Indiana Court Decisions – April 26-May 9, 2018

7th Circuit Court of Appeals

May 2

Civil Plenary — Inmate Medical Care/Appointment of Counsel

Thomas James v. Lorenzo Eli, et al.

15-3034

The Indiana Southern District Court must appoint counsel for an Arizona inmate suing two Indiana prison doctors after a circuit court panel found the lower court erred in determining the inmate was competent to litigate his own case.

In Thomas James v. Lorenzo Eli, et al., 15-3034, Thomas James was transferred from a prison in Arizona to the New Castle Correctional Facility in April 2007 and developed an infected ingrown toenail in October. He submitted a health request to prison staff, and staff physician Dr. Lorenzo Eli ordered various tests, as well as ointment, antibiotics, dressing changes and Tylenol. James began complaining of pain one week after Eli’s initial visit, but the doctor told him to give the antibiotics time to work.

James’ toenail “looked much better” at a two-week follow-up, so Eli continued with his original treatment plan. Eli never treated James’ toenail again, but another prison doctor removed the toenail in late 2007 at James’ request. Shortly thereafter, James fell on a set of prison stairs and injured his jaw, blaming the incident on his toe, pain medications and a lack of adequate bed rest.

James submitted another health request form and was prescribed ibuprofen for a “cracked” jaw in late December 2007. Eli also examined his x-rays and found a fracture in his left jawbone, so James was sent to the Wishard Hospital Emergency Room. The hospital agreed with Eli’s diagnosis and referred James to a plastic surgeon, while Eli put him on a soft diet and placed him in the infirmary.

Dr. Nicolas Villanustre, a plastic surgeon, ultimately decided surgery was unnecessary, and James was transferred back to Arizona in April 2008. But James sued Eli and Villanustre in September 2009, alleging they were deliberately indifferent to his toenail and jaw infirmities.

James also filed multiple requests for counsel, arguing, among other things, that he wanted to hire a medical expert and that chronic migraines impeded his self-representation. Indiana Southern District Judge William T. Lawrence denied that motion after finding James had “demonstrated his awareness of the facts surrounding (his) claims and his understanding of the applicable legal standard.” Lawrence then granted summary judgment to both doctors, but the 7th Circuit overturned that ruling May 2.

Judge Joel Flaum wrote for the circuit panel that because James’ allegations involved the doctors’ “state of mind,” his case progressed beyond basic pleadings. Also, because he was litigating his claims from more than 1,000 miles away, Lawrence erred in denying his requests for counsel at the summary judgment stage. Further, James’ inability to adequately conduct discovery or respond to the doctors’ summary judgment motions established prejudice, he said.

“Plaintiff’s condition was apparently so complex that it necessitated referrals from general practitioners to a doctor who specialized in plastic surgery,” Flaum wrote. “Additionally, his treatment took place at multiple medical institutions … and included x-rays and CT scans. This not only broadened the scope of relevant discovery, but also necessitated some level of expertise for its proper interpretation.”

Thus, the circuit court reversed the denial of James’ motion for counsel, vacated summary judgment for the doctors and remanded the case for further proceedings.

Civil Plenary — Immigration/Petition for Review

Francisco Javier Perez v. Jefferson B. Sessions III

17-1369

The 7th Circuit Court of Appeals has ordered the Board of Immigration Appeals to re-examine a Honduras native’s case against his forced removal to his country of origin, finding the board did not adequately consider the man’s evidence of the threat of gang violence against him if he were deported.

After declining an invitation to join the Honduran street gang MS-13 in 2003, Francisco Javier Perez ran away from his hometown of Danli, Honduras, and dropped out of school. He then witnessed the murder of a friend, who Perez believed was shot because his brother was a member of one of MS-13’s rival gangs. Perez was subsequently beaten and shot at as a way of dissuading him from testifying about the murder.

Perez eventually moved to Indiana and was admitted as a lawful permanent resident in 2008, but he returned to Honduras for a vacation in 2010. Perez was forced to end his vacation, however, after the same gang members who had tried to recruit him recognized him while on vacation.

After returning to Indiana, Perez pleaded guilty to sexual misconduct with a minor, an aggravated felony that disqualified him from asylum and withholding of removal. However, Perez was still qualified to seek deferral under the Convention Against Torture, which he did based on the argument that MS-13 would harm and possibly kill him if he were removed to Honduras. Family members also testified about the dangers they believed Perez would face if he were removed.

