                                                                     Dec 09 2015, 6:53 am




APPELLANTS PRO SE                                     ATTORNEYS FOR APPELLEES
Chuck W. Adams                                        Attorneys for ArvinMeritor, Inc., et al.
Pendleton, Indiana                                    Brian L. McDermott
                                                      Christopher C. Murray
Charles E. Howard                                     Ebony A. Reid
Morgantown, Indiana                                   Ogletree Deakins Nash Smoak & Stewart
                                                      P.C.
                                                      Indianapolis, Indiana
                                                      Attorneys for State of Indiana
Attorneys for Amici Curiae, Michael                   Gregory F. Zoeller
Kincade, Antonio Collier, and David                   Attorney General of Indiana
Marzini                                               Frances Barrow
Robert S. Rifkin                                      Deputy Attorney General
Clinton E. Blanck                                     Indianapolis, Indiana
Maurer Rifkin & Hill, P.C.
                                                      Attorneys for Corizon, Inc., et al.
Carmel, Indiana
                                                      Rachel A. East
                                                      Bleeke Dillon Crandall
                                                      Indianapolis, Indiana



                                              IN THE
       COURT OF APPEALS OF INDIANA

Chuck W. Adams, Charles E.                            December 9, 2015
Howard, et al.,                                       Court of Appeals Case No.
Appellants-Plaintiffs,                                49A02-1406-PL-465
                                                      Appeal from the Marion Superior Court
        v.
                                                      The Honorable James B. Osborn, Judge
                                                      Trial Court Cause No.
ArvinMeritor, Inc., et al.,                           49D14-1206-PL-25688
Appellees-Defendants




Robb, Judge.


Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                  Page 1 of 30
                                Case Summary and Issues
[1]   Chuck Adams and Charles Howard are inmates at the Indiana Department of

      Correction (“DOC”) Correctional Industrial Facility (“CIF”) in Madison

      County. Both Adams and Howard participate in an offender work program at

      CIF operated by Meritor. In a single complaint, Adams raised two legally

      independent but factually related claims: 1) a claim for unpaid wages against

      the Meritor and certain State defendants1 joined by Chuck Howard and all

      ArvinMeritor-Meritor-PEN Brake Shop Employees similarly situated, and 2) an

      individual personal injury claim against the Medical and additional State

      (“State-CIF”) defendants arising from injuries Adams allegedly sustained on the

      job.2 The trial court granted the Meritor and State defendants’ Trial Rule

      12(B)(6) motions to dismiss the wage claim, which alleged there is no private

      right of action to sue for such wages. The trial court granted summary

      judgment to the Medical and State-CIF defendants on the personal injury claim

      on the basis of Adams’s failure to exhaust his administrative remedies.




      1
       The named “Meritor defendants” consist of ArvinMeritor, Inc.; Meritor, Inc.; Meritor Heavy Equipment
      Systems, LLC; Joseph L. Mejaly; Catherine Auckland; Vernon Baker; ArvinMeritor; ArvinMeritor Brake
      Shop/Meritor Brake Shop; Dwight Treen; Jon Fowler; and Matt Durham. See Appellants’ Appendix at 32.
      The named “State defendants” relevant to the wage claim are Edwin G. Buss; Bruce Lemmon; Indiana
      Department of Correction; PEN Products; Mike Herron; Doug Evans; Becky Deeb; Dawn Morgan; Mark
      Spratt; Gregory F. Zoeller; Christopher A. Ruhl; Mark E. Everson; and the State of Indiana. See id.
      2
       The named “Medical defendants” are Corizon, Inc. (formerly known as Correctional Medical Services);
      Kathleen Coffman, L.P.N.; Joyce Baker, R.N.; and Diane Elrod, M.D. See id.
      The additional named “State-CIF defendants” as to the personal injury claim consist of Correctional
      Industrial Facility; Donna Caneygee; Melanie Guffey; and Mike Raines. See id.

      Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                     Page 2 of 30
[2]   Adams raises several issues on appeal, of which we address three: 1) whether a

      private right of action is available to enforce Indiana Code Title 11;3 2) whether

      Adams was required to exhaust administrative remedies before bringing a

      personal injury action; and 3) whether Adams had a right to participate in a

      hearing on a number of motions.4 We conclude Adams did have a private right

      of action to pursue his wage claim and therefore the trial court erred in granting

      the Meritor and State defendants’ motions to dismiss as to that claim. We

      further conclude Adams had an available administrative remedy as to his

      personal injury claim but failed to pursue it to completion and therefore the trial

      court properly granted summary judgment to the Medical and State-CIF

      defendants. Finally, we conclude Adams was allowed to participate in the

      hearing through the submission of documentary evidence and the trial court did




      3
        Adams phrases this issue as whether there is a private right of action to enforce the provisions of Title 11
      and/or Article 1, Section 21 of the Indiana Constitution. See Corrected Appellants’ Brief at 17. Although
      Adams references Article 1, Section 21 in his summary of argument and in his point headings, he has
      engaged in no independent analysis regarding that constitutional provision and we therefore decline to
      address it. See Ind. Appellate Rule 46(A)(8)(a) (stating each argument must be supported by cogent reasoning
      and citations to the authorities relied on); Hines v. State, 981 N.E.2d 150, 154 n.2 (Ind. Ct. App. 2013) (failure
      to develop an independent argument regarding state constitutional rights results in waiver of that claim).
      4
        The remaining issues Adams raises are whether the plaintiffs had a right to the appointment of counsel due
      to their indigency and “whether it was fundamental constitutional error” for the trial court to dismiss some of
      the claims and to grant summary judgment as to others. Corrected Appellants’ Brief at 2-3.
      Indiana Code section 34-10-1-2(b) states that if a court is satisfied that a person does not have sufficient
      means, it shall allow the person to prosecute an action as an indigent person and “may, under exceptional
      circumstances, assign an attorney” to prosecute the case. (Emphasis added.) The trial court did admit Adams
      to prosecute this action as an indigent person. However, Adams makes no argument that there are
      exceptional circumstances in this case warranting appointment of counsel, and he has therefore waived any
      claim of error for failure to appoint counsel. See Howard v. State, 32 N.E.3d 1187, 1195 n.12 (Ind. Ct. App.
      2015) (failure to provide cogent argument in support of claim of error waives appellate review of such claim).
      As to the alleged “fundamental constitutional error” in granting the motions to dismiss and motions for
      summary judgment, we can discern from the brief no independent argument or support for those issues and
      therefore do not address them. See id.

      Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                           Page 3 of 30
      not err in denying his motion to appear by video conference or same-day

      transport. We reverse in part and affirm in part.



                            Facts and Procedural History
[3]   In February 2010, the Meritor defendants entered into a contract with the DOC

      to operate a brake shop at CIF employing offenders to remanufacture brake

      shoes for sale by Meritor to the trucking industry. The contract specifically

      states it is a “revenue generating contract that will create job opportunities for

      offenders[,]” Appellants’ App. at 89, and that the parties will “comply with all

      federal, state and local laws, rules, regulations and ordinances applicable to its

      performance,” id. at 96. The contract provides there will be an area within CIF

      for Meritor’s exclusive use, gives Meritor the right in conjunction with the

      DOC to screen applicants, lets Meritor control the number of workers and the

      daily schedule of the operation, and allows Meritor to request removal and

      replacement of a worker for any valid reason. Moreover, Meritor pays the

      DOC rent, pays its own utilities, and provides all equipment, training, and

      supervision of offenders. See id. at 89-118.


[4]   In March 2010, Adams applied, interviewed, and was hired by Meritor to work

      in the brake shop. In April 2010, Adams was informed that his pay would

      begin at fifty cents per hour, eventually increasing to $1.10 per hour, with

      periodic bonuses. Adams asserts the pay for comparable work by non-inmates

      at the Meritor plant in Plainfield is at least $11.71 per hour. See id. at 79.



      Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 4 of 30
[5]   In September 2010, Adams was injured in a workplace accident and was tended

      to by the Medical defendants. Adams alleges his injuries were inadequately

      treated and ultimately led to a heart attack that was also inadequately treated.

      He made a claim regarding the lack of proper medical care that he alleges the

      State-CIF defendants failed to adequately investigate.


[6]   In September 2012, Adams filed an amended complaint regarding the unpaid

      wages and his injuries.5 In October, the Meritor defendants moved to dismiss

      the complaint, and Adams filed a response setting out his legal arguments

      against dismissal. Also in October, Adams filed a Verified Emergency Motion

      for Preliminary Injunction. The trial court sent notice to Adams on November

      7 that a hearing had been scheduled for December 3 on the Meritor defendants’

      motion to dismiss and his motion for preliminary injunction. Adams moved to

      appear at the hearing by video conference or same-day transport, but the

      motion was not received by the court until November 28. The Meritor

      defendants appeared at the hearing but Adams did not. In its order dated

      December 17, the trial court denied Adams’s motion to appear by video

      conference or for same-day transport, finding it was untimely and allowed no

      time to arrange video conferencing; the court had no obligation to transport

      Adams in a civil case and no resources to do so; and noting the court had

      nonetheless twice attempted to reach Adams or his contact person prior to the




      5
       The record is not entirely clear, but it appears Adams’s original complaint was filed in June 2012 in Marion
      Superior Court, Civil Division 6, and was dismissed on the State defendants’ motion. The case was then
      moved to Marion Superior Court, Civil Division 14, and Adams filed this amended complaint.

      Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                       Page 5 of 30
      hearing to arrange a telephonic appearance but the calls went unanswered. The

      trial court also denied Adams’s motion for preliminary injunction and granted

      the Meritor defendants’ motion to dismiss.


[7]   In December 2012, all State defendants moved to dismiss the complaint against

      them. The Medical defendants subsequently joined in the motion to dismiss.

      On January 23, 2013, the trial court held a hearing at which the State and

      Medical defendants appeared in person and Adams appeared via telephone.

      Following the hearing, the trial court issued an order finding that Adams’s

      complaint stated two claims upon which relief might be granted: a claim of

      deliberate indifference under the Eighth Amendment to the United States

      Constitution and 42 U.S.C. § 1983, and a medical malpractice claim, both

      arising from the alleged circumstances surrounding Adams’s injury. The trial

      court denied the Medical and State-CIF defendants’ motions to dismiss as to

      those two claims and granted the motions to dismiss as to all other claims,

      including all of Howard’s claims.


[8]   The Medical and State-CIF defendants then filed motions for summary

      judgment alleging they were entitled to judgment as a matter of law on the

      remaining claims because Adams had failed to exhaust his administrative

      remedies before filing suit. The trial court granted summary judgment to both

      the Medical and State-CIF defendants. All claims as to all parties having been

      resolved, Adams initiated this appeal.




      Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 6 of 30
                                  Discussion and Decision
                                             I. Wage Claim
                                       A. Standard of Review
[9]    We review de novo the trial court’s ruling on a Trial Rule 12(B)(6) motion to

       dismiss for failure to state a claim upon which relief can be granted. Caesars

       Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1122 (Ind. 2010). A Rule

       12(B)(6) motion tests the legal sufficiency of the complaint, not the facts

       underlying it. Id. We accept the facts alleged in the complaint as true and view

       the complaint in the light most favorable to the non-moving party, drawing

       every reasonable inference in favor of that party. Duty v. Boys & Girls Club of

       Porter Cnty., 23 N.E.3d 768, 771 (Ind. Ct. App. 2014). “We will affirm a

       dismissal under Trial Rule 12(B)(6) only if it is apparent that the facts alleged in

       the complaint are incapable of supporting relief under any set of

       circumstances.” Snyder v. Town of Yorktown, 20 N.E.3d 545, 550 (Ind. Ct. App.

