McCormick v. Goebel

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RODNEY MCCORMICK, et al.

Plaintiff,

v. Case No. 3:19-CV-608 JD

MICHELLE GOEBEL, et al.,

Defendants.

OPINION AND ORDER

In December 2016, the Indiana Department of Child Services (“DCS”) removed five of

Rodney McCormick’s children from his care pursuant to a court order finding both probable

cause of abuse and exigent circumstances for removal. DCS had received a report earlier that day

alleging Mr. McCormick was abusing the children; after investigating, DCS contacted the state

court and sought removal. After the children were removed, Mr. McCormick was promptly

notified, and a hearing was held within two business days. The Court found there was probable

cause to believe abuse occurred and assigned responsibility for custody to DCS. The children

were placed in the care of family members, and the case was supervised by a state court

throughout.

Mr. McCormick, unsatisfied with his children’s continued detention, lodged a campaign of

death threats against DCS and the assigned case manager, Michelle Nell (née Mussman). He also

refused to see or be contacted by Ms. Nell. This caused interruption to his visitation and made it

difficult to reunite Mr. McCormick with his children. Despite this, DCS and Ms. Nell continued

to work adequately on the children’s cases. In August 2017, the state court dismissed the

children’s cases, returning them to their prior custody with their father. In 2019, Mr. McCormick

brought this suit on behalf of himself and his children against DCS, Ms. Nell, the initiating

caseworker Elizabeth Black, their supervisor, Michelle Goebel, and a number of other parties,

alleging violations of his and his children’s Fourth Amendment and Fourteenth Amendment

rights. Mr. McCormick alleged the children’s emergency seizure violated their Fourth

Amendment rights because it was based on misrepresentations by Defendants, that the children’s

continued detention and interruption of visitation violated his and his children’s due process

rights to family integrity because they were justified by misrepresentations, that the children’s

placements violated their due process rights to bodily integrity, and that misrepresentations

offered by Defendants to the supervising court violated his and his children’s procedural due

process rights. Mr. McCormick also alleged the defendants participated in a conspiracy to

deprive him and his children of their constitutional rights.

Defendants filed a Motion to Dismiss, which the Court granted in part and denied in part.

(DE 34.) The conspiracy allegations were dismissed, as well as all defendants other than Ms.

Nell, Ms. Black, and Ms. Goebel. Id. Defendants then filed a Motion for Summary Judgment.

(DE 77.) In response to Defendants’ Motion for Summary Judgment, Mr. McCormick did not

deny Defendants’ facts or submit a factual statement of his own. Instead, he filed a Motion to

Strike consisting of numerous boilerplate hearsay objections without adequate supporting

briefing. (DE 86.) The Court does not find these objections meritorious and deems Defendants’

statement of facts admitted. Accordingly, there is no dispute of material fact, and the Court

grants summary judgment on all Mr. McCormick’s claims. Mr. McCormick’s conclusory and

inadequate briefing also failed to meet his burden to rebut Defendants’ qualified immunity

defense, justifying a grant of summary judgment on Mr. McCormick’s remaining claims.

A. Factual Background

The following facts are undisputed. Mr. McCormick is the father of five children: T.M.,

C.H., A.M., L.M., and Q.M. On December 9, 2016, a Friday, DCS received a complaint from an

anonymous source alleging that the children were victims of physical abuse and neglect. At that

time, all the children resided with Mr. McCormick at least part-time. Ms. Black, a case worker at

DCS, was assigned to perform the initial assessment of the abuse and neglect allegations. On the

same day, Ms. Black interviewed the children at their schools. The children reported being

repeatedly physically abused and locked out of the house by their father. Their stories were

internally consistent and consistent with each other. One child expressed suicidal ideation. After

interviewing the children, Ms. Black spoke with school staff, who reported facts consistent with

the children’s accounts.

On the basis of this information, Ms. Black believed it was in the best interests of the

children to obtain an emergency detention order and discussed seeking such an order with Ms.

Goebel. They decided to pursue the emergency detention order. That afternoon, Ms. Black

testified to a court via phone regarding the children’s disclosures and the need for an emergency

detention order. The court found probable cause that the children were in need of services,

granted the emergency order, and ordered the emergency removal of the children. The children

were then removed. Two were placed with relatives, and the others were placed at a foster home.

