Molly A. Melton v. Indiana Athletic Trainers Board, David Craig, A.T., in his official and individual capacity, Larry Leverenz, A.T., in his official and individual capacity

FILED
Apr 27 2016, 8:05 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Kevin W. Betz Gregory F. Zoeller
Courtney E. Endwright Attorney General of Indiana
Betz + Blevins Frances Barrow
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Molly A. Melton, April 27, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A05-1508-CT-1123
v. Appeal from the Marion Superior
Court
Indiana Athletic Trainers Board, The Honorable Gary L. Miller,
David Craig, A.T., in his official Judge
and individual capacity, Larry Trial Court Cause No.
Leverenz, A.T., in his official 49D03-1403-CT-6878
and individual capacity, Scott
Lawrance, A.T. in his official
and individual capacity, Jennifer
Vansickle, in her official and
individual capacity, John Miller,
M.D., in his official and
individual capacity, and John
Knote, M.D., in his official and
individual capacity, and the
Indiana Professional Licensing
Agency,

Court of Appeals of Indiana | Opinion 49A05-1508-CT-1123 | April 27, 2016 Page 1 of 19
 Appellees-Defendants.

Brown, Judge.

[1] Molly A. Melton appeals orders of the trial court granting a motion to dismiss

and a motion for judgment on the pleadings in favor of the Indiana Athletic

Trainers Board (the “Board”), David Craig, A.T., Larry Leverenz, A.T., Scott

Lawrance, A.T., Jennifer VanSickle, John Miller, M.D., John Knote, M.D.,

each in their individual and official capacities, and the Indiana Professional

Licensing Agency (the “IPLA”, and collectively with the Board and the other

named parties, the “Appellees”). The motion was filed following the Board’s

decision finding Melton in default and ordering that her Indiana athletic

training license be indefinitely suspended for a period of at least seven years.

Melton raises a number of issues, one of which we find dispositive and revise

and restate as whether the court erred in dismissing Melton’s complaint filed

under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We reverse and

remand.

Facts and Procedural History

[2] On August 2, 2012, Melton was hired by IU Health Paoli Hospital’s Rehab and

Sports Medicine Department as an athletic trainer. A few months later, she

began a consensual sexual relationship with a patient, who was a nineteen-year-

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 old adult male high school student.1 On May 10, 2013, the State, through the

Indiana Professional Licensing Agency (“IPLA”), filed an administrative

complaint before the Board against Melton alleging that she “engaged in a

course of lewd or immoral conduct in connection with delivery of services to

the public” and “engaged in sexual contact with an athlete in her care” in

violation of Ind. Code § 25-1-9-4(a)(5) and -4(a)(11). Appellant’s Appendix at

15. The allegations recited in the complaint caused Melton “a great deal of

embarrassment and humiliation . . . .” Id.

[3] On September 17, 2013, the Board held a hearing on the matter, in which

Melton received proper notice of the hearing. Due to the embarrassment she

felt regarding the allegations, as well as the Deputy Attorney General’s

intention to display nude photographs she had exchanged with the student, she

chose to send her attorney to appear on her behalf at the hearing and admit to

the factual basis but not to admit to sanctions. The Board deemed the

appearance by only Melton’s counsel to be insufficient, and it issued a Notice of

Proposed Default.

[4] On September 27, 2013, Melton filed a motion responding to and opposing the

Notice of Proposed Default, in which she noted her reason for not appearing in

person, including “the direct embarrassment or direct humiliation that would

have been caused by such a hearing, particularly as Ms. Melton did not oppose

1
In her brief Melton asserts that she was twenty-three years old at the time she was hired. Appellant’s Brief
at 6. However, the record does not contain a statement relating to her age.

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 the facts underlying this Complaint but only disputed the proposed punishment,

admissions, and sanctions sought by the Board.” Id. at 16. On November 20,

2013, Deputy Attorney General Amanda Elizondo (“DAG Elizondo”) sent

Melton’s counsel an email “stating that a hearing would ‘probably’ be going

forward,” and then on January 16, 2014, DAG Elizondo emailed Melton’s

counsel “that the hearing was ‘set for Tuesday.’” Id. at 16. The next day,

Crystal Heard of the IPLA sent an email “which simply stated that ‘[t]he

Default is on the agenda for January 21, 2014 at 10am.’” Id. Neither Melton

nor her counsel received notice from the Board of a hearing.

