Belanger v. State of Wisconsin et al

Filing 18

ORDER signed by Judge Lynn Adelman on 8/24/18. IT IS ORDERED that the defendants' motion to consolidate cases 18-C-0415 to 18-C-0419 is GRANTED. IT IS FURTHER ORDERED that, on the court's own motion, cases 18-C-420 and 18-C-0502 are CONSOL IDATED with cases 18-C-0415 to 18-C-0419. IT IS FURTHER ORDERED that the defendants' motion to dismiss cases 18-C-0415 to 18-C-0419 is GRANTED. These cases are dismissed for lack of subject-matter jurisdiction. IT IS FURTHER ORDERED that Walwo rth County's motion for an extension of time in Case 18-C-0420 is GRANTED. IT IS FURTHER ORDERED that the plaintiffs' motions for default judgments in Case 18-C-0420 are DENIED. IT IS FURTHER ORDERED that the defendants' motion to dism iss in Case 18-C-0420 is GRANTED. The case is dismissed for lack of subject-matter jurisdiction. IT IS FURTHER ORDERED that the defendants' motion to dismiss in Case 18-C-0502 is GRANTED. The case is dismissed for lack of subject-matter jurisd iction. IT IS FURTHER ORDERED that the plaintiffs' motion to strike in Case 18-C-0502 is DENIED as MOOT. IT IS ORDERED that the Clerk of Court shall enter judgment. Because all cases have been consolidated, the judgment will be entered in Case 18-C-0415 only. (cc: all counsel, plaintiff) (jad) (Main Document 18 replaced on 8/24/2018) (jcl).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KENNETH C. BELANGER JR.,
Plaintiff,
v.

Case No. 18-C-00415

STATE OF WISCONSIN and
INSPECTOR KARL KRONAU,
Defendants.
RHIANNON BELANGER,
Plaintiff,
v.

Case No. 18-C-00416

STATE OF WISCONSIN and
INSPECTOR KARL KRONAU,
Defendants.
COREY BELANGER,
Plaintiff,
v.

Case No. 18-C-00417

STATE OF WISCONSIN and
INSPECTOR KARL KRONAU,
Defendants.
NICOLE BELANGER,
Plaintiff,
v.

Case No. 18-C-00418

STATE OF WISCONSIN and
INSPECTOR KARL KRONAU,
Defendants.
KENNETH C. BELANGER, III,
Plaintiff,
v.

Case No. 18-C-00419

STATE OF WISCONSIN and
INSPECTOR KARL KRONAU,
Defendants.
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KENNETH C. BELANGER, JR.,
KENENTH C. BELANGER, III,
RHIANNON BELANGER, NICOLE BELANGER,
COREY BELANGER,
Plaintiffs,
v.

Case No. 18-C-00420

SGT MARK ROUM, DEPUTY JASON S. HINTZ,
SGT KENNETH D. BRAND, DEPUTY ROBERT
WIERENGA, DEPUTY TRUSSLER, DR. ZELDA OKIA,
DR. LYNDA BEIDRZCKI, DEPUTY KEN J. BRAUER,
TOM MILLER, and WALWORTH COUNTY
Defendants.
KENNETH C. BELANGER, JR,
Plaintiff,
v.

Case No. 18-C-00502

TIA TRANSPORT INC, ALLEN SWARTOUT
And RYAN JAMES SCOTT
Defendants.
DECISION AND ORDER
On May 17, 2015, Erik Belanger died when his motorcycle collided with a semitruck at an intersection in Walworth County. Several of his family members, proceeding
pro se, have commenced a series of suits in this court against various defendants. At the
center of each suit is the family’s belief that Erik was not at fault in causing the accident.
The family’s belief runs counter to the conclusions of investigators, who determined that
Erik was at fault because he was speeding and ran a stop sign. Toxicology reports also
revealed that Erik may have been under the influence of cocaine and alcohol at the time
of the accident. See Exhibits to Compl. in Case 18-C-0502.
Five of the Belangers’ suits (18-C-0415 to 18-C-0419) are against the State of
Wisconsin and state motor-vehicle inspector Karl Kronau.
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These suits allege that

Inspector Kronau violated the family members’ federal rights during the course of his
investigation into the cause of the accident by either falsifying his reports or failing to
exercise ordinary care during the investigation. A sixth suit (18-C-0420) alleges similar
claims against Walworth County, members of its Sheriff’s Department, and members of
its Medical Examiner’s office. The final suit (18-C-0502) is essentially a wrongful-death
suit against the driver of the semi-truck and his employer.
Four of the Belanger’s suits have been assigned to me. Three cases (18-C-0416,
18-C-0418, 18-C-0419) have been assigned to other judges of this court. These cases
are three of the five cases against the State of Wisconsin and Inspector Kronau. These
defendants have moved to consolidate all five cases. As the judge presiding over the
lowest-numbered case, I must decide the motion to consolidate. See Civil Local Rule 42.
Because these five cases involve common questions of law or fact, I will grant the motion
to consolidate. See Fed. R. Civ. P. 42(a). Thus, all seven of the Belangers’ cases are
now before me. However, for the reasons explained below, all of the cases must be
dismissed.

Because all seven cases are related, it is in the interest of justice to

consolidate them for purposes of entering a single order and judgment that applies to all
cases. Therefore, on my own motion, I will consolidate all seven cases.
A.

Actions Against the State of Wisconsin and Inspector Kronau
In each of these five cases, one member of the Belanger family sues the State of

Wisconsin and Inspector Kronau. The original complaint in each action contains the same
material factual allegations. However, in cases 18-C-0416 to 18-C-0419, each plaintiff
filed an amended complaint. Each amended complaint is materially identical to the
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others. But for some reason, no amended complaint was filed in Case 18-C-0415. Thus,
I will begin by discussing the complaint in Case 18-C-0415 and will then turn to the
amended complaint filed in the other four cases.
1.

Case 18-C-0415

In this case, Kenneth Belanger Jr. alleges that Inspector Kronau caused him
emotional distress by concealing facts and falsifying records concerning Erik’s death. He
also alleges that Kronau conspired with others, but he does not identify any coconspirators. The only non-conclusory facts alleged in the complaint are the following:
On 17 May 2015 Inspector Kronau was dispatched to accident scene at
county K and Town Hall Rd. in Walworth Co. Inspector Karl Kronau did a
mirandized interview with truck driver Allen Swartout who had been placed
in Ryan Scott’s pick-up truck. Inspector Karl Kronau went off mike and off
video [during] the interview in Ryan Scott’s pick-up. When finished with the
interview Inspector Karl Kronau asked Allen Swartout to review answers,
make any corrections and sign the statement. Allen Swartout made no
changes but did not sign his mirandized statement. Inspector Karl Kronau
used some of these statements as facts in reports. Inspector Karl Kronau
also missed Erik Belanger’s brake mark going north.
Compl. at p.3. The complaint does not cite any federal law, but the plaintiff alleges that
he is suing for a violation of federal law under 28 U.S.C. § 1331. For relief, the plaintiff
seeks compensatory and punitive damages.
The State of Wisconsin and Kronau have filed a motion to dismiss the complaint
on various grounds. First, they contend that the plaintiff has not alleged a colorable
federal claim, and that therefore the court lacks subject-matter jurisdiction. In response
to the motion to dismiss, the plaintiff argues that he states a federal claim for violation of
his right to substantive due process because Inspector Kronau engaged in behavior that
“shocks the conscience.” Thus, it appears that the plaintiff intends to state a claim for
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relief under 42 U.S.C. § 1983, which is the federal statute that grants a civil cause of
action for damages for violations of federal rights committed by persons acting under color
of state law. However, as explained below, the allegations of the complaint do not state
a colorable claim against Kronau or the State of Wisconsin under this statute.
The State of Wisconsin is not a “person” within the meaning of § 1983, and
therefore it is not liable for damages under that statute. See Will v. Michigan Dept. of
State Police, 491 U.S. 58, 64 (1989). It will be dismissed for this reason. Although
Inspector Kronau is a “person” within the meaning of § 1983 and it is clear that he was
acting under color of state law in investigating the accident, the plaintiff has not pleaded
facts suggesting that Kronau violated the plaintiff’s federal rights. The plaintiff contends
that Kronau’s actions “shock the conscience” and that therefore Kronau has deprived him
of his right to substantive due process. See County of Sacramento v. Lewis, 523 U.S.
833, 846–47 (1998). But the non-conclusory facts of the complaint do not describe any
conduct that shocks the conscience. The complaint alleges that Kronau interviewed the
driver of the semi-truck without recording the interview on audio or video, and that he
“missed” Erik’s brake mark. Obviously none of this conduct is conscience-shocking. At
worst, the allegation that Kronau missed the brake mark suggests that Kronau was
negligent in investigating the accident. But such negligence is not itself conscienceshocking.

