MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this May 29 2015, 8:53 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher C. Myers Gregory F. Zoeller
Christopher C. Myers & Associates Attorney General of Indiana
Fort Wayne, Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mitchell Sigman, May 29, 2015
Appellant-Defendant, Court of Appeals Case No.
46A05-1411-CT-516
v. Appeal from the LaPorte Circuit
Court
State of Indiana and Sharon Honorable Thomas J. Alevizos,
Hawk, Judge
Appellee-Plaintiff
Cause No. 46C01-1406-CT-1185
Friedlander, Judge.
[1] Mitchell Sigman appeals from the trial court’s dismissal of his complaint
against the State of Indiana and Sharon Hawk (collectively, the Defendants) for
failure to state a claim because he did not “commence” his action before the
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expiration of the relevant statute of limitations. Sigman presents one issue for
our review: did the trial court err in dismissing his complaint?
[2] We affirm.
[3] We have gleaned the underlying facts from Sigman’s complaint. Sigman is
incarcerated in the Indiana Department Correction (DOC), serving his time at
the Westville Correctional Facility (the Facility). On or about June 29, 2012,
several personal items were stolen from Sigman by fellow inmates. Sigman
asserts that he then informed Hawk, a correctional officer, that “he faced the
threat of attack by members of a particular prison gang” and that “his life was
in danger” if he was to be housed with the general prison population.
Appellant’s Appendix, Complaint at 2.1 Sigman was signed into protective custody
within the Facility that same day.
[4] Sigman maintains that on or about July 4, 2012, Hawk and other unnamed
prison guards decided to remove him from protective custody and place him
back with the general prison population despite “knowing about the impending
danger he faced”. Id. On July 12, 2012, after he was released from protective
custody, Sigman alleges that he was attacked by fellow prisoners wielding
baseball bats and as a result thereof suffered serious injuries to his face, ribs,
teeth, and other areas of his body. Sigman asserts that the Defendants failed to
1
The pages in the Appellant’s Appendix are not sequentially numbered and individual documents are separated
by a plain white piece of paper. This does not conform to Ind. Appellate Rule 51(C), which states that “[a]ll
pages of the Appendix shall be numbered at the bottom consecutively . . . .”
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protect him from the attack in violation of his Eighth Amendment right to be
free from cruel and unusual punishment.2
[5] On June 19, 2014, Sigman, by counsel, tendered a complaint with an
accompanying “Declaration of Indigency Pursuant to I.C. § 33-37-3-2”
requesting waiver of the filing fee. Appellant’s Appendix. On June 24, 2014, the
trial court denied Sigman’s request for waiver of the filing fee and Sigman’s
counsel was so notified. The court returned the complaint and supporting
documents to Sigman’s counsel as unfiled.
[6] On July 28, 2014, Sigman’s counsel resubmitted the complaint and included
therewith the full $150.00 filing fee to the clerk of the court.3 On August 4,
2014, Sigman’s complaint, supporting documents, and filing fee were returned
to his attorney with, according to Sigman, a notation that the caption of the
case was incorrect because “John/Jane Does” were listed as defendants.
Sigman’s counsel removed the reference to “John/Jane Does” in the caption of
the complaint and resubmitted the complaint, supporting documents, and the
filing fee later that same day. The chronological case summary shows that
Sigman’s complaint was filed on August 6, 2014, and that service was issued
that same day.
2
See 42 U.S.C. § 1983.
3
Funds for the filing fee were obtained from one of Sigman’s relatives.
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[7] On September 5, 2014, the Defendants filed a motion to dismiss on grounds
that Sigman failed to commence his action prior to the expiration of the statute
of limitations relevant to his claims. Sigman responded to the motion to
dismiss, arguing that the court should have considered the original filing date of
June 19, 2014, to be the official date upon which his complaint was filed.
Using that date, Sigman asserted that his action was commenced prior to the
expiration of the statute of limitations.
[8] On October 6, 2014, the trial court issued an order granting the Defendants’
motion to dismiss. The trial court determined that because Sigman did not
tender the appropriate filing fee or order waiving payment of the filing fee until
either July 28 or August 6, 2014, he failed to commence his action prior to the
expiration of the statute of limitations, and thus he failed to state a claim upon
which relief could be granted. Sigman now appeals.
