                                                                          FILED
                                                                     Mar 28 2018, 5:40 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Ben Yisrayl                                               Curtis T. Hill, Jr.
      Michigan City, Indiana                                    Attorney General of Indiana

                                                                Aaron T. Craft
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Ben Yisrayl,                                              March 28, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                46A03-1706-SC-1524
              v.                                                Appeal from the LaPorte Superior
                                                                Court
      Sgt. Reed,                                                The Honorable Greta Stirling
      Appellee-Defendant.                                       Friedman, Judge
                                                                Trial Court Cause No.
                                                                46D04-1701-SC-225



      Barnes, Judge.


                                              Case Summary
[1]   After a trial by affidavit, Chijioke Bomani Ben Yisrayl appeals the trial court’s

      denial and dismissal of his claim in replevin. We affirm.



      Court of Appeals of Indiana | Opinion 46A03-1706-SC-1524 | March 28, 2018                Page 1 of 8
                                                          Issue
[2]   The sole issue before us is whether the trial court erred in denying and

      dismissing Yisrayl’s claim.


                                                         Facts
[3]   Yisrayl is an offender incarcerated in Michigan City. In June 2016, Yisrayl

      began “a 90 day probationary period as a PLUS Aide[, a job classification

      within] the Indiana State Prison.”1 App. Vol. II p. 31. On July 14, 2016, he

      purchased an Xbox 360 gaming console, two controllers, and twenty-five video

      games (“Xbox and accessories”). On September 7, 2016, Yisrayl’s “position as

      a PLUS aide was terminated[.]” Id. at 36. He appealed the decision, but was

      unsuccessful. On November 16, 2016, the prison superintendent


               [mandated] that only ICH offenders and offenders serving as
               PLUS Aide[s] are authorized an Xbox. All other offenders are
               not authorized to have an Xbox or Xbox games.


      Id. at 32. That same day, the facility’s offender special purchases department

      instructed Indiana Department of Correction (“DOC”) correctional officer Sgt.

      Reed to confiscate Yisrayl’s Xbox and accessories. Sgt. Reed did so, gave

      Yisrayl a confiscation slip that stated that he was “Not Allow[ed] to have” the




      1
       The Indiana State Prison’s PLUS (Purposeful Living Units Serve) program is “a faith- and character-based
      re-entry initiative” that “focuses on strengthening spiritual, moral, and character development as well as life-
      skills.” See https://www.in.gov/idoc/2356.htm (last visited March 13, 2018).



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      items, notified Yisrayl that he could challenge the seizure through the

      “Offender Grievance Process[,]” and “turned in[ ]” the items. Id. at 27, 32.

      Yisrayl was authorized to “designate someone to pick up his confiscated

      property[,]” but had not done so as of April 4, 2017. Id. at 32.


[4]   On January 30, 2017, Yisrayl filed a small claims complaint and a

      contemporaneous motion for summary judgment against Sgt. Reed “for

      confiscating [his] personal property . . . for no reason at all” in violation of

      Indiana Code Section 11-11-2-3 and his property rights. Id. at 17. Yisrayl

      sought the items’ return and a declaration that he was entitled to them.


[5]   On March 10, 2017, the trial court set the matter for a trial by affidavit to

      commence on March 24, 2017, pursuant to a court-designated timetable for

      each party’s submission of affidavits and exhibits and for Yisrayl’s rebuttal

      evidence. Subsequently, Sgt. Reed filed his exhibits and affidavit, wherein he

      averred to the foregoing facts; he also submitted the affidavit of DOC tort

      claims investigator Pam James, who averred, in part, as follows:


              7.    Offender Yisrayl underwent a 90 day probationary period
              as a PLUS Aide within the Indiana State Prison, beginning in
              June 2016. Exhibit B.


              8.    During his time as a PLUS Aide, Offender Yisrayl was
              authorized to have an Xbox and Xbox games.


              9.   In September 2016, Offender Yisrayl was terminated as a
              PLUS Aide and changed jobs within the facility. . . .



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        10. Offender Yisrayl appealed the termination of his position
        as a PLUS Aide, which was denied. . . .


        11. On November 16, 2016, the Indiana State Prison
        Superintendent issued a directive for the facility, which mandated
        that only ICH offenders and offenders serving as PLUS Aide are
        authorized an Xbox. All other offenders are not authorized to
        have an Xbox or Xbox games.[2]


        12. Offender Yisrayl’s Xbox, Xbox games, and Xbox
        controllers were confiscated as he no longer met facility criteria
        to possess these items.


        13. Offender Yisrayl was issued a confiscation slip and the
        property was turned into the offender special purchases
        department, where it remains as of today’s date [April 4, 2017].


        14. Offender Yisrayl has the opportunity to designate someone
        to pick up his confiscated property from the facility through
        filling out a disposition form; he has not done so as of today’s
        date [April 4, 2017].


Id. at 31-32. On June 21, 2017, the trial court denied Yisrayl’s claim in replevin

and dismissed his complaint, concluding that Yisrayl


        was allowed to own the Xbox, Xbox games, and Xbox
        controllers while he was on a 90 day probationary period as a
        PLUS Aide . . . . However, Xbox, Xbox games and Xbox




2
 We believe that “ICH offender” refers to a participant in the DOC’s “Information Clearinghouse” program;
however, it is unclear from the record.



Court of Appeals of Indiana | Opinion 46A03-1706-SC-1524 | March 28, 2018                     Page 4 of 8
              controllers bec[a]me prohibited after Yisrayl ended his
              probationary period due to reclassification of his duties.


      Id. at 53-54. Yisrayl now appeals.


                                                   Analysis
[6]   Yisrayl argues that the trial court erred in denying and dismissing his claim.

