Pursuant to Ind.Appellate Rule 65(D), 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 APPELLEE:

KENNETH WILLIS GIBBS-EL                            GREGORY F. ZOELLER
Bunker Hill, Indiana                               Attorney General of Indiana

                                                   ELIZABETH ROGERS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                                                                 FILED
                                                                             Feb 23 2012, 9:24 am

                               IN THE
                                                                                     CLERK
                     COURT OF APPEALS OF INDIANA                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




KENNETH WILLIS GIBBS-EL                            )
                                                   )
       Appellant,                                  )
                                                   )
               vs.                                 )       No. 49A02-1107-CT-747
                                                   )
ARTHUR HEGEWALD,                                   )
                                                   )
       Appellee.                                   )


                     APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable S.K. Reid, Judge
                            Cause No. 49D14-1008-CT-37708


                                       February 23, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Kenneth Willis Gibbs-El (“Gibbs-El”) appeals pro se the Marion Superior Court’s

dismissal of his complaint against Arthur Hegewald, a former employee of the Indiana

Department of Correction. Gibbs-El’s numerous pleadings filed in this case arise from

the Indiana Parole Board’s decision to revoke his parole. Concluding that review of the

Parole Board’s revocation of Gibbs-El’s parole was adjudicated in a prior proceeding, we

affirm the trial court’s dismissal of this case.

                               Facts and Procedural History

       In 1984, Gibbs-El (formerly Kenneth Willis Gibbs) was convicted in Floyd

Superior Court of Class A felony attempted murder and ordered to serve fifty years in the

Indiana Department of Correction.          He was paroled in 2006 and his parole was

transferred from Indiana to Kentucky. But on June 18, 2007, a parole violation warrant

was issued, and on July 11, 2007, Gibbs-El waived extradition. The Indiana Parole

Board held a hearing on the alleged parole violations on September 7, 2007, at which

Gibbs-El pleaded not guilty to violating his parole. After the hearing, the Parole Board

revoked Gibbs-El’s parole, and Gibbs-El remains incarcerated in the Miami Correctional

Facility.

       On August 4, 2010, Gibbs-El filed a pro se petition for writ of habeas corpus in

Miami Circuit Court alleging that he was entitled to immediate release because his parole

was unlawfully revoked. Appellant’s App. p. 150. The Miami Circuit Court denied his

petition after concluding that his parole revocation hearing was held within sixty days

after Gibbs-El was made available to “the department by a jail or state correctional

facility.” Id. at 151; Ind. Code § 11-13-3-10. Gibbs-El did not appeal this ruling.

                                               2
       On August 26, 2010, Gibbs-El filed in Marion Superior Court a pro se Plenary

Suit for Damages against Hegewald, which alleged that Hegewald violated his “civil

right to remain at liberty, which arose out of his incarceration for the civil offense for

improperly revoking his parole[.]”      Appellant’s App. p. 44.      Specifically, Gibbs-El

claimed that the Parole Board did not properly revoke his parole because his revocation

hearing was not held in a timely manner and the extradition procedures were not properly

followed.

       Gibbs-El also requested a preliminary injunction enjoining Hegewald from

denying Gibbs-El his “constitutional liberty interest which he is entitled within the

protection of the Fourteenth Amendment[.]” Id. at 129. In that motion, Gibbs-El once

again argued that his parole revocation should have been dismissed because the hearing

was not held within the time limits established by Indiana Code section 11-13-3-10.

       On July 6, 2011, the Marion Superior Court issued an order dismissing Gibbs-El’s

case after reviewing the litigation under the parameters of Indiana Code section 34-58-1-

2. After noting that Gibbs-El’s pleadings in this case were based on his claim that his

September 7, 2007 parole revocation hearing was untimely under Indiana Code section

11-13-3-10, the trial court dismissed the case. In its order, the court observed that the

Miami Circuit Court had previously entered a judgment addressing the timeliness of

Gibbs-El’s parole revocation hearing. Therefore, the trial court concluded that Gibbs-

El’s claim “in this case is frivolous, is not a claim upon which relief can be granted, lacks




                                             3
an arguable basis in law and must be and is hereby” dismissed.1 Id. at 177. Gibbs-El

now appeals the trial court’s dismissal of his case.2

                                        Standard of Review

        Pursuant to Indiana Code section 34-58-1-2, an offender’s claim may not proceed

if the court determines it “is frivolous; is not a claim upon which relief may be granted;

or seeks monetary relief from a defendant who is immune from liability for such relief.”

