Indiana Court Decisions: Oct. 6-19, 2022

7th Circuit Court of Appeals

Oct. 13

James E. Hinkle v. Ron Neal, Warden

21-2067

Split 7th Circuit affirms denial of habeas relief despite excluded evidence

A northern Indiana man convicted of molesting his teenage nephew has lost his appeal of the denial of habeas relief based on the argument that he should have been allowed to present evidence of his nephew’s drug use.

A dissenting judge, however, would have granted relief on that basis, finding the defendant was denied a “very core” legal right.

The case of James E. Hinkle v. Ron Neal, Warden, 21-2067, began in the summer of 2004, when 13-year-old S.B. visited family in Elkhart, including his uncle, petitioner-appellant James Hinkle. Hinkle molested S.B. at least once that summer, then again the next year.

Later, S.B. began using illegal drugs, prompting his family to confront him. During the confrontation, S.B. admitted to the drug use and also revealed that Hinkle, who was not present, had molested him.

Hinkle was subsequently charged in state court with child molesting, sexual misconduct with a minor and being a repeat sexual offender. Part of his defense was the argument that S.B. had falsely accused him of molestation to deflect from his drug use, but the trial court ultimately excluded evidence of S.B.’s drug use on relevance grounds.

Hinkle was then found guilty as charged and was sentenced to 42 years.

He stayed his direct appeal and instead pursued post-conviction relief under the Davis-Hatton procedure, but the trial court denied his PCR petition. The Court of Appeals of Indiana affirmed the denial in 2018, finding the trial court had not abused its discretion by excluding the evidence of S.B.’s drug use.

Hinkle then sought transfer to the Indiana Supreme Court and, when that failed, filed a federal habeas petition in the U.S. District Court for the Northern District of Indiana. The district court denied habeas relief, and a majority of the 7th Circuit Court of Appeals affirmed.

“We need not posit arguments in support of the state appellate court’s decision,” Judge Michael Brennan wrote for the majority, which also included Judge David Hamilton. “That court expressly found that Hinkle had not presented ‘any basis, other than speculation,’ to connect the family discussion on S.B.’s drug use to a motive to bring false accusations against Hinkle. So the proffered evidence was not ‘essential to the defendant’s ability to present a defense’ and was, at most, ‘merely impeaching.’

“… (T)he state appellate court upheld the trial court’s conclusion that ‘Hinkle had not demonstrated a connection between S.B.’s family discussion on his drug use and a motive for S.B. to falsely accuse Hinkle of molestation,’” Brennan continued. “Hinkle fails to respond to this conclusion or offer any argument that the state appellate court’s decision ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’

“… And Hinkle has not suggested that Indiana’s evidentiary rules, requiring a reliable evidentiary foundation to pursue a theory of impeachment, fail on either front. He has thus failed to show that the state appellate court’s decision was an unreasonable application of federal law.”

Additionally, the appellate majority pointed to other impeachment evidence against S.B., including his previous criminal convictions and testimony that S.B. was “really good at lying.” Thus, the court rejected Hinkle’s argument that a violation of Chambers v. Mississippi, 410 U.S. 284 (1973), had occurred.

“Finally,” Brennan concluded, “even had the Indiana state courts unreasonably applied federal law, any error was harmless.” That’s because “other portions of S.B.’s testimony were corroborated by other witnesses, and the jury had plenty of evidence from which they could assess S.B.’s credibility, including his prior convictions, manipulative behavior, and history of lying to his relatives.”

But Judge Candace Jackson-Akiwumi dissented, writing separately that the majority’s reliance on Kubsch v. Neal, 838 F.3d. 845 (7th Cir. 2016) (en banc), was wrong.

“… Kubsch has limited applicability when the evidence at issue was excluded for reasons other than a state’s hearsay rules or when the evidence implicates other constitutional rights beyond the complete-defense right,” Jackson-Akiwumi wrote. “Here, the Indiana courts excluded evidence of S.B.’s motion on relevancy — not hearsay — grounds.