After removal, Ms. Black informed Mr. McCormick of the emergency detention.

Two days later, the children participated in forensic interviews. During these interviews,

the children largely confirmed their earlier disclosures. On December 13, 2016, the Monday after

the children’s removal, the LaPorte Circuit Court held a hearing concerning the children’s

removal. Mr. McCormick attended the hearing and was represented by counsel. He entered a

denial of the abuse allegations. Nevertheless, the court issued an order confirming the removal

and the exigency of the removal circumstances. The court further accepted DCS’s

recommendations regarding placement, services, and programs and ordered DCS to continue to

be responsible for placement and care of the children. The children’s cases were then transferred

from Ms. Black to Ms. Nell.

The relationship between Mr. McCormick and DCS broke down immediately. On

December 12, Mr. McCormick called the police and informed them that he would use any force

necessary to protect himself and his property against DCS. Thereafter, Mr. McCormick’s

communications with DCS were characterized by threats of deadly force, threats of litigation,

and the frequent use of expletives. On December 30, 2016, Mr. McCormick sent a letter

containing death threats via certified mail to DCS. Mr. McCormick also lodged threats at others,

including representatives of a family counseling organization, visit supervisors, and one child’s

relative placement. In light of Mr. McCormick’s threats of violence, on January 11, 2017, DCS

moved to suspend his visitation until DCS could provide for visitation in a secure setting.

The children remained under DCS care for several months, which were unremarkable

save Mr. McCormick’s continued threats of violence. Ms. Nell undertook the provision of

services to the children, including monitoring their needs, exploring possible family placements

for the children in foster care, arranging counseling services, and facilitating sibling visits.

During these months, Ms. Nell investigated three complaints of incidents concerning the

children, two of which were filed by Mr. McCormick. In each instance, Ms. Nell promptly

investigated, often on the same or the next day. Ms. Nell questioned the affected child and the

relevant party. In each instance, Ms. Nell determined the allegation was not substantiated, and

the children remained in the care of their placement. The following cycle also recurred several

times: Ms. Nell attempted to arrange visitation with Mr. McCormick. Mr. McCormick continued

his tirade of death threats against Ms. Nell, DCS, the children’s relative placements, and the

visitation supervisors. Predictably, the visitation supervisors became alarmed and declined to

participate further, citing safety concerns. Visitation was suspended for some period while Ms.

Nell attempted the Sisyphean task of locating facilities and supervisors for Mr. McCormick’s

visits. Visitation would resume for some brief amount of time, then again would halt upon repeat

of this cycle.

Throughout the children’s detention, the state court continued to supervise their cases.

Mr. McCormick was afforded a variety of opportunities to be heard. He filed several motions,

including a motion to dismiss the CHINS petitions,1 a motion to correct error, and a petition for

emergency placement. The court conducted hearings, which Mr. McCormick attended, but found

Mr. McCormick’s arguments unpersuasive and denied his motions. The court also issued orders

regarding the children’s placement and visitation, with which DCS complied. In March 2017, the

La Porte Circuit Court issued an order modifying placement of the children in foster care. The

court ordered the children be placed with their paternal grandmother, and Defendants promptly

complied. In July 2017, the court denied Defendants’ January motion to suspend visitation and

ordered supervised visits resume between Mr. McCormick and three of the children.2 A

scheduled visit occurred August 2, 2017, despite a last-minute scramble caused by the visit

supervisor’s withdrawal one day prior.

1 CHINS stands for Child in Need of Services. The Indiana Department of Child Services initiates a CHINS

petition when it believes a child is experiencing abuse or neglect. A CHINS petition must show the intervention of

the court is necessary to protect the child.

2 The state court did not order visitation resume between Mr. McCormick and the two other children at the

recommendation of the children’s therapists.

