The Department of Correction must restore nearly six months of lost credit time to a Westville inmate after a federal judge determined the inmate’s disciplinary loss of credit time was “unreasonable and arbitrary.”

Franklin Cox is serving a 45-year sentence in the Westville Correctional Facility for a 2002 murder conviction. In June 2017, Cox filed a “Verified Petition for Additional Credit Time” in the St. Joseph Superior Court seeking credit for activities he participated in at Westville. However, the programs Cox sought credit for were not on the roster of available DOC cut time programs, so the trial court summarily denied his petition without a hearing.

Then in August 2017, a conduct report was filed alleging Cox “filed a frivolous lawsuit claiming he is owed credit time for classes which are not DOC-approved time cut programs.” That conduct, the report said, constituted the offense of “(a)sserting and/or filing a false lien or judgment.”

Cox, however, argued during a disciplinary hearing that his actions weren’t frivolous because a judge “gave (him) time to respond,” adding that “(t)he court would’ve shut it down if it was frivolous.” But a DOC hearing officer determined Cox had committed an actionable offense and sanctioned him with the loss of 165 days earned credit time. Of those days, 120 were for the instant offense and 45 were from a previously suspended sanction.

Cox then filed a habeas petition in the U.S. District Court for the Northern District of Indiana, arguing his petition was not a “lawsuit.” He also argued there was insufficient evidence to warrant the revocation of his earned credit time, and the district court agreed.

“The conduct report — and underlying facts supporting the report — fail to establish that Cox filed a lien or judgment against another person that was false or otherwise untrue,” Judge Jon E. DeGuilio wrote Monday in Franklin J. Cox v. Warden, 3:18-cv-076. “…While the verified petition may have been frivolous because the relief Cox sought was not sanctioned by IDOC, the petition itself — in no way, shape, or form — can be viewed as constituting that of a lien or judgment.

“There is also no evidence to suggest that Cox intended or actually filed the verified petition against another person,” DeGuilio continued. “Rather, as stated, he filed the verified petition in the St. Joseph Superior Court against the State of Indiana in connection with his criminal case. Because there is no factual basis in the record to support the (Disciplinary Hearing Officer’s) guilty finding, it was unreasonable and arbitrary for the DHO to conclude Cox violated offense A-122.”

Thus, the court granted Cox’s habeas petition and ordered DOC to file documentation by Feb. 28 showing that Cox’s guilty finding was vacated and his related credit time was restored.

Justices of the Indiana Supreme Court decided in a 3-2 vote last week to let stand a ruling that an insurance company owes no duty to victims of a truck crash in which the driver knowingly operated the vehicle with faulty brakes.

Justices Steven David and Christopher Goff were in the minority of justices who would have granted transfer and heard the appeal in ONB Insurance Group, Inc., et al. v. Amy Jones, et al., 40A01-1707-CT-1513.

In July, the Indiana Court of Appeals reversed the Jennings Circuit Court’s denial of summary judgment for Old National Insurance and its representative, Joseph E. Kenworthy, in a lawsuit brought by the estates of victims of a truck crash in 2011.

The case arose after a driver for Old National’s insured, C&K Transport Inc., stopped at a weigh station in Ohio and discovered the truck’s brakes were not working. The driver called C&K owner William Hackney, who told the driver to drive the truck to Mitchell, Indiana, on a route that did not have weigh stations. The driver refused, and Hackney drove the truck on the route himself without first making any repairs.

That night, Hackney’s truck struck a vehicle driven by Edward Megel on U.S. 50 in which Megel’s wife, JoAnn, and granddaughter, Darcy, were passengers. Edward and Darcy died in the crash and JoAnn died from injuries sustained in the crash less than two weeks later.

The Court of Appeals reversed, applying the foreseeability test from Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016).

Justices also split 3-2 on three other cases denied transfer last week. They were:

• Marques D. Trice v. State of Indiana, 18A-CR-697. Justices let stand an Indiana Court of Appeals ruling from November reversing a Marion Superior Court order to destroy Marques Trice’s handgun after he was convicted of Class A misdemeanor carrying a handgun without a license. The COA held that Trice’s carrying the weapon with an expired carry permit did not amount to “misuse” of a firearm. Chief Justice Loretta Rush and Goff would have heard this case.

• Indiana Behavioral Health and Human Services Licensing Board v. Jenna Thomas, 79A02-1712-PL-2904. The Indiana Court of Appeals in August reversed the Tippecanoe Circuit Court, which voided the licensing board’s suspension of Jenna Thomas’ clinical social worker license because the board did not act within 90 days of an administrative hearing. The COA held the 90-day period in the Administrative Orders and Procedures Act was “directory rather than mandatory,” and that the trial court abused its discretion in vacating the board’s suspension order. Justices David and Geoffrey Slaughter were in the minority voting to hear Thomas’ appeal in this case.

• Whitesell Precision Components, Inc. v. Autoform Tool & Manufacturing, LLC, 18A-PL-848. In a business dispute, the Indiana Court of Appeals in August affirmed an injunction entered in Marion Superior Court regarding the cost and supply of parts Whitesell supplied to Autoform to be used in a manufacturing process. Rush and David would have granted transfer. Justices heard Whitesell on petition to transfer last week.

Justices denied transfer in 19 cases last week and granted one that was decided Wednesday — Q.D.-A., Inc. v. Indiana Department of Workforce Development, 19S-EX-43 — a case regarding the classification of “drive-away drivers” as independent contractors.

Weekly Supreme Court transfer lists may be viewed here.