MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                         Jul 02 2020, 9:58 am
regarded as precedent or cited before any
court except for the purpose of establishing                                      CLERK
                                                                              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
Kevin L. Martin
Westville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kevin L. Martin,                                          July 2, 2020
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          20A-CT-464
        v.                                                Appeal from the Sullivan Circuit
                                                          Court
Prison Guards Wabash Valley                               The Honorable Robert E. Hunley,
Correctional Facility,1                                   Judge
Appellees-Defendants.                                     Trial Court Cause No.
                                                          77C01-1710-CT-628



Mathias, Judge.




1
 In the initial action below, Martin named several Westville Correctional Facility employees or guards as
defendants by first name, last name, nickname, or some combination thereof. On appeal, Martin only names
“McLoud” as the appellee; however, for consistency, we use the same caption as the trial court.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020                           Page 1 of 7
[1]   Kevin Martin (“Martin”) appeals pro se the Sullivan Circuit Court’s order

      dismissing his complaint against several employees of the Westville

      Correctional Facility (“WCF”) pursuant to Trial Rule 41(E).


[2]   We reverse and remand for proceedings consistent with this opinion.


                                  Facts and Procedural History
[3]   Martin is incarcerated at the WCF. In October 2017, Martin filed a pro se

      complaint against several WCF employees alleging violations of fundamental

      and constitutional rights.2 On November 2, 2017, the trial court granted

      Martin’s motion to waive the filing fee. The court also ordered Martin to

      “provide the correct amount of summons and copies of the complaint to the

      Clerk[.]” Appellant’s App. p. 3.


[4]   Martin failed to provide the summons and copies of his complaint as ordered,

      and the WCF employees were not served. However, in April 2018, Martin filed

      documents with the trial court3 concerning requests he made to a WCF library

      employee in November 2017 for copies of his complaint and summons. The

      employee noted that she “contacted the Clerk of the Court in Sullivan

      [County]. She explained to me that they only need the original. If the court




      2
       Martin did not include a copy of his complaint in his Appendix as required by Indiana Appellate Rule 50(f).
      We assume that Martin correctly stated the nature of his complaint in his Appellant’s Brief.
      3
       These documents are file stamped “April 11, 2018” by the Sullivan Circuit Court Clerk. However, there is
      no notation on the chronological case summary indicating that anything was filed on or near that date.
      Appellant’s App. p. 4.

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020                      Page 2 of 7
      accepts the case, the Clerk will provide the necessary copies to the [Department

      of Correction] Defendant.” Appellant’s App. p. 7.


[5]   Martin made another request for copies of his complaint and summons in

      December 2017. On the request, the WCF library employee noted that she has

      “addressed this many times. The Clerk told me only send original, any copies

      sent by offenders are discarded. The Clerk makes any necessary copies from the

      originals. Contact the Court for any further inquiries in this matter.” Id. at 8.

      Martin did not provide a copy of the trial court’s November 2, 2017 order to the

      WCF library employee until after he made the December 2017 request for the

      copies of his complaint and summons. Id. at 9-11.


[6]   It appears that Martin attempted to appeal the trial court’s November 2, 2017,

      order. Id. at 3–4. The appeal was dismissed with prejudice. Martin filed a

      petition to transfer to the Indiana Supreme Court. His petition was denied on

      September 27, 2018. Martin’s case was inadvertently removed from the trial

      court’s active docket and was reinstated on October 31, 2019.


[7]   On January 23, 2020, the trial court sua sponte dismissed Martin’s complaint

      pursuant to Trial Rule 41(E). Id. The trial court did not hold a hearing before

      dismissing the complaint. Martin now appeals.4




      4
       Martin did not serve his notice of appeal on the Appellees-Defendants as required in Appellate Rule 24(A).
      Martin’s appellate brief contains a certificate of service for the Indiana Attorney General. The Attorney
      General never filed an appearance in this matter. On the record before us, we are uncertain whether the
      Attorney General’s office had actual notice of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020                      Page 3 of 7
                                      Discussion and Decision
[8]    Martin appeals the Trial Rule 41(E) dismissal of his complaint. Rule 41(E)

       provides:


               Whenever there has been a failure to comply with these rules or
               when no action has been taken in a civil case for a period of sixty
               (60) days, the court, on motion of a party or on its own motion shall
               order a hearing for the purpose of dismissing such case. The court shall
               enter an order of dismissal at plaintiff's costs if the plaintiff shall
               not show sufficient cause at or before such hearing. Dismissal
               may be withheld or reinstatement of dismissal may be made
               subject to the condition that the plaintiff comply with these rules
               and diligently prosecute the action and upon such terms that the
               court in its discretion determines to be necessary to assure such
               diligent prosecution.


       (Emphasis added).


[9]    “[W]e will reverse a Trial Rule 41(E) dismissal for failure to prosecute only in

       the event of a clear abuse of discretion, which occurs if the trial court’s decision

       is against the logic and effect of the facts and circumstances before it.” Petrovski

       v. Neiswinger, 85 N.E.3d 922, 924 (Ind. Ct. App. 2017). “We will affirm if there

       is any evidence that supports the decision of the trial court.” Belcaster v. Miller,

       785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. denied.


