FOR PUBLICATION
APPELLANT PRO SE
: ATTORNEYS FOR APPELLEE:
JAMES H. HIGGASON, JR. STEVE CARTER
Westville, Indiana Attorney General of Indiana
JOBY JERRELLS
Deputy Attorney General
Indianapolis, Indiana
JAMES H. HIGGASON, JR., )
)
Appellant-Plaintiff, )
)
vs. ) No. 77A01-0402-CV-71
)
BRUCE LEMMON, et al., )
)
Appellee-Defendant. )
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
James H. Higgason, pro se, appeals a grant of summary judgment in favor
of all the defendants in yet another civil rights lawsuit filed from prison
by Higgason. Those defendants, namely, Bruce Lemmon, Ron Batchelor, Vera Barnett, Dick
Brown, Jerry Snyder, Ron McCullough, William Gadberry, F. Brannick, and Teresa Stephens were
employees at the Wabash Valley Correctional Facility (the WVCF), where Higgason was incarcerated
in the Special Housing Unit (the SHU). Upon appeal, Higgason challenges the
grant of summary judgment.
We affirm.
The facts are that at all times relevant to the complaint filed by
Higgason, he was incarcerated in the SHU at the WVCF. On December
20, 1999, Higgason filed a complaint seeking certification to file a class action:
[o]n behalf of all past, present, and future prisoners who have been, who
are, and who will be confined within the SHU which is an
annex to the WVCF who have been, and who will be, permanently
divested of the majority of their personal property upon admittance to the SHU,
and then permanently divested of all of their commissary and hygienic items, which
are sold in plastic containers, upon transfer to ranges B-4-East, B-5-East or B-6-East,
while other prisoners within the SHU are permitted to retain possession of identical
items.
Appellees Appendix at 5-6. At issue were prison regulations and policies that
restricted the items of personal property that residents of certain blocks of the
SHU could have in their cells. In Higgasons particular case, the policies
meant that WVCF staff did not allow Higgason to have more than the
maximum twenty-five stamped envelopes in his cell, and did not permit him to
take squeezable hygiene bottles there.
See footnote The lawsuit was a civil rights suit
filed under 42 U.S.C. §§ 1983 and 1988, in the Sullivan Superior Court.
On February 28, 2003, the defendants in Higgasons lawsuit filed a motion
for summary judgment. That motion was granted on January 13, 2004.
We note that before Higgason filed the instant lawsuit in Sullivan Superior Court,
he filed another, broader complaint containing the identical allegations of restrictions on his
property rights while housed in the SHU. That complaint was filed on
February 27, 1996, in the United States District Court for the Southern District
of Indiana. On February 6, 1998, the district court granted summary judgment
in favor of the defendants, dismissing all claims with prejudice. Higgason appealed
that ruling and the Seventh Circuit Court of Appeals affirmed in all but
one respect. The court modified the district courts decision to reflect a
dismissal without prejudice in order to allow Higgason to file a state tort
claim. The court stated:
To the extent Higgason contends that the defendants deprived him of his property
without due process, the deprivation (whether negligent or intentional) of an inmates property
does not amount to a constitutional violation if there is an adequate post-deprivation
remedy available. Because the Indiana Tort Claims Act, Indiana Code § 34-4-16.5-1
et seq., provides an adequate remedy to redress an inmates property loss, Higgason
has no basis for an action with respect to this claim under 42
U.S.C. § 1983.
Appellants Appendix at 6a (citation to authority omitted). Notwithstanding that accommodation, the
subsequent state action filed by Higgason (i.e., the instant case) did not assert
a claim under the Indiana Tort Claims Act, but instead re-asserted a §
1983 claim. Therefore, Higgason seeks a second bite at the apple on
the § 1983 claim that the policies and regulation in question violate his
civil rights.
Higgason is no stranger to the doctrine of res judicata, which prevents repetitious
litigation of disputes that are essentially the same. Dawson v. Estate of
Ott, 796 N.E.2d 1190 (Ind. Ct. App. 2003). It consists of two
distinct components, claim preclusion and issue preclusion. Id. Issue preclusion bars
the subsequent relitigation of the same fact or issue where that fact or
issue was necessarily adjudicated in a former suit and the same fact or
issue is presented in a subsequent action. Brown v. Jones, 804 N.E.2d
1197, 1203 (Ind. Ct. App. 2004), trans. denied. Where issue preclusion
applies, the previous judgment is conclusive with respect to those issues actually litigated
and decided. Id.
