7th Circuit Court of Appeals
Civil Plenary — Excessive Force/Prison Mailbox Rule
Thomas Censke v. United States of America
A federal prisoner who struggled to file an administrative complaint through the prison mail system and was denied his complaint due to untimeliness has won a reversal from the 7th Circuit Court of Appeals. The 7th Circuit concluded that the complaint was filed the moment it was placed in the prison’s mail and not upon its receipt.
Thomas Censke, a federal inmate in Terre Haute, alleged abuse and inadequate care from his prison guards. He placed an administrative complaint under the Federal Tort Claims Act in the prison mail nine days before the end of the two-year limitations period. Censke was eventually denied his claim on the merits by the Bureau of Prisons, prompting him to sue in the U.S. District Court for the Southern District of Indiana.
There, the government alleged Censke’s claim was too late because the bureau did not receive it in its regional office until two months after the deadline had passed. The Southern District Court concluded, among other things, that the prison-mailbox rules did not apply to render Censke’s claim timely and thus entered summary judgment for the government.
In resolving what it called a “substantive and unresolved legal issue” of whether the prison-mailbox rule applies to administrative filings under the FTCA, the 7th Circuit Court of Appeals concluded the rule does apply. It therefore reversed in Censke’s favor, finding that the administrative complaint was timely filed the moment it was placed in the prison’s outgoing mail.
“Because administrative claims filed under the FTCA fall within (Houston v. Lack, 487 U.S. 266 (1988))’s framework and do not implicate the concerns underpinning the Court’s reasoning in (Fex v. Michigan, 507 U.S. 43 (1993)), we hold that the prison-mailbox rule applies here. This result is on all fours with the rationale that guided the Court in Houston,” Circuit Judge Michael Scudder wrote for the panel.
The 7th Circuit further noted that it would have reached the same result if it were to apply Fex’s balance-of-harms approach, finding that in Censke’s case, the prisoner could be barred from bringing suit no matter how meritorious his claim if the complaint was never received.
“On the other hand, the potential harm to the federal government is not so great as to tilt the scales in its favor. … To be sure, the application of the prison-mailbox rule could take away some of the agency’s time to investigate before the complainant is allowed to file suit. But that result is less stark than the total preclusion of a state’s ability to prosecute a defendant — the scenario the Supreme Court confronted in Fex.
“Significantly, too, unlike in the context of the Interstate Agreement on Detainers present in Fex, this case involves no potential infringement by the federal government upon state interests,” the panel wrote.
It thus concluded that Censke’s administrative claim under the Federal Tort Claims Act was timely filed. Thomas Censke v. USA, 18-2695, was remanded for proceedings.
Criminal — Drug Conspiracy/Prior Felony Conviction
United States of America v. Jose Trinidad Garcia, Jr., and Alfonso Pineda-Hernandez, also known as Flaco
One of two men convicted as conspirators in an Indiana meth ring will be resentenced as a result of his appeal while the other man convicted in the scheme will serve his full 25-year sentence, the 7th Circuit Court of Appeals held.
The appellate panel remanded for resentencing in United States of America v. Jose Trinidad Garcia, Jr., 18-1890, but affirmed the sentence of his fellow drug trafficker in USA v. Alfonso Pineda-Hernandez, also known as Flaco, 18-2261.
Jose Garcia pleaded guilty to his role in a methamphetamine ring after he was among a dozen people indicted as a result of a law enforcement operation called “Code Red,” taking its name from the color of 80 grams of meth found in a car. Garcia admitted he participated in or could have reasonably foreseen the distribution of about 3.5 kilograms of a mixture containing meth and at least 1 kilogram of heroin.
Eligible for a sentence of 20 years to life in prison because the U.S. District Court for the Southern District of Indiana found he had a prior felony drug offense, Garcia, who cooperated with prosecutors, ultimately was sentenced to the mandatory minimum of 20 years in prison.
On appeal, the 7th Circuit agreed with Garcia that the district court’s ruling that he had a qualifying prior felony drug conviction was plain error. Garcia’s state law conviction was under Indiana Code § 35-48-4-10, which covers dealing marijuana, hashish, hash oil and salvia — the latter of which is not included in federal drug offenses.
