MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                     Jul 17 2018, 8:39 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Keith A. Hoglund                                          Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith A. Hoglund,                                         July 17, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          17A-SC-3051
        v.                                                Appeal from the LaPorte Superior
                                                          Court
Robert E. Carter, Jr.,                                    The Honorable Nancy L.
Commissioner of the Indiana                               Gettinger, Magistrate
Department of Correction,                                 Trial Court Cause No.
Appellee-Defendant.                                       46D04-1707-SC-1424




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018                     Page 1 of 7
                                           Case Summary
[1]   Following a trial by affidavit, Keith A. Hoglund (“Hoglund”) appeals, pro se,

      the small claims court order denying his claim in replevin. The sole issue on

      appeal is whether the small claims court clearly erred.


[2]   We affirm.



                            Facts and Procedural History
[3]   Hogland is serving a fifty-year sentence in the Indiana Department of

      Correction (“DOC”). On May 1, 2017, he was housed at the Indiana State

      Prison. On that date, employees of the DOC confiscated a guitar, a guitar case,

      a tuner, guitar strings, a capo, cleaner for the guitar, buffing rags, and guitar

      picks from Hoglund’s cell. The DOC gave Hoglund State Form 36030, entitled

      “Notice of Confiscated Property,” which noted the items confiscated, the

      reason for confiscation, and the right to appeal through the “Offender

      Grievance Process.” Appellant’s App. at 51. The items were confiscated

      pursuant to a 2016 change in DOC Operation Procedures for Policy No. 02-01-

      101. This policy change, effective April 1, 2016, stated in relevant part:


              MUSICAL INSTRUMENTS:


              Note: Musical instruments will no longer be approved to be kept
              within individual cells. If you wish to donate your instrument to
              Recreation for use within Recreations Musical Program or within
              the Chapel for use in the Choir, those may be possibilities, if
              space is available. Otherwise, all musical instruments will be

      Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018   Page 2 of 7
               removed from ISP. Personal instruments will not stored [sic] in
               any location at ISP/ISO.


      Id. at 53. The new policy allowed an inmate whose instrument was confiscated

      to either send the instrument to a person outside of the prison or to donate the

      instrument to the DOC for internal use.


[4]   In an undated notice,1 the DOC informed Hoglund that, as of June 1, 2017, his

      confiscated property had been in storage at the DOC for thirty days, and that he

      had thirty days left to send out or mail his property to someone else or the

      property would be destroyed. Id. at 52. On July 10, 2017, Hoglund filed his

      pro se notice of small claim against the Commissioner of the DOC, contending

      the DOC wrongly confiscated his personal property and seeking a return of the

      property or a reimbursement for its monetary value. Id. at 9, 10.


[5]   In an order dated August 30, the small claims court set the matter for trial by

      affidavit.2 The parties each filed affidavits with the court. Hoglund’s affidavit

      referred to “Claimant’s Designation of Evidence (Attachment[s 1-5]),” but no

      such document or attachments are contained in the record. Id. at 37-41. The

      DOC affidavit was executed by Pam James, a DOC tort claims investigator,

      and it included several exhibits, including the DOC “Master Property List” of




      1
        Hoglund stated in his “Affidavit of Events in Support of Evidence” (filed in the small claims court), that he
      received the undated notice on June 7, 2017. Appellant’s App. at 38.
      2
        In support of allowing prosecution of the trial by documentary evidence, the court cited Hill v. Duckworth,
      679 N.E.2d 938, 940 n.1 (Ind. Ct. App. 1997) (noting prisoners may prosecute their actions in small claims
      court “by submitting the case to the court by documentary evidence”). Appellant’s App. at 25.

      Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018                       Page 3 of 7
      all personal property permitted in adult male facilities. Id. at 51-52, 55-56. The

      master list did not include musical instruments or musical accessories. Id.


[6]   The small claims court issued its Findings and Order on December 13, 2017. In

      ruling for the DOC and against Hoglund, the trial court found the property was

      lawfully confiscated pursuant to the new DOC policy. It further found that

      Hoglund


              has lost the use of his guitar while incarcerated, but he still owns
              the property that was confiscated. He has been given the
              opportunity to send the guitar and the other items that were
              removed from him to a location outside the facility or to donate
              the items.


      Id. at 61. This appeal ensued.