Moreover, a person does not have a substantive due-process right to a

competent investigation of a family member’s death. Flinchum v. City of Beattyville, 224
F. Supp. 3d 536, 543 (E.D. Ky. 2016).

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The plaintiff also alleges that Kronau concealed facts and falsified records about
Erik’s death. But these allegations are entirely conclusory. The plaintiff does not identify
the facts that were supposedly concealed or identify the records that were supposedly
falsified. Instead, the plaintiff alleges only that Kronau interviewed the driver and missed
the brake mark, none of which qualifies as concealing facts or falsifying records. Thus,
even if Kronau’s concealing facts or falsifying records would have violated the plaintiff’s
right to due process, the plaintiff has not alleged facts that give rise to a plausible claim
under this theory. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (a court must disregard
allegations in the complaint that are wholly conclusory).
For these reasons, I conclude that the plaintiff has not stated a colorable federal
claim against the State of Wisconsin or Inspector Kronau. I will therefore grant the
defendants’ motion to dismiss for lack of subject-matter jurisdiction. 1 Because I am
disposing of the case on this ground, I will not address the other grounds for dismissal
raised in the defendants’ motion.

1

It is debatable whether I should dismiss for lack of subject-matter jurisdiction or for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6). Generally, a complaint
alleging a federal claim that is insubstantial and frivolous does not trigger federal-question
jurisdiction. See, e.g., LaSalle Nat. Trust, N.A. v. ECM Motor Co., 76 F.3d 140, 143–44
(7th Cir. 1996). Here, although the plaintiff’s federal claim is not colorable, I do not think
I would go so far as to describe the claim as frivolous. So probably I should dismiss for
failure to state a claim rather than for lack of jurisdiction. But because the defendants
moved to dismiss for lack of jurisdiction, I will dismiss on that ground. This basis for
dismissal is at least somewhat more favorable to the plaintiff because a dismissal for lack
of jurisdiction is without prejudice rather than with prejudice.
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2.

Cases 18-C-0416 to 18-C-0419

Each amended complaint filed in these cases begins with the allegation that Erik
Belanger was not the cause of the accident that killed him and that the driver of the semitruck, Allen Swartout, was the “negligent cause” of the accident. But then the complaint
contains nothing but conclusory allegations against the State of Wisconsin and Inspector
Kronau. The complaint alleges, without stating any supporting facts, that the defendants
failed to exercise reasonable care in conducting the investigation into Erik’s death,
concealed facts about Erik’s death, and falsified reports about Erik’s death. As discussed
above, conclusory allegations such as these cannot support a federal claim. Moreover,
a person does not have a federal right to a reasonable or competent investigation into a
family member’s death. Flinchum, 224 F. Supp. 2d at 543. Finally, the State of Wisconsin
is not a “person” for purposes of § 1983 and therefore cannot be held liable for damages.
Accordingly, the amended complaints will be dismissed for lack of subject-matter
jurisdiction due to the lack of a colorable federal claim.
B.

Action Against Walworth County and its Agents
In Case 18-C-0420, all five members of the Belanger family allege claims against

