Ewell v. Toney et al

Filing 61

DECISION AND ORDER signed by Judge Pamela Pepper on 1/4/2016 GRANTING 42 defendant Eric Toney's Motion to Dismiss; GRANTING 50 defendants Bobo and Ledger's Motion to Dismiss; and DISMISSING the Complaint. (cc: all counsel) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TINA M EWELL,

Case No. 14-cv-931-pp
Plaintiff,

v.
ERIC TONEY, WILLIAM LEDGER,
and MATT BOBO,
Defendants.

DECISION AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT (DKT. NOS. 42, 50)
_____________________________________________________________________________
I.

INTRODUCTION
On August 4, 2014, plaintiff Tina Ewell filed a complaint under 42 U.S.C.

§1983. Dkt. No. 1. She amended the complaint on March 20, 2015. Dkt. No.
40. In the amended complaint, the plaintiff asserted that the defendants acted
in a conspiracy to deprive her of her Fourth and Fourteenth Amendment rights.
Id. at ¶31. The alleged violations included false arrest and false imprisonment.
Id. at ¶¶31-35. Defendants Toney, Bobo and Ledger have filed motions to
dismiss the complaint in its entirety. Dkt. Nos. 42, 50. The court grants those
motions.
II.

FACTS
The allegations in the amended complaint stem from a series of events

that occurred between November 1 and November 20, 2013. Dkt. Nos. 33-1 at
2-6; 40 at ¶5. At that time, defendant Toney served as the District Attorney for

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Fond du Lac County. Dkt. No. 40 at ¶3. Defendants Ledger and Bobo were
detectives in the Fond du Lac City Police Department. Id. at ¶4. The
department tasked the detectives with investigating a November 5, 2013 report
that an individual had been missing since November 1, 2013, and the
investigation led them to question the plaintiff. Dkt. No. 33-1 at 2; Id. at 6. See
also Dkt. No. 52-1. As a result of the plaintiff’s responses to the investigators’
questions, and as a result of their review of surveillance video taken at a dollar
store the night the person was alleged to have gone missing, the detectives
asked the plaintiff to “accompany them to the Fond Du Lac Police Department
for further interrogation.” Dkt. No. 33-1 at 5; Dkt. No. 40 at ¶9. When the
plaintiff declined to do so, the detectives arrested her and took her to the police
department. Id. at ¶10. The plaintiff alleges that the arrest occurred without
probable cause and in retaliation for her assertion of her constitutional rights.
Id. at ¶12.
While under interrogation, the plaintiff asserted her right to remain
silent, and she requested counsel. Id. at ¶15. Once the interrogation was over,
the defendants had the plaintiff transported to the Fond du Lac County Jail. Id.
at ¶17. The plaintiff alleges that the detectives “could not have had a
reasonable belief that plaintiff had committed an offense.” Id. at ¶18. The
detectives “informed [the] jailers” that the plaintiff “was being charged with
mutilating or hiding a corpse [Wis. Stat. §940.11], and with resisting or
obstructing an officer [Wis. Stat. §946.41].” Dkt. No. 43 at 2.

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The arrest, and transportation to the jail, took place on November 20,
2013. Dkt. No. 43 at 2. According to the plaintiff, defendant Toney (the district
attorney for Fond du Lac County) became aware of the arrest around November
20, 2013, and knew or should have known that no probable cause existed to
charge the plaintiff. Dkt. No. 40 at ¶19-20. Defendant “Ledger knew that Toney
would not file a criminal complaint . . . without more information.” Dkt. No. 43
at 2.
On November 22, 2013, defendant Ledger prepared a “probable cause
statement,” which he signed at 4:02 p.m. Dkt. No. 33-1 at 1, 44. Attached to
the one-page probable cause statement was a five-page, single-spaced Word
document. Id. at 2-6. The affidavit contained extensive information regarding
the missing person; three paragraphs of the affidavit involved the plaintiff. Id.
at 3 (last paragraph on page); 5 (first full paragraph on page), 5 (last paragraph
on page). Defendant Ledger prepared the affidavit after the officers took the
plaintiff into custody; the affidavit states that “. . . [the plaintiff was] taken into
custody as a result of this investigation and currently [is] in custody at the
Fond du Lac County Jail.” At 4:15 p.m. on November 22, Fond du Lac Judge
Richard J. Nuss found probable cause, and denied bond “pending court
appearance.” Id. The defendants indicate in their pleadings that “[t]he judge
denied bail pending a court appearance.” Dkt. No. 43 at 2. The “Probable
Cause Determination” signed by Judge Nuss at 4:15 p.m. on November 22,
2013 states, “Bond denied pending court appearance.” Dkt. No. 44.

