Pierner-Lytge v. Mitchell et al

Filing 26

ORDER signed by Magistrate Judge Nancy Joseph on 11/26/2018 denying 15 Motion for Summary Judgment. The Clerk of Court shall contact the parties to schedule a scheduling conference in this matter. (cc: all counsel) (aeiw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AMANDA PIERNER-LYTGE,
Plaintiff,
v.

Case No. 17-CV-1380

PATRICK MITCHELL and
SCOTT POST,
Defendants.
DECISION AND ORDER ON PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Amanda Pierner-Lytge brings this 42 U.S.C. § 1983 lawsuit against Patrick Mitchell
and Scott Post in their official capacity as West Allis Chief of Police and City Attorney,
respectively. (Docket # 1.) Pierner-Lytge alleges that, on several occasions, the defendants
seized and retained her property in violation of the Second, Fourth, and Eighth
Amendments to the U.S. Constitution. (Id.) Pierner-Lytge moves for summary judgment.
(Docket # 15.) For the reasons below, Pierner-Lytge’s motion for summary judgment will
be denied.
SUMMARY JUDGMENT STANDARD
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477

U.S. at 248. The mere existence of some factual dispute does not defeat a summary
judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
In evaluating a motion for summary judgment, the court must draw all inferences in
a light most favorable to the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). 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 jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon
must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and
“must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a
rational trier of fact could not find for the non-moving party.’” Durkin v. Equifax Check
Services, Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330
F.3d 991, 994 (7th Cir. 2003)).
UNDISPUTED FACTS 1
1.

Background

Pierner-Lytge has been diagnosed as having bipolar disorder. (Defendants’ Proposed
Findings of Fact (“DPFOF”), Docket # 21 ¶ 1.) She has cut herself to relieve stress. (Id. ¶ 2.)
In her motion for summary judgment, Pierner-Lytge repeatedly makes factual statements without citing to
the Proposed Findings of Fact. (Docket # 16 at 2 (citing to a police incident report), 4 (citing to a deposition),
8–10 and 14–18 (citing to multiple depositions and exhibits), 21 (citing to a deposition).) As the defendants
point out in their response brief, (Docket # 19 3–5), Civil Local Rule 56(6) requires that “[a]ssertions of fact in
the parties’ supporting memoranda must refer to the corresponding numbered paragraph of the statement of
facts, statement of additional facts, or statement of stipulated facts.” Pierner-Lytge does not address this in her
reply brief or attempt to amend her motion to comply with the local rule. I will ignore any factual assertions in
her motion that are not supported by undisputed findings of fact in either the PPFOF or the DPFOF.
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At one time, she was a patient at the Dewey Center in Milwaukee. (Id. ¶ 3.) At times, she
has not taken her medication as prescribed for her bipolar disorder. (Id. ¶ 4.) Since at least
2016, she has had suicidal thoughts. (Id. ¶ 5.) She has made suicidal statements on social
media in the past, resulting in her friends contacting law enforcement to check on her. (Id. ¶
12.)
On May 3, 2016, West Allis police officers were dispatched to 915 South 111th Street
in West Allis for a welfare check on Pierner-Lytge. (Id. ¶ 7.) Pierner-Lytge told officers that
she had cut herself prior to the interaction with the officers. (Id. ¶ 8.) She told the officers
that she was feeling suicidal, but that she did not have a plan to harm herself. (Id. ¶ 9.) She
also told the officers that she had not taken her bipolar medication for two years. (Id. ¶ 11.)
The West Allis Police transported her to the Dewey Center without incident. (Id. ¶ 10.)
On July 27, 2016, West Allis Police officers were contacted by Ryan Jarnagin and
subsequently performed a welfare check on Pierner-Lytge. (Id. ¶ 13.) The officers noted
several superficial lacerations to Pierner-Lytge’s arm, which were self-inflicted. (Id. ¶ 14.)
She informed the officers that she wanted to harm herself. (Id.) She stated that she had been
sexually assaulted in June 2016, and fired from her job following the sexual assault. (Id.) She
informed the officers that the Milwaukee County DA’s office was not going to issue charges
against the offenders in her sexual assault. (Id.) Pierner-Lytge voluntarily sought treatment
from mental health professionals. (Id. ¶ 17.) West Allis Police officers conveyed her to
Milwaukee County Mental Health facility without incident for an evaluation. (Id. ¶ 17.)
Also on July 27, 2016, Pierner-Lytge posted on her social media account: “Just got
home from talking with the DA. Doesn’t see the fear of force necessary to prosecute.
Doesn’t help the cop left out the part about dude threatening to corner me in a Porta potty
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either...So yea now I’m stuck. Having really strong urges to cut again. Doesn’t feel like
living either. It feels like rape charges are never brought about unless the victim gets beat up
or killed.” (Id. ¶ 16.) She also posted, “I can’t cope anymore.” (Id.)
On July 30, 2016, West Allis Police officers made contact with Pierner-Lytge in the
parking lot of Greenfield Park. (Id. ¶ 18.) She informed the officers she was dealing poorly
with a traumatic incident. (Id.) She informed the officers that she was not suicidal, but she
really needed mental health treatment. (Id.) She told the officers she would find it beneficial to
go to inpatient counseling. (Id.) West Allis Police officer Steven Martin contacted mental
health facilities in Milwaukee County and in Waukesha County to assist Pierner-Lytge in
finding mental health support. (Id. ¶ 19.) None of the mental health facilities contacted would
admit her if she was not suicidal. (Id.) Pierner-Lytge told West Allis Police that she would
contact NAMI for assistance. (Id.) She then left Greenfield Park on her own, without needing
police assistance. (Id. ¶ 20.)
On September 18 or 28, 2016, 2 West Allis Police officers were dispatched to the
intersection of South 112th Street and West Walker Street, and encountered Pierner-Lytge,
who told them that she was feeling depressed and had walked around her neighborhood for
three hours in an attempt to collect herself. (Id. ¶ 21.) She told police that walking the
neighborhood did not help her to collect herself, so she asked that they transport her to
Milwaukee County Mental Health. (Id.)
West Allis Police officers searched Pierner-Lytge prior to transporting her to
Milwaukee County Mental Health and found an electronic control device (taser) and a folding

