Orosco v. Swyers

Filing 62

ORDER signed by Judge Rudolph T Randa on 09/08/2010 denying 55 Motion to Compel; granting 24 Motion for Summary Judgment. This action is dismissed. (cc: all counsel; via US Mail to Joseph Orosco) (Koll, J)

O r o s c o v. Swyers

D o c . 62

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

J O S E P H OROSCO, P l a in tif f , -v sJ O A N N E SWYERS, D e f e n d a n t. C a se No. 08-cv-00833

D E C I S I O N AND ORDER

T h e plaintiff, Joseph Orosco, who is currently incarcerated at the Waupun C o r re c tio n a l Institution, filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. H e is proceeding in forma pauperis on Fifth Amendment and substantive due process claims b a se d on allegations that the defendant, Joanne Swyers, interrogated him about a criminal m atter without advising him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). T h e defendant has filed a motion for summary judgment, which will be addressed herein. I . STANDARD FOR SUMMARY JUDGMENT S u m m a ry judgment "should be rendered if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c ); see also Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. C a tre tt, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis.

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1 9 9 1 ). "Material facts" are those facts that, under the applicable substantive law, "might a f f e c t the outcome of the suit." See Anderson, 477 U.S. at 248. A dispute over "material f a ct" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the n o n m o v in g party." Id. T h e burden of showing the needlessness of trial ­ (1) the absence of a genuine is s u e of material fact; and (2) an entitlement to judgment as a matter of law ­ is upon the m o v a n t. However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable ju ry verdict. Id. at 267; see also Celotex Corp., 477 U.S. at 324 ("proper" summary ju d g m e n t motion may be "opposed by any of the kinds of evidentiary materials listed in Rule 5 6 (c ), except the mere pleadings themselves . . ."); Fed. R. Civ. P. 56(e) ("When a motion f o r summary judgment is properly made and supported, an opposing party may not rely m e re ly on allegations or denials in its own pleadings; rather its response must ­ by affidavits o r as otherwise provided in this rule ­ set out specific facts showing a genuine issue for t r i a l " ) . "Rule 56(c) mandates the entry of summary judgment, . . . upon motion, against a p a rty who fails to establish the existence of an element essential to that party's case and on w h ic h that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. I I . FACTS 1 T h e plaintiff alleges that on January 29, 1998, he was seventeen years old and

Facts are taken from the Defendant's Proposed Findings of Fact, the Plaintiff's Proposed Findings of Fact, a n d the Supplemental Affidavit of Joanne Swyers.

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in c a rc e ra te d at Waupun Correctional Institution (WCI). On that date, the plaintiff alleges he w a s escorted in handcuffs attached to a waistbelt to the security office where the defendant a n d DOC Captain Muraski "interrogated" him regarding a criminal matter. The plaintiff a lle g e s that he made inculpatory statements though he was not advised of his "Miranda rig h ts ," and that a criminal complaint was filed in Dodge County Case Number 98CF239 on O c to b e r 5, 1998, charging him with felony intimidation of a victim. This criminal complaint w a s dismissed and the plaintiff was then charged on December 1, 1998, with felony in tim id a tio n of a victim as a repeater in Dodge County Case Number 98CF291 based on his in c u lp a to ry statements. The plaintiff alleges that on June 2, 1999, the state court conducted a n evidentiary hearing to determine if his statements should be suppressed due to the alleged M ir a n d a violation. The state court granted the motion to suppress on August 25, 1999. The p la in tif f alleges that on September 9, 1999, the prosecutor moved to withdraw the criminal c h a rg e in 98CF291 due to a lack of evidence and the court granted the motion on September 1 3 , 1999. Based on his allegations, the plaintiff claims that, (1) the defendant "violated the c o n stitu tio n a l rule of Miranda"; (2) his Fifth Amendment rights were violated when judicial p ro c e ed i n g s were initiated against him based on his statement; and (3) he was denied su b sta n tiv e due process when the defendant interrogated him at the age of seventeen while h e was restrained without providing a Miranda warning. The defendant has worked as a law enforcement officer for the Dodge County S h e rif f 's Department since 1989. At all times relevant, the defendant held the rank of

