                                                                    Aug 28 2015, 9:37 am




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Abdullah Alkhalidi                                         Gregory F. Zoeller
New Castle, Indiana                                        Attorney General of Indiana

                                                           Aaron T. Craft
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Abdullah Alkhalidi,                                        August 28, 2015
Appellant-Plaintiff,                                       Court of Appeals Cause No.
                                                           77A01-1406-SC-278
        v.                                                 Appeal from the Sullivan Superior
                                                           Court
Indiana Department of                                      The Honorable Robert E. Springer,
Correction,                                                Judge
                                                           The Honorable Ann Smith
Appellee-Defendant.
                                                           Mischler, Magistrate
                                                           Trial Court Cause No.
                                                           77D01-1307-SC-529




Barnes, Judge.




Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015                  Page 1 of 10
                                              Case Summary
[1]   Abdullah Alkhalidi appeals the small claims court’s granting of a motion to

      dismiss filed by the Indiana Department of Correction (“DOC”). We reverse

      and remand.


                                                      Issues
[2]   Alkhalidi raises two issues, which we restate as:


                       I.       whether the small claims court had subject
                                matter jurisdiction to decide his replevin claim;
                                and

                       II.      whether Alkhalidi was required to prove that
                                he exhausted his administrative remedies.

                                                       Facts
[3]   In 2012, Alkhalidi was incarcerated in Wabash Valley Correctional Facility

      (“Wabash”), and his personal property was seized in a “strip cell” disciplinary

      action. Appellant’s App. p. 32. Alkhalidi was “released from strip cell status”

      and some, but not all, of his property was returned. Id. at 32-33. Alkhalidi filed

      a grievance to recover the remainder of his missing property and then was

      transferred to Westville Correctional Facility (“Westville”). After his transfer,

      more, but not all, of Alkhalidi’s property was returned. His grievance was

      denied on November 7, 2012. Alkhalidi immediately requested a grievance

      appeal form from Westville officials and was told to send the request to

      Wabash. On December 4, 2012, Alkhalidi sent a letter to Wabash requesting

      an appeal form but never received a response.


      Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015     Page 2 of 10
[4]   In 2013, Alkhalidi attempted to recover the property through an administrative

      tort claim proceeding, and his claim was denied. Alkhalidi then filed a small

      claims replevin action against the DOC seeking to recover $419.34, the alleged

      value of the remaining unreturned property. The DOC filed an Indiana Trial

      Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief

      may granted. The motion to dismiss alleged in part that Alkhalidi’s complaint

      was not specific enough to put the DOC on notice as to what property was

      missing and who was responsible for the alleged loss. The small claims court

      denied the DOC’s motion to dismiss.


[5]   On May 12, 2014, a bench trial was conducted. At the conclusion of

      Alkhalidi’s case-in-chief, the DOC moved for a directed verdict or judgment on

      the evidence claiming that Alkhalidi was required to exhaust administrative

      remedies before filing his lawsuit. The small claims court allowed the parties to

      file briefs on the issue of exhaustion of administrative remedies. On June 10,

      2014, after the issue was briefed by the parties, the small claims court granted

      the DOC’s motion for judgment on the evidence and concluded that Alkhalidi’s

      claim should be dismissed because Alkhalidi “failed to exhaust his

      administrative remedies and therefore the Court is deprived of subject matter

      jurisdiction and should be dismissed pursuant to Trial Rule 12(B)(1).”




      Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015   Page 3 of 10
      Appellee’s App. p. 1. The claim was dismissed with prejudice. Alkhalidi now

      appeals. 1


                                                     Analysis
[6]   In determining whether Alkhalidi’s claim was properly dismissed, we consider

      Indiana Trial Rule 41(B) 2 which provides in part:


               After the plaintiff or party with the burden of proof upon an
               issue, in an action tried by the court without a jury, has
               completed the presentation of his evidence thereon, the opposing
               party, without waiving his right to offer evidence in the event the
               motion is not granted, may move for a dismissal on the ground
               that upon the weight of the evidence and the law there has been
               shown no right to relief. The court as trier of the facts may then
               determine them and render judgment against the plaintiff or may
               decline to render any judgment until the close of all the evidence.