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The defendants attached to their pleadings a copy of the docket sheet for
Eve Nance, the other person taken into custody on the day the plaintiff was
arrested, dkt. no. 33-3; this docket makes reference to the November 22, 2013
probable cause finding, but makes no reference to a hearing. Id. It indicates
that over the three days between November 22 and November 25, 2013, several
search warrants were filed. Eventually, a complaint was filed against Ms.
Nance, id. at 5; no complaint was filed against the plaintiff.
The record shows no further activity—although the plaintiff remained in
custody—until November 26, 2013. On that date, the plaintiff filed a petition
for habeas corpus in the Fond du Lac County Circuit Court. State of Wisconsin,
et al. v. Eric Toney, et al., Case No. 2013CV000626, available at
https://wcca.wicourts.gov. The defendants attached to their pleadings the
transcript from a November 27, 2013 hearing before Judge Nuss on the
plaintiff’s petition for habeas corpus. Dkt. No. 45. At the hearing, the plaintiff
argued that she had “been denied [her] constitutional rights to have [her] day
in court with regard to the arrest that has taken place . . . or [her] being placed
in custody.” Id. at 3-4. The plaintiff alleged that she had been held without a
probable cause hearing. The prosecutor responded, “That is not an accurate
statement, because this Court conducted a Riverside hearing on November
22nd.” Id. at 5. The defendants did not attach a transcript of any November 22,
2013 hearing. The Wisconsin Circuit Court Access Program (“CCAP”) shows
only one 2013 case involving the plaintiff, State of Wisconsin, et al. v. Eric
Toney, et al., 2013CV000626, available at https://wcca.wicourts.gov. This is
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the docket for the civil habeas proceeding for which the defendants provided
this court with a transcript; the first event on that docket is the November 26,
2013 filing of the petition for a writ of habeas corpus. The docket makes no
reference to any November 22 hearing.
The prosecutor offered, at the November 27 hearing on the habeas
petition, to present the testimony of “a witness who is familiar with the
investigation,” but the state court declined that offer. Dkt. No. 45 at 6. Later in
the habeas proceeding, the prosecutor argued that because the court had
“reviewed the [probable cause] affidavit that was supplied by Detective Ledger”
around 48 hours after the plaintiff was arrested, the probable cause
determination was timely. Id. at 16. The plaintiff’s counsel noted that she did
not have access to the affidavit in support of the probable cause statement. Id.
at 8. The judge subsequently informed the parties that Detective Ledger had
“signed off” on the probable cause statement and affidavit “just when he
brought them into my office.” Id. at 21-22. While the judge indicated that the
affidavit was quite thorough, id. at 22-23, the habeas hearing transcript makes
clear that the judge made his probable cause finding based solely on the
affidavit Detective Ledger submitted, and not after an evidentiary hearing.
The plaintiff alleges that on November 27, 2013, “defendant Toney
admitted that plaintiff was being held in custody at his direction while the
police sought to gather evidence to permit him to charge plaintiff.” Dkt. No. 40
at ¶29. It is not clear whether the plaintiff is alleging that defendant Toney
made this admission at the November 27, 2013 probable cause hearing.
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Defendant Toney attended that hearing, as did one of his assistants, Dennis
Krueger. Dkt. No. 45 at 2. Defendant Toney said almost nothing during the first
part of the hearing; ADA Krueger was the “spokesperson.” Id. at 5. ADA
Krueger stated, in response to a defense argument that the plaintiff and Ms.
Nance were being held while the officers conducted a “fishing expedition,” that
[t]his isn’t a fishing expedition, this is an investigation that is narrowly focused
on the involvement of the two people who were the last to be in the [missing
person’s] presence when he was still alive. So I believe that there is a proper
purpose for the Court to continue the detention.” Id. at 16-17.
At the November 27 hearing, the state judge reiterated that “there was
certainly sufficient basis by this Court to find probable cause and sign [the
probable cause finding], which I did, and I maintain that as I sit here today.
Nothing has changed in that regard.” Id. at 24.
The court denied the plaintiff’s motion for a writ of habeas corpus. State
of Wisconsin, et al. v. Eric Toney, et al., 2013CV000626, available at
https://wcca.wicourts.gov. Toward the end of the hearing, the court asked
whether anyone had an objection to discussing bond. Dkt. No. 45 at 28.
Defendant Toney then became the “spokesperson,” and asked the court to set
the plaintiff’s bond at “$50,000 cash, with nonmonetary conditions.” Id. at 29.
The nonmonetary conditions were that the plaintiff surrender her passport,
have no contact with Ms. Nance, and have no contact with other parties
discussed at the hearing. Id. After hearing argument from all parties, the court

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set the plaintiff’s bond at $50,000 and imposed the nonmonetary conditions
defendant Toney had requested. Id. at 38-39; Dkt. No. 46.
The defendants provided this court with a document dated November 25,
2013, announcing that various county offices “in the City/County Government
Center” of Fund du Lac County would be closed on Thursday, November 28
and Friday, November 29, 2013. Dkt. No. 47 at 2. The state court issued an
order releasing the plaintiff on December 2, 2013 (the Monday after the
Thanksgiving holiday). Dkt. No. 48.
III.

PROCEDURAL HISTORY
On August 4, 2014, the plaintiff filed a complaint under 42 U.S.C. §1983

against defendants Eric Toney, William Ledger, Matt Bobo, Dennis Kruger and
Mylan Fink. Dkt. No. 1. The complaint sought compensatory and punitive
damages, as well as attorneys’ fees, for alleged violations of the plaintiff’s
Fourth and Fourteenth Amendment rights. Id. at 2-3. On October 2, 2014,
defendant Fink filed an answer and a motion to dismiss under Fed. R. Civ. P.
12(b)(6). Dkt. Nos. 13-15. On October 23, 2014, the plaintiff filed a brief in
opposition to Fink’s motion to dismiss. Dkt. No. 24. On November 5, 2014,
Fink filed a reply brief. Dkt. No. 25.
The court set a scheduling conference for December 15, 2014, and
indicated that it would hear the motion to dismiss at that time. Dkt. No. 22. At
that hearing, the plaintiff made an oral request to dismiss defendant Fink
without prejudice. Dkt. No. 28. The court granted that request, and deemed
Fink’s motion to dismiss moot. Id. The clerk’s office terminated defendant Fink
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on December 15, 2014. The court granted the plaintiff leave to file an amended
complaint by March 20, 2015. Id.
On September 30, 2014, defendants Bobo and Ledger filed an answer.
Dkt. No. 10. On October 6, 2014, defendants Krueger and Toney filed their
answer. Dkt. No. 18. On February 18, 2015, defendants Bobo and Ledger filed
a motion to dismiss. Dkt. Nos. 31-32. On March 20, 2015, the plaintiff filed an
amended complaint, which omitted claims against defendants Krueger and
Fink. Dkt. No. 40. The clerk’s office terminated defendant Kruger on March 20,
2015. Defendant Toney filed a motion to dismiss on April 10, 2015. Dkt. Nos.
42-48. Defendants Bobo and Ledger filed an amended motion to dismiss that
same day. Dkt. Nos. 50-52. The plaintiff filed one brief in opposition that
addressed both motions to dismiss. Dkt. No. 53. On April 30, 2015, defendant
Toney filed a reply brief, Dkt. No. 54, and, on May 1, 2015, defendants Bobo
and Ledger filed their reply brief, Dkt. No. 55. The court heard oral argument
on the motions on June 9, 2015. Dkt. No. 56.
IV.

