MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 28 2019, 9:20 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 APPELLEE Michael S. Hauser Adam G. Forrest BBKCC ATTORNEYS Richmond, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael S. Hauser, June 28, 2019 Appellant, Court of Appeals Case No. 18A-SC-1240 v. Appeal from the Henry Circuit Court The GEO Group Inc., Lt. The Honorable David L. McCord, Storms, Sgt. Cross, Sgt. A. Judge Brown, and Sgt. H.N. Driscoll, Trial Court Cause No. Appellees. 33C03-1801-SC-35
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 1 of 9 Statement of the Case
[1] Michael Hauser (“Hauser”), an inmate in the Department of Correction
(“DOC”), filed a pro se small claims complaint in Henry Circuit Court against
The GEO Group, Inc., Lt. Storms, Sgt. Cross, Sgt. A. Brown, and Sgt. H.N.
Driscol (“Correctional Staff”) seeking the monetary value of lost property.
[2] Hauser’s appeal raises several issues, which we restate as (1) whether the trial
court abused its discretion by denying Hauser’s motion for telephonic hearing;
and (2) whether Hauser demonstrated that he is entitled to the recovery sought.
Concluding that the trial court did not abuse its discretion and that Hauser
failed to demonstrate that he is entitled to the recovery sought, we affirm the
trial court.
[3] We affirm.
Issues
1. Whether the trial court abused its discretion by denying Hauser’s motion for telephonic hearing. 2. Whether Hauser demonstrated that he is entitled to the recovery sought. Facts
[4] On February 5, 2017, Hauser received a conduct report due to a behavioral
issue and was placed in the restrictive housing unit (“RHU”) at the New Castle
Correctional Facility (“NCCF”). Before Hauser was placed in the RHU, his
property was inventoried on an “Offender Personal Property” form. (App. Vol. Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 2 of 9 2 at 32-34). On February 7, Hauser was released from restrictive housing.
Upon release, he signed a “Property Release-Inmate” form through which he
acknowledged that all of his state-issued and personal property had been
returned to him. (App. Vol. 2 at 74).
[5] On February 13, 2017, Hauser filed an “Offender Complaint” with the RHU
staff alleging the loss of property. (App. Vol. 2 at 44). Hauser claimed that he
was missing: various art supplies, batteries, substance abuse manuals, a
blanket, a radio, and clothing items. In response, Lt. Storms stated that some of
Hauser’s personal property had been “confiscated [as] altered or excessive[.]”
(App. Vol. 2 at 67). Lt. Storms also addressed the fact that many of the items
claimed missing were not on either inventory form.
[6] Approximately two weeks later, on February 22, Hauser filed a “Notice of Loss
of Property – Tort Claim” with the Legal Services Division of the DOC seeking
reimbursement of $62.42 for his lost property. (App. Vol. 2 at 45). Mike Smith
(“Smith”), the Tort Claims Administrator at the NCCF, investigated Hauser’s
claim and denied the same as unsubstantiated. In support of the denial, Smith
cited several reasons including the fact that some items: were confiscated, were
not listed on either inventory sheet, were accounted for, and lacked proof of
purchase receipts.
[7] On January 22, 2018, Hauser filed a pro se notice of claim against the
Correctional Staff regarding his lost property seeking damages in the amount of
$6,000. That same day, the court “order[ed] all parties to submit their evidence
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 3 of 9 by affidavit.”1 (App. Vol. 2 at 22) (emphasis in original). The trial court
ordered Hauser to file his evidence by the trial date of March 2 and the
Correctional Staff to file their evidence within twenty (20) days thereafter. The
court order further stated that within thirty (30) days after the trial date, Hauser
could “file any rebuttal evidence by affidavit or exhibit.” (App. Vol. 2 at 22). If
Hauser filed any rebuttal evidence, within forty (40) days after the trial date,
Correctional Staff could “file any surrebuttal evidence by affidavit or exhibit.”
(App. Vol. 2 at 23).
[8] On February 15, 2018, Hauser filed his affidavit with several exhibits attached.
He again valued his missing property at $62.42. Thereafter, on March 3, 2018,
Hauser filed a “Motion for Telephonic Appearance at Hearing[,]” which was
denied a few days later. (App. Vol. 2 at 47). On March 20, 2018, Correctional
Staff filed their response, which included an affidavit by Smith and additional
exhibits. Hauser then filed a “Response to Mike Smith Affidavit.” (App. Vol.
2 at 78). Following Hauser’s response, Correctional Staff filed a second
affidavit by Smith.
