Michael D. Hickingbottom v. Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, Mark Sevier, Warden of Westville Correctional Facility, Troy Cambe (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2019
• Docket: 19A-PL-792
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 24 2019, 9:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEES Michael D. Hickingbottom Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Aaron T. Craft Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael D. Hickingbottom, September 24, 2019 Appellant-Plaintiff, Court of Appeals Case No. 19A-PL-792 v. Appeal from the LaPorte Superior Court Robert E. Carter, Jr., The Honorable Commissioner of the Indiana Jeffrey L. Thorne, Judge Department of Correction, Mark Trial Court Cause No. Sevier, Warden of Westville 46D03-1812-PL-2243 Correctional Facility, Troy Cambe, and Unknown Maintenance Workers, Appellees-Defendants.

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-792 | September 24, 2019 Page 1 of 6 [1] Michael D. Hickingbottom (“Hickingbottom”) appeals the trial court’s order

dismissing his complaint pursuant to Indiana Code section 34-58-1-2.

Hickingbottom contends that the trial court erred in dismissing his complaint.

[2] We affirm.

Facts and Procedural History [3] Hickingbottom is an inmate in the Westville Correctional Facility, which is a

part of the Indiana Department of Correction. Beginning in February 2018,

Hickingbottom filed several grievances regarding various conditions in the

facility. Specifically, Hickingbottom alleged that the cells in the segregated unit

where he was housed were too cold and that the cold air was being used as

punishment for inmates in that unit. Appellant’s App. Vol. 2 at 27-29. He also

alleged that the water in his unit was brown or orange in color and was

contaminated, which was making him sick. Id. at 30-32. These grievances

were all denied. Claiming these prison conditions violated his constitutional

rights, Hickingbottom filed a complaint for damages against Robert E. Carter,

Jr., Commissioner of the Indiana Department of Correction, Mark Sevier,

Warden of Westville Correctional Facility, Troy Cambe, Grievance Specialist

for Westville Correctional Facility, and Unknown Maintenance Workers

asserting violations of his civil rights under 42 United States Code section 1983.

Id. at 18-27. On December 28, 2018, the trial court dismissed Hickingbottom’s

complaint pursuant to Indiana Code section 34-58-1-2 and for failing to comply

with the requirements of Indiana Code sections 34-13-3-1, 34-13-3-3, 34-13-3-4,

Court of Appeals of Indiana | Memorandum Decision 19A-PL-792 | September 24, 2019 Page 2 of 6 34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. Id. at 38-39. In its order, the

trial court gave Hickingbottom thirty days to file additional pleadings or

documents to remedy any of the deficiencies referenced in the order. Id. at 39.

Hickingbottom filed a motion to correct deficiencies, in which he attempted to

correct deficiencies associated with Indiana Code sections 34-13-3-1, 34-13-3-3,

34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. Id. at 8-9. On

February 15, 2019, the trial court issued another order, dismissing

Hickingbottom’s complaint pursuant to Indiana Code section 34-58-1-2.

Hickingbottom now appeals.

Discussion and Decision [4] Hickingbottom argues that the trial court erred in dismissing his complaint.

Indiana Code section 34-58-1-1 provides, “Upon receipt of a complaint or

petition filed by an offender, the court shall docket the case and take no further

action until the court has conducted the review required by section 2 of this

chapter.” Indiana Code section 34-58-1-2, in turn, provides in pertinent part:

(a) A court shall review a complaint or petition filed by an offender and shall determine if the claim may proceed. 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.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-792 | September 24, 2019 Page 3 of 6 (b) A claim is frivolous under subsection (a)(1) if the claim:

(1) is made primarily to harass a person; or

(2) lacks an arguable basis either in:

(A) law; or

(B) fact.

If a court determines that a claim may not proceed under section 2, “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.” Ind. Code § 34-58-1-3.

[5] Hickingbottom argues that the trial court erred when it dismissed his complaint.

He specifically asserts that the trial court violated his due process rights when it

dismissed his complaint for failing to comply with Indiana Code sections 34-13-

3-1, 34-13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. He

contends that he substantially complied with these statutes, and, therefore, the

trial court erroneously dismissed his complaint.

[6] In the present case, on December 28, 2018, the trial court initially issued an

order dismissing Hickingbottom’s complaint pursuant to Indiana Code section

34-58-1-2 and for failing to comply with Indiana Code sections 34-13-3-1, 34-

13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. However,

the trial court gave Hickingbottom the opportunity to file additional pleadings

Court of Appeals of Indiana | Memorandum Decision 19A-PL-792 | September 24, 2019 Page 4 of 6 to cure the deficiencies referenced in the order. Hickingbottom filed a

subsequent motion in which he cured the deficiencies associated with Indiana

Code sections 34-13-3-1, 34-13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12,

34-13-7-1. The trial court then issued its final order on February 15, 2019,

dismissing Hickingbottom’s complaint pursuant to Indiana Code section 34-58-

1-2. It is that final order from which Hickingbottom appeals.

[7] Although Hickingbottom argues that the trial court erred and violated his due

process rights when it dismissed his complaint for failure to comply with

Indiana Code sections 34-13-3-1, 34-13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11,

34-13-3-12, and 34-13-7-1, in its final order on February 15, 2019, the trial court

did not base the dismissal of his complaint on a failure to comply with those

statutory sections. Instead, the trial court based its dismissal only on Indiana

Code section 34-58-1-2. Here, Hickingbottom has not argued or demonstrated

any error in the trial court’s order finding that his claim should be dismissed

pursuant to that section.

[8] It is well settled that pro se litigants are held to the same legal standards as

licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016).

“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.” Id. at 983-84. These consequences include waiver for failure to present

cogent argument on appeal. Id. at 984. “While we prefer to decide issues on

the merits, where the appellant’s noncompliance with appellate rules is so

substantial as to impede our consideration of the issues, we may deem the

Court of Appeals of Indiana | Memorandum Decision 19A-PL-792 | September 24, 2019 Page 5 of 6 alleged errors waived.” 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. In the present case, Hickingbottom has not raised any

argument as to why the trial court erred in dismissing his complaint pursuant to

Indiana Code section 34-58-1-2. We, therefore, conclude that he has waived

review of the issue, and we affirm the trial court’s order dismissing

Hickingbottom’s complaint.

[9] Affirmed.

Baker, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-792 | September 24, 2019 Page 6 of 6