UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

CALVIN WILSON and ASIA MARSHALL, 

individually and on behalf of all others 

similarly situated, 

 Plaintiffs, 

v. CAUSE NO.: 1:15-CV-402-TLS-SLC 

ALLEN COUNTY BOARD OF 

COMISSIONERS, ALLEN COUNTY 

COUNCIL, and ALLEN COUNTY PUBLIC 

DEFENDER BOARD, 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court on Defendants’ Motion to Dismiss the Third Amended 

Complaint [ECF No. 137], filed on September 9, 2019. Defendants seek dismissal of the lawsuit 

under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the basis 

that the claims brought by Plaintiff Asia Marshall are moot. Ms. Marshall has not filed a 

response, and the time to do so has passed. For the reasons set forth below, the Court GRANTS 

in part and DENIES in part Defendants’ motion to dismiss, dismissing the lawsuit as to Plaintiff 

Asia Marshall only. 

PROCEDURAL AND FACTUAL BACKGROUND 

 On December 31, 2015, Plaintiff Calvin Wilson filed a Complaint [ECF No. 1] in the 

instant cause number individually and on behalf of others similarly situated, alleging that 

Defendants operated a constitutionally and structurally deficient public defender system for 

indigent defendants charged with misdemeanor crimes in Allen County, Indiana. On February 
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23, 2016, a First Amended Complaint [ECF No. 19] was filed to add David Blume as a plaintiff. 

On May 17, 2016, a Second Amended Complaint [ECF No. 27] was filed to clarify allegations. 

 Previously, on January 12, 2015, Asia Marshall was charged in Allen County, Indiana, 

with committing the misdemeanor crimes of Domestic Battery and Disorderly Conduct 

(“Misdemeanor Case”). Third Am. Compl. ¶¶ 12, 45a, ECF No. 45. On March 9, 2016, Ms. 

Marshall was appointed a public defender in her state Misdemeanor Case. See Third Am. Compl. 

¶ 45b; see also Mem. in Supp. of Mot. to Dismiss, Ex. B (Marshall Dep. Ex. C) p. 7, ECF No. 

138-2. On June 29, 2016, a jury trial was held, and Ms. Marshall was found guilty of committing 

Domestic Battery and Disorderly Conduct. Third Am. Compl. ¶¶ 45d, 45g. As a result, Ms. 

Marshall was sentenced to thirty days in jail. See Mem. in Supp. of Mot. to Dismiss, Ex. B 

(Marshall Dep. Ex. C) p. 8. She appealed her conviction and was represented by an Allen County 

Public Defender on appeal. Third Am. Compl. ¶ 45k.

 Seeking to add Ms. Marshall as a plaintiff in this case based on the representation she 

received by the Allen County Public Defender in her state criminal proceedings, Plaintiffs 

Wilson and Blume filed a Motion for Leave to File a Third Amended Complaint on August 11, 

2016. With leave of Court, Plaintiffs Wilson, Blume, and Marshall filed the Third Amended 

Complaint [ECF No. 45] on August 19, 2016. 

 Individually, Ms. Marshall alleges that she is being represented by an Allen County 

public defender in her Misdemeanor Case, “now on appeal,” and that the public defender is 

unable to properly represent her due to his excessive caseload created by the Defendants’ failure 

to hire a sufficient number of public defenders. Third Am. Compl. ¶¶ 34, 45. Based on these 

allegations, Ms. Marshall claims that the Defendants are violating her constitutional right as an 

indigent criminal defendant to effective assistance of legal counsel guaranteed by the Sixth and 
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Fourteenth Amendments to the United States Constitution and Section 13(a) of Article 1 of the 

Indiana State Constitution. Id. ¶¶ 45, 52, 54. Ms. Marshall seeks declaratory and prospective 

injunctive relief against Defendants, seeking an increase in the number of public defenders and 

support staff providing legal representation to indigent defendants facing misdemeanor charges 

filed in Allen County State Courts. Id. p. 20. Ms. Marshall makes no request for relief in the 

form of money damages in the Third Amended Complaint. 

 In the state Misdemeanor Case, the Indiana Court of Appeals issued a Memorandum 

Decision on February 22, 2017, affirming Ms. Marshall’s conviction for Domestic Battery and, 

based on the Double Jeopardy Clause of the Indiana Constitution, remanding her case to the trial 

court to vacate the conviction and sentence for Disorderly Conduct. See Mem. in Supp. of Mot. 

to Dismiss, Ex. C (Mem. Decision) pp. 8, 9, ECF No. 138-3. On May 31, 2017, the Allen 

Superior Court vacated Ms. Marshall’s conviction and sentence for Disorderly Conduct. See id., 

Ex. D (Case Summary) p. 15, ECF No. 138-4. Finally, on August 3, 2017, Ms. Marshall’s state 

Misdemeanor Case was closed. Id. p. 19. 