“Thus, Garcia’s prior conviction under I.C. 35-48-4-10 is not a ‘felony drug offense’ and does not support the sentencing enhancement here. Application of this enhancement was plain error,” Judge Daniel Manion wrote for the court. “… We remand to the district court for resentencing without this prior conviction as an enhancer under 21 U.S.C. § 841(b)(1)(A) but we do not remove the prior conviction from the 18 U.S.C. § 3553(a) analysis.”
But Garcia’s cohort, Alfonso Pineda-Hernandez, did not fare so well before the 7th Circuit. He stood trial, was convicted and sentenced to 25 years in prison on two trafficking counts that were upheld on appeal.
Among other things, Pineda-Hernandez argued that he was prejudiced by a botched Spanish language interpreter, that the problem was compounded when the judge recalled the witness the following day to testify again, and that he was therefore entitled to a new trial. But the 7th Circuit noted Pineda-Hernandez did not object to the witness being recalled nor to his court-appointed translator’s interpreting.
“The alleged interpretation debacle involves no reversible error. Pineda-Hernandez’s claims of grave, widespread misinterpretations are unsubstantiated. The few particulars he points to are insignificant at most. The recall was not ideal, but it made the best of a potentially difficult situation,” the panel found.
Likewise, the district court did not err in enhancing his sentence because of his leadership role in the trafficking ring.
“Pineda-Hernandez makes colorable arguments he was not the leader or organizer. But these arguments do not overcome the bulk of the evidence showing he exercised some significant control and was responsible for some significant organization of others. We are not left with anything close to a definite and firm conviction a mistake has been made,” Manion wrote.
Indiana Court of Appeals
Civil Tort — Negligence Slip-and-Fall/Summary Judgment
Kroger Limited Partnership I v. Ruth Lomax
The Indiana Court of Appeals has affirmed the denial of a Kroger store’s request for summary judgment against a woman who sued for negligence after she injured herself in a slip-and-fall accident.
Ruth Lomax allegedly tripped and fell on a doormat while exiting a Marion County Kroger store in May 2017, injuring her back, ankle, right knee and shoulder and acquiring more than $40,000 in medical expenses. She sued Kroger Limited Partnership I, asserting Kroger was negligent for failing to maintain the area where she had fallen and for failing to warn and protect patrons from the tripping hazard.
Kroger denied the allegations and served Lomax with a request for admissions asking that Lomax admit that she was solely at fault for her fall, that she was not injured and that she did not incur any medical expenses. Just days prior, Lomax’s counsel withdrew from the case, and the request for admissions was not answered by its due date.
Although Kroger sought summary judgment, Lomax was granted her motion for an extension of time to respond to Kroger’s request for admissions. The Marion Superior Court subsequently granted Lomax’s motion to deem her answers to Kroger’s request for admissions as timely.
Kroger was then denied its motion to reconsider the ruling on Lomax’s answers and its motion for summary judgment but was granted a motion seeking to certify for interlocutory appeal both orders.
The Indiana Court of Appeals affirmed the trial court’s rulings, first finding that Kroger’s motion to certify the Marion Superior Court’s order on its motion to reconsider was untimely.
“But even if we overlook this procedural failure, Kroger’s motion to certify the order on its motion to reconsider was untimely for yet another reason,” Judge Paul Mathias wrote for the appellate court. “… Kroger’s motion to reconsider asked the trial court to overturn the December 13 and January 23 Orders in which the trial court permitted Lomax to file a belated response to Kroger’s request for admissions. Thus, the motion to certify the MTR Order was, in essence, a request to certify the December 13 Order and the January 23 Order.
“If Kroger wished to certify those orders for interlocutory appeal, it should have done so within thirty days of the trial court’s orders thereon, i.e., no later than January 12 and February 22, 2019, respectively. Having failed to do so, Kroger could not extend the time to seek interlocutory appeal of those orders by filing a motion to reconsider,” Mathias wrote.
The appellate court therefore declined to consider Kroger’s arguments on the matter, finding any issue regarding the propriety of the orders was not properly before the court in Kroger Limited Partnership I v. Ruth Lomax, 19A-CT-1201.
Additionally, the panel determined the trial court correctly concluded Kroger was not entitled to summary judgment because the basis for Kroger’s motion for summary judgment was the admissions that had been withdrawn with permission from the trial court. The appellate court also determined Kroger was not entitled to the judgment because Lomax’s belated responses to the request for admissions denied that she was at fault for her injuries.
