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On December 5, 2018, Crouch filed a complaint and demand for jury trial

against the State of Indiana and Britni Saunders, the State Personnel Director,

in her official capacity and her individual capacity. According to the

complaint, on or about June 5, 2001, Crouch was “employed by the Defendant

in the Attorney General’s office” as a senior compliant analyst, which was a

non-attorney position, and Defendant terminated Crouch’s employment on or

about March 25, 2003.1

Appellant’s Appendix Volume II at 8. Crouch alleged

that he applied for positions with the Indiana Department of Correction

(“DOC”) and the Indiana Bureau of Motor Vehicles (“BMV”) in 2018 but was

not selected and subsequently learned that the State Personnel Department had

identified him as not eligible for rehire and “Defendant did not provide any

notice to Crouch that he was being designated as [not eligible for rehire] in its

Peoplesoft database.” Id. at 9. The complaint alleged Count I, violations of the

Fourteenth Amendment; and Count II, blacklisting as a violation of Ind. Code

§§ 22-5-3-1(a) and 22-5-3-2. Crouch requested the court: require the State to

remove his name from any list, database, or program that lists him as not

eligible for rehire, enjoin the State from categorizing him or any other employee

as not eligible for rehire without first providing notice and an opportunity to be

1 Crouch’s complaint does not define “Defendant” or specify if he is referring to the State or to Saunders.

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heard, require Saunders in her individual capacity to pay damages to Crouch,

and require the State to pay penal damages for its violation of Ind. Code § 22-5-

3-1(a).

[3] On February 6, 2019, the Defendants filed a motion to dismiss pursuant to Ind.

Trial Rule 12(B)(6) and a memorandum of law. The Defendants argued

Crouch did not have a liberty interest in being rehired by the State and that Ind.

Code §§ 22-5-3-1 and 22-5-3-2 did not apply to his claim. Crouch filed a

response, and the Defendants filed a reply. In June 2019, the court held a

hearing on the motion to dismiss,

2 and on July 19, 2019, granted the motion

and ordered the cause dismissed with prejudice.

Discussion

[4] A motion to dismiss pursuant to Ind. Trial Rule 12(B)(6) tests the legal

sufficiency of the complaint. Price v. Ind. Dep’t of Child Servs., 80 N.E.3d 170,

173 (Ind. 2017). The rule requires that we accept as true the facts alleged in the

complaint. Id. We review 12(B)(6) motions de novo and will affirm a dismissal

if the allegations are incapable of supporting relief under any set of

circumstances. Id. We will also affirm a dismissal if the decision is sustainable

on any basis in the record. Id.

2 The record does not contain a transcript of this hearing.

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A. Fourteenth Amendment

[5] Crouch argues that the State and Saunders deprived him of his occupational

liberty interest by categorizing him as not eligible for rehire without notice and

an opportunity to be heard in violation of the Fourteenth Amendment. He

asserts that the Defendants created a stigma that foreclosed other job

opportunities by coding him as not eligible for rehire.

[6] Section 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against

a judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was

unavailable.

42 U.S.C.A. § 1983.

[7] Section 1983 creates no substantive right of its own, but acts only as a vehicle to

afford litigants a civil remedy for deprivation of their federal rights. Myers v.

Coats, 966 N.E.2d 652, 657 (Ind. Ct. App. 2012) (citing Albright v. Oliver, 510

U.S. 266, 271, 114 S. Ct. 807 (1994), reh’g denied). To prevail on a Section 1983

claim, “the plaintiff must show that (1) the defendant deprived the plaintiff of a

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right secured by the Constitution and laws of the United States, and (2) the

defendant acted under the color of state law.” Id. (citing J.H. ex rel. Higgin v.

Johnson, 346 F.3d 788, 791 (7th Cir. 2003), reh’g and reh’g en banc denied, cert.

denied, 541 U.S. 975, 124 S. Ct. 1891 (2004)). The Fourteenth Amendment of

the United States Constitution prohibits any state from depriving a person of

life, liberty, or property without due process of law.