“And although Hinkle’s current counsel frames the case in terms of Hinkle’s right to present a complete defense, the crux of Hinkle’s claim is that he should have been allowed to present evidence of S.B.’s motive for providing false testimony — a quintessential defense ingrained in the Confrontation Clause,” she continued. “Accordingly, we should draw from the Supreme Court’s Confrontation Clause precedent to determine whether Hinkle’s right to impeach S.B. with this evidence was clearly established.

“I would hold that the exclusion of this evidence was contrary to clearly established federal law confirming a defendant’s right to confront his accusers. … Because the right to expose a witness’s motivation to lie is at the very core of the Supreme Court’s Confrontation Clause precedent, Hinkle should be entitled to habeas relief. On that basis, I respectfully dissent.”

Responding to the dissent, the majority wrote that Jackson-Akiwumi’s “recharacterization” of Hinkle’s challenge as one under the confrontation clause was “not supported by the record … .”

The majority pointed to the district court’s finding that Hinkle “didn’t present a Confrontation Clause claim to the state courts.” Also, at the 7th Circuit, “Hinkle argued only that his constitutional right to present a complete defense was denied.”

“Second, Hinkle’s theory of impeachment fails to explain how S.B.’s accusations of sexual molestation would allow the victim to avoid drug treatment, thereby supplying S.B. with a motive to lie,” Brennan continued in the majority response to the dissent.

The majority judges also rejected the dissent’s reliance on Fieldman v. Brannon, 969 F.3d. 792 (7th Cir. 2020), which Jackson-Akiwumi had said “limited” Kubsch, and her reliance on Davis v. Alaska, 415 U.S. 308 (1974).

“Hinkle had the right to impeach the victim, and he did,” Brennan concluded in the response to the dissent. “But Hinkle did not have the right to present evidence supporting any theory of impeachment, no matter how speculative.”

__________

Oct. 18

Daniel Koch, et al. v. Jerry W. Bailey Trucking, Inc., and Estate of Jerry W. Bailey

21-2952

7th Circuit rules partial victory merits reduced attorney fees

The 7th Circuit Court of Appeals has affirmed a reduction in attorney fees of more than 50% for an Indiana attorney who had been previously admonished by the appellate court for trying to up his compensation.

Ronald Weldy represented a group of drivers against Jerry W. Bailey Trucking Inc. The plaintiffs claimed the company and its owners violated the Fair Labor Standards Act and Indiana wage laws by not paying drivers for time spent working before and after hauling jobs.

After the litigation began, the U.S. District Court for the Northern District of Indiana asked Weldy for additional information as to whether he could adequately perform as class counsel. The court noted he had only recently gotten his law license reinstated following a disciplinary suspension.

Weldy was able to convince the court once he provided examples of his work as class counsel following his reinstatement.

However, although the district court conditionally certified an FLSA collective and certified a Rule 23 class, the drivers were only able to identify less than 20 individuals who met the class definition. Subsequently, the court granted the defendants’ motion to decertify the class and collective.

The two drivers who initiated the lawsuit were able to win a partial summary judgment, successfully arguing the company had violated federal and state wage laws. Later, the employees were able to negotiate settlements for each of the remaining plaintiffs.

Once the court approved the settlements, the drivers petitioned for an award of attorney fees of more than $200,000. Their request reflected a billing rate of $450 per hour for about 416 hours of work performed by Weldy, plus additional hours billed by Weldy’s associate at $200 per hour and his paralegal at $150 per hour.

The district court disagreed with the calculations and made three modifications.

First, the court found a $350 per hour rate was more reasonable. Second, the court struck some of the time Weldy billed, finding the attorney should not be able to recover fees for the time he had to spend showing he was capable of handling the case.

Finally, the court reduced the fee because Weldy achieved only partial success in litigating the case. The court noted he failed on the suit’s primary objective of obtaining a judgment on behalf of a class and collective.

The district court thus cut the fee to $70,000.

In response to the fees order, the defendants mailed a check to Weldy and filed a satisfaction of judgment with Weldy’s approval. The drivers responded by filing a motion for reconsideration, but the court concluded the employees had waived any objection to the fee award.

