McCrum v. Elkhart County Dept. of Public Welfare

Decision Date22 December 1992
Docket NumberNo. S92-97M.,S92-97M.
Citation806 F. Supp. 203
PartiesAndrew James McCRUM, Plaintiff, v. ELKHART COUNTY DEPARTMENT OF PUBLIC WELFARE, et al., Defendants.
CourtU.S. District Court — Northern District of Indiana


Andrew James McCrum, pro se.

Barry A. Chambers, Elkhart, Ind., for Elkhart County Dept. of Public Welfare, Bud and Deloris Smith, Tracy Myzack, Steve Cleveland, Nella Darkwood, Celia Leaird.

Edward N. Kalamaros, South Bend, Ind., for Child Abuse Prevention Services, Goshen High School, Candy Yoder, Dori Keyser.

James J. Shea, Scott L. Bunnell, Fort Wayne, Ind., for Goshen Police Dept., Al Mackowiak.

Michael F. DeBoni, Goshen, Ind., for Elkhart County Circuit Court, Juvenile Dept., David C. Bonfiglio.

Robert T. Sanders, III, Elkhart, Ind., for Goshen High School, Dori Keyser.

David L. Saunders, Mark A. Armstrong, Goshen, Ind., for Goshen Police Dept., Al Mackowiak, David Saunders, Theresa Heamon.

David Michael Wallman, Deputy Atty. Gen., Indianapolis, Ind., for David C. Bonfiglio.


MILLER, District Judge.

This cause comes before the court on seven motions to dismiss or for summary judgment filed by most of the sixteen defendants in this 42 U.S.C. § 1983 cause of action. The plaintiff, Andrew James McCrum (an inmate at the Indiana Youth Center, convicted of child molesting) alleges that his Fourth, Eighth, Ninth, and Fourteenth Amendment rights were violated when the defendants came to his home and took his step-children into custody. The events he complains of occurred on October 3, 12, and 13, 1989, and led to court proceedings on January 17, 1990. He alleges that one of the children, Misty, was raped on March 4, 1990, while in protective custody at the Hoosier Girls Home in Elkhart, Indiana. He also alleges continuing violations by the Elkhart County Department of Public Welfare in restricting his and his wife's contacts with their children. Mr. McCrum seeks $10 million in damages, punitive damages, and injunctive relief. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).


Mr. McCrum has requested appointment of counsel pursuant to 28 U.S.C. § 1915. The court must resolve the motion for counsel before addressing the dispositive motions. Gaines v. Lane, 790 F.2d 1299, 1308 n. 11 (7th Cir.1986); Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir.1983).

No constitutional right to counsel exists in a civil case. Caruth v. Pinkney, 683 F.2d 1044 (7th Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 451 (1983). Under 28 U.S.C. § 1915(d), a court may request an attorney to represent an indigent litigant. Mallard v. U.S. District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). In this circuit, "appointment" of counsel rests in the sound discretion of the district courts, Hossman v. Blunk, 784 F.2d 793, 797 (7th Cir.1986), "unless denial would result in fundamental unfairness impinging on due process rights." LaClair v. United States, 374 F.2d 486, 489 (7th Cir.1967); accord McNeil v. Lowney, 831 F.2d 1368 (7th Cir. 1987), cert. denied, 485 U.S. 965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1988). Courts do not intervene on plaintiff's behalf "as of course; they recruit lawyers for the parties only when the cases are colorable, the facts may be difficult to assemble, and the law is complex." DiAngelo v. Illinois Dept. of Public Aid, 891 F.2d 1260, 1262 (7th Cir. 1989). The Seventh Circuit Court of Appeals has articulated specific factors that district courts should consider in deciding whether to appoint counsel. McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982); Maclin v. Freake, 650 F.2d 885 (7th Cir.1981); Chapman v. Kleindienst, 507 F.2d 1246, 1250 n. 6 (7th Cir.1974). The district court should consider:

(1) the merits of the indigent litigant's claim (whether there is a colorable claim);
(2) the nature of the factual issues raised in the claim, and whether the indigent litigant is in a position to investigate crucial facts;
(3) the need for legal counsel for cross-examination, particularly when a question of credibility exists;
(4) the indigent litigant's capability to present his own case; and
(5) the complexity of the legal issues.

Maclin v. Freake, 650 F.2d at 887-889. Of these factors, the court first should consider whether the claim is of sufficient merit. McNeil v. Lowney, 831 F.2d 1368 (7th Cir. 1987); Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir.1983).