[8] Whether a governmental entity is amenable to suit under Section 1983 depends

on the meaning of the term “person.” “The U.S. Supreme Court has held that

for § 1983 purposes that term does not include a state or its administrative

agencies.” J.A.W. v. State, Marion Cty. Dep’t of Pub. Welfare, 687 N.E.2d 1202,

1203 (Ind. 1997) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S.

Ct. 2304 (1989)). See also Cantrell v. Morris, 849 N.E.2d 488, 506 n.26 (Ind.

2006) (“Section 1983 permits recovery against individual officers and units of

local government, but not against the State itself”). Thus, we affirm the court’s

dismissal of Crouch’s complaint against the State.

[9] As to the dismissal of Crouch’s claim against Saunders in her official capacity,

we note that “a state official in his or her official capacity, when sued for

injunctive relief, would be a person under § 1983 because ‘official-capacity

actions for prospective relief are not treated as actions against the State.’” Will,

491 U.S. at 71, 109 S. Ct. at 2312 (citing Kentucky v. Graham, 473 U.S. 159, 167,

n.14, 105 S. Ct. 3099, 3106, n.14; Ex parte Young, 209 U.S. 123, 159-160, 28 S.

Ct. 441, 453-454 (1908)). See also Chang v. Purdue Univ., 985 N.E.2d 35, 49 (Ind.

Ct. App. 2013) (“[I]t is well settled that a state official may be sued in his or her

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official capacity for prospective relief such as an injunction for a violation of a

person’s due process rights under § 1983.”), reh’g denied, trans. denied.

[10] Crouch’s complaint requested the trial court to “[e]njoin the State from

categorizing [him] or any other employee as not eligible for rehire without first

providing that individual with notice and an opportunity to be heard.”

Appellant’s Appendix Volume II at 11. However, Crouch did not request

injunctive relief or other prospective relief as to Saunders in her official

capacity. Accordingly, we affirm the court’s dismissal of Crouch’s claim

against Saunders in her official capacity.

[11] As to the dismissal of Crouch’s claim against Saunders in her individual

capacity, we note “a state official may be sued in his or her individual capacity

for retrospective relief under § 1983.” Chang, 985 N.E.2d at 49. Crouch

requested that the trial court require Saunders in her individual capacity to pay

damages for “[a]ll wages, benefits, compensation, and other monetary loss

suffered as a result of Defendant’s unlawful actions,” “[c]ompensation for any

and all other damages suffered as a consequence of Defendants’ unlawful

actions,” and punitive damages. Appellant’s Appendix Volume II at 11.

[12] “In addressing a claim of an unconstitutional denial of procedural due process,

we undertake a two step analysis.” Larry v. Lawler, 605 F.2d 954, 957 (7th Cir.

1978). Initially, we must determine whether Crouch’s interest rises to the level

of a constitutionally protected liberty or property interest. See id. If there is a

recognizable property or liberty interest at stake, then we must weigh the

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competing interests of the individual and the Government in order to reach a

resolution of what process is due. Id.

[13] Crouch asserts only that his interest constituted a protected liberty interest. The

United States Supreme Court has held:

While this court has not attempted to define with exactness the

liberty . . . guaranteed (by the Fourteenth Amendment), the term

has received much consideration and some of the included things

have been definitely stated. Without doubt, it denotes not merely

freedom from bodily restraint but also the right of the individual

to contract, to engage in any of the common occupations of life,

to acquire useful knowledge, to marry, establish a home and

bring up children, to worship God according to the dictates of his

own conscience, and generally to enjoy those privileges long

recognized . . . as essential to the orderly pursuit of happiness by

free men.

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 2706-

2707 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626 (1972)).

[14] In Larry, the Seventh Circuit discussed Roth and held:

The court suggested a two-pronged liberty interest. Initially,

liberty may be implicated if charges are leveled against an

employee which “might seriously damage his standing and

associations in his community,” and the court gives as an

example accusations of dishonesty or immorality. [Roth, 408

U.S.] at 573, 92 S. Ct. at 2707. . . .

Secondly, the court explained that liberty may also be abridged if

“the State, in declining to re-employ the respondent, imposed on

him a Stigma or other disability that foreclosed his freedom to

take advantage of other employment opportunities. . . .”

