Ozier v. Derks et al

Filing 19

ORDER signed by Judge Brett H Ludwig on 3/5/25 that Defendant David Derks's Motion to Dismiss 8 and Defendant Jacalyn LaBre's Motion to Dismiss 10 are GRANTED and this case is DISMISSED. All state-law claims and any claims against Racine County are dismissed without prejudice. Ozier's Fourth Amendment claims against Derks and LaBre are dismissed with prejudice as untimely. (cc: all counsel and mailed to pro se party)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEATHA OZIER,
Plaintiff,

Case No. 24-cv-1030-bhl

v.
DAVID DERKS, JACALYN LABRE and
RACINE COUNTY,

Defendant.
______________________________________________________________________________
ORDER GRANTING MOTION TO DISMISS
______________________________________________________________________________
On August 14, 2024, pro se Plaintiff Leatha Ozier filed a complaint against Racine County,
David Derks, and Jacalyn LaBre, alleging that her home had been illegally searched in 2013
pursuant to an invalid search warrant. (ECF No. 1.) Ozier has not filed proof of service on Racine
County and the County has not made an appearance in the case. Ozier has accomplished service,
however, on Defendants Derks and LaBre, and both have moved to dismiss, arguing, among other
things, that Ozier’s Fourth Amendment claims are untimely. (ECF Nos. 8–11). Because the record
confirms that the statute of limitations expired on Ozier’s claims several years before she filed this
lawsuit, the motions to dismiss will be granted and this case dismissed.
BACKGROUND 1
Plaintiff Leatha Ozier resides at 1434 Riverview Terrace, Racine, WI 53404. (ECF No. 1
at 1–2.) Defendant David Derks was an Investigator with the Racine Police Department until his
retirement in 2020. (Id. at 1; ECF No. 9 at 2.) Defendant Jacalyn LaBre is an Assistant District
Attorney (ADA), presumably for Racine County. (ECF No. 1 at 1.) On May 29, 2013, Investigator
Derks drafted an affidavit for a warrant to search Ozier’s home and emailed the draft to ADA
LaBre. (Id.) Ozier alleges that LaBre then notarized the affidavit outside of Derks’s presence,

This Background is derived from Plaintiff’s complaint, (ECF No. 1), the allegations in which are presumed true
when considering a motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–56 (2007). Where the
complete is lacking in necessary detail, additional background facts have been taken from Defendants’ motions to
dismiss.
1

despite the document stating “[s]ubscribed and sworn to before me” above LaBre’s signature. (Id.;
ECF No. 9-2 at 5.) 2 On May 30, 2013, Investigator Derks executed the search warrant, during
which he “caused physical damage” to Ozier’s property and took “property and money” belonging
to Ozier. (ECF No. 1 at 2.)
LEGAL STANDARD
When deciding a Rule 12(b)(6) motion to dismiss, the Court must “accept all well-pleaded
facts as true and draw reasonable inferences in the plaintiff[’s] favor.” Roberts v. City of Chicago,
817 F.3d 561, 564 (7th Cir. 2016) (citing Lavalais v. Village of Melrose Park, 734 F.3d 629, 632
(7th Cir. 2013)). A complaint must contain a “short and plain statement of the claim showing that
[the plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must, however, do more
than “recite the elements of a cause of action in a conclusory fashion.” Roberts, 817 F.3d at 565
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint survives a 12(b)(6) motion when the
facts pled “allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Factual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The complaint
will be dismissed if it fails to allege sufficient facts to state a claim on which relief may be granted.
See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1018 (7th Cir. 2013).
ANALYSIS
Ozier alleges that her home was unlawfully searched, and her property improperly seized,
based on the execution of a search warrant she contends was not notarized in person. She claims
the warrant was invalid because it “never went under oath or affirmation as required by both the
[Fourth] Amendment of the United States Constitution and Wisconsin Constitution Article I
section 11.” (ECF No. 1 at 1–2.) She further alleges that Derks and LaBre then took affirmative
actions to conceal the invalidity of the search warrant. (Id. at 2.) Based on these allegations, Ozier

Derks provided a copy of the search warrant and affidavit central to Ozier’s dispute with his motion to dismiss. “It
is ‘well-settled in [the Seventh Circuit] that documents attached to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff’s complaint and are central to [her] claim.’” Mueller v. Apple Leisure
Corp., 880 F.3d 890, 895 (7th Cir. 2018) (quoting 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002)).
2

