Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                              FILED
before any court except for the purpose                      Apr 18 2012, 9:02 am
of establishing the defense of res
judicata, collateral estoppel, or the law                           CLERK
                                                                  of the supreme court,
of the case.                                                      court of appeals and
                                                                         tax court




APPELLANT PRO SE:                                 ATTORNEY FOR APPELLEE:

DENNIS MIKEL                                      GREGORY F. ZOELLER
Bunker Hill, Indiana                              Attorney General of Indiana

                                                  ELIZABETH ROGERS
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DENNIS MIKEL,                                     )
                                                  )
        Appellant-Plaintiff,                      )
                                                  )
               vs.                                )      No. 52A04-1111-SC-598
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Defendant.                       )


                       APPEAL FROM THE MIAMI SUPERIOR COURT
                            The Honorable J. David Grund, Judge
                              Cause No. 52D01-1105-SC-512


                                        April 18, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Dennis Mikel appeals the trial court’s judgment in favor of the Miami Correctional

Facility (“the Facility”) and Mark Sevier, Superintendent of the Facility (collectively,

“the Defendants”). We affirm in part, reverse in part, and remand.

                                          Issues

       The issues before us are:

              I.     whether the trial court erred in not conducting a jury
                     trial in this matter;

              II.    whether the trial court properly denied Mikel’s motion
                     for appointment of counsel; and

              III.   whether the trial court properly entered judgment in
                     favor of the Defendants.

                                           Facts

       On April 7, 2010, during a “shake down” at the Facility, corrections officers

entered Mikel’s cell and confiscated a number of items, including books, magazines, a

radio, some medications, and a TV. The reason given for the confiscation was that the

number of items Mikel possessed exceeded the maximum allowed and also that the TV

and radio had been altered in violation of Facility rules. According to Department of

Correction (“DOC”) rules, property confiscated from an inmate must be disposed of in

one of four ways, at the inmate’s discretion: it may be given to a charity, retained for use

by the DOC at the DOC’s discretion, mailed to an outside party, or destroyed.

Additionally, an inmate may wish to file a grievance regarding the confiscated property.


                                             2
If an inmate does not choose a disposition for the property and if the inmate does not

indicate that he or she wishes to file a grievance, “the prohibited item(s) will be destroyed

60 days from the date of the withholding of the item(s).”1 Appellant’s App. p. 18. On the

date his property was confiscated, Mikel filled out a DOC form indicating that he

intended to file a grievance. Mikel did not indicate how he would want the property to be

disposed of.

        On May 3, 2010, Mikel filed a grievance with the Facility regarding the

confiscation of his property.          This first grievance was not reviewed because Mikel

allegedly had failed to try to resolve his concerns informally.                       After meeting this

requirement, Mikel filed a second grievance on May 24, 2010. On June 3, 2010, a

Facility employee, Clair Barnes, responded to Mikel, “Your TV will be returned to you,

and the medication will be returned back to the medical department.” Id. at 25. Barnes

denied Mikel’s grievance with respect to the rest of his property.

        On June 16, 2010, Mikel wrote a letter indicating that he wished to appeal the

denial of his grievance. In a letter dated June 18, 2010, Barnes wrote to Mikel, stating in

part:

                Your television initially appeared that it could be returned to
                you. After further review by the Property Officer, it was
                determined that your TV is altered. It will not be returned to
                you. I apologize for the misinformation I gave you in the
                grievance response. You must select a disposition for the

1
  The Defendants assert in their brief that if an inmate does not choose a disposition for confiscated
property within sixty days of seizure, the property is to be destroyed, but it fails to mention that this time
limit does not apply if an inmate chooses to file a grievance. If an inmate chooses to do so, any
confiscated items “will be held until the grievance is decided.” Appellant’s App. p. 18.
                                                      3
               television within sixty days from the date of confiscation, or
               the property will be destroyed. . . . I have scanned this letter
               into the grievance. An appeal form was sent to you on June
               10, 2010. You may address your television in your appeal, if
               you choose to submit it.

Id. at 59. Also on June 18, 2010, Mikel formally filed an appeal of the denial of his

grievance. The appeal does not mention the TV; it is unclear from the record whether

Mikel received Barnes’s letter regarding the TV before or after he filed his appeal.

       On July 22, 2010, another Facility official denied Mikel’s grievance appeal in a

written document.2 The document contains the original language from the June 3, 2010

response to Mikel’s grievance, including the language that “[y]our TV will be returned to

you,” and then states that the reviewing official concurred with that determination. Id. at

28.

       As the next level of administrative review of Mikel’s grievance, he filed a

complaint with the DOC’s Ombudsman Bureau.                   While that complaint was under

consideration, on August 2, 2010, a Facility employee sent Mikel a letter informing him

that he still had confiscated property in storage, that the sixty-day time limit for directing

disposition of the property had passed, that Mikel had “either failed to file a grievance or

you have exhausted your grievance remedies,” and that he now had five days to decide

how he wanted to dispose of the property. Id. at 29. Mikel did not give any directions on

how he wanted his property disposed of, nor did the letter specify what property was

being held subject to disposal. On August 13, 2010, the director of the Ombudsman
2
  It is unclear which official reviewed Mikel’s appeal. The document denying the appeal appears to be
signed by an Amanda Hobbs, but states that the appeal was denied by “L.A. VanNatta.”
                                                 4
Bureau wrote to Mikel that “[t]he grievance response you received in reference to this

matter properly addresses the issue. You were told your TV will be returned to you. . . .

Accordingly, I find no violation of DOC policy or procedure in regard to this matter.” Id.

at 30.

          On August 25, 2010, the Facility’s property officer destroyed all of Mikel’s

confiscated property, including the TV. Mikel then timely filed a notice of tort claim for

the loss of his property with the Attorney General’s office. On January 10, 2011, the

Attorney General’s office informed Mikel that it saw no basis for his tort claim and

would not offer a settlement to him.

          On May 9, 2011, Mikel filed a complaint against the Defendants in the small

claims docket of the Miami Superior Court, seeking damages of $1500.3 Before actually

filing the action, Mikel had requested that the trial court appoint counsel to represent him.

The trial court denied this request and also ordered that Mikel’s case be decided by

affidavit. After documentary evidentiary submissions by Mikel and the Facility, the trial

court entered judgment in favor of the Facility on October 7, 2011. Mikel now appeals.

                                                Analysis

                                             I. Jury Trial

          First, Mikel contends that the trial court deprived him of his constitutional right to

a jury trial when it ordered that the case be decided on the basis of submitted

documentary evidence and affidavits. As the State points out, however, “The filing of a

3
    Mikel later reduced the amount of damages he was seeking to $500.
                                                    5
claim on the small claims docket is considered a waiver of trial by jury.” Ind. Code § 33-

29-2-7(a). Mikel expressly filed his action on the small claims docket of the Miami

Superior Court. We see no reason why the statutory waiver of trial by jury would not

apply here, and Mikel provides no argument as to why it would not apply. Additionally,

we previously have held that submission of a case by documentary evidence is an

appropriate method of trying a small claims case filed by an incarcerated plaintiff who is

unrepresented by counsel. See Zimmerman v. Hanks, 766 N.E.2d 752, 758 (Ind. Ct.

App. 2002). The trial court did not err in not conducting a jury trial on Mikel’s small

claims complaint.

                              II. Appointment of Counsel

       Next, Mikel argues the trial court erred in denying his motion for the appointment

of counsel. Indiana Code Section 34-10-1-1 provides, “An indigent person who does not

have sufficient means to prosecute or defend an action may apply to the court in which

the action is intended to be brought, or is pending, for leave to prosecute or defend as an

indigent person.” Indiana Code Section 34-10-1-2 provides in part:

              (b)    If the court is satisfied that a person who makes an
              application described in section 1 of this chapter does not
              have sufficient means to prosecute or defend the action, the
              court:

                     (1)    shall admit the applicant to prosecute or defend
                     as an indigent person; and

                     (2)    may, under exceptional circumstances, assign
                     an attorney to defend or prosecute the cause.


                                            6
              (c)     The factors that a court may consider under subsection
              (b)(2) include the following:

                     (1)    The likelihood of the applicant prevailing on the
                     merits of the applicant’s claim or defense.

                     (2)    The applicant’s ability to investigate and
                     present the applicant’s claims or defenses without an
                     attorney, given the type and complexity of the facts
                     and legal issues in the action.

