FILED
Jul 31 2019, 10:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kevin L. Martin Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin L. Martin, July 31, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-PL-550
v. Appeal from the Sullivan Superior
Court
Richard Brown, et al., The Honorable Hugh R. Hunt,
Appellee-Defendant Judge
Trial Court Cause No.
77D01-1811-PL-658
May, Judge.
[1] Kevin L. Martin appeals the trial court’s grant of a motion for judgment on the
pleadings and dismissal of Martin’s complaint against Richard Brown, B.
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Hinton, J. Meek, and Makenzy Gilbert (collectively, “Defendants”). 1 We
affirm.
Facts and Procedural History
[2] Martin is an inmate at the Wabash Valley Correctional Facility (“WVCF”).
On November 29, 2018, Martin filed a complaint against Defendants: Brown,
who is Warden of the WVCF; B. Hinton, who is supervisor of WVCF law
library; J. Meek, who is a caseworker at WVCF; and Makenzy Gilbert, who is
mailroom supervisor at WVCF. Martin’s complaint alleged violations of 42
U.S.C. § 1983 and of his rights under the First and Fourteenth Amendments of
the United States Constitution stemming from an alleged incident involving the
delivery of Martin’s legal mail.
[3] Defendants timely answered Martin’s complaint and, on January 7, 2019,
Martin moved to file an amended complaint. On January 11, 2019, the trial
court issued an order stating it “was unable to ascertain the basis for said
motion” and Martin had “twenty (20) days from the date here [sic] herein to
state in a plain concise manner the necessity or reason for the request for leave
to amend his complaint.” (Appellees’ App. at 39.) Martin did not respond to
1
While Martin names only Brown on appeal, and the State argues as if the complaint was filed against
Brown alone, our review of the record leads us to conclude the complaint was filed against four defendants
and dismissed as to all four defendants. Because a party at trial is also a party on appeal, we will reference all
four defendants collectively in our opinion. See Ind. Appellate Rule 17(A) (“party of record in the trial court
or Administrative Agency shall be a party on appeal”).
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the trial court’s order. Instead, Martin filed an amended complaint without the
trial court’s leave on January 17, 2019. On January 31, 2019, the trial court
issued an order striking Martin’s amended complaint.
[4] On February 20, 2019, Martin filed a motion for an order compelling discovery.
The next day, Defendants filed a motion for judgment on the pleadings, arguing
Martin failed to state a claim for which relief could be granted under 42 U.S.C.
§ 1983. On February 21, 2019, the trial court granted Defendants’ motion for
judgment on the pleadings and dismissed Martin’s complaint with prejudice,
stating:
The face of the Complaint makes it clear that there are no
circumstances upon which relief could be granted. Plaintiff has
not plead [sic] any actual harm related to his claim of First
Amendment denial of access to the Courts, nor has he plead [sic]
any facts in support of his claims of a due process violation of the
Fourteenth Amendment.
(Id. at 84.)
Discussion and Decision
[5] At the onset, we note Martin appeared before the trial court and in this appeal
as a pro se litigant. 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.
[6] Martin has filed several pro se appeals before this court. In all of those appeals,
Martin’s failure to follow the Indiana Rules of Appellate Procedure has led to
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either dismissal of his appeal or affirmation of the trial court’s order dismissing
his complaint. See 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. pending; Martin v.
Brown, et al., 18A-CT-2940, 2019 WL 1217796, 123 N.E.3d 712 (Table) (Ind.
Ct. App. March 15, 2019) (affirmed dismissal of complaint based on violations
of Indiana Rules of Appellate Procedure), trans. denied; and Martin v. Howe, et
al., 18A-CT-680, 2018 WL 5956300, 113 N.E.3d 813 (Table) (Ind. Ct. App.
November 14, 2018) (dismissal of appeal based, in part, on Martin’s failure to
make a cogent argument), trans. denied. We are unable to consider Martin’s
current appeal for similar reasons.
[7] Martin’s most egregious violations of the Indiana Rules of Appellate Procedure
in this appeal are of Indiana Appellate Rules 46 and 50. Indiana Appellate
Rule 46(A)(8)(a)-(b), requires, in relevant part:
(8) Argument. This section shall contain the appellant's
contentions why the trial court or Administrative Agency
committed reversible error.
(a) The argument must contain the contentions of the
appellant on the issues presented, supported by cogent reasoning.
Each contention must be supported by citations
to the authorities, statutes, and the Appendix or parts of
the Record on Appeal relied on, in accordance with Rule
22.
