Summary
recognizing the "mounting burden" that Dunigan-"a prolific, abusive litigant" who has filed "some forty-nine different suits"- is "placing on our court system" and finding "it appropriate to impose sanctions"
Summary of this case from Dunigan v. StateOpinion
Court of Appeals Case No. 21A-CT-2939
06-23-2022
Lee Evans DUNIGAN, Appellant-Plaintiff, v. STATE of Indiana, Appellee-Defendant.
Appellant Pro Se: Lee Evans Dunigan, Pendleton, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Benjamin M.L. Jones, Deputy Attorney General, Indianapolis, Indiana
Appellant Pro Se: Lee Evans Dunigan, Pendleton, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Benjamin M.L. Jones, Deputy Attorney General, Indianapolis, Indiana
Tavitas, Judge. Case Summary
[1] Lee Dunigan appeals the trial court's dismissal of his complaint against the State of Indiana arising from alleged misconduct related to Dunigan's 2020 child molestation conviction. We find that the trial court did not err in dismissing Dunigan's complaint pursuant to the screening statute, which applies to actions filed by prison inmates. Moreover, given the mounting burden that Dunigan is placing on our court system, we find it appropriate to impose sanctions. We affirm the trial court's dismissal of Dunigan's complaint in the instant matter.
Issues
We do not address Dunigan's claim that the trial court erred by denying his motion to change venue. The trial court actually granted that motion, Dunigan merely failed to comply with the trial court's conditions for selecting a new venue. With respect to Dunigan's arguments regarding his latest motion for a change of judge, we note that "judges presiding over a case are not required to disqualify themselves as a result of a litigant's unfounded accusations, abusive tactics, or attempts to manipulate the system. To the contrary, judges have an affirmative duty to preside over cases unless disqualification is mandatory." Zavodnik v. Harper , 17 N.E.3d 259, 269 (Ind. 2014). Dunigan presents no authority or argument to the contrary and, accordingly, has waived the issue. See Ind. App. R. 46(A)(8).
[2] Dunigan purports to raise five separate issues, which we consolidate and restate as a single, dispositive issue: whether the trial court erred in dismissing Dunigan's complaint.
Facts
[3] Before proceeding to the facts pertinent to this particular case, some context is in order. On October 1, 2018, the State charged Dunigan with one count of child molesting, a Level 1 felony. Dunigan v. State , No. 20A-CR-1301, slip op. at 1, 2021 WL 5575248 (Ind. Ct. App. Nov. 30, 2021). Dunigan chose to represent himself, and after a series of filings spanning many months, the trial court convicted Dunigan following a bench trial. On June 26, 2020, the trial court sentenced Dunigan to forty-two years in the Department of Correction. Since then, Dunigan has become "a prolific, abusive litigant." See Zavodnik v. Harper , 17 N.E.3d 259, 262 (Ind. 2014) (referring to Zavodnik). Our case management system reveals some forty-nine different suits filed by Dunigan, including suits against the Governor and multiple suits against the Chief Justice of Indiana. At least one of these matters has been removed to federal court. Appellant's App. Vol. II p. 46.
[4] We dismissed Dunigan's direct appeal of his conviction and sentence, noting that: "Dunigan does not cite to the transcript, which consists of over 500 pages, or the record in his statement of case, statement of facts, or argument, and he does not include a standard of review for most of his arguments." Dunigan , No. 20A-CR-1301, slip op. at 1. We found that all of Dunigan's claims were waived for failure to develop a cogent argument or provide citations to authority. Id. at 3.