       2014), trans. denied. “We view motions to dismiss under Trial Rule 12(B)(6)

       with disfavor because such motions undermine the policy of deciding causes of

       action on their merits.” Wertz v. Asset Acceptance, LLC, 5 N.E.3d 1175, 1178

       (Ind. Ct. App. 2014) (quotation omitted), trans. dismissed.


                        B. Private Right of Action under Title 11
[10]   When a civil cause of action is premised on the violation of a duty imposed by

       statute, the initial question is whether the statute in question confers a private

       right of action. Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind. Ct. App. 2004),

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 7 of 30
       trans. denied. A private party generally may not enforce rights under a statute

       designed to protect the general public and containing a comprehensive

       enforcement mechanism or remedies for violation of the duty. LTV Steel Co. v.

       Griffin, 730 N.E.2d 1251, 1260 (Ind. 2000). Where a statute does not explicitly

       provide a private right of action to enforce its provisions, courts are frequently

       asked to find that the legislature intended that a private right of action be

       implied. Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind. 2005).


[11]   Adams’s wage claim arises from his employment with Meritor while

       imprisoned at CIF. Two chapters of Title 11 of the Indiana Code address

       offender employment. Indiana Code chapter 11-10-6 (“Chapter 6”) contains

       general provisions concerning offender employment within the DOC. Pursuant

       to Chapter 6, DOC facilities are required to provide rehabilitative work and

       training programs (called “industry and farm programs”) for offenders so that

       they may become productive citizens upon their release. See Ind. Code § 11-10-

       6-2(a). The DOC appoints an administrator who is “responsible for planning,

       coordination, operation, and employment and supervision of personnel” of

       these programs. Id. The programs may include producing, manufacturing,

       raising, or processing products or items for use or sale by the DOC. Ind. Code

       § 11-10-6-2(a)(1). The DOC may contract with private businesses “for the

       management of any industry or farm program or activity . . . .” Ind. Code § 11-

       10-6-11. Offenders may be required to participate in these programs or to do

       other work. Ind. Code § 11-10-6-3.




       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 8 of 30
[12]   Indiana Code chapter 11-10-7 (“Chapter 7”) contains provisions regarding the

       employment of offenders by private employers. The DOC commissioner “may

       establish programs for the employment of offenders by private persons” by

       entering into agreements with such persons for the establishment of facilities

       within the boundary of a correctional facility “for the manufacture and

       processing of goods or any other business, commercial, or agricultural

       enterprise.” Ind. Code § 11-10-7-2(a). An offender may be employed under

       such an agreement “only on a voluntary basis and only after the offender has

       been informed of the conditions of . . . employment.” Ind. Code § 11-10-7-3(b).

       Any such agreement “must provide that an offender employed by a private

       person under this chapter will be paid at least the prevailing wage for that type

       of work . . . including applicable wage increases for overtime work.” Ind. Code

       § 11-10-7-3(a). Section 11-10-7-5 details how the offender’s earnings under this

       chapter are to be distributed. “A commercial or agricultural enterprise

       established under this chapter is a private enterprise subject to laws governing

       the operation of similar enterprises in Indiana.” Ind. Code § 11-10-7-4.


[13]   The Meritor brake shop is not in the nature of the traditional industry and farm

       training programs run by the DOC itself or run by the DOC but managed by a

       private business. Rather, Meritor operates its own private and for-profit

       commercial business on DOC premises. Employment in the brake shop is a

       voluntary undertaking by an offender and it is subject to the requirements and

       needs of Meritor. The facts alleged in Adams’s complaint support a

       determination that the Meritor enterprise within CIF is subject to the provisions


       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 9 of 30
       of Chapter 7 rather than the provisions of Chapter 6, including the Chapter 7

       requirement that offenders be paid at least the prevailing wage.


[14]   Adams’s complaint alleges Meritor has violated his statutory right to be paid

       the prevailing wage by paying him at most $1.10 per hour when comparable

       work by non-inmates pays at least $11.71 per hour. In Kimrey v. Donahue, 861

       N.E.2d 379 (Ind. Ct. App. 2007), trans. denied, this court held—based on our

       supreme court’s determination in Blanck that there is no explicit or implied right

       for inmates to challenge DOC disciplinary actions in court—that trial courts

       lack subject matter jurisdiction over prisoner complaints unless there is an

       explicit statutory right of action or an allegation that constitutional rights are

       being violated. Id. at 381-82 (citing Blanck, 829 N.E.2d at 507-09). Adams

       alleges Indiana Code section 11-10-7-4 is such an explicit statutory right to

       enforce in court the requirement that he be paid the prevailing wage for his

       work for Meritor, and he seeks to be paid the difference by pursuing a wage

       claim.


[15]   It is important to note that we are concerned here only with a Chapter 7

       enterprise, which is conducted by a private business for profit in cooperation

       with the DOC and not a program operated by the DOC itself to further its

       rehabilitative goals. Again, Indiana Code section 11-10-7-4 states that a

       Chapter 7 enterprise “is a private enterprise subject to laws governing the

       operation of similar enterprises in Indiana.” As relevant to this particular case,

       private enterprises are subject to the Wage Payment statute, which provides that

       an employee who has not been paid the amount due may make a claim in a

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 10 of 30
       trial court for unpaid wages and recover damages. See Ind. Code § 22-2-5-2.6

       The language of section 11-10-7-4 in conjunction with the law applicable to

       private enterprises and the lack of an enforcement mechanism in Chapter 7

       itself at least implies there is a private right of action to enforce the prevailing

       wage requirement of Chapter 7.


