MARTIN v. VANIHEL (2022)

MEMORANDUM DECISION

Case Summary

[1] Kevin Martin appeals, pro se, the dismissal of his lawsuit under Indiana Code Section 34-58-1-2, known as the Screening Statute, which requires dismissal of a lawsuit filed by an incarcerated person “if the court determines that the claim ․ is frivolous” or “is not a claim upon which relief may be granted[.]” In his Brief of Appellant, Martin makes no cogent argument about whether he raised only frivolous or non-viable claims. As best we can discern, Martin focuses on whether the complaint showed that he was in immediate danger of serious bodily injury. However, such a showing does not bear on the propriety of dismissal under the Screening Statute. Rather, this sort of showing relates to whether a person with a pattern of filing abusive litigation may avoid outright dismissal as provided in Section 34-10-1-3, known as the Three Strikes Statute.

[2] Ultimately, because Martin, in his Brief of Appellant, does not seem to address the merits of dismissing his lawsuit under the Screening Statute, we conclude that Martin waived any contention that the trial court erred in dismissing the lawsuit thereunder. As to the claim of judicial bias, because Martin's argument appears to depend solely on the existence of an adverse judgment, which—standing alone—does not demonstrate judicial bias, we conclude that Martin has not shown that reversal is warranted. All in all, we affirm the trial court.

Facts and Procedural History

[3] Martin—who is committed to the Indiana Department of Correction—sued Warden Vanihel and others (collectively, “Vanihel”).¹ Claiming violations of the First, Eighth, and Fourteenth Amendments, the complaint contains many allegations, several about the propriety, conditions, and psychological effect of long-term segregation from the general prison population. There are also allegations of retaliatory deprivations for pursuing grievances and litigation.

[4] Under Section 34-58-1-2, the Screening Statute, the trial court screened the complaint and ordered that the lawsuit could proceed. But upon the State's motion, the court rescreened the complaint and withdrew its earlier order. In its subsequent written order, the court found that the “[c]omplaint is frivolous and fails to state a claim.” Appellees’ App. Vol. II at 14. Having found as much, the court ordered dismissal of the action. The trial court also ordered that, under the Three Strikes Statute, Martin “may not proceed in this action or future state civil actions as an indigent person while incarcerated unless it is determined that he is in immediate danger of serious bodily injury.” Id. at 11.

[5] Martin now appeals, pro se.

Discussion and Decision

[6] “[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). As to the standards expected of an appellant, Appellate Rule 46(A)(8)(a) specifies that the argument section of the Brief of Appellant “shall contain the appellant's contentions why the trial court ․ committed reversible error.” Moreover, the argument “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” Id. Failing to follow Rule 46(A) may result in waiver of an appellate issue. See, e.g., Zavodnik, 17 N.E.3d at 264. Furthermore, when the appellant fails to raise an issue in the Brief of Appellant, the appellant cannot avoid waiver by raising the issue in subsequent briefing. See Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”); see also, e.g., Ross v. State, 429 N.E.2d 942, 945 (Ind. 1982) (“If we were to permit ․ changes of theory through reply briefs, appellees would be entitled to respond by an additional answer brief, and the briefing could continue ad infinitum.”).

[7] This case involves Indiana statutes designed to curtail abusive litigation filed by an incarcerated person, whom the statutes call an “offender.” Ind. Code § 34-6-2-89(b) (“ ‘Offender’, for purposes of IC 34-58 means a person who is committed to the department of correction or incarcerated in a jail.”). Below, the trial court dismissed this case under Indiana Code Section 34-58-1-2, the Screening Statute, which provides that a court “shall review a complaint or petition filed by an offender and shall determine if the claim may proceed.” The statute directs that a claim “may not proceed if the court determines that the claim: (1) is frivolous; (2) is not a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from liability for such relief.” Id. Moreover, Indiana Code Section 34-58-1-3 provides that “[i]f a court determines that a claim may not proceed,” the court “shall enter an order: (1) explaining why the claim may not proceed; and (2) stating whether there are any remaining claims in the complaint or petition that may proceed.” Id. As to the Three Strikes Statute, this statute specifies that “[i]f an offender has filed at least three (3) civil actions in which a state court has dismissed the action or a claim under IC 34-58-1-2,” i.e., the Screening Statute, “the offender may not file a new complaint or petition as an indigent person ․ unless a court determines the offender is in immediate danger of serious bodily injury.” I.C. § 34-10-1-3.

