J.A.W. v. State

Decision Date15 May 1995
Docket NumberNo. 32A01-9212-CV-415,32A01-9212-CV-415
Citation650 N.E.2d 1142
PartiesJ.A.W., Appellant-Plaintiff, v. STATE of Indiana, Marion County Department of Public Welfare, Marion County Probation Department, Indianapolis Public Schools, Brian Toepp, Individually and in his Official Capacity as Probation Officer, Edward Bramblett, Marguerite Bramblett, Elaine Bramblett, Kathy Reiche, Jack Reiche, Herbert Grosby, Theora Haydock, and Robert Haydock, Appellees-Defendants.
CourtIndiana Appellate Court

RUCKER, Judge.

Plaintiff-Appellant J.A.W. sued the State of Indiana (the State), the Marion County Department of Public Welfare (DPW), the Marion County Probation Department (Probation) and Marion County Probation Officer Brian Toepp (referred to collectively as Defendants). He asserted various tort theories of recovery as well as various civil rights violations under the provisions of 42 U.S.C. § 1983. The Defendants moved for summary judgment which the trial court granted. J.A.W. filed this interlocutory appeal raising six issues for our review which we consolidate and rephrase as follows:

1) Whether the trial court erred in granting summary judgment for the Defendants on J.A.W.'s civil rights claims.

2) Whether the trial court erred in granting summary judgment for the Defendants on J.A.W.'s tort claims.

3) Whether the trial court erred in refusing to allow J.A.W. to amend his complaint for the purpose of adding additional claims and parties.


The present action is a companion proceeding to the one decided last year by this court in J.A.W. v. Roberts (1994), Ind.App., 627 N.E.2d 802. There, as in the instant case, the facts giving rise to the claims relate to the physical and sexual abuse suffered by J.A.W. at the hands of his foster father, Edward Bramblett. In the present action, the claims are asserted against, among others, various governmental entities which allegedly failed to protect J.A.W. from abuse.

In 1978 J.A.W., then eight years old and facing charges of juvenile delinquency, was removed from the home of his paternal grandmother and made a ward of the Marion County Juvenile Court. By order of November 8, 1978, the court placed J.A.W. in the foster care and custody of Edward and Marguerite Bramblett. While in the Bramblett home, J.A.W. was subjected to repeated instances of sexual abuse by Edward Bramblett and by several of Bramblett's male friends. Although J.A.W. was under the supervision of probation officers and his foster placement was being monitored by social workers the abuse apparently remained undetected until 1989 when J.A.W. left the Bramblett home and reported the abuse to authorities.

In the summer of 1989, the Marion County Prosecutor initiated criminal proceedings against Bramblett and the other men involved in the molestations. On December 12, 1989, Bramblett pled guilty and was convicted on molestation charges. That same day, J.A.W. mailed a letter and draft complaint to DPW detailing claims he intended to file against that agency. Thereafter, on February 27, 1990, J.A.W. filed a complaint in the Marion Superior Court naming the parties to this action as defendants. 1 The complaint consisted of forty-four pages and thirteen counts alleging various theories in tort and claiming violation of J.A.W.'s civil rights pursuant to 42 U.S.C. § 1983. The matter was subsequently venued to Hendricks County. J.A.W. amended the complaint on August 17, 1990, pursuant to an order by the trial court to provide a more definite statement of his claims.

On September 5, 1990, the State moved to dismiss the complaint based on J.A.W.'s alleged failure to comply with the notice provisions of the Indiana Tort Claims Act and because the State is not a "person" subject to suit under § 1983. The trial court granted the State's motion on April 4, 1991. In so doing the court considered matters outside the pleadings thus converting the motion to one for summary judgment. See Ind.Trial Rule 12(B)(8).

On November 15, 1991, DPW, Probation and Toepp each filed motions for summary judgment on the same grounds alleged by the State. In addition, Toepp's motion alleged that he was entitled to absolute judicial immunity from suit or in the alternative that he was entitled to qualified immunity and immunity under the provisions of the Indiana Tort Claims Act. After conducting a hearing the trial court ordered J.A.W. to amend his complaint by November 6, 1992 in order to clarify his § 1983 claims.

