HUBBELL v. INDIANA DEPARTMENT OF CORRECTION et al

Filing 10

ENTRY Dismissing Action And Directing Entry of Final Judgment. This action is dismissed with prejudice for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915A. Judgment consistent with this Entry shall now issue. See Entry. Copy to Plaintiff via US Mail. Signed by Judge Sarah Evans Barker on 8/22/2017.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JASON DEAN HUBBELL,
Plaintiff,
v.
INDIANA DEPARTMENT OF
CORRECTION,
DUSHAN ZATECKY, LISA ASH,
LAWRENCE R. FOWLER,
CAMAY FRANCUM,
Defendants.

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No. 1:17-cv-00756-SEB-DML

Entry Dismissing Action
And Directing Entry of Final Judgment
Jason Dean Hubbell is incarcerated by the State of Indiana in the Pendleton Correctional
Facility. He has been engaged in a lengthy state court appeals process challenging his convictions.
Until recently he was represented by counsel in those efforts, but went pro se in 2014. He has been
researching his state appeals in the prison law library. The library has a subscription to Lexis, an
online legal research service, but the prison’s subscription is limited, Hubbell states. Lexis will
provide a statute’s current version and one previous, but nothing prior to that for inmates. There
are no books providing coverage of prior statutory versions. When Hubbell went to his state court
post-conviction hearing, he says he argued the wrong version of a statute because of the failings
of the law library. He complains that he lost credibility with the state court judge, which caused
him to lose his state post-conviction case.
On March 10, 2017, Hubbell sued the Indiana Department of Correction (IDOC), officials
responsible for the prison law library or implementing IDOC policies, and a prison grievance

specialist who blocked Hubbell’s grievances about the library. Hubbell invoked 42 U.S.C. § 1983
to assert claims, which the Court construed as an access to the courts matter. See In re Maxy, 674
F.3d 658, 660 (7th Cir. 2012) (citing Bounds v. Smith, 430 U.S. 817 (1977)). Hubbell’s complaint
did not assert a cognizable injury, e.g., interference with legal materials that caused actual
prejudice. See Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir. 2013).
On March 17, 2017, the Court screened Hubbell’s complaint pursuant to 28
U.S.C. § 1915A(b), and found that it failed to state a claim upon which relief can be granted. See
dkt. 4, ¶ 6. The complaint was dismissed. Id. The Court allowed Hubbell an opportunity to show
cause why the action should not be dismissed, and on April 4, 2017, Hubbell responded to the
show cause order. Dkt. 6.
At noted above, Hubbell’s asserted injury is that he lost his credibility with the state postconviction court and as a result lost his post-conviction case. See dkt. 6, ¶ 8. He points the Court
to the state post-conviction court’s twenty-five page order denying his petition for post-conviction
relief. See dkt. 6, ex. B. This Court will consider the state court order as part of Hubbell’s
complaint. See Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (“[W]hen a plaintiff
attaches to the complaint a document that qualifies as a written instrument, and [his] complaint
references and relies upon that document in asserting [his] claim, the contents of that document
become part of the complaint and may be considered as such . . . .”). Hubbell asserts that in
paragraph I of the order, the state court judge takes issue with Hubbell’s erroneous argument and
rules against him. Dkt. 6, ¶ 8. The order does not contain any reference to Hubbell’s credibility.
“A plaintiff can plead himself out of court by pleading facts that show that he has no legal
claim.” Epstein v. Epstein, 843 F.3d 1147, 1150 (7th Cir. 2016). Although Hubbell has plead
injury or prejudice, he has plead himself out of Court because this Court’s interpretation of the

state court’s order is very different. The state court had multiple fact and legal issues before it and
sorted through them methodically. When it arrived at Hubbell’s argument concerning the murder
statute, it wrote that “Hubbell was not convicted of Felony Murder. He was convicted of a knowing
or intentional Murder. His argument is misplaced.” The state court judge was not making a
credibility determination. The judge was making a legal determination based on the law as it
existed. Dkt. 6, ex. B, ¶ I. This is not an injury or prejudice resulting from a denial of access to the
courts.
While Hubbell may have been embarrassed and confused about the correct version of the
statute to use during his post-conviction hearing, he has not suffered an injury that equates to a
denial of access to the courts. See Lewis v. Casey, 518 U.S. 343, 355-56 (1996); Devbrow, 735
F.3d at 587-88. He had access to the state courts to present his post-conviction claims, was
represented by counsel for a considerable time during the pendency of the post-conviction process,
and while acting pro se had a hearing at which the state court judge heard his arguments and later
generated a comprehensive twenty-five page order on the issues.
For these reasons and for the reasons explained in the Court’s screening Entry of March 17,
2017, this action is dismissed with prejudice for failure to state a claim upon which relief can be
granted. 28 U.S.C. § 1915A. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

8/22/2017
Date: ____________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Jason Dean Hubbell
985967
Pendleton Correctional Facility
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, IN 46064