MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Jul 12 2018, 9:06 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Charles A. Benson                                        Jan M. Carroll
Bunker Hill, Indiana                                     Kara Kapke
                                                         Barnes & Thornburg LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles A. Benson,                                       July 12, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         02A03-1711-CT-2865
        v.                                               Appeal from the Allen Superior
                                                         Court
News-Sentinel, Michael                                   The Honorable David J. Avery,
Christman, Sheryl Krieg, Cindy                           Judge
Larson, Lisa Esquivel Long,                              Trial Court Cause No.
Appellees-Defendants                                     02D09-1702-CT-73




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CT-2865 | July 12, 2018                 Page 1 of 4
[1]   Charles Benson appeals the trial court’s order dismissing his complaint against

      the Fort Wayne News-Sentinel newspaper, as well as its current and former

      reporters and editors (collectively, News-Sentinel), for defamation. Finding no

      error, we affirm.


[2]   In January 2016, Benson was charged with attempted murder and related

      offenses after shooting a Fort Wayne police officer. In the months following

      that arrest, the News-Sentinel published multiple articles related to the criminal

      proceedings. In the articles, the newspaper often referenced Benson’s lengthy

      criminal history, including a 2014 murder charge. In one February 2016 article,

      the News-Sentinel published a 2014 mugshot of Benson, noting in the caption

      to the photograph that Benson was a former murder suspect facing a new

      attempted murder charge. Benson was ultimately found guilty and found to be

      an habitual offender; he was sentenced to over sixty-two years in prison. See

      Benson v. State, 73 N.E.3d 198 (Ind. Ct. 2017) (affirming Benson’s convictions in

      his direct appeal), trans. denied.


[3]   On February 6, 2017, Benson filed a complaint against the News-Sentinel. The

      News-Sentinel filed an answer, motion to stay, and motion for judgment on the

      pleadings based on the Frivolous Prisoner Claim Statute. 1 Benson also filed a

      separate lawsuit based on similar grounds against WANE-TV.2 On June 29,




      1
          Ind. Code § 34-58-1-1 et seq.
      2
       A separate opinion related to Benson’s lawsuit against WANE-TV is available at Benson v. WANE-TV 15,
      No. 02A04-1711-CT-02866 (Ind. Ct. App. July 12, 2018).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CT-2865 | July 12, 2018         Page 2 of 4
      2017, the trial court held a consolidated hearing and status conference in the

      two lawsuits. Benson appeared pro se by phone and did not object to the

      consolidation. On September 18, 2017, the trial court issued an order granting

      judgment in favor of the News-Sentinel. Benson now appeals.


[4]   The General Assembly enacted the Frivolous Prisoner Claim Statute “to screen

      and prevent abusive and prolific offender litigation in Indiana.” Smith v. Ind.

      Dep’t of Corr., 883 N.E.2d 802, 804 (Ind. 2008). The statute requires trial courts

      to screen complaints filed by offenders as soon as such complaints are

      received.34 The trial court must determine whether the offender’s claim is

      frivolous, is a claim upon which no relief may be granted, or is a claim that

      seeks monetary relief from a defendant who is immune. I.C. § 34-58-1-2. A

      claim is frivolous if, among other things, it lacks an arguable basis in law or

      fact. Id.


[5]   Truth is a complete defense to defamation. E.g., Melton v. Ousley, 925 N.E.2d

      430, 437 (Ind. Ct. App. 2010); see also Journal-Gazette Co. v. Bandido’s, Inc., 712

      N.E.2d 446, 457 (Ind. 1999) (holding that the plaintiff has the burden to prove




      3
        In this case, the trial court candidly acknowledged that it was “unaware of the need to conduct the review”
      of Benson’s complaint upon receipt of the pleading. Appellees’ App. Vol. II p. 10. The News-Sentinel
      brought the need for the review to the trial court’s attention, at which time it complied. We see no reason
      that this delay should affect the outcome of this case.
      4
        Benson argues that the trial court erred by holding a consolidated hearing in this case and the case involving
      WANE-TV. Initially, we note that under the Frivolous Prisoner Claim Statute, he is not entitled to a hearing
      at all. I.C. § 34-58-1-1 et seq. Furthermore, he did not object to the consolidation below; consequently, he has
      waived it. Finally, he does not explain how he was prejudiced by the consolidation. For all these reasons,
      this argument is unavailing.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CT-2865 | July 12, 2018                Page 3 of 4
      falsity). In this case, the statements complained of by Benson regarding his

      criminal history, including a 2014 murder charge, are true. Indeed, Benson

      does not argue, nor did he plead, otherwise. See Bandido’s, 712 N.E.2d at 456

      (holding that to establish actual malice, which is a required element of

      defamation claims, plaintiff must show that statements were false or made with

      reckless disregard of whether they were false). He argues that the newspaper’s

      use of a 2014 mugshot was inaccurate and/or misleading, but that does not

      mean that it was false.5 Benson concedes that it was a picture of him, it just

      happened to be a mugshot from two years earlier.


[6]   Given that all the statements Benson highlights are true, and that the

      photograph was of Benson, we find that the News-Sentinel properly found

      refuge in the defense of truth. As a result, the trial court did not err by finding

      Benson’s claims to be frivolous.6


[7]   The judgment of the trial court is affirmed.


      Kirsch, J., and Bradford, J., concur.




      5
       It has never been determined in Indiana whether publication of a photograph of a plaintiff can constitute
      defamation. We assume solely for argument’s sake that it can, but leave the underlying question for another
      day and a different case.
      6
        Benson also included claims related to the News-Sentinel’s 2014 reporting on a prior murder charge,
      arguing that the newspaper defamed him by including information regarding his criminal history. The trial
      court found that these claims are time-barred. Even if they were not time-barred, all of the information
      reported by the News-Sentinel was true; therefore, Benson cannot establish defamation and the trial court
      properly entered judgment in favor of the newspaper on these claims.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CT-2865 | July 12, 2018             Page 4 of 4