[10]   The purpose of Trial Rule 41(E) is “‘to ensure that plaintiffs will diligently

       pursue their claims. The rule provides an enforcement mechanism whereby a

       defendant, or the court, can force a recalcitrant plaintiff to push his case to

       resolution.’” Id. at 1167 (quoting Benton v. Moore, 622 N.E.2d 1002, 1006 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020        Page 4 of 7
       Ct. App. 1993)). “The plaintiff bears the burden of moving the litigation and the

       trial court has no duty to urge or require counsel to go to trial, even where it

       would be within the court's power to do so.” Lee v. Pugh, 811 N.E.2d 881, 885

       (Ind. Ct. App. 2004). “‘Courts cannot be asked to carry cases on their dockets

       indefinitely and the rights of the adverse party should also be considered. He

       should not be left with a lawsuit hanging over his head indefinitely.’” Belcaster,

       785 N.E.2d at 1167 (quoting Hill v. Duckworth, 679 N.E.2d 938, 939–40 (Ind.

       Ct. App. 1997)). However, we “view dismissals with disfavor, and dismissals

       are considered extreme remedies that should be granted only under limited

       circumstances.” Caruthers v. State, 58 N.E. 3d 207, 211 (Ind. Ct. App. 2016)

       (citing Am. Family Ins. Co. ex rel. Shafer v. Beazer Homes Indiana, LLP, 929 N.E.2d

       853, 857 (Ind. Ct. App. 2010)).


[11]   Trial Rule 41(E) requires a hearing, and dismissing a case without holding the

       required hearing is improper. See Wright v. Miller, 989 N.E.2d 324, 328 n.3 (Ind.

       2013); Rumfelt v. Himes, 438 N.E.2d 980, 983–94 (Ind. 1982); Caruthers, 58 N.E.

       3d at 211; Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 400 (Ind. Ct.

       App. 1997), trans. denied. Here, the trial court failed to hold the required hearing

       and dismissed Martin’s case without any notice to Martin to provide him with

       the opportunity to show cause why his complaint should not be dismissed.


[12]   It is evident that Martin has not complied with certain trial and appellate rules

       in these proceedings. It is well settled that pro se litigants are held to the same

       standards as licensed attorneys, and thus they are required to follow procedural

       rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020   Page 5 of 7
       Failure to comply with the Indiana Rules of Appellate Procedure may result in

       waiver of the issues presented where violation of the rules “substantially

       impedes our ability to determine and review the issues alleged.” See Martin v.

       Brown, et al., 129 N.E.3d 283 (Ind. Ct. App. 2019) (citing In re Moeder, 27

       N.E.3d 1089, 1097 n.4 (Ind. Ct. App. 2015) (waiving claims on appeal when

       violations of Appellate Rules impeded ability to review), trans. denied). In fact,

       in other pro se appeals, Martin’s failure to follow the Appellate Rules has led to

       either dismissal of his appeal or affirmation of the trial court’s order dismissing

       his complaint. See id. at 286; Martin v. Gilbert, et al., 18A-CT-2095, 2019 WL

       2363327 (Ind. Ct. App. June 5, 2019) (affirmed dismissal of complaint based on

       violations of Indiana Rules of Appellate Procedure), trans. denied; 18A-CT-2940,

       Martin v. Brown, et al., 2019 WL 1217796, (Ind. Ct. App. March 15, 2019)

       (affirmed dismissal of complaint based on violations of Indiana Rules of

       Appellate Procedure), trans. denied; Martin v. Howe, et al., 18A-CT-680, 2018 WL

       5956300, (Ind. Ct. App. November 14, 2018) (dismissal of appeal based, in part,

       on Martin’s failure to make a cogent argument), trans. denied.


[13]   However, in this case, the record provided establishes that Martin’s case was

       dismissed pursuant to Rule 41(E) without the required hearing. Moreover, it

       appears that Martin attempted to comply with the trial court’s November 2,

       2017 order but was unable to obtain the required copies of his complaint and

       summons because he is incarcerated. Finally, in his brief, Martin argues that the

       trial court erred when it dismissed his complaint without holding a hearing,




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020   Page 6 of 7
       which, as explained above, is the accurate reading of Trial Rule 41(E).

       Appellant’s Br. at 10.


                                                  Conclusion
[14]   Under the unique circumstances presented in this case, we conclude that the

       trial court erred when it dismissed Martin’s complaint without holding the

       required hearing pursuant to Trial Rule 41(E). We therefore reverse the trial

       court’s order dismissing Martin’s complaint and remand for either a Trial Rule

       41(E) hearing or reinstatement of his case. See Caruthers, 58 N.E.3d at 214.


[15]   Reversed and remanded for proceedings consistent with this opinion.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020   Page 7 of 7