[5] On the morning of January 21, 2014, the Board held the hearing and, on

February 3, 2014, issued its Order stating that it had considered Melton’s

motion opposing the proposed default and that it found Melton in default by a

vote of 5-0. Also by a vote of 5-0, the Board concluded that Melton violated

Ind. Code § 25-1-9-4(a)(5), -4(a)(11), and it ordered that she be placed on

indefinite suspension for at least seven years and that prior to petitioning for

reinstatement she provide the Board proof of successful completion of a course

related to ethical boundaries in a patient-practitioner relationship.

[6] On March 6, 2014, Melton filed her Verified Complaint and Petition for

Review of Administrative Ruling (the “Complaint”) in which she brought, in

Count I, an action under 42 U.S.C. § 1983 that the Board’s Order violated her

federal constitutional rights, and, in Count II, she petitioned for review of the

Board’s Order under the Indiana Administrative Orders and Procedures Act

(the “AOPA”). On April 28, 2014, the Appellees filed their Answer to

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 Complaint and Statement of Affirmative Defenses. That same day, the

Appellees filed a Motion to Dismiss Petitioner’s Verified Petition for Judicial

Review of the January 21, 2014 Order Entered by the Board, seeking to dismiss

Count II, because Melton “failed to file the agency record by April 7, 2014,”

which was thirty-two days after Melton filed her Complaint. Id. at 41. On July

1, 2014, the court held a hearing on the Appellees’ motion and continued the

hearing by agreement of the parties until after the Indiana Supreme Court ruled

on “the issue of what needs to be filed in terms of the Agency record.” July 1,

2014 Transcript at 2.

[7] On February 11, 2015, the Appellees filed their Renewed Motion to Dismiss

Petition for Review seeking dismissal of Melton’s petition for administrative

review “[n]ow that the Supreme Court has decided unequivocally that a case

must be dismissed when a party fails to file the agency record . . . .”2

Appellant’s Appendix at 80-81. That same day, the court granted the

Appellees’ motion with respect to Count II and “ordered that Ms. Melton’s

petition for judicial review is hereby DISMISSED.” Id. at 9.

[8] On April 10, 2015, the Appellees filed their motion for judgment on the

pleadings (the “12(C) Motion”) seeking dismissal of Melton’s § 1983 claim. On

April 28, 2015, Melton filed her response in opposition to defendants’ motion

2
On November 13, 2014, the Indiana Supreme Court handed down Teaching Our Posterity Success, Inc. v. Ind.
Dep’t of Educ., 20 N.E.3d 149 (Ind. 2014), as well as First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind.
2014), amended on reh’g by, 27 N.E.3d 768 (Ind. 2015) which addressed issues relating to the filing of an
agency record on petitions for judicial review.

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 for judgment on the pleadings, and on May 4, 2015, she requested a hearing.

On May 12, 2015, the court rejected Melton’s request for a hearing, in which

the court wrote: “case was dismissed 2/2015.”3 Id. at 170. On June 4, 2015,

Melton filed her Motion for Reconsideration and/or Motion to Clarify Court’s

Order on Plaintiff’s Motion for Hearing on Defendants’ Motion for Judgment

on the Pleadings (the “Motion to Reconsider”) which stated that the court

“[had] yet to substantively rule on Ms. Melton’s Section 1983 claim” and that

the court’s “February 2015 Order dismissed only Ms. Melton’s petition for

administrative review (not her Section 1983 claim).” Id. at 171. On June 8,

2015, the court granted Melton’s Motion to Reconsider and set the matter for a

hearing. On June 25, 2015, the court held a hearing, and on July 16, 2015, it

entered a summary order granting the Appellees’ 12(C) Motion and dismissing

her Section 1983 claim.

