Kevin Martin, Appellant-Petitioner v. South Bend Police, Ray Wolfenbarger, and Steven J. Miller, Appellees-Respondents (2024)

MEMORANDUM DECISION

Kenworthy, Judge.

[1] In 2022, Kevin Martin, an inmate at Pendleton Correctional Facility, filed a 42 U.S.C. § 1983 prisoner complaint against the South Bend Police, Ray Wolfenbarger, and Steven J. Miller. In 2023, the trial court granted Martin's motion to stay the proceedings.

[2] On January 4, 2024, the trial court dismissed Martin's complaint under Trial Rule 41(E) for failure to prosecute. Martin filed an objection with the trial court on January 23 and a Notice of Appeal with this Court on January 30. On January 31, the trial court vacated the dismissal order. The court noted it had previously entered an order staying the proceedings so the case should not have been dismissed under Trial Rule 41(E). The court ordered the case reinstated to its active docket. Martin did not move to dismiss his appeal or otherwise inform this Court the order he sought to appeal had been vacated.

[3] Jurisdiction purportedly passed from the trial court to this Court on February 5, when the Notice of Completion of Clerk's Record was noted in the CCS. See Ind. Appellate Rule 8; Appellant's App. Vol. 2 at 12. But on that date, there was no final judgment to be appealed because the trial court had vacated the dismissal order while it had jurisdiction to do so. Because there was no final judgment, we dismiss this appeal for lack of jurisdiction and remand to the trial court for further proceedings. See DeCola v. Norfolk So. Corp., 222 N.E.3d 938, 940 (Ind. 2023) (“[W]hether an order is immediately appealable is a jurisdictional question that cannot be waived and can be raised at any time, including by a reviewing court on its own motion.”).

[4] Dismissed.

Memorandum Decision by Judge Kenworthy

Judges May and Vaidik concur. May, J., and Vaidik, J., concur.