                                                                                       FILED
                                                                                  May 31 2017, 8:31 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
James E. Manley                                           Curtis T. Hill, Jr.
New Castle, Indiana                                       Attorney General of Indiana

                                                          Aaron T. Craft
                                                          Matthew R. Elliott
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James E. Manley,                                          May 31, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          33A05-1608-PL-1952
        v.                                                Appeal from the Henry Circuit
                                                          Court
Gregory F. Zoeller, et al,                                The Honorable Kit C. Dean Crane,
Appellees-Defendants.                                     Judge
                                                          Trial Court Cause No.
                                                          33C02-1509-PL-67



Barnes, Judge.




Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017                   Page 1 of 10
                                               Case Summary
[1]   James Manley appeals the trial court’s dismissal of his complaint against the

      Indiana Department of Correction (“DOC”) and Liberty Behavioral Health

      Corporation (“Liberty”).1 We dismiss and remand.


                                                      Issue
[2]   The dispositive issue we address is whether Manley’s appeal should be

      dismissed because the order he challenges was not a final judgment.


                                                      Facts
[3]   In 1997, Manley was convicted of two counts of Class A felony child molesting

      and two counts of Class B felony child molesting. The victim was Manley’s

      eight-year-old daughter. Manley received an aggregate fifty-five-year sentence.

      He currently has a projected earliest release date from the DOC of October 18,

      2021.


[4]   Manley admitted his conduct to police but unsuccessfully sought to suppress

      that confession, and we affirmed his convictions on direct appeal. See Manley v.

      State, No. 53A04-9806-CR-333 (Ind. Ct. App. Feb. 18, 1999). After his initial

      direct appeal, Manley has filed a number of pro se, collateral challenges to his

      convictions, sentence, and treatment within the DOC, in both state and federal



      1
       Manley also named the Attorney General and Commissioner of the DOC as defendants in their official
      capacities. We will refer to the Attorney General and Commissioner collectively with the DOC as one party.
      When this case was initiated, the Attorney General was Gregory Zoeller and the DOC Commissioner was
      Bruce Lemmon. Now, Curtis T. Hill, Jr. and Rob Carter fill those respective roles.

      Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017                       Page 2 of 10
      courts. See, e.g., Manley v. Butts, 71 N.E.3d 1153 (Ind. Ct. App. 2017); Manley v.

      Indiana Dep’t of Corr., No. 3:13-CV-1308 JD (N.D. Ind. July 6, 2015).


[5]   In 1999, the DOC implemented the Sex Offender Management and Monitoring

      Program (“SOMM”) with the goal of reducing sex offender recidivism. The

      provision of SOMM services is contracted out to Liberty. As of 2006, persons

      convicted of child molesting must participate in SOMM or face deprivation of

      good time credit, following amendment of Indiana Code Section 35-50-6-5 to

      expressly permit such deprivation.


[6]   The SOMM program has three phases. The first is informing the prisoner of

      the program and the obtaining of consent from a prisoner to participate in it,

      followed by evaluation of the prisoner’s risk of recidivism and treatment needs

      if consent is obtained. If a prisoner does not consent to participation in

      SOMM, it is considered a violation of DOC disciplinary rules.


[7]   The second phase of SOMM, which begins three years before a prisoner’s

      expected release, is participation in a treatment program based on their

      recidivism risk, the offense of which they were convicted, and/or their

      psychoeducational needs. Reports related to their treatment are forwarded to

      outside treatment providers when the offender goes on parole. Part of the

      required therapy during phase two of SOMM is that a prisoner discuss their

      sexual history and admit to any sexual offenses they have committed aside from

      the one for which they are incarcerated. If a prisoner is uncooperative in the

      treatment program they are subject to DOC discipline.


      Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017    Page 3 of 10
[8]    The third phase of SOMM begins when a prisoner transitions to parole. The

       offender is subject to supervision by a team consisting of at least a parole agent,

       a district coordinator, a treatment provider, and a polygraph examiner. The

       offender must also agree to a list of stipulations and conditions of parole more

       extensive than ordinary parolees. If the offender is unsuccessfully terminated

       from the SOMM program or does not cooperate with treatment before the

       parole period ends, parole may be revoked.


[9]    On May 9, 2016, Manley filed a “Complaint for Declaratory and Injunctive

       Relief/Challenge to the Constitutionality of a State Statute and IDOC

       Executive Directive.” App. Vol. II p. 19. In addition to the DOC and Liberty,

       the complaint also named GEO Group, Inc. (“GEO”) as a defendant; GEO is a

       private company that operates the DOC facility where Manley is housed.


