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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
K.M., INDIVIDUALLY AND ON BEHALF
OF THE ESTATE OF C.M.,
Plaintiffs,
vs.
MATTHEW KINCAID, JUDGE BOONE CO.,
IN HIS OFFICIAL CAPACITY AS SPECIAL
JUDGE OF VIGO COUNTY PROBATE
COURT/SUPERIOR COURT 1, AND VIGO
COUNTY PROBATE COURT,
Defendants.
Case No.: 2:21-CV-00478-JRS-DLP
PLAINTIFF’S RESPONSE TO
DEFENDANTS’ MOTION TO DISMISS
NOW COMES K.M., individually and on behalf of the estate of C.M., and files this
Response to Defendants’ Motion to Dismiss, and hereby avers as follows:
1. On April 20, 2022, Defendants filed a Motion to Dismiss and argued that: K.M.
lacks standing to bring this suit on behalf of the estate of C.M., Plaintiffs’ section 1983 claims
are barred by the statute of limitations, this court lacks subject matter jurisdiction over Plaintiff’s
complaint, and that b Plaintiffs have failed to state a claim for which relief can be granted.
2. Plaintiff submits that the Motion to Dismiss has been failed in bad faith in an
attempt to give leeway to Defendants to escape the consequences of their actions.
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 2
K.M. Has Standing to Bring Suit on Behalf of the Estate of C.M.
3. Ind. Code § 34-9-3-1(b) provides thus: “An action under this chapter may be
brought, or the court, on motion, may allow the action to be continued by or against the legal
representatives or successors in interest of the deceased. The action is considered a continued
action and accrues to the representatives or successors at the time the action would have accrued
to the deceased if the deceased had survived.”
4. The initial action filed at the Vigo County Probate Court involved a wrongful
death action initiated by Plaintiff on her own behalf as well as on behalf of the Estate of C.M. In
that action, Plaintiff had standing to act on behalf of the Estate of C.M.
5. Federal law permits assignees to sue on assignors’ claims. See Sprint
Communications Co. v. APCC Services, Inc., 554 U.S. 269, 128 S.Ct. 2531, 171 L.Ed.2d 424
(2008). The right to sue as representative of an estate depends on state law, see Fed. R. Civ. P.
17(b)(3), and the district court properly recognized that the state court’s decision to retain Lisa as
the estate’s representative is not subject to collateral attack. Cf. Marshall v. Marshall, 547 U.S.
293, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006) (discussing the probate exception to federal
jurisdiction).
6. The issue of whether or not K.M. had standing to bring the suit on behalf of the
Estate of C.M. had already been resolved by Judge Louis Rosenberg of the Marion County
Circuit Court. Judge Rosenberg had allowed K.M. to represent the Estate of C.M. without an
attorney. Defendant Judge’s failure to reopen the estate of the late C.M. despite resolution of the
issue by Judge Rosenberg was a violation of due process rights of the K.M. as well as the Estate
of C.M.
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 3
7. Defendant Judge’s failure to reopen the estate of the late C.M. affected K.M. and
the Estate of C.M. Therefore, both parties have an interest in this case. K.M. has standing to
represent the Estate of C.M. as resolved by Judge Rosenberg.
Plaintiffs’ Section 1983 Claims Are Not Barred by Statute of Limitations
8. Defendants aver that the statute of limitations is 2 years. Plaintiffs contend that
the statute of limitation is 5 years in accordance with Ind. Code § 34-1-2-2(2) which provides:
“All actions against a sheriff, or other public officer, or against such officer and his sureties on a
public bond, growing out of a liability incurred by doing an act in an official capacity, or by the
omission of an official duty, within five [5] years; but an action may be brought against the
officer or his legal representatives, for money collected in an official capacity, and not paid over,
at any time within six [6] years.”
9. Returning to the threshold issue, whether the two (2) year period or the five (5)
year period should be applied, an analysis of the Indiana cases which have applied the five (5)
year period reveals that each has involved a "public officer" as a named defendant. Blake v.
Katter, 693 F.2d 677 (7th Cir.1982); Sacks Brothers Loan Co., Inc. v. Cunningham, 578 F.2d
172 (7th Cir.1978); Bottos v. Avakian, 477 F. Supp. 610 (N.D.Ind.1979).
10. The Blake Court noted a two step analysis for the application of Ind.Code § 34-1-
2-2(2) that requires (1) a public officer and (2) the performance of the controversial act while in
the official capacity. 693 F.2d at 680. Further the Blake court defined a public officer as "one
who [holds] an office having special duties prescribed by law to serve a public purpose, and that
those duties were invested with some of the functions pertinent to sovereignty."
11. Defendant Judge is a public officer by the definition outlined in Blake. He holds
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 4
an office of judge with special duties to administer the law to members of the public. Defendant
Judge’s actions were controversial as it was untenable for him to fail to rule on the Petition to
Reopen the Estate, ignore a stay that had already been granted in Marion County Cause No.
49C01-1302-CT-007663, as well as failing to allow the Estate of C.M. to file and process legal
paperwork that was required for the closing. The foregoing acts and omissions were committed
by Defendant Judge in exercise of his duties. Therefore, the 5-year statute of limitation applies.