In August and September, an informal adjustment (“IA”) was entered for all children but

T.M., permitting them to be in Mr. McCormick’s care. The children were returned, their CHINS

petitions were dismissed by agreement of the parties, and the IA was dismissed, fully resolving

their cases. At about the same time, the court dismissed T.M.’s CHINS petition over DCS’s

objection, allowing him to return to his mother’s custody and ending DCS’s relationship with

T.M. On August 14, 2017, Ms. Nell required T.M.’s relative placement to take a drug test. The

test results were positive, but T.M.’s CHINS petition was dismissed before DCS could take

action.

B. Standard of Review

Summary judgment is warranted when the evidence viewed in a light most favorable to the

non-moving party presents no genuine issue of material fact, such that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding a motion for

summary judgment, all disputed issues of fact are to be resolved in favor of the non-moving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “the nonmovant

must show through specific evidence that a triable issue of fact remains on issues on which he

bears the burden of proof at trial.” Warsco v. Preferred Tech. Grp., 258 F.3d 557, 563 (7th Cir.

2001) (citing Celotex Corp v. Catttrett, 477. U.S. 317, 324 (1986)). A party may not rest upon

allegations in the pleadings; “it must go beyond the pleadings and support its contentions with

proper documentary evidence.” Chemsource, Inc. v. HubGroup, Inc., 106 F.3d 1358, 1361 (7th

Cir. 1997). “[I]f the non-movant does not come forward with evidence that would reasonably

permit the finder of fact to find in her favor on a material question, then the court must enter

summary judgment against her.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir.

1994).

C. Preliminary Matters

The Court now takes a moment to clarify the manner in which it arrived at the undisputed

facts stated above. Upon filing their Motion for Summary Judgment, Defendants properly filed a

Statement of Facts containing nearly 250 numbered statements of facts with pinpoint citations to

62 supporting exhibits. (DE 79.) In response, Mr. McCormick did not file a proper response to

Defendants’ Statement of Facts as required by Local Rule 56-1(b)(2). Instead, Mr. McCormick

filed a Motion to Strike attacking the admissibility of 33 of Defendants’ exhibits (DE 86) and a

Response to Defendant’s Statement of Facts lodging boilerplate legal attacks against each

statement rather than admitting or denying them. (DE 89.) The Court finds Mr. McCormick’s

hearsay objection to the admission of DCS’s case notes are without merit. The Court strictly

enforces Local Rule 56-1 and finds that all properly supported facts as alleged by Defendants are

deemed admitted by Mr. McCormick’s failure to admit or deny them in his response. See Curtis

v. Costco Wholesale Corp., 807 F.3d 215, 218-219 (7th Cir. 2015).

(1) Failure to Dispute Facts

Mr. McCormick failed to state a dispute of facts because he did not admit or deny the

moving party’s facts as required by Local Rule 56-1. The district court is entitled to require strict

enforcement with its local rules. Curtis, 807 F.3d at 219. Local Rule 56-1 requires parties to file

separate statements of material facts concisely stating the facts of the case in dispute. The factual

statements must be numbered, and the parties must cite to evidence supporting each fact. See L.

R. 56-1(a)(3). The moving party begins by filing their statement of facts, after which the non-

movant files a correspondingly numbered response identifying which facts are in dispute. See L.

R. 56-1(b)(2)(B). Defendants properly met their burden under Local Rule 56-1 by filing a

statement of material facts replete with citations to the record. (DE 79.) In response to

Defendants’ statement of material facts, Mr. McCormick filed a 73-page document containing

form objections to almost every single fact alleged by Defendants. (DE 89.) These objections

failed to admit or deny the facts stated by Defendants; instead, Mr. McCormick wrote only that

each statement relies on an exhibit that “contains impermissible hearsay, is not admissible at trial

or in any hearing, and should be struck from the record.” (DE 89 at 2.) Boilerplate legal

objections alone are not contemplated by the local rule and are insufficient to constitute a denial

of facts. Curtis, 807 F.3d at 219 (affirming grant of summary judgment where nonmovant

responded with boilerplate objections, failed to admit or deny facts, and did not cite to

admissible evidence in support of his denials); see also Ammons v. Aramark Unif. Servs., Inc.,

368 F.3d 809, 818 (7th Cir. 2004) (responses that do not admit or deny movant’s facts are

improper). “The non-moving party’s failure to admit or deny facts as presented in the moving

party’s statement or to cite to any admissible evidence to support facts presented in response by

the non-moving party render the facts presented by the moving party as undisputed.” Curtis, 807

F.3d at 2018–19. Thus, the facts as alleged by Defendants are deemed admitted, and the Court

adopts the undisputed facts. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (affirming

summary judgment where district court deemed defendant’s facts admitted after plaintiff failed

to comply with similar local rule).

