MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 03 2018, 8:45 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEES
Charles E. Justise, Sr.                                   Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
                                                          Andrew J. Upchurch
                                                          Office of Corporation Counsel
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles E. Justise, Sr.,                                  July 3, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-PL-102
        v.                                                Appeal from the Marion Superior
                                                          Court
David Liebel, et al.,                                     The Honorable Tim Oakes, Judge
Appellees-Defendants.                                     Trial Court Cause No.
                                                          49D02-1510-PL-35778



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-102 | July 3, 2018                       Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Charles E. Justise, Sr. (Justise), appeals the trial court’s

      denial of his motion to lift a stay in the proceedings after the trial court

      dismissed his Complaint for failure to state a claim upon which relief can be

      granted pursuant to Indiana Trial Rule 12(B)(6).


[2]   We affirm.


                                                     ISSUE
[3]   Justise presents us with one issue on appeal, which we restate as: Whether the

      trial court properly denied the pursuit of his Complaint.


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 28, 2015, Justise, while an inmate at the Marion County Jail, filed

      a Complaint against various parties (collectively, defendants), bringing a

      multitude of different claims. Specifically, he alleged that: (1) the Jail

      Commander of the Marion County Jail; Jerry Huston (Huston), the librarian at

      the Wabash Valley Correctional Facility; and Karen Richards (Richards), who

      is Huston’s supervisor, prevented Justise in 2007 from accessing legal materials

      to pursue his appeal in an unrelated cause; (2) Huston and Richards denied him

      access to the court in 2009 and 2011; (3) William Wilson, the former

      superintendent of the Indiana State Prison, and Ron Neal, the superintendent of

      the Indiana State Prison at the time of filing the Complaint, violated his right to

      equal treatment in 2010 by denying him the benefit of an Xbox-360 video game

      console; (5) David Liebel violated his religious rights by denying Justise, an
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-102 | July 3, 2018    Page 2 of 6
      atheist, the request for proper atheist services and diet; and (5) Metcalf, who

      works in the mailroom at the Indiana State Prison, confiscated nude photos that

      had been mailed to Justise in May of 2015. On November 12, 2015, the

      Complaint was removed from the Marion Superior Court to the United States

      District Court at the request of the defendants. A notice of removal pursuant to

      28 U.S.C. § 1446(d) 1 was filed with the Marion Superior Court and sent to

      Justise.


[5]   Before the United States District Court could grant defendants’ request to

      screen Justise’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), Justise moved

      to amend his Complaint against defendants. On December 2, 2015, the United

      States District Court granted Justise’s request and noted that “the amended

      [C]omplaint replaces and supersedes the original [C]omplaint.” (Appellees’

      Vol. II, p. 68). After screening the amended Complaint, the United States

      District Court dismissed his claims against the defendants “pursuant to 28

      U.S.C. § 1915A,” with the exception of his claim against Liebel. (Appellees

      App. Vol. II, p. 45).


[6]   On January 7, 2016, Justise filed a second amended Complaint against

      defendants and after screening this second amended Complaint, the United

      States District Court, on January 19, 2016, again dismissed his claims against

      the defendants, with the exception of his claim against Liebel. As before, the




      1
       Pursuant to 28 U.S.C. 1446(d), the State court can no longer proceed with the cause unless and until the
      case is remanded by the Federal court.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-102 | July 3, 2018                      Page 3 of 6
      United States District Court cautioned Justise that this Complaint would

      replace and supersede the previous one. On May 9, 2016, Justise filed a motion

      to file a final amended Complaint and motion to remand. By entry of May 12,

      2016, the United States District Court granted Justise’s motion to file an

      amended Complaint and ruled that


              [Justise] has filed a motion for leave to file an amended
              [C]omplaint with an attached proposed amended [C]omplaint.
              In the motion, [Justise] requests that this Court remand several of
              the claims in the proposed amended [C]omplaint, that were
              previously dismissed by this Court, to state court. These claims
              will not be remanded to state court because they were never
              removed to this Court. As such, the claims in Section II of the
              January 19, 2016, Entry shall remain dismissed for the reasons
              set forth in that Entry. [Justise] is free to pursue these claims in
              state court.


      (Appellees’ App. Vol. II, p. 71). 2


[7]   On June 7, 2016, Justise filed a notice of remanded Complaint, together with an

      amended Complaint, with the trial court. The amended Complaint appeared to

      contain different and additional defendants than the original Complaint. On

      June 17, the defendants requested a conference with the trial court to determine

      “whether his Complaint shall be treated as an Amended Complaint to the

      original cause or if it shall be treated as a new cause of action.” (Appellees’



      2
        On October 21, 2016, the United States District Court, after receiving Justise’s second amended Complaint,
      granted him leave to proceed with his claims based on religious discrimination and equal protection rights,
      but dismissed all other claims. Justise settled his federal claims in September of 2017.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-102 | July 3, 2018                      Page 4 of 6
      App. Vol. II, p. 43). The trial court scheduled a status conference for August

      30, 2017. Prior to the status conference, on August 18, 2017, defendants filed a

      motion to dismiss because Justise had failed to state a claim upon which relief

      can be granted pursuant to Indiana Trial Rule 12(B)(6). The trial court granted

      defendants’ motion and summarily dismissed Justise’s Complaint on August

      29, 2016. On September 29, 2016, Justise filed another Complaint in the same

      cause. On April 26, 2017, defendants moved for a stay of proceedings because

      the entire case had been removed to federal court and the Marion Superior

      Court lacked jurisdiction, which was granted by the trial court. On December

      21, 2017, the trial court denied Justise’s motion to lift the stay.


[8]   Justise now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[9]   It is well established that once a case has been removed to federal court, the

      state court is prohibited to conduct further proceedings “unless or until the case

      is remanded.” 28 U.S.C. § 1146. “[T]he state court would not be reinvested

      with jurisdiction unless and until the cause be remanded to the state court.”

      State ex rel. Allis-Chalmers Mfg. Co. v. Boone Circuit Court, 86 N.E.2d 74, 78 (Ind.

      1949). Claims that the petition for removal was defective must be addressed in

      the federal venue, if not remanded by the federal court to the state court. State

      ex rel. Lyons v. Lake Superior Court, Room No. 3, 285 N.E.2d 642, 643 (Ind. 1972).

      Likewise, the remedy for the federal court refusing to remand to state court

      does not lie with the state court of appeals; rather it lies in the federal court. Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-102 | July 3, 2018   Page 5 of 6
[10]   After removal to the federal tribunal, Justise filed multiple amendments to his

       initial Complaint, and each time, the federal court explicitly notified him that

       the amended Complaint would replace the original Complaint or earlier filings.

       By the time he filed his final amended Complaint, Justise only sued one

       respondent, and the parties settled the case. As the case is now closed in federal

       court, there is nothing to remand to the state court. If Justise wishes to pursue

       the claims he deleted by amending his several Complaints, he is required to file

       a new cause of action in state court under a new cause number. Therefore, we

       affirm the trial court’s denial of Justise’s motion to lift the stay in the

       proceedings after dismissing Justise’s claim.


                                              CONCLUSION
[11]   Based on the foregoing, we hold that the trial court has no jurisdiction over any

       part of Justise’s Complaint.


       Affirmed.


       May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-102 | July 3, 2018   Page 6 of 6
