Opinion
23A-CT-1836
06-27-2024
Kevin Martin, Appellant-Plaintiff v. Donald Westerhausen, Jr., et al., Appellees-Defendants
APPELLANT PRO SE Kevin Martin. ATTORNEY FOR APPELLEES RAY WOLFENBARGER AND SCOTT RUSZKOWSKI Kathryn L. Hough.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Superior Court The Honorable Mark P. Telloyan, Judge Trial Court Cause No. 71D07-2305-CT-237
APPELLANT PRO SE Kevin Martin.
ATTORNEY FOR APPELLEES RAY WOLFENBARGER AND SCOTT RUSZKOWSKI Kathryn L. Hough.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Kevin Martin appeals pro se the St. Joseph Superior Court's order dismissing his complaint against Donald Westerhausen Jr., Ray Wolfenbarger, and Scott Ruszkowski, who were apparently employees of the South Bend Police Department. Martin's complaint fails to state a claim upon which relief can be granted, and therefore, the trial court properly dismissed his complaint pursuant to Trial Rule 12(B)(6).
[¶2] We affirm.
Facts and Procedural History
[¶3] Martin is currently incarcerated in the Pendleton Correctional Facility serving several sentences, including a sixty-five-year sentence for murdering his girlfriend. His earliest possible release date is July 20, 2046.
[¶4] In the last six years, Martin has filed numerous complaints against prison officials and employees, law enforcement officials, judges, attorneys, and other court personnel. Many of his complaints have been dismissed for the reasons enumerated in Trial Rule 12(B) or under Indiana Code section 34-58-1-2, Indiana's Frivolous Claim Law. See, e.g., Martin v. Hancock, 23A-PL-554, 2024 WL 1223358 (Ind.Ct.App. Mar. 22, 2024); Martin v. Wellington, 23A-CT-830, 2023 WL 6856044 (Ind.Ct.App. Oct. 18, 2023), trans. denied; Martin v. Galipeau, 20A-CT-1178, 110, 2021 WL 325674 (Ind.Ct.App. Jan. 27, 2021), trans. denied; Martin v. Vaidik, 18A-CT-1980, 2018 WL 6837717 (Ind.Ct.App. Dec. 31, 2018), trans. denied.
[¶5] On January 9, 2023, Martin submitted a "Request for Access to Public Record" to "Donald Westerhausen or South Bend Police Commissioner." Appellant's App. p. 23. In the request, Martin asked for "the test result" for "three [] projectiles that [Anthony Bontrager] test[ed] ...." Id. Martin also requested the name of the "commissioner of [S]outh [B]end [] from 2006 at the time of [his] arrest." Id. at 24. Martin asked for the records for the purpose of proving he was wrongfully convicted of murder. Id. Martin also asked for the "M.H.U. address in South Bend Police[.]" Id. at 25. The Appellees note that this request was not properly submitted to the City of South Bend because it was not sent to the correct address. Appellees' Br. at 8.
[¶6] Martin apparently sent another request on February 3, 2023, to the correct address. This request is not included in Martin's appendix. However, his appendix contains the response from the City of South Bend. Appellant's App. p. 21. The response notes that Martin was requesting the South Bend police commissioner's name on July 19, 2006, and the current commissioner's name. Although the City did not have "responsive records regarding 'South Bend Police Department commissioner,' as no such position exists," the City stated that the Chief of Police in July 2006 was Thomas Fautz and the Chief of Police in January 2023 was Scott Ruszkowski. Id.
[¶7] After receiving the City's response, Martin filed his pro se "prisoner" complaint pursuant to 42 U.S.C. § 1983 against the Defendants, individually, on May 9, 2023. Appellant's App. p. 16. Defendant Westerhausen never filed an appearance. Ruszkowski is the Chief of Police for the South Bend Police Department, and Wolfenbarger is a firearm and toolmark examiner for the police department.
We have reviewed the chronological case summary, and it appears that Martin was unable to serve Westerhausen with his complaint. Appellant's App. pp. 5-6.
[¶8] In the complaint, Martin alleged the Defendants were "deliberately indifferent which resulted in a Fourteenth Amendment violation of the plaintiff['s] equal protection of law to all citizens not afford [sic] him access to material under [the] public record act because he [is] African American." Id. at 17. Martin alleged that he was denied records relating to ballistics tests and fingerprint tests that "were performed prior to" his 2006 trial, and that the State introduced false evidence at his murder trial. Id. at 20. Ruszkowski and Wolfenbarger (collectively "the Appellees") filed a motion to dismiss Martin's complaint pursuant to Trial Rule 12(B)(6). The trial court granted their motion three days later, on July 25.
[¶9] Martin appeals the dismissal of his complaint.
Discussion and Decision
[¶10] We begin by noting that Martin proceeds pro se. A litigant who proceeds pro se is held to the same rules of procedure that trained counsel is bound to follow Smith v. Donahue, 907 N.E.2d 553, 555 (Ind.Ct.App. 2009), trans. denied. Pro se litigants are afforded no inherent leniency simply by virtue of being self- represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). One risk a litigant takes when he proceeds pro se is that he will not know how to accomplish all the things an attorney would know how to accomplish. Smith, 907 N.E.2d at 555. When a party elects to represent himself, there is no reason for us to indulge in any benevolent presumption on his behalf or to waive any rule for the orderly and proper conduct of the appeal. Foley v. Mannor, 844 N.E.2d 494, 496 n.1 (Ind.Ct.App. 2006).