 The Third Amended Complaint also brings class action allegations under Federal Rule of 

Civil Procedure 23(b)(2), seeking declarative and injunctive relief. Third Am. Compl. ¶¶ 16–23. 

On August 30, 2016, Plaintiffs filed a First Amended Motion for Class Certification [ECF No. 

48]; however, on August 14, 2017, the Court denied the motion with leave to refile [ECF No. 

76]. No subsequent motion for class certification has been filed. 

 On August 29, 2017, Plaintiff David Blume’s claims were dismissed with prejudice 

pursuant to an agreement by the parties. See Stip. to Dismiss, ECF No. 77. 

 In May and June 2018, counsel for the remaining parties engaged in settlement 

negotiations. See Defs.’ Mot. Enforce Settlement Agreement. ¶¶ 2–4, ECF No. 104. Counsel 
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agreed that, in light of actions that Defendants Allen County Council and Allen County Public 

Defender Board had taken after this lawsuit was filed to increase the size of the staff of the Allen 

County Public Defender’s Office, Plaintiffs’ request for prospective injunctive relief in the Third 

Amended Complaint had been satisfied. See id. ¶ 2. Defendants offered a number of terms of 

settlement, which included, among other things, payment of attorney fees and costs of $90,000 to 

Plaintiffs’ counsel, release by Plaintiffs of all claims they had against any of the Defendants for 

“anything relating to the public defender services provided by the Allen County Public 

Defender’s Office” to Plaintiffs, dismissal of the lawsuit, and execution of an agreement 

reflecting these terms by Plaintiffs, Defendants, and Plaintiffs’ counsel. Id. ¶ 2. In response, 

counsel for Plaintiffs communicated that Plaintiffs would accept the terms if a “carve out” was 

included to allow Ms. Marshall to retain the right to sue Allen County Public Defender Ryan 

Lackey for alleged malpractice in the Misdemeanor Case. Id. ¶ 3. On June 15, 2018, counsel for 

Defendants called Plaintiffs’ counsel and communicated that Defendants agreed to the requisite 

“carve out.” Id. ¶ 4. Thus, in Defendants’ view, this lawsuit settled on June 15, 2018. Id. 

 On June 19, 2018, Plaintiffs’ counsel requested certain additional modifications, 

including a second “carve out” for Ms. Marshall to bring a lawsuit against Allen County Public 

Defender David Joley for alleged malpractice during representation of her in the Misdemeanor 

Case on appeal. Id. ¶ 6. Defendants agreed and sent a revised draft of the Settlement Agreement 

on July 10, 2018. Id. ¶ 7. On July 18, 2018, during a telephone call, Plaintiffs’ counsel informed 

counsel for Defendants that Ms. Marshall was not happy with the settlement because she was not 

receiving any money. Id. ¶ 8. 

 On August 3, 2018, counsel for Defendants sent a final version of the settlement 

agreement to Plaintiffs’ counsel. Id. ¶ 10. That same date, Plaintiffs’ counsel expressed Ms. 
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Marshall’s new concern that there was no language in the Settlement Agreement identifying the 

changes made to the Allen County Public Defender’s Office as a result of this lawsuit. Id. ¶ 11. 

Although the Settlement Agreement already contained such language, Defendants agreed to add 

more language identifying the changes. Id. ¶ 13. On August 16, 2018, August 17, 2018, and 

September 6, 2018, Defendants Allen County Council, Allen County Board of Commissioners, 

and Allen County Public Defender Board, respectively, voted on, approved, and executed the 

Settlement Agreement. Id. ¶¶ 16–18. On August 30, 2018, Plaintiffs’ counsel informed counsel 

for Defendants that Ms. Marshall refused to sign the Settlement Agreement and that she was now 

demanding $300,000 in damages. Id. ¶¶ 20–21. 

 As for Plaintiff Calvin Wilson’s claims, Defendants represent that Mr. Wilson executed 

the Settlement Agreement on August 29, 2018, wherein he released all claims against 

Defendants arising from the allegations of the Third Amended Complaint and agreed to dismiss 

the lawsuit with prejudice. See Mem. of Law in Supp. of Defs.’ Mot. to Dismiss Third Am. 

Compl. p. 1, n.1, ECF No. 138; see also Defs.’ Mot. Enforce Settlement Agreement. ¶¶ 19–20. 

No motion has been filed to dismiss Mr. Wilson’s claims. 