The drivers then appealed to the 7th Circuit, which affirmed the ruling in Daniel Koch, et al. v. Jerry W. Bailey Trucking, Inc., and Estate of Jerry W. Bailey, 21-2952.

The 7th Circuit’s opinion concluded the district court had reasonably cut the counsel’s billable hours and had reasonably determined the employees obtained only a partial victory.

In reviewing the drivers’ damages, the appellate panel noted not only did they receive significantly less than they originally sought, but also, their attorney wanted sought a healthy fee.

“Altogether, the employees recovered about $60,600 of the $103,500 they claimed in damages, with each individual plaintiff receiving between 17% and 73% of that plaintiff’s claim. This limited recovery was particularly striking when compared against Weldy’s request for more than $200,000 in fees, about triple what his clients received. A district court assessing a plaintiff’s degree of success may consider how the size of the final recovery stacks up against the amount plaintiff originally sought,” Judge Candace Jackson-Akiwumi wrote for the court, citing Spegon v. Cath. Bishop of Chi., 175 F.3d 544, 558 (7th Cir. 1999).

In 2015, the 7th Circuit ruled in a different case that involved Weldy’s fees for representing a class. That panel blocked the attorney’s attempt to increase his fee of $302,780 by claiming a share of the compensation that clients received.

Writing for the court in Darryl Pierce and Sharon Pierce, et al. v. Visteon Corp. and Visten Systems, LLC, 14-2542, Judge Frank Easterbook described Weldy as having “bungled the appeal” and writing a brief that was “careless.”

Court of Appeals of Indiana

Oct. 6

Z.D. v. Community Health Network, Inc.

22A-CT-644

Patient’s suit against Community Health moves ahead after diagnosis shared online

A woman whose medical diagnosis was mailed to the wrong person and then shared on social media may proceed with part of her suit against Community Health Network, the Court of Appeals of Indiana has ruled, finding genuine issues of material fact remain.

After undergoing an examination and medical testing in the emergency department of an Indianapolis Community Health Network facility in 2018, Z.D. was unreachable by hospital staff in attempts to deliver her test results.

A Community employee eventually put a letter with Z.D.’s medical diagnosis and suggested treatment in an envelope, but it was addressed to another person. The recipient of the letter, Jonae Kendrick, was a student who attended high school with Z.D.’s daughter, and she posted the letter on Facebook.

Multiple third parties, including Z.D.’s daughter, saw the post. Z.D. learned about her diagnosis from her daughter and paid Kendrick $100 in exchange for the letter, which was removed from Facebook.

The damage was done, however, as Z.D. felt the ripple effects in her personal and work life.

In January 2020, Z.D. filed a three-count complaint against Community alleging generally that its employee(s) “distributed [her] extremely sensitive and private health information to unauthorized person(s) and the general public” and that, as a result, she “suffered extensive injuries.”

She specifically alleged that Community was vicariously liable under the doctrine of respondeat superior for the distribution of Z.D.’s “extremely private and sensitive health records to unauthorized member(s) of the general public” and that, “[a]s a direct and proximate result” of those acts, Z.D. had suffered damages.

The second count alleged Community was negligent in training, supervising and retaining its employees.

Finally, the third count alleged Community “owes a non-delegable duty to its patients to protect the privacy and confidentiality of their protected health information” but had “breached its statutory and common law duties of confidentiality and privacy to [Z.D.]” by having “no warning system” to catch the mistake before it happened.

Community moved for summary judgment, asserting Kendrick’s posting of the letter on Facebook was an unforeseeable “criminal act” that broke “the chain of proximate causation”; that Z.D. could not recover emotional distress damages under a negligence theory; and that Community could not be liable for negligent training and supervision if its employee was acting within the scope of employment.

As for the extent of the damages for invasion of privacy, Community alleged “her only potential tort claim would be the subtort of public disclosure of private facts, which Indiana does not recognize as valid.”

The Marion Superior Court granted Community’s motion, finding that Count 2 of Z.D.’s complaint “fails as a matter of law” because Community had “acknowledged that its employee was acting within the scope of her employment.”

