FOR PUBLICATION


ATTORNEY FOR APPELLANTS :    ATTORNEYS FOR APPELLEES
            BOARD OF TRUSTEES OF PURDUE ANDREW P. WIRICK    UNIVERSITY, PURDUE UNIVERSITY,
Hume Smith Geddes Green & Simmons, LLP    JOHN SAUTTER, MARVIS BOSCHER,
Indianapolis, Indiana    CHAD JOHNSON, DAVID G. LEWIS, PURDUE UNIVERSITY POLICE DEPARTMENT, PUPD OFFICER KEN COX, and PUPD OFFICER FRED DAVIS:

            JOHN M. STUCKEY
             LAURA L. BOWKER
            Stuart & Branigin, LLP
            Lafayette, Indiana

             ATTORNEYS FOR APPELLEES
OFFICE OF THE SHERIFF, TIPPECANOE COUNTY, INDIANA, and TIPPECANOE COUNTY SHERIFF’S DEPUTY ANDREW WARREN:

DOUGLAS J. MASSON
Hoffman, Luhman & Masson, P.C.
Lafayette, Indiana
            


     IN THE COURT OF APPEALS OF INDIANA DONALD M. SEVERSON and SANDRA    )
SEVERSON, Individually and as Personal     )
Representatives of the Estate of Jay T.    )
Severson, Deceased,    )
        )
Appellants-Plaintiffs,    )
        )
vs.        ) No. 79A05-0112-CV-559
        )
BOARD OF TRUSTEES OF PURDUE    )
UNIVERSITY, PURDUE UNIVERSITY,    )
JOHN SAUTTER, MARVIS BOSCHER,    )
CHAD JOHNSON, DAVID G. LEWIS, in their    )
individual capacities, PURDUE UNIVERSITY    )
POLICE DEPARTMENT, PURDUE     )
UNIVERSITY POLICE DEPARTMENT OFFICER    )
KEN COX, PURDUE UNIVERSITY POLICE    )
DEPARTMENT OFFICER FRED DAVIS, in their    )
individual capacities, OFFICE OF THE SHERIFF,    )
TIPPECANOE COUNTY, INDIANA, and    )
TIPPECANOE COUNTY SHERIFF’S     )
DEPARTMENT DEPUTY ANDREW WARREN,    )
in his individual capacity,    )
            )
    Appellees-Defendants.    )
    

    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
    The Honorable George J. Heid, Judge
    Cause No. 79D02-0102-CP-055

BAKER, Judge

    A Purdue University freshman brutally murdered his resident-advisor Jay Severson after Jay had reported the freshman’s cocaine possession to the police. Jay’s parents sued Purdue, Purdue’s Board of Trustees, four Purdue employees, and law enforcement agencies and officers who, at the time of the murder, were investigating the freshman’s alleged drug dealing. The trial court granted summary judgment to all the defendants on each of the Seversons’ federal and state claims. We agree that none of the defendants were liable under federal or state law for Jay’s death.

Appellants’ App. p. 246.
    The police immediately proceeded to Schulz and Eskew’s room, but Eskew had fled the room by the time they arrived. While the police were searching the room and Eskew’s car, Eskew hid in Willoughby’s room, which was located in the same residence hall. At around 2:00 a.m. that morning, Willoughby drove Eskew to Crawfordsville where Eskew obtained a shotgun and sawed off the barrel. The two returned to the residence hall that afternoon. Eskew walked to Jay’s room and shot Jay, killing him almost instantly. Eskew then turned the gun on himself and committed suicide.
    On April 25, 2001, the Seversons, individually and as personal representatives of Jay’s estate, filed their third amended complaint for damages resulting from Jay’s death. The complaint named the Board of Trustees of Purdue University, Purdue University, and four Purdue employees “in their individual capacities.” Appellants’ App. p. 161. The four Purdue employees are as follows:
(1)    John Sautter—vice president of the residence halls and Director of Residence Halls;
(2)    Marvis Boscher—assistant director for residential life for Purdue;
(3)    Chad Johnson—manager for the residence hall in which Jay was murdered; and
David G. Lewis—assistant manager for the same.