[16]   But legislative intent is the fulcrum of a private right of action. See Roberts, 813

       N.E.2d at 1198 (“The determination of whether a civil cause of action exists

       begins with an examination of legislative intent.”). At the time Adams filed his

       complaint, the only limitation in Chapter 7 on an offender’s wages was that an

       offender was not eligible for unemployment compensation benefits. Ind. Code

       § 11-10-7-3(c). That section 11-10-7-4 provides at least an implied right to sue

       for failure to pay the prevailing wage is bolstered by the fact that after Adams

       instituted this action, the legislature amended Chapter 7 to add the following

       limitation: “An offender employed in accordance with this chapter is subject to

       IC 22-2-5-3 and IC 22-2-9-8.” Ind. Code § 11-10-7-3(d) (as added by P.L. 223-

       2013, sec. 4, eff. May 9, 2013). Section 22-2-5-3 of the Wage Payment statute

       was simultaneously amended to specifically exempt from the provisions of that

       chapter criminal offenders in a facility operated by the DOC.7 P.L. 223-2013,




       6
         The Wage Payment statute applies to those with unpaid wage claims who are still employed or voluntarily
       left employment. See St. Vincent Hosp. & Health Ctr., Inc. v. Steele, 766 N.E.2d 699, 705 (Ind. 2002). That is
       likely the applicable chapter here, as it appears Adams was still employed by Meritor when he filed the
       complaint. The Wage Claims statute, Ind. Code ch. 22-2-9, applies to those with unpaid wage claims who
       were involuntarily separated from employment, St. Vincent Hosp. & Health Ctr., Inc., 766 N.E.2d at 705.
       7
         Indiana Code chapter 22-2-9 was likewise amended to provide criminal offenders in a facility operated by
       the DOC are specifically exempt from that chapter. Ind. Code § 22-2-9-8 (as added by P.L. 223-2013, sec. 6,

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                        Page 11 of 30
       sec. 5. Thus, prior to May 9, 2013, only an offender’s right to seek

       unemployment benefits was limited; after May 9, 2013, an offender’s right to

       assert a wage claim was also limited. If there was no existing private right of

       action under Chapter 7, there would have been no need to amend the statute to

       specifically exclude such an action. Section 11-10-7-4 provides that a Chapter 7

       enterprise is subject to the laws governing other private enterprises. At the time

       Adams filed his complaint, those laws included the right to make a wage claim.

       As the dissent notes, legislative intent is best determined by the statutory

       language. Here, the legislature has changed the language of the statutory scheme

       and there is no discernible reason for the change other than to foreclose a right

       that had previously existed.


[17]   Considering Adams’s specific claim, we conclude there was, until May 9, 2013,

       a right in Chapter 7 for an offender to seek unpaid wages from a private

       employer in a private action. There may be other impediments to Adams’s

       recovery of the wages to which he claims he is entitled which will be discerned

       at a later stage in the development of the record. But Adams’s complaint, filed

       prior to May 9, 2013, has on its face stated a claim upon which relief could be

       granted, and we reverse the trial court’s grant of the Meritor and State

       defendants’ Trial Rule 12(B)(6) motions to dismiss the wage claim.




       eff. May 9, 2013). An emergency was declared for this act and it became effective upon passage. P.L. 223-
       2013, sec. 7.

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                    Page 12 of 30
                                    II. Personal Injury Claim
                                       A. Standard of Review
[18]   The party moving for summary judgment must “affirmatively negate an

       opponent’s claim” by demonstrating that the designated evidence raises no

       genuine issue of material fact and that the moving party is entitled to judgment

       as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (internal

       quotation marks and citation omitted); see also Ind. Trial Rule 56(C). Summary

       judgment is improper if the moving party fails to carry its burden, but if it

       succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact in order to preclude

       summary judgment. Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633,

       637 (Ind. 2012).


[19]   We review an order granting summary judgment de novo, which is the same

       standard of review applied by the trial court. Hughley, 15 N.E.3d at 1003.

       When the trial court has granted summary judgment to the moving party, the

       nonmoving party has the burden on appeal of persuading us that the grant of

       summary judgment was in error. Id. However, “we carefully assess the trial

       court’s decision to ensure that [the nonmoving party] was not improperly

       denied his day in court.” Id. In reviewing the record, we consider only the

       evidentiary matter the parties have designated to the trial court, see T.R. 56(C),

       (H), and we construe all reasonable inferences in favor of the nonmoving party,

       Hughley, 15 N.E.3d at 1003. “A fact is ‘material’ if its resolution would affect

       the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to
       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 13 of 30
       resolve the parties’ differing accounts of the truth, or if the undisputed material

       facts support conflicting reasonable inferences.” Id. (quoting Williams v. Tharp,

       914 N.E.2d 756, 761 (Ind. 2009)).


[20]   Indiana’s heightened summary judgment standard “consciously errs on the side

       of letting marginal cases proceed to trial on the merits, rather than risk short-

       circuiting meritorious claims.” Id. at 1004.


                       B. Exhaustion of Administrative Remedies
[21]   Adams’s complaint raises a variety of allegations to the effect that the Medical

       defendants did not provide him adequate medical care for an injury he

       sustained while working at CIF and for a subsequent heart attack, and the

       State-CIF defendants did not investigate his claims against the Medical

       defendants. Adams did not, prior to filing this lawsuit, pursue a grievance

       concerning those allegations through the DOC’s procedure. The trial court

       granted summary judgment to the Medical and State-CIF defendants on

       Adams’s state tort claims because the designated evidence showed Adams did

       not exhaust his administrative remedies.