12. The causes of action before this Court arise from Defendants’ orders dated April
15, 2018 and May 22, 2018. Plaintiffs filed their Complaint on December 31, 2021. The only
claims that should be dismissed because of statute of limitations are claims that accrued before
December 31, 2016. Contrary to the frivolous claim made by Defendants, this action is well
within the 5-year statute of limitation.
This Court Has Subject Matter Jurisdiction Over Plaintiff’s Complaint
13. 28 U.S. Code § 1343(a) provides as follows: “The district courts shall have
original jurisdiction of any civil action authorized by law to be commenced by any person (3) to
redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction
of the United States.” This is an action for violation of Plaintiffs’ rights under section 1983.
14. District courts have mandamus jurisdiction to “compel an officer or employee of
the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. §
1361. “Mandamus relief will be granted if the plaintiff can demonstrate that the three enumerated
conditions are present: (1) a clear right to the relief sought; (2) that the defendant has a duty to do
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 5
the act in question; and (3) no other adequate remedy is available.” Iddir v. I.N.S., 301 F.3d 492,
499 (7th Cir. 2002) (citing Scalise v. Thornburgh, 891 F.2d 640, 648 (7th Cir. 1989)).
15. This court is authorized to issue a writ of mandamus pursuant to 28 U.S.C. §
1651(a), the All Writs Act, which states that through such jurisdiction the court may “compel an
officer or employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.”
16. Writs of mandamus are also authorized by 28 U.S.C. § 1361, which grants district
courts jurisdiction in "any action in the nature of mandamus to compel an officer or employee of
the United States or any agency thereof to perform a duty owed to the plaintiff."
17. There are clear statutes that expressly outline the jurisdiction of this Court.
Defendants’ claims that this Court lacks subject matter jurisdiction over Plaintiffs’ Complaint
fail.
Plaintiff Has Raised a Valid Claim for Which Relief Should be Granted
18. 42 U.S. Code § 1983 stipulates: “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.”
19. For no good cause, Defendants caused Plaintiff to be deprived their rights under
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 6
the due process clause and section 1983. Defendants also violated Plaintiffs’ right of access to
the courts and the First Amendment right to petition secured by the U.S. Constitution as well as
the Open Courts Clause of the Indiana Constitution, Art. 1, s. 12.
20. For a constitutional right to be clearly established, its contours must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). It is reasonable for Plaintiffs to assume
that Defendant Judge has vast knowledge of the law and procedure as well as experience.
Defendant Judge should have known that his actions constitute a violation of Plaintiffs’ rights
under the U.S. Constitution.
21. Defendants have failed to deny the above claims brought against them by
Plaintiffs. Defendants cannot state that Plaintiffs have failed to state a claim when they have not
addressed the facts and allegations that give rise to the above causes of action.
22. Plaintiffs have raised valid claims whose facts are undisputed by Defendants.
Therefore, Defendants cannot claim that Plaintiffs have failed to state a valid claim for which
relief should be granted.
Defendants Lack Absolute Immunity
23. When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid
statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard
(1980) 633 F.2d 844, cert. den. Zeller v. Rankin, 101 S. Ct. (2020) 451 U.S. 939, 68 L. Ed 2d
326.
24. The Supreme Court has not addressed the influence of non-binding precedent
beyond noting that consensus among various courts that certain conduct is a constitutional
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 7
violation can establish a constitutional right. Saucier v. Katz, 533 U.S. 194, 202 (2001).
25. No judicial process, whatever form it may assume, can have any lawful authority
outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt
to enforce it beyond these boundaries is nothing less than lawless violence. Ableman v. Booth, 21
Howard 506 (1859).
26. Defendant Judge’s immunity stopped applying when he acted outside the scope of
his responsibilities and engaged in non-judicial acts. He was sent by the Indiana Supreme Court
without the filing of a change of judge or venue and appointed special judge in Plaintiffs’ matter
from a county over 250 miles away. His appointment in that county had not been revoked,
meaning he was still a judge there. It is impossible for one to be a judge in different jurisdictions
at the same time. Defendant Judge was acting outside the scope of his jurisdiction in Plaintiffs’
matter.
27. The difference between selectively disabling a judge in various aspects of
adjudication (such as during the appellate period) and the permanent extinguishment of his
jurisdiction in a given case, has a logical relevance to a judge’s expectation of enjoying absolute
judicial immunity in that case. In examining entitlement to immunity, the U.S. Supreme Court
focused upon the nature of the act: is it an act ordinarily performed by a judge? Unfortunately,
judges sometimes exceed their jurisdiction in a particular case. But an act done in complete
absence of all jurisdiction cannot be a judicial act. Piper v. Pearson, 2 Gray 120, cited in Bradley
v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872).
28. Therefore, Defendant Judge acted outside of his jurisdiction in Plaintiff’s matter
and he lacks absolute immunity.
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PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS – 8
PRAYER FOR RELIEF
REASONS WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request this
Honorable Court to STRIKE Defendants’ Motion to Dismiss and GRANT Plaintiffs all reliefs
requested in their Complaint.
Dated this 11 th day of May, 2022.
Respectfully Submitted,
___________________________________
K.M.
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