The Plaintiff’s Proposed Findings of Fact (“PPFOF”) (Docket # 17) says this incident occurred on September
18, while DPFOF says it occurred on September 28. Neither party disputes the other party’s date. (PPFOF ¶
18, DPFOF ¶ 21.)

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knife. (Id. ¶ 22.) The officers transported the items to the West Allis Police Department
Control Room while Pierner-Lytge was at Milwaukee County Mental Health, because the
facility would not allow those items. (Id.; Plaintiff’s Proposed Findings of Fact (“PPFOF”),
Docket # 17 ¶ 20.) The items were taken for “safekeeping.” (PPFOF ¶ 18.) West Allis Police
officers transported Pierner-Lytge to Milwaukee County Mental Health upon her request.
(DPFOF ¶ 22.) The items were returned to her without a petition to the court, as they were
not seized for a criminal charge or for evidence in any way. (PPFOF ¶ 19.)
2.

November 27, 2016 Incident

On November 27, 2016, West Allis Police officers responded to the parking lot of the
Target at 2600 South 108th Street, where Pierner-Lytge was located in her vehicle. (DPFOF ¶
23.) The officers reported that she had several small cuts on her left forearm. (Id.) Officers
asked her if she had been cutting herself, and she said yes. (Id. ¶ 24.) She told the officers that
she cut herself because she was stressed out because of school and work and that cutting
relieves the stress. (Id. ¶ 26.) She told the officers she had attempted suicide in the past, and
that she took medication relating to her attempted suicides. (Id.) She stated she cut herself
for stress relief and not for the purpose of attempting suicide. (Id. ¶ 27.) She stated she had
no intention of harming herself and she did not wish to die. (Id.)
Officer Kendall observed a handgun in a cup holder of Pierner-Lytge’s car and
relayed that information to the other officer responding for officer safety. (PPFOF ¶ 21.)
The West Allis Police officers removed Pierner-Lytge from her vehicle and patted her down.
(DPFOF ¶ 25.) Pierner-Lytge complied with officer commands during this interaction.
(PPFOF ¶ 22; Defendants’ Response to PPFOF, Docket # 20 ¶ 22.) The officers asked
Pierner-Lytge if she had any weapons in her vehicle and she responded that she had a
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Concealed Carry Permit and that there were weapons in the vehicle. (DPFOF ¶ 24.) The
officers took possession of a firearm located in Pierner-Lytge’s vehicle (in plain view next to
the center console), described as a black Glock model 17, 9mm handgun, as well as a black
Glock 9mm magazine with 16 Hornady 9mm Luger cartridges, a black clip-on nylon holster,
a black Smith and Wesson knife, a camouflage folding knife, and a black pitbull stun-gun. (Id. ¶
29.) The officers removed all weapons from the vehicle. (PPFOF ¶ 23.) West Allis police
took Pierner-Lytge’s firearms and property for safekeeping. (DPFOF ¶ 30.) The weapons were
not left in the vehicle because there was a possibility it could be broken into. (PPFOF ¶ 26.)
It is the policy of the West Allis Police Department to give any weapons belonging to
patients to law enforcement personnel for safekeeping if law enforcement personnel are present
when the patient is being placed in an ambulance. (DPFOF ¶ 32.) It is the policy of the
Aurora West Allis Hospital that patients being transported in ambulances may not bring
weapons in the building. (Id. ¶ 34.)
The parties dispute the nature of Pierner-Lytge’s statement about going to the
hospital, whether she said she would be willing to go to the hospital for medical treatment