[22]   In Higgason v. Stogsdill, 818 N.E.2d 486, 489 (Ind. Ct. App. 2004), trans. denied,

       we acknowledged that the procedural treatment of any federal claims with

       respect to prison conditions made in either federal or state courts is controlled

       by the Prison Litigation Reform Act (the “PLRA”), and that the PLRA requires

       prisoners to exhaust “such administrative remedies as are available” before

       filing such claims. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 14 of 30
       (2002). We have applied a similar analysis to state tort claims. See Higgason v.

       Lemmon, 818 N.E.2d 500, 503 (Ind. Ct. App. 2004), trans. denied. “The sole

       objective of § 1997e(a) is to permit the prison’s administrative process to run its

       course before litigation begins.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.

       2006) (quotation omitted).

               In some instances, corrective action taken in response to an
               inmate’s grievance might improve prison administration and
               satisfy the inmate, thereby obviating the need for litigation. In
               other instances, the internal review might filter out some
               frivolous claims. And for causes ultimately brought to court,
               adjudication could be facilitated by an administrative record that
               clarifies the contours of the controversy.


       Porter, 534 U.S. at 525 (citations and internal quotation marks omitted).


[23]   The administrative remedies available in this case are outlined in the Offender

       Grievance Process (“OGP”) found in the DOC’s “Policy and Administrative

       Procedures: Manual of Policies and Procedures.” See Appellants’ App. at 413-

       42 (Attachment 1 to the State-CIF defendants’ motion for summary judgment).

       The OGP has been in place at CIF since December 1, 2005, and describes how

       an offender can grieve actions or decisions by individual staff, contractors, or

       volunteers. In short, the offender must take one informal and two formal steps

       to exhaust the grievance process. The offender must first attempt to informally

       resolve the issue by discussing it with a staff member within five working days.

       If the issue cannot be informally resolved, the offender may proceed to the

       formal process by submitting a written form to the Executive Assistant of the


       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 15 of 30
       facility within twenty working days from the event triggering the concern. If

       the form is in compliance with the OGP, the Executive Assistant accepts and

       logs the form as a grievance and assigns a case number. If the grievance is still

       not resolved in a manner that satisfies the offender or if he does not receive a

       response within twenty-five working days after submitting the grievance, the

       offender may file an appeal to the DOC’s Grievance Manager.


[24]   The evidence designated in support of the Medical and State-CIF defendants’

       motions for summary judgment indicate Adams never pursued a grievance

       regarding his medical treatment in 2010. See Appellants’ App. at 411-12

       (Declaration of Robert Stafford, CIF Grievance Specialist, stating DOC keeps

       records of every formal grievance and formal appeal filed by an offender and

       DOC records show Adams filed only one unrelated grievance prior to filing this

       lawsuit). Adams does not dispute that he did not file a grievance regarding his

       personal injury claim; instead, he claims there were no available administrative

       remedies for him to exhaust as to this claim.


[25]   “Issues or complaints regarding medical treatment are claims that can, and

       should, be grieved through the [OGP].” Appendix of the Appellees at 105

       (Affidavit of Robert Stafford). In addition, “offenders can grieve actions of

       individual staff, including claims that staff was not properly investigating . . .

       complaints regarding medical staff.” Appellants’ App. at 410. Adams appears

       to be correct that the DOC’s grievance procedure could not provide him the

       specific relief he wanted – money damages. See id. at 419 (OGP stating the

       DOC “will not pay money damages through the grievance procedure”).

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 16 of 30
       However, that does not render the administrative remedy “unavailable.” The

       Supreme Court of the United States has held an administrative remedy is

       “available” under the PLRA as long as the administrative authority has the

       ability to take some action in response to a grievance, even if it is not the

       requested action. Booth v. Churner, 532 U.S. 731, 741 (2001) (stating the broad

       exhaustion requirement of section 1997e(a) “makes it highly implausible that

       [Congress] meant to give prisoners a strong inducement to skip the

       administrative process simply by limiting prayers for relief to money damages

       not offered through administrative grievance mechanisms”). “Even when the

       prisoner seeks relief not available in grievance proceedings, notably money

       damages, exhaustion is a prerequisite to suit.” Porter, 534 U.S. at 524 (citing

       Booth, 532 U.S. at 741).


[26]   Nonetheless, Adams claims he “is specifically prohibited to file a grievance

       concerning his State and Medical Defendant claims, because, no form will be

       logged as a grievance if it seeks financial compensation.” Corrected Appellants’

       Br. at 38. Adams points to language in the OGP that “[u]ntil the Executive

       Assistant accepts and logs the document, it is a form and not a grievance.”

       Appellants’ App. at 415. He further points to the standards for a grievance

       form, which include a requirement that the offender suggest some relief or

       remedy, and to the process for screening the grievance, which states the

       Executive Assistant “may reject the grievance form and return it to the offender

       unfiled if any of the [standards] are not met.” Id. at 430. Therefore, Adams

       asserts he has no administrative remedy because “the Executive Assistant will


       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 17 of 30
       not accept for filing any form that seeks monetary relief.” Corrected Appellants’

       Br. at 40 (emphasis added).


