Bryant v. Ramos

Filing 27

ORDER signed by Judge Pamela Pepper on 2/13/2017 GRANTING 5 defendant's Motion to Dismiss for Failure to State a Claim, effective 3/20/2017, unless the plaintiff files an amended complaint by the end of the day on 3/17/2017. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEBORAH BRYANT,

Case No. 15-1568-pp1

Plaintiff,
v.
JENNIFER M. RAMOS,
Defendant.
______________________________________________________________________________
ORDER GRANTING MOTION TO DISMISS CASE AS TO DEFENDANT
JENNIFER RAMOS (DKT. NO. 5), EFFECTIVE MARCH 17, 2017
______________________________________________________________________________
I.

Facts
According to the plaintiff’s complaint, the plaintiff is an “actress, model

and a reality-television star” living in Atlanta, Georgia. Dkt. No. 1 at 2. In
September 2015, a friend of the plaintiff’s invited her to a restaurant in
downtown Milwaukee called Elsa’s on the Park. Id. The plaintiff and her friend
arrived at the restaurant together, but she asserts that “because [she] is
famous,” other restaurant customers “began sitting next to and around [her] to
converse with her.” Id.
At some point, a person named “Nate” called 911, and told the dispatcher
that he was a bartender at Elsa’s, and that there was a “rowdy crowd” that was
“causing a disturbance,” and that “almost a fight broke out.” Id.at 3. Then
The court has consolidated this case with Bryant v. Wuerl, 16-cv-213-pp. Dkt.
No. 25. The court uses the original case number for the Ramos complaint,
because this motion to dismiss does not appear in the docket entries for 16-cv213. The court asks the clerk of court to docket this order under both
case numbers.
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Brittany Wuerl, the manager of Elsa’s, called 911 a second time, indicating that
she was “still waiting for police assistance,” and that she was “trying to contain
the people.” Id. Wuerl told the dispatcher that “there is only one person left
from that group,” and that Wuerl wanted the police to come before that person
left. Id. Wuerl indicated to the dispatcher that the plaintiff was “on the reality
television show Love and Hip Hop and that ‘people know’ who she is.” Id.
Defendant Officer Jennifer Ramos went to Elsa’s, and spoke with Wuerl.
Id. Wuerl told the defendant that the plaintiff “refused to pay ‘the group’s’ bill.”
Id. The defendant also spoke with Nina Dismukes, a server at Elsa’s. Id. at 4. It
is not clear what, if anything, Dismukes told the defendant, but the plaintiff
asserts that she “did not tell [the defendant] that [the plaintiff] refused to pay
for the food and beverages that she ordered.” Id. Finally, the defendant spoke
with the plaintiff herself. The plaintiff “told [the defendant] that [the plaintiff]
did not agree to pay for food and beverages ordered by other patrons.” She also
told the defendant that “Elsa’s was trying to make [the plaintiff] pay for ‘the
group’s bill’ because she is famous.” Id.
The defendant arrested the plaintiff, and “sought the prosecution” of the
plaintiff “for absconding without paying.” Id. The complaint alleges that at the
time the defendant arrested the plaintiff, the defendant “knew that [the
plaintiff] was a famous person.” Id. at 6. It alleges that the plaintiff did not
abscond from Elsa’s without paying; rather, she “offered to pay for the food and
beverages that she actually ordered.” Id. at 4. The plaintiff maintains that
Wuerl was not happy with this offer, and “tried to intimidate [the plaintiff] into
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paying for ‘the group’s’ bill by telling [the plaintiff] the police were coming.” She
argues that “[w]hen that did not work, Wuerl convinced [the defendant] [sic]
join in the intimidation of [the plaintiff].” Finally, she argues that when the
plaintiff refused to be intimidated, the defendant arrested her, “jailed her, and
made a criminal referral for absconding without paying.” Id. at 5. The
prosecutor declined to issue charges. Id.
II.

Allegations
The plaintiff alleged that the defendant violated her Fourth Amendment

rights under 42 U.S.C. §1983 by detaining her without reasonable suspicion.
Id. She also alleged that the defendant violated her Fourth Amendment rights
by unlawfully arresting her. Id. at 6. Finally, she alleges that the defendant
violated her Fourteenth Amendment equal protection rights by treating her
differently from others on the basis that she is famous. Id. at 7-8.
III.

