MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                     May 10 2018, 8:43 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEES
Kevin J. Mamon                                           Michael R. Morow
Michigan City, Indiana                                   STEPHENSON MOROW & SEMLER
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin J. Mamon,                                          May 10, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         30A01-1706-PL-1210
        v.                                               Appeal from the Hancock Circuit
                                                         Court
Ryan Garrity, et al.,                                    The Honorable Charles D.
Appellees-Defendants.                                    O’Connor, Special Judge
                                                         Trial Court Cause No.
                                                         30C01-1609-PL-1384



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1706-PL-1210 | May 10, 2018           Page 1 of 7
                                          Case Summary
[1]   Pro-se Appellant Kevin Mamon (“Mamon”) appeals the Indiana Trial Rule 37

      discovery sanction dismissal of his complaint against the Hancock County

      Sheriff’s Department and several of its employees, in their personal capacities.

      Mamon presents the sole issue of whether the dismissal was an abuse of the

      trial court’s discretion. We affirm.



                            Facts and Procedural History
[2]   On October 23, 2013, Mamon filed a complaint for personal injury damages,

      naming as defendants Ryan Garrity, Jordan Conley, Andy Craig, Keither

      Oliver, Kathy Pierce and the Hancock County Sheriff’s Department

      (collectively, “the Defendants”). Mamon alleged that he had been battered by

      one or more Sheriff’s Department employees, and others had acquiesced in

      Mamon’s mistreatment. The complaint, as supplemented on April 1, 2014,

      stated allegations of unreasonable search and seizure, excessive force, and

      retaliation in violation of the Fourth, Fourteenth, and First Amendments to the

      United States Constitution, respectively. The complaint also alleged state law

      claims, purportedly: assault and battery, abuse of authority, negligence,

      negligent supervision, intentional infliction of emotional distress, negligent

      infliction of emotional distress, and respondeat superior liability.


[3]   On October 30, 2013, the case was removed to federal court. On March 2,

      2015, the United States District Court granted summary judgment to the


      Court of Appeals of Indiana | Memorandum Decision 30A01-1706-PL-1210 | May 10, 2018   Page 2 of 7
      Defendants on all federal claims. The state law claims were remanded to the

      Madison Circuit Court.1


[4]   On November 17, 2015, the Defendants filed a motion for leave to depose

      Mamon, an incarcerated person. The motion was granted. After receiving

      notice that he was to be deposed on November 25, 2015, Mamon drafted a

      memorandum to the superintendent of the prison. Mamon declined to

      participate in a deposition if he was required to appear in chains or shackles,

      consistent with his then-assigned supervisory classification. The contents of the

      memorandum were conveyed by prison personnel to the Defendant’s attorney,

      and the scheduled deposition was cancelled.


[5]   Significant time passed, a portion of which Mamon spent in segregation. After

      consultation with prison authorities, the Defendants decided not to request a

      compulsory cell extraction. Mamon was later placed in a non-segregation unit

      of the Indiana State Prison in Michigan City, Indiana. The Defendants

      provided notice to Mamon and arranged for a deposition to be conducted on

      January 25, 2017 at the prison. The Defendant’s counsel hired a court reporter

      and appeared for the deposition. However, a correctional officer advised the

      attorney that Mamon refused to appear.




      1
       The case was later transferred, pursuant to a motion for change of venue filed by the Defendants, to the
      Hancock Circuit Court.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1706-PL-1210 | May 10, 2018               Page 3 of 7
[6]   On February 13, 2017, the Defendants filed a motion to dismiss, pursuant to

      Trial Rule 37. On February 17, 2017, Mamon filed a motion to deny the

      petition for dismissal. On March 31, 2017, the trial court conducted a hearing

      at which Mamon appeared telephonically. Mamon’s complaint was dismissed;

      he now appeals.



                                 Discussion and Decision
[7]   “Our discovery rules are designed to allow a liberal discovery procedure, the

      purposes of which are to provide parties with information essential to the

      litigation of all relevant issues, to eliminate surprise and to promote settlement,

      with a minimum of court involvement in the process.” Canfield v. Sandock, 563

      N.E.2d 526, 528 (Ind. 1990). The trial court has broad discretion in ruling on

      issues of discovery. Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399

      (Ind. Ct. App. 1997). Discretion is a privilege that is afforded a trial court to act

      in accordance with what is fair and equitable in each case. McCullough v.

      Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993).