[5] We have previously affirmed the dismissal of an action Dunigan filed against the Tippecanoe Public Defender's Office "for failure to state a claim upon which relief may be granted and for bringing an action against a defendant who was immune from suit." Dunigan v. Tippecanoe Cnty. Pub. Def.’s Off. , No. 21ACT-678, slip op. at 2, 2022 WL 1252418 (Ind. Ct. App. Apr. 28, 2022). We have affirmed the dissolution of Dunigan's marriage on the grounds that his claims were either waived or unsupported by evidence. Dunigan v. Young , No. 20A-DN-2273, 2021 WL 1826983 (Ind. Ct. App. May 7, 2021). And, simultaneously with the release of this opinion, we hand down an opinion concluding that a trial court correctly dismissed Dunigan's claims against Wexford of Indiana, LLC, a company that previously provided medical services in the Department of Correction. See Dunigan v. Wexford of Indiana, LLC , No. 21-A-CT-02379 (Ind. Ct. App. June 23, 2022). Given the sheer number of pending suits filed by Dunigan, or suits already decided by trial courts but not yet appealed, we do not anticipate that Dunigan's pen will soon run shy of ink.
[6] In the instant matter, Dunigan filed a complaint in the Tippecanoe Circuit Court seeking: (1) for "the State of Indiana [to] pay [Dunigan] $100,000,000 monetary compensation[;]" (2) the disbarment of the chief and deputy chief prosecutors; and (3) that his child molesting conviction be "overruled." Appellant's App. Vol. II p. 11. The named defendants were the State of Indiana and the Tippecanoe County Sheriff's Department, though the CCS reflects that the latter was dismissed from the case on April 14, 2020. Id. at 2. In the appealed order, the trial court noted that the claims against the Tippecanoe Sheriff's Department had been removed to federal court. Dunigan's specific allegations are difficult to discern but appear to stem from his belief that the State of Indiana, via its agents, tampered with some evidence relating to Dunigan's child molestation conviction, thus violating his rights under the federal and state constitutions. Dunigan also alleges nine counts of prosecutorial misconduct.
Dunigan's complaint repeatedly refers to the alleged actions of the West Lafayette Police Department, but that Department is not a named party. Dunigan filed multiple complaints at the same time, most of which were stricken, and Dunigan was ordered to amend his primary complaint if he wished to incorporate additional claims or parties. Our reading of the record suggests that the only remaining defendant in the instant matter is the State of Indiana.
The trial court summarizes the claims as follows:
In his Amended Complaint, Plaintiff alleges that (1) the State offered tampered evidence from WLPD into evidence, (2) the State committed Prosecutorial Misconduct by allowing WLPD to unreasonably seize evidence, (3) the State committed Prosecutorial Misconduct by allowing WLPD officer to commit perjury, (4) the State committed Prosecutorial Misconduct by allowing WLPD to commit invasion of privacy against Plaintiff, (5) the State committed Prosecutorial Misconduct through a scheme of corruption, (6) the State committed Prosecutorial Misconduct by committing Brady violations, (7) the State committed Prosecutorial Misconduct by allowing TCSO to delete evidence/discovery materials, (8) the State committed Prosecutorial Misconduct by offering tampered evidence from WLPD, (9) the State committed Prosecutorial Misconduct by failing to charge Cody Garcia with perjury, and (10) the State committed Prosecutorial Misconduct by allowing Judge McVey to commit judicial misconduct.
Appellant's App. Vol. II p. 46.
[7] The trial court screened the complaint pursuant to Indiana Code Section 34-58-1-2. With respect to all ten of the claims in the instant matter, the trial court concluded: "All other claims not listed as Surviving Claims[ ] are dismissed for failing to state a claim upon which relief may be granted and/or seeking relief from a defendant who is immune from suit under I.C. 34-13-3-3." Appellant's App. Vol. II p. 49. Dunigan now appeals.
We further note that Indiana Code Section 34-13-7-1 provides for additional filing requirements when an inmate files an action in tort against the State or public employees and establishes that: "If the trial court determines that the complaint is frivolous, malicious, or otherwise utterly without merit, or fails to state a claim upon which relief may be granted, the court shall dismiss the complaint."
The order addressed claims under multiple cause numbers, and none of the surviving claims were from the case at bar.
Analysis
[8] Dunigan argues that the trial court erred in dismissing his complaint pursuant to Indiana Code Section 34-58-1-2, which provides:
(a) A court shall review a complaint or petition filed by an offender and shall determine if the claim may proceed. A claim may not proceed if the court determines that the claim:
(1) is frivolous;
(2) is not a claim upon which relief may be granted; or
(3) seeks monetary relief from a defendant who is immune from liability for such relief.