The complaint also included the law enforcement agencies and personnel involved in investigating Eskew’s possible drug dealing from the residence hall:
(1)    The PUPD and PUPD Officers Ken Cox and Fred Davis in their individual capacities; and
(2)    The Office of the Sheriff, Tippecanoe County, Indiana, and Tippecanoe County Sheriff’s Deputy Andrew Warren, in his individual capacity.

    The Seversons brought a broad assortment of federal and state claims. Under their federal § 1983 claims, See footnote the Seversons contended that they were deprived of their constitutional liberty interest in maintaining a relationship with their son. Jay’s estate, according to the complaint, suffered lost income for Jay’s life expectancy and “hedonic damages for the non-economic value of being alive” as a result of being deprived of his constitutional rights. Appellants’ App. p. 175. As for the state law claims, the Seversons asserted negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent hiring and supervision, in addition to violations of Article I, Sections 1, 12, and 21 of the Indiana Constitution. The Seversons also incorporated a claim for a declaratory judgment “that the Defendants violated the constitutional rights of the Plaintiffs.” Appellants’ App. p. 175.
    In response, Purdue (including the Board of Trustees, the four individual employees, the PUPD, and the two PUPD officers) filed a motion for summary judgment. The Tippecanoe County Sheriff’s Office and Tippecanoe County Sheriff’s Deputy Andrew Warren (collectively, the Tippecanoe County defendants) filed a separate motion for summary judgment. On July 13, 2001, the Tippecanoe County defendants filed a motion to strike the entire affidavit of David L. Johnston, the Seversons’ expert witness who was used to oppose the motions for summary judgment. Three days later on July 16, 2001, all the defendants joined in filing a motion to strike portions of other evidentiary materials submitted by the Seversons in their memorandum in opposition to summary judgment. In turn, the Seversons filed a motion to strike portions of the reply briefs submitted by Purdue and the Tippecanoe County defendants along with designated evidence offered in support of Purdue’s reply brief.
    The trial court eventually granted both motions for summary judgment against the Seversons on all their claims. However, the trial court denied all the motions to strike. The Seversons now appeal the grant of summary judgment on both motions as well as the denial of their motion to strike. The Tippecanoe County defendants appeal the denial of the July 13 motion to strike, while Purdue appeals the denial of the July 16 motion to strike.

