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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: DENNIS RAY PETERSON Pendleton, Indiana

IN THE COURT OF APPEALS OF INDIANA
DENNIS RAY PETERSON, Appellant-Plaintiff, vs. DENNIS MEYER, et al., Appellees-Defendants. ) ) ) ) ) ) ) ) )

No. 77A01-0607-CV-298

APPEAL FROM THE SULLIVAN SUPERIOR COURT The Honorable Thomas E. Johnson, Judge The Honorable Ann Smith Mischler, Magistrate Cause No. 77D01-0601-CT-6

April 30, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Dennis Ray Peterson, pro se, appeals the dismissal of his complaint in which he alleged he was denied due process and subjected to cruel and unusual punishment. The defendants--Dennis Meyer, Correctional Officer Springer, Arthur Davis, one unidentified Captain and three unidentified Conduct Adjustment Board ("CAB") members--are all employed by or affiliated with the Wabash Valley Correctional Facility ("WVCF"), where Peterson was incarcerated. Because Peterson failed to exhaust the administrative remedies available through the prisoner grievance procedures, we affirm the dismissal of his complaint. 1 FACTS AND PROCEDURAL HISTORY On January 9, 2006, Peterson filed his complaint. We accept his well-pleaded facts as true. Smith v. McKee, 850 N.E.2d 471, 474 (Ind. Ct. App. 2006). In January of 2004, Dennis Meyer was the dentist at WVCF. Correctional Officer Springer was a "Screening Officer." (App. at 12.) The Conduct Adjustment Board ("CAB") was made up of three individuals whose identities are unknown. Arthur Davis was employed as a "counselor" at WVCF. (Id. at 16.) From January 5th to 7th, Peterson had a "serious painful condition." 2 (Id. at 14.) Meyer committed "unlawful negligence in failing to provide [Peterson] any treatment of a serious painful condition within a reasonable time of notification, to which resulted in

The trial court dismissed Peterson's complaint before it was served on the defendants. Therefore, there is no appellee. The Indiana Attorney General filed a notice of noninvolvement in this matter and a motion asking us to correct our docket by removing any reference to it as a party to this appeal. On April 20, 2007, we granted the State's motion and ordered the docket corrected. 2 Peterson's complaint does not further explain his serious painful condition, but because he sought treatment from a dentist, we presume Peterson had a toothache.

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Plaintiff suffering unnecessary prolonged physical pain, mental and emotional anguish, and hunger." (Id.) Peterson filed a disciplinary "grievance/complaint" against Meyer. (Id.) On January 14, 2004, in response to the Peterson's complaint, Meyer filed a false disciplinary charge against Peterson. Peterson asserts those facts support a claim of cruel and unusual punishment, because the failure to treat his condition "resulted in plaintiff suffering unnecessary prolonged physical pain, mental and emotional anguish, and hunger," (id.), and the filing of the false disciplinary charge "caused plaintiff to be fearful of a guilty finding, sanctions and placement on segregation, and mental and emotional anguish." (Id.) Then, on or about January 20, 2004, in violation of Policy 02-04-101 of the Disciplinary Code for Adult Offenders, Peterson was denied a disciplinary hearing on Case Number WVD 04-01-0106, the false conduct charge Meyer filed. Although the exact nature of each person's involvement is not described, Peterson alleges Meyer, Officer Springer, an unidentified Captain, and the three unidentified members of the CAB failed to provide him a disciplinary hearing. Because the failure to provide a hearing denied Peterson the ability to be present at the disciplinary hearing, to speak, and to present evidence in his defense, he claims all those defendants denied him due process. Peterson also alleges Officer Springer and the three members of the CAB did not provide him a copy of the findings of fact. This, he claims, violated his right to due process in a second fashion. Finally, Peterson's complaint alleges that Counselor Davis, in his official and individual capacities, while acting under color of state law, denied Peterson "a hearing
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under Indiana Department of Correction Policy 00-02-301 `the Offender Grievance Process.'" (Id. at 16.) Peterson asserts this denial was a violation of his right to due process under the Fourteenth Amendment. The day after Peterson filed his complaint in the Sullivan Superior Court, the court dismissed it in an order that provided: The Court has examined Plaintiff's Complaint in accordance with I.C. 34-58-1-1 and has determined that the claim is frivolous in that it does not have an arguable basis in the law and does not state a claim upon which relief may be granted. Specifically, the Plaintiff has failed to provide any proof to the Court that he exhausted his administrative remedies before filing this cause of action; further pursuant to Hasty v. Broglin, 531 N.E.2d 200 (Ind. 1988), the Court has no jurisdiction to review Conduct Adjustment Board hearings nor can the Court overrule the findings of the Conduct Adjustment Board. From a review of the Plaintiff's Complaint it appears the Plaintiff is requesting the Court to review his prison disciplinary hearing and determine whether any constitutional rights violations occurred and award damages accordingly. The Court does not have jurisdiction over these matters. Based on the foregoing, Plaintiff's Complaint cannot proceed and this matter is removed from the Court's active docket. (Id. at 8.) Peterson appeals. DISCUSSION AND DECISION The trial court reviewed Peterson's complaint and dismissed it pursuant to Ind. Code ch. 34-58-1, which provides a screening procedure for inmate litigation. Section One of that chapter 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." Section Two provides in pertinent part:

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(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. Ind. Code

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