[27]   The OGP neither expressly states nor implies that the Executive Assistant will

       automatically reject a form that suggests money damages as a remedy. The

       OGP states the Executive Assistant “may” reject a grievance form for failing to

       meet the required standards. It does not state that the Executive Assistant must

       or shall do so. The term “may” ordinarily implies a grant of discretion,

       whereas the word “shall” is construed as mandatory. Alden v. State, 983 N.E.2d

       186, 189 (Ind. Ct. App. 2013), trans. denied. Therefore, the statement in the

       OGP that the Executive Assistant “may” reject a grievance form that does not

       meet the standards indicates the Executive Assistant also retains the discretion

       to accept such a form. Further, the OGP states an offender is required to

       include in his grievance form a suggested remedy. It does not state the offender

       must suggest an available remedy. Therefore, a grievance seeking money

       damages does not necessarily fail to meet the standards and will not necessarily

       be rejected.


[28]   That the DOC could not have provided Adams the relief he seeks does not

       excuse him from the requirement that he exhaust his available administrative

       remedies. Adams had a remedy to exhaust but he failed to pursue it.

       Therefore, the trial court did not err in granting summary judgment to the

       Medical and State-CIF defendants.




       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 18 of 30
                                  III. Participation in Hearing
[29]   On October 10, 2012, the Meritor defendants filed their motion to dismiss

       Adams’s complaint. On October 19, 2012, Adams filed a twelve-page response

       to the motion to dismiss and also filed a Verified Emergency Motion for

       Preliminary Injunction. In his motion for preliminary injunction, he made a

       number of allegations against various defendants, including retaliatory

       discharge from the Meritor brake shop where he was employed, fraud, human

       trafficking, refusal to pay him the prevailing wage, theft, and various other

       misconduct. Adams was notified by mail on November 7 that the court had set

       a hearing on both motions for December 3.


[30]   Adams prepared a motion to appear via video conference or same-day

       transport. The certificate of service is dated November 19, 2012. He alleges in

       his brief he was delayed in submitting the motion to the court due to a closure

       of the prison law library from October 25 to November 25, and a printer

       malfunction from November 26 to December 10,8 but the motion itself contains

       no allegations as to the reason for the delay. The motion was filed by the court

       clerk on November 28, and the trial court stated it did not receive the motion

       until November 30. The December 3 hearing was conducted, and all


       8
        It is unclear in any event how this affected the timing of the filing of the motion to appear by video
       conference or same-day transport. The motion is dated November 19, 2012, which falls during the time
       Adams now alleges the prison library was closed. If Adams was nonetheless able to prepare and file his
       motion while the prison library was closed, that is no excuse for the delayed filing. And the motion is also
       dated prior to the time the printer was malfunctioning. Adams alleges the printer malfunction delayed all
       prisoners in receiving legal correspondence, but the relevant legal correspondence would have been the trial
       court’s order setting the hearing, which was mailed on November 7, 2012, well in advance of the printer
       malfunction.

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                      Page 19 of 30
defendants were present but Adams did not appear. With regard to Adams’s

absence, the trial court stated at the outset of the hearing,


        The petition to transport is denied. County simply doesn’t have
        the resources or the money . . . or the officers to transport for a
        civil case—can’t do it.


        Secondly, the request for video conferencing, while reasonable,
        requires a substantial notice to the Court, so that we can set up
        the technology to do it. This notice was provided to the Court—
        by the time the Judge saw it, it was Friday before a Monday
        hearing and that’s not enough time for us to arrange the
        technology set up we need. We’ve checked with our IT
        department and we need at least a week. That’s a minimum,
        possibly ten (10) days. It is possible to do, but it has to be noticed
        up ahead.


        Now, on the record, I instructed my court staff to contact the
        correctional facility to attempt to convey to the plaintiffs a
        mechanism by where they could call in. We’ve made long
        distance phone calls at the Court’s expense to provide that
        information. We’ve received no response, either from plaintiff or
        the correctional facility person, contact person. Which contact
        person was named in one of the plaintiff’s pleadings. That’s the
        person we contacted. Best we could do – the Court could do was
        leave a message . . . .


Transcript at 10-11. On December 17, the trial court issued an order denying

the motion to appear via video conference or same-day transport for the same

reasons stated at the hearing, denying Adams’s motion for preliminary

injunction, and granting the Meritor defendants’ motion to dismiss.




Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 20 of 30
[31]   Adams contends he had a right to be heard on his motion for preliminary

       injunction and on the Meritor defendants’ motion to dismiss and therefore the

       trial court erred in denying his motion to appear and conducting the hearing in

       his absence. 9


[32]   It was not error for the trial court to conduct the hearing in this civil case

       without Adams’s presence. An incarcerated plaintiff has the constitutional

       right to bring a civil action against a party that has injured him, but a trial court

       cannot secure the attendance of an incarcerated plaintiff at a civil action

       unrelated to the case resulting in incarceration. Sabo v. Sabo, 812 N.E.2d 238,

       242 (Ind. Ct. App. 2004).

               [C]onfinement makes it impossible for him to appear in court
               and act as his own lawyer, but when anyone commits a felony
               and is convicted and is confined in State prison his ability to
               pursue his business in person and to exercise many other rights
               and privileges, which he otherwise might have had, are curtailed
               ....


       Hill v. Duckworth, 679 N.E.2d 938, 940 (Ind. Ct. App. 1997). Such curtailment

       does not violate the incarcerated person’s rights under the constitution; it is

       merely an incident of punishment. Id.



       9
         Adams does not appear to argue that the trial court erred in denying his motion for preliminary injunction
       on the merits; rather, he argues only that it was error to deny him the right to be heard on the motion.
       He raises as additional related issues whether he had the right to subpoena witnesses on his motion and
       whether he had the right to have the hearing rescheduled. As for these issues, we can find in Adams’s brief
       no independent argument on those questions, and we are therefore unable to address them. See App. R.
       46(A)(8)(a); Howard, 32 N.E.3d at 1195 n.12 (failure to provide cogent argument in support of claim of error
       waives appellate review of such claim).

