      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                        Apr 14 2015, 9:18 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEY FOR APPELLEE
      Boris Mudd                                                J. Spencer Feighner
      Fort Wayne, Indiana                                       Haller & Colvin, P.C.
                                                                Fort Wayne, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Boris Mudd,                                               April 14, 2015

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                02A05-1410-CT-470
              v.                                                Appeal from the Allen Superior
                                                                Court.
                                                                The Honorable Stanley A. Levine,
      Jason Johnson,                                            Judge.
      Appellee-Defendant.                                       Cause No. 02D01-1307-CT-296




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Boris Mudd appeals from the trial court’s grant of summary judgment to Jason

      Johnson. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015      Page 1 of 9
                                                     Issue
[2]   Mudd raises two issues, which we consolidate and restate as: whether the trial

      court erred in granting summary judgment to Johnson.


                               Facts and Procedural History
[3]   On March 12, 2011, the State charged Mudd with operating a vehicle while

      intoxicated with a prior conviction, a Class D felony, and possession of

      marijuana, a Class D felony. On March 17, 2011, Allen Circuit Court Judge

      Thomas Felts issued an order releasing Mudd on personal recognizance, subject

      to specific conditions. Among other conditions, Judge Felts ordered Mudd to

      report to the Allen County Adult Probation Department (the Department),

      abide by the Department’s policies for attending meetings with probation

      officers, refrain from the use of alcohol or illegal drugs, submit to and pass

      chemical tests as required by the Department, and comply with the

      Department’s alcohol abuse deterrent program.


[4]   Mudd signed an acknowledgement clause at the bottom of Judge Felts’ order,

      indicating that he understood the terms of his conditional pretrial release and

      would comply with them. The acknowledgement clause specifically stated that

      Mudd understood he was required to comply with the requirements of the

      Department’s alcohol abuse deterrent program.


[5]   Allen County Community Corrections (Community Corrections) monitored

      Mudd’s participation in the alcohol abuse deterrent program. Johnson, who

      was a probation officer, received notices from Community Corrections

      Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015   Page 2 of 9
      indicating that Mudd had violated the requirements of the program. On August

      3, 2011, Johnson filed with the circuit court a notice of violation of conditional

      release and a motion for revocation of conditional release. Johnson’s notice

      was based solely on the documents he had received from Community

      Corrections.


[6]   The circuit court revoked Mudd’s conditional release and directed the trial

      court clerk to issue a warrant for Mudd’s arrest. Mudd was arrested and

      incarcerated. At a subsequent hearing, Mudd “stipulate[d] and admit[ted] the

      allegations” set forth in Johnson’s notice of violation. Appellee’s App. p. 6.

      The circuit court ordered Mudd released from custody and directed him to

      comply with the terms of his pretrial release.


[7]   Next, Johnson received additional notices from Community Corrections

      indicating that Mudd had again violated the program’s requirements. On

      December 15, 2011, Johnson filed with the circuit court a second notice of

      violation of conditional release and a motion for revocation of conditional

      release. Johnson’s notice was once again based solely on the documents he had

      received from Community Corrections.


[8]   The circuit court revoked Mudd’s conditional release and directed the trial

      court clerk to issue a warrant for Mudd’s arrest. It appears that Mudd remained

      incarcerated for the remainder of the case.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015   Page 3 of 9
[9]    On February 28, 2012, a jury determined that Mudd was not guilty of operating

       a vehicle while intoxicated with a prior conviction. The State dismissed the

       charge of possession of marijuana, ending the criminal case.


[10]   On July 9, 2013, Mudd began the current case by filing a civil complaint with

       the Allen Superior Court. Mudd named Community Corrections, Allen

       County Sheriff Ken Fries, Judge Felts, the Department, and Johnson as

       defendants. Mudd cited 42 United States Code section 1983, and he claimed

       the defendants violated his right to due process under the Fourteenth

       Amendment to the United States Constitution and his right to be free from

       unlawful seizures under the Fourth Amendment to the United States

       Constitution.


