                                                                           Oct 15 2015, 7:39 am




      APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEES
      Robert Hicks                                               Gregory F. Zoeller
      Michigan City, Indiana                                     Attorney General of Indiana
                                                                 Aaron T. Craft
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Robert Hicks,                                              October 15, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1502-PL-92
              v.                                                 Appeal from the Marion Superior
                                                                 Court.
                                                                 The Honorable John F. Hanley,
      Marion Thatcher, in his official                           Judge.
      capacity as Unit Team Manager,                             Cause No. 49D11-1408-PL-26015
      and the Indiana Department of
      Correction,
      Appellees-Plaintiffs.




      Darden, Senior Judge


                                       Statement of the Case
[1]   Robert Hicks appeals the trial court’s grant of summary judgment in favor of

      Marion Thatcher, in his official capacity as Unit Team Manager, and the

      Indiana Department of Correction (DOC). We affirm.

      Court of Appeals of Indiana | Opinion 49A02-1502-PL-92 | October 15, 2015                   Page 1 of 10
                                                       Issue
[2]   Hicks presents one issue for our review, which we restate as: whether the trial

      court erred by granting the Appellees’ cross-motion for summary judgment and

      denying Hicks’ motion for summary judgment.


                                Facts and Procedural History
[3]   Hicks is an inmate at the Indiana State Prison (ISP) in Michigan City. Within

      the ISP, there is an Honor Unit. Inmates may apply to be in the Honor Unit if

      they meet certain requirements such as incident-free status and no serious

      escape history. The Honor Unit is housed in a separate area of the prison and

      inmates who are admitted into the unit are given certain privileges that are not

      available to inmates of the general population. These privileges include the

      opportunity to purchase an Xbox 360 gaming system and games, access to

      weight equipment, more time outside their cells, and more frequent visitations.


[4]   In August 2014, Hicks filed a complaint for declaratory and injunctive relief

      claiming age discrimination. The basis of his claim was that the Honor Unit at

      ISP required applicants to be at least thirty-five years old in order to be

      considered for placement in the unit. At the time he filed his complaint, Hicks

      was over the age of thirty but not yet thirty-five.


[5]   In response to Hicks’ complaint, the Appellees filed a motion to dismiss in

      October 2014, alleging that Hicks lacked standing to bring his claim. In

      requesting dismissal, the Appellees noted the ISP had lowered the minimum



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      age requirement for the Honor Unit to thirty years of age on March 5, 2014,

      prior to the filing of Hicks’ complaint in August 2014.


[6]   On November 14, 2014, Hicks filed a motion for summary judgment and

      response to the Appellees’ motion to dismiss. In this combination motion,

      Hicks conceded that the age requirement for the Honor Unit was lowered to

      thirty years of age but continued to maintain his age discrimination claim

      because he said he had been discriminated against in the past and because

      “[t]hey are still discriminating, only now with a different age group.”

      Appellant’s App. p. 37 n.1. Hicks also included in his motion a discussion of

      his desire to obtain the same privileges enjoyed by the inmates of the Honor

      Unit.


[7]   The Appellees filed their response to Hicks’ motion for summary judgment and

      their own cross-motion for summary judgment on December 18, 2014. The

      Appellees argued that Hicks lacked standing to bring an equal protection claim

      based on age discrimination when the alleged age discrimination no longer

      applies to him. Additionally, the Appellees stated that Hicks’ equal protection

      right is not violated by the fact that inmates of the Honor Unit enjoy certain

      privileges that he, as a general population inmate, does not. With its motion,

      the Appellees designated certain evidence, including ISP documents outlining

      the program and its purpose as well as supporting affidavits. On January 9,

      2015, Hicks filed his response to the Appellees’ cross-motion for summary

      judgment.



      Court of Appeals of Indiana | Opinion 49A02-1502-PL-92 | October 15, 2015   Page 3 of 10
[8]   On January 12, 2015, the trial court held a hearing on the parties’ motions for

      summary judgment. At the hearing, Hicks clarified that he is no longer seeking

      entry into the Honor Unit. Rather, he is seeking the same privileges that are

      attendant to residing in the Honor Unit. See Tr. p. 6. The trial court took the

      matter under advisement and, on January 23, 2015, the court denied Hicks’

      motion for summary judgment and granted the Appellees’ cross-motion for

      summary judgment. On the same day, the trial judge signed the order of

      summary judgment containing findings of fact and conclusions of law.


