Court of Appeals of Indiana | Memorandum Decision 02A05-1410-CT-470 | April 14, 2015 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

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

Boris Mudd

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

J. Spencer Feighner

Haller & Colvin, P.C.

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Boris Mudd,

Appellant-Plaintiff,

v.

Jason Johnson,

Appellee-Defendant.

April 14, 2015

Court of Appeals Case No.

02A05-1410-CT-470

Appeal from the Allen Superior 

Court.

The Honorable Stanley A. Levine,

Judge.

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.
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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 
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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.
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[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.
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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).
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[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 

grant of summary judgment to Sheriff Fries.1See 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.
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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 
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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 
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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.