Whyte, Peter v. Magnus, Kyle et al
ORDER denying as moot 51 motion for leave to file a sur-reply; granting in part 17 Motion for Summary Judgment; the case is STAYED until the conclusion of plaintiff's pending state criminal proceedings, including any relevant state collater al review proceedings. The clerk of court is directed to close the case, subject to reopening upon notice by plaintiff of the completion of his state court collateral attack on his underlying conviction. Signed by District Judge William M. Conley on 7/19/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
KYLE MAGNUS and BOB BRADFORD,
In this proposed civil action for monetary and injunctive relief brought pursuant to
42 U.S.C. § 1983, plaintiff Peter Whyte, currently a prisoner at the Waupun Correctional
Institution, contends that defendants Kyle Magnus and Bob Bradford violated his rights
under the Fifth Amendment by interrogating him without obtaining a valid waiver of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). Defendants have moved for summary
judgment. After considering the parties’ proposed findings of fact, along with electronic
court records1 and applicable law, the court will grant defendants’ motion to the extent it
seeks the court’s abstention. The case will be stayed pending the resolution of Whyte’s
See, e.g., U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,
248 (9th Cir.1992) (noting that courts “may take notice of proceedings in other courts, both
within and without the federal judicial system, if those proceedings have a direct relation to
matters at issue”).
On August 20, 2006, Suzanne Weiland died following an altercation with the
plaintiff here, Peter Whyte.
Investigators for St. Croix County Sheriff’s Department,
defendants Kyle Magnus and Robert Bradford, questioned Whyte about Weiland’s death
on August 21, 2006. The interviews were conducted at Regions Hospital in St. Paul,
Minnesota, following Whyte’s surgery for injuries he sustained during the altercation.
Whyte was provided Miranda warnings during the first interview, although he reports being
heavily medicated, in pain and shock, and confined to his bed at this time. Defendants state
that the interviews occurred in a public hospital with medical staff coming and going.
Whyte was not under guard, was not in a secure ward of the hospital and was able to
immediately recall the correct date.
After being given the Miranda warnings, Whyte stated, “ I don’t think I want to do
anything because I don’t know what happened,” “I’m not gonna say anything, cause I don’t
know,” and in response to the statement asking him to confirm that he was refusing to talk
In reply, defendants object to most of Whyte’s proposed findings of fact as supported
by nothing more than an unsworn, unnotarized affidavit. Whyte subsequently filed a
motion for leave to file a sur-reply to defendants’ motion for summary judgment, in which
he includes a notarized affidavit. While it is unclear whether Whyte seeks to provide a surreply in addition to the notarized affidavit, or whether the affidavit constitutes the sur-reply,
that motion will be denied as moot because the court’s decision does not depend on nuances
of fact regarding the homicide or the criminal trial proceedings. Facts from Whyte’s
notarized affidavit are, however, included in this fact section to the extent they clarify the
narrative, which is written to resolve all disputes of fact and reasonable inferences in Whyte’s
favor as the non-moving party.
further, he stated “ I think, I don’t know.”3 Whyte nevertheless continued the conversation,
talking about how “the family” was doing. Defendant Magnus assured Whyte that he was
not under arrest. Whyte then went on to say that “Someone attacked us or something –
look at me” and “I don’t believe Sue or I did anything to each other.”
On their way out of the hospital, Magnus and Bradford were stopped by a guard and
told that Whyte wanted them to return to talk to him. The defendants returned for a
second interview, in which Whyte said that “there could be something on some drug
After a mid-day break, Magnus and Bradford returned to talk to Whyte for a third
time. They informed Whyte that he was not under arrest, and Whyte agreed to continue
Whyte was arrested several days after these interviews and state criminal
State Court Proceedings
On May 4, 2007, Whyte filed a motion to suppress the three interviews with Magnus
and Bradford, asserting that his statements were involuntary and made without proper
Miranda warnings. The state and Whyte stipulated to the circuit court considering the
voluntariness issue first.
A motion to suppress was heard on May 24, 2007, with a
continued hearing on June 4, 2007. That court ultimately issued an opinion on August 6,
Whyte characterizes these statements as invoking his right to remain silent,
explaining that he ultimately continued to talk only because defendants refused to leave and
he could not understand what defendants had just said, and he was trying to confirm what
2007, concluding that Whyte’s statements in the three interviews with Magnus and
Bradford were all voluntary and denying Whyte’s motion to suppress.