(b) A claim is frivolous under subsection (a)(1) if the claim:
(1) is made primarily to harass a person; or
(2) lacks an arguable basis either in:
(A) law; or
(B) fact.
(c) A court shall dismiss a complaint or petition if:
(1) the offender who filed the complaint or petition received leave to prosecute the action as an indigent person; and
(2) the court determines that the offender misrepresented the offender's claim not to have sufficient funds to prosecute the action.
"We review de novo a trial court's dismissal of an offender's complaint under this statute." Reed v. White , 103 N.E.3d 657, 659 (Ind. Ct. App. 2018) (citing Guillen v. R.D.C. Mail Clerk , 922 N.E.2d 121, 122 (Ind. Ct. App. 2010) ). "The statute is akin to a legislative interpretation of Indiana Trial Rule 12(B)(6), a rule which has given judges in civil cases the authority ‘to consider a case in its early stages and, taking everything the plaintiff has alleged as true, determine whether it can proceed.’ " Id. (quoting Guillen , 922 N.E.2d at 122-23 ) (footnote omitted).
[9] As a blanket matter, we note that Dunigan's briefing fails to provide cogent arguments or citations to proper authorities supporting his arguments. Thus, his claims are waived. See Ind. Appellate Rule 46(A)(8)(a) ; Clark Cnty. Drainage Bd. v. Isgrigg , 963 N.E.2d 9, 18 (Ind. Ct. App. 2012), adhered to on reh'g , 966 N.E.2d 678 (Ind. Ct. App. 2012) (citing Watson v. Auto Advisors, Inc. , 822 N.E.2d 1017, 1027-28 (Ind. Ct. App. 2005), trans. denied ) (" ‘When parties fail to provide argument and citations, we find their arguments are waived for appellate review.’ ").
I. Prosecutorial Misconduct
Dunigan also claims that the trial judge dismissed his claims as retaliation for Dunigan apparently having filed a police report pertaining to the Judge. "Adverse rulings and findings by a trial judge are not sufficient reason to believe the judge has a personal bias or prejudice." L.G. v. S.L. , 88 N.E.3d 1069, 1073 (Ind. 2018). We "credit judges with the ability to remain objective notwithstanding their having been exposed to information which might tend to prejudice lay persons." Id. "The law presumes that a judge is unbiased and unprejudiced." Id. "To overcome this presumption, the moving party must establish that the judge has personal prejudice for or against a party." Id. "Such bias or prejudice exists only where there is an undisputed claim or the judge has expressed an opinion on the merits of the controversy before him [or her]." Id. "[P]rejudice must be shown by the judge's trial conduct; it cannot be inferred from his [or her] subjective views." Richardson v. Richardson , 34 N.E.3d 696, 703 (Ind. Ct. App. 2015). A party "must show that the trial judge's action and demeanor crossed the barrier of impartiality and prejudiced" that party's case. Id. at 703-04. There is nothing in the record to support Dunigan's bald, conclusory claims regarding bias or retaliation on the part of the trial court judge, and we will address them no further.
[10] We address the prosecutorial misconduct claims first. It is well known that a defendant may raise an objection to prosecutorial misconduct during the criminal trial phase and, indeed, must do so in order to preserve the issue for direct appeal. See, e.g. , Ryan v. State , 9 N.E.3d 663, 667 (Ind. 2014). Here, however, Dunigan has filed a civil action. As such, his claims of prosecutorial misconduct are not cognizable. We are aware of no authority—and Dunigan has provided none—holding that prosecutorial misconduct can sound in tort, either as a matter of statute or as a matter of common law.
[11] There are at least four more reasons why the trial court properly dismissed Dunigan's prosecutorial misconduct claims. First, prosecutors have absolute immunity from civil liability for alleged misconduct committed during the course and scope of their duties as prosecutors. See Ind. Code § 34-13-3-3 (providing absolute immunity for government employees and entities for claims stemming from "[t]he initiation of a judicial or an administrative proceeding."); see also Buchanan v. State, 122 N.E.3d 969, 974 (Ind. Ct. App. 2019).