 On September 18, 2018, Defendants filed a Motion to Enforce Settlement Agreement 

[ECF No. 104]. On September 20, 2018, the Court received a letter [ECF No. 106] from Ms. 

Marshall setting forth her dissatisfaction with Plaintiffs’ attorneys’ representation in this lawsuit 

and asking that the Court withdraw their representation of her. The same date, counsel for 

Plaintiffs moved to withdraw [ECF No. 107] their appearances on behalf of Ms. Marshall. On 

October 29, 2018, Plaintiffs’ counsel filed a Supplemental Report [ECF No. 114], in which 

Plaintiffs’ counsel explained that Ms. Marshall had been advised that she needed independent 
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“criminal legal malpractice” attorneys to proceed with any litigation against her Allen County 

Public Defenders for monetary relief. See Suppl. Report ¶ 10, ECF No. 114. 

 On October 29, 2018, the Court held a telephonic status conference [ECF No. 115] at 

which the Court granted the motion to withdraw appearance, took under advisement the Motion 

to Enforce Settlement Agreement, and granted Ms. Marshall until November 30, 2018, to retain 

counsel or file a written document advising the Court why the Settlement Agreement should not 

be approved. On November 19, 2018, Ms. Marshall, proceeding without counsel, filed a Petition 

for Relief [ECF No. 116], asking this Court for relief based on the alleged “ineffective 

assistance” of Plaintiffs’ counsel in this case. The Petition for Relief was then fully briefed. 

 On July 25, 2019, the Court issued an Opinion [ECF No. 133] denying the Defendants’ 

Motion to Enforce Settlement Agreement and granting in part and denying in part Ms. 

Marshall’s Petition for Relief, granting the Petition for Relief only to the extent Ms. Marshall 

asked the Court to decline to enforce the Settlement Agreement. 

On September 9, 2019, Defendants filed the instant Motion to Dismiss the Third 

Amended Complaint [ECF No. 137], seeking dismissal of the Third Amended Complaint on the 

basis that Ms. Marshall is the “only plaintiff actively litigating the Lawsuit,” id. p. 1, n.1, and 

that Ms. Marshall’s individual claims are moot. In light of her pro se status, the Court sua sponte 

issued an Order on October 9, 2019, extending the deadline for Ms. Marshall to file a response to 

the Motion to Dismiss to October 25, 2019. Ms. Marshall has not filed a response, and the 

motion is ripe for review. 

LEGAL STANDARD 

A motion to dismiss challenging a court’s subject matter jurisdiction based on mootness 

is brought under Federal Rule of Civil Procedure 12(b)(1). See Evers v. Astrue, 536 F.3d 651, 
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662 (7th Cir. 2008) (“Mootness is a threshold jurisdictional question that insures that the court is 

faithful to the case or controversy limitation in Article III of the Constitution.”); St. John’s 

United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (recognizing that 

a motion to dismiss on mootness grounds is brought under Rule 12(b)(1)). In analyzing a Rule 

12(b)(1) motion, the Court accepts as true the plaintiff’s well-pleaded allegations and draws 

reasonable inferences in favor of the plaintiff. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 

(7th Cir. 1999). However, a court “may properly look beyond the jurisdictional allegations of the 

complaint and view whatever evidence has been submitted on the issue to determine whether in 

fact subject matter jurisdiction exists.” St. John’s United Church of Christ, 502 F.3d at 625 

(quoting Long, 182 F.3d at 554). As the party seeking the federal forum, Ms. Marshall bears the 

burden of establishing subject matter jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 

342 n.3 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)).

ANALYSIS 

In the instant Motion to Dismiss, Defendants ask the Court to dismiss the Third Amended 

Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. 

Defendants argue that, because Ms. Marshall’s state Misdemeanor Case is closed, her claim for 

declaratory and injunctive relief no longer presents a live controversy and is moot, requiring 

dismissal of the lawsuit. The Court agrees that Ms. Marshall’s claims are moot and dismisses her 

claims. However, dismissal of the lawsuit is not proper because Plaintiff Calvin Wilson remains 

a party to the litigation. 

“Article III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ 

and ‘Controversies.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013); see also Home Care 

Providers, Inc. v. Hemmelgarn, 861 F.3d 615, 620 (7th Cir. 2017). Thus, a plaintiff who invokes 
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the power of the federal court must demonstrate standing—that is a “personal injury fairly 

traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the 

requested relief.” Already, LLC, 568 U.S. at 90 (quoting Allen v. Wright, 468 U.S. 737, 751 

(1984)). The Supreme Court has repeatedly held that an “actual controversy” must exist both at 

the time the complaint is filed as well as through “all stages” of the litigation. Id. at 90–91 

(quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009)); Powell v. McCormack, 395 U.S. 486, 496 

(1969). 