claims Derks and LaBre violated her Fourth and Fourteenth Amendment rights and her rights
under Article I, Section 11, of the Wisconsin Constitution. (Id.)
Among other arguments, Derks and LaBre contend Ozier’s Fourth Amendment claims are
time-barred. 3 Section 1983 claims must be brought within the statute of limitations for personal
injuries in the state where the claim arose. Huber v. Anderson, 909 F.3d 201, 207 (7th Cir. 2018)
(citing Wallace v. Kato, 549 U.S. 384, 387 (2007)). Under Wisconsin law, the applicable statute
of limitations for Ozier’s claims is six years. See Clincy v. Petropoulos, No. 18-cv-1093-jps, 2019
WL 330530, at *2 (E.D. Wis. Jan. 25, 2019); Wis. Stat. § 893.53 (1979) (amended 2018). Thus,
her suit was timely only if it was filed within six years of the date it accrued. Fourth Amendment
claims accrue at the time of the search or seizure. Neita v. City of Chicago, 830 F.3d 494, 498 (7th
Cir. 2016) (citing Wallace, 549 U.S. at 396). In this case, the warrant Ozier challenges was
executed on May 30, 2013. Ozier’s deadline for filing suit challenging the search thus expired on
May 30, 2019. But she did not file this case until August 14, 2024, more than five full years after
the statute of limitations expired. Accordingly, her claims appear to be time-barred.
Ozier does not dispute the facts concerning the timing of her challenge but instead argues
that the statute of limitations should be tolled. (ECF No. 12.) She alleges that defendants took
steps to cover up the impropriety of the notarization of the affidavit supporting the warrant. She
cites State ex rel. Susedik v. Knutson, 191 N.W.2d 23, 25–26 (Wis. 1971), in which the Wisconsin
Supreme Court held that a defendant could be estopped from asserting a statute of limitations
defense if the plaintiff’s failure to file a timely claim was based on plaintiff’s reliance on the
defendant’s fraudulent conduct. (ECF No. 12 at 3–4.) Ozier claims that defendants concealed the
notarization impropriety until 2014 when Derks gave sworn testimony that his affidavit was sent
to LaBre via email. (See ECF No. 18 at 2–3.)
It is not clear that Knutson applies in this context. Ozier alleges that defendants concealed
the impropriety related to the search warrant affidavit, but she has not identified any specific
misrepresentations either of them made to cover up the circumstances in which the affidavit was
signed and search warrant issued. Accepting her allegations as true, LaBre did not swear in Derks
in person before using the affidavit to obtain a search warrant. But there are no allegations of any
Defendants also argue that they are entitled to qualified immunity and that Ozier’s challenge to the notarization of
the search warrant is both factually off base and irrelevant to the enforceability of the resulting search warrant. (ECF
No. 9 at 6–9; ECF No. 11 at 4–5.) These arguments have merit, but given the clear untimeliness of the claims, the
Court will limit its analysis to the statute of limitations defense.
3

further actions by defendants to cover up or conceal that failure (assuming it occurred). Absent
additional misstatements or other misconduct by defendants that induced Ozier not to commence
action in a timely manner, Knutson is inapplicable. See Feldman v. Farris, 921 N.W.2d 518, 2018
WL 4373754, at *7 (Wis. Ct. App. 2018) (unpublished table decision) (citing Knutson, 191
N.W.2d at 25–26).
Although she does not name the appropriate doctrine, Ozier appears to be invoking
Wisconsin’s discovery rule, under which the statute of limitation does not begin to run on a
plaintiff’s claim until the plaintiff knows, or with reasonable diligence should have known, of the
existence of the underlying claim. See Hansen v. A.H. Robins, Inc., 335 N.W.2d 578, 583 (Wis.
1983). But the discovery rule does not apply to Fourth Amendment claims. Clincy, 2019 WL
330530, at *3 (citing Neita, 830 F.3d at 498).
Most importantly, even if the discovery rule applied, Ozier’s claims would still be
untimely. She maintains that the circumstances of the alleged constitutional violation came out
during Derks’ sworn testimony in 2014. If the Court were to toll the limitations period until that
date, her deadline to file the complaint would still have expired in 2020, more than four years
before she filed this action. See Clincy, 2019 WL 330530, at *2.
Ozier’s remaining arguments, to the extent they address Defendants’ statute of limitations
defense, do not change the outcome. She cites Smith v. City of Chicago Heights, 951 F.2d 834
(7th Cir. 1992), a Seventh Circuit case interpreting Illinois’ fraudulent concealment statute, (see
ECF No. 18 at 2), but neither that case nor that statute is applicable here. Ozier’s other arguments
and case citations are unrelated to the timeliness issue. (See ECF No. 12 at 2–4; ECF No. 18 at 1–
3.) Accordingly, her Fourth Amendment claims are time-barred and must be dismissed.
Defendants’ briefing focuses on Ozier’s Fourth Amendment claims, but she also alleges
generally that Derks and LaBre “den[ied] her equal protection of the law” and that the search of
her home violated Article 1, Section 11 of the Wisconsin Constitution in addition to the Fourth
Amendment. (ECF No. 1 at 2.) As to the first claim, Ozier’s complaint contains no allegations
that might support an equal protection claim under the Fourteenth Amendment, and any equal
protection claim would be time-barred as well. See Reget v. City of La Crosse, 595 F.3d 691, 694–
95 (7th Cir. 2010) (noting that equal protection claims arising in Wisconsin are subject to a sixyear statute of limitations). Ozier’s claims under the Wisconsin Constitution are also likely timebarred but given the Court’s decision to dismiss Ozier’s federal claims, it will decline to exercise

supplemental jurisdiction over any state-law claims she wishes to assert. See 28 U.S.C. §
1367(c)(3); RWJ Mgmt. Co. v. BP Prods. N. Am., Inc., 672 F.3d 476, 478 (7th Cir. 2012). Those
claims will be dismissed without prejudice.
Racine County is also named as a defendant in this matter, but Ozier’s complaint contains
no allegations directed against the County. Ozier has also not provided any indication that she has
served the County with the complaint despite the time for service having long passed.
Accordingly, the Court will dismiss Ozier’s claims against Racine County without prejudice for
lack of service. See Fed. R. Civ. P. 4(m). Any Fourth Amendment claim against Racine County
stemming from the May 30, 2013 search of Ozier’s home would be likewise time-barred in any
event.
Although courts generally permit civil plaintiffs at least one opportunity to amend their
pleadings, the Court need not do so where the amendment would be futile. Runnion ex rel. Runnion
v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015). Because Ozier’s
Section 1983 claims are barred by the statute of limitations, any amendment would be futile.
CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that Defendant David Derks’s Motion to Dismiss, ECF No.
8, and Defendant Jacalyn LaBre’s Motion to Dismiss, ECF No. 10, are GRANTED and this case
is DISMISSED. All state-law claims and any claims against Racine County are dismissed
without prejudice. Ozier’s Fourth Amendment claims against Derks and LaBre are dismissed
with prejudice as untimely. The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin on March 5, 2025.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge