MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Oct 07 2015, 9:49 am
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                                         ATTORNEYS FOR APPELLEES
Brian Andert                                             Gregory F. Zoeller
New Castle, Indiana                                      Attorney General of Indiana

                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Andert,                                            October 7, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         33A01-1503-MI-90
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana and Bruce                               The Honorable Kit C. Dean Crane
Lemmon, in his official capacity                         Trial Court Cause No.
as Commissioner of the Indiana                           33C02-1410-MI-107
Department of Correction,
Appellees-Respondents




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015   Page 1 of 9
                                        Statement of the Case
[1]   Brian Andert appeals the trial court’s denial of his verified motion for

      preliminary injunction. He presents a single issue for our review, namely,

      whether the trial court abused its discretion when it denied his motion. We

      affirm.


                                  Facts and Procedural History
[2]   On September 7, 2011, Andert was convicted of three counts of Sexual

      Misconduct with a Minor, as Class B felonies. We affirmed his convictions on

      direct appeal. Andert v. State, 968 N.E.2d 345 (Ind. Ct. App. 2012) (“Andert I”),

      trans. denied. Andert is currently serving a ten year sentence for those

      convictions.


[3]   As a person convicted of a sex-related offense, Andert is required to participate

      in the Indiana Sex Offender Management and Monitoring Program

      (“INSOMM”). INSOMM is a sex offender treatment program administered by

      the Indiana Department of Correction (“DOC”), and it is designed to reduce

      the recidivism of offenders convicted of sex crimes. Offenders are targeted for

      the INSOMM program based upon their conviction of certain specified sex-

      related offenses. See Bleeke v. Lemmon, 6 N.E.2d 907, 923 (Ind. 2014)

      (describing the INSOMM program in detail). Offenders must consent to

      participation in the program or else be charged with a violation of the DOC’s

      disciplinary code. Id. at 924. Each participant in the program is required to




      Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015   Page 2 of 9
      accept responsibility in writing for the sex offenses for which he was convicted

      by admitting guilt for those offenses. Id.


[4]   Andert pleaded not guilty to the crimes for which he was convicted and

      continues to maintain his innocence to this date. He is in the process of filing a

      petition for post-conviction relief, having requested copies of the transcripts and

      appendices from his direct appeal. Andert has not admitted to guilt as part of

      the INSOMM program, and there is no indication in the record whether Andert

      has been charged with a violation of the DOC disciplinary code or otherwise

      punished by DOC for his refusal to admit guilt.1


[5]   On January 6, 2015, Andert filed a verified motion for a preliminary injunction

      to “exempt” him from the INSOMM program.2 In that motion, Andert

      alleged3 that the INSOMM requirement that he admit his guilt is a violation of




      1
        Although Andert states in his appeal brief that he was “written up for maintaining his innocence” in the
      program, Appellant’s Br. at 8-9, no such factual assertion was made in his verified motion for temporary
      injunction, and there is no evidence in the record to support that assertion.
      2
         Andert filed a verified motion for preliminary injunction without first filing a complaint. Indiana courts
      have not addressed whether such a motion can proceed before a complaint has been filed. However, the trial
      court chose to decide the motion before a complaint was filed, and, while no Indiana court has addressed this
      issue, there is ample authority from other jurisdictions to support the trial court’s action here. See, e.g.,
      Studebaker Corp. v. Gittlin, 360 F.2d 692, 694 (2nd Cir. 1966) (holding that, although it would have been better
      to file a complaint along with motion and affidavit, court could treat affidavit as complaint); Ruscitto v. Merrill
      Lynch, Pierce, Fenner & Smith, Inc., 777 F. Supp. 1349, 1352 (N.D. Tex. 1991) (holding exigent circumstances
      allow injunction to precede filing of suit), aff’d, 948 F.2d 1286 (5th Cir. 1991); Nat’l Org. for Reform of
      Marijuana Laws v. Mullen, 608 F. Supp. 945, 950 n.5 (N.D. Cal. 1985) (“Owing to the peculiar function of the
      preliminary injunction, it is not necessary that the pleadings be perfected, or even that a complaint be filed,
      before the order issues.”); Operation Save America v. City of Jackson, 275 P.3d 438, 455 (Wyo. 2012) (holding
      that, “while the better practice would be to have a complaint on file before a motion or petition for temporary
      restraining order is submitted, the lack of a complaint does not deprive the . . . court of jurisdiction to act”).
      3
        Indiana Trial Rule 65(B) provides that facts justifying the issuance of a preliminary injunction may be
      shown through affidavit or verified complaint. See, e.g., Reese v. Panhandle Eastern Pipe Line Co., 377 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015                   Page 3 of 9
      the Fifth Amendment’s privilege against self-incrimination.4 Specifically,

      Andert noted that he has maintained his innocence throughout his criminal

      case and is in the process of trying to obtain post-conviction relief from his

      criminal convictions. He alleged that any admission to guilt of the crimes for

      which he was convicted will be used against him in violation of the Fifth

      Amendment. He also alleged that inmates who refuse to admit guilt in the

      INSOMM program can have their credit class lowered and, thus, lose credit

      time.


