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