      Where an appellant challenges the entry of judgment after a small claims bench

      trial, we generally will not set aside the judgment unless it is clearly erroneous.

      Ind. Small Claims Rule 11(A) (providing for “review as prescribed by relevant

      Indiana rules and statutes”); Ind. Trial Rule 52(A) (providing that on appeal, a

      judgment shall not be set aside where “tried by the court without a jury . . .

      unless clearly erroneous”). However, where the judgment “turns solely on

      documentary evidence,” we review the judgment “de novo,” as we do with

      summary judgment and other cases involving paper records. Eagle Aircraft, Inc.

      v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013) (emphasis in original)

      (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006))

      (internal quotes omitted). Summary judgment is appropriate only when there is

      no genuine issue of material fact and the moving party is entitled to judgment as

      a matter of law. Ind. Trial Rule 56(C). We consider only those materials

      designated to the trial court. Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 424

      (Ind. 2015).


[7]           Although those convicted of crimes or incarcerated in penal
              institutions awaiting trial do not forfeit all personal and property
              rights, their property interests may be specially defined and

      Court of Appeals of Indiana | Opinion 46A03-1706-SC-1524 | March 28, 2018      Page 5 of 8
                circumscribed by statute, regulation, or both. Court decisions
                have recognized an inherent right of prison administrators to
                manage prison facilities according to their discretion and
                professional expertise, such as by the imposition of reasonable
                restrictions on the type and amount of personal property inmates
                may possess and the conditions under which it may be used, and
                courts have been reluctant to intrude themselves on the day-to-
                day operations of penal facilities. Furthermore, states in
                maintaining prisons have a strong interest in preserving security,
                order, and discipline therein. Nevertheless it is generally held
                that when inmates are afforded the opportunity, whether by
                “right” or by “privilege,” to possess personal property within
                prison confines, they enjoy a protected interest in it which cannot
                be infringed without due process of law. Thus, inmates’ rights
                must be balanced against or accommodated to the interests of the
                state.


      66 A.L.R.4th 800 (Originally published in 1988) (internal footnote omitted).


[8]   Our legislature has conferred upon the DOC authority to determine what

      property an offender may possess. I.C. § 11-11-2-2.3 When a prison notifies an

      offender of what items (s)he may possess, all other property that is not

      contraband becomes “prohibited property.” Id. “Contraband” is “property the

      possession of which is in violation of an Indiana or federal statute”; and




      3
          Indiana Code Section 11-11-2-2 provides:

                The department shall determine what type of property other than contraband a confined
                person may not possess and shall inform him of that classification. In carrying out this
                section, the department may inform a confined person of the type or items of property he
                is permitted to possess, in which event all other property not contraband is prohibited
                property. Property that a confined person is otherwise permitted to possess may become
                prohibited property due to the means by which it is possessed or used.


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      “[p]rohibited property” is “property other than contraband that the [DOC] does

      not permit a confined person to possess . . . .” Id. “The [DOC] may conduct

      reasonable searches of its facilities and persons confined in them and may seize

      contraband or prohibited property.” I.C. § 11-11-2-3(a). When it seizes an

      offender’s property, the DOC “shall give . . . written notice of the seizure”

      including the date of seizure, identity of the seizing party, grounds for seizure,

      and the procedure for challenging the seizure.4 I.C. § 11-11-2-4.


[9]   Here, pursuant to the superintendent’s November 2016 directive, Xboxes and

      accessories became “prohibited property” for all offenders except PLUS Aides

      and ICH offenders; thus, when Yisrayl’s probationary period as a PLUS Aide

      ended in his termination, he was no longer among the offenders who were

      permitted to possess the items. See I.C. § 11-11-2-3(a) (“Prohibited property” is

      “property other than contraband that the department does not permit a




      4
          Indiana Code Section 11-11-2-4 states,


                 When the department seizes property, it shall give the affected person written notice of
                 the seizure. This notice must include the date of the seizure, the property seized, the
                 name of the person who seized the property, the reason for the seizure, and the fact that
                 the department’s action may be challenged through the grievance procedure.

                 When the department seizes property of a confined person that it later determines is
                 neither contraband nor prohibited property, it shall return the property to that person or
                 make such other reasonable disposition as directed by that person.

                 (c) Except as provided in subsection (d) or section 6 of this chapter, when the department
                 seizes prohibited property, it shall forward the property to a person or address designated
                 by the confined person or make any other reasonable disposition . . . .




      Court of Appeals of Indiana | Opinion 46A03-1706-SC-1524 | March 28, 2018                                Page 7 of 8
       confined person to possess[.]”). Sgt. Reed seized the Xbox and accessories in

       accordance with Indiana Code Section 11-11-2-4, giving Yisrayl written notice

       of the grounds of the seizure and advising him of the facility’s grievance

       procedure.5 The record further reveals that as of April 4, 2017, Yisrayl’s Xbox

       and accessories remained housed in the special purchases department because

       Yisrayl had not asked anyone to retrieve them.


[10]   In reviewing the designated materials, we conclude that no genuine issue of

       material fact exists as to whether an Xbox and accessories were “prohibited

       property” for Yisrayl, who was neither a PLUS Aide nor an ICH offender when

       Sgt. Reed seized the items. Sgt. Reed is entitled to judgment as a matter of law.


                                                    Conclusion
[11]   No genuine issue of material fact exists, and Sgt. Reed is entitled to judgment as

       a matter of law. We affirm.


       Affirmed.


       Najam, J., and Mathias, J., concur.




       5
        Yisrayl concedes in his reply brief that he is making no argument that seizure of his property violated the
       United States Constitution.

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