Dennis Mikel v. State of Indiana ( 2012 )


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  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not
    be regarded as precedent or cited                              FILED
    before any court except for the purpose                      Apr 18 2012, 9:02 am
    of establishing the defense of res
    judicata, collateral estoppel, or the law                           CLERK
    of the supreme court,
    of the case.                                                      court of appeals and
    tax court
    APPELLANT PRO SE:                                 ATTORNEY FOR APPELLEE:
    DENNIS MIKEL                                      GREGORY F. ZOELLER
    Bunker Hill, Indiana                              Attorney General of Indiana
    ELIZABETH ROGERS
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    DENNIS MIKEL,                                     )
    )
    Appellant-Plaintiff,                      )
    )
    vs.                                )      No. 52A04-1111-SC-598
    )
    STATE OF INDIANA,                                 )
    )
    Appellee-Defendant.                       )
    APPEAL FROM THE MIAMI SUPERIOR COURT
    The Honorable J. David Grund, Judge
    Cause No. 52D01-1105-SC-512
    April 18, 2012
    MEMORANDUM DECISION – NOT FOR PUBLICATION
    BARNES, Judge
    Case Summary
    Dennis Mikel appeals the trial court’s judgment in favor of the Miami Correctional
    Facility (“the Facility”) and Mark Sevier, Superintendent of the Facility (collectively,
    “the Defendants”). We affirm in part, reverse in part, and remand.
    Issues
    The issues before us are:
    I.     whether the trial court erred in not conducting a jury
    trial in this matter;
    II.    whether the trial court properly denied Mikel’s motion
    for appointment of counsel; and
    III.   whether the trial court properly entered judgment in
    favor of the Defendants.
    Facts
    On April 7, 2010, during a “shake down” at the Facility, corrections officers
    entered Mikel’s cell and confiscated a number of items, including books, magazines, a
    radio, some medications, and a TV. The reason given for the confiscation was that the
    number of items Mikel possessed exceeded the maximum allowed and also that the TV
    and radio had been altered in violation of Facility rules. According to Department of
    Correction (“DOC”) rules, property confiscated from an inmate must be disposed of in
    one of four ways, at the inmate’s discretion: it may be given to a charity, retained for use
    by the DOC at the DOC’s discretion, mailed to an outside party, or destroyed.
    Additionally, an inmate may wish to file a grievance regarding the confiscated property.
    2
    If an inmate does not choose a disposition for the property and if the inmate does not
    indicate that he or she wishes to file a grievance, “the prohibited item(s) will be destroyed
    60 days from the date of the withholding of the item(s).”1 Appellant’s App. p. 18. On the
    date his property was confiscated, Mikel filled out a DOC form indicating that he
    intended to file a grievance. Mikel did not indicate how he would want the property to be
    disposed of.
    On May 3, 2010, Mikel filed a grievance with the Facility regarding the
    confiscation of his property.          This first grievance was not reviewed because Mikel
    allegedly had failed to try to resolve his concerns informally.                       After meeting this
    requirement, Mikel filed a second grievance on May 24, 2010. On June 3, 2010, a
    Facility employee, Clair Barnes, responded to Mikel, “Your TV will be returned to you,
    and the medication will be returned back to the medical department.” Id. at 25. Barnes
    denied Mikel’s grievance with respect to the rest of his property.
    On June 16, 2010, Mikel wrote a letter indicating that he wished to appeal the
    denial of his grievance. In a letter dated June 18, 2010, Barnes wrote to Mikel, stating in
    part:
    Your television initially appeared that it could be returned to
    you. After further review by the Property Officer, it was
    determined that your TV is altered. It will not be returned to
    you. I apologize for the misinformation I gave you in the
    grievance response. You must select a disposition for the
    1
    The Defendants assert in their brief that if an inmate does not choose a disposition for confiscated
    property within sixty days of seizure, the property is to be destroyed, but it fails to mention that this time
    limit does not apply if an inmate chooses to file a grievance. If an inmate chooses to do so, any
    confiscated items “will be held until the grievance is decided.” Appellant’s App. p. 18.
    3
    television within sixty days from the date of confiscation, or
    the property will be destroyed. . . . I have scanned this letter
    into the grievance. An appeal form was sent to you on June
    10, 2010. You may address your television in your appeal, if
    you choose to submit it.
    Id. at 59. Also on June 18, 2010, Mikel formally filed an appeal of the denial of his
    grievance. The appeal does not mention the TV; it is unclear from the record whether
    Mikel received Barnes’s letter regarding the TV before or after he filed his appeal.