An immigration judge eventually found that Perez failed to prove he would be tortured if removed to his home country, and the Board of Immigration Appeals agreed. Specifically, the board found Perez’s “fear of future torture is speculative, and not based on a specific current threat to himself.” The Honduran native then filed for review with the 7th Circuit Court of Appeals, which granted his petition on May 2 in Francisco Javier Perez v. Jefferson B. Sessions III, 17-1369.

“We grant that any inquiry about the future requires some speculation, but that problem is baked into the Convention …,” Chief Judge Diane Wood wrote for the panel. “The fact that Perez was the target of some near-misses, however, shows that MS-13 had Perez himself in its sights and was willing to take violent action against him. The threat of imminent death is one way in which torture by means of mental pain or suffering can be inflicted.”

Wood also said the board erred by examining the threat against Perez brought only by the MS-13 members in Danli and failing to consider his evidence that the gang would pose a threat in other areas of the country. The panel, thus, concluded the board must revisit Perez’s evidence of the widespread threat of torture in Honduras.
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May 3

Criminal — Sentencing Enhancement

Jesus Arreola-Castillo v. United States of America

17-1439

A felon whose previous New Mexico drug convictions were vacated has successfully appealed an Indiana district court’s decision not to reopen his federal life sentence, with the 7th Circuit Court of Appeals ruling his sentencing challenge was based on the notion that his New Mexico convictions no longer exist.

After being convicted of conspiracy to distribute 1,000 kilograms or more of marijuana in 2006, Jesus Arreola-Castillo was sentenced to a mandatory life sentence based on two prior felony drug offenses in New Mexico in 1996. State courts in New Mexico overturned both convictions in 2014 and 2015, so Arreola-Castillo moved to reopen his federal sentence. The Indiana Southern District Court, however, found his claims were time-barred under 21 U.S.C. section 851(e) because the informations alleging the New Mexico convictions were filed in 2006, more than five years after his 1996 convictions.

Arreola-Castillo appealed in Jesus Arreola-Castillo v. United States of America, 17-1439, and the government argued for the first time on appeal that his petition was untimely because he did not “diligently pursue vacatur of his state convictions,” as required under 28 U.S.C. 2255(f)(4). The 7th Circuit Court of Appeals declined to exercise its discretion to address that untimely argument, with Judge Joel Flaum writing May 3 the instant case is not “exceptional.”

The circuit panel then reversed the denial of Arreola-Castillo’s motion to reopen his federal sentence, with Flaum writing section 851(e) does not bar his claims because he is not challenging the validity of his prior convictions, as considered by the statute. Instead, the panel determined he was challenging the existence of the New Mexico convictions based on their vacation.

“Where, as here, a state court has vacated the prior convictions, the petitioner is not launching a full-blown collateral attack in the federal court,” Flaum wrote for the unanimous panel. “Rather, he has already successfully challenged the validity of those convictions in state court and is simply asking the federal court to recognize the state court’s determination.”

“… Moreover, there is no concern about protecting the finality of state court judgments because New Mexico already deprived its own judgments of force and effect by vacating them,” Flaum continued. “In doing so, the New Mexico state court clearly determined that Arreola-Castillo’s claims did not run afoul of the state’s statutes of limitations and procedural barriers.”

Indiana Court of Appeals

April 27

Civil Tort — Negligence/Preferred Venue

Scribbles, LLC, Pittsboro Christian Church, d/b/a Scribbles Ministry of Pittsboro Christian Church, Christeen Michael, and Debbie Spurlock v. Camden “Jax” Wedgewood, et al.

49A04-1706-CT-1434

A negligence case against a Hendricks County church daycare accused of causing an infant’s catastrophic brain injury must be transferred to Hendricks County after the Indiana Court of Appeals determined the trial court erred in finding Marion County was a preferred venue.

In January 2016, Jax Wedgewood, an infant, began attending daycare services at the Scribbles Ministry of Pittsboro Christian Church in Hendricks County, where Christeen Michael was a caregiver. Jax suffered a brain injury soon after starting at the daycare, so his parents and grandfather sued the facility, Michael and director Debbie Spurlock for negligence. They also sought a declaratory judgment to determine whether the Indiana Medicaid Plan had a lien on their recovery.

In response, the defendants moved to transfer venue to Hendricks County, arguing Marion County was not a preferred venue. Jax’s family, however, claimed Marion County was a preferred venue under Indiana Trial Rule 75(A)(5) because the Family and Social Services Administration — which was implicated under the declaratory judgment action — is a governmental organization located in Marion County.