Discussion

[9] The dispositive issue is whether the court erred in dismissing Melton’s

complaint filed under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We

review de novo a trial court’s ruling on a Rule 12(C) motion for judgment on the

pleadings. Consol. Ins. Co. v. Nat’l Water Servs., LLC, 994 N.E.2d 1192, 1196

(Ind. Ct. App. 2013) (citing Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731

3
The May 12, 2015 Order consisted of what appears to be a proposed order granting Melton’s request for a
hearing in which the court crossed out the word “GRANTING” in the title and wrote by hand: “Denied –
case was dismissed 2/2015.” Appellant’s Appendix at 170.

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 (Ind. 2010)), trans. denied. We accept as true the well-pleaded material facts

alleged in the complaint, and base our ruling solely on the pleadings. Id. A

Rule 12(C) motion for judgment on the pleadings is to be granted “only where

it is clear from the face of the complaint that under no circumstances could

relief be granted.” Id. (quoting Murray, 925 N.E.2d at 731 (quoting Forte v.

Connerwood Healthcare, Inc., 745 N.E.2d 796, 801 (Ind. 2001) (quoting Culver-

Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind. 1994)))).

[10] When reviewing a Rule 12(C) motion, we may look only at the pleadings and

any facts of which we may take judicial notice, with all well-pleaded material

facts alleged in the complaint taken as admitted. Id. “The ‘pleadings’ consist of

a complaint and an answer, a reply to any counterclaim, an answer to a cross-

claim, a third-party complaint, and an answer to a third-party complaint.” Id.

“Pleadings” also consist of any written instruments attached to a pleading,

pursuant to Ind. Trial Rule 9.2. Id.; see also Ind. Trial Rule 10(C) (“A copy of

any written instrument which is an exhibit to a pleading is a part thereof for all

purposes.”).

[11] Section 1983 provides:

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 . . . .

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 42 U.S.C. § 1983.

[12] Section 1983 creates no substantive right of its own, but acts only as a vehicle to

afford litigants a civil remedy for deprivation of their federal rights. Myers v.

Coats, 966 N.E.2d 652, 657 (Ind. Ct. App. 2012) (citing Albright v. Oliver, 510

U.S. 266, 271, 114 S. Ct. 807 (1994), reh’g denied). To prevail on a Section 1983

claim, “the plaintiff must show that (1) the defendant deprived the plaintiff of a

right secured by the Constitution and laws of the United States, and (2) the

defendant acted under the color of state law.” Id. (citing J.H. ex rel Higgin v.

Johnson, 346 F.3d 788, 791 (7th Cir. 2003), reh’g and reh’g en banc denied, cert.

denied, 541 U.S. 975, 124 S. Ct. 1891 (2004)).

[13] The Fourteenth Amendment of the United States Constitution prohibits any

state from depriving a person of life, liberty, or property without due process of

law. Also, Article 1, Section 12 of the Indiana Constitution states that “[a]ll

courts shall be open; and every person, for injury done to him in his person,

property, or reputation, shall have remedy by due course of law. Justice shall

be administered freely, and without purchase; completely, and without denial;

speedily, and without delay.” Indiana courts have consistently construed

Article 1, Section 12, also known as the due course of law provision, as

analogous to the federal due process clause. See, e.g., Doe v. O’Connor, 790

N.E.2d 985, 988 (Ind. 2003); see also McIntosh v. Melroe Co., 729 N.E.2d 972, 976

(Ind. 2000).

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[14] “A due process claim requires the consideration of two factors: first, there must

be the deprivation of a constitutionally protected property or liberty interest;

and second, a determination of what procedural safeguards are then required.”

Ross v. Ind. State Bd. of Nursing, 790 N.E.2d 110, 120 (Ind. Ct. App. 2003); see

also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493

(1985)) (“Once it is determined that the Due Process Clause applies, ‘the

question remains what process is due.’”). “The United States Supreme Court

has defined constitutionally protected ‘property’ in this context as ‘a legitimate

claim of entitlement.’” Bankhead v. Walker, 846 N.E.2d 1048, 1053 (Ind. Ct.

