MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Sep 24 2019, 9:10 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




APPELLANT PRO SE
Billy J. Lemond
Westville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Billy J. Lemond,                                         September 24, 2019
Appellant- Plaintiff,                                    Court of Appeals Case No.
                                                         19A-SC-708
        v.                                               Appeal from the LaPorte Superior
                                                         Court
Indiana Department of                                    The Honorable Jeffrey L. Thorne,
Correction, State of Indiana, and                        Judge
Westville Correctional Facility,                         Trial Court Cause No.
Appellees- Defendants.                                   46D03-1812-SC-2642




Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019                   Page 1 of 10
                                               Case Summary
[1]   Billy Lemond appeals the small claims court’s dismissal of his claim against the

      Westville Correctional Facility, the Indiana Department of Correction

      (“DOC”), and the State of Indiana (collectively, “Defendants”). 1 We affirm.


                                                        Issue
[2]   Lemond raises one issue, which we restate as whether the small claims court

      erred by dismissing Lemond’s claim.


                                                       Facts
[3]   Lemond is incarcerated at the Westville Correctional Facility. According to

      Lemond, officers improperly confiscated some of his personal property on July

      8, 2018. Lemond claims to be missing the following: “One pair of Sweatpants,

      one box of Tea bags, two boxes of Sugar Substitute, one Minced Onion, one

      bag of Coffee, one box of Saltine Crackers, One Salt and Pepper shaker[], One

      Mrs. Dash Seasoning.” Appellant’s App. Vol. II p. 29. According to Lemond,

      he filed a notice of tort claim with the DOC on July 30, 2018, but failed to use

      the proper form. Lemond claims to have filed another notice of tort claim with

      the DOC on October 11, 2018, using the correct form.




      1
        Defendants filed a notice of non-involvement with this appeal. Defendants noted that they were not issued
      a summons in the small claims court matter, that they were not involved in the appeal, and that they did not
      intend to file a brief. This Court accepted Defendants’ notice of non-involvement.

      Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019               Page 2 of 10
[4]   On November 7, 2018, Lemond filed a proposed notice of small claims

      complaint against Defendants pursuant to Indiana Code Chapter 34-58-1,

      which provides a screening procedure for offender litigation. Lemond alleged

      that DOC staff took his personal property valued at $29.19. Lemond requested

      $29.19 plus $2.35 in prejudgment interest and $100 for “expenses and time in

      filing tort and claim.” Id. at 9.


[5]   The small claims court conducted the review provided for in Indiana Code

      Section 34-58-1-2, and on December 28, 2018, the small claims court entered

      the following order:


              Plaintiff having submitted his original claim for filing on
              November 7, 2018 and the Court having ordered the Clerk to
              docket the matter without receiving a filing fee subject to review
              as required by I.C. 34-58-1-2 by Order entered November 21,
              2018, and the Court having conducted the review as required by
              I.C. 34-58-1-2 issues the following:


                  FINDINGS OF FACT AND CONCLUSIONS OF LAW


              1. The Court finds Plaintiff’s claim to be frivolous under I.C. 34-
              58-1-2.


              2. The Court finds that said claim was filed to harass the
              Defendants per I.C. 34-58-1-2.


              3. The Court finds that said claim does not comply with the
              requirements of I.C. § 34-13-3-7.




      Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019   Page 3 of 10
        4. To the extent that Plaintiff seeks recovery from Defendants in
        their capacities as employees or agents of the state of Indiana, the
        Indiana Department of Correction or any other governmental
        entity, Plaintiff’s claim wholly fails to comply with the
        requirements of the Indiana Tort Claims Act at I.C. 34-13-3-1 et
        seq.


        5. Plaintiff’s claim fails to comply with the provisions of I.C. §
        34-13-7-1.


        6. The Court finds Plaintiff’s claim to be frivolous under I.C. §
        3[4]-13-7-1.


        IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED that Plaintiff’s Motion for Relief from Fee and Civil
        Action be and the same is hereby granted and this cause shall be
        ordered filed without the payment of the required filing fee.


        IT IS FURTHER ORDERED, ADJUDGED AND
        DECREED that the claim as filed does not meet the
        requirements of Indiana law as set forth hereinabove.


        IT IS FURTHER ORDERED, ADJUDGED AND
        DECREED that Plaintiff be and he is hereby given an additional
        thirty (30) days from which to file additional pleadings and/or
        documents to remedy the aforementioned deficiencies.


        IT IS FURTHER ORDERED, ADJUDGED AND
        DECREED that the Clerk of this Court shall send copies of this
        Order to Plaintiff, the named Defendants, the Indiana
        Department of Correction, the Attorney General of the state of
        Indiana.


Id. at 18-19.

Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019   Page 4 of 10
[6]   Lemond then filed a motion to reconsider and submitted his tort claim notices

      and limited information regarding prior litigation he had filed. On February 14,

      2019, the small claims court entered an order denying Lemond’s motion to

      reconsider and found as follows:


              2. The Court finds Plaintiff’s claim to be frivolous under IC 34-
              58-1-2.


              3. The Court finds that said claim was filed to harass the
              Defendants per IC 34-58-1-2.


              4. Plaintiff’s claim wholly fails to comply with the provisions of
              IC 34-13-7-1.


              5. The Court finds . . . Plaintiff’s claim to be frivolous under IC
              3[4]-13-7-1.


      Id. at 6. Lemond now appeals.


                                                   Analysis
[7]   Lemond argues that the small claims court erred by dismissing his claim.

