MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Mar 03 2016, 8:32 am
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 ATTORNEYS FOR APPELLEES
Kenneth W. Gibbs Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Andrea E. Rahman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth W. Gibbs, March 3, 2016
Appellant-Plaintiff, Court of Appeals Case No.
48A04-1510-SC-1613
v. Appeal from the Madison Circuit
Court
Wendy Knight, Lieutenant The Honorable Thomas L. Clem,
B. St. John, Mr. Helming, and Judge
Robert Fox, Trial Court Cause Nos.
Appellees-Defendants 48C05-1505-SC-1897
48C05-1505-SC-1898
Baker, Judge.
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[1] Kenneth Gibbs appeals the dismissal of two small claims complaints he had
filed against the appellees (collectively, the State). The trial court found that
because Gibbs failed to file an administrative tort claim within the statutorily
prescribed timeframe, he is not entitled to relief. We agree, and affirm.
Facts
[2] Gibbs is an inmate at a correctional facility in Pendleton. On January 22 and
23, 2015, Department of Correction (DOC) staff confiscated multiple items of
Gibbs’s property. Gibbs filed a grievance with the DOC grievance
administrator, but DOC ultimately concluded that the property was properly
confiscated because it was either unauthorized or in excess of the amount
permitted. On May 19, 2015, Gibbs filed two small claims complaints (one for
each day on which his property was confiscated) against the State. The trial
court combined the two cases. On August 5, 2015, the State filed a motion to
dismiss for failure to state a claim. The trial court treated the motion as a
motion for summary judgment and, on September 16, 2015, granted the motion
and dismissed the complaints. Gibbs now appeals.
Discussion and Decision
[3] The State requested dismissal pursuant to Indiana Trial Rule 12(B)(6) for failure
to state a claim. The State’s argument centered on Gibbs’s failure to file a
notice of tort claim within the statutorily prescribed timeframe. As this required
consideration of materials outside the face of the complaint, the trial court
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properly treated the motion as one for summary judgment. Ind. Trial Rule
12(B). Our standard of review on summary judgment is well settled:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[4] Indiana Code section 34-13-3-3(16) states that the State is not liable if a DOC
inmate has not exhausted the administrative remedies and procedures set forth
in section 7. Section 7, in turn, sets forth the following requirements:
An offender must 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 or any of its agents, former officers, employees, or
contractors. A claim must be filed within one hundred eighty
(180) days after the date of the alleged loss.
I.C. § 34-13-3-7(a).
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[5] It is undisputed that Gibbs did not file a section 7 administrative claim within
180 days of the property confiscation.1 He argues that because he was seeking
recovery of his property, he did not fall under the purview of this section. We
disagree, inasmuch as he also requested damages in the amount of $1,500 if his
property had been destroyed. Section 7 explicitly states that “[a]n offender
must file an administrative claim with the [DOC] to recover compensation.” It
is clear that Gibbs was required to file an administrative claim; it is likewise
clear that he failed to do so. Therefore, the trial court properly granted
summary judgment in favor of the State.
[6] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
1
Gibbs filed a grievance with the facility administrator, but that grievance does not suffice. He was required
to complete a specific form and submit the form both to the head of the DOC facility and to the Tort Claim
Administrator. 210 Ind. Admin. Code 1-10-3. He failed to file the required form and he failed to provide
notice to the tort claim administrator.
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