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Justices split on appellate review of prisoner litigant's claim

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One of Indiana's most well-known pro se prisoner litigants convinced two of the state justices that his latest appeal should get their attention, but the other three denied transfer relating to how the Indiana Court of Appeals dismissed the case.

In an order Monday denying transfer in Eric D. Smith v. Steve Euler, et al., No. 46A03-1011-CT-592, the Supreme Court examined how the state’s intermediate appellate court had handled an appeal of the New Castle inmate earlier in the year.

Convicted of arson in 2001, Eric D. Smith is serving a 20-year sentence and has filed dozens of suits through the years. One of those, Eric D. Smith v. Indiana Department of Correction, et al., No. 49S02-0804-CV-166, resulted in the Indiana Supreme Court’s holding in April 2008 that the state’s “Three Strikes Rule” against prisoner litigation was unconstitutional because it effectively closed the door on some prisoners and their ability to file legitimate claims.

The online appellate docket shows Smith has filed 99 appeals since 2002, with less than a dozen of those being criminal or post-conviction relief cases.

The instant case is against two correctional officers and the prison counselor. Smith’s suit involves a LaPorte Superior Court judgment dismissing his suit on grounds that it had already been adjudicated, and the case made its way to the Court of Appeals in late 2010. The appellate court in January ordered that Smith show cause within 35 days as to why the appeal shouldn’t be dismissed on res judicata, and in late February the court found Smith hadn’t done that and dismissed the case with prejudice. Smith filed a transfer petition in March.

While three justices voted to deny transfer, Justices Frank Sullivan and Brent Dickson dissented and issued a separate opinion explaining their rationale. Specifically they took issue with how the appellate panel issued the order to show cause rather than address the res judicata questions as is typically done. These orders are typically used when a question exists about the court’s jurisdiction, or when a litigant hasn’t complied with the Rules of Appellate Procedure, Justice Sullivan wrote.

Noting that he’d written the high court’s decision three years ago that emphasized even frequent inmate lawsuit filers have a constitutional right to appeal, Justice Sullivan wrote that he believes the appellate court’s action was improper.

“In my view, this is no different than a trial court dismissing a tort claim on, say, statute-of-limitation grounds,” he wrote. “The plaintiff in such a situation would be entitled to appellate review of that dismissal; the court on appeal would not first issue an order to show cause as to why the appeal should not be dismissed on grounds of statute of limitations.”

Justice Dickson joined his colleague on the dissent, which ended: “I would grant transfer and remand this case to the Court of Appeals for consideration of Mr. Smith’s appeal on the merits unless, of course, Mr. Smith is guilty of abusing the appellate process to an extent warranting dismissal.”

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