The Court is entitled to rely upon the parties’ 56-1 statements. F.T.C. v. Bay Area Bus.

Council, Inc., 423 F.3d 627, 634 (7th Cir. 2005). It is not obligated to search for disputes of facts

in the briefing or record; “judges are not like pigs, hunting for truffles buried in briefs.” Smith v.

Lamz, 321 F.3d at 683. However, were the Court to entertain a porcine impulse, it would be of

no benefit to Mr. McCormick, because he failed to provide any evidence supporting his

allegations. Mr. McCormick’s response brief alludes to facts inconsistent with those stated by

Defendants: that Defendants mischaracterized the evidence, failed to consider the relevant

evidence, and were biased against him. (DE 87.) But he does not attach or cite to any evidence in

support of these allegations in his response brief. On motion for summary judgment, “the non-

moving party is required to marshal and present the court with the evidence she contends will

prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010)

(referring to summary judgment as the “put up or shut up” phase in litigation). Conclusory

allegations without proper evidentiary support—as Mr. McCormick has offered here—do not

suffice to state facts. See Porter v. City of Chicago, 700 F.3d 944, 956 (7th Cir. 2012); see also

Fed.R.Civ.P. 56(c)(1)(A). Where the nonmovant attempts to dispute facts without citing

evidence, the Court may deem the moving party’s facts admitted. Senske v. Sybase, Inc., 588

F.3d 501, 503 n.1 (7th Cir. 2009). Even after affording tremendous leeway to Mr. McCormick,

the Court arrives at the conclusion Defendants’ facts are undisputed.

(2) Motion to Strike

The Court must now address Mr. McCormick’s evidentiary objections. If the undisputed

statements of fact are not supported by proper admissible evidence, they cannot be considered

facts for the purpose of summary judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.

2009). Therefore, it is important to determine whether Mr. McCormick’s evidentiary objections

have merit, because the admissibility of the evidence determines the scope of the facts on

summary judgment. Mr. McCormick has objected to a significant number of Defendants’

exhibits, including several relied upon heavily by Defendants. These challenges are repetitive

and cursory, reading only: “[Exhibit] is inadmissible under Federal rules of Evidence 803 as it

contains hearsay, and lacks any indicia of authenticity, and because it was an impermissible

method in which to raise a genuine issue of material fact, and is not admissible as evidence.”

(DE 86 at 2.) The Court is not obligated to address individually these boilerplate hearsay

challenges. See Holder v. Fraser Shipyards, Inc., 288 F. Supp. 3d 911, 922 n.4 (W.D. Wis. 2018)

(confining to a footnote discussion of party’s rampant and ill-founded hearsay objections on

summary judgment). Indeed, the Court could not begin to guess what basis Mr. McCormick had

for these objections, as he only briefs a single objection against a single exhibit. (DE 86 at 2.)

Failure to articulate why a statement is hearsay is sufficient to waive the objection. Torry v. City

of Chicago, 932 F.3d 579, 585 (7th Cir. 2019) (“dispensing with” underdeveloped argument

failing to explain why the statement was offered for the truth of the matter asserted). Therefore,

the Court finds Mr. McCormick’s objections unsupported by argument waived. The Court now

addresses the single briefed hearsay objection of any merit: whether some records are

inadmissible as business records.

Evidence submitted at summary judgment must be admissible at trial, at least if a party

objects. Igasaki v. Illinois Dep't of Fin. & Pro. Regul., 988 F.3d 948, 955–56 (7th Cir. 2021).