App. 2006) (quoting Austin v. Vanderburgh Cnty. Sheriff Merit Comm’n, 761

N.E.2d 875, 879 (Ind. Ct. App. 2002)). “The source of such entitlements is not

to be found in the Constitution, but generally arises from a statute, ordinance,

or contract.” Id. “When protected property interests are implicated, the right to

some kind of prior hearing is paramount.” Charnas v. Estate of Loizos, 822

N.E.2d 181, 185 (Ind. Ct. App. 2005) (citing Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 569-570, 92 S. Ct. 2701, 2705 (1972)). “In determining

whether due process requirements apply, courts look not to the weight but to

the nature of the interest at stake.” Id. (citing Roth, 408 U.S. at 571, 92 S. Ct. at

2706). This court has recognized that a person has a property interest in a

license for employment issued to that person. See Ross, 790 N.E.2d at 120-121

(noting that “[w]hether one has a property interest in a license depends upon

whether an individual has a legitimate claim of right to it, which in turn is

dictated by the amount of discretion given to the licensing authority,” that

“there is not a great deal of discretion in the granting of a license,” and that
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 “[a]ccordingly, Ross had a property interest in the nursing license issued to

him”). We must therefore determine whether the amount of process Melton

received is insufficient.

[15] Following the September 17, 2013 hearing at which her counsel appeared but

Melton did not personally appear, the Board entered a Notice of Proposed

Default. At the time of the September 17, 2013 and January 21, 2014 hearings,

the relevant statute governing default or dismissal under the AOPA provided:

(a) At any stage of a proceeding, if a party fails to:

(1) file a responsive pleading required by statute or rule;

(2) attend or participate in a prehearing conference,
hearing, or other stage of the proceeding; or

(3) take action on a matter for a period of sixty (60) days,
if the party is responsible for taking the action;

the administrative law judge may serve upon all parties written
notice of a proposed default or dismissal order, including a
statement of the grounds.

(b) Within seven (7) days after service of a proposed default or
dismissal order, the party against whom it was issued may file a
written motion requesting that the proposed default order not be
imposed and stating the grounds relied upon. During the time
within which a party may file a written motion under this
subsection, the administrative law judge may adjourn the
proceedings or conduct them without the participation of the
party against whom a proposed default order was issued, having

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 due regard for the interest of justice and the orderly and prompt
conduct of the proceedings.

(c) If the party has failed to file a written motion under
subsection (b), the administrative law judge shall issue the default
or dismissal order. If the party has filed a written motion under
subsection (b), the administrative law judge may either enter the
order or refuse to enter the order.

(d) After issuing a default order, the administrative law judge
shall conduct any further proceedings necessary to complete the
proceeding without the participation of the party in default and
shall determine all issues in the adjudication, including those
affecting the defaulting party. The administrative law judge may
conduct proceedings in accordance with section 23 of this
chapter to resolve any issue of fact.

Ind. Code § 4-21.5-3-24 (West 2013) (subsequently amended by Pub. L. No. 72-

2014, § 5 (eff. July 1, 2014)).4

[16] Melton argues that in general a plaintiff can state a claim for deprivation of

procedural due process “by ‘show[ing] that state procedures as written do not

supply basic due process or that state officials acted in an [sic] “random and

unauthorized” fashion in depriving the plaintiff of his protected interest.’”

Appellant’s Brief at 20 (quoting Strasburger v. Bd. of Educ., 143 F.3d 351, 358

(7th Cir. 1998), reh’g and suggestion for reh’g en banc denied, cert. denied, 525 U.S.

4
Subsection (a)(2) of this statute, regarding a party’s failure to attend or participate in a prehearing
conference, hearing, or other stage of the proceeding, is found at subsection (a)(3) in the current version of
the statute, after a new subsection (a)(1) was added to the statute effective July 1, 2014.

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 1069, 119 S. Ct. 800 (1999)). She maintains she was wrongly held in default in

that her counsel attended the September 17, 2013 hearing, which is sufficient in

any other forum. She argues that it is not clear that only her counsel’s

attendance at the September 17, 2013 hearing violated Ind. Code § 4-21.5-3-

24(a)(2),5 especially where she was not contesting the factual allegations and

was concerned only with the sanction, and that this error is compounded where

Ind. Code § 4-21.5-5-4(b)(2) precludes her from seeking judicial review of the

entry of default.

