                                                                                 FILED
MEMORANDUM DECISION                                                         Mar 23 2016, 6:26 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D),                                          Court of Appeals
                                                                                  and Tax Court
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                                         ATTORNEYS FOR APPELLEE
Steven Robbins                                           Gregory F. Zoeller
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Robbins,                                          March 23, 2016
Appellant-Plaintiff,                                     Court of Appeals Cause No.
                                                         46A03-1503-CT-119
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
Indiana Department of                                    The Honorable Thomas Alevizos,
Correction, et al.,                                      Judge
Appellees-Defendants.                                    Trial Court Cause No.
                                                         46C01-1402-CT-200



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 46A03-1503-CT-119 | March 23, 2016                 Page 1 of 6
                                             Case Summary
[1]   Steven Robbins appeals the trial court’s grant of summary judgment in favor of

      the Indiana Department of Correction (“DOC”). We affirm.


                                                     Issue
[2]   The sole issue we address is whether Robbins has presented any cogent

      argument that the grant of summary judgment should be reversed.


                                                     Facts
[3]   On February 7, 2014, Robbins, an inmate at Indiana State Prison in Michigan

      City, filed a lawsuit against the DOC, the State Prison, and two DOC officers.

      In the complaint, Robbins alleged that on January 31, 2013, he was placed in a

      segregation unit for thirty days after he failed to provide information regarding

      the whereabouts of his son, who had been mistakenly released from an Illinois

      jail. Robbins contends he suffered extreme mental suffering and physical pain

      while in segregation; he also claims that his personal property worth $600 was

      missing when he was released from segregation.


[4]   The trial court construed Robbins’s complaint as stating state law tort claims for

      personal injury and property loss, as well as an Eighth Amendment claim for

      cruel and unusual punishment. On June 5, 2014, the trial court dismissed the

      claims against the officers because they had been defendants in an earlier suit by

      Robbins that had been dismissed, thus making those claims res judicata. The

      trial court also dismissed the State Prison, finding it was not a separate entity

      from the DOC. The cause of action was allowed to proceed against the DOC.
      Court of Appeals of Indiana | Memorandum Decision 46A03-1503-CT-119 | March 23, 2016   Page 2 of 6
[5]   The DOC then moved for summary judgment. It made three arguments in

      support of summary judgment: that Robbins failed to file a Tort Claim Notice

      as required by the Indiana Tort Claims Act (“ITCA”), Indiana Code Chapter

      34-13-3; that Robbins failed to exhaust administrative remedies within the DOC

      before filing suit; and that, for purposes of the Eighth Amendment claim, the

      DOC is not considered a “person” who can be sued under 42 U.S.C. § 1983 for

      civil rights violations. On February 27, 2015, the trial court granted summary

      judgment on all three grounds the DOC raised. Robbins now appeals pro se.


                                                  Analysis
[6]   When we review a grant or denial of summary judgment, we review the case in

      the same manner as the trial court. Sargent v. State, 27 N.E.3d 729, 731 (Ind.

      2015). The summary judgment movant must make a prima facie showing that

      there are no genuine issues of material fact and that it is entitled to judgment as

      a matter of law. Id. If the movant meets this burden, the nonmovant must

      come forward with evidence demonstrating the existence of a genuine issue of

      material fact. Id. We also note that a trial court’s summary judgment ruling

      enjoys a presumption of validity and the appellant must persuade us that its

      decision was erroneous. Wells Fargo Bank, N.A. v. Rieth-Riley Const. Co., 38

      N.E.3d 666, 670 (Ind. Ct. App. 2015). We have described this burden as

      “largely symbolic and nominal.” Beta Steel v. Rust, 830 N.E.2d 62, 68 (Ind. Ct.

      App. 2005). Still, an appellant must make some effort to convince us that a trial

      court’s summary judgment ruling was legally untenable.