Walworth County, members of its Sheriff’s Department, and members of its Medical
Examiner’s office. The defendants have filed a motion to dismiss the complaint for failure
to state a claim on which relief may be granted. See Fed. R. Civ. P. 12(b)(6).
The claims against the members of the Sheriff’s Department are very similar to the
claims against the State of Wisconsin and Inspector Kronau in the five cases discussed
above. The plaintiffs allege, in wholly conclusory fashion, that the members of the sheriff’s
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department who investigated the crash failed to exercise reasonable care in conducting
the investigation, concealed facts about Erik’s death, and falsified reports about Erik’s
death. As explained above, these conclusory allegations fail to state a colorable federal
claim under 42 U.S.C. § 1983.
The claims against the members of the Medical Examiner’s office are less
conclusory. In these claims, the plaintiffs allege that the defendants violated Erik’s Fourth
Amendment right to be free from unreasonable searches and seizures when, during an
autopsy of his body, they took blood and urine samples. However, the Fourth Amendment
does not apply to a search or seizure of a deceased person’s body during the course of
an autopsy. See Ravellete v. Smith, 300 F.2d 854, 857 (7th Cir. 1962). Accordingly, the
claims against the members of the Medical Examiner’s office fail as a matter of law.
In their brief in opposition to the defendants’ motion to dismiss, but not in their
complaint, the plaintiffs also describe an incident in which, on the day after the accident,
members of the Sheriff’s Department and the Medical Examiner’s office returned the
backpack that Erik was wearing at the time of the accident to the Belangers. Br. at 3.
The plaintiffs state that the return of the backpack caused them emotional distress
because Erik’s “brains [were] spattered all over the backpack.” Id. Because these
allegations appear in the plaintiffs’ brief rather than in their complaint, they are not properly
considered in connection with a motion to dismiss. See Car Carriers, Inc. v. Ford Motor
Co., 745 F.2d 1101, 1107 (7th Cir. 1984). However, because the plaintiffs are pro se,
and because I could grant them leave to amend their complaint to include these
allegations, I will address them.
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The plaintiffs do not identify a legal theory underlying their backpack allegations,
but presumably they would contend that the defendants’ conduct in returning the brainspattered backpack shocks the conscience and therefore deprived them of their right to
substantive due process. While the defendants’ conduct, if it occurred, may have been
insensitive, it does not rise to the level of the kind of behavior that has been held to shock
the conscience. Such behavior includes things like a police officer’s leaving unattended
children to fend for themselves on the side of a cold highway, see White v. Rochford, 592
F.2d 381 (7th Cir. 1979), and forcibly pumping a person’s stomach to obtain evidence,
see Rochin v. California, 342 U.S. 165 (1952). In the present case, the alleged conduct
was not so egregious as to shock the conscience. See Lewis, 523 U.S. at 834 (holding
that “only the most egregious” governmental action will shock the conscience).
Accordingly, even if the plaintiffs had included their allegations concerning the backpack
in their complaint, they would not have stated a federal claim.
Finally, I address a dispute has arisen over whether Walworth County is in default.
The defendants’ motion to dismiss was filed on behalf of the individual defendants only.
The plaintiffs now contend that, by failing to file either an answer or a motion within the
time stated in Federal Rule of Civil Procedure 12(a), Walworth County is in default. The
plaintiffs have filed motions for default judgment, and Walworth County has filed a motion
to extend its time to respond to the complaint. (The Clerk of Court has not entered
Walworth County’s default under Rule 55(a).)
Walworth County states that it did not file a timely response to the plaintiffs’
complaint because it did not understand the plaintiffs to be alleging a claim against the
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County itself. Indeed, the plaintiffs’ original complaint does not identify Walworth County
as a defendant. It names only the individual members of the Sheriff’s Department and
Medical Examiner’s office as defendants. However, a few days after filing the original
complaint, the plaintiffs filed an amended complaint.

The caption of the amended

complaint identifies the defendants as “Walworth County ‘et al’.” But the amended
complaint does not contain any allegations against the County itself, and it does not
otherwise make clear that Walworth County is an intended defendant. Thus, Walworth
County’s failure to file a timely response to the complaint is understandable. Moreover,
the County’s delay has not resulted in prejudice to the plaintiffs. For these reasons, I will
grant the County’s motion for an extension and deny the plaintiffs’ various motions for
default judgment. See Fed. R. Civ. P. 6(b)(1); Mommaerts v. Hartford Life & Acc. Ins.
Co., 472 F.3d 967, 968–69 (7th Cir. 2007).
After it appeared, Walworth County filed a motion joining the motion to dismiss filed
by the individual defendants. As noted, the plaintiffs have not expressly alleged a claim
against the County itself. However, the only possible basis for liability against the County
under federal law would be a claim for municipal liability under 42 U.S.C. § 1983. See
Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). But this claim would be viable
only if the County or its officers deprived the plaintiffs of a federal right. As discussed
above, the plaintiffs have not alleged that the defendants’ conduct deprived them of a
federal right. Accordingly, the plaintiffs’ claims against the County will be dismissed.

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C.

Action Against Driver of the Semi-Truck and His Employer
In case 18-C-0502, Kenneth Belanger Jr. sues Allen Swartout (the driver of the