[7]   In ruling on such a motion, “a trial court may weigh the evidence, determine

      the credibility of witnesses and decide whether the party with the burden of

      proof has established a right to relief during the case-in-chief.” Barger v. Pate,

      831 N.E.2d 758, 761 (Ind. Ct. App. 2005).




      1
        The small claims court certified Alkhalidi’s statement of the evidence explaining, “the only issue decided
      by the Court, and briefed by the parties, was once a prisoner begins a grievance process he must exhaust all
      grievance remedies before initiating a law suit.” Appellee’s App. p. 36.
      2
        The DOC moved for judgment on the evidence pursuant to Indiana Trial Rule 50(B), which addresses
      whether there is sufficient evidence to submit the case to a jury. Because the motion was made during a
      bench trial, it should have been treated as an Indiana Trial Rule 41(B) motion for involuntary dismissal. See
      Taflinger Farm v. Uhl, 815 N.E.2d 1015, 1018 (Ind. Ct. App. 2004).

      Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015                         Page 4 of 10
[8]   We review the grant or denial of a motion to dismiss made under Trial Rule

      41(B) under the clearly erroneous standard. Thornton-Tomasetti Engineers v.

      Indianapolis-Marion Cnty. Pub. Library, 851 N.E.2d 1269, 1277 (Ind. Ct. App.

      2006). We neither reweigh the evidence nor judge the credibility of the

      witnesses and will reverse only if the evidence is not conflicting and points

      unerringly to a conclusion different from the one reached by the trial court. Id.


                                       I. Subject Matter Jurisdiction

[9]   As an initial matter, we address the small claims court’s conclusion that

      Alkhalidi’s failure to exhaust administrative remedies deprived it of subject

      matter jurisdiction. Our supreme court has clarified that “‘[t]he question of

      subject matter jurisdiction entails a determination of whether a court has

      jurisdiction over the general class of actions to which a particular case

      belongs.’” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006) (quoting Troxel v.

      Troxel, 737 N.E.2d 745, 749 (Ind. 2000)). “Real jurisdictional problems would

      be, say, a juvenile delinquency adjudication entered in a small claims court, or a

      judgment rendered without any service of process. Thus, characterizing other

      sorts of procedural defects as ‘jurisdictional’ misapprehends the concepts.” Id.

      542. Even after K.S., it was arguably unclear whether a party’s failure to

      exhaust administrative remedies was a question of subject matter jurisdiction or

      procedural error. See, e.g., Kennedy v. Town of Gaston, 923 N.E.2d 988, 994 (Ind.

      Ct. App. 2010) (concluding that claim of failure to exhaust administrative

      remedies is a claim of procedural error and does not deprive a court of subject

      matter jurisdiction).

      Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015   Page 5 of 10
[10]   Then, in First American Title Insurance Co. v. Robertson, 19 N.E.3d 757, 760 (Ind.

       2014), amended on reh’g, 27 N.E.3d 768, our supreme court summarily affirmed

       “that portion of the Court of Appeals opinion holding that the exhaustion of

       administrative remedies under AOPA is a procedural error and does not

       implicate the trial court’s subject matter jurisdiction.” The DOC contends that

       it is still unclear whether the failure to exhaust administrative remedies is a

       defect in subject matter jurisdiction because First American only summarily

       affirmed our court’s analysis of subject matter jurisdiction. However, we

       believe that our supreme court’s distinction between subject matter jurisdiction

       and procedural error in K.S. and its summary affirmation in First American

       indicates that the failure to exhaust administrative remedies should be treated as

       procedural error. Thus, the small claims court erroneously considered the

       failure to exhaust administrative remedies as a jurisdictional defect.


[11]   Here, there is no dispute that a small claims court has subject matter jurisdiction

       to entertain a replevin action for $419.34. Thus, contrary to its conclusion, the

       small claims court had subject matter jurisdiction to decide Alkhalidi’s claim.


                               II. Exhaustion of Administrative Remedies

[12]   The DOC also contends that, regardless of whether exhaustion of remedies is

       treated as a jurisdictional defect or procedural error, dismissal was proper

       because Alkhalidi did not prove he exhausted his administrative remedies. The

       DOC claims that it was required to timely raise the issue of exhaustion and

       that, once the issue was raised, Alkhalidi had the burden of proving what

       remedies were available and that he exhausted them or was excused from
       Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015   Page 6 of 10
       exhausting them. In support of its assertion that Alkhalidi had the burden of

       proof, the DOC cites Young v. State, 888 N.E.2d 1255, 1257 (Ind. 2008), in

       which an inmate filed a petition for educational credit time after the DOC

       denied him educational credit. Young appealed the denial of his petition, and

       our supreme court clarified that post-conviction relief proceedings are the

       appropriate procedure for presenting claims for educational credit time. Young,

       888 N.E.2d at 1256. The court also admonished Young that, to prevail in a

       post-conviction relief proceeding, he must present evidence supporting each

       portion of his claim, including what the relevant DOC administrative grievance

       procedures were and that he had exhausted them at all levels. Id. at 1257.