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605 F.2d at 957. “A plaintiff may prove a deprivation of a liberty interest by

showing damage to her ‘good name, reputation, honor, or integrity[.]’”

Omosegbon v. Wells, 335 F.3d 668, 675 (7th Cir. 2003) (quoting Wisconsin v.

Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507 (1971)).

[15] In order to determine the specific dictates of due process in a given situation, it

is necessary to balance three distinct factors: (1) the private interest that will be

affected by the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used, along with the probable value, if any, of

additional or substitute procedural safeguards; and (3) the government’s

interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirements would entail.

Mitchell v. State, 659 N.E.2d 112, 114 (Ind. 1995) (citing Wilson v. Bd. of Ind.

Employment Sec. Div., 270 Ind. 302, 309-310, 385 N.E.2d 438, 444 (1979)

(quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976)), cert.

denied, 444 U.S. 874, 100 S. Ct. 155 (1979)).

[16] The Seventh Circuit has held:

A claim that a government employer has infringed an employee’s

liberty to pursue the occupation of his or her choice requires that

(1) the employee be stigmatized by the employer’s actions; (2) the

stigmatizing information be publicly disclosed; and (3) the

employee suffer a tangible loss of other employment

opportunities as a result of the public disclosure. However,

simply labeling an employee as being incompetent or otherwise

unable to meet an employer’s expectations does not infringe the

employee’s liberty. The employee’s good name, reputation,

honor, or integrity must be called into question in such a way as

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to make it virtually impossible for the employee to find new

employment in his chosen field.

Head v. Chicago Sch. Reform Bd. of Trustees, 225 F.3d 794, 801 (7th Cir. 2000).

[17] Crouch’s complaint alleged that he “has broad liberty interests protected by the

Constitution of the United States, including, but not limited to, the right to

contract, to engage in any of the common occupations of life, and to his good

name, reputation, honor and integrity.” Appellant’s Appendix Volume II at 9.

The complaint does not assert that the designation in the State’s Peoplesoft

database was ever made public. Further, Crouch has not alleged that the DOC

or BMV requested his personnel file, or that Saunders released his personnel

file. Crouch also does not allege the designation was erroneous or based on

false charges or specify a chosen field of employment. Under the

circumstances, we cannot say that reversal is warranted. See Omosegbon, 335

F.3d at 675 (observing the district court rejected the plaintiff’s claim of

deprivation of a liberty interest because there was no evidence that any

statements regarding the plaintiff’s teaching ability were ever made public,

noting a denial of tenure or employment is only stigmatizing if it is

accompanied by a publicly announced reason that impugns the employee’s

moral character or implies dishonesty or other job-related moral turpitude, and

holding the plaintiff “had to show that the news of his denial of re-appointment

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was both publicly disseminated and also sullied his moral character” and failed

to establish a liberty interest).3

B. Blacklisting

[18] Crouch argues the trial court erred with respect to his claims under Ind. Code §§

22-5-3-1 and 22-5-3-2. Ind. Code § 22-5-3-1 is titled “Disclosure of information

after employee’s discharge” and provides:

(a) A person who, after having discharged any employee from his

service, prevents the discharged employee from obtaining

employment with any other person commits a Class C infraction

and is liable in penal damages to the discharged employee to be

recovered by civil action; but this subsection does not prohibit a

person from informing, in writing, any other person to whom the

discharged employee has applied for employment a truthful

statement of the reasons for the discharge.

(b) An employer that discloses information about a current or

former employee is immune from civil liability for the disclosure

and the consequences proximately caused by the disclosure,

unless it is proven by a preponderance of the evidence that the

information disclosed was known to be false at the time the

disclosure was made.

(c) Upon written request by the prospective employee, the

prospective employer will provide copies of any written

3 To the extent Crouch relies upon Larry, 605 F.2d 954, we find the case distinguishable. As for the private

interest that will be affected by the official action, unlike in Larry in which the court observed that the

ineligibility rating charged Larry with “abusive treatment of [his] colleagues and associates” and labeled him

an “habitual and excessive user of intoxicants,” 605 F.2d at 959, Crouch does not assert that any basis was

identified for his designation. With respect to the risk of an erroneous deprivation of such interest through

the procedures used, unlike in Larry in which Larry questioned the reliability or veracity of the source of the

information used as a basis for the Commission’s decision, see id. at 960, Crouch’s complaint does not assert

that he was wrongfully classified.