The Marion Superior Court agreed with the plaintiffs and denied the motion to transfer venue, but the Indiana Court of Appeals reversed April 27. Judge Rudolph Pyle wrote for the unanimous appellate panel that FSSA’s “incidental connection” to the litigation was insufficient to support preferred venue in Marion County.

“Specifically, … FSSA played no role in the underlying litigation, which involved an alleged catastrophic brain injury to an infant,” Pyle wrote. “Further, the alleged injury occurred in Hendricks County. In addition, all of the Plaintiffs and Defendants resided in or were headquartered in Hendricks County.”

Given those facts, the panel determined Hendricks County is a preferred venue and, thus, remanded the cases to grant the defendants’ motion and transfer the case to Hendricks County.

The case is Scribbles, LLC, Pittsboro Christian Church, d/b/a Scribbles Ministry of Pittsboro Christian Church, Christeen Michael, and Debbie Spurlock v. Camden “Jax” Wedgewood, by next of friend Brian Scott Wedgewood, Hannah Jade Hill and Camden Riley Wedgewood, 49A04-1706-CT-1434.
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May 4

Criminal — Robbery, Criminal Confinement/Double Jeopardy

Andre Taylor, a/k/a Robert Davidson v. State of Indiana

49A04-1708-CR-1930

Burglary and robbery convictions against a man convicted in a Marion County break-in will stand, but related criminal confinement convictions must be vacated because the confinement was “part and parcel” of the underlying robbery, the Indiana Court of Appeals ruled May 4.

After hearing banging on his front and back doors in the early morning hours of Jan. 10, 2015, Victor Villalobos saw a man with a gun standing on his front porch. Villalobos attempted to call 911, but his cellphone was stolen when four men — at least two of whom were armed — broke into the home.

Villalobos and his housemate, Julian Altatenco, were forced into separate rooms and repeatedly punched, and Villalobos eventually surrendered $150 after being threatened at gunpoint. Meanwhile, neighbors called 911, and responding officers witnessed two of the attackers attempting to flee.

After one of the men shot at Officer Kevin Larussa, Larussa returned fire and hit the man in the leg. The suspect initially told police his name was Robert Davidson, but it was later learned that his real name was Andre Taylor.

After police found a cellphone belonging to one of the other assailants, Donte Jones, at the scene, they seized Taylor’s phone and determined multiple calls and texts had been exchanged between the two men. Detective Grant Melton used a “chip-off” technique to remove the memory chip from Taylor’s phone and retrieve the data, but the discovered texts “were not highly revealing.”

Taylor was eventually charged with burglary, armed robbery and criminal confinement, among other charges, and was alleged to be a habitual offender. He moved to exclude evidence related to Melton’s examination of his phone, but the Marion Superior Court denied the motion. Taylor was then found guilty of Level 2 felony burglary, Level 3 felony armed robbery and two counts of Level 3 felony criminal confinement and pleaded guilty to being a habitual offender.

On appeal in Andre Taylor, a/k/a Robert Davidson, v. State, 49A04-1708-CR-1930, Taylor argued the trial court erred in allowing Melton to testify about his discoveries using the “chip-off” technique because he failed to meet the standard for admission of expert scientific testimony. But the Indiana Court of Appeals disagreed, with Judge Michael Barnes writing Melton’s testimony was not scientific.

“Rather, it would more correctly be called ‘technical’ or ‘specialized’ knowledge,” Barnes wrote. “This court has identified mechanical engineering as ‘technical,’ not ‘scientific’ knowledge. The processes by which Detective Melton can recover data from cell phones is more akin to engineering than science.”

But the appellate court agreed with Taylor’s argument that his criminal confinement convictions violated double jeopardy protections because the confinement of Villalobos and Altatenco was no “more extensive than necessary to carry out the robbery.”

“There was no evidence of any separate or significant length of confinement after the robbery was completed,” Barnes wrote. “And, this was not a protracted incident. As such, we conclude that Taylor’s two convictions for Level 3 felony confinement must be vacated.”
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May 7

Criminal — Dismissal/Speedy Trial Rule

Glenn Dillard v. State of Indiana

49A02-1708-CR-1905

Theft and battery charges against a Marion County man must be dismissed after a majority of an Indiana Court of Appeals panel determined he was not brought to trial within 70 days, per his speedy trial request.