[¶11] The Appellees argue that Martin has waived his claims on appeal because he failed to present a cogent argument on appeal as required by Indiana Appellate Rule 46(A)(8)(a). A party's failure to comply with the appellate rules does not necessarily result in waiver of the issues presented, but it is appropriate when such noncompliance impedes our review. In re Moder, 27 N.E.3d 1089, 1097 n.4 (Ind.Ct.App. 2015), trans. denied.
[¶12] The Appellees observe that Martin "cites to case law that does not apply to his claims, or at best conflates his claims with other, unasserted legal theories[.]" Appellees' Br. at 12. In addition, the Appellees note that Martin "attempts to inappropriately introduce allegations of misconduct" that are not related to the issues presented in this appeal and not supported by the record. Id. Finally, the Appellees note that Martin's appendix contains material outside the record on appeal. Id. (citing Appellant's App. pp. 41-45).
[¶13] Several of Martin's prior pro se appeals have been dismissed (or his issues have been waived) for his failure to comply with Appellate Rule 46. See, e.g., Martin v. Robinson, 24A-CC-74, 2024 WL 2290444 (Ind.Ct.App. May 21, 2024); Martin v. Hancock, 23A-PL-554, 2024 WL 1223358 (Ind.Ct.App. Mar. 22, 2024); Martin v. Rosenberg, 23A-CT-355, 2023 WL 6296894 (Ind.Ct.App. Sept. 27, 2023); Martin v. Hunt, 130 N.E.3d 135, 137 (Ind.Ct.App. 2019). We agree with the Appellees that Martin's arguments in this appeal generally lack cogency or proper citation to authority. In addition, Martin failed to include his properly submitted public records request in his appendix. However, to the extent we can discern Martin's claims, they are easily resolved on their merits. Therefore, we address them briefly below.
[¶14] In his brief, Martin asserts that the trial court erred when it dismissed his complaint pursuant to Trial Rule 12(B)(6). A Rule 12(B)(6) motion tests the legal sufficiency of a claim, not the facts supporting it. Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., 193 N.E.3d 1009, 1013 (Ind. 2022). The court considering a Rule 12(B)(6) motion to dismiss looks only to the complaint and no other evidence in the record, accepts the alleged facts as true, and construes the allegations and reasonable inferences in the light most favorable to the nonmoving party. See Bellwether Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017). We review a Rule 12(B)(6) dismissal de novo. Id.
[¶15] The Appellees argue that Martin failed to allege a constitutional violation necessary to establish a claim under 42 U.S.C. § 1983. To prevail on a Section 1983 claim, "the plaintiff must show that (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant acted under the color of state law." Myers v. Coats, 966 N.E.2d 652, 657 (Ind.Ct.App. 2012) (quotation omitted). Martin has not alleged any facts in his complaint that would establish that the Appellees have deprived him of a "right secured by the Constitution and laws of the United States." See id.
[¶16] In his complaint, Martin alleged that he made a request for records under the Indiana Code chapter 5-14-3. "A person who has been denied the right to inspect or copy a public record by a public agency may file an action in the circuit or superior court of the county in which the denial occurred to compel the public agency to permit the person to inspect and copy the public record." Ind. Code 5-14-3-9(e). Martin's complaint does not allege any facts that would establish that the Appellees interfered with his request or denied him access to the records that he sought. Martin also did not allege any facts to support his claim that he was denied access to public records because of his race.
[¶17] Also, in his request for relief, Martin sought "injunctive relief seeking a court order to order Ray Wolfenberger and Donald Westerhausen and[/]or Scott Ruszkowski to turn over all ballistic test[s] and fingerprint test[s] that were performed prior to trial." Appellant's App. p. 20. Subject to some limitations, the Access to Public Records Act allows individuals to obtain records from a "public agency." See Ind. Code chapter 5-14-3. Although the South Bend Police Department is a public agency as defined in the Act, individual police officers are not. See id.; see also Lane-El v. Spears, 13 N.E.3d 859, 867 (Ind.Ct.App. 2014), trans. denied. Martin's complaint only names the Appellees in their individual capacities. Because the individual Appellees are not proper parties to a claim under the Access to Public Records Act, the relief that Martin sought in his complaint was not available to him.
[¶18] For all of these reasons, we conclude that the trial court properly dismissed Martin's complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(B)(6).
[¶19] Martin also claims that the "Defendant and trial court [engaged in] ex parte communications without the plaintiff," which deprived him of the right to prepare a defense. Appellant's Br. at 2. Martin appears to argue that the trial court engaged in ex parte communication by granting the Appellees' motion to dismiss before Martin was provided an opportunity to respond to that motion. Appellant's Br. at 13.
[¶20] The trial court did not engage in ex parte communication when it issued its order to all parties granting the Appellees' motion to dismiss. Moreover, Trial Rule 12(B) allows the plaintiff ten days after service of the court's order to amend his pleading. Martin did not amend his complaint as allowed by the rule. Therefore, even if we were to conclude that the trial court erred when it granted the Appellees' motion to dismiss three days after the motion was filed, Martin cannot show any harm or resulting prejudice.
[¶21] For all of these reasons we affirm the trial court's order granting the Appellees' motion to dismiss.
[¶22] Affirmed.
Riley, J., and Brown, J., concur.