Post-Conviction — Ineffective Assistance of Counsel/Competency
Charles E. Barber v. State of Indiana
An appellate judge concurring with a one-paragraph opinion in a post-conviction case proposed reordering the way Indiana treats those who are arrested.
“I write only to reiterate that competency evaluations immediately upon arrest are the best way for our criminal justice system to fairly treat those defendants who are mentally ill or deficient,” Judge Paul Mathias wrote. “At some point, such immediate competency evaluations will be recognized as an integral part of due process.”
Mathias joined with judges Margret Robb and Rudolph Pyle III to affirm the denial of post-conviction relief in Charles E. Barber v. State of Indiana, 19A-PC-1234.
Barber pleaded guilty in St. Joseph Superior Court to Class C felony child molesting in 1993 and was sentenced to eight years in prison. He petitioned for post-conviction relief in 2017, alleging that his defense counsel 24 years earlier, Anthony Luber, was ineffective for failing to request a competency evaluation, and that Barber was denied due process when he pleaded while incompetent.
Because Barber, 36, was illiterate at the time of his plea, Luber read the plea agreement to him in court, and Barber told the court he understood. “The trial court advised Barber of the rights he would be waiving by pleading guilty and Barber confirmed he understood and indicated he wished to proceed with the guilty plea. Luber then questioned Barber about the precipitating incident in order to lay a factual basis. Barber responded appropriately to questions posed to him during the plea hearing,” Robb wrote.
Luber had testified at Barber’s PC hearing, saying that in his long career as an attorney, he realized there are “two issues dealing with the mental thing. One is whether or not the matter is a defense, and the other is a question about … what the person knows and understands and can comprehend [about] what is going on.”
Dr. James Cates, who examined Barber, generally agreed with Luber on that point. But he told the post-conviction court that Barber had an IQ of 46 in 2018, and in the doctor’s opinion, Barber would not have been competent in 1993.
But the post-conviction court denied Barber’s petition, finding that when Barber pleaded guilty, he “answered negatively that he had a mental condition that would make it difficult for him to understand. He just couldn’t read or write.”
The PC court also found Luber’s performance did not fall below an objective standard of reasonableness. “There is nothing in the record that would have tipped off Luber there was a problem. This Court cannot hold that Mr. Luber’s performance was deficient.”
The Indiana Court of Appeals affirmed those holdings, finding Barber had not been prejudiced by ineffective assistance of counsel and that the PC court did not clearly err. The panel also rejected the state’s argument that Barber’s claims should be barred under the doctrine of laches.
“Even accepting Dr. Cates’ opinion in 2019 that Barber was not competent twenty-five years earlier, Dr. Cates also stated that although he can generally assess people’s IQ even before receiving test results, he was surprised after meeting Barber that his scores were so low. If Barber presented to an expert in the field as functioning at a higher level than his scores would indicate, we cannot say that Luber should have been able to recognize his competency might be an issue,” the panel held.
“… Our review of the post-conviction court’s judgment does not leave us with the conviction that a mistake has been made: Barber did not prove by a preponderance of the evidence that his trial counsel was ineffective in failing to request a competency hearing or that he was in fact incompetent at the time he pleaded guilty. We therefore affirm the post-conviction court’s order denying Barber’s petition for post-conviction relief,” the panel concluded.
Civil Plenary — Insurance/Default Judgment
First Chicago Insurance Company v. Candace Collins, et al.
A woman who sued an insurance company after she and her child were injured in a multi-vehicle crash showed a meritorious defense and misconduct of an adverse party in the case, the Indiana Court of Appeals ruled. The appeals court sent the case back to the trial court for full consideration of her claims.
After Robin Dunn and her minor child asserted injuries stemming from a crash in 2017, Dunn’s attorney, Darron S. Stewart, contacted First Chicago Insurance Company to inform the insurer of his law firm’s representation of Dunn, individually and as the parent of her child.
The insurer filed an interpleader complaint against several defendants, including Dunn, admitting that it owed liability in the amount of $50,000 under the insurance policy to one or more of the defendants. The Marion Superior Court ultimately granted First Chicago’s motion for summary judgment, ordering the insurance company discharged from any further contractual obligation regarding payment/indemnification to any party claims arising from the crash. It also freed the insurer from liability of all personal injury claims resulting from the crash.