STANDARD FOR MOTION TO DISMISS
Defendant Toney asks the court to dismiss the complaint in its entirety,

arguing that the theories of absolute prosecutorial immunity and qualified
immunity shield the defendant. Dkt. Nos. 42-43. He also asserts that the
plaintiff has failed to state a claim upon which relief can be granted,
specifically asserting that the plaintiff has not met the federal pleading
standards for the claim of conspiracy. Id. Defendants Ledger and Bobo ask the

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court to dismiss the complaint in its entirety under Fed. R. Civ. P. 12(b)(6), and
also assert a qualified immunity defense. Dkt. Nos. 50-51.
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must state a
claim for relief that is plausible on its face.” Lodholtz v. York Risk Servs. Group,
Inc., 778 F.3d 635, 639 (7th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Lodholtz, 778 F.3d at 639
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court “draw[s] all
reasonable inferences and facts in favor of the nonmovant,” but the court “need
not accept as true any legal assertions.” Lodholtz, 778 F.3d at 639 (citing
Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014)).
V.

ANALYSIS
a.

The court takes judicial notice of the Fond du Lac Circuit Court
documents, because their existence is not subject to reasonable
dispute.

In his motion to dismiss, defendant Toney asks the court to take judicial
notice of (1) the state court’s probable cause determination (Dkt. Nos. 44, 521); (2) the state court’s hearing on the plaintiff’s petition for habeas corpus
(Dkt. No. 45); (3) the state court’s order requiring post-arrest detention (Dkt.
No. 46); (4) the state court’s notice of courthouse closure (Dkt. No. 47); and (5)
the state court’s order releasing the plaintiff (Dkt. No. 48). Dkt. No. 43 at ns.14. Defendants Ledger and Bobo also ask the court to take judicial notice of the
state court’s probable cause determination. Dkt. No. 51 at 7.
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Federal Rule of Evidence 201 governs judicial notice of adjudicative facts.
It allows the court to take notice of “a fact that is not subject to reasonable
dispute because it: is generally known within the trial court’s territorial
jurisdiction; or can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1), (2). A court
“must take judicial notice if a party requests it and the court is supplied with
the necessary information.” Fed. R. Evid. 201(c)(2). The court may do this “at
any stage of the proceeding.” Fed. R. Evid. 201(d). Upon “request, a party is
entitled to be heard on the propriety of taking judicial notice and the nature of
the fact to be noticed.” Fed. R. Evid. 201(e). “If the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard.” Id.
“In order for a fact to be judicially noticed, indisputability is a
prerequisite.” Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344,
1354 (7th Cir. 1995). “Judicial notice is premised on the concept that certain
facts . . . exist which a court may accept as true without requiring additional
proof from the opposing parties.” General Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997). Courts take judicial
notice cautiously and will “strictly adhere to the criteria established by the
Federal Rules of Evidence.” Id. (internal citations omitted).
The Seventh Circuit allows a district court “to take judicial notice of the
relevant decisions of courts and administrative agencies.” Opoka v. I.N.S., 94
F.3d 392, 394 (7th Cir. 1996). Those “relevant decisions” include
“‘proceeding[s] in other courts, both within and outside of the federal judicial
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system, if the proceedings have a direct relation to matters at issue.’” Id.
(quoting Philips Med. Sys. Int’l v. Bruetman, 982 F.2d 211, 215 n.2 (7th Cir.
1992)). “[I]t is a well-settled principle that the decision of another court . . . is a
proper subject of judicial notice.” Opoka, 94 F.3d at 394 (citing Green v.
Warden, U.S. Penitentiary, 699 F.2d 364, 369 (7th Cir. 1983)).
The Seventh Circuit also has addressed whether a district court may
“consider public court documents filed in [an] earlier . . . state court case in
deciding . . . motions to dismiss.” Henson v. CSC Credit Servs., 29 F.3d 280,
284 (7th Cir. 1994). Federal Rule of Civil Procedure 12(d) states:
If, on motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56. All parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). The Seventh Circuit has held that a district court could
“‘take judicial notice of matters of public record’ without converting a 12(b)(6)
motion into a motion for summary judgment.” Henson, 29 F.3d at 284 (quoting
U.S. v. Wood, 925 F.2d 1580 (7th Cir. 1991)). The court held that the district
court had “properly considered the public court documents in deciding the . . .
motions to dismiss.” Henson, 29 F.3d at 284. And, as recently as 2013, the
Seventh Circuit took “a broader view of documents that may be considered on a
motion to dismiss.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
District courts “may consider, in addition to the allegations set forth in the
complaint itself, documents that are attached to the complaint, documents that