Defendants attached as evidence the entire DCS case file, which contains more than 60 separate

documents, and assert it is admissible as a business record under Federal Rule of Evidence

803(6). Though Mr. McCormick filed boilerplate hearsay objections against 31 documents, his

only argument concerns the case workers’ notes, contained in Exhibit 19. He argues that records

kept by DCS case workers are “categorically inadmissible” because they do not have the indicia

of reliability of traditional business records, citing two Indiana state law cases. Those cases are

inapposite; most obviously because they do not interpret the Federal Rules of Evidence, by

which this Court is bound. Cf. Love v. United States, 17 F.4th 753, 756 (7th Cir. 2021) (federal

rules of evidence control over inconsistent state rules in federal court). Mr. McCormick does not

cite any federal authority to support his argument, and the Court has not located any. In any

event, Mr. McCormick grossly misstates the holdings of these cases. Far from stating categorical

prohibitions, the cases cited are highly fact-specific and turn on finer points of Indiana evidence

law. See, e.g., In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639 (Ind.

2004) (taking issue with records prepared for use by DCS by outside agency and referencing the

high burden required to terminate a parent-child relationship). The Court is not persuaded that

DCS’s notes are categorically inadmissible as business records.

In contrast, the case workers’ notes as submitted to this Court meet the straightforward

definition of a business record. To qualify as a business record under the hearsay exception, a

document must be made at or near the time of the act or event by someone with knowledge and

be kept in the normal course of business as a regular practice of the business or entity. Datamatic

Servs., Inc. v. United States, 909 F.2d 1029 (7th Cir. 1990). The record also must be

authenticated by a qualified witness. Fed.R.Evid. 803(6)(D). The case workers’ notes meet these

requirements. To begin with, our circuit has not recognized any categorical prohibition on notes

as business records; notes may be prepared in the normal course of business when they are taken

and kept as records as part of a business’s regular practices. See Thanongsinh v. Bd. of Educ.,

462 F.3d 762, 776 (7th Cir. 2006) (finding notes of interviews admissible under business records

exception). Exhibit 19 contains hundreds of pages of case workers’ real-time notes logged on

specialized software recording events of the cases as they occurred. (DE 77-14–17). The Court

has reviewed the notes and finds they meet the requirements of the business records exception,

noting that the computerized note system identifies the author and time of each entry, and the

entries uniformly contain information sufficient to determine they meet the personal knowledge

and timeliness requirements. The Court also finds persuasive the volume and format of the notes;

they document a vast number of mundane interactions relating to the case, indicating both

trustworthiness and the routine nature of the case workers’ notetaking. Additionally, the note

software indicates the entries are locked and cannot be edited after a brief period, further

supporting the trustworthiness of the notes. The Court admits the case workers’ notes contained

in Exhibit 19 as business records.

Finally, many hearsay statements within the admitted records are admissible because they

fall under other hearsay exceptions. See Woods v. City of Chicago, 234 F.3d 979, 986 (7th Cir.

2000). When multiple levels of hearsay are present, an exception must apply to each level.

United States v. Borrasi, 639 F.3d 774, 780 (7th Cir. 2011). While the Court will not exhaust the

reader with analysis of every statement within each document, two major exceptions cover

nearly all the second-level hearsay statements. Most obviously, all statements by Mr.

McCormick and the children constitute party opponent statements, making them not hearsay

under Federal Rule of Evidence 801(d)(2). See generally Jordan v. Binns, 712 F.3d 1123, 1128

(7th Cir. 2013) (discussing the broad scope of 801(d)(2)). In addition, statements offered for a

purpose other than to prove the truth of the matter are not hearsay. United States v. Norwood,

798 F.2d 1094, 1097 (7th Cir. 1986). Defendants assert both probable cause and qualified

immunity as defenses to Mr. McCormick’s claims. Both defenses concern the state of mind of

the officer. Woods v. City of Chicago, 234 F.3d 979, 987 (7th Cir. 2000) (third-party statements

admissible to show their effect on the officers where probable cause was at issue); Jewett v.

Anders, 521 F.3d 818, 826 n.5 (7th Cir. 2008) (same where qualified immunity at issue). As

such, these statements are admissible to the extent they are offered to show their impact on the

case workers rather than for the truth of the matter asserted. See Torry v. City of Chicago, 932

F.3d 579, 585 (7th Cir. 2019) (admitting statements within police report for their impact on the

officer).