and speak with a medical professional (DPFOF ¶ 28) or just agreed to the suggestion to
speak with someone at the hospital about her stress (Plaintiff’s Response to DPFOF, Docket
# 25 ¶ 28). Pierner-Lytge was transported by ambulance to Aurora West Allis where she was
treated and assessed by medical staff. (DPFOF ¶ 31.) There, Pierner-Lytge spoke with a
social worker. (Id. ¶ 33.) Because Pierner-Lytge was willing to seek voluntary mental health
treatment, a Chapter 51 detention was unnecessary.
Later in the day, Officer Kendall was shown the discharge paperwork. (PPFOF ¶ 30;
Defendants’ Response to PPFOF, Docket # 20 ¶ 30.) Officer Kendall believed Pierner-Lytge
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could simply ask for the property back as there was no criminal charge, allegation, or
Chapter 51 hold. (PPFOF ¶ 31; Defendants’ Response to PPFOF, Docket # 20 ¶ 31.)
Officer Kendall verified through the Police Department systems that Pierner-Lytge was not
a threat to herself or others after the medical procedure she was transported for. (PPFOF ¶
32; Defendants’ Response to PPFOF, Docket # 20 ¶ 32.) Pierner-Lytge had no orders
against her prohibiting the possession of firearms and was told she could purchase a
different one during the time she was denied possession of the firearm. (PPFOF ¶ 35.)
Pierner-Lytge filed a petition for return of property with the Milwaukee County
Circuit Court, and on January 18, 2017 the court ordered that the West Allis Police
Department return her taser, knife, and holster, but not her firearm. (Id. ¶ 36.) The court told
Pierner-Lytge she would have to refile in August or September. (Id. ¶ 37.) On September 25,
2017, the Milwaukee County Circuit Court held a hearing on Pierner-Lytge’s renewed
petition for return of her firearm, which the court granted. (Id. ¶ 38.) This was the first order to
the City of West Allis to return Pierner-Lytge’s firearm. (Id. ¶ 40.) She received her firearm
on September 28, 2017. (Id. ¶ 39; PPFOF ¶ 34; Defendants’ Response to PPFOF, Docket #
20 ¶ 34.)
3.

Further Incidents

On December 5, 2016, Pierner-Lytge called the West Allis Police Department and
West Allis Police officers responded to her address. (DPFOF ¶ 41.) West Allis Police officers
transported Pierner-Lytge to Milwaukee County Mental Health so that she could speak with
someone. (Id.) Pierner-Lytge told West Allis Police officers that she had not slept for three
days. (Id. ¶ 42.) She told West Allis Police officers she wanted a ride to the Milwaukee
County Mental Health Complex. (Id.) She also told them that she was on medication for
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anxiety and bipolar disorder, and had thoughts of harming someone else, but not herself.
(Id.)
On March 27, 2017, West Allis Police officers were dispatched to 915 South 111th
Street because Pierner-Lytge requested that they transport her to Milwaukee County Mental
Health. (Id. ¶ 43.) She informed West Allis Police officers that she was bipolar and that her
medication was not being effective. (Id.) She stated she was having thoughts of cutting her
wrists in an attempt to harm herself, but had not yet done so and had no physical injuries.
(Id.) She also stated she believed she was suffering from sleep deprivation. (Id. ¶ 44.) She
told officers she had a history of mental health issues and attempts to harm herself, which
had been an ongoing issue since she was a child. (Id.) She requested to seek voluntary
treatment from Milwaukee County Mental Health. (Id.) The officers transported her to
Milwaukee County Mental Health. (Id. ¶ 45.)
4.