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are central to the complaint and are referred to in it, and information that is
properly subject to judicial notice.” Id. (internal citations omitted).
The case law emphasizes, however, that courts do “not consider[] the
reasons underlying” another court’s decision. Opoka v. I.N.S., 94 F.3d 392, 395
(7th Cir. 1996). When taking judicial notice of another court’s determinations,
the noticing court recognizes “the simple fact that [a] decision has been made.”
Id. “[A] court may take judicial notice of another court’s order only for the
limited purpose of recognizing the ‘judicial act’ that the order represents or the
subject matter of the litigation.” U.S. v. Jones, 29 F.3d 1549, 1553 (7th Cir.
1994) (citations omitted).
Because the Fond du Lac Circuit Court probable cause determination
exists and its existence is not subject to reasonable dispute, the court will take
judicial notice of the Probable Cause Statement and Judicial Determination
and the supporting affidavit. Dkt. Nos. 33-1, 44. For the same reason, the
court will take judicial notice of the transcript of the November 27, 2013
habeas corpus hearing, dkt. no. 45, and the state court’s December 2, 2013
order releasing the plaintiff from state custody, dkt. no. 48. The court will take
judicial notice of the closure of the Fond du Lac courthouse for the 2013
Thanksgiving Holiday, because that fact “is generally known within the . . .
territorial jurisdiction [and] can be accurately . . . determined from” accurate
sources. Fed. R. Evid. 201(b)(1), (2).

12

These findings of judicial notice, however, do not establish that the
reasoning in any of the legal documents was either correct or incorrect; the
court merely takes notice of their indisputable existence in the public record.
b.

The court finds that some of the plaintiff’s allegations do not state
a claim against defendant Toney, and that qualified immunity
protects Toney from her other claims.

Defendant Toney argues in his amended motion to dismiss that the
plaintiff’s suit against him is barred by absolute immunity, qualified immunity,
and failure to state a claim. Dkt. No. 42.
The Supreme Court has recognized two types of immunity for public
officials in §1983 litigation—qualified immunity and absolute immunity.
Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). “Most public officials are
entitled only to qualified immunity.” Id. (citing Harlow v. Fitzgerald, 457 U.S.
800, 807 (1982) and Butz v. Economou, 438 U.S. 478, 508 (1978)). Officials
who have qualified immunity “are not subject to damages liability for the
performance of their discretionary functions when ‘their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Id. Some officials, however, perform
“special functions” which “deserve absolute protection from damages liability.”
Id. at 268-69. A court deciding whether absolute immunity exists looks to “the
nature of the function performed, not the identity of the actor who performed
it.” Id. at 269 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)).
The Supreme Court has held that prosecutors have absolute immunity
“for the initiation and pursuit of a criminal prosecution.” Id. (citing Imbler v.
13

Pachtman, 424 U.S. 409 (1976)). In Burns v. Reed, 500 U.S. 478, 487 (1991),
the Supreme Court held that a prosecutor’s “appearance as a lawyer for the
State in the probable-cause hearing, where he examined a witness and
successfully supported the application for a search warrant” was a function
“absolutely immune from liability in a § 1983 suit . . . .” A prosecutor also is
“absolutely immune from liability in §1983 suit,” for “conduct” that includes
“support[ing] the application for a search warrant,” or “examin[ing] a witness.”
Id.
These decisions, however, do not inform an analysis of defendant Toney’s
actions in the current case. There was no probable cause hearing; as this court
recounted in the facts, the defendant officers prepared a statement of probable
cause and presented it to the state court judge, who found probable cause from
the facts alleged in the affidavit attached to that statement. There was no prearrest search warrant, so defendant Toney did not support an application for
one. Nor did defendant Toney examine a witness (either at the non-existent
probable cause hearing, or at the November 27, 2013 habeas corpus hearing).
Accordingly, the court cannot find that defendant Toney has absolute
immunity from the suit at bar.
The question, then, is whether defendant Toney enjoys qualified
immunity for the actions the plaintiff alleges that he took. The Supreme Court
held in Buckley that “when a prosecutor ‘functions as an administrator rather
than as an officer of the court’ he is entitled only to qualified immunity.”

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Buckley v. Fitzsimmons, 509 U.S. at 273 (quoting Imbler, 424 U.S. at 431). The
court explained,
There is a difference between the advocate’s role in evaluating
evidence and interviewing witnesses as he prepares for trial, on
the one hand, and the detective’s role in searching for the clues
and corroboration that might give him probable cause to
recommend that a suspect be arrested, on the other hand.
When a prosecutor performs the investigative functions
normally performed by a detective or police officer, it is neither
appropriate nor justifiable that, for the same act, immunity
should protect the one and not the other. Thus, if a prosecutor
plans and executes a raid on a suspected weapons cache, he
has no greater claim to complete immunity than activities of
police officers allegedly acting under his direction.
Id. at 273-74 (internal quotations and citations omitted).
The plaintiff’s allegations relate to decisions, actions or events that took
place outside of the courtroom, prior to charges being brought. The plaintiff
specifically argues that Toney played a role in holding the plaintiff in custody
between the date of her arrest and December 2, 2013, while the officers
allegedly investigated in an attempt to find further evidence implicating the
plaintiff, and that he assisted the officers in their investigation. The court finds
that these allegations constitute the kind of investigative functions which the
Supreme Court has found entitle a prosecutor to qualified, not absolute,
immunity. Accordingly, the court next must determine whether qualified
immunity protects the actions the plaintiff alleges that Toney took.
The first part of the plaintiff’s claim is that defendant Toney “knew,” at
the time that the officer defendants arrested the plaintiff on November 20,
2015, that there was no probable cause for her arrest. Dkt. No. 40 at ¶20.
Nowhere in the original or the amended complaint does the plaintiff allege any
15