The United States District Court for the Southern District of Indiana had jurisdiction
over Higgasons lawsuit in Higgason v. County of Sullivan, et al., No. TH95-193-C-T/H.
In the complaint initiating that proceeding, Higgason alleged the WVCF policies and
practices limiting the number of stamped envelopes he could have in his cell
and forbidding him from having squeeze bottles in his cell constituted a violation
of his civil rights under 42 U.S.C. §§ 1983 and 1988. As
set forth above, the District Court determined that Higgason was not entitled to
relief in that respect and granted summary judgment in favor of the defendants.
The Seventh Circuit later affirmed that ruling. Therefore the question of whether,
on these facts, Higgason is entitled to relief under §§ 1983 and 1988
has been decided adverse to his claims. We have generally accepted that
we must give full faith and credit to proceedings in federal courts.
Dawson v. Estate of Ott, 796 N.E.2d 1190. Therefore, we conclude that
any § 1983 or § 1988 claims premised upon the personal property restrictions
in question are barred by the doctrine of res judicata. See id.
Although it is certainly not clear, Higgasons rambling, thirty-one-page complaint may arguably be
understood to state claims other than the §§ 1983 and 1988 claims that
are foreclosed by application of res judicata. To the extent that it
does contain such claims, they are not properly before us because Higgason failed
to exhaust his administrative remedies before filing the instant lawsuit. We stress
here that this discussion does not pertain to § 1983 claims. Rather,
we refer here to any state tort claims that Higgason might have.
A claimant who has an available administrative remedy must pursue that remedy
before being allowed access to the courts. Boatwright v. Celebration Fireworks, Inc.,
810 N.E.2d 766 (Ind. Ct. App. 2004). A partys failure to exhaust
administrative remedies deprives the trial court of subject matter jurisdiction. Id.
This policy avoids premature litigation, permits the compilation of an adequate record for
judicial review, and affords agencies the opportunity and autonomy to correct their own
errors. Id.
The WVCF had a grievance procedure in place to resolve the sort of
complaints that Higgason lodges here. That procedure, as reflected in an exhibit
filed by the defendants, was and continues to be a five-step process.
Rick Watkins is a grievance specialist at the WVCF. Watkins submitted a
sworn declaration stating that the claims upon which the instant lawsuit is based
are grievable under the aforementioned procedures. Watkinss uncontested declaration states:
Based upon by review of the offender grievance review and evaluation system which
lists all grievances filed by offenders, offender Higgason did not exhaust the grievance
procedure regarding any complaints he made in 1997, 1998, and 1999 regarding the
confiscation of offender property. Specifically, Higgason only completed Step One, or Steps
One and Two, or Steps One, Two and Three of the grievance procedure
for every complaint he made in December 1997, and all of the calendar
years 1998 and 1999. In most cases, Higgason completed only Step One.
However, Higgason still did not exhaust the grievance procedure regarding any confiscation
of offender property.
Appellees Appendix at 95.
Higgason contends that he should be exempted from the exhaustion requirement because it
would be futile. His claim of futility is based upon charges of
incompetence and dishonesty among correctional officers and those charged with administering the grievance
program. For instance, he claims WVCF personnel were removing and disposing of
grievances from Higgasons outgoing institutional mail bag that were tendered for filing, which
were circumstances beyond Higgasons control that prevented those grievances from being filed, and
caused the whole Offender Grievance Process to brake [sic] down and rendered it
useless. Appellants Brief at 85. He also claims that another grievance
specialist indicated that there were data entry problems for a period of time,
thus indicating that the grievance log sheet is unreliable.
Clearly, the rule requiring exhaustion of administrative remedies is not without exceptions.
Those exceptions occur if administrative procedures are not capable of answering the question
presented by a partys claim. Abner v. Dept of Health of State
of Ind. ex rel. Indiana Soldiers and Sailors Childrens Home, 777 N.E.2d 778,
783 (Ind. Ct. App. 2002), trans. denied. The exceptions to exhaustion have
been explained as follows:
A party is excepted from the exhaustion requirement when the remedy is
inadequate or would be futile, or when some equitable consideration precludes application of
the rule. To prevail upon a claim of futility, one must show
that the administrative agency was powerless to effect a remedy or that it
would have been impossible or fruitless and of no value under the circumstances.
Furthermore, the requirement of exhaustion of administrative remedies will be relaxed where
there is grave doubt as to the availability of the administrative remedy.