      Court of Appeals of Indiana | Memorandum Decision 46A03-1503-CT-119 | March 23, 2016   Page 3 of 6
[7]   We note that a pro se appellant must follow the same rules of procedure as a

      trained attorney and, therefore, must be prepared to accept the consequences of

      his or her actions. Ramsey v. Review Bd. of Indiana Dep’t of Workforce Dev., 789

      N.E.2d 486, 487 (Ind. Ct. App. 2003). Although we attempt to decide cases on

      the merits whenever possible, we will deem alleged errors waived on appeal if

      noncompliance with the rules of appellate procedure is so substantial that it

      impedes our consideration of the case. Id. In particular, Indiana Appellate

      Rule 46, governing the content of briefs, is intended to aid and expedite review

      on appeal and to relieve us of the burden of searching the record and briefing

      the case. Id. We will not advocate on behalf of a party, and we will not address

      arguments that are inappropriate or too poorly developed or improperly

      expressed to be understood. Id. (quoting Terpstra v. Farmers and Merchants Bank,

      483 N.E.2d 749, 754 (Ind. Ct. App. 1985), trans. denied). If a pro se appellant

      fails to make a cogent argument on appeal, we will find the issue or issues

      raised to be waived. See Jackson v. State, 992 N.E.2d 926, 933 (Ind. Ct. App.

      2013), trans. denied.


[8]   Here, the trial court granted the DOC summary judgment for three distinct

      reasons. First, the trial court agreed that Robbins failed to provide timely notice

      of his state law tort claims as required by ITCA. See Cantrell v. Morris, 849

      N.E.2d 488, 495 (Ind. 2006); see also Ind. Code § 34-13-3-6(a) (providing that

      tort suits against state agencies are barred unless notice of a claim is filed within

      270 days after a loss occurs). Second, the trial court stated that Robbins failed

      to exhaust administrative remedies with the DOC. See Higgason v. Lemmon, 818

      Court of Appeals of Indiana | Memorandum Decision 46A03-1503-CT-119 | March 23, 2016   Page 4 of 6
      N.E.2d 500, 504 (Ind. Ct. App. 2004) (holding prisoner must exhaust

      administrative grievance procedures within the DOC before filing civil rights

      lawsuit related to incarceration), trans. denied. Third, with respect to the Eighth

      Amendment claim, the trial court agreed that the DOC is not a “person”

      amenable to suit for federal civil rights violations under 42 U.S.C. § 1983. 1 See

      Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312

      (1989) (holding that state agencies and state officials acting in their official

      capacities are not “persons” who can be sued under § 1983).


[9]   Robbins provides no argument as to why the trial court erred on any of these

      points. His brief references general standards regarding exhaustion of

      administrative remedies. However, following this, Robbins makes no argument

      that he actually exhausted his remedies or that he may invoke an exception to

      the exhaustion requirement. Rather, his argument focuses solely upon the

      merits of his claim that he was illegally retaliated against by DOC officials with

      respect to the loss of his personal property. Furthermore, Robbins’s brief makes

      absolutely no mention of or any attempt to analyze ITCA notice requirements

      or the fact that the DOC is not a “person” for purposes of Section 1983

      lawsuits. In order for us to reverse the grant of summary judgment in the

      DOC’s favor, we would have to craft arguments on behalf of Robbins out of




      1
        ITCA’s notice provisions do not apply to Section 1983 claims. Irwin Mortgage Corp. v. Marion Cty. Treasurer,
      816 N.E.2d 439, 447 (Ind. Ct. App. 2004). However, Robbins was required to ex haust administrative
      remedies before filing a Section 1983 lawsuit. See Higgason v. Stogsdill, 818 N.E.2d 486, 490 (Ind. Ct. App.
      2004), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1503-CT-119 | March 23, 2016               Page 5 of 6
       whole cloth. This would require us to abdicate our role as a neutral

       decisionmaker, and we will not do so. Robbins’s highly-deficient brief

       substantially impedes our ability to reach the merits of the case. This is a rare,

       but not unheard of, instance in which we find the entirety of an appellant’s

       claims to be waived for lack of cogent argument. See Ramsey, 789 N.E.2d at

       490 (finding all of appellant’s arguments to be waived for deficiencies in brief).


                                                 Conclusion
[10]   Because Robbins has waived any and all claims of error with respect to the trial

       court’s grant of summary judgment in the DOC’s favor, we affirm that ruling.


[11]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1503-CT-119 | March 23, 2016   Page 6 of 6