facts to support that allegation. The plaintiff does not state when defendant
Toney found out about the plaintiff’s arrest, how he found out about it, or why
he would have known or had reason to believe that the officers had no probable
cause to arrest her. The court finds that this portion of the plaintiff’s complaint
does not state a claim, much less require the court to make an immunity
determination.
The real crux of the plaintiff’s claim against Toney lies in her allegation
that on November 27, 2013, “defendant Toney admitted that plaintiff was being
held in custody at his direction while the police sought to gather evidence to
permit him to charge plaintiff with an offense,” id. at ¶29, that Toney helped
the officers with their investigation, and that Toney was responsible for the
plaintiff’s being in custody from the date of her arrest until December 2, 2013.
Again, the facts do not support two of these claims. The facts
demonstrate that it was the judge, not Toney, who kept the plaintiff in custody.
It was not Toney, but Judge Nuss, who ordered the plaintiff detained on
November 22, 2013. The plaintiff has not submitted any information showing
that Toney provided the judge with false or misleading information to cause
him to make that determination; indeed, the plaintiff has not provided any
information indicating that Toney played any role in causing Judge Nuss to
find probable cause or to order the plaintiff detained pending a court hearing.
Nor do the facts support an argument that it was because of Toney that
the judge kept the plaintiff in custody. At the November 27, 2013 hearing,
rather than insisting that the plaintiff be held without bond, Toney asked the
16

court to set bond, and the court did so. It was ADA Krueger, not defendant
Toney, who argued at that hearing that the court’s probable cause
determination had been correct. It was not defendant Toney who ordered the
plaintiff to remain in custody from November 27 through December 2; the
judge issued the original detention order, and then set the bond. Defendant
Toney was the prosecutor, not the judge; he did not have the authority to
countermand the judge’s order.
The plaintiff’s argument implies that Toney violated the plaintiff’s
constitutional rights by not actively trying to convince the judge to reverse, or
change, that order. This argument again assumes that Toney had some
knowledge that was exculpatory, or that would have resulted in Judge Nuss’s
changing his mind. The plaintiff has provided no proof of such evidence. Thus,
the court finds no support for the argument that it was Toney who kept the
plaintiff in custody, whether during an investigation or otherwise.
Finally, the plaintiff makes issue of the fact that while the court set bond
on November 27, 2013, it did not sign an order releasing the plaintiff until
December 2, 2013. Again, the plaintiff fails to point out how Toney was
responsible for this fact. There was an intervening holiday that caused the
court as a whole to be closed for two days, followed by a weekend (during
which courts are closed). The plaintiff does not cite to any authority indicating
that Toney had the constitutional obligation seek out the judge, during a time
when the court was not in session, and try to convince the judge to release the
plaintiff.
17

This leaves only the plaintiff’s allegation that Toney assisted the
investigating officers in conducting their investigation. To determine whether
qualified immunity requires Toney’s dismissal as to that allegations, the court
must address “two central questions:” “whether the plaintiff has alleged a
deprivation of a constitutional right at all,” and, if so, whether the right at issue
was clearly established at the time and under the circumstances presented.”
Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).
There is nothing unlawful in a prosecutor assisting law enforcement
officers with an investigation—indeed, many court decisions involving
immunity acknowledge that part of a prosecutor’s job is to “giv[e] legal advice to
the police.” Burns v. Reed, 500 U.S. 478, 494 (1991). The mere fact that Toney
may have assisted the officers, or given them legal advice, during their
investigation does not constitute the violation of a constitutional right. Nor
does the plaintiff point to any “assistance” or advice Toney gave that violated
the Constitution. At best, the facts indicate only that, while the plaintiff was in
custody under the judge’s order, Toney may have been working with the
officers in some way or another as they continued to investigate. Even if Toney
was working with the officers, that does not constitute a deprivation of any
constitutional right, established or otherwise. Thus, the court finds that Toney
is entitled to qualified immunity for that alleged action.
For all of the above reasons, the court dismisses defendant Toney as a
defendant.

18

c.

The state judge’s probable cause determination does not bar the
plaintiff’s claims against defendants Ledger and Bobo, because the
parties did not have the opportunity to fully and fairly litigate the
probable cause issue.

“[I]n order to prevail on a Section 1983 claim, the claimant must allege
‘(1) that he was deprived of a right secured by the Constitution or laws of the
United States, and (2) that the deprivation was visited upon [her] by a person
or persons acting under color of state law.’” Reynolds v. Jamison, 488 F.3d
756, 764 (7th Cir. 2007) (quoting Kramer v. Vill. of N. Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004)). The plaintiff alleges that detectives Ledger and Bobo
violated her Fourth and Fourteenth Amendment rights through a false arrest
and subsequent false imprisonment.
i.

The plaintiff is not collaterally estopped from litigating the
sufficiency of the evidence supporting the state court’s
probable cause determination, because the parties did not
have a full and fair opportunity to litigate that issue in state
court.

The plaintiff alleges that Bobo and Ledger did not have probable cause to
arrest her, or to hold her in custody. For the plaintiff “[t]o prevail on [the]
constitutional claim for false arrest, [she] must show there was no probable
cause for [the] arrest.” Williams v. City of Chicago, 733 F.3d 749, 756 (7th Cir.
2013) (citations omitted). “Probable cause is an absolute defense to a claim for
wrongful arrest asserted under section 1983 against police officers.” Wheeler v.
Lawson, 539 F.3d 629, 634 (7th Cir. 2008). Probable cause also serves as an
absolute defense to a claim of false imprisonment in a §1983 suit. Abbott v.
Sangamon Cnty., III, 705 F.3d 706, 713 (7th Cir. 2013) (citing Mustafa v. City
of Chicago, 442 F.3d 544, 547 (7th Cir. 2006)).
19