              (d)     The court shall deny an application made under section
              1 of this chapter if the court determines any of the following:

                     (1)    The applicant failed to make a diligent effort to
                     obtain an attorney before filing the application.

                     (2)    The applicant is unlikely to prevail on the
                     applicant’s claim or defense.

       Prior to 2002, the statute governing the appointment of counsel in civil cases

simply provided that if an applicant was indigent and lacked “sufficient means to

prosecute or defend the action, the court shall . . . assign an attorney to defend or

prosecute the cause.” I.C. § 34-10-1-2 (2001). The statute did not limit the appointment

of counsel in civil cases to “extraordinary circumstances,” nor did it require the applicant

to “make a diligent effort to obtain an attorney before filing the application.” Still, cases

interpreting the prior version of the statute permitted trial courts to deny the appointment

of counsel, even where an applicant clearly was indigent, if “the action is of the type that

is often handled by persons who are not indigent without the presence or assistance of

counsel . . . .” Sabo v. Sabo, 812 N.E.2d 238, 244 (Ind. Ct. App. 2004). The 2002



                                             7
amendments to Section 34-10-1-2 effectively codified the case law limitation on the

appointment of counsel in civil cases.

       Here, Mikel made no showing that he made any effort to obtain the services of an

attorney before he filed his motion for appointment of counsel. This by itself is sufficient

to support the trial court’s denial of his request under subsection (d)(1) of the statute. See

Smith v. Harris, 861 N.E.2d 384, 386 (Ind. Ct. App. 2007), trans. denied. Moreover,

small claims actions such as the one filed by Mikel often are litigated pro se. Mikel also

has demonstrated throughout the grievance process that he is able to adequately represent

himself in this type of matter. This provides additional justification for the denial of his

request for the appointment of counsel at public expense. See Sabo, 812 N.E.2d at 245.

The trial court did not err on this issue.4

                                 III. Judgment for Defendants

       Finally, we address Mikel’s claim on the merits that the trial court erred in

entering judgment in favor of the Defendants. “Judgments in small claims actions are

‘subject to review as prescribed by relevant Indiana rules and statutes.’” Trinity Homes,

LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006) (quoting Ind. Small Claims Rule

11(A)).     Thus, a clearly erroneous standard applies to appellate review of facts

determined in a bench trial with due regard given to the opportunity of the trial court to

assess witness credibility. Id. “But this deferential standard does not apply to the

4
 In his brief, Mikel refers extensively to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) and
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Those cases concern the appointment of
counsel in criminal cases and the standard for judging the effectiveness of attorneys in criminal cases.
They have no application to this civil case.
                                                   8
substantive rules of law, which are reviewed de novo just as they are in appeals from a

court of general jurisdiction.” Id. “Similarly, where a small claims case turns solely on

documentary evidence, we review de novo, just as we review summary judgment rulings

and other ‘paper records.’” Id. Because this case was decided solely on the basis of

written evidentiary submissions, our review of this matter is de novo.

        We also observe that Mikel complied with the requirements of Indiana Code

Section 34-13-3-7 in first filing an administrative claim for the loss of his property with

the DOC before filing this lawsuit. If such a claim is denied, as it was here, then an

inmate is entitled to file a small claims suit for the loss of the property, pursuant to the

Indiana Tort Claims Act. See Smith v. Indiana Dep’t of Corrections, 888 N.E.2d 804,

808 (Ind. Ct. App. 2008).           Such a suit usually cannot seek damages from a State

employee in their individual capacity, unless certain matters are alleged that Mikel did

not allege here against Sevier. See id.5 However, Mikel’s complaint also named the

Facility as a defendant, which was proper, and the complaint can be easily read as

naming Sevier as a defendant in his official, not individual, capacity, which also was

proper. See Banks v. Brown, 876 N.E.2d 335, 336 (Ind. Ct. App. 2007).