If the court determines that a claim may not proceed, it must enter an order explaining

why the claim may not proceed and stating whether there remain any claims in the

complaint that may proceed. Ind. Code § 34-58-1-3. We review such determinations de

novo. Smith v. Huckins, 850 N.E.2d 480, 484 (Ind. Ct. App. 2006).

                                     Discussion and Decision

        As the trial court correctly determined, at the crux of Gibbs-El’s motions and

petitions filed in this case is his claim that the Indiana Parole Board did not hold his

parole revocation hearing in a timely manner as required by Indiana Code section 11-13-

3-10. In response, the State argues that Gibbs-El is collaterally estopped from litigating

this issue because the issue was previously adjudicated in the Miami Circuit Court.




1
 Throughout the Marion Superior Court proceedings, the parties also litigated whether Hegewald was
served certain pleadings and whether Hegewald, who had retired from the Department of Correction,
could afford Gibbs-El any relief. Hegewald was the only defendant named in this case.
2
  In a recent memorandum decision of our court, we admonished Gibbs-El for listing himself as an
attorney on his appellate brief and appendix. Specifically, we cautioned him that “in future pro se legal
endeavors, he should avoid making the false representation or creating the false impression that he is an
attorney.” Gibbs v. Ind. Parole Board, No. 52A04-1106-MI-378 (Ind. Ct. App. January 25, 2012). We
reiterate that admonishment because Gibbs-El has also represented himself as an attorney in this appeal.


                                                   4
       Issue preclusion, or collateral estoppel, bars the subsequent litigation of a
       fact or issue that was necessarily adjudicated in a former lawsuit if the same
       fact or issue is presented in the subsequent lawsuit. Where collateral
       estoppel is applicable, the former adjudication will be conclusive in the
       subsequent action even if the two actions are on different claims. However,
       the former adjudication will only be conclusive as to those issues that were
       actually litigated and determined therein. Collateral estoppel does not
       extend to matters that were not expressly adjudicated and can be inferred
       only by argument. In determining whether to allow the use of collateral
       estoppel, the trial court must engage in a two-part analysis: (1) whether the
       party in the prior action had a full and fair opportunity to litigate the issue,
       and (2) whether it is otherwise unfair to apply collateral estoppel given the
       facts of the particular case.

Edwards v. State, 862 N.E.2d 1254, 1259 (Ind. Ct. App. 2007), trans. denied (internal

citations omitted).

       The issue of whether Gibbs-El’s parole hearing was held in a timely manner as

required by Indiana Code section 11-13-3-10 was expressly determined by the Miami

Circuit Court in its October 5, 2010 order. That court properly determined that his parole

hearing, held on September 7, 2007, was held within sixty days of July 11, 2007, the date

that Gibbs-El waived extradition. See Appellant’s App. p. 151. And there is nothing in

the record before us that would lead us to conclude that Gibbs-El did not have a “full and

fair opportunity to litigate the issue” in the prior Miami Circuit Court proceedings. See

Edwards, 862 N.E.2d at 1259.

       For these reasons, Gibbs-El is collaterally estopped from raising his claim that his

parole should not have been revoked because of the alleged untimeliness of his parole

revocation hearing.    And his case was properly dismissed because his requests for




                                              5
monetary and injunctive relief arise solely from that claim. 3                    Finally, Gibbs-El’s

continued attempts to relitigate this issue are frivolous; therefore, the trial court did not

err when it dismissed his case pursuant to Indiana Code chapter 34-58-1.

        Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.




3
  Gibbs-El raises numerous procedural and substantive issues in his brief which we need not specifically
address because we have determined that he is collaterally estopped from raising the ultimate issue of the
timeliness of his parole revocation hearing.

                                                    6
