Court of Appeals of Indiana | Opinion 67A01-1708-MI-1768 | May 18, 2018 Page 1 of 7

APPELLANT PRO SE

Anthony W. Reed

Greencastle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony Wayne Reed,

Appellant-Plaintiff,

v.

Leann White and Darrin 

Chaney,

Appellees-Defendants.

May 18, 2018

Court of Appeals Case No.

67A01-1708-MI-1768

Appeal from the Putnam Superior 

Court

The Honorable Charles D. Bridges, 

Judge

Trial Court Cause No.

67D01-1706-MI-30

Najam, Judge.

Statement of the Case

[1] Anthony Wayne Reed appeals the trial court’s order dismissing his complaint 

against Leann White and Darrin Chaney. Reed presents a single issue for our 

review, namely, whether the trial court erred when it dismissed his complaint
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for a failure to state a claim upon which relief can be granted. We reverse and 

remand for further proceedings.

Facts and Procedural History

[2] On December 11, 2015, Reed, who was then incarcerated at the Putnamville 

Correctional Facility (“PCF”), mailed four handmade crosses1to family 

members. However, on December 30, two envelopes containing three of the 

crosses were returned to PCF for insufficient postage. Reed was notified of the 

problem, but the crosses were not returned to him, and he was not able to 

resend them to his family members. Reed later learned that White, who 

worked in the PCF mail room, had confiscated the crosses. White, in turn, 

gave the crosses to Chaney, an internal affairs officer for the PCF Security 

Threat Group (“STG”).

[3] After Reed filed an informal grievance with PCF on January 20, 2016, he was 

informed that “STG policy 02-03-105 prohibits the possession, making or 

display of any handmade jewelry (rings, necklaces and bracelets) by [the] 

offender population as these items can be used to show STG [sic] affiliation by 

utilizing color and symbols.” Appellant’s App. at 13. Reed responded by 

stating that the colors used in making the crosses were “not in any way 

connected with any (known) Gang-memberships.” Id. at 15. Reed then filed 

 

1

 The crosses had been constructed with paper and glue.
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with the Indiana Department of Correction (“IDOC”) a Grievance Appeal, 

which was denied.

[4] On June 13, Reed filed a tort claim notice with IDOC, and on October 26, 

Reed filed a complaint against White and Chaney with the trial court.2 In his 

complaint, Reed alleged that the reason given for White’s confiscation of the 

crosses was invalid, White did not follow IDOC policies governing the seizure 

of items in the mail, and White and Chaney committed “criminal conversion” 

when they took the crosses. Id. at 20. The trial court dismissed Reed’s 

complaint, stating that he had failed to state a claim upon which relief can be 

granted, “as the Defendants were following IDOC policies and procedures.” 

Appellant’s Br. at 12. This appeal ensued.

Discussion and Decision

[5] Indiana Code Section 34-58-1-2 provides that a trial court shall screen 

complaints filed by an offender to “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. Id. We review de novo a trial court’s 

dismissal of an offender’s complaint under this statute. Guillen v. R.D.C. Mail 

Clerk, 922 N.E.2d 121, 122 (Ind. Ct. App. 2010). Like the trial court, we look 

 

2

 In May 2017, the trial court dismissed Reed’s complaint for failure to state a claim upon which relief may 

be granted, and Reed appealed. By order dated July 5, we dismissed that appeal, but remanded to the trial 

court with instructions to docket the complaint, which the court had not done, and to otherwise comply with 

Indiana Code Section 34-58-1-3 in the event the court dismissed the complaint. On remand, the trial court 

complied with our instructions, dismissed the complaint by order dated July 21, and this appeal ensued.
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only to the well-pleaded facts contained in the complaint. Id. The statute is 

akin to a legislative interpretation of Indiana Trial Rule 12(B)(6),3 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.” Id. at 122-23 (quoting Peterson v. Lambert, 885 N.E.2d 719, 720 (Ind.

Ct. App. 2008)).

[6] Indiana Code Chapter 34-13-3 governs tort claims against governmental entities 

and employees. As relevant here, Indiana Code Section 34-13-3-5(c) provides 

as follows:

A lawsuit filed against an employee personally must allege that 

an act or omission of the employee that causes a loss is:

(1) criminal;

(2) clearly outside the scope of the employee’s 

employment;

(3) malicious;

(4) willful and wanton; or

(5) calculated to benefit the employee personally.

The complaint must contain a reasonable factual basis supporting 

the allegations. . . .

 

3

 We note that Trial Rule 12(B)(6) refers to claims upon which relief can be granted, but the statute refers to 

claims upon which relief may be granted. For ease of discussion, we use “can” and “may” interchangeably.
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[7] Here, in his thirty-two-paragraph complaint, Reed alleged that White and 

Chaney had no valid reason to confiscate the paper crosses, that they did not 

follow IDOC policies regarding confiscation of personal property, and that their 

conduct constituted criminal conversion. In particular, Reed stated that, “for 

both defendants to [have] seized [Reed’s] property items (his three Crosses) 

without following any of the set, [sic] IDOC policies (and/or Indiana I.C. 

Codes) set in place to protect against such seizure, amount[s] to the charge of: 

‘Criminal Conversion.’” Appellant’s App. at 13. On its face, Reed’s complaint 

satisfies Indiana Code Section 34-13-3-5(c).

[8] However, in its appellee’s brief, the State, on behalf of White and Chaney, 

maintains that the trial court properly dismissed Reed’s complaint because he 

“failed to provide a ‘reasonable factual basis’ to support his allegations.” 

Appellee’s Br. at 12. In particular, the State contends that, “as a matter of law, 

governmental employees may not be named for conduct that occurred within 

the scope of their employment.” Id. at 10. And, the State avers that,

[t]aking Reed’s facts as true, it appears that White and Chaney 

were following IDOC policies and procedures when they 

confiscated the paper crosses. According to the grievance 

response, the crosses were confiscated in violation of STG 

policy. . . . White and Chaney confiscated the property in 

furtherance of their job duties to protect the security of the 

facility. Their alleged failure to provide Reed with a notice of 

confiscation form does not amount to criminal conversion or 

“illegal seizure.” Because Reed failed to support this claim with 

sufficient facts, he cannot now sue them individually.
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Id. at 13.

[9] We cannot agree with the State for two reasons. First, the State is correct that a 

government employee is immune from liability if the alleged conduct occurred 

within the scope of his employment. But the assertion of immunity is an 

affirmative defense, and dismissal for failure to state a claim upon which relief 

can be granted is “rarely appropriate when the asserted ground for dismissal is 

an affirmative defense.” Bellwether Prop., LLC v. Duke Energy Ind., Inc., 87 

N.E.3d 462, 464 (Ind. 2017). Here, if Reed had alleged in his complaint that 

White and Chaney were acting within the scope of their employment, dismissal 

under Indiana Code Section 34-58-1-2(a)(2) would have been appropriate. See 

Bushong v. Williamson, 790 N.E.2d 467, 472 n.4 (Ind. 2003). But Reed makes no 

such allegation. Accordingly, looking only at the face of Reed’s complaint, 

there is no basis to dismiss the complaint because of White’s and Chaney’s 

possible immunity defenses. 

[10] Second, taking the facts stated in Reed’s complaint as true, as we must, there 

was no basis in any IDOC policy for White and Chaney to have confiscated the 

crosses. To the contrary, Reed alleges that the crosses did not violate the STG 

policy, and he maintains that White and Chaney’s reliance on that stated policy 

was merely a “pretense” to obscure their alleged theft of Reed’s personal 

property. Appellant’s App. at 12. Reed’s allegations may prove incorrect at a 

fact-finding hearing, but they state a claim.
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[11] In sum, taking as true all allegations upon the face of Reed’s complaint, we 

hold that the trial court erred when it dismissed the complaint for failure to state 

a claim upon which relief can be granted. The complaint is sufficient under 

Indiana Code Section 34-13-3-5(c) to require White and Chaney to respond 

thereto. See Guillen, 922 N.E.2d at 123 (reversing dismissal of offender’s 

complaint alleging prison officials negligently or deliberately violated both the 

Indiana Constitution and prison mail rules).

[12] Reversed and remanded for further proceedings.

Robb, J., and Altice, J., concur.