Following this ruling, Whyte’s trial counsel proposed a stipulation regarding the use
of the interview statements for purposes of trial. Specifically, Whyte proposed that the state
be permitted to use the first and third interviews in its case-in-chief, and use the second
interview only in rebuttal and in cross-examination. The state agreed to the stipulation,
which was confirmed on the record during an August 28, 2007, motion hearing.
The interview statements were introduced at trial consistent with the parties’
stipulation. Whyte did not object. Whyte’s theory of defense was that he acted in selfdefense against Weiland’s attack. Whyte testified before the jury that not everything he said
in the interviews was true. The jury found Whyte guilty of second-degree intentional
homicide. The formal judgment of conviction was entered on November 12, 2007.
Whyte filed a notice of appeal on May 12, 2009, challenging the admission of his
interview statements into evidence. The Wisconsin Court of Appeals issued its decision
affirming the judgment of conviction on October 26, 2010. The Wisconsin Supreme Court
and United States Supreme Court both denied Whyte’s petitions for review from that
Whyte filed a motion for post-conviction relief in the St. Croix County Circuit Court
on January 11, 2013. That motion was denied on March 19, 2013. He filed a motion for
sentence modification on April 29, 2013, which was also denied on May 14, 2013. Whyte
appealed both of these rulings to the Wisconsin Court of Appeals, where proceedings are
Defendants seek summary judgment on Whyte’s claim that they violated his rights
under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966), during his prearrest interviews. Summary judgment is appropriate only when “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. C IV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). The district court’s function in reviewing a summary judgment motion “is not
himself to weigh the evidence and determine the truth of the matter,” but simply to
determine whether there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “Factual disputes are genuine ‘only if there is sufficient
evidence for a reasonable jury to return a verdict in favor of the non-moving party on the
evidence presented,’ and they are material only if their resolution might change the suit’s
outcome under the governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir.
2013) (quotation omitted).
In determining whether a genuine issue exists, the court must construe all facts in the
light most favorable to Whyte as the nonmoving party, drawing all reasonable inferences in
his favor. See, e.g., Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). Even so, Whyte may
not simply rest on “mere allegations or denials in [his] pleadings[.]” Serendnyj v. Beverly
Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2013).
Rather, he must “affirmatively
demonstrate, by specific factual allegations, that there is a genuine issue of material fact that
requires trial.” Hunter v. Amin, 583 F.3d 486, 490 (7th Cir. 2009) (quoting Hemsworth v.
Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007)). This he cannot do, at least not
I. Possible Application of Heck v. Humphrey Bar
Defendants argue that Whyte’s Fifth Amendment claims are barred by Heck v.
Humphrey, 512 U.S. 477 (1994), which bars a § 1983 suit seeking to recover damages “for
harm caused by actions whose unlawfulness would render a conviction or sentence invalid”
unless the plaintiff proves that the conviction or sentence has already been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court's issuance of a writ of habeas
corpus. Id. at 486–87. On the other hand, “if the district court determines that the plaintiff's
action, even if successful, will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to proceed, in the absence of
some other bar to the suit.” Id. at 487 (emphasis in original).
A Fifth Amendment claim does not necessarily undermine the validity of a conviction.
Edmonson v. Desmond, 2013 WL 3200662, *3 (E.D. Wis. June 24, 2013); see also Simmons v.
O'Brien, 77 F.3d 1093, 1095 (8th Cir. 1996) (“Because harmless error analysis is applicable
to the admission at trial of coerced confessions, judgment in favor of Simmons on this §
1983 action challenging his confession will not necessarily demonstrate the invalidity of his
conviction”); cf. Heck, 512 U.S. at 487 n.7. “Because of doctrines like independent source
and inevitable discovery, and especially harmless error, . . . a § 1983 action, even if
successful, would not necessarily imply that the plaintiff's conviction [following allegedly
unreasonable search] was unlawful”; Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 862
(7th Cir. 2004) (“It is true that a conviction can often stand, despite the fact that police may
have obtained evidence without probable cause or a warrant in violation of the Fourth
Amendment. The availability of other evidence to support a conviction or, as the Court itself
noted in Heck, the applicability of the inevitable discovery and independent source doctrines,
which allow the use of evidence even though it was illegally obtained, make such an outcome
more than a possibility.”).
