NORINGTON v. SHAFFER (2024)

MEMORANDUM DECISION

Case Summary

[1] Lakesha L. Norington, pro se, appeals the trial court's order dismissing her complaint for failure to state a claim against Officer Daniel Shaffer of the Indiana Department of Correction (DOC). Norington also appeals the trial court's orders denying her motion to reconsider and motion for change of judge. We conclude that Norington has failed to present cogent argument and thereby waived appellate review. Consequently, we affirm the trial court's orders.

Facts and Procedural History 1

[2] In August 2023, Norington was confined at Miami Correctional Facility. On August 25, in the breakfast hall, an unidentified officer “discriminated against [Norington] on [the] basis of [her] sex, gender, and sexual orientation by action and use of language[.]” Appellant's App. Vol. 2 at 4. Norington “was extremely uncomfortable with addressing the unpermitted workplace conduct of the officer” and attempted to report the misconduct to an Officer Stevens. Id. Officer Stevens advised Norington to use the DOC “grievance process.” Id. at 5.

[3] Norington headed back toward her living area on P-Unit, saw Officer Shaffer, and inquired whether he was “the immediate supervisor of Officer Stevens[.]” Id. When Officer Shaffer replied affirmatively, Norington started to recount the misconduct of the first officer and Officer Stevens to Officer Shaffer. However, Officer Shaffer “impeded and hindered [Norington's] ability to resolve the complaints being brought to his attention by cutting [her] off in mid-sentence and telling [her] to utilize the grievance process[.]” Id. at 6. When Norington told Officer Shaffer that she was “following and complying with” the grievance process, he told her to return to her cell. Id. Norington asked Officer Shaffer what time it was so that she could record the time that he “refused to comply with workplace mandates,” and she began writing down details on the outer lid of her Styrofoam breakfast tray. Id. During that time other incarcerated individuals were making “their way back into P-Unit[.]” Id.

[4] As Norington wrote down the “staff misconducts,” Officer Shaffer told her to “cuff up” because he was “tired of [her] not listening.” Id. Officer Stevens then took Norington's food, eyeglass case, and address book from her hand as Officer Shaffer “threatened ․ [her] with intent to and actually unlawfully injuring [her] person, unlawfully subjecting [her] to both physical confinement and restraint by and while committing the crime of assault and battery on [her] person for doing what” DOC policy required her to do to report misconduct. Id. at 6-7. Officer Shaffer took Norington to P-Unit and directed that she be taken to A Unit, an administrative segregation unit. Id. at 7. Officers Shaffer and Stevens took Norington to her living quarter, P-206, closed the “door port” after “removing the mechanical restraints,” opened the door again to return her food, eyeglass case, and address book back to her, and then closed the door again. Id.

[5] In November 2023, Norington filed a complaint against Officer Shaffer, alleging intimidation per Indiana Code Section 35-45-2-1, excessive force, assault and battery, a bias crime under Indiana Code Section 10-13-3-1, mental distress, emotional distress, and physical injury. Id. at 2. She sought $700,000 in damages. Id. at 10. Officer Shaffer, by counsel, filed a motion to dismiss per Indiana Trial Rule 12(B)(6), asserting the following: (1) immunity under the Indiana Tort Claims Act (ITCA), (2) lack of standing for the intimidation, bias, assault, and battery claims because only a prosecutor could pursue such criminal matters, (3) failure to state a claim of infliction of emotional distress due to no allegation of extreme or outrageous conduct, and (4) failure to state a claim of excessive force due to no allegation beyond de minimis action after Norington's noncompliance with officers’ orders. Id. at 29-33.

[6] In a January 19, 2024 order dismissing Norington's complaint for failure to state a claim, the trial court found that most of her complaint was “devoted to conclusory, non-factual assertions or legal conclusions.” Id. at 58. The trial court further found that the “few facts” that Norington presented, “taken as true, do not support her requested relief.” Id. (emphasis added). The trial court also found that Officer Shaffer's “argument that he is immune from suit under the [ITCA] is well taken, as the facts as alleged here demonstrate [that he] was acting within the scope of his employment during his encounter with” Norington. Id.

[7] On February 5, 2024,² Norington filed a motion for change of judge and a motion to reconsider. Id. at 61, 64. On February 8, 2024, the trial court denied Norington's change of judge motion “as not timely made” and denied her motion to reconsider. Id. at 109, 110. Norington appeals.

Discussion and Decision

[8] At the outset, we reiterate that Norington has chosen to proceed pro se on appeal. We do not owe Norington any “inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). To the contrary,

[i]t is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. These consequences include waiver for failure to present cogent argument on appeal. While we prefer to decide issues on the merits, where the appellant's noncompliance with appellate rules is so substantial as to impede our consideration of the issues, we may deem the alleged errors waived. We will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.

Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016) (citations and quotation marks omitted).

[9] Indiana Appellate Rule 46 sets out the substantive requirements for an appellant's brief. That rule provides: “The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on ․” Ind. Appellate Rule 46(A)(8)(a). “A litigant who fails to support [her] arguments with appropriate citations to legal authority and record evidence waives those arguments for our review.” Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).

[10] Here, Norington's brief is devoid of cogent argument or applicable authorities to demonstrate how the trial court might have erred in dismissing her complaint. Her brief is similarly bereft of argument or supporting citations indicating why either her motion to reconsider or motion for change of judge should have been granted. Norington makes no mention of Indiana Trial Rule 12(B)(6) and includes no argument challenging ITCA immunity for Officer Shaffer's actions. She includes lengthy, repetitive excerpts of irrelevant evidentiary rules. In several instances, Norington provides identical quotes from her own complaint, the trial court's dismissal order, her motion to reconsider, plus a bald assertion that the trial court “did not provide [her] the protections and benefits of the presumption of Truth of all facts of [her] Right-of-Action to which [Officer Shaffer] bears the burden to show all facts not truthful.” See Appellant's Br. at 5-6, 9-10, 12-13. At the bottom of every page of her appellant's brief are partial citations to two federal cases and the following statement: “The critical issues of truth, offensiveness, and recklessness are matters for jury determination.” Norington's reply brief is an exact replica of her appellant's brief, save for a “REPLY” notation handwritten in front of “BRIEF OF APPELLANT” on the first page.

[11] In short, we are unable to decipher Norington's arguments. Her failure to cogently express or develop arguments has substantially impeded our consideration of the issues. Accordingly, her arguments are waived, and we affirm the trial court's orders.

[12] Affirmed.

FOOTNOTES

2.   Although Norington handwrote January 31, 2024, upon her motions, a review of the Odyssey case management system shows that each motion had an official file stamp date of February 5, 2024.

Crone, Judge.

Bradford, J., and Tavitas, J., concur.