May 26, 2017 Incident

On May 26, 2017, West Allis Police officers were dispatched to Speedway located at
715 South 108th Street where they encountered Pierner-Lytge. (Id. ¶ 46.) She informed West
Allis Police officers that she was very depressed and had thoughts of suicide and had for a
long time. (Id.) She told officers she was dealing with a lot of stress and anxiety. (Id.) She
told officers she had been involved in an incident with a firearm with a person she considered
a friend over the weekend, and that the incident was reported to the City of Waukesha police.
(Id. ¶ 47.) She informed the officers that she cut herself with a small razor blade as a temporary
relief to her stress and depression. (Id. ¶ 48.) She also told officers she had access to firearms
as she was a security officer, and that the firearm was in the trunk of her vehicle. (Id. ¶ 49.)
She told officers that she had thoughts of killing herself with her handgun, that she imagined
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“blowing her brains out,” but that she was “too chicken shit to do it.” (Id. ¶ 50.)
Officer Foy discussed the possibilities with her of seeking mental health help on a
voluntary basis, whether at one of the local hospitals or one of the local mental health
facilities, and Pierner-Lytge told Officer Foy she was not going to either. (Id. ¶ 51.) Officer
Foy felt Pierner-Lytge needed mental health assistance, and because Pierner-Lytge wasn’t
willing to go voluntarily, Officer Foy detained her and transported her to Milwaukee County
Mental Health. (Id. ¶ 52, 55.) Pierner-Lytge was placed in the West Allis Police Department’s
custody on an emergency detention under Chapter 51. (Id. ¶ 53, PPFOF ¶ 36.) Pierner-Lytge
attempted to get out of the handcuffs, but was unable to do so. (DPFOF ¶ 54.)
West Allis Police officers took possession of the following items from Pierner-Lytge’s
vehicle: a handgun, ammunition, a lockbox and key, and a folding knife. (Id. ¶ 56.) They did
so due to Pierner-Lytge’s suicidal statements, West Allis Police Department policies 5.1.2
and 7.1.2 regarding search and property retention of detainees, and the policy of Milwaukee
County Mental Health that prohibits weapons on its premises. (Id. ¶ 57.) The firearm was
located in the trunk of the vehicle. (PPFOF ¶ 37.) Pierner-Lytge gave officers her keys for
the purpose of giving the keys to her friend to transport the vehicle. (Id. ¶ 39.) Before the
officers did so, they entered the vehicle and took the firearm and accessories located within
the safe. (Id. ¶ 40.) They then delivered the keys to Pierner-Lytge’s friend so he could
transport the vehicle. (Id.)
The same day, the City of West Allis Police Department provided Pierner-Lytge with
a Petition for Return of Property and required her to petition the court for a property return.
(PPFOF ¶ 41, DPFOF ¶ 58.) On July 5, 2017, the Milwaukee County Circuit Court issued an
order granting Pierner-Lytge return of her firearm, ammunition, and knife because there had
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been no allegation of a crime or any Chapter 51 process that prohibited her from possessing
the firearm. (PPFOF ¶ 41, DPFOF ¶ 59.) On July 10, 2017, forty-five days after the seizure
of the weapons and five days after the court order, the West Allis Police Department
returned Pierner-Lytge’s firearm, ammunition, and knife to her. (PPFOF ¶ 42, DPFOF ¶
60.)
5.

