 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.




                                                             Sep 24 2014, 10:12 am


APPELLANT PRO SE:
SERVANES J. WILSON
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

SERVANES J. WILSON, SR.,                           )
                                                   )
       Appellant,                                  )
                                                   )
           vs.                                     )        No. 77A05-1309-PL-476
                                                   )
WABASH VALLEY CORRECTIONAL                         )
FACILITY and INDIANA DEPARTMENT                    )
OF CORRECTION,                                     )
                                                   )
       Appellee.                                   )

                    APPEAL FROM THE SULLIVAN SUPERIOR COURT
                         The Honorable Robert E. Springer, Judge
                             Cause No. 77D01-1308-PL-457


                                       September 24, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       SerVanes Wilson (“Wilson”), an inmate at the Wabash Valley Correctional

Facility, appeals the trial court’s dismissal of his complaint against the Indiana

Department of Correction and the Wabash Valley Correctional Facility. Finding no error,

we affirm.

                             Facts and Procedural History

       In October 2010, Wilson was convicted by a jury of Class A felony dealing in

cocaine and Class A misdemeanor possession of marijuana. Wilson was ordered to serve

concurrent sentences of twenty years for the dealing in cocaine conviction and thirty days

for the possession of marijuana conviction.        Wilson filed a direct appeal of his

convictions, claiming that the trial court abused its discretion in admitting certain items

into evidence and that the State failed to present sufficient evidence to support his

convictions. This court issued an opinion affirming Wilson’s convictions on July 1, 2011.

See Wilson v. State, No. 49A02-1012-CR-1288, slip op. (Ind. Ct. App. July 1, 2011).

       On July 17, 2012, Wilson filed a petition for post-conviction relief. Wilson’s post-

conviction counsel withdrew her appearance on November 20, 2012 and notified Wilson

that his post-conviction hearing was set for March 15, 2013 and that he would need to

proceed pro se.

       Beginning on November 21, 2012, Wilson attempted to access legal materials on

the Wabash Valley Correctional Facility’s computer-based law library system to prepare

a motion for summary disposition before its deadline of December 14, 2012. However,

apparently because of a computer system malfunction, Wilson was unable to access any

legal materials. Wilson contacted several Wabash Valley Correctional Facility staff

                                            2
members, including correctional officers, a casework manager, a unit counselor, and the

facility superintendent, requesting access to the legal materials. When his requests were

denied or ignored, he contacted the American Civil Liberties Union of Indiana, which

notified him that it would not be able to evaluate his claim for several weeks.

       On February 4, 2013, Wilson filed a motion for continuance with the post-

conviction court. The court granted his motion on February 12, 2013, rescheduling the

deadline for the filing of Wilson’s motion for summary disposition to May 14, 2013 and

his post-conviction hearing from March 15, 2013 to August 16, 2013.

       On March 4, 2013, Wilson filed a complaint in Sullivan Circuit Court against the

Indiana Department of Correction and the Wabash Valley Correctional Facility, alleging

the violation of his First Amendment right of access to the courts. Three days later, on

March 7, 2013, Wilson’s access to the prison law library was restored. About one month

after Wilson filed his complaint, on April 5, 2013, the trial court issued an order

dismissing Wilson’s complaint without prejudice, finding that the complaint was

“frivolous in that it does not have an arguable basis in the law and does not state a claim

upon which relief may be granted” because (1) Wilson failed to comply with the Indiana

Tort Claims Act; (2) Wilson failed to pay a filing fee; and (3) Wilson failed to prove that

he exhausted his administrative remedies before filing his complaint. Appellant’s App. p.

27.

       On April 24, 2013, Wilson filed a tort claim with the Indiana Attorney General’s

office, the Indiana Department of Correction Tort Claims Administrator, and the Wabash



                                             3
Valley Correctional Facility. 1 Then, on August 22, 2013, Wilson filed a second

complaint with the trial court, alleging the violation of his First Amendment right of

access to the courts. The following day, August 23, 2013, the trial court issued an order

dismissing Wilson’s complaint with prejudice. In its order, the trial court found again

that Wilson’s claim was “frivolous in that it does not have an arguable basis in the law

and may not state a claim upon which relief may be granted.” Appellant’s App. p. 36.

       Wilson now appeals.

                                    Discussion and Decision

       Wilson argues that the trial court erred in dismissing his complaint. Our supreme

court has held:

       A defendant who chooses to proceed pro se must accept the burdens and
       hazards incidental to his position. In Engle v. State (1984), Ind., 467
       N.E.2d 712, the defendant argued the trial court erred in denying his
       request for direct access to a law library. We found that his right of access
       to the court had not been undermined because he had access to legal
       materials and legal assistance through his standby counsel.

Jenkins v. State, 492 N.E.2d 666, 668 (Ind. 1986) (internal citations omitted).

       Here, during a temporary lack of access to the prison’s computerized law library

system, Wilson sought and received a continuance from the trial court. His access to the

law library was restored over a month before the deadline for the filing of his petition for

summary disposition and over five months before his post-conviction evidentiary

hearing, giving him ample opportunity to access the library to prepare his materials. Like

the defendant in Engle, Wilson’s access to legal materials was not undermined in such a
1
  Although the record is unclear, it appears that Wilson’s tort claim was deemed denied when it was not
processed after ninety days. See Ind. Code § 34-13-3-11.

                                                  4
way as to cause him prejudice. See Higgason v. State, 789 N.E.2d 22 (Ind. Ct. App.

2003) (holding that the trial court properly grants a motion to dismiss for failure to state a

claim if it is apparent that the facts alleged in the complaint are incapable of supporting

relief under any set of circumstances; appellate court sustains the trial court’s ruling if it

can affirm on any basis found in the record).

                                        Conclusion

       Because Wilson’s access to the prison law library was restored over a month

before the deadline for his petition for summary disposition and over five months before

his post-conviction hearing, he cannot claim that the trial court erred in dismissing his

complaint against the Indiana Department of Correction and the Wabash Valley

Correctional Facility.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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