                                    Discussion and Decision
[9]   On appeal from a grant or denial of summary judgment, our standard of review

      is identical to that of the trial court: whether there exists a genuine issue of

      material fact and whether the moving party is entitled to judgment as a matter

      of law. Winchell v. Guy, 857 N.E.2d 1024, 1026 (Ind. Ct. App. 2006); see also

      Ind. Trial Rule 56(C). Appellate review of a summary judgment motion is

      limited to those materials specifically designated to the trial court. Pond v.

      McNellis, 845 N.E.2d 1043, 1053 (Ind. Ct. App. 2006), trans. denied. All facts

      and reasonable inferences drawn therefrom are construed in favor of the non-

      movant. Id. The party appealing the judgment carries the burden of persuading

      the appellate court that the trial court’s decision was erroneous. Bradshaw v.

      Chandler, 916 N.E.2d 163, 166 (Ind. 2009). Although specific findings may aid

      our review of a summary judgment ruling, they are not binding on this Court,

      Alva Electric, Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263, 267 (Ind.

      2014), and we may affirm a grant of summary judgment upon any basis

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       supported by the evidence. Pfenning v. Lineman, 947 N.E.2d 392, 408-09 (Ind.

       2011). Moreover, “[t]he fact that the parties made cross-motions for summary

       judgment does not alter our standard of review. Instead, we must consider each

       motion separately to determine whether the moving party is entitled to

       judgment as a matter of law.” Pond, 845 N.E.2d at 1053.


[10]   In his brief to this Court, Hicks contends that inmates in the general population

       of ISP are treated differently from inmates in the Honor Unit in violation of the

       Equal Protection Clause of the Fourteenth Amendment to the United States

       Constitution. The crux of Hicks’ argument is that he wants to have all the same

       privileges that are reserved for those offenders in the Honor Unit, specifically

       more time out of his cell each day, weekly visits, access to more microwaves

       and additional time throughout the day to use them, the use of weight

       equipment, and the opportunity to buy and use an Xbox gaming system.


[11]   The guarantee of equal protection prohibits states from denying “to any person

       within its jurisdiction the equal protection of the laws.” U.S. CONST. amend.

       XIV, §1. When addressing a federal equal protection claim, we must first

       determine the applicable level of scrutiny. Hawkins v. State, 973 N.E.2d 619,

       622 (Ind. Ct. App. 2012). The level of scrutiny to be applied in a particular case

       depends upon whether the classification involves either a suspect class or a

       fundamental right. Cohn v. Strawhorn, 721 N.E.2d 342, 350 (Ind. Ct. App.

       1999). Classifications not involving a suspect class or a fundamental right are

       reviewed under a rational basis test. Hawkins, 973 N.E.2d at 622. Both parties

       here agree that Hicks is not a member of a suspect class and that the violation

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       alleged does not constitute an infringement of a fundamental right; thus, we

       apply the rational basis test. In applying this test, we consider whether the

       government’s action is rationally related to a legitimate governmental purpose.

       Id.


[12]   In the prison context, the Equal Protection Clause requires inmates to be

       treated equally, unless unequal treatment bears a rational relation to a

       legitimate penal interest. May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000). To

       demonstrate an equal protection violation, a plaintiff must establish intentional

       or purposeful discrimination. Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.

       1982). Intentional discrimination implies more than mere awareness of the

       consequences; rather, it implies “the decisionmaker singled out a particular

       group for disparate treatment and selected his course of action at least in part

       for the purpose of causing its adverse effects on the identifiable group.” Id.



[13]   Here, Hicks filed his motion for summary judgment and then later filed his

       response to the Appellees’ cross-motion for summary judgment and included

       his own affidavit. The Appellees’ designation of evidence includes several

       supporting affidavits and ISP documents outlining the Honor Unit program and

       its purposes. Hicks’ affidavit merely states that his 2013 application to the

       Honor Unit was denied because at that time he did not meet the minimum age

       requirement, that besides the Honor Unit privileges there are no incentives for

       him to behave, and that he has knowledge of sex offenders who are participants

       in the Honor Unit. Appellant’s App. p. 93.