[11]   Judge Felts, Community Corrections, and the Department filed motions to

       dismiss. After a hearing, the trial court granted the motions and dismissed

       those defendants with prejudice.


[12]   Next, Mudd filed a motion for judgment on the pleadings, and Sheriff Fries and

       Johnson filed a motion for summary judgment. On August 11, 2014, the trial

       court granted summary judgment in favor of Sheriff Fries but took the

       remaining motions under advisement. On September 5, 2014, the court issued

       an order granting summary judgment to Johnson and denying Mudd’s motion

       for judgment on the pleadings. This appeal followed.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015   Page 4 of 9
                                    Discussion and Decision
[13]   Mudd first claims that the circuit court in his criminal case lacked subject

       matter jurisdiction to require him to participate in the alcohol abuse deterrent

       program. This claim is barred by the doctrine of issue preclusion, also known

       as collateral estoppel. Issue preclusion bars the subsequent litigation of a fact or

       issue that was necessarily adjudicated in a former lawsuit if the same fact or

       issue is presented in the subsequent lawsuit. Angelopoulos v. Angelopoulos, 2

       N.E.3d 688, 696 (Ind. Ct. App. 2013), trans. denied. In determining whether

       issue preclusion is applicable, a court must engage in a two-part analysis: (1)

       whether the party in the prior action had a full and fair opportunity to litigate

       the issue and (2) whether it is otherwise unfair to apply issue preclusion given

       the facts of the particular case. Id.


[14]   Here, Mudd’s participation in the alcohol abuse deterrent program and his

       compliance with its requirements were litigated in his criminal case, and Mudd

       had a full and fair opportunity to contest the trial court’s pretrial release order

       and subsequent orders determining that he had violated the terms of his release.

       Furthermore, it would not be unfair to apply issue preclusion here because

       Mudd agreed to the terms of his conditional pretrial release and conceded

       during a hearing that he had violated the terms of his release. For these

       reasons, we decline to consider the question of whether the circuit court erred

       by requiring Mudd to participate in the alcohol abuse deterrent program. See id.

       at 697 (holding that the transfer of ownership of an asset was explicitly decided

       in a prior case and would not be addressed).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015   Page 5 of 9
[15]   Next, Mudd appears to raise a claim against Sheriff Fries in addition to

       Johnson. In his Notice of Appeal, Mudd referenced only the trial court’s order

       granting summary judgment to Johnson. Furthermore, his arguments on

       appeal, to the extent that they apply to Sheriff Fries, lack cogency. For that

       reason, he has waived for appellate review any challenge to the trial court’s
                                                                     1
       grant of summary judgment to Sheriff Fries. See Reed v. Reid, 980 N.E.2d 277,

       297 (Ind. 2012) (issue waived for failure to present developed arguments). We

       limit our review to the trial court’s grant of summary judgment to Johnson.


[16]   When reviewing a grant of summary judgment, our standard of review is the

       same as that of the trial court. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904

       N.E.2d 1267, 1269 (Ind. 2009). Considering only those facts that the parties

       designated to the trial court, we must determine whether there is a genuine

       issue as to any material fact and whether the moving party is entitled to a

       judgment as a matter of law. Id. at 1269-70. We construe all factual inferences

       in the nonmoving party’s favor and resolve all doubts as to the existence of a

       material issue against the moving party. Id. at 1270. The moving party bears

       the burden of making a prima facie showing that there are no genuine issues of

       material fact and that the movant is entitled to judgment as a matter of law; and

       once the movant satisfies the burden, the burden then shifts to the nonmoving




       1
        Johnson argues that Mudd has defaulted his claim against Sheriff Fries because he did not timely seek
       appellate review of the trial court’s grant of summary judgment to Sheriff Fries. It is unnecessary for us to
       address this argument.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015                 Page 6 of 9
       party to designate and produce evidence of facts showing the existence of a

       genuine issue of material fact. Id.