[9] The trial court entered an order on April 24 denying Hauser’s claim for failing
“to meet his burden of proof[.]” (App. Vol. 2 at 6). Three days later, Hauser
filed a “Response to Second Affidavit of Mike Smith.” (App. Vol. 2 at 86).
1 In support of allowing the trial to proceed by documentary evidence, the court cited Hill v. Duckworth, 679 N.E.2d 938, 940 n. 1 (Ind. Ct. App. 1997) (noting that one of the available avenues for a prisoner, who is denied permission to attend trial, to prosecute his action is to submit “the case to the court by documentary evidence[]”).
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 4 of 9 Thereafter, on April 30, the trial court issued its April 24 order denying
Hauser’s claim. Hauser now appeals.
Decision
[10] Hauser argues that the trial court abused its discretion when it denied his
motion for telephonic hearing and erred when it concluded that he failed to
demonstrate that he is entitled to the recovery sought. We address each of his
contentions in turn.
1. Motion for Telephonic Hearing
[11] Hauser argues that the trial court abused its discretion by denying his “Motion
for Telephonic Appearance at Hearing.” (App. Vol. 2 at 47). In support of his
position, Hauser contends that he “has a right to have access to the courts in a
free, and open manner.” (Hauser’s Br. 12). Hauser is correct that he has a right
to bring a civil action. However, a prisoner, such as Hauser, does not have an
absolute right to be present at the proceeding. Niksich v. Cotton, 810 N.E.2d
1003, 1008 (Ind. 2004). We have previously held that a trial court cannot
secure the attendance of an incarcerated plaintiff at a civil action unrelated to
the case resulting in incarceration. Hill, 679 N.E.2d at 939 (citing Rogers v.
Youngblood, 78 N.E.2d 663, 665 (Ind. 1948)). Additionally, trial courts are
endowed with large administrative discretion in the conduct of their business,
and in the absence of an abuse of discretion, appellate courts will not interfere
in such matters. Rogers, 78 N.E.2d at 665. Indeed, there are different avenues
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 28 2019, 9:20 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 APPELLEE Michael S. Hauser Adam G. Forrest BBKCC ATTORNEYS Richmond, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael S. Hauser, June 28, 2019 Appellant, Court of Appeals Case No. 18A-SC-1240 v. Appeal from the Henry Circuit Court The GEO Group Inc., Lt. The Honorable David L. McCord, Storms, Sgt. Cross, Sgt. A. Judge Brown, and Sgt. H.N. Driscoll, Trial Court Cause No. Appellees. 33C03-1801-SC-35
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 1 of 9 Statement of the Case
[1] Michael Hauser (“Hauser”), an inmate in the Department of Correction
(“DOC”), filed a pro se small claims complaint in Henry Circuit Court against
The GEO Group, Inc., Lt. Storms, Sgt. Cross, Sgt. A. Brown, and Sgt. H.N.
Driscol (“Correctional Staff”) seeking the monetary value of lost property.
[2] Hauser’s appeal raises several issues, which we restate as (1) whether the trial
court abused its discretion by denying Hauser’s motion for telephonic hearing;
and (2) whether Hauser demonstrated that he is entitled to the recovery sought.
Concluding that the trial court did not abuse its discretion and that Hauser
failed to demonstrate that he is entitled to the recovery sought, we affirm the
trial court.
[3] We affirm.
Issues
1. Whether the trial court abused its discretion by denying Hauser’s motion for telephonic hearing. 2. Whether Hauser demonstrated that he is entitled to the recovery sought. Facts
[4] On February 5, 2017, Hauser received a conduct report due to a behavioral
issue and was placed in the restrictive housing unit (“RHU”) at the New Castle
Correctional Facility (“NCCF”). Before Hauser was placed in the RHU, his
property was inventoried on an “Offender Personal Property” form. (App. Vol. Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 2 of 9 2 at 32-34). On February 7, Hauser was released from restrictive housing.
Upon release, he signed a “Property Release-Inmate” form through which he
acknowledged that all of his state-issued and personal property had been
returned to him. (App. Vol. 2 at 74).
[5] On February 13, 2017, Hauser filed an “Offender Complaint” with the RHU
staff alleging the loss of property. (App. Vol. 2 at 44). Hauser claimed that he
was missing: various art supplies, batteries, substance abuse manuals, a
blanket, a radio, and clothing items. In response, Lt. Storms stated that some of
Hauser’s personal property had been “confiscated [as] altered or excessive[.]”
(App. Vol. 2 at 67). Lt. Storms also addressed the fact that many of the items
claimed missing were not on either inventory form.