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[14]   The Honor Unit program is open to any inmate who qualifies for it. Appellees’

       designated materials reveal the following specific facts. The qualifying criteria

       for placement in the Honor Unit at ISP include that the offender: (1) must be at

       least 30 years of age; (2) must have a minimum of two years at ISP; (3) must be

       in credit class 1 at the time of admittance and maintain that classification; (4)

       must currently be assigned to a job or program and maintain an average or

       better evaluation; (5) must be clear of conduct involving weapons and/or bodily

       injury for 48 months and any conduct reports for 24 months; (6) must not be an

       active member of a security threat group; (7) must have a medical code of “A”

       or “G”; (8) must be free of any on-going investigations; (9) must meet all double

       celling criteria; and (10) must not have a serious escape history. ISP Facility

       Directive March 5, 2014, Appellees’ App. pp. 24-25. Some of the privileges

       associated with living in the Honor Unit are listed as: (1) the ability to purchase

       an Xbox 360 and games for personal use in the inmate’s cell; (2) the use of

       weight equipment; (3) cell doors remain open between the 5:30 p.m. and 9:00

       p.m. counts to allow inmates use of the weight equipment; and (4) extra visits

       (i.e., visits every seven days). Id. at 25-26.


[15]   The DOC in general, and ISP in particular, have a legitimate governmental

       obligation to preserve the security of its facility and the safety of both its

       inmates and staff; however, inmate assaults are a threat to this delicate balance.

       Affidavit of Danny McBride (Assistant Superintendent of Re-entry at ISP),

       Appellees’ App. p. 18. Therefore, in order to preserve the safety and security of

       ISP, its staff, and its inmate population, it has implemented and maintained


       Court of Appeals of Indiana | Opinion 49A02-1502-PL-92 | October 15, 2015    Page 7 of 10
several programs, including the Honor Unit. Id. at 19. Statistics show that

offenders under the age of thirty violate prison rules at a rate more than twice

that of offenders over the age of thirty in every category except that of the least

serious violations. Affidavit of Aaron Garner (Executive Director of Research

and Technology at DOC), Appellees’ App p. 21. In support of his affidavit,

Garner included a chart showing a statistical analysis depicting the number and

seriousness of institutional violations and classifications of the age group

committing said violations. The chart reflects the rate, per 100 offenders, of

guilty conduct violations between January 1, 2013 and December 15, 2014

committed by offenders currently incarcerated at ISP.


 VIOLATION            30 YEARS              UNDER 30

                      OF AGE                YEARS OF
 LEVEL
                      AND OLDER             AGE


 A                    21.4                  44.1


 B                    110                   240.8


 C                    152.5                 338.3


 D                    3.6                   4.2


 TOTAL                287.5                 627.4




Court of Appeals of Indiana | Opinion 49A02-1502-PL-92 | October 15, 2015   Page 8 of 10
       Ex. 1 to Garner Affidavit, Appellees’ App. p. 23. Due to these statistics

       reflecting the elevated predisposition to violent behavior of younger inmates,

       the diminished maturity of younger inmates, and the limited space in the Honor

       Unit, ISP has imposed an age restriction on acceptance into the unit. McBride

       Affidavit, Appellees’ App. p. 19.


[16]   The purpose of the Honor Unit program is to incentivize and reward good

       behavior for offenders who are mature, have demonstrated good behavior, and

       are employed. To this end, the offenders in the unit are allowed certain

       privileges. Id. Thus, the program has served as an incentive to promote good

       behavior, particularly among long-term offenders for whom credit time and

       other rewards might not be as effective. Id. The offenders in the program also

       serve as role models of good behavior for other inmates. Id. These goals are

       borne out in the statistics of ISP showing that between January 1, 2013 and

       December 12, 2014 when other inmates at ISP committed 205 assaults on

       fellow inmates and staff, there were no recorded assaults in the Honor Unit. Id.

       at 18, 19.


[17]   The Appellees have established that the disparate treatment complained of by

       Hicks bears a rational relation to a legitimate penological interest. As a whole,

       prison security is a primary, legitimate governmental interest that is influenced

       by things such as fostering responsibility and good behavior in inmates and

       using inmates as role models for other inmates. Conversely, Hicks has failed to

       demonstrate discrimination that was instituted for the purpose of causing

       adverse effects on the general population of inmates at ISP. The opposite is

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       true; the Honor Unit at ISP, with its attendant privileges, was created to have

       positive effects on the behavior of the general population. As a panel of this

       Court previously noted, inmates do not forfeit all constitutional protections by

       reason of their conviction and confinement in prison. Faver v. Bayh, 689 N.E.2d

       727, 730 (Ind. Ct. App. 1997). However, incarceration does bring about the

       necessary withdrawal or limitation of many privileges and rights, which is

       justified by the considerations underlying our penal system, including

       deterrence of crime, rehabilitation of inmates, and institutional safety and

       security. Id.


                                                  Conclusion
[18]   For the reasons stated, we conclude that the trial court did not err in granting

       the Appellees’ cross-motion for summary judgment and in denying Hicks’

       motion for summary judgment.


[19]   Affirmed.


[20]   Robb, J., and Pyle, J., concur.




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