      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                  Jan 06 2016, 8:55 am
      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
      Anthony Fisher
      Pendleton, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Fisher,                                          January 6, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               64A04-1502-SC-83
              v.                                               Appeal from the Porter Superior
                                                               Court
      Charles Nightingale,                                     The Honorable David Chidester,
      Appellee-Respondent                                      Judge
                                                               Trial Court Cause No.
                                                               64D04-1412-SC-4425



      Robb, Judge.



                                Case Summary and Issue
[1]   Anthony Fisher, pro se, appeals the small claims court’s order dismissing his

      complaint for failure to prosecute. Fisher raises a single issue on appeal,

      Court of Appeals of Indiana | Memorandum Decision 64D04-1412-SC-4425 | January 6, 2016        Page 1 of 4
      whether the small claims court denied Fisher his constitutional right to bring a

      civil action. We reverse.



                            Facts and Procedural History
[2]   On December 5, 2014, Fisher—while incarcerated in the Pendleton

      Correctional Facility—filed a small claims action again Charles Nightingale.

      Fisher alleged Nightingale defrauded Fisher of $4,000. Also on December 5,

      the small claims court scheduled a hearing for January 30, 2015. Then, on

      December 9, acknowledging Fisher was incarcerated in the Pendleton

      Correction Facility, the small claims court issued an order stating, “The Court

      will not transport from DOC for small claim court. The case will be called for trial

      1/30/15 at 9 A.M. If [Fisher] if [sic] not present, matter will be dismissed.”

      Chronological Case Summary, Page 1 (emphasis added).


[3]   On January 5, 2015, Fisher filed a Motion for Trial by Affidavit or in the

      Alternate for Plaintiff to Attend Trial by Video Conference. The small claims

      court did not rule on Fisher’s motion. On January 30, Fisher was unable to

      attend the trial due to his incarceration, and the small claims court dismissed

      the action.



                                 Discussion and Decision
[4]   Fisher contends the small claims court denied his constitutional right to

      maintain a civil action because it dismissed his complaint without providing an

      alternate method to prosecute the action. Article 1, section 12 of the Indiana
      Court of Appeals of Indiana | Memorandum Decision 64D04-1412-SC-4425 | January 6, 2016   Page 2 of 4
      Constitution provides, “All courts shall be open; and every person, for injury

      done to him in his person, property, or reputation, shall have a remedy by due

      course of law. Justice shall be administered freely, and without purchase;

      completely, and without denial; speedily and without delay.” Prisoners have a

      constitutional right to bring a civil action. Zimmerman v. Hanks, 766 N.E.2d

      752, 757 (Ind. Ct. App. 2002). Prisoners who bring civil lawsuits, however,

      have no right to a transport order. Id. Therefore, the small claims court did not

      err in not issuing a transport order for Fisher to be brought to the trial.

[5]           Still, some avenue must exist for an incarcerated plaintiff to
              prosecute his claim, and we have previously noted that there are
              several alternatives to personal appearance in court, including
              submitting the case to the court on documentary evidence,
              telephonic conference, securing someone else to represent the
              plaintiff, and postponing the hearing until the plaintiff’s release.


      Adams v. Arvin Meritor, Inc., No. 49A02-1406-PL-465, 2015 WL 8319119, at *10

      (Ind. Ct. App. Dec. 9, 2015) (internal citation omitted). Despite knowing it was

      impossible for Fisher to attend trial due to his incarceration, the small claims

      court nonetheless ordered Fisher be present at trial, and made it clear that if

      Fisher failed to attend, the small claims court would dismiss the cause of action.

      The small claims court’s order completely, and prematurely, foreclosed any

      avenue for Fisher to prosecute his claim. See id. Therefore, when the small

      claims court dismissed the cause of action after Fisher did not attend the

      scheduled trial date, the small claims court denied Fisher’s constitutional right

      to prosecute his claim.


      Court of Appeals of Indiana | Memorandum Decision 64D04-1412-SC-4425 | January 6, 2016   Page 3 of 4
                                              Conclusion
[6]   By foreclosing any alternative avenue for Fisher to maintain his claim, the small

      claims court denied Fisher’s constitutional right to prosecute his claim.

      Accordingly, we reverse the dismissal of his small claims action.


[7]   Reversed.


      Barnes, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 64D04-1412-SC-4425 | January 6, 2016   Page 4 of 4