As for Counts 1 and 3, the court concluded that the modified impact rule and the bystander rule barred Z.D. from recovering emotional distress damages under a negligence theory; that Z.D. could not recover damages for loss of privacy because she did not specifically plead an invasion of privacy claim; and that Community was not the proximate cause of Z.D.’s alleged injuries as a matter of law.

The Court of Appeals summarily affirmed the ruling as to Count 2 because Z.D.’s appeal did not address that portion of the trial court’s order.

However, it reversed and remanded on the issues of Count 1 and 3 in Z.D. v. Community Health Network, Inc., 22A-CT-644.

As for the first count, the COA found a genuine issue of material fact existed regarding the tort’s publicity requirement.

“If Community wishes to argue that the fact it sent this extremely sensitive information to a classmate of Z.D.’s daughter was merely a coincidence, it is free to do so in front of a jury,” Judge Terry Crone wrote. “Furthermore, as discussed below, Community designated no evidence regarding the knowledge or intent of either Kendrick or its employee(s) with respect to the letter containing Z.D.’s diagnosis, so it has failed to establish as a matter of law that the disclosure was not ‘sure to reach the public in general or a large enough number of persons such that the matter is sure to become public knowledge.’”

It thus reversed and remanded for further proceedings on the invasion of privacy claim, stating that Z.D. could seek “damages for (a) the harm to [her] interest in privacy resulting from the invasion; (b) [her] mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.”

Next, the appellate court determined Z.D. could not recover emotional distress damages under a negligence theory, pointing to Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. 2022), which addressed such damages under the modified impact rule and the bystander rule.

“The undisputed facts establish that Z.D. did not sustain a physical impact or perceive a physical injury to a loved one,” Crone wrote. “Accordingly, Z.D. may not recover emotional distress damages under a negligence theory, and we affirm the trial court’s ruling on that issue.”

In a footnote, the appellate panel urged the Indiana Supreme Court to “revisit the modified impact rule and the bystander rule and the rationale for their continued existence.”

“If we trust jurors to determine whether criminal defendants should live or die in death penalty cases, and to fairly assess plaintiffs’ emotional distress damages in defamation cases, then surely we may trust them to fairly assess plaintiffs’ emotional distress damages in cases involving breaches of medical privacy,” Crone wrote in the footnote.

Finally, the COA found Z.D. was entitled to a trial on her claims for pecuniary damages resulting from Community’s alleged negligence.

It found a “fatal flaw” in the trial court’s conclusion that “Community cannot be liable for Ms. Kendrick’s intentional, criminal action.” Further, it determined Community had the burden of establishing that only a single inference or conclusion regarding proximate cause and intervening cause could be drawn based on the designated evidence, and ultimately failed to meet that burden.

The appellate court therefore concluded the trial court erred in granting summary judgment on Z.D.’s direct and vicarious negligence claims on the issue of proximate cause.

“Accordingly, we reverse and remand for further proceedings on Counts 1 and 3 only with respect to Z.D. potentially recovering pecuniary damages,” Crone concluded.

In the Matter of A.R. and I.T. (Minor Children) B.G. (Mother) v. Indiana Department of Child Services and Kid’s Voice of Indiana
21A-JC-2149

COA affirms CHINS adjudication for out-of-state, traveling children

A West Virginia mother whose children were taken into emergency custody in Indiana could not convince the Court of Appeals of Indiana that the adjudication of her kids as children in need of services was the wrong decision.

While mother B.G. was traveling from West Virginia to Arizona with her two minor daughters, A.R. and I.T., she stopped at the Community Hospital emergency room in Indianapolis.

During her emergency room visit, B.G. was behaving strangely and began hallucinating. One of the children stated that their mother hadn’t slept in four or five days and was acting “highly paranoid.”

While at the hospital, B.G. called the Indiana Department of Child Services and asked DCS to send someone to retrieve the children.

By the time a DCS worker had arrived and put the children in emergency custody, B.G. had to be restrained by hospital staff because she was “screaming and kicking” and had hit a staff member. Her drug screen was positive for amphetamines, and during discharge, she was diagnosed with unspecified schizophrenia spectrum, unspecified anxiety disorder and post-traumatic stress disorder, among other conditions.