[17] The Appellees argue that Melton received proper notice about the September

17, 2013 hearing, she simply decided not to attend, the Board issued its Notice

of Proposed Default Order on September 20, 2013, which complied with and

satisfied Ind. Code § 4-21.5-3-24(a), and that she has not alleged facts regarding

this failure to appear that would entitle her to relief under Section 1983. They

argue that to the extent Melton filed a motion responding to and opposing the

Notice of Proposed Default, the Board was not persuaded by her arguments

and entered the default. They assert that the dictate of Ind. Code § 4-21.5-3-24

that a board proceed without the participation of the party in default “makes

sense” because it “ensures the prompt and efficient resolution of disputes,”

noting that the statute also permits a party to explain a failure to appear and,

here, the Board was unpersuaded by Melton’s reasons. Appellees’ Brief at 23.

5
Both briefs cite to the current version of the statute and particularly subparagraph Ind. Code § 4-21.5-3-
24(a)(3), which is identical to Ind. Code § 4-21.5-3-24(a)(2) (West 2013) recited above. As we observed, the
2013 version of Ind. Code § 4-21.5-3-24 applied to the relevant time period in question.

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 They maintain that Melton has not explained how she could litigate the issue of

sanctions without personally appearing before the Board and that the

September 17, 2013 hearing “was her opportunity to provide her side of the

story and present evidence of any mitigating circumstances.” Id. at 21.

Melton’s response to this argument in her reply brief is that the Appellees do

not explicitly argue that Ind. Code § 4-21.5-3-24(a)(2) required her presence at

the hearing, and that she “could have (and did) oppose the ‘Board’s’ ‘sought’

punishment through her attorney,” noting again that she did not contest the

facts and that her attorney could have presented argument regarding other

similar cases regarding punishment. Appellant’s Reply Brief at 10.

[18] To the extent this question requires us to interpret Ind. Code § 4-21.5-3-24, we

note that we review an issue of statutory interpretation de novo. Chrysler Grp.,

LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 124 (Ind.

2012). “Clear and unambiguous statutes leave no room for judicial

construction.” Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009). But when

a statute is susceptible to more than one interpretation it is deemed ambiguous

and thus open to judicial construction. Id. If the statutory language is clear and

unambiguous, we require only that the words and phrases it contains are given

their plain, ordinary, and usual meanings to determine and implement the

legislature’s intent. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind.

2008), reh’g denied. If a statute is susceptible to multiple interpretations, we

must try to ascertain the legislature’s intent and interpret the statute so as to

effectuate that intent. Fight Against Brownsburg Annexation v. Town of Brownsburg,

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 32 N.E.3d 798, 806 (Ind. Ct. App. 2015). We presume the legislature intended

logical application of the language used in the statute, so as to avoid unjust or

absurd results. Hauck v. City of Indianapolis, 17 N.E.3d 1007, 1015 (Ind. Ct.

App. 2014), trans. denied. A statute should be examined as a whole, avoiding

excessive reliance upon a strict literal meaning or the selective reading of

individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776 (Ind. 2008).

[19] We find that the Board’s decision to find Melton in default at the September 17,

2013 hearing was error. Although Ind. Code § 4-21.5-3-24(a) of that statute

states that “[a]t any stage of a proceeding, if a party fails to” do certain things

including attend a hearing, reviewing similar language in subsections (b) and (c)

demonstrates that the statute’s reference to “party” includes counsel. Ind. Code

§ 4-21.5-3-24(a) (emphasis added). Indeed, subsection (b) provides that

“[w]ithin seven (7) days after service of a proposed default or dismissal order,

the party against whom it was issued may file a written motion requesting that the

proposed default order not be imposed,” and subsection (c) provides that “[i]f

the party has failed to file a written motion under subsection (b), the

administrative law judge shall issue the default or dismissal order” and “[i]f the

party has filed a written motion under subsection (b), the administrative law

judge may either enter the order or refuse to enter the order.” Ind. Code § 4-

21.5-3-24(b), -24(c) (emphases added). Thus, construing the term “party” as

contemplating only the petitioner is erroneous because, under such

interpretation, it follows that in order for a party to comply with subsection (b)

a party must personally file the motion opposing default, rather than counsel,

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 which we do not believe was the legislature’s intent. Indeed, we observe that an

appearance by counsel at an administrative hearing has been sufficient under

Indiana law for decades. See Foltz v. City of Indianapolis, 234 Ind. 656, 685, 130

