ILNews

Court urges early review of offender litigation

Michael W. Hoskins
January 1, 2008
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An Indiana state prison inmate has filed dozens of lawsuits with claims that a painful odor violated his constitutional rights, he's been repeatedly denied access to public records, victimized by excessive force, and not given proper treatment behind bars.

The Indiana Appellate Clerk's Office has 35 of Eric D. Smith's appeals, most being civil suits that include one decided today, and six that remain pending awaiting action.

Today, the Indiana Court of Appeals dismissed one of the 29-year-old's string of suits and the authoring jurist used the opinion to encourage trial judges to utilize a 2004 "three-strike" law limiting inmate's ability to file civil suits.

The opinion March 11 is Eric D. Smith v. Indiana Department of Correction, et al., No. 49A02-0706-CV-477.

Smith entered the state's prison system after being convicted of arson in 2001. Specifically, he was found guilty of starting a fire in an apartment complex on the west side of Indianapolis that left 12 families homeless and resulted in $2 million in damages. He was sentenced to 20 years.

He's filed numerous suits since then, the current case involving an August 2005 complaint where Smith sought injunctive and declaratory relief as to his segregated confinement in the Westville facility. He claimed this violated his human rights, according to the opinion, and at one point submitted a 99-page affidavit in support of a motion for summary judgment.

In April 2007, Marion Superior Judge Cynthia Ayers granted summary judgment to the DOC and found that it didn't have jurisdiction on possible violations of the Universal Declaration of Human Rights, as Smith claimed had been violated. The Court of Appeals summarily affirms that decision and describes the suit as frivolous.

But it also cited a state statute as a reason to dismiss the suit.

"Given the extraordinary expenditure of public resources in addressing the litigation filed by Smith, and to avoid such unnecessary and unwarranted costs to society in similar matters in the future, we direct trial courts to review and consider the application Indiana Code 34, Article 58 before permitting actions by incarcerated offenders to proceed," Judge Carr Darden wrote as a footnote on the tail end of the 10-page opinion.

The state statute at the focus of this case is Indiana Code 34-58-1-2, which says inmates are not allowed to file new litigation if they have at least three ongoing civil actions that a state court has dismissed. The only permissible reason would be if a court determines that inmate is in "immediate danger of serious bodily injury."

In theory, legitimate lawsuits move forward. Frivolous cases are tossed out.

Another footnote in the opinion notes an interesting finding: that all cases in which the annotated Indiana Code 34-58-2 has been applied involved this particular inmate.

Among the suits Smith has filed, one that gained national recognition was a claim of "cruel and unusual punishment" against the DOC for not supplying him with Rogaine for a thinning hairline. In that suit, he claimed that his baldness caused him mental harm, pain, and self-image problems and he had a constitutional right to hair loss products. The case was dismissed, but not before Smith amended the complaint several times and the Indiana Attorney General's Office was required to respond more than once.

While Smith has previously been unavailable for interviews by Indiana Lawyer, a letter he wrote to the state Attorney General's Office in June 2006 shows that he is proud of his litigation that has taken up time in court.

"Ha Ha! I'm costing the DOC and taxpayers all kinds of money," he wrote. "You guys wanna keep me in prison? Fine! I'm gonna make sure that I'm a costly prisoner... and by the time this 20 years adds up and is over with, I'm gonna cost all of you thousands and thousands of dollars! There's nothing that you can do."
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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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