D. Discussion

With the facts established, the Court is able to make light work of Mr. McCormick’s

arguments. Summary judgment is appropriate for all Defendants because Mr. McCormick has

not stated a material dispute of fact entitling him to recovery. See Fed. R. Civ. P. 56(a). His

response brief is woefully inadequate; it relies on allegations not supported by evidence of any

kind, fails to cite to legal authority, and waives dispositive issues by failing to provide any legal

analysis. Simply put, Mr. McCormick’s legal arguments do not contain adequate detail or

citations to authority to show he is entitled to relief. Part of this is likely due to page limitations

of Mr. McCormick’s own making; he expends fifteen pages of his response brief reiterating

(without analysis) more than 200 of Defendant’s factual statements. (DE 88 at 3–18.) Confined

to an afterthought, his legal arguments are impermissibly conclusory and underdeveloped. At

least two sections consist solely of a paragraph stating the rule copied verbatim from circuit court

opinions with no additional analysis. Compare DE 88 at 21 with Brokaw v. Mercer Cnty., 235

F.3d 1000, 1020 (7th Cir. 2000); compare DE 88 at 23 with Xiong v. Wagner, 700 F.3d 282, 289

(7th Cir. 2012). The Court can only conclude that Mr. McCormick hoped to knock out all of

Defendants’ stated facts via his boilerplate objections, leaving the Court with no facts stated by

either party to consider. This strategy was ineffective, and the Court now grants summary

judgment because the undisputed facts do not support Mr. McCormick’s claims or entitlement to

recovery.

(1) Failure to Cite Evidence of Misrepresentations

Mr. McCormick’s Fourth Amendment, procedural due process, and due process claims

for ongoing detention and interruption to visitation rely on an allegation he has not properly

supported at this stage: that Defendants intentionally misrepresented facts in order to detain the

children. The allegations of misrepresentation are essential to these claims; without such

allegations, Mr. McCormick’s claims have no force. Mr. McCormick’s claims survived a motion

to dismiss because the Court must accept the allegations in the complaint as true at that stage.

See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). However, on summary

judgment, the complaint is not accorded the same deference. On summary judgment, “[t]he

nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in

affidavits; it must go beyond the pleadings and support its contentions with proper documentary

evidence.” Warsco v. Preferred Tech. Grp., 258 F.3d 557, 563 (7th Cir. 2001). Mr. McCormick

continues to allege these misrepresentations as his sole basis of liability, but this allegation was

neither stated in his Statement of Disputed Facts nor supported by any admissible evidence. His

failure to cite to evidence supporting this allegation is fatal. See Gross v. Town of Cicero, 619

F.3d 697, 707 (7th Cir. 2010) (affirming summary judgment where plaintiff failed to present

evidence on key element of claim). “[I]f the non-movant does not come forward with evidence

that would reasonably permit the finder of fact to find in [his] favor on a material question, then

the court must enter summary judgment against [him].” Waldridge v. Am. Hoechst Corp., 24

F.3d 918 (7th Cir. 1994) (affirming summary judgment where local rule statement of facts lacked

citations) (emphasis original). Mr. McCormick did not provide any evidence of a

misrepresentation, nor does the evidence tendered by the defendants support a misrepresentation,

rendering Mr. McCormick’s Fourth Amendment, procedural due process, and continued

detention and interruption to visitation claims hollow of any theory of law that would allow for

recovery. In this “put up or shut up” moment, Mr. McCormick has failed to put up. Therefore,

the Court finds summary judgment is appropriate on all claims relying on alleged

misrepresentations as the sole basis of liability: Mr. McCormick’s Fourth Amendment claim,

procedural due process claim, and substantive due process claims for violation of his and his

children’s rights to familial integrity caused by the children’s continued detention and interrupted

visitation.

(2) Qualified Immunity

Mr. McCormick’s remaining substantive due process claims for violation of his

children’s rights to bodily security are similarly doomed by his underdeveloped arguments.