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                      Page 21 of 30
[33]   The trial court was not obliged to grant a transport order because Adams was

       incarcerated for a matter unrelated to his tort claim. Still, some avenue must

       exist for an incarcerated plaintiff to prosecute his claim, id., and we have

       previously noted that there are several alternatives to personal appearance in

       court, including submitting the case to the court on documentary evidence,

       telephonic conference, securing someone else to represent the plaintiff, and

       postponing the hearing until the plaintiff’s release, Hill, 679 N.E.2d at 940 n.1.

       Adams in fact sought one of those alternatives, requesting a video conference,

       but he did so too late for the trial court to arrange his appearance in that

       manner. Even if Adams’s motion had been promptly received by the trial court

       after Adams served it, the trial court likely would not have had sufficient time

       to arrange a video conference. The certificate of service on the motion to

       appear is dated November 19, 2012. The trial court stated it would take at least

       a week and possibly ten days to arrange a video conference. As the

       Thanksgiving holiday fell between November 19 and December 3, 2012, the

       motion was filed less than ten business days before the hearing. Nonetheless,

       the trial court tried to arrange a phone conference for Adams to appear at the

       hearing, but his designated contact was unavailable to take the court’s call and

       make the arrangements. The trial court did all it could to try to facilitate

       Adams’s personal participation in the hearing.


[34]   Adams’s motion for preliminary injunction was verified, meaning he verified

       under the penalties for perjury that the representations made therein were true.




       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 22 of 30
       See Ind. Trial Rule 11(B); Appellants’ App. at 156. Trial Rule 11(C) provides

       that when pleadings are verified, they

               shall be accepted as a representation that the signer had personal
               knowledge thereof or reasonable cause to believe the existence of
               the facts or matters stated or alleged therein; and, if otherwise
               competent or acceptable as evidence, may be admitted as
               evidence of the facts or matters stated or alleged therein . . . .


       See also Kuhn v. State, 222 Ind. 179, 183, 52 N.E.2d 491, 492-93 (1944) (noting it

       is a “common practice” in injunction cases to decide issues of fact upon

       submission of verified complaints and answers or upon affidavits and counter

       affidavits, and when so submitted, “uncontroverted facts appearing in the

       verified pleadings are treated as true and the trier resolves conflicts as he would

       in considering oral testimony”). The defendants did not respond to Adams’s

       motion, and thus the allegations of the verified motion were uncontradicted and

       could be accepted as true. If Adams believed additional evidence was required

       beyond the allegations of his complaint, he could have submitted affidavits in

       support of his motion. Further, Adams filed a lengthy reply to the Meritor

       defendants’ motion to dismiss. Because the trial court had before it Adams’s

       documentary evidence on both pending motions, it was not error for the trial

       court to rule on the motions in Adams’s absence.



                                               Conclusion
[35]   At the time Adams filed his complaint, the statute upon which he based his

       wage claim against the Meritor and State defendants afforded him a private

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 23 of 30
       right of action to seek unpaid wages. The complaint is therefore legally

       sufficient to withstand a Trial Rule 12(B)(6) motion, and the trial court abused

       its discretion in dismissing that claim. The trial court properly granted

       summary judgment to the Medical and State-CIF defendants, however, because

       Adams did not exhaust his administrative remedies with respect to his personal

       injury claim. Adams did not avail himself of the chance to participate in the

       hearing by telephone but was able to participate by the submission of

       documentary evidence, and therefore the trial court did not err in conducting

       the hearing in his absence.


[36]   Reversed in part and affirmed in part.


       Mathias, J., concurs.


       May, J., concurs in part, dissents in part.




       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 24 of 30
                                                     IN THE
              COURT OF APPEALS OF INDIANA

       Chuck W. Adams, Charles E.
       Howard, et al.,                                       Court of Appeals Case No.
       Appellants-Plaintiffs,                                49A02-1406-PL-465

               v.

       ArvinMeritor, Inc., et al.,
       Appellees-Defendants




       May, Judge, concurs in part, dissents in part.


[37]   I agree with the majority that the trial court properly granted summary

       judgment to the Medical and State-CIF defendants because Adams had an

       available administrative remedy as to his personal injury claim but failed to

       pursue it to completion, and that the trial court did not err in denying Adams’

       motion to appear by video conference or same-day transport. But I believe the

       majority’s own analysis does not permit the result it reaches with regard to


       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015        Page 25 of 30
       whether Adams had a private right of action to pursue his wage claim, and

       therefore respectfully dissent from that holding.


[38]   When a civil cause of action is premised on violation of a duty imposed by

       statute, the initial question is whether the statute in question confers a private

       right of action. Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind. Ct. App. 2004),

       reh’g denied, trans. denied. The legislature did not explicitly10 provide in Title 11

       for a private right of action. Kimrey v. Donahue, 861 N.E.2d 379, 382 (Ind. Ct.

       App. 2007), trans. denied.


[39]   In Blanck, our Supreme Court determined Blanck had no private right of action

       under five provisions of Indiana Code Title 11: (1) Ind. Code § 11-10-1-7,

       which requires periodic review of the reasons for segregation of an offender

       where the DOC has found segregation is necessary for the offender’s safety or

       the safety of others; (2) Ind. Code § 11-11-5-4, which prohibits the DOC from

       using various forms of discipline, addresses substantial changes in heating,

       lighting, or ventilation, and imposes certain restrictions on medical and dental

       care; (3) Ind. Code § 11-11-5-5, which prohibits the DOC from imposing any

       discipline before affording the person charged with misconduct a hearing to

       determine his or her guilt or innocence and, if guilty, the appropriate action; (4)




       10
          The majority correctly notes that where a legislative body does not explicitly provide for a private right of
       action to enforce the provisions of a particular statute, “courts frequently are asked to determine whether the
       Legislature intended a private right of action be implied.” (Slip op. at 8) (citing Blanck v. Ind. Dep’t of Corr.,
       829 N.E.2d 505, 509 (Ind. 2005)). But as explained below, this court has held that any private right of action
       under Title 11 must be explicitly provided by statute. It is therefore inappropriate to consider whether a
       private right of action might be implied.

