Opinions July 6, 2023

Opinions July 6, 2023
The following 7^th Circuit Court of Appeals opinions were posted after IL deadline Wednesday:
Martin Jaranowski v. Indiana Harbor Belt Railroad Company
22-2437
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge Andrew Rodovich.
Civil. Reverses the grant of summary judgment to the Indiana Harbor Belt Railroad Company on Martin Jaranowski’s claims for ordinary negligence and negligence per se. Finds Jaranowski presented sufficient evidence to create a genuine dispute as to whether the railroad at least should have known that a switch was defective before he was injured. Remands for further proceedings.

Zailey Hess v. Jamie Garcia, Officer, and John Doughty, Chief
22-1550
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Chief Judge Jon DeGuilio.
Civil. Affirms the dismissal of the 42 U.S.C. § 1983 claim against Hammond Police Chief John Doughty but reverses the dismissal of the claim against officer Jamie Garcia. Finds Zailey Hess’ complaint plausibly alleges claims under the 14^th Amendment equal protection clause, the Fourth Amendment and the 14^th amendment due process clause as to Garcia, but not as to Doughty. Remands for further proceedings. Judge Frank Easterbrook concurs in the judgment with separate opinion.

Thursday opinions
Court of Appeals of Indiana
Red Lobster Restaurants LLC, and Progressive Flooring Services, Inc., and Dwayne Featheroff v. Abigail Fricke
22A-CT-2221
Civil tort. Affirms the Marion Superior Court’s denial of Red Lobster Restaurants LLC’s motion for summary judgment in a personal injury action filed against it by Abigail Fricke.  Finds the trial court did not abuse its discretion when it denied Red Lobster’s motion to strike Fricke’s affidavit. Also finds the trial court did not err when it denied Red Lobster’s motion for summary judgment because Fricke had standing to bring suit in her own name, and a genuine issue of material fact exists regarding whether Fricke intentionally concealed her personal injury lawsuit from the bankruptcy court.

Harry Spicer v. State of Indiana (mem. dec.)
22A-PC-1694
Post-conviction. Affirms the denial of Harry Spicer’s petition for post-conviction relief. Finds Spicer has not demonstrated ineffective assistance of counsel. Also finds a belated, unsubstantiated allegation that an appointed attorney did not meet a standard outlined by the Indiana Public Defender Commission does not merit reversal, particularly absent demonstrated ineffective assistance of counsel.

James Eric Webster v. State of Indiana (mem. dec.)
22A-CR-2735
Criminal. Affirms the Vanderburgh Superior Court’s denial of James Webster’s motion to withdraw his guilty plea. Finds Webster waived appellate review by failing to tender to the trial court a “written, verified motion that presented specific facts to support the withdrawal of the guilty plea.”

Berline Mae Willis v. Department of Business and Neighborhood Services, City of Indianapolis, Indiana (mem. dec.)
22A-PL-2800
Civil plenary. Affirms the Marion Superior Court’s denial of Berline Mae Willis’ petition for judicial review of an administrative decision issued by the Department of Business and Neighborhood Services for the Consolidated City of Indianapolis. Finds the trial court did not use the incorrect statute when reviewing Willis’ petition. Also finds that if the submission of a checklist after a hearing was error, the error was harmless because there existed other properly admitted evidence to support the decision. Finally, finds the evidence before the hearing authority supported its decision because Willis failed to prove she was prejudiced by the decision.

Andre Deon Johnson v. State of Indiana (mem. dec.)
22A-CR-2811
Criminal. Affirms Andre Deon Johnson’s felony murder conviction. Finds the evidence is sufficient to support the conviction.

Stephon Macon v. Tiffany Davis (mem. dec.)
23A-JP-313
Juvenile paternity. Affirms the Marion Circuit Court’s order on modification of custody and parenting time. Finds Stephon Macon failed to show prima facie error regarding the trial court’s finding that there has not been a substantial change in circumstances warranting a modification of custody.

N.R. v. State of Indiana (mem. dec.)
23A-JS-353
Juvenile status. Affirms the Switzerland Circuit Court’s revocation of disposition and order placing N.R. in a residential facility. Finds N.R. has failed to show that the court abused its discretion by placing her at the Josiah Residential Treatment Facility.

In the Matter of: H.S. v. State of Indiana (mem. dec.)
22A-JV-1370
Juvenile. Affirms H.S.’s adjudication for what would be Level 6 felony resisting law enforcement, Class A misdemeanor dangerous possession of a firearm and Class A misdemeanor carrying a handgun without a license if committed by an adult. Finds the state presented sufficient evidence beyond a reasonable doubt to support H.S.’s Level 6 felony resisting law enforcement adjudication. Judge Rudolph Pyle dissents with separate opinion.