For the reasons that follow, the court concludes that most of the many claims in the complaint are without merit, and must be dismissed. What remains of the case is relatively straightforward, with manageable case law. Accordingly, the court denies the request for counsel. See Jenkins v. Lane, 977 F.2d 266, 270 (7th Cir.1992). Mr. McCrum, of course, remains free to try to retain counsel on his own.


There are sixteen named defendants, and the following parties have filed motions to dismiss or for summary judgment: (1) the Elkhart County Department of Public Welfare ("DPW"); (2) DPW Director Celia Leaird; (3) DPW Caseworkers Tracy Myzack, Nella Darkwood, and Steve Cleveland; (4) Bud and Delores Smith, foster parents; (5) the Goshen Police Department; (6) Detective Al Mackowiak of the Goshen Police Department; (7) Juvenile Referee David Bonfiglio; (8) Goshen Community Schools and counselor Doris Keyser;1 (9) attorney David Saunders; and (10) Theresa Heamon.

Mr. McCrum responded to several of the motions.


Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of complaints that state no actionable claim. When reviewing pro se complaints, the court must employ standards less stringent than if the complaint had been drafted by counsel. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The complaint's factual allegations will be taken as true and viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Dismissal is appropriate if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

"For the purposes of determining whether the complaint states a claim, the facts alleged, plus reasonable inferences therefrom, are taken as true, and the question is then whether on those assumptions the plaintiff would have a right to legal relief." Bane v. Ferguson, 890 F.2d 11, 13 (7th Cir.1989).

Even under the notice pleading of the Federal Rules of Civil Procedure and the liberal interpretation given to pro se pleadings, a complaint must include allegations respecting all material elements of all claims asserted; bare legal conclusions attached to narrated facts will not suffice. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991); Strauss v. Chicago, 760 F.2d 765, 768 (7th Cir.1985). The court need not accept legal conclusions alleged in the complaint. Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1559 (7th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 285, 116 L.Ed.2d 236 (1991).

As noted earlier, two defendants have moved for summary judgment. Because their arguments fail as a matter of law, the court need not discuss the separate standard that governs such motions.


For clarity's sake, the court addresses several motions which raise the same arguments. In some cases, the defendants raised more than one argument for dismissal. The court only addresses those arguments which dispose of the action.


All of the moving defendants raise the statute of limitations as a basis for dismissal. They note that the complaint was filed on April 3, 1992, but nearly all events alleged in the complaint occurred more than two years before that date. A two-year statute of limitations governs this case. Dugan v. Ball State University, 815 F.2d 1132, 1135 (7th Cir.1987). The complaint was filed formally on April 3, 1992, but several events, which may be unknown to defendants who did not examine the docket sheet, preceded that event.

Mr. McCrum tendered the complaint, together with his petition to proceed in forma pauperis, to the court on November 25, 1991; that original complaint listed both Mr. McCrum and his wife as plaintiffs, but was signed only by Mr. McCrum. On December 2, 1991, the court wrote Mr. McCrum, informing him of the need for Mrs. McCrum to sign the complaint and submit financial information in support of the petition to proceed in forma pauperis. On December 23, a complaint signed by both plaintiffs was submitted, together with an affidavit concerning Mrs. McCrum's financial information.

Inexplicably, no further action took place with respect to the petition until February 13, 1992, when the court notified the plaintiffs of the defects in their service of process forms and the number of copies of the complaint submitted. Pursuant to Fed. Civ.R. 5, the court did not strike the complaint, but informed the plaintiffs that the complaint would be stricken if they did not cure the defects within forty-five days.

On February 27, Mr. McCrum cured the earlier deficiencies and submitted an "amended" complaint, in which he was the only plaintiff. On April 3, the court granted the petition to proceed in forma pauperis, the complaint was stamped "filed", and process issued.

Although the defendants were served with a complaint marked "filed" on April 3, and no doubt were unaware of the earlier proceedings with respect to complaint and the petition to proceed in forma pauperis, the complaint was timely filed. "A complaint is deemed `filed' within the meaning of Fed.R.Civ.P. 3 for purposes of invoking the court's jurisdiction over an action when it is placed in the custody of the district court clerk." Smith-Bey v. Hospital Adm'r, 841 F.2d 751, 757 n. 5 (7th Cir.1988). Fur...

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