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D e te c tiv e and she now holds the rank of Detective-Lieutenant. The defendant worked as a P r is o n Investigator within the Dodge County Sheriff's Department from 1995 to 1999, c o n d u c tin g investigations regarding a variety of matters arising in the four Wisconsin D e p a rtm e n t of Corrections (DOC) facilities located within Dodge County, including such m a tte rs as introduction of contraband, sexual assaults, battery of facility staff, and criminal e n te rp ri s e s . The plaintiff's date of birth is February 28, 1980 and he therefore attained the ag e of eighteen on February 28, 1998. The defendant interviewed the plaintiff on January 2 9 , 1998, in a conference room at WCI. Prior to the interview, the defendant determined that th e plaintiff was incarcerated following his conviction on charges of first degree intentional h o m ic id e . During the course of the interview, the plaintiff stated that he was serving a life s e n te n c e . The parties dispute certain aspects of the interview. The defendants' version o f the interview will be set forth, followed by the plaintiff's version. According to the d e f en d a n t, the plaintiff was not restrained during the interview. The defendant stated her p u rp o s e in interviewing the plaintiff and advised him that he was free to leave and did not h a v e to speak with her. The room used for the interview was not selected to restrict the p la in tif f 's movement but rather was selected in consultation with DOC staff regarding a v a ila b le space. On the day of the interview, the defendant did not direct any correctional s ta f f to restrain the plaintiff in handcuffs, to restrain the plaintiff in any other forms of

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re stra in t, or to compel the plaintiff's presence or continued presence for the interview or in t h e interview room against his expressed willingness. The plaintiff was not restrained in h a n d c u ff s and a waistbelt at the time of the interview. The defendant does not recall the p lain tiff asking, "Do I need an attorney or something?" during the interview. According to h e r practice and training, if the plaintiff had asked whether he needed an attorney, the d e f en d a n t would have advised him that she could not provide him with legal advice and w o u ld have ceased asking him any questions. During the interview, the plaintiff did not ask to stop the interview, did not ask to leave the room, did not ask for any other individuals to b e brought to the room, did not state he would not answer questions, and did not ask for an a tto rn e y to be present. The defendant did not instruct the plaintiff that he could not get up f ro m his chair until escorted from his chair. At the time of the interview, the defendant was n o t aware of any bright line rule requiring Miranda warning to prisoners under circumstances p re se n te d . At the time of the interview, the defendant was proceeding based on guidance re c eiv e d from the Wisconsin Department of Justice regarding the warnings to be provided to convicted prisoners interviewed in their "home" DOC facility. A c c o rd in g to the plaintiff, on January 29, 1998, while incarcerated in the s e g re g a tio n unit at WCI, Officer Cunningham came to his cell door and ordered him to place h is hands through the trap. The plaintiff complied and Officer Cunningham handcuffed his w rists together. Officer Cunningham told the plaintiff that a detective was there to see him a n d the plaintiff responded that he did not want to talk to any detective but he was told that

