      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                 FILED
      regarded as precedent or cited before any                                        Aug 31 2020, 11:00 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                                         ATTORNEYS FOR APPELLEE
      Kevin L. Martin                                          Curtis T. Hill, Jr.
      Westville, Indiana                                       Attorney General of Indiana
                                                               Abigail R. Recker
                                                               Aaron T. Craft
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kevin L. Martin,                                         August 31, 2020
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               20A-CT-465
              v.                                               Appeal from the
                                                               Sullivan Circuit Court
      Superintendent Dick Brown,                               The Honorable
      Appellee-Defendant.                                      Robert E. Hunley, Judge
                                                               Trial Court Cause No.
                                                               77C01-1710-CT-629



      Kirsch, Judge.


[1]   Kevin L. Martin (“Martin”) appeals the trial court’s dismissal of his complaint

      pursuant to Indiana Trial Rule 41(E) for Martin’s failure to prosecute his claim.

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-465 | August 31, 2020                  Page 1 of 6
      On appeal, Martin raises several issues, which we consolidate and restate as

      whether the trial court committed reversible error by dismissing Martin’s

      complaint without first setting a hearing.


[2]   We reverse and remand for further proceedings.


                                 Facts and Procedural History
[3]   On October 23, 2017, Martin filed a complaint against numerous employees of

      the Indiana Department of Correction (“DOC”) and two attorneys not

      employed by DOC. Appellant’s App. Vol. 2 at 2-3. On November 2, 2017, the

      trial court granted Martin’s motion for a fee waiver; the Chronological Case

      Summary entry stated that Martin was to “provide the correct amount of

      summons and copies of the complaint to the Clerk before the Clerk to issue the

      summons.” Id. at 3.


[4]   On November 16, 2017, Martin filed what the trial court treated as a motion to

      reconsider, and the trial court denied that motion on December 15, 2017. Id. at

      3-4; Appellee’s App. Vol. II at 14-24. On January 4, 2018, Martin filed a notice of

      appeal. Appellant’s App. Vol. II at 4. However, in an order dated August 1,

      2018, we dismissed Martin’s appeal because he failed to file his appellant’s brief

      within thirty days of service of the Notice of Completion of Clerk’s Record.

      Martin v. Prison Guards Wabash Valley Corr. Facility, No. 18A-CT-60 (Ind. Ct.

      App. Aug. 1, 2018), appeal dismissed, trans. denied.


[5]   Nearly two years later, the trial court realized that Martin’s case had

      inadvertently been removed from its active docket due to inactivity. Appellant’s
      Court of Appeals of Indiana | Memorandum Decision 20A-CT-465 | August 31, 2020   Page 2 of 6
      App. Vol. II at 5. The case was placed back on the trial court’s active docket,

      and, on January 23, 2020, after Martin still had not provided the correct

      number of summons and copies of the complaint, the trial court sua sponte

      dismissed Martin’s case for failure to prosecute under Indiana Trial Rule 41(E)

      (“Trial Rule 41(E)”). Id. at 5-6. The trial court issued the order without setting

      a hearing. Id. at 5. Martin now appeals.


                                     Discussion and Decision
[6]   Martin contends the trial court erred by dismissing his complaint pursuant to

      Trial Rule 41(E) without first setting a hearing. Trial Rule 41(E) provides:


              Whenever there has been a failure to comply with these rules or
              when no action has been taken in a civil case for a period of sixty
              [60] days, the court, on motion of a party or on its own motion
              shall order a hearing for the purpose of dismissing such case. The
              court shall enter an order of dismissal at plaintiff's costs if the
              plaintiff shall not show sufficient cause at or before such hearing.
              Dismissal may be withheld or reinstatement of dismissal may be
              made subject to the condition that the plaintiff comply with these
              rules and diligently prosecute the action and upon such terms
              that the court in its discretion determines to be necessary to
              assure such diligent prosecution.


      Id. (emphasis added). “We will reverse a Trial Rule 41(E) dismissal for failure

      to prosecute only in the event of a clear abuse of discretion, which occurs if the

      trial court’s decision is against the logic and effect of the facts and

      circumstances before it.” Petrovski v. Neiswinger, 85 N.E.3d 922, 924 (Ind. Ct.

      App. 2017). “We will affirm if there is any evidence that supports the decision


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-465 | August 31, 2020   Page 3 of 6
      of the trial court.” Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App.