On November 6, 1992, J.A.W. filed his Second Amended Complaint consisting of seventy-three pages and twenty-three counts in which he elaborated upon his § 1983 claims and in addition added a number of new claims and named nine additional parties as defendants.

On November 20, 1992, the trial court entered an order in which it granted summary judgment in favor of DPW, Probation and Toepp on the tort theories and the § 1983 claims alleged in J.A.W.'s complaint. The court's order also found that J.A.W. added additional parties to the complaint without the court's permission and dismissed those parties from the case. Upon petition by J.A.W. the trial court certified its April 4, 1991 and November 20, 1992 orders for interlocutory appeal, and this appeal ensued in due course.


When reviewing the propriety of a ruling on a motion for summary judgment, this court applies the same standard applicable to the trial court. Liberty Mut. Ins. Co. v. Metzler (1992), Ind.App., 586 N.E.2d 897, trans. denied. We must consider the pleading and evidence sanctioned by Indiana Trial Rule 56(C) without deciding their weight or credibility. Summary judgment should be granted only if such evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Houin v. Burger (1992), Ind.App., 590 N.E.2d 593, trans. denied. The movant bears the burden of proving the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed favorably to the non-movant. Id.


Section 1983 provides a civil remedy against any "person" who, under color of state law, subjects a citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the federal Constitution or federal laws. 42 U.S.C. § 1983; Bayh v. Sonnenburg (1991), Ind., 573 N.E.2d 398, cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 415 (1992). Section 1983 does not provide a remedy against states, state entities or state officials sued in their official capacities. These parties are not considered "persons" under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45, 58 (1989). However, municipalities and other local government entities and officials are considered "persons" and are included among those parties subject to suit under § 1983. Monell v. Dep't of Social Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611, 635 (1978). In determining whether an entity is state or local for purposes of § 1983, we consider whether the entity is one which is entitled to Eleventh Amendment immunity from suit in federal court. Board of Trustees v. Landry (1994), Ind.App., 638 N.E.2d 1261. Eleventh Amendment immunity extends to states and their agencies but does not extend to counties and other local units of government. Mascheroni v. Board of Regents, 28 F.3d 1554, 1559 (10th Cir.1994); Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940, 945 (7th Cir.1986). An entity which is an arm of the state for purposes of Eleventh Amendment immunity is not a "person" within the meaning of § 1983. Howlett v. Rose, 496 U.S. 356, 365, 110 S.Ct. 2430, 2437, 110 L.Ed.2d 332 (1990).

There is no generally accepted test for determining whether an entity is an arm of the state entitled to Eleventh Amendment immunity or a branch of local government to which the immunity does not extend. Ranyard v. Board of Regents, 708 F.2d 1235, 1238 (7th Cir.1983). Rather, a review of the cases discussing the issue reveals that a variety of factors have been considered. For instance, in Kovats v. Rutgers, the State Univ., 822 F.2d 1303, 1307 (3rd Cir.1987) quoting Urbano v. Board of Managers, 415 F.2d 247, 250-51 (3rd Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970), the court observed that "[l]ocal law and decisions defining the status and nature of the agency" is a relevant factor but only one of a number that are of significance. "Among the other factors, no one of which is conclusive, perhaps the most important is whether ... payment of the judgment will have to be made out of the state treasury." Id. In Kashani v. Purdue University, 813 F.2d 843, 845 (7th Cir.1987), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97, the court considered, inter alia, the extent of state funding of the entity, the state's oversight and control of the entity's fiscal affairs, and the entity's ability independently to raise funds. Other factors which bear upon the determination include the definition of "state" and "political subdivision," the degree of state control over the entity, and the fiscal autonomy of the entity. Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.1985), cert. denied, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 462. Some cases have placed particular emphasis on the entity's ability to raise its own funds by tax levy and by bond issuance because that ability indicates a lack of fiscal...

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