[6]   Andert therefore requested a preliminary injunction exempting him5 from the

      INSOMM program until his post-conviction relief action is finalized. Andert

      did not request a hearing. The trial court denied Andert’s motion, finding that

      he had failed to meet any of the prerequisites for obtaining a preliminary

      injunction. Andert now appeals.




      640, 644-45 (Ind. Ct. App. 1978) (noting a court may grant a preliminary injunction upon the affidavit [or
      verified pleading] of the plaintiff alone).
      4
        The Fifth Amendment’s Self-Incrimination Clause provides that no person “shall be compelled in any
      criminal case to be a witness against himself.” U.S. Const. amend. V.
      5
        Although Andert states in this appeal that the INSOMM program denied his request for an exemption
      from the program pending his post-conviction relief action, he made no such claim in his motion for a
      preliminary injunction.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015              Page 4 of 9
                                     Discussion and Decision
[7]   Andert alleges that the trial court abused its discretion when it denied his

      motion for a preliminary injunction. Our standard of review of a grant or

      denial of a preliminary injunction is well settled:

              The issuance of a preliminary injunction is within the sound
              discretion of the trial court, and the scope of appellate review is
              limited to deciding whether there has been a clear abuse of
              discretion. Reilly v. Daly, 666 N.E.2d 439, 443 (Ind. Ct. App.
              1996), trans. denied. When determining whether or not to grant a
              preliminary injunction, the trial court is required to make special
              findings of fact and state its conclusions thereon. Ind. Trial Rule
              52(A). When findings and conclusions are made, the reviewing
              court must determine if the trial court’s findings support the
              judgment. Norlund v. Faust, 675 N.E.2d 1142, 1149 (Ind. Ct.
              App. 1997), trans. denied. The trial court’s judgment will be
              reversed only when clearly erroneous. Id. Findings of fact are
              clearly erroneous when the record lacks evidence or reasonable
              inferences from the evidence to support them. Id. We consider
              the evidence only in the light most favorable to the judgment and
              construe findings together liberally in favor of the judgment. Id.


              The trial court’s discretion to grant or deny preliminary
              injunctive relief is measured by several factors: 1) whether the
              plaintiff’s remedies at law are inadequate, thus causing
              irreparable harm pending the resolution of the substantive action
              if the injunction does not issue; 2) whether the plaintiff has
              demonstrated at least a reasonable likelihood of success at trial by
              establishing a prima facie case; 3) whether the threatened injury
              to the plaintiff outweighs the threatened harm the grant of the
              injunction may inflict on the defendant; and 4) whether, by the
              grant of the preliminary injunction, the public interest would be
              disserved. Reilly, 666 N.E.2d at 443. In order to grant a
              preliminary injunction, the moving party has the burden of

      Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015   Page 5 of 9
               showing, by a preponderance of the evidence, that the facts and
               circumstances entitle him to injunctive relief. Id. The power to
               issue a preliminary injunction should be used sparingly, and such
               relief should not be granted except in rare instances in which the
               law and facts are clearly within the moving party’s favor. Id.”


      Barlow v. Sipes, 744 N.E.2d 1, 5 (Ind. Ct. App. 2001), trans. denied.


[8]   Here, Andert claims the trial court abused its discretion when it found that he

      had failed to show that he met any of the prerequisites for a preliminary

      injunction.6 We cannot agree. Andert did not support his motion for

      preliminary injunction with evidence and argument sufficient to support any of

      the four factors set out in Barlow.7 For example, he provided no evidence that

      he is required to participate in the INSOMM program while his post-conviction

      relief action is pending.8 Although he claims on appeal that his request for an




      6
        Indiana Trial Rules 52(A) and 65(D) require that a trial court make special findings without request in a
      decision granting or denying a motion for preliminary injunction. Here, the trial court order contained barely
      any factual findings and, instead, consisted mostly of legal conclusions that Andert did not meet the four
      requirements for obtaining a preliminary injunction. Appellant’s App. at 36-37. However, “[w]hen it makes
      special findings of fact, the trial court need not recite the evidence in detail, but must only make findings as to
      those ultimate facts necessary to support the judgment.” Riehle v. Moore, 601 N.E.2d 365, 369 (Ind. Ct. App.
      1992), trans. denied. Although, as noted below, Andert provided the trial court with very little evidence from
      which it could make factual findings, the trial court did find that the INSOMM program did not present any
      injury to Andert, that Andert had failed to show irreparable harm, and that Andert was unlikely to succeed
      on the merits due to the holding in Bleeke, 6 N.E.3d 907. These factual findings are not so sparse as to
      preclude our review. Riehle, 601 N.E.2d at 369.
      7
        We note that Andert filed his motion for a preliminary injunction pro se, which most likely explains why he
      did not seem to understand what he must prove to obtain a preliminary injunction. However, it is well-
      established in Indiana that “[p]ro se litigants without legal training are held to the same standard as trained
      counsel and are required to follow procedural rules.” Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.
      2004), trans. denied.
      8
        See Clark v. Buss, No. 1:09-cv-00308-JMS-DML, 2010 WL 3927725, *1, *4 (S.D. Ind. 2010) (noting it was
      an uncontested fact that the INSOMM program allowed the inmate to defer participation if he could show he

      Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015                   Page 6 of 9
      exemption from the program was denied, he made no such claim to the trial

      court in his preliminary injunction motion. Moreover, he provided no evidence

      that his refusal to plead guilty to the crimes for which he is seeking post-

      conviction relief has caused him any harm. On appeal, he claims that he was

      “written up for maintaining his innocence” in the INSOMM program but,

      again, he made no such claim before the trial court below. Appellant Br. at 8-9.

      Moreover, even in his brief on appeal he provides no evidence of who “wrote

      him up,” what the “write up” said, or what the consequences were of the “write

      up.” Id. There simply was no evidence before the trial court of any harm to

      Andert, much less irreparable harm for which there is no adequate remedy at

      law.


[9]   Andert attempted to show irreparable harm when he alleged in his motion for

      the preliminary injunction that sex-offender inmates who refuse to admit to

      guilt as part of the INSOMM program will have their credit class lowered, such

      that they will earn less credit time. However, as the trial court correctly noted,

      our supreme court recently held that when the State presents an inmate with a

      choice to participate in a DOC program that may lead to a reduced sentence,

      such as through credit time or a release on parole, that opportunity is a

      “constitutionally permissible choice” to participate that does not compel self-

      incrimination and, therefore, does not violate the Fifth Amendment. Bleeke, 6




      had a direct appeal or post-conviction relief action pending, and holding that, given that uncontested fact, the
      inmate’s Fifth Amendment challenge to the INSOMM program was not ripe for review).

      Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015                 Page 7 of 9
       N.E. 3rd 934-35. Therefore, Andert has not shown that a potential loss of

       credit time amounts to irreparable harm or supports his claim on the merits.9


[10]   If a party moving for a preliminary injunction fails to prove any one or more of

       the four prerequisites for a preliminary injunction, a trial court cannot grant his

       motion. See, e.g., Curley v. Lake Cnty. Bd. of Elections and Registration, 896 N.E.2d

       24, 33 (Ind. Ct. App. 2008) (noting that, if the party seeking preliminary

       injunction cannot prove each of the four requirements, a grant of an injunction

       to that party would be an abuse of discretion), trans. denied. Andert has not

       shown that: his remedies at law are inadequate; he has a reasonable likelihood

       of success at trial; the threatened injury outweighs the threatened harm the

       grant of the injunction may inflict on the defendant; or, by the grant of the

       preliminary injunction, the public interest would be disserved. See Barlow, 744




       9
         Although being incentivized to admit guilt by a reduction in one’s release date does not constitute
       compulsion according to Bleeke, 6 N.E.3d 907, neither Bleeke nor any other Indiana case has addressed
       whether being required to admit guilt as part of a DOC program while a post-conviction relief action is
       pending is prohibited under the Fifth Amendment. See Gilfillen v. State, 582 N.E.2d 821, 824 (Ind. 1991)
       (holding trial courts may not insist on admission of guilt as condition of probation, which is a function of our
       judiciary); Moore v. State, 909 N.E.2d 1053, 1058 (Ind. Ct. App. 2009) (refusing to address the
       constitutionality of INSOMM as applied to an inmate preparing a post-conviction relief petition when the
       case could be decided on non-constitutional grounds). When a post-conviction relief action is pending, there
       is, of course, the possibility of a reversal of the conviction and a remand for a new trial; thus, there is a
       possibility that, ultimately, the petitioner could be found innocent after a retrial. Accordingly, the
       consequences of admitting guilt in the INSOMM program could place the petitioner in jeopardy on retrial if
       the State sought to admit those statements at that time. See, e.g., Reinhardt v. Kopcow, 66 F.Supp.3d 1348,
       1356-57 (D. Colo. 2014) (holding inmates with direct appeals pending could not, consistent with Fifth
       Amendment, be required as part of a sex-offender treatment program to admit to guilt for the crimes they
       were still appealing, since this could lead to a much more significant penalty than being placed on restricted
       privileges or losing good time credits).
       However, this is not the case to decide this issue of first impression. As noted above, Andert has provided
       insufficient evidence that he is required to participate in the INSOMM program pending finalization of his
       post-conviction relief action. And he does not suggest here that he would not have an objection to the
       admissibility of the INSOMM statements sustained at a later retrial.

       Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015                 Page 8 of 9
       N.E.2d at 5. The trial court did not err when it denied Andert’s motion for a

       preliminary injunction.


[11]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1503-MI-90 | October 7, 2015   Page 9 of 9