    On July 22, 2010, another Facility official denied Mikel’s grievance appeal in a
    written document.2 The document contains the original language from the June 3, 2010
    response to Mikel’s grievance, including the language that “[y]our TV will be returned to
    you,” and then states that the reviewing official concurred with that determination. Id. at
    28.
    As the next level of administrative review of Mikel’s grievance, he filed a
    complaint with the DOC’s Ombudsman Bureau.                   While that complaint was under
    consideration, on August 2, 2010, a Facility employee sent Mikel a letter informing him
    that he still had confiscated property in storage, that the sixty-day time limit for directing
    disposition of the property had passed, that Mikel had “either failed to file a grievance or
    you have exhausted your grievance remedies,” and that he now had five days to decide
    how he wanted to dispose of the property. Id. at 29. Mikel did not give any directions on
    how he wanted his property disposed of, nor did the letter specify what property was
    being held subject to disposal. On August 13, 2010, the director of the Ombudsman
    2
    It is unclear which official reviewed Mikel’s appeal. The document denying the appeal appears to be
    signed by an Amanda Hobbs, but states that the appeal was denied by “L.A. VanNatta.”
    4
    Bureau wrote to Mikel that “[t]he grievance response you received in reference to this
    matter properly addresses the issue. You were told your TV will be returned to you. . . .
    Accordingly, I find no violation of DOC policy or procedure in regard to this matter.” Id.
    at 30.
    On August 25, 2010, the Facility’s property officer destroyed all of Mikel’s
    confiscated property, including the TV. Mikel then timely filed a notice of tort claim for
    the loss of his property with the Attorney General’s office. On January 10, 2011, the
    Attorney General’s office informed Mikel that it saw no basis for his tort claim and
    would not offer a settlement to him.
    On May 9, 2011, Mikel filed a complaint against the Defendants in the small
    claims docket of the Miami Superior Court, seeking damages of $1500.3 Before actually
    filing the action, Mikel had requested that the trial court appoint counsel to represent him.
    The trial court denied this request and also ordered that Mikel’s case be decided by
    affidavit. After documentary evidentiary submissions by Mikel and the Facility, the trial
    court entered judgment in favor of the Facility on October 7, 2011. Mikel now appeals.
    Analysis
    I. Jury Trial
    First, Mikel contends that the trial court deprived him of his constitutional right to
    a jury trial when it ordered that the case be decided on the basis of submitted
    documentary evidence and affidavits. As the State points out, however, “The filing of a
    3
    Mikel later reduced the amount of damages he was seeking to $500.
    5
    claim on the small claims docket is considered a waiver of trial by jury.” 
    Ind. Code § 33
    -
    29-2-7(a). Mikel expressly filed his action on the small claims docket of the Miami
    Superior Court. We see no reason why the statutory waiver of trial by jury would not
    apply here, and Mikel provides no argument as to why it would not apply. Additionally,
    we previously have held that submission of a case by documentary evidence is an
    appropriate method of trying a small claims case filed by an incarcerated plaintiff who is
    unrepresented by counsel. See Zimmerman v. Hanks, 
    766 N.E.2d 752
    , 758 (Ind. Ct.
    App. 2002). The trial court did not err in not conducting a jury trial on Mikel’s small
    claims complaint.
    II. Appointment of Counsel
    Next, Mikel argues the trial court erred in denying his motion for the appointment
    of counsel. Indiana Code Section 34-10-1-1 provides, “An indigent person who does not
    have sufficient means to prosecute or defend an action may apply to the court in which
    the action is intended to be brought, or is pending, for leave to prosecute or defend as an
    indigent person.” Indiana Code Section 34-10-1-2 provides in part:
    (b)    If the court is satisfied that a person who makes an
    application described in section 1 of this chapter does not
    have sufficient means to prosecute or defend the action, the
    court:
    (1)    shall admit the applicant to prosecute or defend
    as an indigent person; and
    (2)    may, under exceptional circumstances, assign
    an attorney to defend or prosecute the cause.
    6
    (c)     The factors that a court may consider under subsection
    (b)(2) include the following:
    (1)    The likelihood of the applicant prevailing on the
    merits of the applicant’s claim or defense.
    (2)    The applicant’s ability to investigate and
    present the applicant’s claims or defenses without an
    attorney, given the type and complexity of the facts
    and legal issues in the action.