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communications from current or former employers that may

affect the employee’s possibility of employment with the

prospective employer. The request must be received by the

prospective employer not later than thirty (30) days after the

application for employment is made to the prospective employer.

[19] Ind. Code § 22-5-3-2 is titled “Railroads; damages; exemplary damages” and

provides:

If any railway company or any other company, partnership,

limited liability company, or corporation in this state shall

authorize, allow or permit any of its or their agents to black-list

any discharged employees, or attempt by words or writing, or

any other means whatever, to prevent such discharged employee,

or any employee who may have voluntarily left said company’s

service, from obtaining employment with any other person, or

company, said company shall be liable to such employee in such

sum as will fully compensate him, to which may be added

exemplary damages.

[20] The Indiana Supreme Court has held: “Although this Court has abrogated

common-law sovereign immunity almost entirely for tort claims, we have not

done so for non-tort claims based on a statute.” Esserman v. Ind. Dep’t of Envtl.

Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017). “[W]e should not conclude lightly

that our legislature has waived State immunity.” Id. at 1192. “We will thus

find a waiver of sovereign immunity only when the statute at issue contains an

unequivocal affirmative statement that clearly evinces the legislature’s intention

to subject the State to suit for the specific statutory claim asserted.” Id.

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[21] Ind. Code § 22-5-3-2 mentions “railway company or any other company,

partnership, limited liability company, or corporation,” and does not specify the

State. We cannot say that this statute clearly evinces or unequivocally

expresses the legislature’s intention to waive the State’s sovereign immunity

under these circumstances. See Esserman, 84 N.E.3d at 1192 (observing that

Indiana’s False Claims and Whistleblower Protection Act, while clearly stating

that an employee may sue her employer, does not name the State (or one of its

agencies or officials) as a permissible whistleblower defendant, noting that

“[h]ad the legislature intended to subject the State to whistleblower liability, it

could have expressed that intention any number of ways,” and concluding that

the legislature did not “clearly evince” or “unequivocally express” its intention

to waive State immunity for whistleblower claims).

4

[22] Even assuming the legislature expressed such an intent or that the State or

Saunders qualifies as a “person” under Ind. Code § 22-5-3-1, we note that we

harmonize statutes when possible, and Title 4 of the Indiana Code governs

State Offices and Administration, and Ind. Code § 4-15-2.2.-30 provides that

“[a]n application for employment may be rejected if the department determines

that the applicant . . . has been dismissed from the public service . . . .” Further,

4 We note that the Indiana Supreme Court has held: “Indiana’s Blacklisting Statute, as is readily apparent

from its language, was enacted with a particular eye toward the conduct of railroad companies, though it

operates to control the conduct of all employers.” Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806,

811 (Ind. 2012) (citing Ind. Code § 22-5-3-2). However, the Court did not hold the State waived its sovereign

immunity with respect to the Blacklisting Statute, and we follow Esserman, which is the Indiana Supreme

Court’s recent decision specifically addressing State immunity under a statute.

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subsection (b) of Ind. Code § 22-5-3-1 provides that “[a]n employer that

discloses information about a current or former employee is immune from civil

liability for the disclosure and the consequences proximately caused by the

disclosure, unless it is proven by a preponderance of the evidence that the

information disclosed was known to be false at the time the disclosure was

made.” As noted, Crouch makes no assertion that the designation was

erroneous or based on false charges, and we cannot say reversal is warranted.

See Brazauskas v. Fort Wayne-S. Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind.

2003) (holding that plaintiff “does not claim that any of the alleged disclosures

that led to her denial of the PCL position were false” and that “[s]he would

therefore have no claim for blacklisting under the revised statute”), cert. denied,

541 U.S. 902, 124 S. Ct. 1602 (2004).

For the foregoing reasons, we affirm the court’s dismissal of Crouch’s

complaint.