Full distribution of the $50,000 was ordered to be tendered to the three non-defaulted defendants, prompting Dunn to file a motion for relief from the default judgment pursuant to Indiana Trial Rule 60(B).
Dunn alleged that First Chicago failed to serve her its summons, that neither she nor Stewart had been aware of the interpleader action filed Dec. 27, 2017, and that Stewart first became aware of the action in February 2019, despite First Chicago’s knowledge since June 2017 that he represented Dunn in all matters relating to the crash.
The trial court granted Dunn’s motion, concluding that First Chicago was granted summary judgment as to all parties except Dunn. It similarly discharged First Chicago of any duty as to all personal injury claims arising from the accident, except as to Dunn and her child. Finally, the trial court concluded that First Chicago must make up to $25,000 of insurance coverage available to Dunn and her child for their claims.
First Chicago appealed, arguing that the trial court erred in granting Dunn’s motion for relief from default judgment and that it abused its discretion in ordering the insurer to make up to $25,000 in coverage available.
The Indiana Court of Appeals agreed with Dunn that First Chicago waived its arguments challenging relief from default judgment, finding the insurer failed to raise those arguments in the trial court. Additionally, the appellate court concluded that “Dunn and her counsel had no reason to believe FCIC would not honor Stewart’s instruction regarding communication and every reason to believe that FCIC would inform Stewart of significant developments related to Dunns’ claims.”
“They certainly had no reason to believe that FCIC would file a lawsuit regarding Dunn’s claims without notifying her legal counsel. Yet, that is just what FCIC did,” Judge L. Mark Bailey wrote for the court. In a footnote, the appellate court pointed out that had there been evidence that First Chicago’s attorney was the one who had knowledge of Dunn’s legal representation, that attorney could have been subject to disciplinary action under the Indiana Rules of Professional Conduct.
In concluding that FCIC’s actions led to any potential liability of Dunn “over-and-above the policy limit”, the appellate court found no abuse of the trial court’s discretion. However, it found no evidentiary basis for the order limiting the potential relief available to Dunn to $25,000.
“Consequently, the trial court erred when it ordered FCIC to set aside a sum certain to satisfy Dunn’s claims,” the appellate court wrote. “Until evidence is presented unencumbered by the protections sought by FCIC through the invocation of Trial Rule 22, Dunn’s damages cannot be ascertained.”
The appellate court therefore reversed the order requiring FCIC to make up to $25,000 available for Dunn’s claims and remanded the matter to the trial court for further proceedings in First Chicago Insurance Company v. Candace Collins, et al., 19A-PL-2000.
Juvenile — Delinquency/DOC Disposition Order
F.H. v. State of Indiana
An order that a juvenile delinquent be committed to the Indiana Department of Correction until his 18th birthday has been remanded for correction after the Indiana Court of Appeals concluded the trial court abused its discretion in ordering the determinate commitment.
Juvenile F.H.’s troubles began in May 2018 when he was alleged at age 14 to be a delinquent child for having committed an act that would be Level 6 felony auto theft if committed by an adult. He racked up another delinquency petition a few months later for committing an act that would be Level 3 felony attempted armed robbery if committed by an adult. For that, the DOC was ordered wardship of F.H. but his commitment was suspended by the Hendricks Superior Court.
After being discharged early from his placement at the Wernle Residential Treatment Center, F.H. admitted to having committed dangerous possession of a firearm, a Level 5 felony if committed by adult. The juvenile court then entered a written dispositional order committing F.H. to the DOC “until his 18th birthday.”
F.H. appealed, contesting his determinate commitment in F.H. v. State of Indiana, 19A-JV-1716.
The Indiana Court of Appeals found in favor of F.H., noting that a juvenile “is not subject to a determinate term in the DOC absent a specific determination by the juvenile court that statutory criteria have been satisfied.”
“Here, no such determination was made, and the factual record would not support such a determination. The juvenile court abused its discretion by subjecting F.H. to a determinate commitment in the DOC,” Judge L. Mark Bailey wrote for the appellate court.
It therefore remanded with instructions for the juvenile court to vacate the portion of its order committing F.H. to the DOC until he turns 18.
