                                                                                  FILED
      MEMORANDUM DECISION                                                    Apr 25 2016, 5:54 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
      Pursuant to Ind. Appellate Rule 65(D), this                                Court of Appeals
                                                                                   and Tax Court
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Malcolm Williams                                          Gregory F. Zoeller
      Michigan City, Indiana                                    Attorney General of Indiana
                                                                Aaron T. Craft
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Malcolm Williams,                                         April 25, 2016

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                49A02-1507-PL-952
              v.                                                Appeal from the Marion Superior
                                                                Court.
                                                                The Honorable Cynthia J. Ayers,
      Marion Thatcher,                                          Judge.
      Appellee-Defendant.                                       Cause No. 49D04-1502-PL-5005




      Friedlander, Senior Judge

[1]   After Malcolm Williams filed a pro se complaint for declaratory judgment and

      injunctive relief, and a motion for class certification, against Marion Thatcher,

      in his official capacity as the Unit Team Manager of the Honors Unit of the

      correctional facility in which Williams was incarcerated, and cross motions for


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PL-952 | April 25, 2016            Page 1 of 9
      summary judgment had been considered, the trial court denied Williams the

      relief he requested, which was based upon the Equal Protection Clause of the

      Fourteenth Amendment to the United States Constitution. In this appeal, we

      are asked to determine whether the trial court erred by denying Williams the

      relief he requested. Finding once again that the incentivization programs

      instituted by the Department of Correction for the purpose of granting

      additional privileges to eligible inmates does not violate the United States

      Constitution, we affirm.


[2]   In 2011, Williams was sentenced to an aggregate term of seventy-five years

      executed in the Department of Correction for his convictions of murder and

      Class A felony attempted murder. Williams has been incarcerated at the

      Indiana State Prison in Michigan City since June 3, 2011.


[3]   The ISP is a Level 4 maximum security facility capable of housing more than

      2,200 inmates, in addition to those housed in its minimum security unit. The

      maximum security unit, in which Williams was housed, houses offenders “with

      very long sentences and/or individuals convicted of violent crimes.” Appellee’s

      Br. p. 10. The ISP has established programs to encourage good behavior and to

      maintain the safety and security of the correctional facility. One of those

      programs is the honors program which is challenged here.


[4]   The honors unit is housed in I-Cell House at the ISP. Of the 130 prisoners

      alleged to be in the I-Cell House, eighty-eight are members of the honors unit.

      Prisoners who are admitted to the honors unit are given additional privileges


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      not granted to prisoners who are members of the general population. Examples

      of privileges granted to members of the honors unit are the opportunity to

      purchase an Xbox 360 and associated video games for personal use in their

      cells, and more frequent visitation from guests. Williams alleged that members

      of the honors unit have five microwaves available for their use, while members

      of other cell houses have two microwaves shared by roughly 300 to 400

      prisoners.


[5]   Eligibility for the honors unit, effective March 5, 2014, is available to offenders

      who: (1) are at least thirty years of age; (2) must have a minimum of two years

      at ISP; (3) must be in credit class I at the time of admittance to the program and

      maintain that classification; (4) must currently be assigned to a job or program

      and maintain an average or better evaluation; (5) must be clear of conduct

      involving weapons and/or bodily injury for forty-eight months and be clear of

      any conduct reports for twenty four months; (6) must not be an active member

      of a security threat group; (7) must have a medical code of “A” or “G”; (8)

      must be free of any ongoing investigations; (9) must meet all double-celling

      criteria; and (10) must not have a serious escape history. Appellant’s App. pp.

      40-41. One of the reasons for the age requirement for eligibility in the honors

      unit is that statistics compiled by the DOC show that prisoners younger than

      thirty years of age commit violations of prison rules at more than twice the rate

      of inmates who are thirty years old or older.