[10]   Manley’s complaint alleged that mandating his participation in SOMM or face

       losing credit time violated the federal Religious Freedom Restoration Act,

       Indiana’s own Religious Freedom Restoration Act, the federal Religious Land

       Use and Institutionalized Persons Act, and his rights to freedom of religion

       under the federal and state constitutions. This complaint did not specify

       precisely how SOMM affects Manley’s religious beliefs and practices. Manley

       also asserted that mandated participation in SOMM violated his due process

       and due course of law rights under the federal and state constitutions and also

       was an improper ex post facto punishment because the statute expressly

       permitting deprivation of credit time for not participating in a sex offender



       Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017   Page 4 of 10
       treatment program was not passed until 2006, several years after Manley’s

       offenses and convictions.


[11]   On June 15, 2016, Liberty filed a motion to dismiss the complaint under

       Indiana Trial Rule 12(B)(6) for failure to state a claim. On July 11, 2016, the

       DOC filed its own motion to dismiss. GEO never filed its own motion to

       dismiss or sought to join in either Liberty’s or the DOC’s motions to dismiss.

       On July 14, 2016, the trial court signed an order granting the DOC’s motion to

       dismiss; this order was entered on the CCS on July 20, 2016. On July 18, 2016,

       Manley filed a motion for additional time to respond to Liberty’s motion to

       dismiss, which the trial court never directly ruled upon. On July 21, 2016, the

       trial court entered a separate order granting Liberty’s motion to dismiss; this

       order was entered on the CCS on the same date. Also on July 21, 2016, the

       CCS contains a second notation stating, “Record corrected to show ORDER

       GRANTING MOTION TO DISMISS shown entered on 7/21/2016 is a

       duplicate entry and stricken from the record.” Id. at 8.


[12]   On August 4, 2016, the trial court filed-stamped Manley’s proferred amended

       complaint. However, Manley submitted evidence, which the State does not

       dispute, that he deposited the amended complaint with the prison mail system

       on August 1, 2016. On August 15, 2016, the trial court entered an order stating

       that the amended complaint was not “a proper pleading as otherwise required

       by the Indiana Trial Rules” and that it would take no further action on the

       amended complaint. Id. at 18. Manley now appeals.



       Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017   Page 5 of 10
                                                      Analysis
[13]   We address one dispositive issue with respect to reviewing the dismissal of

       Manley’s original complaint: whether it was an appealable final judgment. A

       judgment is final if:

                (1) it disposes of all claims as to all parties; [or]


                (2) the trial court in writing expressly determines under Trial
                Rule 54(B) or Trial Rule 56(C) that there is no just reason for
                delay and in writing expressly directs the entry of judgment (i)
                under Trial Rule 54(B) as to fewer than all the claims or parties,
                or (ii) under Trial Rule 56(C) as to fewer than all the issues,
                claims or parties[.]


       Ind. Appellate Rule 2(H). An order that does not dispose of all issues as to all

       parties is not final. Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012).

       Generally, a non-final order is not appealable unless it is an interlocutory order

       that is appealable as of right under Appellate Rule 14(A), or the appellant has

       sought and gained permission for a discretionary interlocutory appeal from the

       trial court and this court under Appellate Rule 14(B). 2 See Ball State University v.

       Irons, 27 N.E.3d 717, 720 (Ind. 2015). There is no question that the complaint

       was not dismissed as to GEO and therefore did not dispose of all issues as to all

       parties. There is no argument here that the trial court used the “magic

       language” of Indiana Trial Rule 54(B) to convert the partial dismissal of



       2
        Interlocutory appeals also may be taken from orders denying or granting class-action certification. Ind.
       App. R. 14(C).

       Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017                          Page 6 of 10
       Manley’s complaint into a final judgment, nor that it is interlocutory as of right,

       nor did Manley seek permission to file an interlocutory appeal.