Motion to Dismiss
The defendant has asked the court to dismiss the case against the

defendant under Fed. R. Civ. P. 12(b)(6), for failure to state a claim. Dkt. No. 5.
The plaintiff—at the time, represented by counsel—opposed the motion. Dkt.
No. 11.
IV.

Analysis
A.

Governing Law

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
challenges the sufficiency of the complaint, not its merits. Fed. R. Civ. P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)
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(citation omitted). In considering a motion to dismiss brought under Rule
12(b)(6), the court accepts as true all well-pleaded facts in the plaintiff’s
complaint and draws all reasonable inferences from those facts in the plaintiff’s
favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011) (citation
omitted). To survive a Rule 12(b)(6) motion, the complaint must not only
provide the defendant with fair notice of a claim’s basis but must also be
facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id., citing Twombley, 550 U.S. at 566. In this context, “plausible,” as opposed
to “merely conceivable or speculative,” means that the plaintiff must include
“enough details about the subject-matter of the case to present a story that
holds together.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir.
2014) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404–05 (7th Cir.
2010)).
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendants: 1) deprived her of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980).

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B.

Unlawful Detention Claim

The plaintiff’s complaint framed her first cause of action as “unlawful
detention.” The facts alleged in the complaint are thin, but it appears that the
defendant arrived at Elsa’s and spoke with two people—the manager and a
server—before speaking with the plaintiff. The complaint describes the
exchange between the two as being brief: the plaintiff told the defendant that
she did not agree to pay for food other people had ordered, and accused the
restaurant of trying to make her pay because of her status as a celebrity. It
appears that the defendant arrested the plaintiff immediately after this
conversation occurred.
Based on these sparse facts, it does not appear that there was any prearrest “detention” of the plaintiff. The defendant walked up to the plaintiff,
talked to her for a few minutes, then arrested her. In order to survive a motion
to dismiss, the plaintiff must provide more facts than these.
The court then turns to the question of whether the defendant unlawfully
detained the plaintiff after arresting her. Again, the complaint provides few
facts. The complaint states more than once that the defendant “arrested, jailed
and sought the prosecution” of the plaintiff for “absconding without paying.”
See Dkt. No. 1 at 4. It states that the defendant “knowingly extended the
detention” of the plaintiff without reasonable suspicion. Yet nowhere in the
complaint, nor in the pleadings, does the plaintiff shed light on how long she
was detained. This is relevant information.
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The Fourth Amendment protects against unreasonable
seizures; an arrest is a seizure, and the Fourth Amendment
affords persons who are arrested the further, distinct right to a
judicial determination of probable cause ‘as a prerequisite to
extended restraint of liberty following arrest.’” Lopez v. City of
Chicago, 464 F.3d 711, 718 (7th Cir. 2006) (quoting Gerstein v.
Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)).
In Gerstein, the Supreme Court held the judicial determination
of probable cause must be “prompt,” a holding that
“acknowledges that prolonged pretrial detention occasions
serious interference with liberty rights.” Willis v. City of Chicago,
999 F.2d 284, 287 (7th Cir.1993). And, in County of Riverside v.
McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49
(1991) the Court refined “prompt” with the “general rule that
persons arrested without a warrant must receive a judicial
determination of probable cause within 48 hours.” Lopez, 464
F.3d at 719 (citing McLaughlin, 500 U.S. at 56–57, 111 S.Ct.
1661).
Riverside's rule established a “48–hour burden-shifting
approach,” meaning, as applicable here, that detentions less
than 48 hours are presumptively reasonable and “the arrested
person bears the burden of establishing that the length of his
custody is nonetheless unreasonable.” Portis v. City of Chicago,
613 F.3d 702, 704 (7th Cir.2010). In Riverside, the Supreme
Court gave examples of unreasonable delays: “delays for the
purpose of gathering additional evidence to justify the arrest, a
delay motivated by ill will against the arrested individual, or
delay for delay's sake.” 500 U.S. at 56, 111 S.Ct. 1661. The
Seventh Circuit has also held that “prolonging the detention of
an arrestee to investigate crimes other than the one for which
he had been arrested” runs afoul of Riverside. Wells v. City of
Chicago, 2012 WL 116040, at *6 (N.D.Ill. Jan. 16, 2012) (citing
Willis v. City of Chicago, 999 F.2d 284, 288–89 (7th Cir.1993)).
Flint v. City of Milwaukee, 91 F. Supp. 3d 1032, 1054-55 (E.D. Wis. 2015).
Here, the plaintiff does not indicate what time the defendant arrested
her. She does not indicate how long she was in custody before she was taken to
a judicial officer. She does not even indicate whether she was taken to a
judicial officer. She states only that she was arrested and jailed, and that the

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defendant sought prosecution, but that the prosecutor disagreed. There is
nothing in the complaint, or in the pleadings, to allow the court to determine
whether the plaintiff’s post-arrest detention was reasonable or unreasonable.
The court will give the plaintiff a short period of time to amend her
complaint to add relevant facts. If the plaintiff does not file an amended
complaint by the deadline the court sets, the unlawful detention claim will be
dismissed.
B.

False Arrest Claim

The plaintiff alleges that the defendant had no basis for arresting her.
She indicates that she did not agree to pay for anyone’s food other than her
own, did not tell anyone at Elsa’s that she would pay for anyone’s food other
than her own, and did not refuse to pay for her own food. She asserts (without
any factual support) that the defendant knew that she was famous, and
arrested her for that, not because the defendant had probable cause to believe
that she’d committed a crime.
Probable cause is an absolute defense to a false arrest
claim. Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 713–14
(7th Cir.2013). Probable cause exists where “the totality of
the facts and circumstances known to the officer at the time
of the arrest would warrant a reasonable, prudent person in
believing that the arrestee had committed, was committing,
or was about to commit a crime.” Id. at 714 (citing Thayer v.
Chiczewski, 705 F.3d 237, 246 (7th Cir.2012); Michigan v.
DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343
(1979); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13
L.Ed.2d 142 (1964)). While this requires “more than a
hunch,” it does not require that officers find “that it was
more likely than not that the arrestee was engaged in
criminal activity.” Abbott, 705 F.3d at 714 (citing Henry v.
United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134
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(1959); Fox v. Hayes, 600 F.3d 819, 833 (7th Cir.2010)). The
inquiry is purely objective, requiring an examination of how
a reasonable officer would act, knowing what the arresting
officer knew at the time of the arrest. Abbott, 705 F.3d at
714 (citing Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct.
588, 160 L.Ed.2d 537 (2004); Maryland v. Pringle, 540 U.S.
366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003); Whren v.
United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135
L.Ed.2d 89 (1996); Ornelas v. United States, 517 U.S. 690,
696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Tebbens v.
Mushol, 692 F.3d 807, 817 (7th Cir.2012)).
Hardy v. City of Milwaukee, 88 F. Supp. 3d 852, 869-80 (E.D. Wis. 2015).
The plaintiff alleges that the defendant arrested her for “absconding
without paying.” Wis. Stat. §943.21(1m)(a) states that anyone who, “[h]aving
obtained any beverage [or] food . . . at any . . . restaurant . . ., intentionally
absconds without paying for it” is guilty of a crime—either a misdemeanor or a
felony, depending on the value of the food and beverage. “Section 943.21(1)(a),
Stats., is aimed at those who avoid paying for [food or beverages] through an
act of fraud.” State v. Steckel, 125 Wis. 3d 577 (Ct. App. 1985). One can
“abscond” by making misrepresentations intended to mislead the restaurant
regarding the bill. Id.
To determine whether the defendant had probable cause to arrest the
plaintiff at Elsa’s, the court must look at what the defendant knew at the time
of the arrest, and determine whether that knowledge would warrant a
reasonable officer in believing that the plaintiff intended to escape paying a bill
that she owed. The defendant was aware that there had been a 911 call from
Elsa’s; if she hadn’t known that, she would not have gone there, and would not
have talked to the manager, the server and the defendant. It is not clear how
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much the defendant knew of the content of the two 911 calls—she may have
known that a group of people had been “rowdy,” or that there almost had been
a fight, or that only one person was left from the group. But she knew that
Elsa’s staff had reported something amiss. She also may have known that the
staff at Elsa’s was trying to “contain” the group, but that only one person
remained.
Once the officer arrived at Elsa’s, the manager—Brittany Wuerl—told her
that the plaintiff had refused to pay the group’s bill. The plaintiff argues that
this, in itself, was not sufficient to provide probable cause for arrest; she
argues that “[the defendant] was required to do more than arresting and jailing
[the plaintiff].” Dkt. No. 11 at 7. But the defendant did do more. She spoke with
a server; the complaint is evasive regarding what that server said to the
defendant. She also spoke with the plaintiff; the plaintiff claims that she denied
agreeing to pay for any food other than what she ordered, and claims that she
offered to pay for what she ordered.
The court does not know what, exactly, the various players said to the
defendant. The court does not know how fraught the atmosphere was into
which the defendant walked. The court does not know the plaintiff’s demeanor
toward the defendant (nor the defendant’s toward the plaintiff). Likely all of
these factors would have been relevant to the defendant’s decision to arrest the
plaintiff, but the court does not have that information. All the court knows is
that the defendant was aware that there was some sort of disturbance at
Elsa’s, that Elsa’s staff believed that the plaintiff was responsible for a bill for
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food ordered by a group of people, that the plaintiff refused to pay that bill, and
that the plaintiff argued that she did not owe the bill. The defendant also may
have known that people were leaving in the wake of the disturbance.
Again, because the facts stated in the complaint are so thin, it is difficult
for the court to determine whether the false arrest charge should survive a
motion to dismiss. The court again will give the plaintiff time to file an
amended complaint to provide additional facts. The court notes a few other
points, however.
The plaintiff argues that the incident at Elsa’s—a dispute over a
restaurant bill—was a “civil” dispute, and thus that it could not give rise to
probable cause for a criminal arrest. Dkt. No. 11 at 4. This is a strange
argument. A custody dispute between estranged parents is a civil dispute, until
one parent kidnaps the child. A disagreement over a debt is a civil dispute,
until the creditor decides to collect by slugging the debtor. The question of
whether a situation is civil or criminal depends on context and intent, and
intent is a very fact-bound inquiry. Once cannot simply cite a few cases—as the
plaintiff has done—in which courts found that an individual did not have
criminal intent under particular circumstances, and conclude that there could
never be criminal intent under similar circumstances.
The plaintiff also argues biased witnesses can negate probable cause. Id.
at 9. The plaintiff provides no explanation of why she believes that the Elsa’s
staff—the manager or the server—were “biased” against her. She asserts
several times in the complaint that she is “famous” and that people know who
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she is. It is not clear why, even if this was true, it would cause the staff at
Elsa’s to be biased against her.
If the plaintiff has any facts to shed light on these questions, she may
include them in her amended complaint.
C.

Equal Protection Claim

Finally, the plaintiff argues that the defendant violated her Fourteenth
Amendment equal protection rights. She claims that “the defendant] singled
out [the plaintiff] because she is famous.” Dkt. No. 1 at 8. She further argues
that the defendant “intentionally treated [the plaintiff] differently from others
similarly situated and there is no rational basis for the difference in treatment.”
Id.
The plaintiff’s claim is not the run-of-the-mine equal protection claim. As
the Seventh Circuit has noted, a “garden-variety equal protection challenge” is
“typically . . . concerned with governmental classifications that affect some
groups of citizens differently from others.” United States v. Moore, 543 F.3d
891, 896 (7th Cir. 2008) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591,
601 (2008)) (emphasis added by appellate court). The plaintiff alleges that she
has been “‘irrationally singled out,’ without regard for any group affiliation, for
discriminatory treatment.” Id. (quoting Engquist at 601). This is called a “classof-one” equal protection challenge; courts recognize such a challenge “where an
individual alleges that [she] has been ‘intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in

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treatment.’” Id. (quoting Vill. Of Willowbrook v. Olech, 528 U.S. 562, 564
(2000)).
To prevail on her class-of-one claim, the plaintiff first must prove that
she was intentionally treated differently from others who were situated
similarly. Id. at 897. That means she has to identify some similarly-situated
people; those similarly-situated people are called “comparators,” and they must
be “prima facie identical in all relevant respects or directly comparable . . . in
all material respects” to her. Id. (quoting Racine Charter One, Inc. v. Racine
Unified Sch. Dist, 424 F.3d 677, 680 (7th Cir. 2005)).
The plaintiff did not identify any comparators in her complaint. She
asserts that she is not required to do so, citing Geinosky v. City of Chicago, 675
F.3d 743, 748 n.3 (7th Cir. 2012). Dkt. No. 11 at 10. She is correct that the
Seventh Circuit stated in Geinosky that “[e]ven the more demanding pleading
requirements under Iqbal and Twombly do not require a plaintiff to identify
specific comparators in a complaint.” Geinosky, 657 F.3d at 748 n.3. But the
plaintiff still must articulate sufficient facts to “help distinguish between
ordinary wrongful acts” that the defendant might have committed and
“”deliberately discriminatory denials of equal protection.” Id. at 748. While
there may be some cases in which it is enough to state that a defendant
intentionally treated a plaintiff differently than others similarly situated, this is
not one of those cases.
The facts in this case demonstrate that at some point, the plaintiff was
with a group of people. The Elsa’s staff delivered food and beverages to that
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group of people. The behavior of that group, or members of that group, was
such that it caused Elsa’s staff to call 911 twice. By the time the officer arrived,
all of the members of the group had left, except the plaintiff, and no one had
paid the bill for the food. While the plaintiff need not name comparators by
name, her complaint needed to describe the comparators as a group. The
complaint did not do so.
For the sake of argument, the court could consider the comparators to be
other Elsa’s customers. Under that scenario, the plaintiff herself has
articulated, in the complaint, a non-discriminatory, rational basis for the
defendant to treat her differently than other Elsa’s customers. She was among
a group of people who ordered and obtained food and beverage, and did not pay
the bill, and she refused to pay the bill. Even assuming that the defendant
knew that the plaintiff was famous, her refusal to pay a bill for which the
defendant had reason to believe she could be responsible (with no other
responsible person present to pay it) provided the defendant with a rational,
non-discriminatory reason to treat the plaintiff differently than other Elsa’s
customers.
Again, the court will give the plaintiff the opportunity to file an amended
complaint, and to include any facts that might shed light on her allegation that
she was treated differently because she was a celebrity.
D.

Prosecution of the Case

The court notes that at the time the plaintiff filed this complaint, she had
an attorney in Milwaukee representing her. That counsel prepared the
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complaint in this case, as well as the complaint against the restaurant
manager, Brittany Wuerl, filed two months after the plaintiff filed this case.
After the parties had fully briefed this motion to dismiss, the plaintiff’s lawyer
filed a motion to withdraw from representing her, because his law firm
represented defendant Wuerl’s insurance company, and the insurance
company would not waive that conflict. Once this court consolidated the
Ramos and Wuerl cases, counsel was conflicted out of this case, as well.
The court had scheduled oral argument on this motion to dismiss. After
the plaintiff’s counsel withdrew, the court held a telephonic hearing (with the
plaintiff on the line), and agreed to adjourn the oral argument to allow the
plaintiff to try to find new counsel. Dkt. No. 30. The court also advised the
plaintiff about resources for finding counsel in Milwaukee. Id. The court
advised the plaintiff that if she was not able to find counsel by the adjourned
date, she would have to represent herself at the oral argument. Id.
The plaintiff did not appear on the conference line on the date scheduled
for oral argument—October 13, 2016. Dkt. No. 31. The court noted that no
attorney had filed a notice of appearance on the plaintiff’s behalf. It heard
argument from counsel for the defendant, and took the motion under
advisement. Id.
The plaintiff has not filed any documents, or contacted the court, since
the telephone hearing on September 6, 2015. Defendant Wuerl has filed a
motion for summary judgment, dkt. no. 35, to which the plaintiff has not
responded; the court will issue a separate ruling on that motion.
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V.

Conclusion
The court ORDERS that the defendant’s motion to dismiss is GRANTED,

effective March 20, 2017, unless, by the end of the day on Friday, March 17,
2017, the plaintiff files an amended complaint. If the plaintiff does not file
an amended complaint in time for the court to receive it by the end of the day
on March 17, 2017, the complaint against defendant Ramos will be dismissed
on March 20, 2017 without further notice or hearing.
Dated in Milwaukee, Wisconsin this 13th day of February, 2017.

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