42 U.S.C. § 1983 (emphasis added). The precursor to § 1983—§ 1 of the Civil Rights Act of 1871—was a congressional enactment responding “‘to the wide-spread deprivations of civil rights in the Southern States and the inability or unwillingness of authorities in those States to protect those rights or punish wrongdoers.’” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (quoting Felder v. Casey, 487 U.S. 131, 147 (1988)). The legislative history of the word “person” in § 1983 indicates Congress intended to subject “state officers” to suit but not “States of the Union.” Id. 68-69.
    A review of U.S. Supreme Court precedent reveals three basic factors that determine whether a particular entity is a “person” under § 1983. Chief among these factors is the type of governmental entity being sued, that is, whether the entity is a state, state agency (arm of the state), See footnote state official, municipality, municipal official, or some other local governmental unit or political subdivision. A second factor is whether the plaintiff seeks retrospective (monetary) or prospective (injunctive) relief. A third factor, when dealing with a suit against a state official, is whether the plaintiff brings an “official-capacity” claim or “personal-capacity” (individual-capacity)See footnote claim.
    Both a municipality and a municipal official sued in his official capacity are “persons” amenable to suit under § 1983 for retrospective (monetary) and prospective (injunctive) relief. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (holding that § 1983 applies to “municipalities and other local government units”); Brandon v. Holt, 469 U.S. 464 (1985) (holding that § 1983 applies to a municipal official sued in his official capacity). As for a state or state agency, neither may be sued as a person under § 1983, no matter what relief—retrospective or prospective—is requested. Will, 491 U.S. at 64 (a state is not a § 1983 “person”); Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 365 (1990) (arm of the state not a § 1983 “person”). If a plaintiff requests retrospective relief, then a state official sued in his official capacity is also not a “person” under § 1983. See Will, 491 U.S. at 71. If, on the other hand, a plaintiff requests prospective relief, then a state official may be considered a “person” under § 1983. See id. at 71 n.10.
    The inapplicability of § 1983 to particular defendants parallels Eleventh Amendment See footnote protections from suit. The Eleventh Amendment bars a state from being sued in its own name regardless of whether a plaintiff seeks retrospective or prospective relief. Alabama v. Pugh, 438 U.S. 781, 782 (1978). Though the Eleventh Amendment does not apply in state courts, Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 205 (1991), the relief available in federal and state courts under § 1983 is deemed the same. Howlett ex rel. Howlett, 496 U.S. at 365 (“[A] State and arms of [a] State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court.”); 1B Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims and Defenses § 8.14, at 196-97 (3d ed. 1997) (“[T]he relief available (and unavailable) against state governments and agencies in state and federal court § 1983 actions is the same. The Supreme Court’s decision in Howlett [ex rel. Howlett] v. Rose makes clear that state law may neither expand nor contract the congressionally established contours of § 1983 and its defenses.” (footnote omitted)). Hence, neither a state nor a state agency is a person under § 1983 even when sued for prospective relief in state court—where the Eleventh Amendment has no force.
    A state official, on the other hand, is a “person” under § 1983 when sued in his personal capacity for actions taken under color of state law. Hafer v. Melo, 502 U.S. 21, 27 (1991). “[O]fficers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term ‘person.’” Id. Under the law of the Seventh Circuit, when a “complaint alleges the tortious conduct of an individual acting under color of state law, an individual capacity suit plainly lies, even if the plaintiff failed to spell out the defendant’s capacity in the complaint.” Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991). To determine whether a plaintiff brings an official-capacity suit, personal-capacity suit, or both, a court should look to the relief requested and the nature of the defendant’s conduct alleged. Id.
    In sum, five general rules resolve whether an entity is a “person” amenable to suit under § 1983:
(1)    A municipality, municipal official, or other local governmental unit or political subdivision may be sued for retrospective or prospective relief.

(2)    A state or state agency (arm of the state) may not be sued as a “person” under § 1983, no matter what relief is requested.

(3)    A state official sued in his official capacity is not a “person” under § 1983 when sued for retrospective relief. But a state official sued in his official capacity is a “person” under § 1983 when sued for prospective relief.

(4)    A state official sued in his personal (individual) capacity for retrospective relief is a “person” amenable to suit under § 1983.

(5)    If an entity would enjoy Eleventh Amendment immunity in federal court, it will not be considered a § 1983 “person” in state court, even though the Eleventh Amendment has no force in state court.
        
    Though the briefs on appeal tend to lump the defendants into two groups—(1) the Purdue defendants and (2) the Tippecanoe County defendants—the defendants here actually fall into seven different groups for purposes of determining whether they are § 1983 “persons.” In accord with the principles set out above, each of the seven groups will be examined for amenability to suit under § 1983, beginning with the institution Purdue University.

(2)    “The foundations receive gifts from private individuals as well as profits from real estate holdings.”

(3)    “Tuition fees are paid by private individuals.”

(4)    “None of this income comes from State offices.”

(5)    “The Attorney General has never entered an Appearance on behalf of Purdue.”