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h e did not have a choice. Officer Cunningham guided the plaintiff by his arm to the captain's o f f ice , ordered him to sit in a chair, and then left, closing the door behind him. DOC Captain M u ra s k i and the defendant were seated in the captain's office when the plaintiff entered. At a ll times during the interrogation on January 29, 1998, and while the plaintiff was out of his se g re g a tio n cell, he remained with his wrists handcuffed and secured to the front of the belt th a t was around his waist. Once the plaintiff was seated, the defendant proceeded to a g g re ss iv e ly interrogate him about a crime that he was suspected of committing. At one p o in t in the interrogation the plaintiff asked the defendant, "Do I need an attorney or s o m e th in g ? " The defendant responded, "What for?", and then continued to interrogate him. It is undisputed that in response to the interrogation, the plaintiff confessed to c o m m ittin g the crime that the defendant was investigating. It is also undisputed that at no tim e on January 29, 1998, did the defendant inform the plaintiff of his rights under Miranda v . Arizona. Following his confession, the plaintiff was charged with a felony on two separate o cc asio n s, and attended two initial appearances, a preliminary hearing, and several court a p p e ara n c es . On August 25, 1999, Dodge County Circuit Judge Daniel W. Klossner su p p resse d the plaintiff's statement and found that the defendant had violated the plaintiff's F if th Amendment rights during the interrogation. Judge Klossner ruled in relevant part: In this case, the state concedes both the custody and in terro g atio n prongs for Miranda. Instead, the issue presented b y this case is whether the Miranda rule should apply to guards w ith in the state prison system. In a recent case handed down by the Wisconsin Supreme Court, 6

th e court held that, "a person who is incarcerated is per se in c u sto d y for purposes of Miranda." State v. Armstrong, 223 Wis. 2 d 331, 355 (1999). Accordingly, the State concedes the Mr. O ro s c o was "in custody" for purposes of Miranda under current W is c o n sin law. The Court agrees and finds that Mr. Orosco was in custody for Miranda purposes by virtue of his incarceration. H o w e v e r, the State suggests that the decision in Armstrong sh o u ld perhaps be revisited because it may lead to absurd r e s u lts . Instead of a per se rule, the State suggests that a more p ra c tic a l "totality of circumstances" test should be utilized. The C o u rt finds that even if a totality of circumstances test is ap p lied , the facts of this case do not support a finding that Mr. O ro sc o was not in custody at the time of Det. Swyers' q u e stio n in g . As previously stated, Mr. Orosco was in s e g re g a tio n at the time of the interview. He was escorted to the s e c u rity office in belly chains and handcuffs. The escorting o f f ic e r told him that he had no choice but to meet with the D e te c tiv e . Although he was told by Det. Swyers that he did not h a v e to speak with her, his placement in segregation placed s e rio u s limitations on his movement within the institution from w h ic h Mr. Orosco could reasonably conclude that he really was n o t free to leave. These facts reveal the type of situation which M ir a n d a was designed to protect against. Even if his prison in c a rc e r a t io n should not constitute per se custody, Mr. Orosco w a s taken out of his familiar surrounding to be escorted to the s e c u rity office. He was also isolated from others when and left a lo n e with Det. Swyers and Capt. Muraski [sic]. See State v. C la p p e s, 117 Wis. 2d 277, 282 (1984) ("The Supreme Court in M ir a n d a dealt in main with the restricted and coercive a tm o s p h e re when the defendant is accompanied only by the p o l ic e and is in isolation from others and the world in general a n d the psychological pressures thus placed upon the d ef en d an t.") Thus, even under a "totality of circumstances" rule, th is is not a case which warrants a finding that Mr. Orosco was n o t in custody. T h e State also argues that the prison authorities are not law e n f o r c e m e n t officials who are required to provide Miranda rig h ts at the time of the questioning. Ostensibly, the state argues 7