    (d)     The court shall deny an application made under section
    1 of this chapter if the court determines any of the following:
    (1)    The applicant failed to make a diligent effort to
    obtain an attorney before filing the application.
    (2)    The applicant is unlikely to prevail on the
    applicant’s claim or defense.
    Prior to 2002, the statute governing the appointment of counsel in civil cases
    simply provided that if an applicant was indigent and lacked “sufficient means to
    prosecute or defend the action, the court shall . . . assign an attorney to defend or
    prosecute the cause.” I.C. § 34-10-1-2 (2001). The statute did not limit the appointment
    of counsel in civil cases to “extraordinary circumstances,” nor did it require the applicant
    to “make a diligent effort to obtain an attorney before filing the application.” Still, cases
    interpreting the prior version of the statute permitted trial courts to deny the appointment
    of counsel, even where an applicant clearly was indigent, if “the action is of the type that
    is often handled by persons who are not indigent without the presence or assistance of
    counsel . . . .” Sabo v. Sabo, 
    812 N.E.2d 238
    , 244 (Ind. Ct. App. 2004). The 2002
    7
    amendments to Section 34-10-1-2 effectively codified the case law limitation on the
    appointment of counsel in civil cases.
    Here, Mikel made no showing that he made any effort to obtain the services of an
    attorney before he filed his motion for appointment of counsel. This by itself is sufficient
    to support the trial court’s denial of his request under subsection (d)(1) of the statute. See
    Smith v. Harris, 
    861 N.E.2d 384
    , 386 (Ind. Ct. App. 2007), trans. denied. Moreover,
    small claims actions such as the one filed by Mikel often are litigated pro se. Mikel also
    has demonstrated throughout the grievance process that he is able to adequately represent
    himself in this type of matter. This provides additional justification for the denial of his
    request for the appointment of counsel at public expense. See Sabo, 
    812 N.E.2d at 245
    .
    The trial court did not err on this issue.4
    III. Judgment for Defendants
    Finally, we address Mikel’s claim on the merits that the trial court erred in
    entering judgment in favor of the Defendants. “Judgments in small claims actions are
    ‘subject to review as prescribed by relevant Indiana rules and statutes.’” Trinity Homes,
    LLC v. Fang, 
    848 N.E.2d 1065
    , 1067-68 (Ind. 2006) (quoting Ind. Small Claims Rule
    11(A)).     Thus, a clearly erroneous standard applies to appellate review of facts
    determined in a bench trial with due regard given to the opportunity of the trial court to
    assess witness credibility. 
    Id.
     “But this deferential standard does not apply to the
    4
    In his brief, Mikel refers extensively to Gideon v. Wainwright, 
    372 U.S. 335
    , 
    83 S. Ct. 792
     (1963) and
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984). Those cases concern the appointment of
    counsel in criminal cases and the standard for judging the effectiveness of attorneys in criminal cases.
    They have no application to this civil case.
    8
    substantive rules of law, which are reviewed de novo just as they are in appeals from a
    court of general jurisdiction.” 
    Id.
     “Similarly, where a small claims case turns solely on
    documentary evidence, we review de novo, just as we review summary judgment rulings
    and other ‘paper records.’” 
    Id.
     Because this case was decided solely on the basis of
    written evidentiary submissions, our review of this matter is de novo.
    We also observe that Mikel complied with the requirements of Indiana Code
    Section 34-13-3-7 in first filing an administrative claim for the loss of his property with
    the DOC before filing this lawsuit. If such a claim is denied, as it was here, then an
    inmate is entitled to file a small claims suit for the loss of the property, pursuant to the
    Indiana Tort Claims Act. See Smith v. Indiana Dep’t of Corrections, 
    888 N.E.2d 804
    ,
    808 (Ind. Ct. App. 2008).           Such a suit usually cannot seek damages from a State
    employee in their individual capacity, unless certain matters are alleged that Mikel did
    not allege here against Sevier. See id.5 However, Mikel’s complaint also named the
    Facility as a defendant, which was proper, and the complaint can be easily read as
    naming Sevier as a defendant in his official, not individual, capacity, which also was
    proper. See Banks v. Brown, 
    876 N.E.2d 335
    , 336 (Ind. Ct. App. 2007).
