KREILEIN v. BERRY (2025)

MEMORANDUM DECISION

Case Summary

[1] Alan Kreilein appeals the trial court's dismissal of his amended pro se prisoner's civil complaint pursuant to Indiana Code Section 34-13-7-1, which governs additional filing requirements for inmates commencing actions against public employees or governmental entities. Kreilein argues that the trial court erred by dismissing his amended complaint, which sought damages from public employees for his classification as a sexually violent predator and as an offender against children. Finding no error in the dismissal, we affirm.

Issue

[2] Kreilein raises multiple issues, which we consolidate and restate as whether the trial court properly dismissed Kreilein's amended complaint.

Facts

[3] In September 2004, Kreilein pleaded guilty to criminal deviate conduct, a Class A felony, and was sentenced to thirty years in the Indiana Department of Correction (“DOC”). Upon his release in 2015, Kreilein was required to register as a sexually violent predator and offender against children. The Indiana Parole Board later revoked Kreilein's parole for rule violations.¹

[4] Kreilein filed a complaint in federal court under 42 U.S.C. § 1983 against the Commissioner of the DOC and the Indiana Parole Board and argued that his constitutional rights were violated by his designation as a sexually violent predator and offender against children. The District Court granted summary judgment to the defendants on Kreilein's claims, and the Seventh Circuit affirmed.² See Kreilein v. Horth, No. 1:17-CV-03357-JPH-MPB, 2020 WL 1234715 (S.D. Ind. Mar. 12, 2020); Kreilein v. Horth, 854 F. App'x 733 (7th Cir. 2021).

[5] In December 2020, Kreilein filed a complaint in state court against various employees of the DOC and the Indiana Parole Board. Kreilein argued again that he was improperly classified as a sexually violent predator and offender against children. On March 19, 2021, the trial court dismissed the action as an unauthorized successive petition for post-conviction relief. On appeal, this Court dismissed Kreilein's appeal because he failed to file a timely notice of appeal.³ See Kreilein v. Berry, No. 21A-PL-862, slip op. at 6 (Ind. Ct. App. Apr. 28, 2022) (mem.), trans. denied.

[6] In July 2024, Kreilein filed a pro se prisoner's civil complaint against multiple employees of the DOC, members of the Indiana Parole Board, and two library employees at the New Castle Correctional Facility.⁴ Defendants, Robert E. Carter, Jr., Christina Reagle, Laura Kloimweider, Charles Miller, Thor Miller, Virgil Madden, Frederick Medley, Tracy Berry, Gwendolyn Horth, Anthony King, and David Sloan filed a motion to stay the matter pending compliance with Indiana Code Section 34-13-7-1. They argued that Kreilein had failed to meet the statutory prerequisites to file an action against public employees. On August 26, 2024, the trial court granted the motion to stay and ordered Kreilein to, within twenty-one days: (1) comply with the statutory requirements of Indiana Code Section 34-13-7-1; or (2) show cause why such requirements did not apply. The trial court indicated that the matter would be dismissed if Kreilein failed to comply.

[7] On September 6, 2024, Kreilein filed a handwritten pro se amended prisoner's civil complaint. Kreilein alleged a violation of his civil rights under 42 U.S.C. § 1983 due to his classification as a sexually violent predator and as an offender against children. Kreilein also alleged that two prison library employees, Cecil and Smith, interfered with his access to the courts during a COVID-19 segregation by preventing Kreilein from filing his notice of appeal in Case No. 21A-PL-862, which also challenged his status as a sexually violent predator and as an offender against children.

[8] On September 17, 2024, Kreilein filed a response to the defendants’ motion to stay. Kreilein argued that his prior case “had nothing to do with the issues in the immediate case” because Case No. 21A-PL-862 was dismissed based on a procedural error and was not adjudicated on the merits. Appellant's App. Vol. II p. 42. Kreilein argued that none of his prior “21 actions” are “related to the issue of the defendants’ culpability for illegally imposing I.C. 35-42-4-11 on Kreilein and none of these causes are relevant to this action.” Id. at 44. Kreilein claimed that the current action was a request for declaratory relief and damages for the State illegally classifying Kreilein as a sexually violent predator and as an offender against children.

[9] On January 22, 2025, the trial court dismissed Kreilein's complaint for failure to comply with Indiana Code Section 34-13-7-1. The trial court found:

12. Fatal to Plaintiff's claim ․ is the final requirement of I.C. § 34-13-7-1—a brief that includes a legal argument, citation to authority, and explanation as to why the new action is not subject to dismissal as a matter finally decided on its merits by a court and not subject to litigation again between the same parties.

13. It is clear that Plaintiff is still seeking to litigate the appropriateness of the application of I.C. § 35-42-4-11 to his sentence. (Response at 7) (“I seek damages from these defendants for imposing I.C. 35-42-4-11 on me”).