[6] Approximately two weeks later, on February 22, Hauser filed a “Notice of Loss
of Property – Tort Claim” with the Legal Services Division of the DOC seeking
reimbursement of $62.42 for his lost property. (App. Vol. 2 at 45). Mike Smith
(“Smith”), the Tort Claims Administrator at the NCCF, investigated Hauser’s
claim and denied the same as unsubstantiated. In support of the denial, Smith
cited several reasons including the fact that some items: were confiscated, were
not listed on either inventory sheet, were accounted for, and lacked proof of
purchase receipts.
[7] On January 22, 2018, Hauser filed a pro se notice of claim against the
Correctional Staff regarding his lost property seeking damages in the amount of
$6,000. That same day, the court “order[ed] all parties to submit their evidence
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 3 of 9 by affidavit.”1 (App. Vol. 2 at 22) (emphasis in original). The trial court
ordered Hauser to file his evidence by the trial date of March 2 and the
Correctional Staff to file their evidence within twenty (20) days thereafter. The
court order further stated that within thirty (30) days after the trial date, Hauser
could “file any rebuttal evidence by affidavit or exhibit.” (App. Vol. 2 at 22). If
Hauser filed any rebuttal evidence, within forty (40) days after the trial date,
Correctional Staff could “file any surrebuttal evidence by affidavit or exhibit.”
(App. Vol. 2 at 23).
[8] On February 15, 2018, Hauser filed his affidavit with several exhibits attached.
He again valued his missing property at $62.42. Thereafter, on March 3, 2018,
Hauser filed a “Motion for Telephonic Appearance at Hearing[,]” which was
denied a few days later. (App. Vol. 2 at 47). On March 20, 2018, Correctional
Staff filed their response, which included an affidavit by Smith and additional
exhibits. Hauser then filed a “Response to Mike Smith Affidavit.” (App. Vol.
2 at 78). Following Hauser’s response, Correctional Staff filed a second
affidavit by Smith.
[9] The trial court entered an order on April 24 denying Hauser’s claim for failing
“to meet his burden of proof[.]” (App. Vol. 2 at 6). Three days later, Hauser
filed a “Response to Second Affidavit of Mike Smith.” (App. Vol. 2 at 86).
1 In support of allowing the trial to proceed by documentary evidence, the court cited Hill v. Duckworth, 679 N.E.2d 938, 940 n. 1 (Ind. Ct. App. 1997) (noting that one of the available avenues for a prisoner, who is denied permission to attend trial, to prosecute his action is to submit “the case to the court by documentary evidence[]”).
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 4 of 9 Thereafter, on April 30, the trial court issued its April 24 order denying
Hauser’s claim. Hauser now appeals.
Decision
[10] Hauser argues that the trial court abused its discretion when it denied his
motion for telephonic hearing and erred when it concluded that he failed to
demonstrate that he is entitled to the recovery sought. We address each of his
contentions in turn.
1. Motion for Telephonic Hearing
[11] Hauser argues that the trial court abused its discretion by denying his “Motion
for Telephonic Appearance at Hearing.” (App. Vol. 2 at 47). In support of his
position, Hauser contends that he “has a right to have access to the courts in a
free, and open manner.” (Hauser’s Br. 12). Hauser is correct that he has a right
to bring a civil action. However, a prisoner, such as Hauser, does not have an
absolute right to be present at the proceeding. Niksich v. Cotton, 810 N.E.2d
1003, 1008 (Ind. 2004). We have previously held that a trial court cannot
secure the attendance of an incarcerated plaintiff at a civil action unrelated to
the case resulting in incarceration. Hill, 679 N.E.2d at 939 (citing Rogers v.
Youngblood, 78 N.E.2d 663, 665 (Ind. 1948)). Additionally, trial courts are
endowed with large administrative discretion in the conduct of their business,
and in the absence of an abuse of discretion, appellate courts will not interfere
in such matters. Rogers, 78 N.E.2d at 665. Indeed, there are different avenues
available to the trial court by which it can proceed with the civil claim of an Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 5 of 9 incarcerated individual including: submission by documentary evidence; trial
by telephonic conference; representation by counsel; and postponement until
release from incarceration. Hill, 679 N.E.2d at 940 n. 1.
[12] Here, Hauser was afforded the opportunity to submit his claim by affidavit.
