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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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