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Sims v. Ivens9/16/2002
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Mario L. Sims, Sr. brings this pro se appeal from the trial court's order dismissing his medical malpractice complaint. Sims raises three issues for review, one of which we find dispositive: whether the trial court erred when it denied Sims' motion for appointment of counsel.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
In February 1998, Sims filed a pro se complaint alleging medical malpractice against doctors and nurses (collectively "the Defendants") at Plainfield Correctional Facility, and the trial court granted Sims leave to proceed in forma pauperis. At a telephonic pre-trial conference in July 1998, the court scheduled a jury trial for January 25, 1999.
In early January 1999, the Defendants filed a motion asking the court to clarify whether the jury trial would go forward given that Sims was incarcerated at Westville Correctional Facility and the court lacked authority to order his attendance for trial. On January 7, 1999, the court vacated the jury trial and allotted Sims thirty days to show cause how he intended to appear at trial when the court lacks authority to order that he be transported for a civil jury trial. In response, Sims moved the court to hold the trial by telephonic conference or, in the alternative, to postpone the trial until his release from prison. The Defendants also requested that the trial be postponed until Sims' release. In February 1999, the trial court determined that "it is not reasonable to leave this matter pending for eight (8) years waiting for plaintiff's release from custody." Instead, the court issued an order staying all proceedings in the case until February 10, 2000 and encouraged the parties to engage in settlement negotiations in the interim.
In March 2000, the court ordered Sims to show cause, on or before May 8, 2000, why the case should not be dismissed for failure to prosecute under Indiana Trial Rule 41(E). In April, Sims filed his return to the court's show cause order and requested that the court appoint him counsel. On May 8, 2000, without ruling on Sims' request for appointment of counsel, the trial court dismissed the case for failure to prosecute. Sims appealed the order of dismissal to this court. On June 20, 2001, we issued a memorandum decision reversing the trial court and held that Trial Rule 41(E) requires a hearing prior to dismissal. Sims v. Ivens, et al., No. 32A01-0007-CV-222 (Ind. Ct. App. June 20, 2001).
On June 21, 2001, the trial court scheduled a hearing for July 16, 2001, to determine whether Sims' case should be dismissed under Trial Rule 41(E). Thereafter, on July 2, 2001, Sims filed four motions: (1) a motion for appointment of counsel; (2) a motion for change of venue from both the county and the judge; (3) a motion requesting that he be allowed to appear at all hearings by telephone; and (4) a motion for continuance of the Trial Rule 41(E) hearing. On July 16, the trial court granted Sims' motion for change of venue and, without ruling on any of the other three pending motions, indicated that any pending motions were to be ruled upon by the new judge. The case was temporarily transferred to LaPorte County, but was subsequently returned to the Hendricks Superior Court. Hendricks Superior Court regained jurisdiction over the case on August 6, 2001. That same day, the trial court denied Sims' motion to appear for the Trial Rule 41(E) hearing by telephone and rescheduled that hearing for October 1, 2001. At that point, the court had still not ruled on Sims' pending motion for change of judge and request that he be appointed counsel
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