Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A PPELLANT , P RO S E Michael S. Hauser A TTORNEY S FOR A PPELLEE Adam G. Forrest BBKCC ATTORNEYS Richmond, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Michael S. Hauser , Appellant ,

v. 

### The GEO Group Inc., Lt. Storms, Sgt. Cross, Sgt. A. Brown, and Sgt. H.N. Driscoll , Appellee s. June 28 , 2019 Court of Appeals Ca se No. 18A

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- 1240 Appeal from the Henry Circuit Court The Honorable David L. McCord, Judge Trial Court Cause No. 33C03

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Pyle , Judge
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### Statement of the Case

[1] Michael Hauser (“Hauser”) , an inmate in the Department of Correction (“DOC”) , filed a pro se small claims complaint in Henry C ircuit Court against The GEO Group, Inc., Lt. Storms, Sgt. Cross, Sgt. A. Brown, and Sgt. H.N. Driscol (“Correctional Staff”) seeking t he monetary value of lost property

.

[2] Hauser ’s appeal rais es several issue s , which we restate as (1) whether the trial

court abused its discret ion by denying Hauser’s motion for telephonic hearing ; and (2) whether Hauser demonstrated that he i s entitled to the recovery sought

. Concluding that the trial court did not abuse its discretion and that Hauser failed to demonstrate that he is entitled to the recovery sought , we affirm the trial court

.

[3] We affirm.



### Issue s

1. Whether the trial court abused its discretion by denying Hauser’s motion for telephonic hearing. 2. Whether Hauser demonstrated that he is entitled to the recovery sought. 

### Facts

[4] On February 5, 2017, Hauser received a conduct report due to a behavioral issue and was placed in the restrictive housing unit (“RHU”) at the New Castle Correctional Facility (“NCCF”)

. Before Hauser was placed in the RHU, his property was inventoried on an “ Offender Personal Property ” form

. (App. Vol.Court of Appeals of Indiana | Memorandum Decision 18A

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2 at 32

- 34 ). On February 7, Hauser was released from restrictive housing

. Upon release, he signed a “ P roperty R elease

- I nmate ” form through which he acknowledged that all of his state

- issued and personal prope rty had been returned to him

. (App. Vol. 2 at 74 ).

[5] On February 13, 2017, Hauser filed a n “ Offender Complaint ” with the RHU staff alleging the loss of property

. (App. Vol. 2 at 44 ). Hauser claimed that he was missing: various art supplies, batteries, substance abuse manuals, a blanket, a radio, and clothing items. In response, L t. Storms stated that some of Hauser’s personal property had been “confiscated [as ] altered or excessive[.]” (App. Vol. 2 at 67). Lt. Storms also addressed the fact that many of the items claimed missing were not on either inventory form.

[6] Approximately two weeks later, on February 22, Hauser filed a “ Notice of Loss of Property

– Tort Claim ” with the Legal Services Division of the DOC seeking reimbursement of $62.42 for h is lost property

. (App. Vol. 2 at 45 ). Mike Smith (“Smith”) , the Tort Claims Administrator at the NCCF , investigated Hauser’s claim and denied the same as unsub s tanti at ed. In support of the denial , Smith cited several reasons including the fact that som e items : were confiscated, were not listed on either inventory sheet, were accounted for, and lacked proof of purchase receipts

.

[7] On January 22, 2018 , Hauser filed a pro se notice of claim against the Correctional Staff regarding his lost property seeking damages in the amount of $6,000

. T hat same day , the court “order[ed] all parties to submit their evidenceCourt of Appeals of Indiana | Memorandum Decision 18A

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by affidavit.” 1 (App. Vol. 2 at 22) (emphasis in original). The trial court ordered Hauser to file his evidence by the trial date of March 2 and the Correctional Staff to file their evidence within twenty (20) days thereafter. T he court order further stated that within thirty (30) days after the trial date, Hauser could “ file any rebuttal evidence by affidavit or exhibit.” (App. Vol. 2 at 22). If Hauser filed any rebuttal evidence, within forty (40) days after the trial date, Correctional Staff could “ file any surrebuttal evidence by affidavit or exhibit.” (App. Vol. 2 at 23).

