, or safety or that it was coerced or involuntary in any way

. Rather, Hamersley seeks to expand the duty of DOC to include pr otect ion of the reputations of Indiana’s inmates

. He has not provided any support for such an expansion of DOC ’s duty however , and we decline to create it. Absent a duty, there can be no negligence , Powell , 89 N.E.3d 430 ; therefore, the trial court’s dis missal of Hamersley’s negligence claim was proper.



### II. A merican B roadcasting C ompany
[13] The trial court also dismissed Hamersley’s action against ABC, citing Hamersley’s failure to comply with Indiana Code section 34

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- 2 ( 1998 ). Hamersley asserts that he did in fact comply with the statute.

[14] We begin with Indiana Code section 34

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- 1 (1998), which states, in pertinent part: (a) This chapter applies to a suit brought for:

(1) publishing;Court of Appeals of Indiana | Memorandum Decision 18A

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- 955 | February 5, 2019 Page 8 of 13 (2) speaking; (3) uttering; or (4) conveying by words, acts, or in any other manner; a libel or slander by any radio or television station or company in Indiana. Section 2 of the statute provides:
At least t h ree (3) days before filing a complaint in a suit described in section 1 of this chapter, the aggrieved party sha ll serve notice: (1) in writing; (2) on the manager of the radio or television station; (3) at the principal office of the radio or television station; and (4) that specifies the words or acts that the aggrieved party alleges to be false and defamatory. Ind. Code § 34

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- 2 (emphasis added).

[15] In his response to ABC’s motion to dismiss, Hamersley submitted a document he refers to as his pre

- suit notice pursuant to Indiana Code §34

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- 2. While the document contains both date and signature lines, it is u ndated and unsigned. In addition , although it states he has a claim against “ABC newsCourt of Appeals of Indiana | Memorandum Decision 18A

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network,” it does not show that it was sent to the manager of ABC at its principal office. Appellee ABC’s App. Vol. II, p. 71. Further , it state s that Garrett and Benj amin interviewed him and made “false accusations that [he] helped move the missing women’s [sic] body and insinuated far worse .” Id. at 71

- 72. Hamersley states that after he denied any involvement in Lauren’s disappearance, Garrett stated his opinion that Hamersley is ly ing and sai d he

w ould “continue to investigate [Hamersley ] to find out why he lied.” Id. at 72. Hamersley also alleg ed that “[t]hroughout the episode, [ hi s ] photo is shown alongside the photos of the last three men seen with the missing women [sic].” Id.

[16] I n its order dismissing Hamersley’s action against ABC, the trial court found his notice deficient because the do cument was “ unsigned , undated , with no cover letter or any other indication that Hamer sley made a written notice upon ABC at its principal office that it retract spe cific words or acts that he felt to be false and defamatory .” Appellant’s App

. Vol . 2, p. 32

. In his motion to correct error, Hamersley asserts he signed, dated and mailed a c opy of his notice to ABC and then subsequently printed an additional copy from his compute r for

use as an exhibit. In the end, all we have are Hamersley’s self

- serving claims; there is no proof of compliance with the statute. 1

1 Hamersley also included in his appendix a copy of a certified mail r eturn receipt that is undated and lacks any information linking it to any particular document. ABC asserts this document was not presented to the trial c ourt. Our review of the record does not reveal that it was presented to the trial court, and it may n ot be submitted for the first time on appeal. See M orey v. Morey , 49 N.E.3d 1065, 1073 n.3 (Ind. Ct. App. 2016).Court of Appeals of Indiana | Memorandum Decision 18A

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[17] Al though the only basis stated in the trial court ’s order of dismissal is Hamersley’s failure to compl y with Indiana Code section 34

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- 2, we can affirm a trial court’ s dismis sal on any theory or basis evident in the record. S ee Blackman v. Gholson , 46 N.E.3d 975 (Ind. Ct. Ap p. 2015)

. Therefore , we discuss additional ground s supporting the trial court’s dismissal of Hamersley’s action against ABC.