[6]   Williams, who was born August 11, 1989, attempted to apply for the honors

      unit, but was denied because, at age 23 or 24, he did not meet the minimum age

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      requirement. In its denial of his application, the DOC recognized Williams’s

      perfect conduct record. Because Williams was denied membership in the

      honors unit due to his age, he alleged in his complaint that the ISP violated the

      Equal Protection Clause of the Fourteenth Amendment by engaging in age

      discrimination and by treating Williams disparately without relation to penal

      interest. Although Williams did not seek damages for the alleged constitutional

      violation, he did seek a declaration that the age requirement was

      unconstitutional and that his right to equal treatment had been violated.


[7]   On June 24, 2015, the trial court entered an order denying Williams’s motion

      for summary judgment and request for class certification. The trial court

      granted the State’s cross-motion for summary judgment. The trial court’s

      judgment reads in pertinent part as follows:

              The Court FINDS that the Indiana State Prison is not forbidden
              by the federal or state Constitutions from instituting an honors
              program that rewards inmates for good behavior. The
              Defendants have shown that there is a rational basis for the ISP
              to impose an age restriction for admission in its honors unit, in
              that the older inmates generally have greater levels of maturity
              and are less prone to violence. The existence of the honors unit
              serves as an incentive to promote good behavior, particularly
              among long-term offenders for whom credit time and other
              reward systems might not be as effective. ISP’s experience,
              supported by its own records, shows that younger offenders are
              far more prone to violence and are less suited to placement in less
              restricted environments such as the honors unit. The honors unit
              provides inmates with an incentive for good behavior to get into
              the program, to not be removed from the program after being
              admitted, and serves as an example of model behavior. The age
              requirement protects the integrity of the program. The Plaintiff’s
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              equal protection claim fails because ISP’s age requirement for the
              honors unit is sufficiently related to the ISP’s legitimate objective
              in the safety and security of the facility.
      Appellant’s App. pp. 7-8. Williams now appeals.


[8]   Williams appeals from the denial of his motion for summary judgment. On

      appeal from a grant or denial of summary judgment, our standard of review is

      identical to that of the trial court. We must determine whether there exists a

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

      judgment as a matter of law. Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App.

      2006); see also Ind. Trial Rule 56(C). Appellate review of a summary judgment

      motion is limited to those materials specifically designated to the trial court.

      Pond v. McNellis, 845 N.E.2d 1043 (Ind. Ct. App. 2006), trans. denied. All facts

      and reasonable inferences drawn therefrom are construed in favor of the

      nonmovant. Id. The party appealing the judgment carries the burden of

      persuading the appellate court that the trial court’s decision was erroneous.

      Bradshaw v. Chandler, 916 N.E.2d 163 (Ind. 2009). Although specific findings

      may aid our review of a summary judgment ruling, they are not binding on this

      Court, Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263 (Ind.

      2014), and we may affirm a grant of summary judgment upon any basis

      supported by the evidence. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011).

      Moreover, “[t]he fact that the parties made cross-motions for summary

      judgment does not alter our standard of review. Instead, we must consider each

      motion separately to determine whether the moving party is entitled to

      judgment as a matter of law.” Pond, 845 N.E.2d at 1053.

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[9]    We recently considered and affirmed a trial court’s rejection of a nearly

       identical claim in Hicks v. Thatcher, 44 N.E.3d 1258 (Ind. Ct. App. 2015). In

       reaching that conclusion, we stated as follows:

               The Appellees have established that the disparate treatment
               complained of by Hicks bears a rational relation to a legitimate
               penological interest. As a whole, prison security is a primary,
               legitimate governmental interest that is influenced by things such
               as fostering responsibility and good behavior in inmates and
               using inmates as role models for other inmates. Conversely,
               Hicks has failed to demonstrate discrimination that was instituted
               for the purpose of causing adverse effects on the general
               population of inmates at ISP. The opposite is true; the Honor
               Unit at ISP, with its attendant privileges, was created to have
               positive effects on the behavior of the general population. As a
               panel of this Court previously noted, inmates do not forfeit all
               constitutional protections by reason of their conviction and
               confinement in prison. Faver v. Bayh, 689 N.E.2d 727, 730 (Ind.
               Ct. App. 1997). However, incarceration does bring about the
               necessary withdrawal or limitation of many privileges and rights,
               which is justified by the considerations underlying our penal
               system, including deterrence of crime, rehabilitation of inmates,
               and institutional safety and security. Id.
       Id. at 1263.