[12] Second, the doctrine of res judicata precludes the claims, given that Dunigan already had a full and fair opportunity to litigate any claims of prosecutorial misconduct during his criminal trial and subsequent direct appeal. The doctrine of res judicata bars litigation "of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties or their privies. The principle behind this doctrine, as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute. " I.A.E., Inc. v. Hall , 49 N.E.3d 138, 151 (Ind. Ct. App. 2015) (citing MicroVote General Corp. v. Ind. Election Comm'n , 924 N.E.2d 184, 191 (Ind. Ct. App. 2010) ) (emphasis added).
[13] Third, collateral attacks on a criminal judgment are restricted to post-conviction relief proceedings and are not appropriate subjects for a civil lawsuit such as this one. Referring to post-conviction relief, the Rules of Post-Conviction Remedies provide:
This remedy is not a substitute for a direct appeal from the conviction and/or the sentence and all available steps including those under Rule PC 2 should be taken to perfect such an appeal. Except as otherwise provided in this Rule, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence and it shall be used exclusively in place of them.
P.C.-R 1(b) (emphasis added); see also Manley v. Butts , 71 N.E.3d 1153, 1156 (Ind. Ct. App. 2017) ("a petitioner attacking the validity of his conviction or sentence must file a petition for post-conviction relief in the court of conviction and not in the court of incarceration.") (citing Partlow v. Superintendent, Miami Correctional Facility , 756 N.E.2d 978, 980 (Ind. Ct. App. 2001) ).
[14] And Fourth, the Indiana Tort Claims Act has strict notice requirements, and failure to comply with those requirements has been found to be fatal to the underlying claims. Town of Knightstown v. Wainscott , 70 N.E.3d 450, 456 (Ind. Ct. App. 2017), trans. denied.
The notice requirements for a claim against the State or a State entity are
governed by Indiana Code Section 34-13-3-6(a), which provides that "a claim against the state is barred unless notice is filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs." The Attorney General is required to "prescribe a claim form to be used to file a notice" under this section. I.C. § 34-13-3-6(b).
Murphy v. Indiana State Univ. , 153 N.E.3d 311, 317 (Ind. Ct. App. 2020). We find the record devoid of any evidence to suggest that Dunigan complied with the Tort Claims Act notice requirements. Accordingly, we conclude that all of Dunigan's prosecutorial misconduct claims are without merit, and the trial court did not err in dismissing them pursuant to the screening statute.
II. Constitutional Claims
[15] To the extent that Dunigan makes any claims that his civil rights were violated by the State, the trial court did not err in dismissing those claims. Ordinarily, federal constitutional claims must be brought under 42 U.S.C. § 1983, which Dunigan fails to mention either in his briefing on appeal or in his complaint below. Nevertheless, it is well settled that a State cannot be liable under a Section 1983 claim, as that section applies only to "persons." 42 U.S.C. § 1983 ; City of Warsaw v. Orban , 884 N.E.2d 262, 267-68 (Ind. Ct. App. 2007) (citing Ross v. Indiana State Bd. of Nursing , 790 N.E.2d 110, 117 (Ind. Ct. App. 2003) ) ("a state or state agency may not be sued under § 1983 regardless of the type of relief requested ...."). Thus, the trial court did not err in concluding that these were claims upon which relief could not be granted.
[16] With respect to State constitutional claims, we are aware of no Indiana court recognizing a right to a private cause of action for monetary damages under the Indiana Constitution. See, e.g. Smith v. Indiana Dep't of Correction, 871 N.E.2d 975, 985-86 (Ind. Ct. App. 2007). Dunigan presents neither argument nor authority to the contrary. His claims, therefore, are not only meritless, they are waived. See Ind. Appellate Rule 46(A)(8) ; Loomis v. Ameritech Corp. , 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding that the failure to present a cogent argument waives the issue for appellate review), trans. denied.