These claims deal with the condition of the children’s placements during their time under the

care of IDCS, namely, that the children in foster care were abused and that one child was placed

in the care of a relative who used marijuana. Defendants have argued they are entitled to

qualified immunity, and Mr. McCormick’s response brief is grossly inadequate to refute their

qualified immunity defense. His conclusory and underdeveloped briefing in response to

Defendants’ Motion for Summary Judgment both waived the argument and failed to meet his

burden; therefore, summary judgment is appropriate on his remaining claims.

The Court holds that Ms. Nell is entitled to qualified immunity on the remaining

substantive due process claims because Mr. McCormick’s underdeveloped arguments failed to

meet his burden.3 To be explicit, Mr. McCormick’s briefing is so inadequate that it would

reasonably constitute a waiver of any argument made in this manner. See Puffer v. Allstate Ins.

Co., 675 F.3d 709, 718. (7th Cir. 2012) (arguments are waived if they are “underdeveloped,

conclusory, or unsupported by law”). “A party will be deemed to have waived a claim for failing

to cite both legal authority and supporting factual evidence.” De v. City of Chicago, 912 F. Supp.

2d 709, 733–34. (N.D. Ill. 2012). One of Mr. McCormick’s arguments consists solely of a single

paragraph stating the general standards for qualified immunity, which was copied without

citation from Xiong, see 700 F.3d at 289. (DE 88 at 23.) No analysis applying facts to the law is

present, and the Court is therefore entitled to find the claim waived. See Donelson v. City of

Chicago, 272 F. Supp. 2d 717, 726 (N.D. Ill. 2003) (argument waived because no serious legal

arguments or effort to respond exhibited). Another qualified immunity argument is two sentences

long and is devoid of any citation to legal authority. (DE 88 at 24.) This is also sufficient to

constitute waiver of the argument. See Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009)

(“Perfunctory, undeveloped arguments without discussion or citation to pertinent legal authority

are waived.”)

These failures of briefing are more egregious yet where, as in the case of qualified

immunity, the law places a significant burden on the plaintiff. “On a qualified immunity claim,

the court confronts two questions: (1) whether the plaintiff’s allegations make out a deprivation

3 Ms. Black is not a proper party to Mr. McCormick’s Fourteenth Amendment claims because she lacks

personal involvement in the conduct. See Vinning-El v. Evans, 657 F.3d 591, 593 (7th Cir. 2011) (“Section 1983

creates liability only for a defendant’s personal acts or decisions.”). Ms. Black was involved only in the initial

removal and did not have any involvement in the children’s continued detention. Therefore, there can be no liability

for Ms. Black for constitutional violations that occurred during the children’s ongoing detention. Similarly, Mr.

McCormick has not stated a basis for Ms. Goebel’s liability. Supervisors are liable only if they were personally

involved in the constitutional violation. Taylor v. Ways, 999 F.3d 478, 493–94 (7th Cir. 2021). “Personal

involvement in a subordinate’s constitutional violation requires supervisors to know about the conduct and facilitate

it, approve it, condone it, or turn a blind eye for fear of what they might see.” Id. While Mr. McCormick previously

alleged involvement by Ms. Goebel, he has not presented evidence in support those allegations. On summary

judgment, he states only that she was a supervisor of the conduct, which is insufficient to create liability.

of a constitutional right; and (2) whether that right was clearly established at the time of the

defendant’s alleged misconduct.” Ault v. Speicher, 634 F.3d 942, 946 (7th Cir. 2011). It is the

plaintiff’s burden to show that the constitutional right was clearly established. Landstrom v.

Illinois Dep't of Child. & Fam. Servs., 892 F.2d 670, 676 (7th Cir. 1990). They can do this one of

two ways: by pointing to precedent clearly establishing the constitutional right or by “showing

that the violation was so obvious that a reasonable person would have known of the

unconstitutionality of the conduct at issue.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1022 (7th

Cir. 2000). If the plaintiff fails to make such a showing, the defendant will prevail. Archer v.

Chisholm, 870 F.3d 603, 613 (7th Cir. 2017).

Mr. McCormick has not identified cases establishing a clear constitutional violation of

any asserted rights, nor has he argued his case presents an obvious violation. The Court begins

with the claim regarding the placement of the children in foster care. To meet his burden, Mr.