      2003), trans. denied.


[7]   The purpose of Trial Rule 41(E) is “‘to ensure that plaintiffs will diligently

      pursue their claims. The rule provides an enforcement mechanism whereby a

      defendant, or the court, can force a recalcitrant plaintiff to push his case to

      resolution.’” Belcaster, 785 N.E.2d at 1167 (quoting Benton v. Moore, 622 N.E.2d

      1002, 1006 (Ind. Ct. App. 1993)). The plaintiff bears the burden of moving the

      litigation forward. Lee v. Pugh, 811 N.E.2d 881, 885 (Ind. Ct. App. 2004).

      “‘Courts cannot be asked to carry cases on their dockets indefinitely and the

      rights of the adverse party should also be considered. He should not be left with

      a lawsuit hanging over his head indefinitely.’” Belcaster, 785 N.E.2d at 1167

      (quoting Hill v. Duckworth, 679 N.E.2d 938, 939-40 (Ind. Ct. App. 1997)).

      However, we “view dismissals with disfavor, and dismissals are considered

      extreme remedies that should be granted only under limited circumstances.”

      Caruthers v. State, 58 N.E.3d 207, 211 (Ind. Ct. App. 2016) (citing Am. Family

      Ins. Co. ex rel. Shafer v. Beazer Homes Ind., LLP, 929 N.E.2d 853, 857 (Ind. Ct.

      App. 2010)).


[8]   Trial Rule 41(E) requires a hearing and dismissing a case without a hearing is

      improper. Wright v. Miller, 989 N.E.2d 324, 328 n.3 (Ind. 2013). This is a

      bright line rule; the failure to conduct a hearing cannot be harmless error.

      Rumfelt v. Himes, 438 N.E.2d 980, 982-83 (Ind. 1982). “[J]udgments of

      dismissal entered without such a hearing are subject to reversal.” Baker &

      Daniels, LLP v. Coachmen Indus., Inc., 924 N.E.2d 130, 137 (Ind. Ct. App. 2010),

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-465 | August 31, 2020   Page 4 of 6
       trans. denied; see also Caruthers, 58 N.E.3d at 209; Robertson v. State, 687 N.E.2d

       223, 224-25 (Ind. Ct. App. 1997), trans. denied.


[9]    Here, the trial court failed to set the required hearing and dismissed Martin’s

       case without notice to Martin to give him the opportunity to show cause why

       his complaint should not be dismissed. Appellant’s App. Vol. II at 5. Thus, the

       trial court abused its discretion in dismissing Martin’s complaint. See Grant v.

       Wal-Mart Stores, Inc., 764 N.E.2d 301, 303 (Ind. Ct. App. 2002). Accordingly,

       we reverse and remand and instruct the trial court to set a hearing to allow

       Martin to show cause why his complaint should not be dismissed.1 See

       Robertson, 687 N.E.2d at 224-25.


[10]   Reversed and remanded with instructions for further proceedings.2


       Pyle, J., and Tavitas, J., concur.




       1
         Martin also argues that the trial court exhibited bias against him, supposedly evinced by the trial court’s
       dismissal of Martin’s complaint and by the trial court’s statement that Martin’s case “[would] never move
       forward.” Appellant’s Br. at 15. Since we reverse and remand this case because the trial court should have set
       a hearing before dismissing Martin’s complaint, we need not address this issue. However, to the extent
       Martin asks us to order the trial judge to recuse himself on remand, we deny that request for two reasons.
       First, rulings adverse to a party do not establish judicial bias. See Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct.
       App. 2009), trans. denied. Second, Martin cites nothing in the record to support his claim that the trial court
       said Martin’s case would not “move forward,” so Martin has waived that claim. See Wingate v. State, 900
       N.E.2d 468, 475 (Ind. Ct. App. 2009).
       2
         On July 2, 2020, another panel of this court reviewed an appeal that Martin brought under facts and
       circumstances nearly identical to those in this appeal: Martin had sued DOC officials, and the trial court
       dismissed the case pursuant to Trial Rule 41(E). In a memorandum decision, the panel reversed the
       dismissal because the trial court had failed to set a hearing before dismissing Martin’s case. See Martin v.
       Prison Guards Wabash Valley Corr. Facility, No. 20A-CT-464, 2020 WL 3581135 (Ind. Ct. App. July 2, 2020).



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