[17]   42 United States Code section 1983, the statute that is the basis for Mudd’s

       lawsuit, provides in relevant part:


               Every person who, under color of any statute, ordinance,
               regulation, custom, or usage, of any State or Territory or the
               District of Columbia, subjects, or causes to be subjected, any
               citizen of the United States or other person within the jurisdiction
               thereof to the deprivation of any rights, privileges, or immunities
               secured by the Constitution and laws, shall be liable to the party
               injured in an action at law, suit in equity, or other proper
               proceeding for redress, except that in any action brought against
               a judicial officer for an act or omission taken in such officer’s
               judicial capacity, injunctive relief shall not be granted unless a
               declaratory decree was violated or declaratory relief was
               unavailable.
[18]   Section 1983 is not itself a source of substantive rights, but merely provides a

       method for vindicating federal rights elsewhere conferred. Albright v. Oliver, 510

       U.S. 266, 271, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994). In this case, Mudd

       claims through Section 1983 that Johnson violated his Fourteenth Amendment

       right to due process and his Fourth Amendment protection against illegal

       search and seizure. In essence, Mudd’s claim against Johnson is as follows.

       Mudd argues he should not have been required to participate in the alcohol

       abuse deterrent program as a condition of pretrial release because he did not

       have a prior eligible conviction. He further argues Johnson had a duty to

       investigate whether Mudd was subject to the program. He concludes that

       Johnson violated his right to due process and caused him to be illegally seized

       Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015   Page 7 of 9
       on baseless arrest warrants when Johnson failed to investigate Mudd’s

       eligibility and instead filed notices of violation with the circuit court.


[19]   Mudd’s claim against Johnson is best resolved through the doctrine of qualified

       immunity. That doctrine protects government officials from liability for civil

       damages insofar as their conduct does not violate clearly established statutory

       or constitutional rights of which a reasonable person would have known.

       Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).

       Qualified immunity balances two important interests—the need to hold public

       officials accountable when they exercise power irresponsibly and the need to

       shield officials from harassment, distraction, and liability when they perform

       their duties reasonably. Id.


[20]   Determining whether the doctrine of qualified immunity applies to a given case

       involves consideration of two questions. One question is whether the facts as

       alleged by a plaintiff make out a violation of a constitutional right. Id. at 232.

       The other question is whether the right at issue was clearly established at the

       time of the defendant’s alleged misconduct. Id. Courts may exercise discretion

       in deciding which question to address first. Hernandez v. Sheahan, 711 F.3d 816,

       817 (7th Cir. 2013).


[21]   We address the question of whether the right was clearly established at the time

       of the alleged misconduct. The right that an official is alleged to have violated

       must have been clearly established in a particularized and relevant sense, so that

       a reasonable official would understand that what he or she is doing violates that


       Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015   Page 8 of 9
       right. Mordi v. Ziegler, 770 F.3d 1161, 1164 (7th Cir. 2014). The crucial inquiry

       is whether the official acted reasonably in the particular circumstances that he

       or she faced. Id.


[22]   Here, it is undisputed that Johnson’s role in Mudd’s case was limited to

       receiving reports of Mudd’s alleged misconduct from Community Corrections,

       preparing notices of violation, and filing the notices with the trial court. Even if

       Mudd should not have been required to participate in the alcohol abuse

       deterrent program as a condition of pretrial release, he cites to no authority

       demonstrating that Johnson should have been aware that he was obligated to

       investigate whether Mudd should have been placed in the program. To the

       contrary, Johnson was entitled to rely upon the circuit court’s order of

       conditional pretrial release. See Henry v. Farmer City State Bank, 808 F.2d 1228,

       1238-39 (7th Cir. 1986) (sheriff entitled to immunity from Section 1983 claim

       because sheriff relied on an official court order to enforce a prior judgment).

       We cannot conclude that the specific alleged rights at issue were clearly

       established at the time of Johnson’s alleged misconduct, and as a result Johnson

       is entitled to qualified immunity from Mudd’s Section 1983 claim.


                                                 Conclusion
[23]   For the foregoing reasons, we affirm the judgment of the trial court.


[24]   Affirmed.


[25]   Bradford, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015   Page 9 of 9