14. Plaintiff has previously attempted to litigate the application of I.C. § 35-42-4-11 to his sentence. See Cause Nos. 48C03-2012-PL-l77; 21A-PL-862.

15. As such, Plaintiff has failed to show that this new action is not subject to dismissal as a matter finally decided on its merits by a court and not subject to litigation again between the same parties, and has therefore failed to meet his requirements under I.C. § 34-13-7-l.

Appellant's App. Vol. II p. 58. Kreilein now appeals.

Discussion and Decision

[10] Kreilein challenges the dismissal of his complaint. The statutes governing the filing of prisoner litigation are comparable to “Indiana Trial Rule 12(B)(6), a rule which has given judges in civil cases the authority ‘to consider a case in its early stages and, taking everything the plaintiff has alleged as true, determine whether it can proceed.’ ” Dunigan v. State, 191 N.E.3d 851, 855 (Ind. Ct. App. 2022) (quoting Reed v. White, 103 N.E.3d 657, 659 (Ind. Ct. App. 2018)), trans. denied. Under similar statutes governing the filing of prisoner litigation, we review a trial court's dismissal of an offender's complaint de novo. See id. (addressing the dismissal of a prisoner's complaint under Indiana Code Section 34-58-1-2). Accordingly, we address the trial court's dismissal of Kreilein's amended complaint de novo.

[11] We begin by noting that Kreilein proceeds pro se. We, therefore, reiterate that “a pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). “This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1029 (Ind. Ct. App. 2018) (citing Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016)), trans. denied. Although we prefer to decide cases on their merits, arguments are waived where an appellant's noncompliance with the rules of appellate procedure is so substantial that it impedes our appellate consideration of the errors. Id. “ ‘We will not become an advocate for a party or address arguments that are inappropriate or too poorly developed or expressed to be understood.’ ” Id. (quoting Basic, 58 N.E.3d at 984).

[12] Much of the handwritten text in Kreilein's amended complaint, response to the defendants’ motion for a stay, twenty-page Appellant's Brief, and twenty-two-page Appellant's Reply Brief is virtually illegible. Although we have attempted to decipher Kreilein's handwriting, there are many words and sentences that we are unable to read. To the extent we have been unable to decipher Kreilein's handwriting, Kreilein's arguments are waived.⁵

[13] Waiver notwithstanding, we will address Kreilein's legible arguments. The trial court dismissed Kreilein's complaint pursuant to Indiana Code Section 34-13-7-1, which governs additional filing requirements for an inmate to commence an action against public employees or governmental entities and requires:

(a) In addition to any other requirements under law, before filing a civil rights action or tort claim action against a public employee or government entity, an offender must submit to the trial court:

(1) a copy of the complaint the offender wishes to file;

(2) a list of all cases previously filed by the offender involving the same, similar, or related cause of actions; and

(3) a copy of all relevant documents pertaining to the ultimate disposition of each previous case filed by the offender against any of the same defendants in a state or federal court. The relevant documents include:

(A) the complaint;

(B) any motions to dismiss or motions for summary judgment filed by the defendants in the actions;

(C) the state or federal court order announcing disposition of the case; and

(D) any opinions issued in the case by any appellate court.

(b) An offender must file with the court a brief that includes:

(1) a legal argument;

(2) a citation to authority; and

(3) an explanation to the court why the new action is not subject to dismissal as a matter finally decided on its merits by a court and not subject to litigation again between the same parties.

(c) If the trial court determines that the complaint is frivolous, malicious, or otherwise utterly without merit, or fails to state a claim upon which relief may be granted, the court shall dismiss the complaint.

The trial court here found that Kreilein failed to comply with subsection (b)(3) by explaining why his new action was not subject to dismissal as “a matter finally decided on its merits by a court and not subject to litigation again between the same parties.” I.C. § 34-13-7-1(b)(3).

[14] Our Supreme Court has recognized two types of preclusion—“res judicata and collateral estoppel—also referred as claim preclusion and issue preclusion.” Miller v. Patel, 212 N.E.3d 639, 646 (Ind. 2023) (emphasis in original). Both types of preclusion exist to “ ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ ” Id. (quoting United States v. Mendoza, 464 U.S. 154, 158 (1984)).

[15] Claim preclusion bars “ ‘subsequent litigation on the same claim between identical parties.’ ” Id. (quoting Edwards v. Edwards, 132 N.E.3d 391, 396 (Ind. Ct. App. 2019)). The four requirements for claim preclusion include:

(1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies.

Id. (quoting Afolabi v. Atl. Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006)).