th at the prison authorities are incapable of acting in either a crim in al investigation or a prosecutorial function. The Court f a ils to understand this argument as it relates to the facts of this c a se . It was Det. Swyers who was conducting the investigation a t the prison in this case, not the prison authorities. It was also D e t. Swyers who failed to read the Miranda warning. Det. S w ye rs is a detective from the Dodge County Sheriff's Office w h o was conducting a criminal investigation at the time the s ta te m e n ts were made. This could not be a clearer case of s o m e o n e acting in a law enforcement capacity. T h e Court also finds that Det. Swyers' questioning constituted "in terro g atio n " under Miranda. In determining whether a police q u e stio n in g constitutes an interrogation, the test is whether an o b je c tiv e observer could foresee that the officer's conduct w o u ld elicit an incriminating response. Rhode Island v. Innis, 4 4 6 U.S. 291, 301 (1980). "Incriminating response" means any re sp o n s e , whether inculpatory or exculpatory, that the p ro s e c u tio n might seek to introduce at trial. Id. at 301, n.5. A s an initial matter, the state does not really contest the fact that D etec tiv e Swyers was conducting an interrogation of Mr. O ro s c o . Furthermore, although the state didn't introduce testim o n y of the exact questions asked by Det. Swyers, the Court n o n e th e le s s finds that her questioning was an interrogation. D e t. Swyers admits that the purpose of her questioning was to in v estig ate the allegations against Mr. Orosco. Additionally, she so licite d information regarding his knowledge of the third party w h o was the perpetrator of the battery against the victim. She a lso solicited statement that Mr. Orosco admitted to talking with th e victim as well as statements of Mr. Orosco calling the victim a "muck or a coon." From these facts, the Court can reasonably d e d u c t that Det. Swyers questioning of Mr. Orosco was d e s ig n e d to elicit incriminating responses. F in a lly, since the Court will order that the statement must be s u p p re ss e d because of the Miranda violation, the Court does not a d d re s s the issue of whether the statements are voluntary. (P l. Exh. C. at 2-3.) 8

I I I. ANALYSIS A . Substantive Due Process Claim T h e concept of substantive due process prevents the state from taking certain a c tio n s even if it provides procedural safeguards. See County of Sacramento v. Lewis, 523 U .S . 833, 840 (1998); Washington v. Glucksberg, 521 U.S. 702, 719 (1997); Daniels v. W illia m s, 474 U.S. 327, 331 (1986); Zinermon v. Burch, 494 U.S. 113, 125 (noting that s u b s ta n tiv e due process violations are actionable under § 1983). "The nub of a substantive d u e process claim is that some things the state just cannot do, no matter how much process it provides." Miller v. Henman, 804 F.2d 421, 427 (7th Cir. 1986). Therefore, the right to s u b s ta n tiv e due process protects citizens against government conduct that is arbitrary or w ith o u t reasonable justification. Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir. 2005). H o w e v e r, "only the most egregious official conduct" can be said to be arbitrary in the c o n s titu tio n a l sense. Lewis, 523 U.S. at 846 (holding that a police officer did not violate the su b stan tiv e due process rights of a passenger who died as a result of a high speed chase). " `O n ly the most egregious official conduct' is arbitrary in the constitutional sense." Dunn v . Fairfield Comm. High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir. 1998) (quoting L e w is, 523 U.S. at 845). To constitute a violation of substantive due process rights, the o f f ic ia l conduct must "shock the conscience" because it is "unjustifiable by any g o v e rn m e n ta l interest." Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1013 (7th Cir. 2 0 0 2 ).