“Probable cause exists if ‘at the time of the arrest, the facts and
circumstances within the officer’s knowledge . . . are sufficient to warrant a
prudent person, or one with reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is
about to commit an offense.’” Williams, 733 F.3d at 756 (quoting Gonzalez v.
City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009)). The concept is “‘fluid’” in
nature and “‘relies on the common-sense judgment of the officers based on the
totality of the circumstances.’” Williams, 733 F.3d at 756 (quoting U.S. v. Reed,
443 F.3d 600, 603 (7th Cir. 2006)).
The defendants respond that the state court’s determination that
probable cause existed bars this suit. A state-court judicial determination on a
particular issue can preclude re-litigation of that issue, under certain
circumstances. Schertz v. Waupaca Cnty., 875 F.2d 578, 581 (7th Cir. 1989)
(citation omitted). In order for a federal court to determine whether such
circumstances exist, “[a] federal court applies state collateral estoppel law.” Id.
The Seventh Circuit repeatedly has held that “federal courts should apply the
state’s collateral estoppel law in determining whether a §1983 claim is
precluded by a prior state judicial proceeding.” Guenther v. Holmgreen, 738
F.2d 879, 883 (7th Cir. 1984) (citing Haring v. Prosise, 462 U.S. 306, 312
(1983)). “Under Wisconsin law, the collateral estoppel doctrine applies when an
issue was actually litigated and decided and its resolution was necessary to the
prior disposition.” Id. (citing Reckner v. Reckner, 105 Wis. 2d 425 (Ct. App.
1981)). “The Wisconsin standard is . . . substantially similar to the traditional
20

standard set forth in Whitley.” Guenther v. Holmgreen, 738 F.2d at 883
(internal quotation marks and citation omitted).
“Under collateral estoppel, ‘once an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is
conclusive in subsequent suits based on a different cause of action involving a
party to the prior litigation.’” Id. (quoting Montana v. U.S., 440 U.S. 147, 153
(1979)). “However, collateral estoppel applies only when the party against
whom the earlier decision is being asserted had a ‘full and fair opportunity’ to
litigate the issue in question.” Id. (internal quotation marks and citations
omitted).
For this court to determine whether collateral estoppel precludes the
plaintiff from arguing the sufficiency of the evidence to support the state
court’s probable cause finding, then, the court must answer four questions: (1)
whether the issue before this court is “the same as [the issue] in the prior
judicial proceeding;” (2) whether the parties actually have litigated the issue in
the previous proceeding; (3) whether the prior court has “actually determined”
the issue; and (4) whether “the determination . . . was necessary to support the
judgment in the prior proceeding.” Id. at 884 (citing Whitley v. Seibel, 676 F.2d
245, 248 (7th Cir. 1982)).
With regard to the first question—whether the issue the plaintiff raises in
this federal case is the same as the issue the state court decided at the
probable cause hearing—the court concludes that the answer is yes. The
court’s review of the complaint, the pleadings and the oral argument
21

demonstrate that the plaintiff is challenging the sufficiency of the evidence that
supported the state court’s finding that probable cause existed to arrest and to
hold the plaintiff. The plaintiff alleges that “nothing . . . could have caused a
reasonable law enforcement official to believe that plaintiff had engaged in
criminal wrongdoing.” Dkt. No. 43 at ¶8. She also states, “The facts known to
defendants Ledger and Bobo when they arrested plaintiff did not provide
probable cause.” Id. at ¶11. Further, she asserts that the defendants “could not
have had a reasonable belief that plaintiff had committed an offense.” Id. at
¶18. According to the plaintiff, Detective Ledger’s probable cause statement
“[c]ontained several material false statements and material omissions, and [d]id
not contain sufficient facts to warrant a reasonable belief that plaintiff had
committed an offense.” Id. at ¶¶26a-26b.
At the hearing on the motions to dismiss, the court asked counsel for the
plaintiff whether it was correct in understanding that the plaintiff was not
arguing “that the detectives had manufactured evidence or lied to the DA or the
state court judge, but rather that they had arrested her on less than probable
cause, and held her until they could justify a charge against her, beyond the
time permissible under Seventh Circuit law.” Dkt. No. 56 at 2. Counsel for the
plaintiff confirmed that he was arguing lack of probable cause, not misconduct
on the part of the defendants. Id.
With regard to the second question—whether the parties actually
litigated the issue in the prior hearing—the court finds that the answer is no.
The officer defendants arrested the plaintiff on November 20, 2013. Dkt. No. 43
22

at 2. On November 22, 2013, defendant Ledger prepared a “probable cause
statement,” which he signed at 4:02 p.m. Dkt. No. 44. Attached to the one-page
probable cause statement was a recitation of the facts uncovered up to the date
of the arrest, contained in a five-page, single-spaced Word document. Dkt. No.
33-1 at 2-6. At 4:15 p.m. on November 22, Fond du Lac Judge Richard J. Nuss
found probable cause, and denied bond “pending court appearance.” Id. There
is no transcript of any hearing on November 22, 2013—Ledger signed a
probable cause statement, and twelve minutes later, Judge Nuss found
probable cause.
The defendants did attach to their pleadings the transcript from a
November 26, 2013 hearing before Judge Nuss on the plaintiff’s petition for
habeas corpus. Dkt. No. 45. At that hearing, the plaintiff argued that she had
“been denied [her] constitutional rights to have [her] day in court with regard to
the arrest that has taken place . . . or [her] being placed in custody.” Id. at 3-4.
During the habeas hearing, the plaintiff alleged that she had been held without
a probable cause hearing. The prosecutor responded, “That is not an accurate
statement, because this Court conducted a Riverside hearing on November
22nd.” Id. at 5. Again, however, the defendants did not attach to the pleadings
in this case a transcript of any November 22, 2013 hearing. The Wisconsin
Circuit Court Access Program (“CCAP”) shows only one 2013 case involving the
plaintiff, State of Wisconsin, et al. v. Eric Toney, et al., 2013CV000626,
available at https://wcca.wicourts.gov. That was the civil habeas proceeding
for which the defendants provided this court with a transcript; the first event
23