[8] On February 15, 2018, Hauser filed his affidavit with s everal exhibits attached.
H e again valued his missing property at $62.42. Thereafter, on March 3 , 2018, Hauser filed a “ Motion for Telephonic Appearance at Hearing [,] ” which was denied a few days later. (App. Vol. 2 at 47). On March 20, 2018, Correction al
St aff filed their response, which included an affidavit by Smith and additional

e xhibits

. Hauser then filed a “Response to Mike Smith Affidavit.” (App. Vol. 2 at 78). Following Hauser’s response, Correctional Staff filed a second affidavit by Smith

.

[9] The trial court entered an order on April 24 denying Hauser’s claim for failing “to meet his burden of proof [.]” (App. Vol. 2 at 6). Three days later, Hauser filed a “Response to Second Affidavit of Mike Smith.” (App. Vol. 2 at 86).

1 In support of allowing the trial to proceed by documentary evidence, the court cited Hill v. Duckworth , 679 N.E.2d 938, 940 n. 1 (Ind. Ct. App. 1997) (noting that one of the available avenues for a prisoner, who is denied permission to attend trial, to prosecute his action is to submit “the case to the court by documentary evidence [] ”)

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Thereafter, on April 30 , the trial court issued its April 24 order denying Hauser’s claim. Hauser now appeals.


### Decision

[10] Hauser argues that the trial court abused its discretion when it denied his

m otion for t elephonic hearing a nd erred when it concluded that he failed to demonstrate that he is entitled to the recovery sought

. We address each of his contentions in turn.

1. Motion for Tele phonic Hearing

[11] Hauser argues that the trial court abused its discretion by denying his “Motion for Telephonic Appearance at Hearing

. ” (App. Vol. 2 at 47). In support of his position, Hauser contends that he “has a right to have access to the courts in a free, and open manner.” (Hauser’s Br. 12). Hauser is correct that he has a right to bring a civil action. However, a prisoner, suc h as Hauser, does not have an absolute right to be present at the proceeding. Niksich v. Cotton , 810 N.E.2d 1003, 1008 (Ind. 2004). We have previously held that a trial court cannot secure the attendance of an incarcerated plaintiff at a civil action unr elated to the case resulting in incarceration. Hill , 679 N.E.2d at 9 39 (citing Rogers v. Youngblood , 78 N.E.2d 663, 665 (Ind. 1948) )

. Additionally, trial c ourts are endowed with large administrative discretion in the conduct of their business, and in the absence of an abuse of discretion, appellate courts will not interfere in such matters. Rogers , 78 N.E.2d at 665

. Indeed, there are different avenues available to the trial court by which it can proceed with the civil claim of anCourt of Appeals of Indiana | Memorandum Decision 18A

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incarcerated individual including : submission by documentary evidence ; trial by telephonic conference ; representation by counsel ; and postponement until release from incarceration. Hill , 679 N.E.2d at 940 n. 1.

[12] Here , Hauser was afforded the opportunity to submit his claim by affidavit.
T he trial court declined to order transport of H a user for the civil proceeding and “order[ed] all parties to submit their evidence by affidavit.” (App. Vol. 2 at 22) (emphasis in original). Hauser complied and submitted his documentary eviden ce. He later filed the motion for telephonic hearing, which was denied by the trial court. Because the trial court has considerable discretion in selecting how to proceed after evaluating a pri soner’s need to be present against concerns of expense, security , logistics and docket control, we conclude that the trial court did not abuse its discretion when it denied Hauser’s motion and ordered
all parties to submit their evidence by affidavit. See Niksich , 810 N.E.2d at 1008.
2. Sufficiency of Evid ence

[13] Hauser argues that there was sufficient evidence to support his small claims action. His argument is two

- pronged. First, he argues that the trial court erred when it did not consider his response to the “Second Affidavit of Mike Smith.” (App. Vol. 2 at 83). Second , he argues that the trial court erred by finding that he failed to demonstrate that he is entitled to the recovery sought

.