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                          Page 26 of 30
       Ind. Code § 11-11-5-6, which requires periodic review of the reasons for

       segregation of an offender charged but not yet found guilty of misconduct; and

       (5) Ind. Code § 11-11-5-7, which requires periodic review of the reasons for

       segregation of an offender found guilty of misconduct. 829 N.E.2d at 510.


[40]   The Blanck Court noted each of those statutes imposes certain duties on the

       DOC and presumably confers substantive rights on inmates, but none of them

       contains any provision suggesting inmates have a right to enforce any such

       rights in court. 829 N.E.2d at 509. “So if there is subject matter jurisdiction

       over claims to enforce any such rights, it must either be because the Legislature

       intended it to be inferred from these statutes or because it is provided elsewhere

       in law.” Id.


[41]   The Blanck Court determined the legislature did not intend for inmates to have

       a private right of action to enforce those statutes. Id. at 510. It noted the

       Legislature specifically excluded from the Administrative Orders and

       Procedures Act (AOPA) any “agency action related to an offender within the

       jurisdiction of the department of correction.” Id. (quoting Ind. Code § 4-21.5-2-

       5(6)). That reflected the clear intent of the Legislature “to deny to inmates

       charged with or found guilty of misconduct the procedure specified in the

       AOPA, including judicial review. And with the intent of the Legislature on this

       point being clear, we are not free to infer a private right of action.” Id. at 510.


[42]   In Kimrey, we determined the Blanck analysis applied to other parts of Title 11:




       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 27 of 30
                While an argument could be made that the Blanck decision is
                limited to prison discipline matters, we think that the Blanck
                Court’s analysis has broader application to review of complaints
                brought by inmates of the Department of Correction seeking to
                enforce asserted statutory “rights,” such as in the case before us.
                We garner from the Blanck decision that trial courts lack subject
                matter jurisdiction over such complaints unless an explicit private
                right of action is afforded by statute or an allegation is made that
                constitutional rights are being violated.11 Here, the Claimants
                allege no constitutional violations; thus, in order for the trial
                court to have the power to review their complaint, the Claimants
                must have been given an explicit private right of action to enforce
                I.C. § 11-11-3-6.


       861 N.E.2d at 382 (emphasis supplied) (footnote in original omitted) (footnote

       added). We therefore did not find error in the dismissal of Kimrey’s complaint

       to the extent it was premised on alleged violations of Title 11. Id. at 383.


[43]   In the case before us, the majority opinion (the author of which concurred in

       Kimrey), acknowledges the Kimrey language, but despite that, identifies no

       explicit language in section 11-10-7-4 that provides for a private right of action.

       There is none, as that section states only: “A commercial or agricultural

       enterprise established under this chapter is a private enterprise subject to laws

       governing the operation of similar enterprises in Indiana.” Ind. Code § 11-10-7-

       4. It says nothing more. That is not language that provides a claimant “an

       explicit private right of action.”


       11
          Adams prefaced his amended complaint by saying he was bringing it “pursuant to” certain constitutional
       provisions, (Appellants’ App. at 47), but no specific allegations of constitutional violations can be found in
       his complaint.

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                       Page 28 of 30
[44]   Despite our statement in Kimrey that there must be an explicit right of action, the

       majority instead reverses the trial court based on what it concedes is an implicit

       right of action: “section 11-10-7-4 provides at least an implied right to sue.”12

       (Slip op. at 11.) That result cannot be reconciled with our Kimrey statement,

       and I cannot accept the majority’s opinion that the Kimrey requirement of an

       “explicit” right of action can be satisfied by something only “implicit.” 13


[45]   The majority implies a cause of action on the premise that such was the

       legislature’s intent. But our Supreme Court has cautioned that legislative intent

       is best determined by what the statutory language itself includes and not

       include. See, e.g., N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002) (court will

       not read into the statute that which is not the expressed intent of the legislature,

       and as such, it is just as important to recognize what the statute does not say as

       it is to recognize what it does say).


[46]   I believe our Supreme Court’s Blanck analysis and this court’s Kimrey analysis

       are correct, and they do not permit reversal based on only an implied right of

       action. Cognizant of what Ind. Code § 11-10-7-4 says and does not say, I




       12
         The majority finds this “implied right” because under Ind. Code § 11-10-7-4, Meritor is “subject to laws
       governing the operation of similar enterprises.” That includes the Wage Payment statute, under which an
       employee may sue for unpaid wages. I would not stretch the language of Ind. Code § 11-10-7-4, which
       addresses only the “operation” of “enterprises” to cover unrelated claims by employees.
       13
          The word “implied” is “used in law as contrasted with ‘express’; i.e., where the intention in regard to the
       subject matter is not manifested by explicit and direct words, but is gathered by implication or necessary
       deduction from the circumstances, the general language, or the conduct of the parties.” Black’s Law
       Dictionary 888 (Rev. Fourth Ed. 1968).

       Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015                        Page 29 of 30
would affirm the trial court’s determination Adams had no private right of

action. Accordingly, I must respectfully dissent.




Court of Appeals of Indiana | Opinion 49A02-1406-PL-465 | December 9, 2015   Page 30 of 30