Id. at 783 (quoting Smith v. State Lottery Commn of Ind., 701 N.E.2d
926, 931 (Ind. Ct. App. 1998), trans. denied) (internal citations omitted). Our
supreme court has observed that the exhaustion requirement ... should not be dispensed
with lightly on grounds of futility. Town Council of New Harmony v. Parker,
726 N.E.2d 1217, 1224 (Ind. 2000), amended on rehg on other grounds, 737
N.E.2d 719.
As indicated previously, Higgasons futility claim is based upon allegations of rampant dishonesty
and misconduct on the part of WVCF officials and employees. According to
Higgason, certain individuals at the WVCF conspire to thwart his attempts to prosecute
grievances. In support of these allegations, Higgason names individuals who, he claims,
pluck grievances out of his outgoing mail and discard them, thereby denying him
the opportunity to file them in the first place. He also claims
that deficiencies in the process whereby claims are recorded resulted in inaccurate logging
and tracking of some of the claims he filed.
Ignoring for a moment the question of the credibility of Higgasons claims of
corruption, we note Higgasons primary complaint is that some of his grievances were
intercepted and then discarded without ever having been filed. The claimed futility,
it would seem, was in getting the claim filed in the first place.
See footnote
There is no indication that the named individuals responsible for allegedly discarding
some of the claims filed by Higgason had any role in deciding a
claim once it was successfully filed. In other words, Higgason makes no
credible claim that the decision-making process itself was tainted. At most, Higgason
claims that the record-keeping procedure was flawed for a time, and therefore that
it might not be accurate with respect to tracking the filing and progress
of his claims. Yet, it is significant to us that nowhere does
Higgason claim that he did, in fact, pursue a single grievance through all
five steps of the grievance process. As such, Higgason does not explain
to our satisfaction why he did not complete the grievance process with respect
to
any of the numerous grievances that he did manage to successfully file.
In short, Higgason has failed to convince us that pursuing his administrative
remedies through to their conclusion would be an exercise in futility. Therefore,
he is not exempted from the exhaustion doctrine.
In summary, to the extent that Higgason asserts claims under § 1983, such
have already been decided against him and pursuant to res judicata principles we
will not revisit those issues. All other claims are grievable under
established WVCF grievance procedures, and Higgason has failed to exhaust his administrative remedies.
Thus, the trial court is affirmed in all respects.
We have noted on a previous occasion that Higgason has generated a tremendous
volume of litigation during his incarceration. In deciding previous appeals by Higgason,
as in the instant case, we find ourselves revisiting issues that have already
been decided by other courts in other proceedings. In an effort to
address this unwarranted drain on the judicial system and constant harassment of the
same few defendants, we have imposed screening mechanisms aimed at curtailing frivolous lawsuits
filed by excessively litigious prisoners. See, e.g., Parks v. State, 789 N.E.2d
40 (Ind. Ct. App. 2003), trans. denied. In fact, in apparent response
to this aspect of the Parks opinion, our legislature passed Ind. Code Ann.
§ 34-13-7-1 (West, PREMISE through 2004 2nd Regular Sess.), which effectively codifies the
conditions we placed upon Parks in that case. In Higgasons most recent
appeal, we imposed a screening mechanism along the lines of Parks and I.C.
§ 34-13-7-1. In light of the issues raised in this appeal, we
will once again place conditions upon the filing of future lawsuits concerning the
matters alleged in the instant complaint.
Therefore, in addition to affirming summary judgment in favor of the defendants and
against Higgason, we impose the following conditions upon Higgason concerning any future lawsuits
that spring directly or indirectly from the matters addressed above: (1) Prior
to filing any such lawsuit, Higgason shall submit to the trial court a
copy of the complaint he wishes to file. (2) With respect to
any matter that is grievable in the correctional facility in which Higgason is
then incarcerated, Higgason shall submit documentation that he has exhausted his administrative remedies
with respect to each claim. (3) Higgason shall also file a copy
of all of the relevant documents pertaining to the ultimate disposition of each
and every previous case instituted by Higgason against any of the same defendants
or emanating, directly or indirectly, from complaints about the WVCF rules pertaining to
claims that he has been deprived of personal property in violation of his
constitutional rights. 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 trial or appellate court. (4)
Higgason 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, law of the
case, or failure to exhaust administrative remedies. 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 (i.e., subject to dismissal by the exhaustion doctrine or res judicata
principles), the court shall dismiss the proposed complaint. (5) Higgason is specifically
instructed to attach to such complaint a separate copy of the final paragraph
of this opinion.
Judgment affirmed.
BAKER, J., and DARDEN, J., concur.