“As a general rule, cases or individual claims for relief become moot when the issues 

presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” 

UWM Student Ass’n v. Lovell, 888 F.3d 854, 860 (7th Cir. 2018) (internal quotation marks 

omitted) (quoting Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 990 (7th Cir. 2000) 

(quoting Powell, 395 U.S. at 496)); see also Already, LLC, 568 U.S. at 91 (quoting Murphy v. 

Hunt, 455 U.S. 478, 481 (1982)). And, “mootness, however it may come about, simply deprives 

[the court] of [its] power to act.” Spencer v. Kemna, 523 U.S. 1, 18 (1998). Thus, “[i]f an 

intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the 

lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed 

as moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting Lewis v. Cont’l 

Bank Corp., 494 U.S. 472, 477–78 (1990)); see also Milwaukee Police Ass’n v. Bd. of Fire & 

Police Comm’rs, 708 F.3d 921, 929 (7th Cir. 2013). 

 In this case, Defendants do not dispute that Plaintiff Asia Marshall had standing at the 

time the Third Amended Complaint was filed. Rather, Defendants argue, and the Court agrees, 

that Ms. Marshall no longer has a “personal stake” in the outcome of this litigation and her 

claims are moot. The Third Amended Complaint alleges that Ms. Marshall is currently at risk of 
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being convicted of committing the criminal charges filed against her in the “pending” state 

Misdemeanor Case due to the ineffective assistance of counsel of her public defender. The claim 

is based on the alleged inability of the public defender to properly represent Ms. Marshall due to 

his excessive caseload created by the allegedly unconstitutional actions of Defendants. The only 

remedy sought by Ms. Marshall for this “ongoing risk” to her constitutional rights is declaratory 

and prospective injunctive relief that would require Defendants to hire more misdemeanor public 

defenders. 

 However, Ms. Marshall’s state Misdemeanor Case in Allen County was resolved and 

closed on August 3, 2017. As a result, Ms. Marshall is no longer an indigent criminal defendant 

represented by a public defender from the Allen County Public Defender’s Office in a pending 

criminal case filed in the Allen County State Court. Therefore, there is no longer a live case or 

controversy between Ms. Marshall and Defendants in this litigation. Ms. Marshall currently faces 

no ongoing or foreseeable risk of being denied her constitutional rights due to the alleged 

ineffective assistance of counsel by her former Allen County Public Defender. There is no basis 

for the requested declaratory and injunctive relief sought by Ms. Marshall. 

 Notwithstanding the extension of time granted by the Court, Ms. Marshall has not 

responded to the instant motion to pursue her individual claim or to express an intent to proceed 

on any claim on behalf of a potential class. No class has been certified, and no motion for class 

certification has been filed. See, e.g., Alvarez, 558 U.S. at 89–94 (finding the case moot where 

the underlying property disputes of the named plaintiffs, who had only sought declaratory and 

injunctive relief, had ended and no class was certified, and finding that the individual plaintiffs 

could not rely on the “capable of repetition yet evading review” exception to the mootness 

doctrine because they could not show that they were likely to be subjected to the complained-of 
10 

state procedures); Olson v. Brown, 594 F.3d 577, 580, 582–83 (7th Cir. 2010) (finding that, 

although the case would be moot if the named plaintiff had only brought claims individually 

because that controversy had been resolved, the case as to the class was not moot under the 

“inherently transitory” doctrine because the plaintiff had filed a motion for class certification 

while he was still a party to the live controversy). 

 Because Ms. Marshall no longer has a personal stake in this litigation that seeks only 

declaratory and injunctive relief, her claims are moot and cannot proceed. However, Mr. Wilson 

remains a plaintiff to this litigation. Although the Court recognizes that Defendants attached a 

copy of the settlement agreement Mr. Wilson executed on August 29, 2018, agreeing to 

dismissal of the lawsuit with prejudice, no stipulation to dismiss his claims under Federal Rule of 

Civil Procedure 41(a)(2) has been filed to date. Therefore, the Court grants dismissal of Ms. 

Marshall’s claims only. 

CONCLUSION 

 Based on the foregoing, the Court hereby GRANTS in part and DENIES in part 

Defendants’ Motion to Dismiss the Third Amended Complaint [ECF No. 137] and ORDERS that 

the claims brought by Plaintiff Asia Marshall individually are hereby DISMISSED without 

prejudice. The case remains pending as to Plaintiff Calvin Wilson. 

SO ORDERED on February 5, 2020. 

 s/ Theresa L. Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT