Appellant pro se Attorneys for Appellees
Edward J. Niksich Steve Carter
Pendleton, Indiana Attorney General of Indiana
Deputy Attorney General
Indiana Supreme Court
Edward J. Niksich,
Appellant (Plaintiff below),
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
June 24, 2004
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 defendants 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 courts 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 employees individual capacity to
allege that the employees 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 employees 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 Niksichs
motion to be transported. Six days later, Niksich attempted to amend his
notice of claim. Niksichs 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 Niksichs motion for leave to amend his notice of claim,
and 3) whether the trial court properly denied Niksichs 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-judges 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 defendants 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
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). Niksichs 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. Niksichs Attempt to Amend His Notice of Claim
On August 12, 2002, the trial court dismissed Niksichs claim with prejudice.
On August 14, 2002, the trial court denied Niksichs motion to reconsider and
his motion to amend his notice of claim. In Niksichs 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 courts 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
The State is correct that even Niksichs 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 defendants
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, Niksichs amended notice of claim was sufficient to present
a claim against the prison employees in their official capacities, thus effectively suing
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 individuals employment.
Whether Niksich can successfully establish any of his claims is, of course, another
III. Niksichs 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
courts 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
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 prisoners need to be
present against concerns of expense, security, logistics and docket control. Muhammad, 849
F.2d at 111.
The trial courts dismissal of Niksichs amended notice of claim is reversed.
The denial of Niksichs request for a transport order is affirmed. This
case is remanded for further proceedings.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.