(b) The argument must include for each issue a concise statement
of the applicable standard of review; this
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statement may appear in the discussion of each issue or
under a separate heading placed before the discussion of
the issues. In addition, the argument must include a brief
statement of the procedural and substantive facts necessary
for consideration of the issues presented on appeal,
including a statement of how the issues relevant to the
appeal were raised and resolved by any Administrative
Agency or trial court.
Failure to present a cogent argument results in waiver of the issue on appeal.
Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999). Herein, it is
extremely difficult, as it evidently was at the trial court level, to ascertain
Martin’s argument and, thus, we are unable to address it. See id. (waiving
argument for lack of cogent argument). In addition, Martin’s failure to include
a “Statement of Case” or a “Statement of Facts” as required by Indiana
Appellate Rules 46(A)(5) and (6), respectively, has impeded our ability to
discern the circumstances underlying his complaint against Defendants.
[8] Indiana Appellate Rule 50(A)(2) requires the appellant provide certain parts of the
record in his appendix:
The appellant’s Appendix shall contain a table of contents and
copies of the following documents, if they exist:
(a) the chronological case summary for the trial court or
Administrative Agency;
(b) the appealed judgment or order, including any written
opinion, memorandum of decision, or findings of fact and
conclusions thereon relating to the issues raised on appeal;
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(c) the jury verdict;
(d) [Deleted, eff. January 1, 2011]
(e) any instruction not included in appellant’s brief under Rule
46(A)(8)(e), when error is predicated on the giving or refusing of
the instruction;
(f) pleadings and other documents from the Clerk's Record in
chronological order that are necessary for resolution of the issues
raised on appeal;
(g) any other short excerpts from the Record on Appeal, in
chronological order, such as essential portions of a contract or
pertinent pictures, that are important to a consideration of the
issues raised on appeal;
(h) any record material relied on in the brief unless the material is
already included in the Transcript;
(i) a verification of accuracy by the attorney or unrepresented
party filing the Appendix. The following is an acceptable
verification:
“I verify under penalties of perjury that the documents in this
Appendix are accurate copies of parts of the Record on Appeal.”
Martin’s appendix excludes the chronological case summary, the appealed
order, a copy of his complaint, and all documents filed by Defendants at the
trial court level. Thus, Martin violated parts (a), (b), (f), (g), and (i) of
Appellate Rule 50(A)(2). While failure to file an adequate appendix does not
necessarily
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result in waiver of an issue, Appellate Rule 49(B), Martin’s failure to provide a
complete and accurate appendix from which we are able to discern the trial
court proceedings hindered our review of his appeal. 2
[9] While we note Martin’s failure to comply with the Indiana Rules of Appellate
Procedure does not necessarily result in waiver of his claim, 3 such waiver is
appropriate when, as here, the violation of those rules substantially impedes our
ability to determine and review the issues alleged. See 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. Accordingly, we
affirm the trial court’s order granting Defendants’ motion for judgment on the
pleadings and dismissing Martin’s complaint with prejudice.
2
The State filed an appendix to supplement Martin’s appendix. However, neither party provided a copy of
the chronological case summary and, thus, the dates cited in this opinion are based on the file stamps on the
documents provided.
3
As we did in a recent opinion in another case concerning Martin, we note the judiciary’s commitment to
open access of courts to all litigants, as is evidenced in a recent amendment to Indiana Code of Judicial
Conduct Rule 2.2 (May 16, 2019), which states, in relevant part: “A judge shall uphold and apply the law
and shall perform all duties of judicial office fairly and impartially. A judge may make reasonable efforts,
consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented
litigants, to be heard.” A Comment to that Rule explains:
[5] A judge’s responsibility to promote access to justice, especially in cases involving self-
represented litigants, may warrant the exercise of discretion by using techniques that
enhance the process of reaching a fair determination in the case. Although the
appropriate scope of such discretion and how it is exercised will vary with the
circumstances of each case, a judge’s exercise of such discretion will not generally raise a
reasonable question about the judge’s impartiality. Reasonable steps that a judge may
take, but in no way is required to take, include:
(a) Construe pleadings to facilitate consideration of issues raised.
Unfortunately, as indicated supra, the deficiencies in Martin’s brief and the record before us are so severe that
we are unable to discern the issues Martin is attempting to raise on appeal.
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Conclusion
[10] We are unable to address Martin’s arguments regarding the trial court’s grant of
Defendants’ motion for judgment on the pleadings and dismissal of Martin’s
complaint with prejudice because he has failed to comply with several Rules of
Appellate Procedure. Accordingly, we affirm the decision of the trial court.
[11] Affirmed.
Mathias, J., and Brown, J., concur.
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