[13]   On the other hand, in Jackson v. Wrigley, 921 N.E.2d 508 (Ind. Ct. App. 2010),

       Jackson, an inmate in the DOC, filed a federal §1983 civil rights lawsuit

       challenging the DOC’s visitation policy. The DOC moved for and was granted

       summary judgment on the basis that there were no genuine issues of material

       fact regarding whether Jackson exhausted his administrative remedies. On

       appeal, we acknowledged that most, if not all, federal circuits consider the

       exhaustion of administrative remedies an affirmative defense in this type of

       lawsuit unless the failure to exhaust remedies is readily apparent or

       unambiguously established from the face of the record. Jackson, 921 N.E.2d at

       512. We rejected the DOC’s argument that Jackson’s amended complaint did

       not include what steps he took to exhaust his administrative remedies because

       the DOC, as the party asserting the affirmative defense, had the burden of

       proving the lack of exhaustion of remedies. Id.


       Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015   Page 7 of 10
[14]   Although Jackson is not directly on point, we believe its reasoning should apply

       here, where we are faced with a civil replevin action as opposed to a post-

       conviction relief proceeding in which the petitioner bears the burden of

       establishing the grounds for relief by a preponderance of the evidence. See

       Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014). Unlike a post-conviction

       relief proceeding, “To recover in an action for replevin, a plaintiff must prove

       his title or right to possession; that the property is unlawfully detained; and that

       the defendant wrongfully holds possession.” Dawson v. Fifth Third Bank, 965

       N.E.2d 730, 735 (Ind. Ct. App. 2012). Because exhaustion of remedies is not

       an element of Alkhalidi’s replevin action, the exhaustion requirement is more

       appropriately considered an affirmative defense. See Willis v. Westerfield, 839

       N.E.2d 1179, 1185 (Ind. 2006) (explaining that an affirmative defense raises

       matters outside the scope of the prima facie case as opposed to controverting an

       element of a plaintiff’s prima facie case). The proponent of an affirmative

       defense bears the burden of proof. Id. Accordingly, we conclude that the DOC,

       not Alkhalidi, had the burden of proving that Alkhalidi failed to exhaust his

       administrative remedies.


[15]   The limited record before us shows that on November 7, 2012, the day

       Alkhalidi’s grievance was denied, he requested an appeal form. The DOC told

       Alkhalidi to send his request to Wabash “so they have a record of it.”

       Appellant’s App. p. 33. On December 4, 2012, Alkhalidi sent a letter to

       Wabash requesting an appeal form but did not receive a response. Upon the

       close of Alkhalidi’s case-in-chief, the DOC raised the issue of exhaustion of


       Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015   Page 8 of 10
       administrative remedies and moved for dismissal on the basis that Alkhalidi

       failed to prove he exhausted his administrative remedies. Exhaustion is not an

       element of Alkhalidi’s replevin action, and there is no indication that the DOC

       offered any evidence proving that Alkhalidi failed to exhaust his administrative

       remedies at the trial. 3 In what the DOC describes as an “oddity,” the parties

       apparently submitted documentary evidence with their supplemental briefs.

       Appellee’s Br. p. 11 n.7. Our review of the limited documentary evidence

       provided by the parties in their appendices does not clearly establish that

       Alkhalidi failed to exhaust his administrative remedies. 4 Thus, based on the

       record before us, we must conclude that the DOC has not proven that Alkhalidi

       failed to exhaust the available administrative remedies. As such, the small

       claims court’s involuntary dismissal of Alkhalidi’s claim was clearly erroneous.


                                                   Conclusion
[16]   The small claims court had subject matter jurisdiction to consider Alkhalidi’s

       replevin claim. The DOC, not Alkhalidi, had the burden of proving that

       Alkhalidi failed to exhaust his administrative remedies before filing his claim.

       Because the DOC did not prove such, the small claims court erroneously

       dismissed Alkhalidi’s claim. We reverse and remand.




       3
         The DOC agrees, “that if a claimant attempts to use an administrative process but the governmental entity
       does not respond then the claimant may be excused from the exhaustion requirement.” Appellee’s Br. p. 22.
       4
         To the extent the DOC contends on appeal that Alkhalidi’s letter to Wabash was not timely, this issue was
       not raised to the small claims court and is waived. See N. Indiana Pub. Serv. Co. v. Sloan, 4 N.E.3d 760, 766
       (Ind. Ct. App. 2014) (finding waiver were an issue was raised for the first time on appeal), trans. denied.

       Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015                        Page 9 of 10
[17]   Reversed and remanded.


       Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 77A01-1406-SC-278 | August 28, 2015   Page 10 of 10
