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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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