Alex E. Waters v. State of Indiana

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Pursuant to Ind.Appellate Rule 15(A)(3), 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 APPELLEE:

ALEX E. WATERS, PRO SE    JEFFREY A. MODISETT
Carlisle, Indiana    Attorney General of Indiana

             RACHEL ZAFFRANN
            Deputy Attorney General
            Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

ALEX E. WATERS, ) ) Appellant-Petitioner ) ) vs. ) No. 77A01-9709-CV-295 ) STATE OF INDIANA, ) ) Appellee-respondent )

APPEAL FROM THE SULLIVAN CIRCUIT COURT
The Honorable P.J. Pierson, Judge
Cause No. 77C01-9705-MI-118

 
December 4, 1997

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBERTSON, Judge     Prison inmate, Alex E. Waters, pro se, appeals the trial court's sua sponte dismissal of his action requesting that the trial court order the Indiana Department of Corrections to expunge his institutional record, known as an inmate's institutional packet, of reference to an offense for which he had been found not guilty. We reverse.
FACTS
    The dispositive facts are undisputed. While in prison, Waters was alleged to have violated a prison regulation. However, he was found not guilty. Later, Waters learned his inmate's institutional packet contained a reference to the charge. Waters sought expungement, but was unable to obtain relief through the prison grievance procedures. Ultimately, Waters filed the instant action requesting that the DOC expunge his record of any reference to the violation as required by Ind.Code 11-11-5-5(10). Without waiting for the State to respond, the trial court dismissed Waters' complaint finding that the court lacked jurisdiction "since there is no statutory or constitutional right to judicial review of prison discipline actions," citing Hasty v. Broglin, 531 N.E.2d 200 (Ind. 1988).
This appeal ensued.
DECISION
    Blackmon v. Duckworth, 675 N.E.2d 349, 352 (Ind. Ct. App. 1996) (Clarified on rehearing) controls. In Blackmon, we distinguished Hasty on the basis that the statute in question did if fact provide the inmate with a statutory right. Id. Moreover, we held that I.C. 11-11-5-5(10) provided, unequivocally, that where an inmate has been found not guilty of a charge, he is entitled to the expungement of any reference to the charge in his institutional

packet. Id. (Emphasis original). Therefore, we reverse and remand for further proceedings consistent with this opinion. See id.
Judgment reversed.     
BAKER, J., AND BARTEAU, J., concur.