Appellants’ Br. p. 22. These unsupported statements are capped with the conclusion: “All of these indicia of non-state involvement provide ample reasons why summary judgment should have been denied.” Appellants’ Br. p. 22.
    In addressing the Seversons’ contention, we first note that a number of pre-Hess decisions handed down by the Seventh Circuit and Indiana federal district courts held that public universities are arms of the state and, therefore, are not “persons” under § 1983. Kashani v. Purdue Univ., 813 F.2d 843, 848 (7th Cir. 1987); Colburn v. Trustees of Ind. Univ., 739 F. Supp. 1268, 1280 (S.D. Ind. 1990), aff’d, 973 F.2d 581 (7th Cir. 1992); Wellman v. Trustees of Purdue Univ., 581 F. Supp. 1228, 1230-31 (N.D. Ind. 1984) (holding that Purdue and its Board of Trustees are instrumentalities of the state and, therefore, entitled to Eleventh Amendment immunity). The Seventh Circuit observed in Kashani that every circuit court of appeals to decide the issue held in favor of Eleventh Amendment immunity for state universities. 813 F.2d at 845 (citing the decisions of the First, Sixth, Ninth, and Tenth Circuits).
    If Hess did call into question the continuing validity of these holdings, the Supreme Court put any alleged doubts to rest in Regents of the University of California v. Doe, 519 U.S. 425 (1997). Regents, decided three years after Hess, held that an indemnity agreement between the federal government and the University of California did not divest the university of its Eleventh Amendment immunity from suit. Id. at 426. In distinguishing Hess, the Court noted that Hess involved a “bistate entity” and that “‘both legally and practically’ neither of the relevant States would have been obligated to pay a judgment obtained against the bistate entity.” Id. at 430 (quoting Hess, 513 U.S. at 51-52). The Court reasoned that an entity’s potential legal liability—not its ability to require a third party to reimburse it—is relevant to the inquiry into whether a particular entity is an arm of the state. The Regents Court further explained:
    Ultimately, of course, the question whether a particular state agency has the same kind of independent status as a county or is instead an arm of the State, and therefore “one of the United States” within the meaning of the Eleventh Amendment, is a question of federal law. But that federal question can be answered only after considering the provisions of state law that define the agency’s character.