      Lemond’s claim was resolved pursuant to Indiana Code Chapter 34-58-1,

      which provides a screening procedure for offender litigation. In reviewing the

      dismissal of an offender’s claim, complaint, or dismissal pursuant to Indiana

      Code Chapter 34-58-1, “we employ a de novo standard of review.” Smith v.

      Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed,

      558 U.S. 1074, 130 S. Ct. 800 (2009). “Like the trial court, we look only to the

      well-pleaded facts contained in the complaint or petition.” Id. “Further, we

      Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019   Page 5 of 10
      determine whether the complaint or petition contains allegations concerning all

      of the material elements necessary to sustain a recovery under some viable legal

      theory.” Id.


[8]   Indiana Code Section 34-58-1-1 provides: “Upon receipt of a complaint or

      petition filed by an offender, the court shall docket the case and take no further

      action until the court has conducted the review required by section 2 of this

      chapter.” Section 2 of the chapter states:


              (a) A court shall review a complaint or petition filed by an
              offender and shall determine if the claim may proceed. A claim
              may not proceed if the court determines that the claim:


                       (1) is frivolous;


                       (2) is not a claim upon which relief may be granted; or


                       (3) seeks monetary relief from a defendant who is immune
                       from liability for such relief.


              (b) A claim is frivolous under subsection (a)(1) if the claim:


                       (1) is made primarily to harass a person; or


                       (2) lacks an arguable basis either in:


                               (A) law; or


                               (B) fact.



      Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019   Page 6 of 10
               (c) A court shall dismiss a complaint or petition if:


                        (1) the offender who filed the complaint or petition
                        received leave to prosecute the action as an indigent
                        person; and


                        (2) the court determines that the offender misrepresented
                        the offender’s claim not to have sufficient funds to
                        prosecute the action.


       Ind. Code § 34-58-1-2.


[9]    We conclude that the small claims court properly dismissed Lemond’s small

       claims court action. Although the small claims court identified several reasons

       for the dismissal, we focus on Lemond’s failure to comply with Indiana Code

       Chapter 34-13-3 and Indiana Code Section 34-13-7-1.


                                     I. Indiana Code Chapter 34-13-3

[10]   Indiana Code Section 34-13-3-7(a) requires an offender to “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 . .

       . .” The administrative claim must be filed within one hundred eighty days

       after the date of the alleged loss. I.C. § 34-13-3-7(a). The DOC must then

       evaluate each claim and “determine the amount due, if any.” I.C. § 34-13-3-

       7(b).




       Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019   Page 7 of 10
                Within ninety (90) days of the filing of a claim, the governmental
                entity shall notify the claimant in writing of its approval or denial
                of the claim. A claim is denied if the governmental entity fails to
                approve the claim in its entirety within ninety (90) days, unless
                the parties have reached a settlement before the expiration of that
                period.


       I.C. § 34-13-3-11. Indiana Code Section 34-13-3-13 provides that “[a] person

       may not initiate a suit against a governmental entity unless the person’s claim

       has been denied in whole or in part.” This “notice provision is not a statute of

       limitation but a procedural precedent which must be fulfilled before filing suit in

       a state court.” Orem v. Ivy Tech State Coll., 711 N.E.2d 864, 869 (Ind. Ct. App.

       1999), trans. denied.


[11]   Here, Lemond apparently filed his tort claim notice with the DOC on October

       11, 2018, and the claim was deemed denied on January 9, 2019, pursuant to

       Indiana Code Section 34-13-3-11. 2 Lemond, however, filed his small claims

       court action on November 7, 2018, long before the DOC responded to the claim

       or it was deemed denied. Lemond, consequently, filed his claim prematurely,

       and the small claims court properly dismissed it under Indiana Code Section

       34-58-1-2 because it is not a claim upon which relief may be granted. See, e.g.,

       Orem, 711 N.E.2d at 870 (holding that the trial court should have dismissed the

       plaintiff’s claim without prejudice because it was filed prematurely).




       2
        The tort claim was apparently denied in writing by the Special Investigation Division of the Office of the
       Attorney General on March 19, 2019, after this appeal was initiated.

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019                 Page 8 of 10
                                   II. Indiana Code Section 34-13-7-1

[12]   The small claims court concluded that “Plaintiff’s claim wholly fails to comply

       with the provisions of IC 34-13-7-1.” Appellant’s App. Vol. II pp. 6, 18.

       Indiana Code Section 34-13-7-1(a) requires the offender to, in part, submit the

       following to the trial court with the proposed complaint:


               (2) a list of all cases previously filed by the offender involving the
               same, similar, or related cause of actions; and


               (3) a copy of all relevant documents pertaining to the ultimate
               disposition of each previous case filed by the offender against any
               of the same defendants in a state or federal court. The relevant
               documents include:


                        (A) the complaint;


                        (B) any motions to dismiss or motions for summary
                        judgment filed by the defendants in the actions;


                        (C) the state or federal court order announcing disposition
                        of the case; and


                        (D) any opinions issued in the case by any appellate court.


[13]   Lemond failed to submit any information regarding his prior cases filed against

       the same defendants in his initial filing with the small claims court. When

       Lemond filed his motion to reconsider, he mentioned two prior cases he had

       filed against the same defendants. Lemond, however, failed to file any of the

       relevant documents, such as the complaint, orders, or opinions, regarding those

       Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019   Page 9 of 10
       two cases. Given Lemond’s failure to comply with Indiana Code Section 34-

       13-7-1, the small claims court properly dismissed his claim.


                                                 Conclusion
[14]   The small claims court properly dismissed Lemond’s claim. We affirm.


[15]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019   Page 10 of 10
