James H. Higgason, Jr. v. Howard Morton

*After an examination of the briefs and the records, we have concluded that
oral argument is unnecessary. Thus these appeals are submitted on the briefs and
the records. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006*
Decided February 21, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Nos. 02-4273 & 04-3773
JAMES H. HIGGASON, JR.,
Plaintiff-Appellant,
v.
HOWARD MORTON, et al.,
Defendants-Appellees.
Appeals from the United States District
Court for the Northern District of
Indiana, South Bend Division
No. 3:98-CV-105 RM
Robert L. Miller, Jr.
Chief Judge.
O R D E R
These consolidated appeals arise out of a single incident that is now almost
13 years in the past and has been the subject of two earlier appeals. On April 15,
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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1Higgason’s plethora of pro se litigation in the federal courts led us to restrain
him from filing further lawsuits subject to limited exceptions. Higgason v. Shroyer,
No. 98-1973 (7th Cir. Feb. 12, 1999) (unpublished order); see Support Sys. Int’l, Inc.
v. Mack, 45 F.3d 185 (7th Cir. 1995) (per curiam). These appeals arise from a suit
filed before we entered our injunction, and thus have been allowed to proceed.
1993, Indiana inmate James Higgason1 was removed from his cell at the Indiana
State Prison and placed in disciplinary segregation. It is undisputed that when
Higgason left for segregation he possessed considerable personal property in his
cell. That day, instead of inventorying Higgason’s property and storing it in the
property room as dictated by prison policy, guards opened Higgason’s cell and
allowed other inmates to steal most of his belongings. The guards then disposed of
Higgason’s remaining property. When Higgason returned to his cell approximately
three weeks later, all of his personal property was missing.
In September 1993, Higgason filed suit under 42 U.S.C. § 1983 alleging that
12 different guards were responsible for the loss of his property. He claimed that
their actions deprived him of property without due process of law and, because the
missing items included legal documents essential to his appeal of Higgason v.
Rosko, No. S91-563M (N.D. Ill. Apr. 8, 1993), aff’d sub. nom. Higgason v. Adank,
No. 93-2000 (7th Cir. Feb. 3, 1994) (summary disposition), impeded his First
Amendment right of access to the courts. The district court dismissed Higgason’s
complaint in 1995. The court reasoned that he failed to state a due process claim
because the Indiana Tort Claims Act afforded an adequate postdeprivation remedy.
See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527,
543-44 (1981). The court also reasoned that the loss of Higgason’s legal materials
could not have denied him access to the courts since his appeal of Higgason v. Rosko
had been dismissed as frivolous in the interim, and thus no injury resulted. We
affirmed the dismissal of Higgason’s complaint. See Higgason v. Barnes, 95 F.3d
1154 (7th Cir. 1996) (unpublished order).
Higgason then sued the guards in the small claims court of LaPorte County,
Indiana. The state court set the case for trial in December 1997, but when
Higgason requested to be transported to court, the defendants objected, arguing
that under Hill v. Duckworth, 679 N.E.2d 938 (Ind. Ct. App. 1997), the state court
had no jurisdiction to order Higgason’s transport. In Hill, the Indiana appellate
court affirmed the dismissal with prejudice of an inmate’s case in small claims court
because the inmate failed to appear for trial on two separate occasions. Id. at 940.
The Hill court relied on a 1948 state supreme court decision holding that Indiana
courts cannot order an inmate’s attendance for a matter unrelated to the underlying
conviction, see Rogers v. Youngblood, 78 N.E.2d 663, 665 (Ind. 1948), and reasoned
that “there were other avenues available to [the inmate] by which he could