Id. at 430 n.5 (emphasis added).
    A number of Indiana statutes—by creating Purdue itself, establishing its powers, and funding its mission—“define” Purdue’s character as “an arm of the State.” See, e.g., Ind. Code §§ 20-12-35-1 to -3 (establishing Purdue as a state-created land grant college in the 1800s); Ind. Code § 20-12-37-2 (granting the Governor of Indiana authority to appoint ten of Purdue’s thirteen trustees); Ind. Code §§ 20-12-1-1, -2 (recognizing that appropriations from the General Assembly support Purdue and establishing the powers of Purdue trustees); Ind. Code §§ 4-12-1-2(d), -7 (requiring Purdue to submit annual financial statements on expenditures and a statement of necessary expenditures for the prospective budget period).
    Moreover, as the Regents Court made clear, determining whether an entity is an arm of the state is a question of federal law. In 2000, the Seventh Circuit decided that very federal question in favor of a public university seeking status as an arm of the state. The court in Power v. Summers held that Vincennes University was an arm of the state. 226 F.3d 815, 818 (7th Cir. 2000). This conclusion was based on: (1) the university’s creation by Indiana statute, (2) the fact that two-thirds of Vincennes University’s budget comes from the state, and (3) nine of the fourteen trustees are appointed by the governor. Id. The Power court, furthermore, cited pre-Hess precedent, which established that other Indiana state universities are arms of the state for purposes of the Eleventh Amendment. Id. (citing Kashani, 813 F.2d at 845, and Shelton v. Trustees of Ind. Univ., 891 F.2d 165, 166 (7th Cir. 1989)).
    In light of (1) the holding in Regents, (2) an examination of relevant Indiana statutes, and (3) Power’s holding and reaffirmation of pre-Hess precedent, Purdue is properly classified an arm of the state for purpose of § 1983 claims. As an arm of the state, Purdue is not a § 1983 “person” amenable to § 1983 claims.
    Given that Purdue is not subject to suit under § 1983, the next question to be addressed is the proper disposition of § 1983 claims against Purdue. Was the appropriate disposition grant of summary judgment or should it have been dismissal of the § 1983 claims against Purdue itself? The answer depends on whether a court has subject matter jurisdiction over a § 1983 claim asserted against a non-§ 1983 “person.” The Seventh Circuit, in Kashani, affirmed the dismissal of § 1983 claims against Purdue for lack of subject matter jurisdiction. 813 F.2d at 844, 848. Subsequently, in Power, the Seventh Circuit noted that the proper disposition of § 1983 claims against a state is dismissal because a state is not “person” under § 1983. 226 F.3d at 818 (citing Vt. Agency of Natural Res. v. U.S., 529 U.S. 765, 770, 788 (2000) (holding that dismissal of claim against state agency was appropriate because it was not a “person” amenable to suit under the federal False Claims Act for purposes of qui tam liability)).
    In the instant case, challenging Purdue’s status as a § 1983 “person” was “an attack on the court’s subject-matter jurisdiction” over the § 1983 claim against Purdue. See Stewart v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542, 544 (Ind. Ct. App. 2002). An attack on a court’s subject matter jurisdiction cannot form the basis of a motion for summary judgment. Perry v. Stitzer Buick, GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994). “[W]hen not pled in the answer, the appropriate vehicle for such a challenge is a motion to dismiss for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1).” Id. When Purdue filed its motion for summary judgment, claiming it was not a § 1983 “person,” the trial court should have treated it as a motion to dismiss for lack of subject matter jurisdiction. See id.
    The lack of subject matter jurisdiction may be raised at any time, and either the trial court or the appellate court is required to consider the issue sua sponte if it is not questioned by the parties. Town Council of New Harmony v. Parker, 726 N.E.2d 1217, 1227 (Ind.) (“Where lack of subject matter jurisdiction in the original tribunal is apparent from the record, it is the duty of the reviewing court to raise and determine the issue sua sponte.”), amended on reh’g on other grounds by 737 N.E.2d 719 (Ind. 2000). In the instant case, neither party raised the issue of subject matter jurisdiction and the requirement of dismissal of § 1983 claims against Purdue. Abiding by our duty as a reviewing court we have raised the issue of Purdue’s § 1983 status and subject matter jurisdiction sua sponte. Because Purdue is not amenable to § 1983 claims, we will treat Purdue’s motion for summary judgment as a motion to dismiss § 1983 claims against it for lack of subject matter jurisdiction under Indiana Trial Rule 12(B)(1). See Stewart, 767 N.E.2d at 545 (“[E]ven if the trial court had erred in treating this issue as a matter of summary judgment, this court would treat Kingsley Terrace’s motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction under T.R. 12(B)(1).”). Accordingly, we reverse the entry of summary judgment in favor of Purdue on the Seversons’ § 1983 claims and remand for dismissal of those same claims against the university.

489 U.S. at 1003 (citations omitted) (emphasis added). The Seversons acknowledge that in general the government does not have a duty to protect citizens from one another. They contend, however, that two exceptions to the general rule apply in the instant case: (1) the “state-created danger” (“snake-pit”) exception and (2) the “special relationship” exception.