[10]   Williams’s argument on appeal actually supports the stated goals of the ISP in

       the creation of the Honors Unit and that those goals are having the desired

       impact. Prisoners, such as Williams, are conforming their conduct to become

       eligible for the program. The ISP acknowledged and we commend Williams

       for his lack of conduct issues while incarcerated. Williams can establish a




       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PL-952 | April 25, 2016   Page 6 of 9
       history of continued maturity and compliant behavior, while attaining the age

       at which his application can be fully considered.


[11]   The ISP has established that there is a rational basis for denying membership in

       the honors unit based upon age as we have recognized in Hicks. While

       Williams has begun to establish a history of good conduct while incarcerated,

       he has yet to achieve the age requirement for membership. While relying on

       Hicks, we understand that there are factual dissimilarities in Williams’s appeal.

       Hicks was between the age of thirty and thirty-five, and was denied membership

       because he had not met the minimum age requirement, which at the time was

       thirty-five. The age requirement was lowered to thirty during the pendency of

       Hicks’s challenge, and the State argued that he therefore lacked standing. We

       considered the issues he raised on behalf of others with standing, nonetheless.

       Here, Williams has several years before he reaches the minimum age

       requirement and there is no evidence that the age requirement for membership

       has been or will be lowered. The trial court did not err by granting the State’s

       motion for summary judgment and denying Williams’s motion.


[12]   Williams also challenges the trial court’s denial of his request for class

       certification, but does not offer cogent argument in support of this challenge. A

       pro se litigant is held to the same standards as a trained attorney and is afforded

       no inherent leniency simply by virtue of being self-represented. Zavodnik v.

       Harper, 17 N.E.3d 259 (Ind. 2014). Although this argument is arguably waived,

       however, we prefer to decide a case on the merits whenever possible. Omni Ins.

       Group v. Poage, 966 N.E.2d 750 (Ind. Ct. App. 2012), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PL-952 | April 25, 2016   Page 7 of 9
[13]   Whether an action is maintainable as a class action is committed to the sound

       discretion of the trial court. Chicago Title Ins. Co. v. Gresh, 888 N.E.2d 779 (Ind.

       Ct. App. 2008). On appellate review of a trial court’s order with respect to class

       certification, we apply an abuse of discretion standard. Id. The trial court’s

       certification order will be affirmed if it is supported by substantial evidence. Id.

       Misinterpretation of law will not justify affirmance under the abuse of

       discretion standard. Id.


[14]   Indiana Trial Rule 23 governs class certification. “The class action certification

       process promotes the efficiency and economy of litigation.” LHO Indianapolis

       One Lessee, LLC v. Bowman, 40 N.E.3d 1264 (Ind. Ct. App. 2014) (quoting

       Gomez v. St. Vincent Health, Inc., 622 F.Supp.2d 710, 717 (S.D. Ind. 2008)). A

       plaintiff bears the burden of establishing that the class certification requirements

       of Trial Rule 23 have been met. Id. Failure to meet any one of the

       requirements results in the denial of class status. Id. Whether these

       prerequisites have been met is a factual determination to be made by the trial

       court. Id.


[15]   Williams has presented no evidence of a defined class for certification. In fact,

       the trial court decided the issue on the merits, prior to the State’s response to

       the class certification issue, when ruling on the cross motions for summary

       judgment. Ind. Trial Rule 23 does not preclude the trial court from hearing a

       party’s motion for summary judgment before addressing the issue of

       certification of the class. Reel v. Clarian Health Partners, Inc., 855 N.E.2d 343

       (Ind. Ct. App. 2006). The trial court did not abuse its discretion by addressing

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       the issues presented in the cross motions for summary judgment prior to

       considering class certification, and ultimately denying it.


[16]   In light of the foregoing, we affirm the trial court’s judgment.


[17]   Judgment affirmed.


[18]   Vaidik, C.J., and Altice, J., concur.




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