The next day, DCS filed petitions alleging the girls were children in need of services based on a variety of factors, including exposure to domestic violence between B.G. and her boyfriend; unstable housing; and the fact that B.G. “was placed on a mental health hold, thereby leaving [Children] without a caregiver.”

B.G. moved to dismiss for lack of personal jurisdiction, arguing that neither she nor the children were residents of Indiana and that none of them had maintained or established sufficient minimum contacts with the state. She also argued that Indiana could ensure the safety of her children without “improperly exercising jurisdiction” over the family.

B.G. then moved to have the Marion Superior Court immediately place the children with her at their family residence in West Virginia. She argued that at the time she contacted DCS, she “was traveling alone with [Children]” and “needed to obtain an immediate caregiver for them” while she sought medical treatment.

The trial court denied her motions and subsequently dismissed her motion to reconsider. Then, after determining that Indiana was a convenient forum pursuant to Indiana Code § 31-21-5-8 and that the children were CHINS, the trial court issued an order declining the continued exercise of jurisdiction and staying the proceedings.

The court determined that “West Virginia is the more appropriate forum for disposition of the matter” and “is in the best position to order and monitor any services for the family, and to maintain and oversee reasonable efforts to reunify the family.”

The juvenile court then ordered the relevant parties and services to begin transition of the case and children to West Virginia. As a result, it denied DCS’ motion for an expedited dispositional hearing, noting that it had stayed the proceedings as required by the Uniform Child Custody Jurisdiction and Enforcement Act until West Virginia could assume jurisdiction of the case.

I.T. was successfully returned to her mother’s home in West Virginia and the state accepted jurisdiction of her, but it declined jurisdiction over A.R., who remained in Indiana foster care. A.R. was found to have a multitude of physical and mental health issues, and B.G. was ordered to complete counseling therapy individually and with A.R.

The Court of Appeals affirmed in In the Matter of A.R. and I.T. (Minor Children) B.G. (Mother) v. Indiana Department of Child Services and Kid’s Voice of Indiana, 21A-JC-2149, finding that the juvenile court did not abuse its discretion in concluding it had emergency jurisdiction over the CHINS matter.

It also found that Indiana was not an inconvenient forum for the CHINS proceedings. As for the timing of the dispositional hearing, the appellate court noted that the trial court acted as required by I.C. 31-21-5-8(c)(1) in staying the proceedings until the West Virginia court could determine whether it would assume jurisdiction over the CHINS cases.

“Pursuant to the UCCJA, when the Indiana court determined it was no longer the convenient forum, it was required to stay all proceedings until West Virginia determined whether it would accept or decline jurisdiction,” Judge Melissa May wrote. “… Thus, Mother’s argument fails because the juvenile court was not permitted, pursuant to the UCCJA, to hold any hearing until West Virginia accepted or declined jurisdiction.”

Further, the COA concluded the trial court held the dispositional hearing within 30 days as required. It pointed to the time after the CHINS adjudication but before the stay — four days — and the time between the lift of the stay and the dispositional hearing, which totaled 26 days.

“Based thereon, we affirm the juvenile court’s adjudication of Children as CHINS,” May concluded.

__________

Oct. 14

James Stephens v. The Honorable Peggy Ryan Hart, Magistrate

22A-MI-1301

Magistrate judge protected by absolute judicial immunity in PCR case

A magistrate judge who granted a litigant’s motion to transfer a PCR case to an elected judge but then failed to make the transfer was protected from the litigant’s subsequent lawsuit against her by absolute judicial immunity, the Court of Appeals of Indiana has ruled.

In July 2019, James Stephens filed a successive petition for post-conviction relief, which was assigned to Marion Superior Court Magistrate Judge Peggy Ryan Hart.

Five months later, Stephens filed a “Motion for Elected Judge to Sit and Decide this Cause” seeking a change of judge from Hart to “the elected judge.”