Id. (emphasis added). The Bowers court held that the government did not put the victim in the position of danger; rather, it simply failed to adequately protect her as a member of the public. Id.
    Bowers is just one of a number of Seventh Circuit precedents holding that a government actor did not place a victim in a position of danger, though the actor may have failed to protect the victim. See Stevens v. Umsted, 131 F.3d 697, 705-06 (7th Cir. 1997) (holding that superintendent’s knowledge alone of sexual assaults committed against a student was insufficient to show that the superintendent placed the student in danger); Wallace v. Adkins, 115 F.3d 427, 430 (7th Cir. 1997) (holding that prison officials had no duty to protect prison guard whom they had stationed in a prisoners’ unit and had assured were taking action to prevent contact between the guard and a prisoner who had attacked him previously); cf. Dawson v. Milwaukee Housing Auth., 930 F.2d 1283, 1284 (7th Cir. 1991) (holding that public housing authority did not have duty to protect victim-resident from a violent resident even when it knew the violent resident had previously threatened to harm victim-resident and had stabbed a third resident).
    Even if the defendants had known of the danger posed by Jerrod Eskew, they would not be liable for Jay’s death because substantive due process imposes no obligation to protect citizens from private harm even in the face of known dangers. The defendants did not force Eskew to possess drugs or compel Eskew to obtain a shotgun and saw off the barrel. The defendants did not encourage Eskew to return to the dormitory to shoot Jay. The defendants did not lock Jay and Eskew in the same room and hand Eskew a sawed-off shotgun. Evidentiary designations similar to those may have avoided summary judgment on the Seversons’ “state-created danger” theory. The Seversons have alleged no such facts in their complaint or in the materials accompanying their motion in opposition to summary judgment. Accordingly, the trial court properly granted the defendants summary judgment on the Seversons’ claim that the defendants deprived Jay of his substantive due process rights through a state-created danger.

Id. at 979-80 (citations omitted) (quoting Delta Tau Delta, 712 N.E.2d at 972, 973). We note that “a governmental unit is bound by the same duty of care as a non-governmental unit except where the duty alleged to have been breached is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) that it should be treated as one as well.” Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999).
    Two supreme court opinions lead to the conclusion that no premise liability arose in the instant case: Ellis v. Luxbury Hotels, Inc., 716 N.E.2d 359 (Ind. 1999), and Western Golf Ass’n, 712 N.E.2d 983. In Ellis, a hotel clerk gave a husband his wife’s room number without her knowledge or consent. 716 N.E.2d at 360. The husband proceeded to the room where he assaulted the man in the room with his wife. Id. Our supreme court held that the unforeseeable nature of the attack and lack of prior similar incidents led to the conclusion that no duty existed. Id. at 361. Likewise, in Western Golf Ass’n, summary judgment was appropriate because the absence of prior violent acts and sexual assaults at a fraternity house led to the conclusion that a rape was not reasonably foreseeable at the house. 712 N.E.2d at 985.
    Summary judgment on the Seversons’ negligence-based claims was appropriate for similar reasons. First, the Seversons designated no evidence showing any prior violent acts committed by student-residents against their resident advisors. Second, there was no designated evidence that would have made the murder of any residential advisor, including Jay, foreseeable. This leads us to conclude that Jay’s murder was not reasonably foreseeable and that Purdue as the premises owner had no duty to protect against the harm suffered. Therefore, the Seversons have failed to show that the trial court incorrectly granted Purdue summary judgment on their negligence-based claims.

Ind. Code § 34-13-3-3. Our supreme court has defined the scope of “enforcement” as: “limited to those activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof.” Mullin v. Mun. City of South Bend, 639 N.E.2d 278, 283 (Ind. 1994) (citing Quakenbush v. Lackey, 622 N.E.2d 1284, 1287 n.3 (Ind. 1993)).
    In O’Bannon v. City of Anderson, we found ITCA law-enforcement immunity applicable where police officers pursued a suspect into the plaintiff’s home where the suspect had retreated uninvited. 733 N.E.2d 1, 2 (Ind. Ct. App. 2000). The officers fired shots into the O’Bannon’s home, searched her home, and seized her temporarily in the course of arresting the suspect. Id. O’Bannon sued the City of Anderson for negligent infliction of emotional distress, trespass, and illegal search and seizure. Id. We held that the ITCA immunized the police officers from liability because the officers were seeking to enforce the law when they pursued the suspect into O’Bannon’s home. Id. at 3.
    Likewise, the law enforcement officers in the instant case were seeking to enforce the law by arresting Eskew. Their failure to arrest Eskew before he attacked Jay is clothed with the same immunity as the police officers’ pursuit in O’Bannon. Therefore, the trial court did not err in granting summary judgment to the law enforcement officers and agencies to the extent it determined that the ITCA immunized their enforcement of the law or failure to enforce the law.