Court of Appeals of Indiana | Memorandum Decision 20A-CT-464 | July 2, 2020 Page 1 of 7

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

Kevin L. Martin

Westville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kevin L. Martin,

Appellant-Plaintiff,

v.

Prison Guards Wabash Valley 

Correctional Facility,1

Appellees-Defendants.

July 2, 2020

Court of Appeals Case No.

20A-CT-464

Appeal from the Sullivan Circuit 

Court

The Honorable Robert E. Hunley, 

Judge

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 2 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 court3concerning 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.
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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 4 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 5 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 6 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, 
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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.