[16] On the other hand, issue preclusion forecloses any “ ‘subsequent re-litigation of the same fact or issue where that fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in the subsequent lawsuit.’ ” Id. (quoting Tofany v. NBS Imaging Sys., Inc., 616 N.E.2d 1034, 1037 (Ind. 1993)). The three requirements for issue preclusion include: “ ‘(1) a final judgment on the merits in a court of competent jurisdiction; (2) identity of the issues; and (3) the party to be estopped was a party or the privity of a party in the prior action.’ ” Id. (quoting National Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012)). “In deciding whether issue preclusion is appropriate, Indiana courts also examine two salient considerations—(a) ‘whether the party against whom the judgment is pled had a full and fair opportunity to litigate the issue,’ and (b) ‘whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel.’ ” Id. at 647 (quoting National Wine & Spirits, 976 N.E.2d at 704).

[17] The main issue presented in Kreilein's amended complaint is his request for damages resulting from his classification as a sexually violent predator and offender against children. Although Kreilein argues that the trial court dismissed his amended complaint because his response to the motion to stay was untimely, Kreilein is incorrect. The trial court dismissed because it found that this issue had already been addressed in other actions. We agree that both claim preclusion and issue preclusion apply here to bar Kreilein's action.

[18] The Southern District of Indiana previously addressed Kreilein's 42 U.S.C. § 1983 claim against the Commissioner of the DOC and the Indiana Parole Board, in which Kreilein argued that his constitutional rights were violated by his designation as a sexually violent predator and as an offender against children. The Seventh Circuit affirmed the district court's grant of summary judgment to the defendants. See Kreilein, 854 F. App'x 733. The earlier federal case addressed on the merits the same issue raised here, and the parties here are privies to the parties in the federal case.⁶ See, e.g., Becker v. State, 992 N.E.2d 697, 701 (Ind. 2013) (holding that “the DOC is in privity with the prosecutor”). As Kreilein has already had a full and fair opportunity to litigate this issue, we agree that Kreilein has failed to demonstrate that his “new action is not subject to dismissal as a matter finally decided on its merits by a court and not subject to litigation again between the same parties.” Ind. Code § 34-13-7-1(b)(3). We, thus, conclude that the trial court properly dismissed Kreilein's amended complaint.⁷

Conclusion

[19] The trial court properly dismissed Kreilein's amended complaint. Accordingly, we affirm.

[20] Affirmed.

FOOTNOTES

1.   Kreilein filed a petition for post-conviction relief challenging the revocation of his parole and his classification as a sexually violent predator and offender against children. Kreilein v. Berry, No. 21A-PL-862, slip op. at 2 (Ind. Ct. App. Apr. 28, 2022) (mem.), trans. denied. The post-conviction court denied Kreilein's petition, and Kreilein then made repeated requests for permission to file a successive petition for post-conviction relief, which this Court denied. Id.

2.   The Seventh Circuit noted that “the officials now concede that [Kreilein] was mislabeled an offender against children because [Indiana Code Section] § 35-42-4-11(a)(1) does not apply to offenses committed before 2006.” Kreilein, 854 F. App'x at 733-34.

3.   We noted that Kreilein had:challenged his parole revocation in more than a dozen other matters over the past decade. See Cause Nos. 62C01-0308-PC-000565; 59A01-0311-PC-00455; 19D01-1103-PC-000040; 19D01-1103-PC-000041; 19D01-1103-PC-000042; 82D03-1105-PC-00003; 82A01-1107-PC-00311; 82C01-1706-PC-003168; 48C03-1708-PC-000036; 48C03-1709-PC-000043; 48C03-1710-PC-000047; 48A02-1712-PC-02987; 19D01-1712-PC-000753; 18A-PC-00997; 18A-PC-03008; 19A-SP-00931; 20A-SP-00193, No. 48C03-2003-PC-000014; and 33C02-2011-PC-000010.Kreilein, No. 21A-PL-862, slip op. at 3 n.4. We further noted that Kreilein had not obtained leave from this Court to file a successive PCR petition.

4.   This document was not provided in Kreilein's appendix.

5.   The State points out that the librarians, Cecil and Smith, are not employees of the State of Indiana, and the State does not address the claims against them. Kreilein, however, makes no discernible argument on appeal that the dismissal of his amended complaint does not apply to the claims against Cecil and Smith. We will not make arguments for Kreilein.

6.   Given this conclusion, we need not address Kreilein's arguments regarding Case No. 21A-PL-862.

7.   In doing so, we note:[W]e find ourselves revisiting issues that have already been decided by other courts in other proceedings. Although we do not wish to discourage prisoners’ access to courts, we are aware that some prisoners are inclined to flood our courts with a prodigious number of lawsuits that are, by and large, entirely without merit. The problem is especially vexatious when it is compounded by the fact that those lawsuits often rehash the same issues over and over again. Such constitute a drain on the judicial system and amount to harassment of the same few defendants that simply cannot be ignored—or tolerated.Higgason v. Stogsdill, 818 N.E.2d 486, 492 (Ind. Ct. App. 2004), trans. denied.

Tavitas, Judge.

Bailey, J., and Kenworthy, J., concur.