Even with respect to Article 1 Section 12 of the Indiana Constitution, the Indiana Supreme Court has "never held that the Open Courts Clause provides a substantive ‘right’ of access to the courts or to bring a particular cause of action to remedy an asserted wrong." Blanck v. Ind. Dep't of Corr. , 829 N.E.2d 505, 511 (Ind. 2005).
III. Sanctions
[17] This appeal is not concluded, however. "Complaints that are facially frivolous, e.g., those that reference little green men or a constitutional right to Rogaine,[ ] can still be summarily dismissed at the screening stage." Smith v. Wrigley , 908 N.E.2d 354, 360 (Ind. Ct. App. 2009) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 696, 129 S. Ct. 1937, 1959, 173 L.Ed.2d 868 (2009) (Souter, J. dissenting). Nevertheless, some litigants insist on flooding our judicial corridors, thereby harming Hoosiers who would otherwise be timely availing themselves of our courts. Sometimes, weeding out the obviously frivolous complaints will not be enough to remedy the issue.
Rogaine is a hair regrowth product originating in the 1980s. https://www.drugs.com/rogaine.html (last accessed May 23, 2022).
[18] We also emphasize that, given the rambling, labyrinthine nature of Dunigan's pleadings, considerable judicial resources must be expended to even discern his claims, let alone determine whether they are facially frivolous. The courtroom doors are easily opened in Indiana by litigants of all types. See, e.g. Atkins v. Crawford Cnty. Clerk's Off. , 171 N.E.3d 131, 136 (Ind. Ct. App. 2021) (" ‘[F]rom the date of its admission to the Union down to this day, Indiana has been a leader in providing indigent persons with free access to her courts and in providing them with fair treatment while in court.’ ") (quoting Thompson v. Thompson , 259 Ind. 266, 273, 286 N.E.2d 657, 661 (1972) ). But our open courts and the edifices in place to protect and promote them do not confer upon litigants a right to abuse our system of justice. Zavodnik , 17 N.E.3d at 264 ("There is no right to engage in abusive litigation ....").
[19] Our Supreme Court noted in Zavodnik that the General Assembly and the Court "have given the courts of this state tools to deal with abusive litigation practices." Id. For example, the Screening Statute, Indiana Code § 34-58-1-2, discussed above, "authorizes a court to review an offender's claim and bar it from going forward ...." Id. Moreover,
[U]nder Indiana Code § 34-10-1-3 (2009) ("the Three Strikes Statute"), offenders who have had three suits dismissed under the Screening Statute are prohibited from filing new [in forma pauperis] complaints unless they are "in immediate danger of bodily injury." See also Smith v. Wrigley , 925 N.E.2d 747 (Ind. Ct. App. 2010) (holding the Three Strikes Statute does not violate the open courts or privileges and immunities clauses of the Indiana Constitution), trans. denied.
Id. at 264-65.
[20] Additionally, "courts have inherent authority to impose reasonable restrictions on any abusive litigant." Id. at 265. This includes appellate courts. Our Supreme Court noted that this Court has imposed sanctions, including "special pre-filing screening requirements for particular offenders with histories of repeated, frivolous litigation." Id. (citing Sumbry v. Misc. Docket Sheet for Year 2003 , 811 N.E.2d 457 (Ind. Ct. App. 2004), trans. denied ; Sims v. Scopelitis , 797 N.E.2d 348 (Ind. Ct. App. 2003), trans. denied ; Parks v. State , 789 N.E.2d 40 (Ind. Ct. App. 2003), trans. denied ); see also id. at 266 (noting that this Court had enjoined the wife from filing future appeals without seeking leave of the Court of Appeals) (citing Gorman v. Gorman , 871 N.E.2d 1019 (Ind. Ct. App. 2007), trans. denied ).
[21] Thus, "[t]he courts of this state, after due consideration of an abusive litigant's entire history, may fashion and impose reasonable conditions and restrictions ... on the litigant's ability to commence or continue actions in this state that are tailored to the litigant's particular abusive practices." Id. at 266. The Court has held that, "[a]fter due consideration of a litigant's history of abuse, a court may be justified in imposing restrictions such as the following:"
• Require the litigant to accompany future pleadings with an affidavit certifying under penalty of perjury that the allegations are true to the best of the litigant's knowledge, information, and belief.