[18] T he trial court also could have properly dismissed Hamersley’s complaint under the authority of Indiana Code section 34

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- 2 (20 04 ). That statute provides , in pertinent part : (a) 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: (1) is frivolous; (2) is not a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from liability for such relief. (b) A claim is frivolous under subsection (a)(1) if the claim: (1) is made primarily to harass a person; or (2) lacks an arguable basis either in: (A) law; orCourt of Appeals of Indiana | Memorandum Decision 18A

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Id. This statute is one of several enacted by the General Assembly in 2004 in response to prolific offender litigation. Smith v. Wal

- Mart Stores E., LP , 853 N.E.2d 478 (Ind. Ct. App. 2006) , trans. denied

. These statutes were “designed to balance an offender’s right to file a civil action with the heavy burden that those suits have placed on our judicial system.” Id. at 481.

[19] T he standard of review for dismissals under Indiana Code section 34

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- 2 is de novo. Smith v. Huckins , 850 N.E.2d 480 (Ind. Ct. App. 2006) . W e look only to the well

- pleaded f

acts contained in the complaint and determine whether it contains allegations concerning all of the material elements necessary to sustain

a reco very under some viable legal theory. Id.

[20] In his complaint, Hamersley has alleged a claim of defamation against ABC, a television station. However, the complaint does not refer in any way to Indiana Code section 34

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- 2, or acknowledge its requirements, or state Hamersley’s compliance there with. Thus, a second basis for the trial court’s dismissal is Indiana Code 34

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- 2 (a)(2)

— that is, Hamersley’s defamation claim is not a claim upon which relief may be granted due to his failure to comply with the

m andatory dictates of Indiana Code section 34

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- 2.

[21] Moreover, t o establish defamation, a plaintiff must prove : (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Miller v. Cent. I

nd. Cmty. Found., Inc. , 11 N.E.3d 944 (Ind. Ct. App. 2014) , trans. denied

. A private individual who brings a defamation action involving an eventCourt of Appeals of Indiana | Memorandum Decision 18A

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of public interest or concern must prove actual malice. Kitco, Inc. v. Corp. for Gen. Trade , 706 N.E.2d 581 (Ind. Ct. App. 1999). W het her a matter is of public

concern or interest is a question of law for the court. Brewington v. State , 7 N.E.3d 94 6 (Ind. 2014).

[22] In this instance, the disappearance of Lauren certainly con stitutes a matter of widespread public interest and concern. Her disappearance and the ensuing investigation ha ve received extensive media coverage spanning several years and are legitimate concern s for this state generally and for the city of Blo omington and Indiana University in particular

. Accordingly, Hamersley

mu st establish that ABC acted with actual malice.

[23] Actual mal ice requires a defamatory falsehood to be published with knowledge of or reckless disregard of its falsity

. Kitco , 706 N.E.2d 581

. Publication is made with reckless disregard of the truth when the publisher has a high degree of awareness of its probable falsity. Id. Thus, the test is not whether a reasonably prudent person would have published the statement but rather whether there is sufficient evidence to permit the conclu sion that the defendant in fact entertained serious doubts a bout the truth o f the publication. Id.

[24] In this case, the complaint makes no allegation of actual malice on the part of ABC. Even on appeal , the parties characterize the aired report as a present ation of the evidence and information gathe red thus far and the opinions and theories of in vestigators as to possible scenarios concerning the unsolved disappearance of a college co

- ed. In addition, ABC’s inclusion in the report ofCourt of Appeals of Indiana | Memorandum Decision 18A

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Hamersley’s denial of involvement tends toward demonstr ating a lack of actual malice. This hardly qualifies as evidence that ABC knew or had a high degree of awareness of the report’s falsity. Thus, a review of Hamersley’s complaint through the lens of S ection 34

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- 2 revea ls a lack of allegations concerning material elements necessary to sustain a recovery in an action for defamation. See Smith , 850 N.E.2d 480

. Accordingly, a dismissal under the authority of Indiana Code 34

- 5 8

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- 2 (a)( 2) would also have been appropriate

.



## C onclusion

[25] Considering the complaint in the light most favorable to Hamersley, we cannot say the trial court erred in its application of the law. Accordingly, we affirm the trial court’s dismissal of his complaint against both DOC and ABC.

[26] Affirmed.

Vaidik, C.J., and Mat h ias, J., concur.