N.E.2d 650, 664 (Ind. 1955) (“If a party has been duly notified of a meeting for

a hearing, and he fails to appear personally or by counsel, he waives any right to

complain of the action taken, so long as it is within the authority of the

administrative body holding the meeting.”) (emphasis added).

[20] Also, Ind. Code § 4-21.5-3-24(a)(2) is not limited to participation in a hearing –

a written notice of proposed default may also be served upon a “party” who

does not participate in a prehearing conference. However, it is common for

prehearing conferences under the AOPA to be conducted by counsel. See, e.g.,

Galvan v. Alliance Ems/Transport Loving Care, Inc., Respondent, 2015 WL

10381762, at *2 (Ind. Civ. Rts. Com. August 28, 2015) (noting in its findings of

fact that “[t]he ALJ advised the parties in the Notice of Initial Pre-Hearing

Conference, “CORPORATIONS [] must be represented by counsel pursuant to

Indiana law . . . . A party who fails to attend or participate in a Pre-Hearing

Conference, Hearing, or other later stage of the proceeding may be held in

default or the matter may be dismissed”) (italics added); In the Matter of the

Petition of the Town of Huntertown, Ind., 2014 WL 4748688, at *1 (Ind. U.R.C.

September 14, 2014) (“Counsel for Huntertown, Fort Wayne, the Indiana

Office of Utility Consumer Counselor (‘OUCC’), Twin Eagles and the Allen

County Regional Water and Sewer District (‘District’) appeared and

participated at the Prehearing Conference.”); In the Matter of: Comm’r, Ind. Dep’t

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 of Env. Mgmt, Case No. 2010-19215-S v. Nicola Haddad, d/b/a Marathon Gas

Station, Hobart, Lake Cnty., Ind., 2013 WL 9576700, at *2 (Ind. Off. Env. Adjud.

November 14, 2013) (“Respondent Haddad’s legal counsel appeared at the

September 19, 2011 Prehearing Conference, and represented that the Station

had new ownership, but requested additional time to submit leak detection

information to IDEM.”); In the Matter of: Arvina Joyce Carlson d/b/a State

Bonding d/b/a State Bonding Cal., 2010 WL 3466023, at *1 (Ind. Div. Sec.

August 18, 2010) (noting that both parties at telephonic prehearing conference

were represented by counsel). Indeed, the Board in a past decision has

contemplated that appearance by counsel was sufficient. See In the Matter of

Kent Robert Lindsay, 2005 ATB 0001, at 1 (Ind. A.T.B. November 15, 2006)

(“Respondent failed to appear in person or by counsel.”).

[21] We find that the Board erred in entering its Notice of Proposed Default. 6 The

question we must address is whether such entry denied Melton her due process

rights. Due process is not a technical conception with a fixed content unrelated

to time, place and circumstances. Wilson v. Bd. of Ind. Emp’t Sec. Div., 270 Ind.

302, 309, 385 N.E.2d 438, 444 (1979) (citing Cafeteria Workers v. McElroy, 367

U.S. 886, 895, 81 S. Ct. 1743, 1748 (1961), reh’g denied), cert. denied, 444 U.S.

874, 100 S. Ct. 155 (1979). Rather, due process is a flexible concept which calls

6
Regarding the Appellees’ argument that Melton has not explained how she could litigate the issue of
sanctions without personally appearing before the Board, we observe that, to the extent Melton’s testimony
may have been required in order to address a particular argument regarding sanctions raised by Melton’s
counsel at the hearing, the Board could have found that particular argument was waived due to her decision
not to appear.