[9] Review of the trial court’s order granting the Defendants’ motion to dismiss is
de novo. Hortenberry v. Palmer, 992 N.E.2d 921 (Ind. Ct. App. 2013), trans.
denied. In Indiana, claims for personal injury must be commenced within two
years after the cause of action accrued. See Ind. Code Ann. § 34-11-2-4 (West,
Westlaw current with P.L. 1-2015 to P.L. 60-2015 of the First Regular Session
of the 119th General Assembly with effective dates through April 23, 2015).
Claims under 42 U.S.C. § 1983, such as the one Sigman presents in his
complaint, are considered personal injury claims and are subject to Indiana’s
statute of limitation for personal injury. See Wilson v. Garcia, 471 U.S. 261
(1985); Brademas v. Ind. Housing Fin. Auth., 354 F.3d 681 (7th Cir. 2004).
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Sigman’s cause of action accrued on July 12, 2012, and therefore, the statute of
limitations for his claims expired on July 12, 2014.
[10] The Indiana Trial Rules set forth the requirements for commencing an action.
Specifically, Ind. Trial Rule 3 provides:
A civil action is commenced by filing with the court a complaint or
such equivalent pleading or document as may be specified by statute,
by payment of the prescribed filing fee or filing an order waiving the
filing fee, and, where service of process is required, by furnishing to the
clerk as many copies of the complaint and summons as are necessary.
With regard to the filing fee, an individual may seek to file an action without
paying the required fees or other court costs by filing a statement in accordance
with I.C. § 33-37-3-2 (West, Westlaw current with P.L. 1-2015 to P.L. 60-2015
of the 2015 First Regular Session of the 119th General Assembly with effective
dates through April 23, 2015) requesting waiver thereof. The statement under
section 2 must be in writing, made under oath, and declare (1) that the person is
unable to make the payments or to give security for the payments because of the
person’s indigency, and (2) that the person believes they are entitled to redress
sought in the action, and (3) setting forth briefly the nature of the action.
[11] When an offender confined in the DOC seeks to commence an action, he is
required to comply with the requirements set out in I.C. § 33-37-3-3 (West,
Westlaw current with P.L. 1-2015 to 60-2015 of the 2015 First Regular Session
of the 119th General Assembly with effective dates through April 23, 2015).
I.C. § 33-37-3-3(a) requires that an offender submit to the court a statement that
meets the requirements of section 2 as well as a certified copy of the offender’s
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trust fund account statement for the six months immediately preceding
submission of the complaint. The offender must also pay a partial filing fee that
is twenty percent of the average monthly deposits to the offender’s account or
twenty percent of the average monthly balance in the offender’s account,
whichever is greater. See I.C. § 33-37-3-3(b). If an offender is unable to pay the
required partial filing fee, the offender may submit, in addition to the statement
required under section 2, “an affidavit of special circumstances setting forth the
reasons and circumstances that justify relief from the partial filing fee
requirement.” I.C. § 33-37-3-3(c).
[12] Here, Sigman filed a statement in accordance with section 2 and attached
thereto certified copies of his trust fund account statement. Sigman, however,
did not tender the prescribed partial filing fee as required under section 3 or
submit an affidavit of special circumstances seeking waiver of the partial filing
fee. The trial court therefore denied Sigman’s request for waiver of the
prescribed filing fee. The trial court notified Sigman of such denial nearly three
weeks prior to the expiration of the applicable statute of limitations. Sigman
took no further action until July 28, after the statute of limitations had expired,
when he attempted to resubmit his complaint with the full filing fee.
[13] In Hortenberry, this court made clear that payment of the prescribed filing fee or
an order of the court waiving payment of the filing fee is required to commence
an action under T.R.3. In that case, twelve days before the statute of
limitations was set to expire on the complainant’s underlying claims, counsel
for the complainant sought to commence a civil action by filing a complaint,
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appearance, and summons, along with a check to cover the filing fee. Through
inadvertent error, however, the check to cover the filing fee was $2 less than the
applicable filing fee. The day the statute of limitations was set to expire on the
complainant’s claims, counsel for the complainant was notified of the
deficiency in the filing fee. Counsel mailed a check for $2 the following day,
which was after the statute of limitations had run. The trial court granted the
complainant’s request to treat the complaint as timely filed. The defendant in
the action filed a motion asking the court to set aside its order finding the
complaint to be timely filed, which the court denied.