    On appeal, Mikel focuses on the Facility’s destruction of his TV; we likewise will
    focus solely upon that issue. The Defendants assert that under Indiana Code Sections 11-
    11-2-2 and 11-11-2-5, DOC facilities have the discretion to limit the amount and types of
    5
    In order to recover against a State employee individually, a complaint must allege an act or omission by
    the employee that is “(1) criminal; (2) clearly outside the scope of the employee’s employment; (3)
    malicious; (4) willful and wanton; or (5) calculated to benefit the employee personally.” I.C. § 34-13-3-
    5(c).
    9
    personal property an offender may keep in his or her cell. The Facility specifically
    prohibits inmate possession of “altered” property. Appellee’s App. p. 1. Emphasizing
    Barnes’s June 18, 2010 letter stating that the TV had been altered and would not be
    returned to Mikel, coupled with his failure to direct a disposition for the TV, the
    Defendants assert that the Facility was entitled to destroy the TV, per DOC and Facility
    rules.
    This argument, however, ignores the full context of the facts. Mikel suggested in
    his affidavit to the trial court that Barnes’s June 18, 2010 letter was a forgery, even going
    so far as to say that “you do not have to see the polecat to smell it.” Appellant’s App. p.
    63. We need not definitively resolve that question. It is enough to say that in two official
    pieces of correspondence following the June 18, 2010 letter, Mikel was advised that his
    TV would be returned to him.
    First, in the July 22, 2010 resolution of his grievance appeal within the Facility,
    the documentation recites the language of the original grievance decision, including that
    Mikel’s TV would be returned to him, and then states that the employee deciding the
    appeal agreed with that resolution. Mikel did not raise the issue of the loss of his TV in
    the grievance appeal. As noted, it is unclear from the record whether Mikel was aware of
    Barnes’s June 18, 2010 letter when he filed his grievance appeal. However, given the
    lengths to which Mikel has litigated the confiscation of his property and the destruction
    of his TV, we believe it is safe to presume that if he had received Barnes’s letter before
    he filed his grievance appeal, he would have addressed the TV in that appeal.
    10
    Additionally, although Barnes’s letter stated that it would be “scanned” into his grievance
    file, its conclusion that Mikel’s TV would not be returned to him was not included in the
    July 22, 2010 denial of his grievance appeal.
    Second, after the grievance appeal was decided against him, which was the final
    level of review available to him within the Facility, he filed his complaint with the DOC
    Ombudsman. In its response to his complaint on August 13, 2010, the Ombudsman
    clearly indicated its understanding that Mikel’s TV would be returned to him. In other
    words, the final level of administrative review within the DOC indicated that Mikel’s TV
    would be returned to him. Yet, less than two weeks after the Ombudsman made this
    statement, the Facility destroyed the TV.
    Additionally, although the Facility had advised Mikel in writing on August 2,
    2010, that he had property in the storage room for which he needed to designate a
    disposition or it would be destroyed, the letter did not list the property at issue. At that
    time, Mikel reasonably was entitled to rely on the most recent communication from the
    facility, the July 22, 2010 grievance appeal determination, which stated that his TV
    would be returned to him, i.e., it would not be destroyed.
    We note that Mikel does not directly argue that the TV, in fact, was not altered in
    violation of Facility and DOC rules. We believe that is beside the point. Mikel was
    repeatedly told that the TV would be returned to him. Therefore, he had no reason to
    litigate whether the TV had been altered during the grievance process. Additionally,
    even if the TV had been altered, Mikel could have opted to have it mailed to an outside
    11
    party; its immediate destruction was not warranted merely because it was altered.
    Although the Defendants fault Mikel for not timely choosing a disposition for the TV, he
    reasonably could have believed he did not need to do so, based first on the resolution of
    his grievance appeal and subsequently the DOC Ombudsman’s response to his complaint.
    In sum, we conclude Mikel has established that he is entitled to compensation for
    the destruction of his TV. The record before us does not contain clear evidence as to the
    amount of damages Mikel would be entitled to for this loss of property. Although
    Mikel’s complaint originally sought $1500 in damages, later reduced to $500, the trial
    court is not bound to award either amount. Thus, we reverse the judgment in favor of the
    Defendants and remand for further proceedings on the amount of damages to which
    Mikel is entitled.
    Conclusion
    Although the trial court did not err either in denying Mikel’s request for appointed
    counsel or in not conducting a jury trial on his complaint, we conclude on the basis of de
    novo review that it erred in entering judgment in favor of the Defendants. We reverse
    and remand for an assessment of damages.
    Affirmed in part, reversed in part, and remanded.
    KIRSCH, J., and BRADFORD, J., concur.
    12