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Nos. 02-4273 & 04-3773 Page 3
prosecute his action without having to represent himself at a trial in the
courthouse.” Hill, 679 N.E.2d at 940 n.1. The judge in Higgason’s case thus
concluded that he could not order Higgason’s transport, but when Higgason
requested adjudication by telephone, video, or submission of documentary evidence,
the court denied his request. (All of this is according to Higgason’s account because
the record before us includes sparse documentation from the state court.) What
happened next in the state court is unclear because the docket sheet provided by
Higgason includes no entry reflecting a final judgment. The parties agree, however,
that the small claims court ultimately dismissed Higgason’s suit without prejudice
and denied Higgason’s praecipe for a transcript.
Higgason then returned to federal court and in February 1998 filed a second
civil rights action arising from the events of April 1993 and mirroring his earlier
federal suit. He named and served seven of the guards originally sued in
1993—Captains Howard Morton and Robert Wittenberg, Sergeant Paul Autterson,
and Officers Andrew Paull, Brian Thompson, Gabrial Tinoco, and Mike Lunn—and
added a new defendant, Property Officer David Rimmer. Higgason again alleged
that, when the guards allowed inmates to steal his property and then disposed of
the remainder themselves, they deprived him of property without due process of
law. He also claimed that the defendants denied him access to the courts because
the missing property included documents necessary to prosecute his appeal of
Higgason v. Rosko and to prepare for trial in Higgason v. Scott, No. 46D04-9309-SC-
1519 (LaPorte Super. Ct. 1994). Higgason also included a tort claim under Indiana
law. The defendants again moved to dismiss, citing claim preclusion and the
Rooker-Feldman doctrine, see District of Columbia Court of Appeals v. Feldman, 460
U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), but the district
court denied their motion. As is relevant here, the court concluded that Higgason
now stated a due process claim arising from his stolen property because his
complaint rebutted the presumption that an adequate postdeprivation remedy
existed. The court noted that Higgason alleged he was prevented from prosecuting
his tort claim in the small claims court and that the state court “denied his
praecipe” when he “tried to appeal.” The district court suggested that, in light of
Hill v. Duckworth, “it is far more difficult than it once was to hold that Indiana’s
tort claims act provides any sort of adequate postdeprivation remedy for prisoners.”
Even if Higgason were to refile his claim in state court, the court surmised, “prison
officials might force the case’s dismissal simply by transferring Mr. Higgason to a
penal facility in another county before the trial of the proposed civil action.”
Four of the defendants—Autterson, Thompson, Tinoco, and Lunn—failed to
answer the complaint and were defaulted. Then in March 2001, now almost eight
years after the underlying incident, the district court granted summary judgment in
favor of Morton, Wittenberg, Rimmer, and Paull. As to Higgason’s due process
claim, the court concluded that Higgason lacked evidence of personal involvement

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Nos. 02-4273 & 04-3773 Page 4
by Wittenberg and Rimmer. The court reached the same conclusion as to Morton
even while acknowledging that Higgason had submitted some admissible evidence
that it was Morton who ordered his placement in segregation and directed that his
cell be opened after he was removed. Finally, the court held that Higgason lacked
evidence that Paull’s minimal involvement was anything more than negligent.
As to Higgason’s claim that he was denied access to the courts, the district
court, as it had done in the previous federal case, held that Higgason could not show
an injury resulting from the loss of his legal documents. This time, however, the
court concluded that Higgason was not prevented from appealing the dismissal of
Higgason v. Rosko simply because his copy of a memorandum filed in the district
court had been stolen. The memorandum was part of the appellate record, the court
reasoned, so its absence from Higgason’s personal records did not preclude him from
pursuing his appeal. Likewise, the district court held that Higgason could not prove
that the loss of documents relating to Higgason v. Scott adversely affected the
outcome of that case because Higgason abandoned the suit when he lost his temper
and demanded to be removed from the courtroom.
The district court then dismissed Higgason’s supplemental state-law claim
against Morton, Wittenberg, Rimmer, and Paull because they were not named in
his notice of tort claim. See Ind. Code § 34-4-16.5-9 (1974). Finally, in a separate
order, the court entered a default judgment for $27,405 against the guards who did
not answer Higgason’s complaint.
Higgason filed a timely notice of appeal, which we docketed as case
no. 02-4273. We suspended proceedings in that appeal, however, because after the
entry of judgment Sergeant Autterson moved under Federal Rule of Civil Procedure
60(b) to set aside the default judgment. Autterson succeeded in getting the
judgment against him reduced to $15,429, but the district court refused to set it
aside altogether. We reversed that ruling and directed that the case proceed on the
merits, Higgason v. Autterson, 49 Fed. Appx. 73 (7th Cir. 2002) (unpublished order),
and in September 2004 the district court granted summary judgment for Autterson.
The court acknowledged that Higgason had produced evidence that Autterson
relayed to another guard the directive from Morton to open Higgason’s cell to other
inmates and that Higgason’s evidence supported an inference that Autterson’s
conduct was “malicious, willful and wanton, and possibly criminal.” Nevertheless,
the court concluded that Autterson was shielded from liability by qualified
immunity. The court then declined to exercise supplemental jurisdiction over
Higgason’s state-law claim, with the explanation that Higgason could refile in state
court. Higgason filed another appeal, which we docketed as case no. 04-3773.
We start with Higgason’s due process claim. We will not analyze the
evidence defendant-by-defendant because we conclude, as we did when we affirmed