        On appeal, Mikel focuses on the Facility’s destruction of his TV; we likewise will

focus solely upon that issue. The Defendants assert that under Indiana Code Sections 11-

11-2-2 and 11-11-2-5, DOC facilities have the discretion to limit the amount and types of

5
  In order to recover against a State employee individually, a complaint must allege an act or omission by
the employee that is “(1) criminal; (2) clearly outside the scope of the employee’s employment; (3)
malicious; (4) willful and wanton; or (5) calculated to benefit the employee personally.” I.C. § 34-13-3-
5(c).
                                                    9
personal property an offender may keep in his or her cell. The Facility specifically

prohibits inmate possession of “altered” property. Appellee’s App. p. 1. Emphasizing

Barnes’s June 18, 2010 letter stating that the TV had been altered and would not be

returned to Mikel, coupled with his failure to direct a disposition for the TV, the

Defendants assert that the Facility was entitled to destroy the TV, per DOC and Facility

rules.

         This argument, however, ignores the full context of the facts. Mikel suggested in

his affidavit to the trial court that Barnes’s June 18, 2010 letter was a forgery, even going

so far as to say that “you do not have to see the polecat to smell it.” Appellant’s App. p.

63. We need not definitively resolve that question. It is enough to say that in two official

pieces of correspondence following the June 18, 2010 letter, Mikel was advised that his

TV would be returned to him.

         First, in the July 22, 2010 resolution of his grievance appeal within the Facility,

the documentation recites the language of the original grievance decision, including that

Mikel’s TV would be returned to him, and then states that the employee deciding the

appeal agreed with that resolution. Mikel did not raise the issue of the loss of his TV in

the grievance appeal. As noted, it is unclear from the record whether Mikel was aware of

Barnes’s June 18, 2010 letter when he filed his grievance appeal. However, given the

lengths to which Mikel has litigated the confiscation of his property and the destruction

of his TV, we believe it is safe to presume that if he had received Barnes’s letter before

he filed his grievance appeal, he would have addressed the TV in that appeal.

                                             10
Additionally, although Barnes’s letter stated that it would be “scanned” into his grievance

file, its conclusion that Mikel’s TV would not be returned to him was not included in the

July 22, 2010 denial of his grievance appeal.

       Second, after the grievance appeal was decided against him, which was the final

level of review available to him within the Facility, he filed his complaint with the DOC

Ombudsman. In its response to his complaint on August 13, 2010, the Ombudsman

clearly indicated its understanding that Mikel’s TV would be returned to him. In other

words, the final level of administrative review within the DOC indicated that Mikel’s TV

would be returned to him. Yet, less than two weeks after the Ombudsman made this

statement, the Facility destroyed the TV.

       Additionally, although the Facility had advised Mikel in writing on August 2,

2010, that he had property in the storage room for which he needed to designate a

disposition or it would be destroyed, the letter did not list the property at issue. At that

time, Mikel reasonably was entitled to rely on the most recent communication from the

facility, the July 22, 2010 grievance appeal determination, which stated that his TV

would be returned to him, i.e., it would not be destroyed.

       We note that Mikel does not directly argue that the TV, in fact, was not altered in

violation of Facility and DOC rules. We believe that is beside the point. Mikel was

repeatedly told that the TV would be returned to him. Therefore, he had no reason to

litigate whether the TV had been altered during the grievance process. Additionally,

even if the TV had been altered, Mikel could have opted to have it mailed to an outside

                                            11
party; its immediate destruction was not warranted merely because it was altered.

Although the Defendants fault Mikel for not timely choosing a disposition for the TV, he

reasonably could have believed he did not need to do so, based first on the resolution of

his grievance appeal and subsequently the DOC Ombudsman’s response to his complaint.

       In sum, we conclude Mikel has established that he is entitled to compensation for

the destruction of his TV. The record before us does not contain clear evidence as to the

amount of damages Mikel would be entitled to for this loss of property. Although

Mikel’s complaint originally sought $1500 in damages, later reduced to $500, the trial

court is not bound to award either amount. Thus, we reverse the judgment in favor of the

Defendants and remand for further proceedings on the amount of damages to which

Mikel is entitled.

                                       Conclusion

       Although the trial court did not err either in denying Mikel’s request for appointed

counsel or in not conducting a jury trial on his complaint, we conclude on the basis of de

novo review that it erred in entering judgment in favor of the Defendants. We reverse

and remand for an assessment of damages.

       Affirmed in part, reversed in part, and remanded.

KIRSCH, J., and BRADFORD, J., concur.




                                            12