[8] In dismissing this action under the Screening Statute, the court determined that the “[c]omplaint is frivolous and fails to state a claim.” Appellees’ App. Vol. II at 14. We review de novo the trial court's dismissal of a complaint under this statute. See, e.g., Smith v. Huckins, 850 N.E.2d 480, 484 (Ind. Ct. App. 2006).²

[9] Although Martin appeals from the dismissal of his action, in his Brief of Appellant, Martin does not argue that his claims are non-frivolous or viable. Rather, Martin provides the following statement of the issues, transcribed verbatim from the Brief of Appellant: “[W]hether the trial court abused its discretion in deprive plaintiff of fundamental right to equal-protection of the law to all citizens because Martin state that he in immediate danger of serious bodily injury and this court dismiss Martin complaint because he black was the reason for dismiss Martin complaints.” Br. of Appellant at 4 (quoted as in original). He summarizes his argument as follows: “[T]he trial court bias and prejudice deny Martin within his jurisdiction equal-protection of the law to all citizens.” Id. at 6 (quoted as in original). At another point, he asserts that “the trial court abused its discretion in deprive plaintiff of fundamental right to equal protection of the law to all citizens because Martin state that he in immediate danger of serious bodily injury and this court dismiss Martin complaint because he black was the reason for dismiss Martin complaints.” Id. at 7. (quoted as in original). At times, Martin suggests that there is evidence proving he was “in immediate danger of serious bodily injury” due to an alleged stabbing. Id. at 9. At other times, Martin argues that he lacked adequate tools for legal research.

[10] As to Martin's assertion that the complaint showed “immediate danger of serious bodily injury,” id. at 19, this sort of showing would help an offender subject to the Three Strikes Statute avoid outright dismissal. Yet this sort of showing does not help an offender avoid dismissal under the Screening Statute. See I.C. § 34-58-1-2(a) (“A claim may not proceed if the court determines that the claim” is “frivolous” or “not a claim upon which relief may be granted[.]”). In other words, even if a complaint shows the offender is in immediate danger of serious bodily injury, the court must still apply the Screening Statute and dismiss the action if, for example, the offender failed to state a claim. See id.

[11] Ultimately, having reviewed the Brief of Appellant, we cannot say that Martin cogently addressed whether the court abused its discretion in determining that the complaint contained only frivolous or non-viable claims. Due to this lack of cogent argument in the Brief of Appellant, we conclude that Martin waived the issue for review. See, e.g., Zavodnik, 17 N.E.3d at 264. Moreover, to the extent that Martin attempts to cogently address the nature of his claims for the first in the Reply Brief, he may not do so. See App. R. 46(C); Ross, 429 N.E.2d at 945.

[12] Last, Martin suggests that the dismissal of the suit was motivated by racial bias. Yet, in briefing, we discern no support for this assertion other than the trial court's adverse ruling, and “an adverse ruling alone is not sufficient to show bias or prejudice.” Flowers v. State, 738 N.E.2d 1051, 1060 n.4 (Ind. 2000).

[13] All in all, Martin has waived any challenge to the dismissal under the Screening Statute and he has otherwise failed to demonstrate that reversal is warranted.

[14] We affirm.

Affirmed

FOOTNOTES

1.   The Chronological Case Summary reflects that several named defendants were not served. For ease of reading and because of our disposition, we decline to set forth all defendants and differentiate between them.

2.   In the order, the trial court also stated that the Three Strikes Statute applied to future claims. On appeal, Martin does not address the propriety of this aspect of the order. We therefore do not expand on that matter.

Bailey, Judge.

Mathias, J., and Altice, J., concur.