The motion was granted, but Hart failed to transfer Stephens’ proceeding to the judge. The Court of Appeals opinion does not explain why the transfer did not happen.

Hart subsequently ruled upon several motions filed by Stephens, including denying a motion for default judgment, a motion to certify the denial of his motion for default judgment for interlocutory appeal, a combined motion for default judgment and for summary judgment, and a motion for a telephonic/video hearing.

Stephens’ petition for relief was ultimately denied.

This past February, Stephens filed a complaint in the Putnam Circuit Court suing Hart in her personal capacity and alleging that his rights under the 14th Amendment were violated when, in contravention of Indiana Code § 33-33-49-32(c), Hart had granted his motion for change of judge but then failed to transfer the proceeding.

In May, Hart filed a motion to dismiss, arguing Stephens’ claims were barred because she was entitled to absolute
judicial immunity.

Responding, Stephens argued the transferring of his post-conviction case to the elected judge after granting his motion for change of judge was a ministerial act for which Hart could not claim judicial immunity.

The Putnam Circuit Court, via another magistrate judge, granted Hart’s motion to dismiss “based on the doctrine of judicial immunity” without entering any additional findings of fact or conclusions of law.

Stephens then filed an “Objection to Magistrate Entering a Final Appealable Order and Request the Presiding Judge to Review and Enter a Final Appealable Order” in which he contended, in part, that under Article 7, Section 1 of the Indiana Constitution, judicial acts may only be performed by judges. He further alleged that by allowing Magistrate Judge Melinda Jackman-Hanlin to dismiss his complaint, the elected Putnam Circuit Court judge had allowed Jackman-Hanlin “to violate statutory law, Ind. Code § 33-23-5-8, Indiana Constitution Article 7, § 1.”

The trial court denied the objection, finding “a magistrate has the authority to enter a final appealable order under I.C. [§] 33-23-5-8 and the Order Granting Motion to Dismiss signed by the magistrate in this matter is a final appealable order.”

Stephens also failed to convince the Court of Appeals in James Stephens v. The Honorable Peggy Ryan Hart, Magistrate, 22A-MI-1301.

“After Magistrate Hart granted Stephens’ motion for a change of judge, she issued her rulings as a magistrate of the Marion Superior Court, which is a court of general jurisdiction,” COA Judge Patricia Riley wrote. “… (W)e cannot conclude that Magistrate Hart was stripped of all jurisdiction and claim to immunity after granting Stephens’ motion for change of judge.”

The COA also rejected Stephens’ argument that Hart’s duty to transfer his post-conviction proceedings to the elected judge was a ministerial act not entitled to immunity.

“As Magistrate Hart correctly argues, in his Complaint, Stephens alleged no damages flowing from Magistrate Hart’s failure to transfer Stephens’ post-conviction case after granting his motion for change of judge; rather, his alleged injuries were the result of Magistrate Hart’s denial of his subsequent motions, acts which Stephens does not even attempt to characterize as being non-judicial,” Riley wrote. “In addition, Stephens’ argument on this point is premised on Indiana Code section 33-33-49-32(c), which provides that a party to a proceeding in a superior court may request that the elected judge, rather than a magistrate, preside.

“… Accordingly, we conclude that the allegations of Stephens’ Complaint showed that Magistrate Hart was entitled to judicial immunity and that the trial court’s dismissal of Stephens’ Complaint was proper,” Riley concluded.

Regarding the powers of the magistrate judge, the COA also ruled for Hart.

“As of July 1, 2020, our General Assembly amended the magistrate statute to provide that ‘a magistrate has the same powers as a judge’ except the power of judicial mandate. I.C. §§ 33-23-5-8; 33-23-5-8.5,” Riley wrote. “Thus, any claim that the magistrate lacked authority to enter a final dismissal order in this case would have been without merit even if it had been properly preserved.”

Lastly, the appellate panel declined to address Stephens’ constitutional claim regarding Article 7, Section 1 of the Indiana Constitution.

In a footnote, the COA added that Stephens’ appeal of the denial of his successive petition for post-conviction relief failed in a separate proceeding.•

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