Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Billy J. Lemond

Westville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Billy J. Lemond,

Appellant- Plaintiff, 

v. 

Indiana Department of 

Correction, State of Indiana, and 

Westville Correctional Facility, 

Appellees- Defendants. 

September 24, 2019

Court of Appeals Case No.

19A-SC-708 

Appeal from the LaPorte Superior 

Court

The Honorable Jeffrey L. Thorne, 

Judge

Trial Court Cause No.

46D03-1812-SC-2642 

Tavitas, Judge. 
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 2 of 10

Case Summary

[1] Billy Lemond appeals the small claims court’s dismissal of his claim against the 

Westville Correctional Facility, the Indiana Department of Correction

(“DOC”), and the State of Indiana (collectively, “Defendants”).

1

 We affirm. 

Issue

[2] Lemond raises one issue, which we restate as whether the small claims court 

erred by dismissing Lemond’s claim.

Facts

[3] Lemond is incarcerated at the Westville Correctional Facility. According to 

Lemond, officers improperly confiscated some of his personal property on July 

8, 2018. Lemond claims to be missing the following: “One pair of Sweatpants, 

one box of Tea bags, two boxes of Sugar Substitute, one Minced Onion, one 

bag of Coffee, one box of Saltine Crackers, One Salt and Pepper shaker[], One 

Mrs. Dash Seasoning.” Appellant’s App. Vol. II p. 29. According to Lemond, 

he filed a notice of tort claim with the DOC on July 30, 2018, but failed to use 

the proper form. Lemond claims to have filed another notice of tort claim with 

the DOC on October 11, 2018, using the correct form.

1 Defendants filed a notice of non-involvement with this appeal. Defendants noted that they were not issued 

a summons in the small claims court matter, that they were not involved in the appeal, and that they did not 

intend to file a brief. This Court accepted Defendants’ notice of non-involvement.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 3 of 10

[4] On November 7, 2018, Lemond filed a proposed notice of small claims 

complaint against Defendants pursuant to Indiana Code Chapter 34-58-1, 

which provides a screening procedure for offender litigation. Lemond alleged 

that DOC staff took his personal property valued at $29.19. Lemond requested 

$29.19 plus $2.35 in prejudgment interest and $100 for “expenses and time in 

filing tort and claim.” Id. at 9.

[5] The small claims court conducted the review provided for in Indiana Code 

Section 34-58-1-2, and on December 28, 2018, the small claims court entered 

the following order:

Plaintiff having submitted his original claim for filing on 

November 7, 2018 and the Court having ordered the Clerk to 

docket the matter without receiving a filing fee subject to review 

as required by I.C. 34-58-1-2 by Order entered November 21, 

2018, and the Court having conducted the review as required by 

I.C. 34-58-1-2 issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Court finds Plaintiff’s claim to be frivolous under I.C. 34-

58-1-2.

2. The Court finds that said claim was filed to harass the 

Defendants per I.C. 34-58-1-2.

3. The Court finds that said claim does not comply with the 

requirements of I.C. § 34-13-3-7.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 4 of 10

4. To the extent that Plaintiff seeks recovery from Defendants in 

their capacities as employees or agents of the state of Indiana, the 

Indiana Department of Correction or any other governmental 

entity, Plaintiff’s claim wholly fails to comply with the

requirements of the Indiana Tort Claims Act at I.C. 34-13-3-1 et 

seq.

5. Plaintiff’s claim fails to comply with the provisions of I.C. §

34-13-7-1.

6. The Court finds Plaintiff’s claim to be frivolous under I.C. § 

3[4]-13-7-1.

IT IS THEREFORE ORDERED, ADJUDGED AND 

DECREED that Plaintiff’s Motion for Relief from Fee and Civil 

Action be and the same is hereby granted and this cause shall be 

ordered filed without the payment of the required filing fee.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the claim as filed does not meet the 

requirements of Indiana law as set forth hereinabove.

IT IS FURTHER ORDERED, ADJUDGED AND 

DECREED that Plaintiff be and he is hereby given an additional 

thirty (30) days from which to file additional pleadings and/or

documents to remedy the aforementioned deficiencies.

IT IS FURTHER ORDERED, ADJUDGED AND 

DECREED that the Clerk of this Court shall send copies of this 

Order to Plaintiff, the named Defendants, the Indiana 

Department of Correction, the Attorney General of the state of 

Indiana.

Id. at 18-19.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 5 of 10

[6] Lemond then filed a motion to reconsider and submitted his tort claim notices

and limited information regarding prior litigation he had filed. On February 14, 

2019, the small claims court entered an order denying Lemond’s motion to 

reconsider and found as follows:

2. The Court finds Plaintiff’s claim to be frivolous under IC 34-

58-1-2.

3. The Court finds that said claim was filed to harass the 

Defendants per IC 34-58-1-2.

4. Plaintiff’s claim wholly fails to comply with the provisions of 

IC 34-13-7-1.

5. The Court finds . . . Plaintiff’s claim to be frivolous under IC 

3[4]-13-7-1.

Id. at 6. Lemond now appeals.

Analysis

[7] Lemond argues that the small claims court erred by dismissing his claim. 

Lemond’s claim was resolved pursuant to Indiana Code Chapter 34-58-1, 

which provides a screening procedure for offender litigation. In reviewing the 

dismissal of an offender’s claim, complaint, or dismissal pursuant to Indiana 

Code Chapter 34-58-1, “we employ a de novo standard of review.” Smith v. 

Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed, 

558 U.S. 1074, 130 S. Ct. 800 (2009). “Like the trial court, we look only to the 

well-pleaded facts contained in the complaint or petition.” Id. “Further, we 
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 6 of 10

determine whether the complaint or petition contains allegations concerning all 

of the material elements necessary to sustain a recovery under some viable legal 

theory.” Id. 

[8] Indiana Code Section 34-58-1-1 provides: “Upon receipt of a complaint or 

petition filed by an offender, the court shall docket the case and take no further 

action until the court has conducted the review required by section 2 of this 

chapter.” Section 2 of the chapter states:

(a) A court shall review a complaint or petition filed by an 

offender and shall determine if the claim may proceed. A claim 

may not proceed if the court determines that the claim:

(1) is frivolous;

(2) is not a claim upon which relief may be granted; or

(3) seeks monetary relief from a defendant who is immune 

from liability for such relief.

(b) A claim is frivolous under subsection (a)(1) if the claim:

(1) is made primarily to harass a person; or

(2) lacks an arguable basis either in:

(A) law; or

(B) fact.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 7 of 10

(c) A court shall dismiss a complaint or petition if:

(1) the offender who filed the complaint or petition 

received leave to prosecute the action as an indigent 

person; and

(2) the court determines that the offender misrepresented 

the offender’s claim not to have sufficient funds to 

prosecute the action.

Ind. Code § 34-58-1-2.

[9] We conclude that the small claims court properly dismissed Lemond’s small 

claims court action. Although the small claims court identified several reasons 

for the dismissal, we focus on Lemond’s failure to comply with Indiana Code 

Chapter 34-13-3 and Indiana Code Section 34-13-7-1.

I. Indiana Code Chapter 34-13-3

[10] Indiana Code Section 34-13-3-7(a) requires an offender to “file an 

administrative claim with the department of correction to recover compensation 

for the loss of the offender’s personal property alleged to have occurred during 

the offender’s confinement as a result of an act or omission of the department . . 

. .” The administrative claim must be filed within one hundred eighty days 

after the date of the alleged loss. I.C. § 34-13-3-7(a). The DOC must then 

evaluate each claim and “determine the amount due, if any.” I.C. § 34-13-3-

7(b). 
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 8 of 10

Within ninety (90) days of the filing of a claim, the governmental 

entity shall notify the claimant in writing of its approval or denial 

of the claim. A claim is denied if the governmental entity fails to 

approve the claim in its entirety within ninety (90) days, unless 

the parties have reached a settlement before the expiration of that 

period. 

I.C. § 34-13-3-11. Indiana Code Section 34-13-3-13 provides that “[a] person 

may not initiate a suit against a governmental entity unless the person’s claim 

has been denied in whole or in part.” This “notice provision is not a statute of 

limitation but a procedural precedent which must be fulfilled before filing suit in 

a state court.” Orem v. Ivy Tech State Coll., 711 N.E.2d 864, 869 (Ind. Ct. App. 

1999), trans. denied.

[11] Here, Lemond apparently filed his tort claim notice with the DOC on October 

11, 2018, and the claim was deemed denied on January 9, 2019, pursuant to 

Indiana Code Section 34-13-3-11.

2

 Lemond, however, filed his small claims 

court action on November 7, 2018, long before the DOC responded to the claim 

or it was deemed denied. Lemond, consequently, filed his claim prematurely, 

and the small claims court properly dismissed it under Indiana Code Section 

34-58-1-2 because it is not a claim upon which relief may be granted. See, e.g., 

Orem, 711 N.E.2d at 870 (holding that the trial court should have dismissed the 

plaintiff’s claim without prejudice because it was filed prematurely).

2 The tort claim was apparently denied in writing by the Special Investigation Division of the Office of the 

Attorney General on March 19, 2019, after this appeal was initiated.
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 9 of 10

II. Indiana Code Section 34-13-7-1

[12] The small claims court concluded that “Plaintiff’s claim wholly fails to comply 

with the provisions of IC 34-13-7-1.” Appellant’s App. Vol. II pp. 6, 18. 

Indiana Code Section 34-13-7-1(a) requires the offender to, in part, submit the 

following to the trial court with the proposed complaint:

(2) a list of all cases previously filed by the offender involving the 

same, similar, or related cause of actions; and

(3) a copy of all relevant documents pertaining to the ultimate 

disposition of each previous case filed by the offender against any 

of the same defendants in a state or federal court. The relevant 

documents include:

(A) the complaint;

(B) any motions to dismiss or motions for summary 

judgment filed by the defendants in the actions;

(C) the state or federal court order announcing disposition 

of the case; and

(D) any opinions issued in the case by any appellate court.

[13] Lemond failed to submit any information regarding his prior cases filed against 

the same defendants in his initial filing with the small claims court. When 

Lemond filed his motion to reconsider, he mentioned two prior cases he had 

filed against the same defendants. Lemond, however, failed to file any of the 

relevant documents, such as the complaint, orders, or opinions, regarding those 
Court of Appeals of Indiana | Memorandum Decision 19A-SC-708 | September 24, 2019 Page 10 of 10

two cases. Given Lemond’s failure to comply with Indiana Code Section 34-

13-7-1, the small claims court properly dismissed his claim.

Conclusion

[14] The small claims court properly dismissed Lemond’s claim. We affirm.

[15] Affirmed.

Brown, J., and Altice, J., concur.