• Direct the litigant to attach to future complaints a list of all cases previously filed involving the same, similar, or related cause of action.
• Direct that future pleadings will be stricken if they do not meet the requirements that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" and that "[e]ach averment of a
pleading shall be simple, concise, and direct." T.R. 8(A)(1) and (E)(1).
• Require the litigant to state clearly and concisely at the beginning of a motion the relief requested.
• Require the litigant to provide specific page citations to documents alleged by the litigant to support an argument or position.
• Limit the litigant's ability to request reconsideration and to file repetitive motions.
• Limit the number of pages or words of pleadings, motions, and other filings.
• Limit the length of the title that may be used for a filing.
• Limit the amount or length of exhibits or attachments that may accompany a filing.
• Instruct the clerk to reject without return for correction future filings that do not strictly comply with applicable rules of procedure and conditions ordered by the court.
Id. at 268-69.
[22] Before imposing sanctions, we undertake "due consideration of an abusive litigant's entire history." Id. at 266. We have done so. A few more examples, however, will serve to underline the justification for these sanctions. Take, for instance, the following chart, included in the trial court's order of May 6, 2020:
?
[23] No trial court should be required to create an elaborate chart simply to keep track of a single litigant's filings across dozens of different actions. Indeed, the special judge in this case, in granting a change of venue, recommended that "an inquiry be made to judicial officers around the state that specialize in high volume civil litigation to find a judge that wants to handle these cases and has the skillset to appropriately handle such a complex involved procedure." Appellant's App. Vol. II p. 85. While we commend our trial courts for patiently facilitating Dunigan's conduct thus far, in the interests of justice, the time has come to formally recognize that conduct for what it is: an abuse of our judicial system.
[24] Trial courts may use the statutes at their disposal, including the Three Strikes Statute where applicable, to address further complaints filed by Dunigan. Moreover, to the extent that the Three Strikes Statute is inapplicable to future complaints filed by Dunigan, with respect to any future lawsuits that arise directly or indirectly from any alleged conspiracies or misconduct by public officials related to Dunigan's arrest, prosecution, conviction or confinement for child molestation, we impose the following conditions:
(1) Prior to filing any such lawsuit, Dunigan shall submit to the trial court a copy of the complaint that complies with the Indiana Rules of Trial Procedure that he wishes to file, accompanied by an affidavit certifying under the penalty of perjury that the allegations are true to the best of his knowledge, information, and belief;
(2) Dunigan shall also file a copy of all of the relevant documents pertaining to the ultimate disposition of each and every previous case instituted by Dunigan against the same defendant or emanating, directly or indirectly, from any alleged conspiracy or misconduct by public officials. This includes, but is not limited to, the complaint, any motions to dismiss or motions for summary judgment filed by the defendants in those actions, the trial court order announcing disposition of the case, and any opinions issued in the case by any appellate court;
(3) Dunigan shall file a legal brief, complete with competent legal argument and citation to authority, explaining to the court why the new action is not subject to dismissal by application of the doctrines of res judicata, collateral estoppel, or law of the case. If, after reviewing these materials, the trial court determines that the proposed lawsuit is frivolous, malicious, fails to state a claim upon which relief may be granted, or is otherwise utterly without merit, the court shall dismiss with prejudice the proposed complaint;
(4) Dunigan is required to verify his new complaint pursuant to Indiana Trial Rule 11(B) ; and
(5) Dunigan is specifically instructed to attach to such complaint a separate copy of this opinion.
See, e.g., Zavodnik , 17 N.E.3d at 265 (discussing sanctions imposed upon Mario Sims). For the many already existing lawsuits filed by Dunigan, trial courts may follow our Supreme Court's guidance in Zavodnik and may be justified in imposing restrictions such as the ones discussed in Zavodnik .
Conclusion
[25] The trial court did not err in dismissing Dunigan's claims. Dunigan is instructed to heed the sanctions imposed herein. We affirm.
[26] Affirmed.
Riley, J., and May, J., concur.