McCormick would need to make some specific argument about the children’s rights to be

removed from a foster home after unsubstantiated reports of child abuse. He does not. In lieu of

making a robust argument identifying a clearly established right violated by the children’s

placements, Mr. McCormick writes only, “[t]he Fourteenth Amendment guarantees that ‘a child

has a constitutional right to be placed into a safe and secure foster home.’” (DE 88 at 24) (citing

Waubanascum v. Shawano Cnty., 416 F.3d 658 (7th Cir. 2005)). While this general proposition

appears to support Mr. McCormick’s claim at first blush, a savvy jurist must read on. The very

next sentence of Wubanascum explains: “Specifically, we have recognized that state actors are

liable only if they violated the right of a child in state custody not to be handed over by state

officers to a foster parent or other custodian whom the state knows or suspects to be a child

abuser.” Id. Waubanascum does not clearly establish the unconstitutionality of the children’s

placements because the undisputed facts do not indicate Defendants knew or suspected the

children were being abused while in their placements. Mr. McCormick’s only basis for his claim

are the reports of abuse by the children’s placements investigated by Ms. Nell. Our circuit has

found that during a child’s time in the care of IDCS, unsubstantiated reports of abuse alone are

insufficient to create suspicion of child abuse under the reasonable case worker standard. J.H. ex

rel. Higgin v. Johnson, 346 F.3d 788, 794 (7th Cir. 2003). The facts show Ms. Nell promptly

investigated reports of abuse—frequently made by Mr. McCormick himself—and did not find

them credible. The Court finds a reasonable case worker could have arrived at the same

conclusion. Therefore, Ms. Nell’s actions do not give rise to liability. See Xiong v. Wagner, 700

F.3d 282, 293 (7th Cir. 2012) (case worker properly granted qualified immunity where brief

investigation after child’s injury would not have led a reasonable case worker to suspect abuse).

Mr. McCormick’s argument concerning T.M.’s relative placement, who tested positive

for marijuana, does not fare much better. He states only: “It makes sense that the Department of

Child Services would avoid placing children into an environment where they will be exposed in

any way shape or form to illegal substances[.] [W]hether marijuana was smoked in the presence

of the child or not, they should not be placed in the home of a foster parent who uses something

that is against the laws of the State of Indiana.” (DE 88 at 24.) “It makes sense” is not a proper

basis for establishing a constitutional violation. See Hernandez ex rel. Hernandez v. Foster, 657

F.3d 463, 473–73 (7th Cir. 2011) (party must provide a closely analogous case or some evidence

of patently violative conduct to establish a right). Even generously construing this meager

statement as an obviousness argument, it cannot succeed because it runs contrary to controlling

precedent. See Cibulka v. City of Madison, 992 F.3d 633 (7th Cir. 2021) (obvious violations must

be supported by “some settled authority”). The standard for case worker liability is knowing or

suspecting the caregiver will abuse the child, not knowing or suspecting the caregiver will smoke

weed. Cf. K.H. Through Murphy v. Morgan, 914 F.2d 846, 853 (7th Cir. 1990) (rejecting a

broader right to a stable foster-home environment and noting the real-world limitations in

options for foster placement). Mr. McCormick’s scant argument is insufficient to meet his

burden under qualified immunity, and the Court may properly grant summary judgment. See

Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir. 2018) (affirming judgment as a matter of law where

plaintiff failed to meet burden on second prong of qualified immunity).

E. Conclusion

Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment (DE 77)

on all claims against all remaining Defendants. The Court INSTRUCTS the clerk to prepare a

judgment.

The Court also DENIES Mr. McCormick’s Motion to Strike (DE 86) and DENIES as

moot Defendant’s Motion to Strike Plaintiff’s Motion to Strike (DE 92). The Court further

GRANTS Defendants’ Motion to Maintain Exhibits Under Seal (DE 81), finding that

maintaining the exhibits under seal is in compliance with and advances the purpose of Federal

Rule of Civil Procedure 5.2.

SO ORDERED.

ENTERED: February 7, 2023

/s/ JON E. DEGUILIO

Chief Judge

United States District Court