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the dismissal of Higgason’s 1993 lawsuit, that he simply fails to state a federal
constitutional claim for the deprivation of his property. See Cardoso v. Robert
Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005) (recognizing that summary judgment
may be affirmed on any ground apparent from the record); Russ v. Watts, 414 F.3d
783, 787 n.2 (7th Cir. 2005) (same). The unauthorized intentional deprivation of an
individuals’ property by a state employee does not deny the procedural due process
guaranteed by the Fourteenth Amendment so long as “a meaningful postdeprivation
remedy for the loss is available.” Hudson, 468 U.S. at 533; see Gable v. City of
Chicago, 296 F.3d 531, 539-40 (7th Cir. 2002). We have held that the Indiana Tort
Claims Act provides an adequate postdeprivation remedy to redress claims like
Higgason’s. See Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001); Hossman v.
Spradlin, 812 F.2d 1019, 1023 (7th Cir. 1987). In this case, the district court
reasoned that Indiana’s tort remedy was inadequate for Higgason because of Hill v.
Duckworth and its application by the LaPorte County judge to dismiss Higgason’s
small-claims action for want of prosecution. This is incorrect both factually and
legally. Higgason alleged in his 1998 federal complaint that his praecipe was
denied by the small claims court, but the reason is nowhere found in the record.
Certainly there is no evidence that Higgason’s failure to appeal the dismissal to the
state appellate court was attributable to the judge presiding over his suit or to court
personnel rather than to Higgason’s own inaction or procedural failings. Indiana
law is settled that civil litigants have a guaranteed right to an appeal, see Ind. High
Sch. Athletic Ass’n, Inc. v. Martin, 765 N.E.2d 1238, 1242 (Ind. 2002), as well as a
right to a certified transcript at any time, see Lies v. Ortho Pharm. Corp., 286
N.E.2d 170, 174 (Ind. 1972); Crown Aluminum Indus. v. Wabash Co., 369 N.E.2d
945, 947 (Ind. App. Ct. 1977). More importantly, the Indiana courts have
emphasized after Hill that the restriction on transporting prisoners is not a
complete bar to an inmate’s cause of action under the Indiana Tort Claims Act. See
Niksich v. Cotton, 810 N.E.2d 1003, 1008 (Ind. 2004) (holding that inmate has no
absolute right to attend civil trial but “may seek to submit the case through
documentary evidence, to conduct the trial by telephonic conference, to secure
someone else to represent him at trial, or to postpone the trial until his release from
incarceration”); Murfitt v. Murfitt, 809 N.E.2d 332, 334-35 (Ind. App. Ct. 2004)
(reversing judgment where inmate was denied alternative means to participate in
civil trial); Sabo v. Sabo, 812 N.E.2d 238, 246 (Ind. App. Ct. 2004) (same);
Zimmerman v. Hanks, 766 N.E.2d 752, 757-58 (Ind. App. Ct. 2002) (same). The fact
that Higgason’s attempt to litigate his claims in state court was unsuccessful does
not establish that Indiana’s remedy is inadequate. See Hamlin v. Vaudenberg, 95
F.3d 580, 585 (7th Cir. 1996) (holding that postdeprivation remedy must be
“meaningless or nonexistent” to be inadequate); Easter House v. Felder, 910 F.2d
1387, 1406 (7th Cir. 1990) (explaining that state remedy is not necessarily
inadequate because it is uncertain or incomplete). The small claims court may have
wrongfully dismissed Higgason’s suit, but his recourse was to salvage the action
through Indiana’s appellate courts, not to argue in a new federal action that the

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adverse decision in state court revived a dormant due process claim. The district
court should have dismissed this claim immediately for failure to state a claim.
The district court’s resolution of Higgason’s remaining claims is sound. To
prove that he was denied meaningful access to the courts, Higgason needed
evidence that he was prevented from pursuing a nonfrivolous lawsuit. See Lewis v.
Casey, 518 U.S. 343, 351 (1996); Johnson v. Barczak, 338 F.3d 771, 772 (7th Cir.
2003). We have twice before recognized that Higgason’s appeal in Higgason v.
Rosko was patently frivolous, see Higgason v. Adank, No. 93-2000 (7th Cir. Feb. 3,
1994) (summary disposition); Higgason v. Barnes, 95 F.3d 1154 (7th Cir. 1996)
(unpublished order), and the district court was correct that Higgason cannot
contend that he would have prevailed in the Scott matter but for the theft of his
legal materials given that he abandoned the courtroom in a fit of frustration. As for
the supplemental state claim, we have reviewed Higgason’s arguments and
conclude that none has merit.
AFFIRMED.

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