The trial court declined to order transport of Hauser for the civil proceeding and
“order[ed] all parties to submit their evidence by affidavit.” (App. Vol. 2 at 22)
(emphasis in original). Hauser complied and submitted his documentary
evidence. He later filed the motion for telephonic hearing, which was denied by
the trial court. Because the trial court has considerable discretion in selecting
how to proceed after evaluating a prisoner’s need to be present against concerns
of expense, security, logistics and docket control, we conclude that the trial
court did not abuse its discretion when it denied Hauser’s motion and ordered
all parties to submit their evidence by affidavit. See Niksich, 810 N.E.2d at 1008.
2. Sufficiency of Evidence
[13] Hauser argues that there was sufficient evidence to support his small claims
action. His argument is two-pronged. First, he argues that the trial court erred
when it did not consider his response to the “Second Affidavit of Mike Smith.”
(App. Vol. 2 at 83). Second, he argues that the trial court erred by finding that
he failed to demonstrate that he is entitled to the recovery sought.
[14] Judgments in small claims actions are “subject to review as prescribed by
relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under
Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 6 of 9 review of facts determined in a bench trial with due regard given to the
opportunity of the small claims court to assess witness credibility. Trinity
Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). This “deferential
standard of review is particularly important in small claims actions, where trials
are ‘informal, with the sole objective of dispensing speedy justice between the
parties according to the rules of substantive law.’” Id. at 1067-68 (quoting City
of Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995)).
Although the method of proof may be informal, the parties in a small claims
court bear the same burdens of proof as they would in a regular civil action on
the same issues. LTL Truck Serv. LLC v. Safeguard, Inc., 817 N.E.2d 664, 668
(Ind. Ct. App. 2004). The party who bears the burden of proof must
demonstrate that he is entitled to the recovery sought. Id. Where a small
claims case turns solely on documentary evidence, we review the judgment de
novo, just as we review summary judgment rulings and other “paper records.”
Trinity Homes, 848 N.E.2d at 1068.
[15] Hauser first argues that the trial court erred when it did not consider his
response to the “Second Affidavit of Mike Smith[.]” (App. Vol. 2 at 83). In its
order to submit evidence by affidavit, the trial court stated that within thirty
(30) days after the trial date, Hauser could “file any rebuttal evidence by
affidavit or exhibit.” (App. Vol. 2 at 22). If Hauser did file any rebuttal
evidence, within forty (40) days after the trial date, Correctional Staff could “file
any surrebuttal evidence by affidavit or exhibit.” (App. Vol. 2 at 23). Both
Hauser and Correctional Staff took such action. However, nowhere in the trial
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 7 of 9 court’s order does it provide Hauser with the opportunity to file a response to
Correctional Staff’s “surrebuttal evidence.” (App. Vol. 2 at 23). A trial court is
not obligated to allow parties repeated attempts to respond to an opposing
witness’ affidavits. See Barnett v. State, 916 N.E.2d 280, 286 (Ind. Ct. App.
2009) (holding that a small claims court has broad discretion in determining
whether to admit or exclude evidence), trans. denied. Here, the trial court gave
Hauser an opportunity to respond to a witness’ affidavit. This was consistent
with the interests of justice under the small claims rules.
[16] Hauser next contends that he did demonstrate that he is entitled to the recovery
sought. However, our review of the record reveals otherwise. Under INDIANA
CODE § 33-29-2-4, “[t]he small claims docket has jurisdiction over the
following: (1) Civil actions in which the amount sought or value of the
property sought to be recovered is not more than six thousand ($6,000).”
Moreover, under Indiana Small Claims Rule 2(B)(4), the notice of tort claim
must include “the nature and amount of the claim[.]” Thus, in order to prevail,
Hauser had to prove what he was missing and the amount of the damages.
[17] In his submission of evidence, Hauser attached several lists of property he
claimed was missing, inventory lists, and receipts. These exhibits are
inconsistent with each other. Hauser claims several items as missing that were
not listed on either his personal property inventory form upon leaving his unit
or the inventory form completed upon his entrance into the RHU. Further,
upon leaving the RHU, Hauser signed a form acknowledging the return and
receipt of all of his property. Moreover, it is noteworthy that in his submission
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 8 of 9 of evidence, Hauser claimed his lost property was worth $62.42. However, he
is requesting damages totaling $6,000. Hauser provided no explanation or
evidence reflecting his alleged lost property being valued at $6,000. It is clear
that the trial court did not err by finding that Hauser failed to demonstrate that
he is entitled to the recovery sought.
[18] Based on the foregoing, we conclude that the trial court did not abuse its
discretion and that Hauser failed to demonstrate that he is entitled to the
recovery sought. Accordingly, we affirm the trial court.
[19] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-SC-1240 | June 28, 2019 Page 9 of 9