West Allice Police Department Policy

The West Allis Police Department has different policies for returning firearms and
returning other types of property. (PPFOF ¶ 6.) A petition for property return is not required
to return a firearm in some instances. (Id. ¶ 7.) The City Attorney has the authority to
determine who will be required to petition the courts for return of property. (Id. ¶ 8.) The
parties otherwise dispute the nature of the West Allis Police Department policy regarding
the seizure and retention of firearms and other weapons. (Defendants’ Response to PPFOF,
Docket # 20 ¶¶ 5–17.)
ANALYSIS
Wis. Stat. § 968.20 sets out the procedure for the return of property that has been
seized by the police. Of relevance here, Wis. Stat. § 968.20(1m)(d) states as follows:
(d)1. If the seized property is a firearm, the property has not been returned
under this section, and a person claiming the right to possession of the firearm
has applied for its return under sub. (1), the court shall order a hearing under
sub. (1) to occur within 20 business days after the person applies for the
return. If, at the hearing, all conditions under sub. (1) have been met and the
person is not prohibited from possessing a firearm under state or federal law
as determined by using information provided under s. 165.63, the court shall,
within 5 days of the completion of the hearing and using a return of firearms
form developed by the director of state courts, order the property returned if
one of the following has occurred:
a. The district attorney has affirmatively declined to file charges in connection
with the seizure against the person.
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b. All charges filed in connection with the seizure against the person have
been dismissed.
c. Ten months have passed since the seizure and no charges in connection
with the seizure have been filed against the person.
d. The trial court has reached final disposition for all charges in connection
with the seizure and the person has not been adjudged guilty, or not guilty by
reason of mental disease or defect, of a crime in connection with the seizure.
Pierner-Lytge brings this lawsuit under 42 U.S.C. § 1983 arguing that Wis. Stat. §
968.20(1m)(d) as applied by the defendants is unconstitutional. (Docket # 1 ¶¶ 52–114.) She
argues that the West Allis Police Department has a policy in place for the return of
property/evidence, but no policy in place for the return of property kept for safekeeping.
(Docket # 24 at 2.) Accordingly, she alleges that the seizure and retention of her firearms
violated her Second, Fourth, and Eighth Amendment rights. Pierner-Lytge sues the
defendants in their official capacities.
In Monell v. Dept’t of Soc. Servs. Of City of New York, the Supreme Court held that local
officials in their official capacities can be sued directly under § 1983 where the alleged
unconstitutional action “implements or executes a policy statement, ordinance, regulation,
or decision officially adopted or promulgated by those whose edicts or acts may fairly be
said to represent official policy.” 436 U.S. 658, 690 (1978). To establish liability under
Monell, a plaintiff must “show the existence of a policy or custom and a sufficient causal link
between the policy or custom and the constitutional deprivation.” Jones v. City of Chicago,
787 F.2d 200, 203 (7th Cir. 1986) (citing Monell, 436 U.S. at 690–694). The Seventh Circuit
has explained that unconstitutional policies or customs can take the following three forms:
(1) an express policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not authorized by
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written law or express municipal policy, is so permanent and well settled as
to constitute a “custom or usage” with the force of law; or (3) an allegation
that the constitutional injury was caused by a person with final policymaking authority.
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Garrison v. Burke, 165 F.3d
565, 571–572 (7th Cir. 1999)).
Here, Pierner-Lytge appears to allege that the seizure and retention of her weapons
was due to an unconstitutional policy or custom: depriving citizens of their firearms based
on city officials’ discretionary evaluations of the claimant’s mental health. (Docket # 16 at
7.) To obtain summary judgment in her favor, Pierner-Lytge must show that the municipal
policy or practice was the “direct cause” or “moving force” behind the constitutional
violation. Minx v. Canarecci, 597 F.3d 824, 832 (7th Cir. 2010) (internal citation omitted).
This can be demonstrated one of two ways: (1) by showing that the policy itself is
unconstitutional; or (2) by “showing a series of bad acts and inviting the court to infer from
them the policymaking level of government was bound to have noticed what was going on
and by failing to do anything must have encouraged or at least condoned, thus in either
event adopting, the misconduct of subordinate officials.” Jackson v. Marion County, 66 F.3d
151, 152 (7th Cir. 1995).
Pierner-Lytge fails to establish Monell liability under either method. The parties
dispute most of the facts relevant to the policy. The only undisputed facts concerning the
West Allis Police Department’s policy or custom for return of property are that there are
different policies for returning firearms and returning other types of property, a petition for
property return is not required to return a firearm in some instances, and the city attorney
has the authority to determine who will be required to petition the courts for return of
property. (PPFOF ¶¶ 6–8.) As a result, there are genuine issues of material fact as to
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whether the policy or custom underlying the retention of Pierner-Lytge’s weapons was itself
unconstitutional. The scant undisputed facts are not sufficient to determine that an
unconstitutional policy or custom existed and caused Pierner-Lytge injury as a matter of law
such that summary judgment is warranted.
Pierner-Lytge has also not established Monell liability under the “series of bad acts”
method. When the “series of bad acts” method is used, “proof of a single act of misconduct
will not suffice; for it is the series that lays the premise of the system of inference.” Jackson v.
Marion County, 66 F.3d 151, 152 (7th Cir. 1995) (internal citation omitted). In this case,
Pierner-Lytge’s claim rests on two incidents of alleged unconstitutional conduct (continued
retention of her firearms and attempted retention of her firearms). This is insufficient to
establish Monell liability because two incidents are not a “series of bad acts” from which a
rational jury could infer that a policy-maker was aware of and condoned the
unconstitutional acts of subordinate officials. Id.
On the record before me, drawing all inferences in a light most favorable to the
defendants, there are genuine issues of material fact about the existence of an
unconstitutional policy, custom, or practice in the West Allis Police Department and/or the
City Attorney’s Office. Accordingly, Pierner-Lytge’s motion for summary judgment will be
denied and I need not address the merits of her constitutional claims.
ORDER
NOW, THEREFORE, IT IS ORDERED that Pierner-Lytge’s motion for summary
judgment (Docket # 15) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court will contact the parties to
schedule a scheduling conference in this matter.
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Dated at Milwaukee, Wisconsin this 26th day of November, 2018.

BY THE COURT:
s/Nancy Joseph______________
NANCY JOSEPH
United States Magistrate Judge

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