[14] In addressing the issue on appeal, this court considered the language of T.R. 3,
Supreme Court precedent, and policy arguments underlying the trial rules as
well as statutes of limitation, and concluded that payment of the filing fee in its
entirety or an order waiving the filing fee is necessary to commencement of an
action. Hortenberry v. Palmer, 992 N.E.2d 921. The court further held that T.R.
3 set forth a bright-line rule and therefore, strict compliance with the explicit
requirements of T.R. 3 was required such that courts have no discretion. Id.
Acknowledging that the result was harsh, the court rejected the complainant’s
substantial compliance argument and held that the trial court was obligated to
apply the clear language of T.R. 3. Thus, because the complainant did not
tender the full amount of the filing fee prior to the expiration of the statute of
limitations, the action was not commenced within the applicable time frame
and should have been dismissed.
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[15] Hortenberry makes clear that a party must strictly comply with the requirements
of T.R. 3 before an action may be commenced. Here, Sigman did not tender
the filing fee or partial filing fee prior to the expiration of the statute of
limitations. With regard to securing indigency status, Sigman, an offender
confined in the DOC, failed to file the statutorily required document, i.e., an
affidavit under I.C. § 33-37-3-3(c), requesting waiver of all fees, and thus, he
never secured indigency status from the court and an order waiving payment of
the prescribed filing fee. Sigman, therefore, failed to commence his action
within the meaning of T.R. 3 prior to the expiration of the statute of limitations.
The trial court did not err in dismissing Sigman’s complaint for failure to state a
claim upon which relief could be granted.
[16] Sigman’s argument that he filed the required indigency statement under I.C. §
33-37-3-2 and that the trial court engaged in a “form over substance” analysis
by not considering this as sufficient to satisfy the affidavit requirement of I.C. §
33-37-3-3(c) is simply a request that we credit his efforts by finding that he
substantially complied with the statutory scheme. As the Hortenberry court
noted, reviewing courts are afforded no discretion in applying the requirements
of T.R. 3. The record is clear. Sigman did not secure indigency status as he did
not comply with the statutory requirements for an offender seeking indigency
status, nor did he pay the prescribed filing fee before the statute of limitations
expired on his underlying claims.
[17] We further note, as was also the case in Hortenberry, that the ability to
commence the action before the statute of limitations expired was wholly
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within Sigman’s control. To be sure, Sigman’s counsel was informed eighteen
days prior to the expiration of the statute of limitations that the court had
rejected his request to proceed as an indigent litigant and yet, he made no
attempt until after the expiration of the statute of limitations to properly
commence his action. Sigman’s attempt to place blame on the trial court for
this failure is also without merit. Sigman can cite no authority to support his
argument that the trial court was somehow obligated to provide him with a
notice of defect informing him that he had not properly complied with the
requirements of I.C. § 33-37-3-3, the statute specifically referencing offenders,
and provide him with time in which to cure the defect. Sigman also does not
explain why two weeks was insufficient time in which to comply with the
requirements of T.R. 3 and properly commence his action.
[18] Finally, we also reject Sigman’s argument that the trial court ignored the spirit
and meaning of I.C. § 33-37-3-3(d), which provides that if the court denies an
offender’s application to waive all fees, “the court shall give written notice to
the offender that the offender’s case will be dismissed if the partial filing fee is
not paid not later than forty-five (45) days after the date of the order, or within
an additional period that the court may, upon request, allow.” Because
Sigman failed to file the necessary affidavit under I.C. § 33-37-3-3(c), the trial
court made no determination on the merits of his request under that section. As
we have already noted, Sigman did not properly seek indigency status by
following the requirements set out in I.C. § 33-37-3-3 and thus did not trigger
the trial court’s obligation under subsection (d) of that statute.
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[19] In summary, we conclude that Sigman failed to commence his action within the
applicable two-year statute of limitations and so his complaint was properly
dismissed for failure to state a claim upon which relief may be granted.
[20] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
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