Michael D. Hickingbottom v. Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, Mark Sevier, Warden of Westville Correctional Facility, Troy Cambe (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 24 2019, 9:41 am
court except for the purpose of establishing
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the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Michael D. Hickingbottom Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael D. Hickingbottom, September 24, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-PL-792
v. Appeal from the
LaPorte Superior Court
Robert E. Carter, Jr., The Honorable
Commissioner of the Indiana Jeffrey L. Thorne, Judge
Department of Correction, Mark Trial Court Cause No.
Sevier, Warden of Westville 46D03-1812-PL-2243
Correctional Facility, Troy
Cambe, and Unknown
Maintenance Workers,
Appellees-Defendants.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PL-792 | September 24, 2019 Page 1 of 6
[1] Michael D. Hickingbottom (“Hickingbottom”) appeals the trial court’s order
dismissing his complaint pursuant to Indiana Code section 34-58-1-2.
Hickingbottom contends that the trial court erred in dismissing his complaint.
[2] We affirm.
Facts and Procedural History
[3] Hickingbottom is an inmate in the Westville Correctional Facility, which is a
part of the Indiana Department of Correction. Beginning in February 2018,
Hickingbottom filed several grievances regarding various conditions in the
facility. Specifically, Hickingbottom alleged that the cells in the segregated unit
where he was housed were too cold and that the cold air was being used as
punishment for inmates in that unit. Appellant’s App. Vol. 2 at 27-29. He also
alleged that the water in his unit was brown or orange in color and was
contaminated, which was making him sick. Id. at 30-32. These grievances
were all denied. Claiming these prison conditions violated his constitutional
rights, Hickingbottom filed a complaint for damages against Robert E. Carter,
Jr., Commissioner of the Indiana Department of Correction, Mark Sevier,
Warden of Westville Correctional Facility, Troy Cambe, Grievance Specialist
for Westville Correctional Facility, and Unknown Maintenance Workers
asserting violations of his civil rights under 42 United States Code section 1983.
Id. at 18-27. On December 28, 2018, the trial court dismissed Hickingbottom’s
complaint pursuant to Indiana Code section 34-58-1-2 and for failing to comply
with the requirements of Indiana Code sections 34-13-3-1, 34-13-3-3, 34-13-3-4,
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34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. Id. at 38-39. In its order, the
trial court gave Hickingbottom thirty days to file additional pleadings or
documents to remedy any of the deficiencies referenced in the order. Id. at 39.
Hickingbottom filed a motion to correct deficiencies, in which he attempted to
correct deficiencies associated with Indiana Code sections 34-13-3-1, 34-13-3-3,
34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. Id. at 8-9. On
February 15, 2019, the trial court issued another order, dismissing
Hickingbottom’s complaint pursuant to Indiana Code section 34-58-1-2.
Hickingbottom now appeals.
Discussion and Decision
[4] Hickingbottom argues that the trial court erred in dismissing his complaint.
Indiana Code section 34-58-1-1 provides, “Upon receipt of a complaint or
petition filed by an offender, the court shall docket the case and take no further
action until the court has conducted the review required by section 2 of this
chapter.” Indiana Code section 34-58-1-2, in turn, provides in pertinent part:
(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.
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(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.
If a court determines that a claim may not proceed under section 2, “the court
shall enter an order: (1) explaining why the claim may not proceed; and (2)
stating whether there are any remaining claims in the complaint or petition that
may proceed.” Ind. Code § 34-58-1-3.
[5] Hickingbottom argues that the trial court erred when it dismissed his complaint.
He specifically asserts that the trial court violated his due process rights when it
dismissed his complaint for failing to comply with Indiana Code sections 34-13-
3-1, 34-13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. He
contends that he substantially complied with these statutes, and, therefore, the
trial court erroneously dismissed his complaint.
[6] In the present case, on December 28, 2018, the trial court initially issued an
order dismissing Hickingbottom’s complaint pursuant to Indiana Code section
34-58-1-2 and for failing to comply with Indiana Code sections 34-13-3-1, 34-
13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12, and 34-13-7-1. However,
the trial court gave Hickingbottom the opportunity to file additional pleadings
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to cure the deficiencies referenced in the order. Hickingbottom filed a
subsequent motion in which he cured the deficiencies associated with Indiana
Code sections 34-13-3-1, 34-13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11, 34-13-3-12,
34-13-7-1. The trial court then issued its final order on February 15, 2019,
dismissing Hickingbottom’s complaint pursuant to Indiana Code section 34-58-
1-2. It is that final order from which Hickingbottom appeals.
[7] Although Hickingbottom argues that the trial court erred and violated his due
process rights when it dismissed his complaint for failure to comply with
Indiana Code sections 34-13-3-1, 34-13-3-3, 34-13-3-4, 34-13-3-8, 34-13-3-11,
34-13-3-12, and 34-13-7-1, in its final order on February 15, 2019, the trial court
did not base the dismissal of his complaint on a failure to comply with those
statutory sections. Instead, the trial court based its dismissal only on Indiana
Code section 34-58-1-2. Here, Hickingbottom has not argued or demonstrated
any error in the trial court’s order finding that his claim should be dismissed
pursuant to that section.
[8] It is well settled that pro se litigants are held to the same legal standards as
licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016).
“This means that pro se litigants are bound to follow the established rules of
procedure and must be prepared to accept the consequences of their failure to
do so.” Id. at 983-84. These consequences include waiver for failure to present
cogent argument on appeal. Id. at 984. “While we prefer to decide issues on
the merits, where the appellant’s noncompliance with appellate rules is so
substantial as to impede our consideration of the issues, we may deem the
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alleged errors waived.” Id. We will not become an “advocate for a party, or
address arguments that are inappropriate or too poorly developed or expressed
to be understood.” Id. In the present case, Hickingbottom has not raised any
argument as to why the trial court erred in dismissing his complaint pursuant to
Indiana Code section 34-58-1-2. We, therefore, conclude that he has waived
review of the issue, and we affirm the trial court’s order dismissing
Hickingbottom’s complaint.
[9] Affirmed.
Baker, J., and Crone, J., concur.
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