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 for such procedural protections as the particular situation demands. Id. (citing

Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976)). The

requirements of procedural due process apply only to the deprivation of

interests encompassed by the Fourteenth Amendment’s protection of liberty

and property. McKinney v. McKinney, 820 N.E.2d 682, 687 (Ind. Ct. App. 2005)

(citing Roth, 408 U.S. at 569, 92 S. Ct. at 2705).

[22] “Generally stated, due process requires notice, an opportunity to be heard, and

an opportunity to confront witnesses.” Morton v. Ivacic, 898 N.E.2d 1196, 1199

(Ind. 2008) (quoting Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842

N.E.2d 885, 889 (Ind. Ct. App. 2006)). “The ‘opportunity to be heard’ is a

fundamental requirement of due process.” Id. (quoting Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950)); see also Mathews,

424 U.S. at 333, 96 S. Ct. at 902 (“The fundamental requirement of due process

is the opportunity to be heard at a meaningful time and in a meaningful

manner.”) (internal quotations omitted). In order to determine the specific

dictates of due process in a given situation, it is necessary to balance three

distinct factors: (1) the private interest that will be affected by the official action;

(2) the risk of an erroneous deprivation of such interest through the procedures

used, along with the probable value, if any, of additional or substitute

procedural safeguards; and (3) the government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirements would entail. Mitchell v. State, 659 N.E.2d

112, 114 (Ind. 1995) (citing Wilson, 270 Ind. at 309, 385 N.E.2d at 444 (quoting

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 Matthews, 424 U.S. at 335, 96 S. Ct. at 903)). As we review and balance these

three interests first enunciated in Mathews v. Eldridge, we recognize that,

“although due process is not dependent on the underlying facts of the particular

case, it is nevertheless ‘flexible and calls for such procedural protections as the

particular situation demands.’” Lawson v. Marion Cnty. Office of Family &

Children, 835 N.E.2d 577, 580 (Ind. Ct. App. 2005) (quoting Thompson v. Clark

Cnty. Div. of Family & Children, 791 N.E.2d 792, 795 (Ind. Ct. App. 2003), trans.

denied).

[23] The failure to properly follow statutory requirements can lead to a violation of a

person’s procedural due process rights. See A.P. v. Porter Cnty. Office of Family

and Children, 734 N.E.2d 1107, 1117 (Ind. Ct. App. 2000) (holding that the

failure of the Porter County Office of Family and Children to comply with

statutes relating to Child in Need of Services and termination proceedings

deprived the parents of their due process rights), reh’g denied, trans. denied. In

this case, the private interest affected by the official action, Melton’s athletic

trainer’s license, is of paramount importance to Melton because it is required

for her to pursue the work she had invested years preparing to perform.

Conversely, there is no apparent governmental interest that would justify a

disregard of procedures set forth by the legislature; rather, those procedures

must be followed, especially when such an important private interest is at stake.

Finally, the risk of an erroneous deprivation of Melton’s interest in her athletic

trainer’s license through the Board’s decision to enter the Order of Proposed

Default is great because she was not entitled to any further process following the

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 entry. Also, under Ind. Code § 4-21.5-5-4(b)(2) a person who is in default under

the AOPA has waived their right to seek judicial review.

[24] The Board’s entry of the Notice of Proposed Default following the September

17, 2013 hearing, in which Melton’s counsel appeared, deprived Melton of her

opportunity to be heard “at a meaningful time and in a meaningful manner,”

which is the fundamental requirement of due process. Mathews, 424 U.S. at

333, 96 S. Ct. at 902. Under the circumstances, we must reverse the court’s

grant of the Appellees’ 12(C) Motion dismissing Melton’s Section 1983 claim,

remand with instructions to vacate the Board’s Order, and order the Board to

provide Melton with an administrative hearing concerning the complaint filed

against her Indiana athletic training license which comports with the dictates of

due process.

Conclusion

[25] For the foregoing reasons, we reverse the court’s grant of the Appellees’ 12(C)

Motion dismissing Melton’s Section 1983 claim and remand with instructions

consistent with this opinion.

[26] Reversed and remanded.

Kirsch, J., and Mathias, J., concur.

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