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In Chavez v. Martinez, 538 U.S. 760, 779-80 (2003), the Supreme Court held th a t a suspect who was allegedly subjected to coercive interrogation after he had been shot b y another officer had an arguable substantive due process claim. Upon remand, the Ninth C irc u it Court of Appeals stated in relevant part: T h e Fourteenth Amendment's Due Process Clause p ro te c ts individuals from state action that either "shocks the c o n sc ie n c e," Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 9 6 L.Ed. 183 (1952) or interferes with rights "implicit in the c o n c ep t of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 5 8 S.Ct. 149, 82 L.Ed. 288 (1937). Martinez alleges that C h a v e z brutally and incessantly questioned him, after he had b e e n shot in the face, back, and leg and would go on to suffer b lin d n e ss and partial paralysis, and interfered with his medical tre a tm e n t while he was "screaming in pain ... and going in and o u t of consciousness." Chavez allegedly continued this " in te rro g a tio n " over Martinez's pleas for him to stop so that he c o u ld receive treatment. If Martinez's allegations are proven, it w o u ld be impossible not to be shocked by Sergeant Chavez's a c tio n s . A clearly established right, fundamental to ordered lib e rty, is freedom from coercive police interrogation. See, e.g., D a r w in v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 6 3 0 (1968); Beecher v. Alabama, 389 U.S. 35, 36, 88 S.Ct. 189, 1 9 L.Ed.2d 35 (1967); Reck v. Pate, 367 U.S. 433, 439-40, 81 S .C t. 1541, 6 L.Ed.2d 948 (1961); Leyra v. Denno, 347U.S. 556, 7 4 S.Ct. 716, 98 L.Ed. 948 (1954); Malinski v. New York, 324 U .S . 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). Because, under th e facts alleged by Martinez, Chavez violated Martinez's clearly e s ta b lis h e d due process rights, see Saucier v. Katz, 533 U.S. 1 9 4 , 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), we affirm th e district court's denial of qualified immunity to Chavez. The u l t im a te resolution of the merits of Martinez's Fourteenth A m e n d m e n t claim will depend upon the resolution of contested f a c ts. We leave that resolution to the district court. M a r tin e z v. City of Oxnard, 337 F.3d 1091, 1092 (9th Cir. 2003)

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In this case, taking the facts in the light most favorable to the plaintiff, the d e f en d a n t conducted an investigatory interrogation of him while he was handcuffed and w ith o u t advising him of his Miranda rights. On the day of the interrogation, the plaintiff was se v e n tee n years old. Following the interrogation, the plaintiff was charged with a felony in s ta te court on two occasions, and attended two initial appearances, a preliminary hearing, and sev era l court appearances. On August 25, 1999, the state court suppressed the plaintiff's sta tem e n t, finding that the defendant violated the plaintiff's rights under the Fifth A m e n d m e n t during the interrogation because of the Miranda violation. B a se d on these facts, the defendant's conduct does not shock the conscience. T h e defendant's actions were related to a legitimate criminal investigation. She interrogated h im , in the presence of another officer, in the captain's office. Moreover, taking as true the p la in tif f 's assertion that he was handcuffed during the interrogation as well as the undisputed f a ct that he was only seventeen years old at the time, these factors are less troubling given th a t the plaintiff had previously had the experience of being incarcerated in segregation in a n adult institution following a conviction for first degree intentional homicide. The s u b s ta n tiv e due process doctrine is extremely limited in scope, and the defendant's alleged ac ts are simply insufficient to support a substantive due process violation. The defendant's c o n d u c t is far from police interrogation procedures that do violate the standard. See Chavez, 5 3 8 U.S. at 787 n.1 (citing Darwin v. Connecticut, 391 U.S. 346 (1968) (suspect interrogated f o r 48 hours incommunicado while officers denied access to counsel); Beecher v. Alabama,

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3 8 9 U.S. 35, 36 (1967) (officer fired rifle next to suspect's ear and said "If you don't tell the tr u th I am going to kill you"); Clewis v. Texas, 386 U.S. 707 (1967) (suspect was arrested w ith o u t probable cause, interrogated for nine days with little food or sleep, and gave three u n w a rn e d "confessions" each of which he immediately retracted); Reck v. Pate, 367 U.S. 4 3 3 , 439-440 (1961) (mentally retarded youth interrogated incommunicado for a week " d u rin g which time he was frequently ill, fainted several times, vomited blood on the floor o f the police station and was twice taken to the hospital on a stretcher)). Based on the f o re g o in g , the plaintiff's substantive due process claim will be dismissed. B . Fifth Amendment Claim In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that b e f o re police officers may interrogate a suspect who is in custody, they must inform the s u s p e c t of his right to remain silent and his right to an attorney. It is undisputed that the p lain tiff was interrogated by the defendant on January 29, 1998 without being advised of his M ir a n d a rights. In Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1026-1027 (7th Cir. 2 0 0 6 ), the Seventh Circuit held that "where ... a suspect's criminal prosecution was not only in itia te d , but was commenced because of her allegedly un-warned confession, the `criminal c a se ' contemplated by the Self-Incrimination Clause has begun." Id. The court concluded th a t the use of an un-warned confession to find probable cause, set bail and arraign "allows a suit for damages under § 1983 ." Id. at 1027. T h e defendant contends that she is entitled to judgment on grounds of qualified