on that docket is the November 26, 2013 filing of the petition for a writ of
habeas corpus. It makes no reference to any November 22 hearing.
The prosecutor offered, at the November 26 hearing on the habeas
petition, to present the testimony of “a witness who is familiar with the
investigation,” but the state court declined that offer. Dkt. No. 45 at 6. Later in
the habeas proceeding, the prosecutor argued that because the court had
“reviewed the [probable cause] affidavit that was supplied by Detective Ledger”
around 48 hours after the plaintiff was arrested, the probable cause
determination was timely. Id. at 16. The judge subsequently informed the
parties that Detective Ledger had “signed off” on the probable cause statement
and affidavit “just when he brought them into my office.” Id. at 21-22. While
the judge indicated that the affidavit was quite thorough, id. at 22-23, the
habeas hearing transcript makes clear that the judge made his probable cause
finding based solely on the affidavit Detective Ledger submitted, and not after
an evidentiary hearing.
The court finds that the answer to the third question—whether the state
court actually determined the probable cause issue—is yes. The state court
judge stated at the habeas hearing that he was satisfied that Detective Ledger’s
affidavit demonstrated probable cause. Dkt. No. 45 at 23. The answer to the
fourth question—whether the state court’s determination was necessary to
support his decision—also is yes. But because the parties did not have a full
and fair opportunity to litigate the probable cause question in state court, the

24

court cannot conclude that collateral estoppel bars the plaintiff’s attack on the
sufficiency of the evidence supporting probable cause.1
ii.

The court concludes that probable cause did exist for Ledger
and Bobo to arrest the petitioner. Because probable cause
existed, the defendants did not violate the plaintiff’s clearly
established rights and qualified immunity bars this suit.

Defendants Ledger and Bobo next contend that, regardless of whether
the plaintiff is estopped from litigating probable cause by the state judge’s
finding, qualified immunity requires the dismissal of the plaintiff’s claims
against them. As discussed earlier in this decision, qualified immunity
“protects government officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Weinmann v. McClone, --F.3d ---, 2015 WL 3396858, at *2 (7th Cir. May 27, 2015) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine “protects a government
official’s ability to function without the threat of distraction and liability . . .
and, on the other hand, it affords members of the public the ability to vindicate
constitutional violations by government officials who abuse their offices.” Gibbs
v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (internal citation and quotation
marks omitted). The doctrine requires a two-part analysis: “(1) whether the
The plaintiff also argued at the hearing on the motion to dismiss that the state
court’s probable cause determination was not preclusive because it wasn’t a
final, appealable order. This argument confuses the standard for claim
preclusion (res judicata)—which requires a final, appealable order—with the
standard for issue preclusion (collateral estoppel)—which requires only a
finding on a particular issue after a full and fair opportunity to litigate. See
Michelle T. by Sumpter v. Crozier, 173 Wis. 2d 681, 694 n.13 (Wis. 1993)
(quoting Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 326 (1955)).
1

25

facts, taken in the light most favorable to the plaintiff, make out a violation of a
constitutional right, and (2) whether the constitutional right was clearly
established at the time of the alleged violation.” Williams v. City of Chicago,
733 F.3d 749, 758 (7th Cir. 2013) (quoting Pearson v. Callahan, 555 U.S. 223,
231 (2009)).
The Seventh Circuit “evaluate[s] claims for qualified immunity by the
standard of objective reasonableness.” Olson v. Champaign Cnty., Ill., --- F.3d --, 2015 WL 1934388, at *5 (7th Cir. Apr. 30, 2015) (citing Malley v. Briggs,
475 U.S. 335, 344 (1986)). If a police officer “intentionally or recklessly
provide[s] false information . . . ,” he does not act reasonably. Olson, 2015 WL
1934388 at *6 (citation omitted). This includes information provided to support
a probable cause determination. Id. The officer may not provide “‘an affidavit
that contained statements he knew to be false or would have known were false
had he not recklessly disregarded the truth and no accurate information
sufficient to constitute probable cause attended the false statements.’” Id.
(quoting Lawson v. Veruchi, 637 F.3d 699, 704 (7th Cir. 2011)).
“[Q]ualified immunity is an affirmative defense.” Wheeler v. Lawson, 539
F.3d 629, 639 (7th Cir. 2008) (citation omitted). Therefore, once the defendants
raise the doctrine, the plaintiff bears the burden of defeating it. Id. (citation
omitted). In order to “defeat a qualified immunity defense,” the plaintiff must
“‘point[] to a clearly analogous case establishing a right to be free from the
specific conduct at issue’ or show[] that ‘the conduct [at issue] is so egregious
that no reasonable person could have believed that it would not violate clearly
26

established rights.’” Id. (quoting Smith v. City of Chicago, 242 F.3d 737, 742
(7th Cir. 2001)).
The plaintiff has not pointed to a clearly analogous case establishing a
right to be free from the conduct at issue. Nor has she demonstrated that
Ledger and Bobo committed such egregious behavior that no reasonable person
could have believed their behavior would not violate clearly established rights.
Rather, she alleges in the complaint that the defendants “conspired,
confederated and agreed to deprive [her] of rights secured by the Fourth and
Fourteenth Amendments.” Dkt. No. 1 at 3. She alleges that Ledger and Bobo’s
part in this conspiracy was that they arrested the plaintiff. Id. at 3. She further
alleges that Ledger “signed an affidavit purporting to set out a basis for
continuing to detain plaintiff without the filing of charges.” Id.
The plaintiff’s allegation that Ledger and Bobo “arrested” her relates to
her right against warrantless arrest under the Fourth Amendment. Generally,
the Fourth Amendment protects against warrantless arrests. An officer may
arrest someone without a warrant, however, if he has a reasonable belief that
the person is guilty of a felony. U.S. v. Watson, 423 U.S. 411, 417 (1976)
(quoting Carroll v. U.S., 267 U.S. 132, 156 (1925)). In order to determine
whether the officer had such a reasonable belief, the court must determine
whether probable cause existed at the time of the arrest. Watson, 423 U.S. at
417.
“Probable cause ‘is to be viewed from the vantage point of a prudent,
reasonable, cautious police officer on the scene at the time of the arrest guided
27

by his experience and training.’” Williams v. Kobel, 789 F.2d 463, 471 (7th Cir.
1986) (quoting U.S. v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972)).
‘In dealing with probable cause . . . as the very name implies,
we deal with probabilities. These are not technical; they are
the factual and practical considerations of everyday life on
which reasonable and prudent men not legal technicians,
act. The standard of proof is accordingly correlative to what
must be proved.’
Id. (quoting Brinegar v. U.S., 338 U.S. 160, 175 (1949)).
In light of this standard, the court looks at the information in the
probable cause statement Ledger submitted. Dkt. No. 33-1. That information
indicates that at the time they arrested the plaintiff, the officers knew the
following:
*

The plaintiff told police that she had not seen or talked to the

decedent since the afternoon of Friday, November 1, 2013.
*

The plaintiff admitting having had the keys to the decedent’s house

over the following weekend. She also admitted having been in the house the
following Sunday, and talking to her sister (the decedent’s wife) on the phone
that Sunday afternoon.
*

Video surveillance from the Family Dollar store recorded the

plaintiff and her sister (the decedent’s wife) entering the store at 7:30 p.m. on
Friday, November 1, 2013. The video showed the plaintiff purchasing two
shower curtain liners and a package of clear shower hooks, of the same kind
Officer Ledger observed at the decedent’s residence on two subsequent
occasions. Witness statements indicated that the shower curtains were
replaced after the decedent went missing. Other witness statements gave
28

Ledger reason to believe that the prior shower curtains—the ones that were
replaced—had been used to conceal, transport or otherwise dispose of evidence
regarding cause of the decedent’s death.
*

A search conducted on November 20, 2013 revealed biological

evidence, fibers, human hairs, clothing, and other evidence.
While the probable cause statement alleged numerous other facts, the
facts above are those directly related to the petitioner. Would these facts
warrant a prudent, reasonably cautious police officer, taking into account the
factual and practical considerations of everyday life, to reach the “belief that
‘an offense has been or is being committed’”? See Williams v. Kobel, 789 F.2d
at 470 (quoting Brinegar, 338 U.S. at 175-76. The court concludes that they
would. While they would not prove beyond a reasonable doubt that the plaintiff
played some part in concealing the decedent’s disappearance and/or death,
they are sufficient to provide probable cause for arrest.
Because the court reaches this conclusion, it cannot find that Ledger and
Bobo’s arrest of the plaintiff, or Ledger’s filing of the probable cause statement,
was such egregious behavior that any person would know that it violated the
plaintiff’s clearly established Fourth and Fourteenth Amendment rights.
Accordingly, Ledger and Bobo are entitled to qualified immunity, and the court
will dismiss the claims against them on that basis.

29

d.

Section 1985 protects individuals from conspiracies between
public and private actors. Because the plaintiff brings this suit
against three state actors, and not against private individuals, the
court dismisses the conspiracy claims.

The court also must dismiss the plaintiff’s conspiracy claim. The plaintiff
alleges that the defendants conspired to deprive her of constitutional rights.
Although she does not cite any statutory basis for this allegation, the court will
interpret this as a claim under 42 U.S.C. §1985, which governs conspiracies to
interfere with civil rights. Section 1985(3) prohibits “two or more persons” from
conspiring to deprive a person “of rights or privileges.” 42 U.S.C. §1985(3).
However, “[t]he function of §1985(3) is to permit recovery from a private actor
who has conspired with state actors.” Id. When “[a]ll defendants are state
actors, . . . a §1985(3) claim does not add anything except needless
complexity.” Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009). The
Seventh Circuit has consistently held that in order to prevail on a claim for
conspiracy under §1985, the “plaintiff must demonstrate that: (1) a state
official and private individual(s) reached an understanding to deprive the
plaintiff of his constitutional rights; and (2) those individual(s) were willful
participant[s] in joint activity with the State or its agents.” Reynolds v.
Jamison, 488 F.3d 756, 764 (7th Cir 2007). Because all three defendants in
this case are state actors, the court will grant the motions to dismiss the
conspiracy claims.
CONCLUSION
The plaintiff claims that the defendants violated her Fourth and
Fourteenth Amendment rights. The court finds that she fails to state a claim
30

against Toney in some of her allegations, and that Toney is entitled to qualified
immunity on the remainder of the claims. With regard to Ledger and Bobo,
while the court cannot find that collateral estoppel prevents re-litigation of the
state court’s probable cause determination, the court itself finds that sufficient
facts existed to warrant their arrest of the petitioner, and thus that qualified
immunity requires dismissal of the claims against them. Finally, the court
finds that §1985 protects the plaintiff from a conspiracy to deprive her of her
rights only if that conspiracy involved both state actors and private individuals.
Because she did not bring a claim against any private individuals, the court
will dismiss the conspiracy claims.
The court GRANTS defendant Eric Toney’s motion to dismiss (Dkt. No.
42). The court also GRANTS the motion to dismiss filed by defendants Matt
Bobo and William Ledger (Dkt. No. 50). The court ORDERS that the complaint
is dismissed, effective immediately.
Dated in Milwaukee, Wisconsin this 4th day of January, 2016.

31