In Glenn Dillard v. State of Indiana, 49A02-1708-CR-1905, Glenn Dillard was charged with two counts of felony theft and one count of misdemeanor battery in February 2017. He requested a speedy trial on May 2. The Marion Superior Court scheduled Dillard’s trial for July 11, the end of the 70-day speedy trial deadline.

On the morning of the trial, the state sought to introduce incriminating and threatening statements allegedly made by Dillard, but Dillard maintained the statements had not been disclosed to the defense and, thus, were inadmissible. The trial court excluded all statements pertaining to perceived or actual threats but allowed the state to introduce all others.

The court then granted a continuance to determine whether the state had disclosed the admissible statements. At a subsequent hearing, Dillard’s original counsel — who had since been replaced — maintained those statements were not disclosed to him in writing, as required by the court and local rules.

The trial court thus charged the delay to the state, so Dillard moved to dismiss the charges against him, arguing the state’s actions resulted in failure to bring him to trial within 70 days. The trial court denied Dillard’s motion, but a divided panel of the Indiana Court of Appeals reversed on May 7.

“It is clear that if not for the State’s failure to disclose these statements in accordance with the trial court’s … order and the applicable local rules, the matter would have proceeded to trial as scheduled and Dillard’s request for a speedy trial under Trial Rule 4(B) would have been honored,” Judge Cale Bradford wrote for the majority joined by Judge John Baker.

“…In reaching this conclusion, however, we note that another, arguably better, option that would have been available to the trial court would have been for it to have excluded all of the statements at issue, as the State did not have proof that it had provided those statements in writing to the defense,” Bradford continued. “Then, having excluded the statements, the trial could have proceeded as scheduled, within the seventy-day period.”

The majority remanded the case with instructions to dismiss the charges against Dillard. Judge James Kirsch dissented without a separate opinion.

Civil Tort — Negligence/Summary Judgment

Frances Dehoyos v. Golden Manor Apartments

45A05-1711-CT-2721

A negligence case against a Lake County senior living facility will continue after the Indiana Court of Appeals reversed summary judgment, finding a genuine issue of material fact as to whether the facility knew or reasonably should have known about icy conditions that led to an elderly woman’s fall.

As a resident of the Golden Manor senior living facility in Hammond, Frances Dehoyos frequently encountered problems during the winter of 2013 with the apartment management failing to remove snow and ice from the sidewalks. On the morning of Dec. 29, 2013, Dehoyos was exiting the apartment complex when she slipped on ice and struck her head, leading to recurring headaches and neck pain, as well as an ankle injury.

Golden Manor’s official policy was for its maintenance staff to arrive at 8 a.m. to inspect for snow and ice, and to contract with Meier Snow Plow Company to clear snow and apply salt, and to perform ice melting applications when directed. On the day in question, Meier came to the facility at 11 a.m. and 3:30 p.m. and applied two bags of salt to the premises. Dehoyos had attempted to leave her apartment sometime between 10 and 11 a.m.

Dehoyos sued Golden Manor nearly two years after her fall, alleging negligence arising from icy conditions. Golden Manor moved for summary judgment, which the Lake Superior Court granted after finding “no dispute of material fact ‘that Golden Manor knew that a condition existed that created an unreasonable danger to (Dehoyos), or should have discovered the condition and its danger.”

The woman appealed in Frances Dehoyos v. Golden Manor Apartments, 45A05-1711-CT-2721, arguing there was “ample evidence” that Golden Manor knew or should have known of the ice and had failed to take steps to protect her. The Indiana Court of Appeals agreed, with Senior Judge Carr Darden writing in a May 7 opinion that the case presented genuine disputes of material facts.

“It is undisputed that cold winter conditions existed at the time of the incident and that snow had been present at Golden Manor for several days,” Darden wrote for the unanimous appellate panel. “Further, Dehoyos testified in her deposition that it was cold outside and had been for several days. Given this evidence, and Golden Manor’s failure to point to any evidence of drastic weather changes on the morning of December 29, one could reasonably infer that the ice formed prior to Dehoyos’ slip and fall on the morning of December 29.”

The case was remanded for further proceedings.
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May 9

Criminal — Paraphernalia/Maintaining a Common Nuisance

Jerold W. Leatherman v. State of Indiana

47A04-1711-CR-2711

A Lawrence County man who argued he had “legal authority” to possess two syringes under the county’s needle exchange program has lost his appeal of his possession of paraphernalia conviction, with the Indiana Court of Appeals rejecting the notion that needle exchanges excuse illegal drug activity. However, the court overturned another of the man’s drug convictions for lack of evidence.

In Jerold W. Leatherman v. State of Indiana, 47A04-1711-CR-2711, two Bedford Police Department officers were patrolling a neighborhood in Mitchell when Jerold Leatherman opened the door of his van and nearly hit the unmarked patrol car. Pursuant to safety protocol, both officers exited their vehicle and approached Leatherman, who they saw hand a small bag to Heather Ditton, his passenger.

Sergeant Justin Dodd then saw Ditton shove the bag down her pants, so he escorted her from the van and removed the bag, which contained a substance later identified as methamphetamine. Detective Chris Roberts then conducted a patdown search on Leatherman and found two syringes in his pockets that he received from the county’s needle exchange program. Subsequent searches of the vehicles uncovered additional syringes in the van.

Leatherman was subsequently charged with Level 6 felony maintaining a common nuisance and Class C misdemeanor possession of paraphernalia, among other drug charges, and was alleged to be a habitual offender. After he was found guilty as charged, Leatherman appealed his Level 6 felony and Class C misdemeanor convictions, arguing they were not supported by sufficient evidence.

The Indiana Court of Appeals partially agreed May 9, with Judge L. Mark Bailey writing the state “failed to provide evidence that the vehicle Leatherman drove had been used on multiple occasions for the delivery of a controlled substance.” Without that evidence, Leatherman’s conviction of maintaining a common nuisance cannot stand, Bailey wrote.

But the state did present evidence that Leatherman possessed meth and delivered it to Ditton, and that he was found in possession of two syringes, which is sufficient to support the possession of paraphernalia charge, Bailey said. Though Leatherman argued the needle exchange program gave him “legal authority” to possess the syringes, the appellate panel said the needle exchange statute does not carve out “immunity” from possession of paraphernalia charges.

“Rather, it is apparent that (Indiana Code) Section 16-41-7.5-9 protects the means by which individuals in counties with certain disease epidemics obtain hypodermic syringes,” Bailey wrote. “It does so by prohibiting mere possession of a needle obtained through the program or attendance at the program as bases for arrest or prosecution. Nothing in the language of the statute purports to condone unlawful conduct that transpires after an individual has obtained a needle from the exchange program.”

Civil Tort — Negligence/Duty to Protect Against Rape

Amber Cosgray v. French Lick Resort & Casino d/b/a Blue Sky Casino, LLC

59A01-1710-CT-2512

A former guest of the French Lick Resort & Casino cannot bring a negligence case against the hotel after the Indiana Court of Appeals determined the sexual attack against the guest was not foreseeable as a matter of law, making summary judgment for the resort appropriate.

In December 2013, Amber Cosgray attended a work-related Christmas party at the French Lick Resort & Casino and engaged in a night of drinking and gambling with her colleagues. After returning to her room at 2 a.m., Cosgray left her door propped open so that her employer could join her when he returned from the casino.

Cosgray fell asleep but woke up two hours later to find an unknown man on top of her and vaginally penetrating her. The man left after about six minutes, and law enforcement later identified him as Javier Urbano Uribe.

Uribe pleaded guilty to rape in April 2017, and an investigation later revealed that a resort employee had invited him onto the premises that evening. Cosgray subsequently filed a complaint alleging negligence, vicarious liability and negligent infliction of emotional distress against French Lick Resort, which moved for summary judgment. The Orange Circuit Court granted summary judgment to the resort, finding “resorts and hotels do not routinely contemplate that an invitee might rape another invitee, nor do they contemplate that an invitee will voluntarily leave their doors open and unlocked all night.”

The Indiana Court of Appeals upheld that decision in Amber Cosgray v. French Lick Resort & Casino d/b/a Blue Sky Casino, LLC, 59A01-1710-CT-2512, with Judge Patricia Riley writing that the sexual attack on Cosgray by another invitee in a room that was intentionally unlocked was not foreseeable. Thus, under the test in Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), the resort did not owe Cosgray a duty.

“Cosgray encourages this court to take into consideration the ‘ongoing history of assaults and batteries involving injury and a prior reported rape’ and the specific security measures to impose a duty on French Lick,” Riley wrote. “However, Cosgray’s inclination to incorporate the totality of the circumstances into our consideration of the duty element is no longer applicable since our supreme court decision in Goodwin and Martin. Accordingly, we affirm the trial court’s summary judgment for French Lick Resort.”•