[8]   Because the nature of discovery issues is fact-sensitive, the trial court’s ruling is

      presumptively correct, and will stand absent a showing of clear error and

      resulting prejudice. Smith v. Smith, 854 N.E.2d 1, 4 (Ind. Ct. App. 2006). We

      will reverse only when the trial court has abused its discretion, i.e., when the

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

      circumstances before the court or when the trial court has misinterpreted the

      law. Brown v. Katz, 868 N.E.2d 1159, 1165 (Ind. Ct. App. 2007).

      Court of Appeals of Indiana | Memorandum Decision 30A01-1706-PL-1210 | May 10, 2018   Page 4 of 7
[9]    Although discovery is designed to be self-executing, when the goals of the

       system break down, Trial Rule 37 provides the trial court with tools to enforce

       compliance. Hatfield, 676 N.E.2d at 399. Pursuant to Indiana Trial Rule

       37(D):


                If a party … fails to appear before the officer who is to take his
                deposition, after being served with a proper notice, … the court
                in which the action is pending on motion may make such orders
                in regard to the failure as are just, and among others it may take
                any action authorized under paragraphs (a), (b), and (c) of
                subdivision (B)(2) of this rule.


       Rule 37(B)(2)(c) provides that the trial court may, as a sanction for failure to

       comply with a discovery order, enter:


                An order striking out pleadings or parts thereof, or staying further
                proceedings until the order is obeyed, or dismissing the action or
                proceeding or any part thereof, or rendering a judgment by
                default against the disobedient party[.]


[10]   Mamon contends that the sanction of dismissal was too severe and the trial

       court should have instead ordered him to pay expenses related to the failed

       deposition, pursuant to Trial Rule 37(B), providing in relevant part:


                In lieu of any of the foregoing orders or in addition thereto, the
                court shall require the party failing to obey the order or the
                attorney advising him or both to pay the reasonable expenses,
                including attorney’s fees, caused by the failure, unless the court
                finds that the failure was substantially justified or that other
                circumstances make an award of expenses unjust.



       Court of Appeals of Indiana | Memorandum Decision 30A01-1706-PL-1210 | May 10, 2018   Page 5 of 7
[11]   At the hearing, counsel for the Defendants argued that Mamon had twice

       willfully failed to comply with a deposition order. Additionally, counsel

       suggested that monetary sanctions would be inappropriate due to Mamon’s

       incarceration and indigency.


[12]   Mamon explained his non-compliance thus:


               First and foremost, I am not in a disciplinary segregation unit.
               Nor was I at the time that the attorney came up here to depose
               me on January 25th, I simply refused to be deposed because I felt
               the attorney was attempting to gather expertise [sic] statements
               from me in order to use in an oppressive manner to escape
               liability of his case for his clients.


       (Tr. at 7.) Mamon elaborated upon his position: he had promptly responded to

       written interrogatories from the Defendants; he had sent a notice to the

       Defendants’ attorney of intent “to cross examine his clients”; and on the day of

       the scheduled deposition, Mamon had been advised that only the attorney

       showed up at the prison and not his clients.2 (Tr. at 7.) Based upon a perceived

       lack of cooperation from the Defendants in the discovery process, Mamon

       “ask[ed] the prison officials to terminate the deposition” and filed a motion for

       an order of protection. (Tr. at 7.)




       2
        The record does not indicate that any of the Defendants were properly noticed to appear at a scheduled
       deposition in accordance with Indiana Trial Rule 45(D)(2), which provides in relevant part, with regard to a
       subpoena for taking depositions: “An individual may be required to attend an examination only in the
       county wherein he resides or is employed or transacts his business in person, or at such other convenient
       place as is fixed by an order of court.”

       Court of Appeals of Indiana | Memorandum Decision 30A01-1706-PL-1210 | May 10, 2018               Page 6 of 7
[13]   At the hearing, Mamon asked the trial court “to limit discovery to written

       interrogatories or a written deposition since the Defendants refuse to appear in

       person so that I can cross examine them.” (Tr. at 9.) After two instances of

       non-compliance, Mamon indicated to the trial court that he would provide oral

       testimony in a future deposition subject to two conditions, a new court order

       and reciprocal testimony from the Defendants. Mamon did not challenge the

       representation of his indigency or suggest a monetary sanction in lieu of

       dismissal; he did so only post-hearing. Moreover, even if we assume that

       Mamon is no longer indigent and could satisfy monetary sanctions, a trial court

       is not required to impose lesser sanctions prior to imposing the ultimate

       sanction of dismissal. Hatfield, 676 N.E.2d at 399.



                                               Conclusion
[14]   The trial court did not abuse its discretion by dismissing Mamon’s complaint.


[15]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1706-PL-1210 | May 10, 2018   Page 7 of 7
