Hummel v. Cooley et al

Filing 6

OPINION AND ORDER this case is DISMISSED pursuant to 28 U.S.C. § 1915A, ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 5/24/18. (Copy emailed to pro se party)(mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
NATHAN HUMMEL,
Plaintiff,
v.

CAUSE NO.: 3:18-CV-254-RLM-MGG

VICKI L. COOLEY and DONNA
DAVIS,
Defendants.
OPINION AND ORDER
Nathan Hummel, a prisoner without a lawyer, is suing the Clerk of the
Starke Circuit Court and a court reporter for not properly transmitting
transcripts of his guilty plea and sentencing hearing to the Court of Appeals of
Indiana for his post-conviction appeal. “A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers . . ..” Erickson
v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, this court must review the
complaint and dismiss it if the action is frivolous or malicious, fails to state a
claim, or seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915A. “In order to state a claim under [42 U.S.C.] § 1983 a
plaintiff must allege: (1) that defendants deprived him of a federal constitutional
right; and (2) that the defendants acted under color of state law.” Savory v. Lyons,
469 F.3d 667, 670 (7th Cir. 2006).
To establish a violation of the right to access the courts, an inmate must
show that unjustified acts or conditions by defendants acting under color of law

hindered the inmate’s efforts to pursue a non-frivolous legal claim, Nance v.
Vieregge, 147 F.3d 591, 590 (7th Cir. 1998), and that actual injury (or harm)
resulted. Lewis v. Casey, 518 U.S. 343, 351 (1996) (holding that Bounds v. Smith,
430 U.S. 817 (1977) did not eliminate the actual injury requirement as a
constitutional prerequisite to a prisoner asserting lack of access to the courts).
In other words, “the mere denial of access to a prison law library or to other legal
materials is not itself a violation of a prisoner’s rights; his right is to access the
courts,” and only if the defendants’ conduct prejudices a potentially meritorious
legal claim has the right been infringed. Marshall v. Knight, 445 F.3d 965, 968
(7th Cir. 2006) (emphasis in original).
The absence of the two transcripts from the appellate record didn’t
prejudice Mr. Hummel’s appeal. It was the lack of cogent arguments and
citations to the record.1 In his brief to the Court of Appeals of Indiana, Mr.
Hummel raised one claim. “Hummel contends that his plea was not knowing,
intelligent, and voluntary because he received ineffective assistance of trial
counsel.” Hummel v. State, 2016 WL 4958264, *1; 63 N.E.3d 37 (Ind. Ct. App.
2016) (table). In affirming the denial of his post-conviction relief petition, the
court explained:
We agree with the State that Hummel has waived this issue
for review on appeal for failure to present a cogent argument in
support of his contentions. While Hummel sets out the applicable
standard of review and cites case law relevant to his burden to prove
ineffective assistance of counsel in general, he does not state with
1 Though these transcripts were not sent to the Court of Appeals of Indiana, Mr. Hummel could
have referenced them in his brief. During his post-conviction relief proceeding, Mr. Hummel submitted
copies of them to the court and they were admitted into evidence. See PCR Transcript Volume 2 at 15-16,
filed on paper in Hummel v. Warden, 3:17-CV-114 (N.D. Ind. filed February 6, 2017).

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any specificity how his trial counsel’s performance was allegedly
deficient or direct us to any evidence in the record to support his
bare contentions. For instance, in his brief on appeal, Hummel
states that his trial counsel made “unprofessional errors,” but he
does not describe those alleged errors or direct us to any part of the
record to support that allegation. And Hummel avers that his trial
counsel did not “properly advise [him] on the offen[s]e of dealing in
a narcotic” drug, but he does not explain what his trial counsel’s
advice was or how it was improper. Because of the lack of cogent
argument and citation to the record or relevant authority, Hummel
has waived his ineffective assistance of trial counsel claim for our
review.
Id. (citations omitted and brackets in original).
For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A.
SO ORDERED on May 24, 2018
/s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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