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im m u n ity. "The doctrine of qualified immunity protects government officials `from liability f o r civil damages insofar as their conduct does not violate clearly established statutory or c o n st it u t io n a l rights of which a reasonable person would have known.'" Pearson v.

C a lla h a n , -- U.S. --, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 8 0 0 , 818 (1982)). The defense of qualified immunity requires the court to determine whether the law was clearly established such that a reasonable government official would have known th a t the actions taken or not taken violated that right. Id. In determining whether a right is c lea rly established, the Court must look to controlling Supreme Court and Seventh Circuit p re c e d e n t. Baird v. Renbarger, 576 F.3d 340, 345 (7th Cir. 2009). Once qualified immunity h a s been raised as an affirmative defense, the plaintiff has the burden of demonstrating that th e defendant's error was clearly established. Wheeler v. Lawson, 539 F.3d 629, 639 (7th C ir.2 0 0 8 ) (citations omitted). In 1989, it was not clear that a failure to give a Miranda warning itself was a v io la tio n of a constitutional right, as opposed to simply being a ground for excluding e v id e n c e obtained from a suspect in a criminal case before the warning was given. At the tim e of the alleged violation, no opinion from the Supreme Court or the Court of Appeals for th e Seventh Circuit held that a failure to give a Miranda warning violated a person's co n stitu tio n al rights. Thornton v. Buchmann, 392 F.2d 870, 874 (7th Cir. 1968); Locke v. G r e e r, 963 F.2d 375, *1 (7th Cir. 1992) (unpublished) ("failure to give Miranda warnings is not cognizable under 42 U.S.C. § 1983"); see also Warren v. City of Lincoln, Neb., 864

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F .2 d 1436, 1442 (8th Cir.1989) (remedy "for a Miranda violation is the exclusion from e v id e n c e of any compelled self-incrimination, not a section 1983 action"); Bennett v. Passic, 5 4 5 F.2d 1260, 1263 (10th Cir. 1976). In the absence of clear Supreme Court authority, a failure to give a Miranda w a rn in g was not clearly established as a constitutional violation until Sornberger v. K n o x v ille , 434 F.3d 1006 (7th Cir. 1006). Because it was not clearly established until 2006 th a t a failure to give a Miranda warning was a constitutional violation, the defendant is e n title d to qualified immunity for his failure to give the plaintiff a Miranda warning on J a n u a ry 29, 1998. I V . ADDITIONAL MATTER O n July 29, 2010, the plaintiff filed a document requesting that the court c o m p e l the defendant to produce the names of inmates she previously interviewed, or altern ativ ely, the name of every inmate whose refusal to be interviewed was honored by her. T h e court previously resolved a motion to compel filed by the plaintiff containing this d isc o v e ry request. Moreover, any response to this discovery request that the defendant could p ro v id e would not be relevant to a resolution of this case. IT IS THEREFORE ORDERED that the defendants' motion for summary ju d g m e n t (Docket #24) is granted. I T IS FURTHER ORDERED that the plaintiff's renewal motion to compel ( D o c k e t #55) is denied.

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I T IS FURTHER ORDERED that the Clerk of Court enter judgment d is m is s in g the plaintiff's claims and this action. D a te d at Milwaukee, Wisconsin, this 8th day of September, 2010. S O ORDERED, s / Rudolph T. Randa H O N . RUDOLPH T. RANDA U . S. District Judge

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