Juvenile — Child Molesting/Evidence
C.J. v. State of Indiana
The Indiana Court of Appeals reversed a 12-year-old boy’s delinquency adjudication for what would be Level 4 felony child molestation, finding he lacked maturity to knowingly and voluntarily waive his rights and that evidence of a police interrogation should not have been admitted.
The case began when 12-year-old C.J.’s 11-year-old brother walked into a bedroom in the family’s Indianapolis home and found him with his 4-year-old sister’s pants down and C.J.’s face close to her rear end. Mother called a crisis hotline and took the children to the hospital.
A sexual assault assessment on the girl found no signs of trauma. Hospital staff called the Department of Child Services, and DCS called police.
The next day, mother took her children to the Indianapolis Metropolitan Police Department, where she met with Detective Eli McAllister, who “escorted C.J. to a room in the police station and left him alone for approximately fifty minutes. While waiting, C.J. sprawled on the floor, curled up into his shirt, drummed on the seat of a chair, sang, and played with his sock. Eventually, Mother and Detective McAllister entered the room, and Detective McAllister acknowledged that C.J. was ‘tired and sleepy.’ … He told C.J. that it was C.J.’s decision whether to talk with him. C.J. and Detective McAllister then proceeded to talk about C.J.’s school, hobbies, chores, and bikes,” Judge Melissa May wrote for the panel.
“After a few minutes of informal conversation, Detective McAllister redirected the conversation to C.J.’s interactions with (his sister) the night before by saying: ‘Hey man, I think you know why you’re here today.’” He then reviewed a waiver of rights form with the child and his mother, who ultimately signed the form, which led to McAllister’s interrogation of C.J.
“C.J. talked about cars, his difficulties spelling and reading, and fights with other children at his school. Over the course of the interrogation, Detective McAllister accused C.J. of lying and stated that he knew what really happened. C.J. eventually admitted touching and licking A.T.’s rear end. C.J. also acknowledged he might have touched her vagina,” May wrote. He was thus charged with acts that would constitute Level 3 felony and Level 4 felony child molesting if committed by an adult.
At a hearing, C.J.’s mother testified the detective “convinced” her that it would be best to let C.J. talk to him alone, a decision she regretted. The juvenile court dismissed the Level 3 felony but entered a true finding on the Level 4 felony, placing C.J. on probation and ordering placement at a behavior health services provider.
But the COA reversed in C.J. v. State of Indiana, 19A-JV-255.
The appellate court found C.J.’s “waiver of his rights was (not) knowing, intelligent, and voluntary because of his demonstrated lack of maturity, the fact that he was not advised of the crime and possible consequences, and his minimal consultation with Mother. Therefore, we hold the trial court erred in admitting as evidence the videotape of C.J.’s interrogation and Detective McAllister’s testimony regarding C.J.’s statements during the interrogation.
“… Therefore, the trial court abused its discretion in admitting into evidence the information gathered during that interrogation, and we reverse C.J.’s adjudication as a delinquent because the record contains no evidence to support it,” the panel concluded.
Juvenile Termination of Parental Rights — Best Interests Determination
In the Matter of the Termination of the Parent-Child Relationship of B.F. and C.F. (Minor Children), C.B. (Mother) v. Indiana Department of Child Services
A trial court erred in terminating a mother’s parental rights to her two minor children, finding the potential of the children’s reunification with their father and their continuing bond with their mom made the termination of their relationship with their mother not in their best interests.
The Indiana Court of Appeals reversed a TPR ruling in a case that began four years ago in Delaware County when the mother and children were living in Muncie, and continued after mother moved to Lafayette to be closer to her children, B.F. and C.F. The children had been relocated there after they were removed from mother’s home by the Department of Child Services, who filed a children in need of services petition and placed the children with a family friend.
The CHINS case began after mother overdosed on drugs, but as time progressed, she participated more in services, gained employment, stayed clean and remained connected and bonded with her children. But housing, long-term employment, health issues, transportation and other factors remained hurdles to reunification. And after mother was notified she would be evicted from her apartment provided by Seeds of Hope, the children were removed from her care and custody and termination proceedings followed.
After a four-day hearing in April, the Delaware Circuit Court found termination was in the children’s best interests.
