MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Mar 03 2016, 8:32 am
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 APPELLEES
Kenneth W. Gibbs                                         Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Andrea E. Rahman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth W. Gibbs,                                        March 3, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         48A04-1510-SC-1613
        v.                                               Appeal from the Madison Circuit
                                                         Court
Wendy Knight, Lieutenant                                 The Honorable Thomas L. Clem,
B. St. John, Mr. Helming, and                            Judge
Robert Fox,                                              Trial Court Cause Nos.
Appellees-Defendants                                     48C05-1505-SC-1897
                                                         48C05-1505-SC-1898



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1510-SC-1613 | March 3, 2016     Page 1 of 4
[1]   Kenneth Gibbs appeals the dismissal of two small claims complaints he had

      filed against the appellees (collectively, the State). The trial court found that

      because Gibbs failed to file an administrative tort claim within the statutorily

      prescribed timeframe, he is not entitled to relief. We agree, and affirm.


                                                     Facts
[2]   Gibbs is an inmate at a correctional facility in Pendleton. On January 22 and

      23, 2015, Department of Correction (DOC) staff confiscated multiple items of

      Gibbs’s property. Gibbs filed a grievance with the DOC grievance

      administrator, but DOC ultimately concluded that the property was properly

      confiscated because it was either unauthorized or in excess of the amount

      permitted. On May 19, 2015, Gibbs filed two small claims complaints (one for

      each day on which his property was confiscated) against the State. The trial

      court combined the two cases. On August 5, 2015, the State filed a motion to

      dismiss for failure to state a claim. The trial court treated the motion as a

      motion for summary judgment and, on September 16, 2015, granted the motion

      and dismissed the complaints. Gibbs now appeals.


                                   Discussion and Decision
[3]   The State requested dismissal pursuant to Indiana Trial Rule 12(B)(6) for failure

      to state a claim. The State’s argument centered on Gibbs’s failure to file a

      notice of tort claim within the statutorily prescribed timeframe. As this required

      consideration of materials outside the face of the complaint, the trial court




      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-SC-1613 | March 3, 2016   Page 2 of 4
      properly treated the motion as one for summary judgment. Ind. Trial Rule

      12(B). Our standard of review on summary judgment is well settled:


              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving
              party is entitled to judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “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
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[4]   Indiana Code section 34-13-3-3(16) states that the State is not liable if a DOC

      inmate has not exhausted the administrative remedies and procedures set forth

      in section 7. Section 7, in turn, sets forth the following requirements:

              An offender must file an administrative claim with the
              department of correction to recover compensation for the loss of
              the offender’s personal property alleged to have occurred during
              the offender’s confinement as a result of an act or omission of the
              department or any of its agents, former officers, employees, or
              contractors. A claim must be filed within one hundred eighty
              (180) days after the date of the alleged loss.


      I.C. § 34-13-3-7(a).




      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-SC-1613 | March 3, 2016   Page 3 of 4
[5]   It is undisputed that Gibbs did not file a section 7 administrative claim within

      180 days of the property confiscation.1 He argues that because he was seeking

      recovery of his property, he did not fall under the purview of this section. We

      disagree, inasmuch as he also requested damages in the amount of $1,500 if his

      property had been destroyed. Section 7 explicitly states that “[a]n offender

      must file an administrative claim with the [DOC] to recover compensation.” It

      is clear that Gibbs was required to file an administrative claim; it is likewise

      clear that he failed to do so. Therefore, the trial court properly granted

      summary judgment in favor of the State.


[6]   The judgment of the trial court is affirmed.


      Bradford, J., and Pyle, J., concur.




      1
        Gibbs filed a grievance with the facility administrator, but that grievance does not suffice. He was required
      to complete a specific form and submit the form both to the head of the DOC facility and to the Tort Claim
      Administrator. 210 Ind. Admin. Code 1-10-3. He failed to file the required form and he failed to provide
      notice to the tort claim administrator.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-SC-1613 | March 3, 2016                Page 4 of 4