[14] Judgments in small claims actions are “subject to review as prescribed by relevant Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellateCourt of Appeals of Indiana | Memorandum Decision 18A

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review of facts determined in a bench trial with due regard given to the opportunity of the small claims court to assess witness credibility. Trinity Homes, LLC v. Fan

g , 848 N.E.2d 1065, 1067 (Ind. 2006). This “deferential standard of review is particularly important in small claims actions, where trials are ‘informal, with the sole objective of dispensing speedy justice between the parties a ccording to the rules of substantive law.’” Id . at 1067

- 68 (quoting City of Dunkirk Water & Sewage Dep’t v. Hall , 657 N.E.2d 115, 116 (Ind. 1995)). Although the method of proof may be informal, the parties in a small claims court bear the same burdens o f proof as they would in a regular civil action on the same issues. LTL Truck Serv. LLC v. Safeguard, Inc. , 817 N.E.2d 664, 668 (Ind. Ct. App. 2004). The party who bears the burden of proof must demonstrate that he is entitled to the recovery sought. Id

. Where a small claims case turns solely on documentary evidence, we review the judgment de novo, just as we review summary judgment rulings and other “paper records.” Trinity Homes

, 848 N.E.2d at 1068.

[15] Hauser first argues that the trial court erred whe n it did not consider his response to the “Second Affidavit of Mike Smith [ .] ” (App. Vol. 2 at 83). In its order to submit evidence by affidavit, the trial court stated that within thirty (30) days after the trial date, Hauser could “file any rebuttal evi dence by affidavit or exhibit.” (App. Vol. 2 at 22). If Hauser did file any rebuttal evidence, within forty (40) days after the trial date, Correctional Staff could “file any surrebuttal evidence by affidavit or exhibit.” (App. Vol. 2 at 23). Both
H a us er and Correctional Staff took such action. However, nowhere in the trialCourt of Appeals of Indiana | Memorandum Decision 18A

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court’s order does it provide Hauser with the opportunity to file a response to Correctional Staff’s “surrebuttal evidence

. ” (App. Vol. 2 at 23). A trial court is not obligated to allow parties repeated attempts to respond to an opposing witness’ affidavit s. See Barnett v. State , 916 N.E.2d 280, 286 (Ind. Ct. App. 2009) (holding that a small claims court has broad discretion in determining whethe r to admit or exclude evidence ) , trans. denied

. Here, the trial court gave Hauser an opportunity to respond to a witness’ affidavit. This was consistent with the interests of justice under the small claims rules.

[16] Hauser next contends that he did demonstrate that he is entitled to the recovery sought

. However, our review of the record reveals otherwise

. Under I ND IANA C ODE § 33

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- 4, “[t]he small claims docket has jurisdiction over the following: (1) Civil actions in which the amount sought or value of the property sought to be recovered is not more than six thousand ($6,000).” Moreover, under Indiana Small Claims Rule 2(B)(4), the notice of tort claim must include “the nature and amount of the claim[.]” Thus, in order to prevail, Hauser had to prove what he was missing and the amount of the damages.

[17] In his submission of evidence, Hauser attached several lists of property he claim ed was missing , inventory lists , and receipts

. T hese exhibits are inconsistent with each other

. Hauser claims s everal items as missing that were

not liste d on either his personal property inventory form upon leaving his unit or the inventory form completed upon his entrance into the RHU. Further, upon leaving the RHU, Hauser signed a form acknowledging the return and receipt of all of his property. Moreover , i t is noteworthy that in his submissionCourt of Appeals of Indiana | Memorandum Decision 18A

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of evidence, Hauser claim ed his lost property wa s worth $62.42 . However, he is requesting damages totaling $6,000. H auser provided no explanation or evidence reflecting his alleged lost property being valued at $6,000. It is clear that t he trial court did not err by finding that Hauser failed to demonstrate that he is entitled to the recovery sought

.

[18] Based on the foregoing, we conclude that the trial court did not abuse its discretion and that Hauser failed to demonstrate that he is entitled to the recovery sought . Accordingly, we affirm the trial court.

[19] Affirmed.

Riley, J., and Bailey, J., concur.