The Court of Appeals reversed and remanded that ruling in In the Matter of the Termination of the Parent-Child Relationship of B.F. and C.F. (Minor Children), C.B. (Mother) v. Indiana Department of Child Services, 19A-JT-1857.
“The only lingering issue for Mother is a lack of stable and suitable housing,” Judge John Baker wrote for the panel. “She and the Children are bonded and her parenting skills are appropriate. Moreover, the trial court denied the petition to terminate the parental rights of the Children’s father, meaning that terminating Mother’s rights will not achieve permanency for the Children. Under these circumstances, we find that termination is not in the Children’s best interests.”
“In this case, DCS explicitly concedes that ‘[t]here are other ways the court could have potentially structured or set out the plan of care for Child[ren] given that it did not terminate Father’s rights’ and that ‘there may be less restrictive means than termination … ,’” Baker wrote. “If there are ‘other ways’ the Children’s well-being can be assured and ‘less restrictive means’ of achieving that than terminating their relationship with their mother, then the judicial system is obligated to explore those options before arriving at the last resort of termination.
“Even though Mother was not in a place at the time of the termination hearing where she was able to be a safe and appropriate caregiver for the Children, we simply cannot conclude that termination is in their best interests so long as reunification with Father is an option. There is no reason whatsoever that Mother cannot continue to spend time with her Children while they are in kinship care or, if they are reunified with Father, once they are in his care,” the panel held. “Obviously, if the situation reaches a point where reunification with Father is no longer an option and permanency for the Children can be achieved, the analysis would change. But at this point, it is not in their best interests to impose the most extreme measure possible when there are less restrictive options available.”
Juvenile Termination of Parental Rights — Evidence, Consent
Termination: J.H., et al. v. Child Advocates Inc., et al.
A mother and father whose parental rights were terminated did not persuade the Indiana Court of Appeals to reverse the termination because they were deprived of the right to determine their child’s adoptive placement.
After C.D. was born with marijuana in her system, she was removed from her parents’ care and alleged to be a child in need of services by the Indiana Department of Child Services. Her mother, J.H., admitted to using marijuana while pregnant and that she had not provided the child with a safe, stable and appropriate living environment free from substance abuse.
The trial court also determined that the child’s father, W.D., did not have housing, was unemployed, had issues with marijuana use and was unwilling to participate in services to address those issues. During the CHINS case, both parents failed to participate in a variety of services and visitations while the child was placed with her grandmother. However, law enforcement at some point arrested J.H. for possession of paraphernalia and neglect of a dependent while the child was at an unsupervised visit with her father, permitted by grandmother.
The trial court then denied a motion to place C.D. with her grandmother, and likewise changed the permanency plan from reunification to adoption. It later denied DCS’ motion for the child to be placed back in her grandmother’s care, after the child’s new foster parents argued that C.D. was not appropriately provided for while living with her grandmother, among other things.
A guardian ad litem for the child then filed a motion requesting that the trial court reconsider its denial of DCS’ motion, citing documentation from C.D.’s pediatrician that she was “was fully caught up on her vaccines, along with review of medical milestones, diet and other well check markers.” The GAL also noted that no concerns were ever brought up by the doctor about the child’s development or how the grandmother had treated her.
However, the GAL’s motion to reconsider was denied pursuant to Indiana Trial Rule 53.4(B) because it was not ruled upon within five days. Parental rights were subsequently terminated for both parents, who appealed in Termination: J.H., et al. v. Child Advocates Inc., et al., 19A-JT-1549. Together, the parents asserted that they had a fundamental right to choose who would adopt their child and that, by terminating their parental rights, the trial court effectively refused to place C.D. with her grandmother despite their wishes, as well as those of the GAL and DCS.
“… [T]ermination cannot be improper because it deprived the Parents of their right to consent to Daughter’s adoption. Termination is proper because they failed to address their substance abuse problems and because termination is in Daughter’s best interests,” Judge Paul Mathias wrote for the appellate court. “The result of this is that all of Mother and Father’s parental rights, including the right to consent to adoption, have been terminated. This fact is not grounds for reversing the termination, it is a consequence of the termination.”
Instead, the question before the trial court was whether the parents’ parental rights should be terminated, the appellate court noted.
“Who will ultimately be permitted to adopt Daughter is a question for the adoption court, not the termination court,” it wrote, concluding that the trial court did not err in its termination decision.•