semi-truck), Swartout’s employer (TIA Transport Inc.), and a person named Ryan James
Scott. Scott is TIA Transport’s registered agent. Also, as alleged in the complaint in Case
18-C-0415, Scott was at the scene of the accident at the time that Swartout was
interviewed by Inspector Kronau.
The complaint in this case contains nothing but conclusory allegations. It alleges
that Swartout was “willfully negligent in causing Erik Belanger’s vehicular homicide,” that
TIA Transport was willfully negligent in allowing Swartout to drive on the day of the
accident, that the defendants provided false information to investigators, that the
defendants falsified records about the accident, and that the defendants concealed the
cause of the accident. Compl. at 2–3. As with the Belangers’ other complaints, this
complaint includes no non-conclusory factual allegations suggesting that the defendants
engaged in any of this conduct. No facts alleged suggest that the defendants were
negligent, that they provided false information, that they falsified records, or that they
otherwise concealed the cause of the accident.
The defendants have filed a motion to dismiss the complaint for lack of subjectmatter jurisdiction. They contend that the complaint does not plead a claim under federal
law, and that therefore jurisdiction cannot be maintained under 28 U.S.C. § 1331.
Moreover, they point out that the parties are all Wisconsin citizens, and that therefore a
federal court does not have jurisdiction over any state cause of action (such as for
wrongful death) under 28 U.S.C. § 1332.
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In his response to the motion to dismiss, the plaintiff argues that jurisdiction is
proper under § 1331 because he is alleging that the defendants violated his rights under
the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Thus, the
plaintiff appears to be asserting a claim for damages against the defendants under 42
U.S.C. § 1983. However, the defendants are all private parties, not persons who were
acting under color of state law. Therefore, they are not subject to suit under § 1983. See,
e.g., London v. RBS Citizens, N.A., 600 F.3d 742, 745–46 (7th Cir. 2010). Although
private parties can sometimes be said to have acted under color of state law when they
conspire with government actors, see, e.g., Lewis v. Mills, 677 F.3d 324, 333 (7th Cir.
2012), in this case the plaintiff does not adequately plead that the defendants conspired
with government actors. The plaintiff does use the word “conspiracy” in his complaint,
but he does not identify any government actors as co-conspirators. Assuming, however,
that the plaintiff intended to allege that the defendants conspired with the government
officials who investigated the accident, he does not provide any non-conclusory factual
allegations to support his bare allegation of a conspiracy. And it is well established that
a bare allegation of a conspiracy is not enough to state a viable claim. See, e.g., Cooney
v. Rossiter, 583 F.3d 967, 970–71 (7th Cir. 2009). Accordingly, the plaintiff does not have
a colorable claim under § 1983. Because the plaintiff does not have a colorable claim
under any federal law, jurisdiction cannot be founded on 28 U.S.C. § 1331.
As for the possibility of exercising jurisdiction under 28 U.S.C. § 1332, the plaintiff
does not dispute that both he and the defendants are citizens of Wisconsin. Accordingly,
the parties are not diverse, and therefore I cannot exercise jurisdiction over any purported
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state-law claims under § 1332. I must dismiss this action for lack of subject-matter
jurisdiction.
III. CONCLUSION
As explained above, the operative complaint in each of the Belangers’ actions must
be dismissed. The dismissals will be without prejudice for lack of subject-matter
jurisdiction on the ground that the plaintiffs have not pleaded colorable federal claims.
Accordingly:
IT IS ORDERED that the defendants’ motion to consolidate cases 18-C-0415 to
18-C-0419 is GRANTED.
IT IS FURTHER ORDERED that, on the court’s own motion, cases 18-C-420 and
18-C-0502 are CONSOLIDATED with cases 18-C-0415 to 18-C-0419.
IT IS FURTHER ORDERED that the defendants’ motion to dismiss cases 18-C0415 to 18-C-0419 is GRANTED. These cases are dismissed for lack of subject-matter
jurisdiction.
IT IS FURTHER ORDERED that Walworth County’s motion for an extension of
time in Case 18-C-0420 is GRANTED.
IT IS FURTHER ORDERED that the plaintiffs’ motions for default judgments in
Case 18-C-0420 are DENIED.
IT IS FURTHER ORDERED that the defendants’ motion to dismiss in Case 18-C0420 is GRANTED. The case is dismissed for lack of subject-matter jurisdiction.
IT IS FURTHER ORDERED that the defendants’ motion to dismiss in Case 18-C0502 is GRANTED. The case is dismissed for lack of subject-matter jurisdiction.
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IT IS FURTHER ORDERED that the plaintiffs’ motion to strike in Case 18-C-0502
is DENIED as MOOT.
FINALLY, IT IS ORDERED that the Clerk of Court shall enter judgment. Because
all cases have been consolidated, the judgment will be entered in Case 18-C-0415 only.
Dated at Milwaukee, Wisconsin, this 24th day of August, 2018.

s/Lynn Adelman______
LYNN ADELMAN
District Judge

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