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COA reverses one dismissal of inmate's suit

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The New Castle inmate with a history of filing frivolous lawsuits got a minor victory in the Indiana Court of Appeals today. The judges reinstated his complaint against the only person who presided over the inmate's disciplinary hearing for a Department of Correction rule violation for filing a frivolous claim.

In Eric D. Smith v. Sgt. Thompson, DHB, and Barry Holder,  No. 33A01-0905-CV-214, Smith appealed pro se the dismissal of his complaint against Thompson, whose first name isn't listed in the suit, and Barry Holder as frivolous pursuant to Indiana Code Section 34-58-1-2. Smith's complaint in the instant case stems from a disciplinary hearing that was conducted with Thompson serving as the sole hearing member. After a trial court dismissed a Feb. 13, 2009, complaint as frivolous, the DOC charged Smith with a disciplinary rule violation for filing a frivolous claim.

Thompson found Smith guilty; Holder, acting for DOC Superintendent Jeff Wrigley, denied the appeal. Smith filed his complaint March 24, alleging Thompson and Holder denied his due process rights under the 14th Amendment. He claimed Thompson violated DOC policy by conducting the disciplinary hearing alone and that Thompson excluded Smith from the hearing and continued the hearing in his absence. Smith alleged Holder was indifferent to his claims on appeal. The trial court dismissed Smith's March 24 complaint as frivolous.

The Court of Appeals affirmed the dismissal of the complaint against Holder because Smith failed to make factual allegations of a depravation of due process, except that Holder was indifferent to his appeal. This is an attempt to appeal a DOC disciplinary action, which state courts can't review, wrote Judge Margret Robb.

Smith's claim against Thompson shouldn't have been dismissed, the appellate court determined. Because the trial court dismissed his complaint ab initio, the state never filed an answer nor did it take part in this appeal. Absent information to the contrary, the appellate court has to accept as true the well-pleaded facts in Smith's complaint, wrote the judge.

"[A]s a result, we must assume that the hearing was conducted in violation of DOC policy. In addition, Smith's exclusion from the hearing, if true, could constitute a violation of his basic due process rights," she wrote.

The Court of Appeals agreed with another panel of the court that given Smith's penchant for litigation, there's a strong possibility his claims in the instant case are false or exaggerations.

"While Smith's complaint may turn out to be baseless, it is not clearly baseless on its face, and it is sufficient to survive the screening of the statute with respect to Thompson," she wrote.

The case is remanded for further proceedings in light of the opinion.

The same appellate panel in a separate case also affirmed the dismissal of a separate complaint filed by Smith against Thompson; Wrigley; Jill Matthews, a former employee at the New Castle facility mailroom; and David Ittenbach, a current employee of the facility, ruling the trial court didn't err in dismissing his case as frivolous.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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