                                                                                      FILED
                                                                              Jul 31 2019, 10:24 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      APPELLANT PRO SE                                            ATTORNEYS FOR APPELLEE
      Kevin L. Martin                                             Curtis T. Hill, Jr.
      Carlisle, Indiana                                           Attorney General of Indiana

                                                                  Monika Prekopa Talbot
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Kevin L. Martin,                                            July 31, 2019
      Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                                  19A-PL-550
              v.                                                  Appeal from the Sullivan Superior
                                                                  Court
      Richard Brown, et al.,                                      The Honorable Hugh R. Hunt,
      Appellee-Defendant                                          Judge
                                                                  Trial Court Cause No.
                                                                  77D01-1811-PL-658



      May, Judge.




[1]   Kevin L. Martin appeals the trial court’s grant of a motion for judgment on the

      pleadings and dismissal of Martin’s complaint against Richard Brown, B.




      Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019                                    Page 1 of 8
      Hinton, J. Meek, and Makenzy Gilbert (collectively, “Defendants”). 1 We

      affirm.



                              Facts and Procedural History
[2]   Martin is an inmate at the Wabash Valley Correctional Facility (“WVCF”).

      On November 29, 2018, Martin filed a complaint against Defendants: Brown,

      who is Warden of the WVCF; B. Hinton, who is supervisor of WVCF law

      library; J. Meek, who is a caseworker at WVCF; and Makenzy Gilbert, who is

      mailroom supervisor at WVCF. Martin’s complaint alleged violations of 42

      U.S.C. § 1983 and of his rights under the First and Fourteenth Amendments of

      the United States Constitution stemming from an alleged incident involving the

      delivery of Martin’s legal mail.


[3]   Defendants timely answered Martin’s complaint and, on January 7, 2019,

      Martin moved to file an amended complaint. On January 11, 2019, the trial

      court issued an order stating it “was unable to ascertain the basis for said

      motion” and Martin had “twenty (20) days from the date here [sic] herein to

      state in a plain concise manner the necessity or reason for the request for leave

      to amend his complaint.” (Appellees’ App. at 39.) Martin did not respond to




      1
        While Martin names only Brown on appeal, and the State argues as if the complaint was filed against
      Brown alone, our review of the record leads us to conclude the complaint was filed against four defendants
      and dismissed as to all four defendants. Because a party at trial is also a party on appeal, we will reference all
      four defendants collectively in our opinion. See Ind. Appellate Rule 17(A) (“party of record in the trial court
      or Administrative Agency shall be a party on appeal”).

      Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019                                      Page 2 of 8
      the trial court’s order. Instead, Martin filed an amended complaint without the

      trial court’s leave on January 17, 2019. On January 31, 2019, the trial court

      issued an order striking Martin’s amended complaint.


[4]   On February 20, 2019, Martin filed a motion for an order compelling discovery.

      The next day, Defendants filed a motion for judgment on the pleadings, arguing

      Martin failed to state a claim for which relief could be granted under 42 U.S.C.

      § 1983. On February 21, 2019, the trial court granted Defendants’ motion for

      judgment on the pleadings and dismissed Martin’s complaint with prejudice,

      stating:


              The face of the Complaint makes it clear that there are no
              circumstances upon which relief could be granted. Plaintiff has
              not plead [sic] any actual harm related to his claim of First
              Amendment denial of access to the Courts, nor has he plead [sic]
              any facts in support of his claims of a due process violation of the
              Fourteenth Amendment.


      (Id. at 84.)


                                  Discussion and Decision
[5]   At the onset, we note Martin appeared before the trial court and in this appeal

      as a pro se litigant. It is well settled that pro se litigants are held to the same

      standards as licensed attorneys, and thus they are required to follow procedural

      rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.


[6]   Martin has filed several pro se appeals before this court. In all of those appeals,

      Martin’s failure to follow the Indiana Rules of Appellate Procedure has led to
      Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019                Page 3 of 8
      either dismissal of his appeal or affirmation of the trial court’s order dismissing

      his complaint. See Martin v. Gilbert, et al., 18A-CT-2095, 2019 WL 2363327

      (Ind. Ct. App. June 5, 2019) (affirmed dismissal of complaint based on

      violations of Indiana Rules of Appellate Procedure), trans. pending; Martin v.

      Brown, et al., 18A-CT-2940, 2019 WL 1217796, 123 N.E.3d 712 (Table) (Ind.

      Ct. App. March 15, 2019) (affirmed dismissal of complaint based on violations

      of Indiana Rules of Appellate Procedure), trans. denied; and Martin v. Howe, et

      al., 18A-CT-680, 2018 WL 5956300, 113 N.E.3d 813 (Table) (Ind. Ct. App.

      November 14, 2018) (dismissal of appeal based, in part, on Martin’s failure to

      make a cogent argument), trans. denied. We are unable to consider Martin’s

      current appeal for similar reasons.


[7]   Martin’s most egregious violations of the Indiana Rules of Appellate Procedure

      in this appeal are of Indiana Appellate Rules 46 and 50. Indiana Appellate

      Rule 46(A)(8)(a)-(b), requires, in relevant part:


              (8) Argument. This section shall contain the appellant's
              contentions why the trial court or Administrative Agency
              committed reversible error.