                                 Discussion and Decision
[7]   Hoglund contends that the small claims court erred in denying and dismissing

      his claim. On appeal, we will not set aside the entry of judgment after a small

      claims bench trial unless it is clearly erroneous. Ind. Small Claims Rule 11(A);

      Ind. Trial Rule 52(A). “However, where the judgment ‘turns solely on

      documentary evidence,’ we review the judgment ‘de novo,’ as we do with

      summary judgment and other cases involving paper records.” Yisrayl v. Reed, 98

      N.E.3d 644, 646 (Ind. Ct. App. 2018) (quoting Eagle Aircraft, Inc. v. Trojnar, 983

      N.E.2d 648, 657 (Ind. Ct. App. 2013)), trans. pending. We consider only those

      materials designated to the trial court. Id.


      Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018   Page 4 of 7
[8]   Hoglund’s case is an action for replevin.3 See Ind. Code § 32-35-2-1. To

      recover, Hoglund must prove that he had legal title or a right to possession of

      the confiscated property and that the property was “wrongfully taken or

      unlawfully detained.” Id. The parties do not dispute that Hogland was the

      lawful owner of the confiscated guitar and guitar accessories. However,

      Hoglund’s claim fails on the other factors; i.e., he failed to show that the

      property was wrongfully taken or unlawfully detained.


[9]   Our legislature has conferred upon the DOC authority to determine what

      property an offender may possess. I.C. § 11-11-2-2.4 This court recently

      addressed that statutory authority in Yisrayl v. Reed:


                 When a prison notifies an offender of what items (s)he may
                 possess, all other property that is not contraband becomes
                 “prohibited property.” [I.C. § 11-11-2-2]. “Contraband” is
                 “property the possession of which is in violation of an Indiana or
                 federal statute”; and “[p]rohibited property” is “property other




      3
         Although Hoglund refers for the first time in his reply brief to a “contract,” an “agreement” and “special
      permission” from the Superintendent’s designee, he provides no citation to the record to support the
      existence of any such contract or agreement nor does he develop any argument under a contract theory;
      therefore, he waives any such claim. Ind. Appellate Rule 46(A)(8); see also Foster v. Adoption of Federspiel, 560
      N.E.2d 691, 692 (Ind. Ct. App. 1990) (noting that pro se litigants are held to the same established rules of
      procedure that trained legal counsel are bound to follow). Moreover, claims may not be raised for the first
      time in a reply brief. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (citation
      omitted) (“The law is well settled that grounds for error may only be framed in an appellant’s initial brief and
      if addressed for the first time in the reply brief, they are waived.”).
      4
          I.C. § 11-11-2-2 states:

      The department shall determine what type of property other than contraband a confined person may not
      possess and shall inform him of that classification. In carrying out this section, the department may inform a
      confined person of the type or items of property he is permitted to possess, in which event all other property
      not contraband is prohibited property. Property that a confined person is otherwise permitted to possess may
      become prohibited property due to the means by which it is possessed or used.

      Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018                         Page 5 of 7
                than contraband that the [DOC] does not permit a confined
                person to possess ....” Id. “The [DOC] may conduct reasonable
                searches of its facilities and persons confined in them and may
                seize contraband or prohibited property.” I.C. § 11–11–2–3(a).
                When it seizes an offender’s property, the DOC “shall give ...
                written notice of the seizure” including the date of seizure,
                identity of the seizing party, grounds for seizure, and the
                procedure for challenging the seizure. I.C. § 11–11–2–4.


       98 N.E.3d at 646-47.


[10]   Here, the DOC determined in DOC Operation Procedures for Policy No. 02-

       01-101 that, effective April 1, 2016, musical instruments were prohibited

       property; i.e., they were no longer contained on the DOC master list of items a

       prisoner may possess. Appellant’s App. at 55-56. Thus, effective Apri1 1,

       2016, Hoglund’s guitar and accessories became “prohibited property” that the

       DOC could lawfully confiscate. I.C. § 11-11-2-2. The DOC informed Hoglund

       of this policy, lawfully took his guitar pursuant to that policy, and provided him

       with notice of what property was seized, why it was seized, and the procedure

       for challenging that seizure. Appellant’s App. at 51. Hoglund has failed to

       show that the DOC wrongfully took or unlawfully detained his confiscated

       property.5 I.C. § 32-35-2-1. Therefore, the trial court did not err in denying his

       claim for replevin.




       5
         Several times in his initial and reply briefs, Hoglund refers vaguely to his rights “under the Constitution.”
       Appellant’s Br. at 7, 8; Appellant’s Reply Br. at 6. To the extent Hoglund raises a constitutional challenge,
       he has waived it by failing to cite the source of his alleged constitutional right, and by failing to provide
       cogent argument—or any analysis at all—regarding the alleged constitutional right. App. R. 46(A)(8).

       Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018                        Page 6 of 7
[11]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-SC-3051 | July 17, 2018   Page 7 of 7
