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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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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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