                       (a) The argument must contain the contentions of the
                       appellant on the issues presented, supported by cogent reasoning.
                       Each contention must be supported by citations
                       to the authorities, statutes, and the Appendix or parts of
                       the Record on Appeal relied on, in accordance with Rule
                       22.


                       (b) The argument must include for each issue a concise statement
                       of the applicable standard of review; this
      Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019           Page 4 of 8
                       statement may appear in the discussion of each issue or
                       under a separate heading placed before the discussion of
                       the issues. In addition, the argument must include a brief
                       statement of the procedural and substantive facts necessary
                       for consideration of the issues presented on appeal,
                       including a statement of how the issues relevant to the
                       appeal were raised and resolved by any Administrative
                       Agency or trial court.


      Failure to present a cogent argument results in waiver of the issue on appeal.

      Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999). Herein, it is

      extremely difficult, as it evidently was at the trial court level, to ascertain

      Martin’s argument and, thus, we are unable to address it. See id. (waiving

      argument for lack of cogent argument). In addition, Martin’s failure to include

      a “Statement of Case” or a “Statement of Facts” as required by Indiana

      Appellate Rules 46(A)(5) and (6), respectively, has impeded our ability to

      discern the circumstances underlying his complaint against Defendants.


[8]   Indiana Appellate Rule 50(A)(2) requires the appellant provide certain parts of the

      record in his appendix:


              The appellant’s Appendix shall contain a table of contents and
              copies of the following documents, if they exist:


              (a) the chronological case summary for the trial court or
              Administrative Agency;


              (b) the appealed judgment or order, including any written
              opinion, memorandum of decision, or findings of fact and
              conclusions thereon relating to the issues raised on appeal;


      Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019              Page 5 of 8
        (c) the jury verdict;


        (d) [Deleted, eff. January 1, 2011]


        (e) any instruction not included in appellant’s brief under Rule
        46(A)(8)(e), when error is predicated on the giving or refusing of
        the instruction;


        (f) pleadings and other documents from the Clerk's Record in
        chronological order that are necessary for resolution of the issues
        raised on appeal;


        (g) any other short excerpts from the Record on Appeal, in
        chronological order, such as essential portions of a contract or
        pertinent pictures, that are important to a consideration of the
        issues raised on appeal;


        (h) any record material relied on in the brief unless the material is
        already included in the Transcript;


        (i) a verification of accuracy by the attorney or unrepresented
        party filing the Appendix. The following is an acceptable
        verification:


        “I verify under penalties of perjury that the documents in this
        Appendix are accurate copies of parts of the Record on Appeal.”


Martin’s appendix excludes the chronological case summary, the appealed

order, a copy of his complaint, and all documents filed by Defendants at the

trial court level. Thus, Martin violated parts (a), (b), (f), (g), and (i) of

Appellate Rule 50(A)(2). While failure to file an adequate appendix does not

necessarily
Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019                Page 6 of 8
      result in waiver of an issue, Appellate Rule 49(B), Martin’s failure to provide a

      complete and accurate appendix from which we are able to discern the trial

      court proceedings hindered our review of his appeal. 2


[9]   While we note Martin’s failure to comply with the Indiana Rules of Appellate

      Procedure does not necessarily result in waiver of his claim, 3 such waiver is

      appropriate when, as here, the violation of those rules substantially impedes our

      ability to determine and review the issues alleged. See In re Moeder, 27 N.E.3d

      1089, 1097 n.4 (Ind. Ct. App. 2015) (waiving claims on appeal when violations

      of Appellate Rules impeded ability to review), trans. denied. Accordingly, we

      affirm the trial court’s order granting Defendants’ motion for judgment on the

      pleadings and dismissing Martin’s complaint with prejudice.




      2
        The State filed an appendix to supplement Martin’s appendix. However, neither party provided a copy of
      the chronological case summary and, thus, the dates cited in this opinion are based on the file stamps on the
      documents provided.
      3
        As we did in a recent opinion in another case concerning Martin, we note the judiciary’s commitment to
      open access of courts to all litigants, as is evidenced in a recent amendment to Indiana Code of Judicial
      Conduct Rule 2.2 (May 16, 2019), which states, in relevant part: “A judge shall uphold and apply the law
      and shall perform all duties of judicial office fairly and impartially. A judge may make reasonable efforts,
      consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented
      litigants, to be heard.” A Comment to that Rule explains:
               [5] A judge’s responsibility to promote access to justice, especially in cases involving self-
               represented litigants, may warrant the exercise of discretion by using techniques that
               enhance the process of reaching a fair determination in the case. Although the
               appropriate scope of such discretion and how it is exercised will vary with the
               circumstances of each case, a judge’s exercise of such discretion will not generally raise a
               reasonable question about the judge’s impartiality. Reasonable steps that a judge may
               take, but in no way is required to take, include:
                        (a) Construe pleadings to facilitate consideration of issues raised.
      Unfortunately, as indicated supra, the deficiencies in Martin’s brief and the record before us are so severe that
      we are unable to discern the issues Martin is attempting to raise on appeal.

      Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019                                          Page 7 of 8
                                                 Conclusion
[10]   We are unable to address Martin’s arguments regarding the trial court’s grant of

       Defendants’ motion for judgment on the pleadings and dismissal of Martin’s

       complaint with prejudice because he has failed to comply with several Rules of

       Appellate Procedure. Accordingly, we affirm the decision of the trial court.


[11]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-550 | July 31, 2019        Page 8 of 8
