Preview:

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.

FILED
Jun 12 2012, 9:09 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: ERIC D. SMITH Carlisle, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELIZABETH ROGERS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ERIC D. SMITH, Appellant-Defendant, vs. STEVE EULER, MELVIN BROOKS, MARTY SEXTON, and JASON JACOB, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

No. 46A03-1110-CT-493

APPEAL FROM THE LAPORTE SUPERIOR COURT The Honorable Richard Stalbrink, Judge Cause No. 46D03-1001-CT-21

June 12, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Veteran pro se litigant Eric D. Smith, an inmate at Wabash Valley Correctional Facility when this appeal was filed, appeals the trial court's denial of his motion for relief from judgment pursuant to Ind. Trial Rule 60 (B)(8). We affirm and remand with instructions. This is the third appellate iteration of an action that started with a complaint Smith filed in 2005. Perhaps we should begin there. The underlying facts were summarized in the first appeal, decided in 2007, which resulted in a decision adverse to Smith. Those facts are as follows: On September 13, 2005, Smith filed a complaint against the DOC, alleging that on February 23, 2005, Euler completed an unwarranted conduct report against Smith for abuse of mail to cause Smith harm and to retaliate against him for the multiple grievances and tort claims he had filed in the past. Smith alleged that the abuse of mail regulation was unconstitutionally vague and denied him due process and that the DOC failed to provide him with an impartial hearing on the allegation. Additionally, Smith alleged that on March 1, 2005, he was beaten by Sexton, Jacob, and Brooks [officers at the Westville Control Unit correctional facility where Smith was imprisoned at the time] and suffered injuries as a result of the beating. The complaint includes claims for conspiracy to retaliate against him, failure to protect him, use of excessive force, and failure to provide proper medical treatment. On September 13, 2005, Smith filed a motion for the appointment of counsel. Over the subsequent months, he filed a copious number of motions covering many different topics, only a small number of which are relevant to this appeal. On November 9, 2005, the DOC filed a motion for partial judgment on the pleadings. On January 1, 2006, Smith renewed his motion for the appointment of counsel. On April 20, 2006, he sought leave to file an amended complaint. On June 5, 2006, Smith filed another motion for the appointment of counsel. The trial court denied Smith's motion to amend his complaint on September 25, 2006. On April 5, 2007, the trial court entered summary judgment in favor of the DOC on Smith's complaint and found Smith's request for an attorney to be moot, noting that, in any event, he was not entitled to the appointment of counsel. Smith v. Ind. Dept. of Corr., No. 49A02-0705-CV-430, slip op. at 1 (Ind. Ct. App. Dec. 26,
2

2007), trans. denied (henceforth, CV-430). In that case, we affirmed a summary judgment ruling against him on the original complaint, as well as the denial of his motion to amend his complaint. With respect to the former, we determined: (1) Smith's allegations concerning the abuse of mail regulations and the DOC's treatment of the conduct report constituted disciplinary actions of the DOC and were therefore not subject to judicial review; (2) Smith's allegations of negligence or other tort claims against employees of the DOC were precluded by the Indiana Tort Claims Act because government employees acting within the scope of their employment are immune from liability; and (3) Smith's allegations that the DOC's regulations violated article 1, sections 9, 11, 12, 15, 16, and 23 of the Indiana Constitution were waived because they were undeveloped or unsupported. As to the denial of the motion to amend, Smith failed to argue that his federal claims were meritorious or that the clarifications and added defendants corrected the deficiencies in the complaint and therefore the amendment would have been futile. Round two commenced with Smith filing a motion for relief from judgment pursuant to Indiana Trial Rule 60(B) and a motion to amend his complaint. Smith sought thereby to set aside the summary judgment order that was the subject of the aforementioned unsuccessful appeal and to commence a new action premised upon an amended version of the original complaint. The trial court denied Smith's motion for relief from judgment. Having apparently missed the deadline to appeal that ruling, Smith sought permission to file a belated appeal, which the trial court granted. Smith filed the belated appeal on June 11, 2009 (No. 49A04-0901-CV-40) (henceforth, CV-40). This court dismissed CV-40 on July 13, 2009, upon our conclusion that the trial court did not have authority to grant Smith's motion to file
3

a belated appeal and therefore that we did not have jurisdiction over the appeal. The present iteration

Download Eric D. Smith v. Steve Euler, Melvin Brooks, Marty Sexton, and Jason Jacob.pdf

Indiana Law