Filed: Oct. 07, 2015
Latest Update: Oct. 07, 2015
Summary: 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. MEMORANDUM DECISION NAJAM , Judge . Statement of the Case 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 whe
Summary: 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. MEMORANDUM DECISION NAJAM , Judge . Statement of the Case 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..
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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.
MEMORANDUM DECISION
NAJAM, Judge.
Statement of the Case
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
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.
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 accept responsibility in writing for the sex offenses for which he was convicted by admitting guilt for those offenses. Id.
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
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 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.
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.
Discussion and Decision
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 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.
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 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.
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 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
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 N.E.2d at 5. The trial court did not err when it denied Andert's motion for a preliminary injunction.
Affirmed.
Kirsch, J., and Barnes, J., concur.