[14]   Until recently, it was understood that the lack of a final appealable order

       impacted an appellate court’s “jurisdiction” to entertain an appeal and that

       dismissal of the appeal was required in such situations. See, e.g., Ramsey, 959

       N.E.2d at 254; Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003). Now,

       however, our supreme court has effectively overruled cases such as Ramsey and

       Georgos and held that, although a party who pursues an appeal from a non-final

       judgment has “forfeited” the right to appeal, the appellate court still has

       “jurisdiction” to consider the appeal on the merits. In re D.J. v. Indiana Dep’t of

       Child Servs., 68 N.E.3d 574, 579 (Ind. 2017). The court in D.J. proceeded to

       consider the merits of a child in need of services finding that was appealed

       before a dispositional order was entered, thus making it a non-final order; the

       court relied heavily upon the important parental rights at stake in such an order,

       as well as previous opinions from this court that had considered such orders on

       the merits, and noted that the purpose of the appellate rules is to achieve “‘the

       ultimate end of orderly and speedy justice.’” Id. at 579-80 (quoting American

       States Ins. Co. v. State ex rel. Jennings, 258 Ind. 637, 640, 283 N.E.2d 529, 531

       (1972)). The court emphasized that it is “never error for an appellate court to

       dismiss an untimely appeal” but that an appellate court may nonetheless

       exercise its discretion to consider a premature appeal on the merits. Id. at 579.


[15]   We do not believe the D.J. opinion should be taken as an invitation to open the

       floodgates to premature appeals from non-final judgments. We decline to

       Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017     Page 7 of 10
       consider the merits of the partial dismissal of Manley’s complaint. It would be

       unorderly if we were to affirm that partial dismissal, only to have GEO still

       litigating the case and necessitating a potential second appeal by one of the

       parties in this matter sometime in the future. Nor should we offer our opinion

       on the merits of the dismissal before GEO has weighed in or sought dismissal in

       its own right. Additionally, the time constraints that are present in cases

       involving young children and their caregivers are absent here. Indeed, as the

       State points out, Manley has yet to enter phase two of the SOMM program, the

       actual treatment portion that would allegedly violate his constitutional rights,

       because he is not within three years of his expected release date. We conclude

       that dismissal of this appeal and a remand for further proceedings is the

       appropriate course of action.


[16]   We also note some confusion in the record as to dismissal of this cause of

       action against Liberty. The trial court’s order signed on July 14, 2016, only

       dismissed the complaint as to the DOC. The order signed on July 21, 2016,

       only dismissed the complaint as to Liberty. However, the trial court later that

       same day apparently struck that order from the record, incorrectly labeling it a

       duplicate of the July 14 order. It is unclear why the trial court took this action.

       On remand, the trial court should clarify its striking of the July 21 order of

       dismissal.


[17]   On a final note, Manley has argued that the trial court improperly failed to

       follow local court rules regarding opportunities to respond to motions to

       dismiss. Henry County Circuit Court Rule 33-TR-12-1 states in part, “An

       Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017   Page 8 of 10
adverse party shall have 15 days after service of the movant’s brief to file an

answer brief. Failure to timely file briefs shall subject all motions filed pursuant

to T.R. 12 to summary ruling.” When a local rule employs mandatory

language, the local court must follow its own rule. Buckalew v. Buckalew, 754

N.E.2d 896, 898 (Ind. 2001). The word “shall” generally is a mandatory term.

Indiana Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 947

(Ind. 1999). Here, the trial court granted the DOC’s motion to dismiss three

days after it was filed; although Liberty had filed its motion to dismiss more

than fifteen days prior, that is not the motion the trial court originally granted.

Manley is a prolific pro se litigator. He has not, however, been classified as an

“abusive litigant” under statutes, court rules, or inherent court authority that

permit reasonable restrictions on such litigants. Cf. Zavodnik v. Harper, 17

N.E.3d 259, 264-65 (Ind. 2014).3 Although pro se litigants such as Manley are

held to the same standards as lawyers, they also are entitled to the same

procedural protections as lawyers. See Tam v. State Farm Mut. Auto. Ins. Co., 685

N.E.2d 1133, 1135 (Ind. Ct. App. 1997).




3
  The trial court stated in part in its order that Manley’s amended complaint was “incoherent, insufficient
and/or misinformed and without legal basis . . . .” App. Vol. II p. 18. We would not go that far as to say the
amended complaint was incoherent or misinformed. We pass no judgment at this time on the legal merits of
Manley’s claims, but they are written coherently and with citation to relevant authority. The trial court also
had previously allowed Manley’s original complaint to proceed as non-frivolous under the prisoner litigation
screening process found in Indiana Code Section 34-58-1-2.

Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017                          Page 9 of 10
                                                  Conclusion
[18]   We dismiss this appeal and remand for further proceedings consistent with this

       opinion.


[19]   Dismissed and remanded.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 33A05-1608-PL-1952 | May 31, 2017   Page 10 of 10