Based on the current record presented by the parties in their proposed findings of fact
and supporting documents, it is unclear whether Whyte’s conviction would necessarily be
undermined by the use of his statements at trial. While the parties do not present the entire
record of the trial, it seems possible (based on physical evidence from the crime scene or
other evidence) that Whyte could have been convicted regardless of the shifting narrative
between his pretrial statements and self-defense rationale at trial. Therefore, summary
judgment cannot be granted based on Heck.
II. Younger Abstention
In the alternative, defendants ask the court to abstain from deciding this case under
the Rooker-Feldman doctrine.4 Named for Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), this doctrine holds
Defendants raise a host of other arguments for why they should be granted summary
judgment, but the court need not consider them.
that federal courts other than the United States Supreme Court have no jurisdiction to
review state-court judgments, even for unconstitutionality, unless Congress has expressly
authorized them to do so. Whatever merit there may or may not be to this argument, this
court is bound to reject it in light of the Seventh Circuit’s holding that the Rooker-Feldman
doctrine does not apply to situations like this. In Nesses v. Shepard, 68 F.3d 1003 (7th Cir.
1995), the court explained that such broad application of the Rooker-Feldman doctrine “would
be inconsistent with cases in which, for example, police officers are sued under 42 U.S.C. §
1983 for having fabricated evidence that resulted in the plaintiff's being convicted in a state
court.” Id. at 1005; see also Nelson v. Murphy, 44 F.3d 497, 503 (7th Cir. 1995) (“Plaintiffs
avoid [the Rooker-Feldman doctrine], however, because they challenge [an underlying
constitutional violation by state officials] independently of the courts' approval of that
Nevertheless, defendants’ argument, along with proposed findings indicating that
Whyte is currently pursuing post conviction relief, leads the court to conclude abstention
is appropriate under the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). Younger
requires a federal district court to refrain from interfering with pending state criminal
proceedings in deference to principles of equity, comity, and federalism.5 Id. at 53. This
doctrine applies to criminal appeals. See Simpson v. Rowan, 73 F.3d 134, 138 (7th Cir. 1995)
(“Because an appeal of Simpson's conviction and death penalty sentence is currently pending
Although the court rejects defendants’ invocation of the Rooker-Feldman doctrine in
support of their abstention argument, the court may still invoke Younger abstention sua
sponte. Barichello v. McDonald, 98 F.3d 948, 955 (7th Cir. 1996)
before the Illinois Supreme Court, the potential for federal-state friction is obvious”). For
similar reasons, the doctrine presumably applies to post-conviction proceedings as well. See,
e.g., Smith v. Bravo, 2000 WL 1051855, *5 (N.D. Ill. 2000) (presuming that Younger
abstention would apply to civil case that could interfere with post-conviction proceedings);
Lockheart v. Chicago Police Dept., 1999 WL 639179, *2 (N.D. Ill. Aug. 17, 1999) (“This case
is similar to Simpson in that there are ongoing state court proceedings concerning plaintiff's
criminal case: plaintiff has filed a state post-conviction petition, which is currently
Inspection of Whyte’s post-conviction motion in state court reveals that he raises the
same or similar Fifth Amendment issues as here, at least with regard to his arguments that
he received ineffective trial counsel and that the prosecutor committed misconduct. Given
this, the court must abstain if Whyte’s post-conviction proceedings are: (1) judicial in
nature, (2) involve important state interests, (3) provide an adequate opportunity to raise
the federal claims, and (4) present no exceptional circumstances that would make abstention
inappropriate. See Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir. 2007).
All four prongs of this test are met here. First, there is no question that the postconviction proceedings are judicial in nature. The second requirement is met as “‘the state
proceeding implicates important state interests: the prosecution of alleged criminal activity,
as well as the behavior of police officers in effectuating [searches].’” Trevino v. Tittle, 2009
WL 3153754, *4 (quoting Robinson v. Lother, 2004 WL 2032120, *6 (N.D. Ill. 2004)).
Third, there is no reason to think that Whyte will be unable to raise the constitutional issues
presented here in the post-conviction, state court proceedings.
Fourth, there are no
extraordinary circumstances present to warrant an exception to the doctrine. Cf. Brunken v.
Lance, 807 F.2d 1325 (7th Cir. 1986) (exceptions include a state proceeding motivated by
a desire to harass, conducted in bad faith, or involving such extraordinary circumstances that
the plaintiff will be irreparably injured if the federal court does not act).
To the extent defendants seek this court’s abstention, their motion for summary
judgment will be granted. Pursuant to Simpson, the case will be stayed until the conclusion
of Whyte’s pending state criminal proceedings, including any relevant state collateral review
proceedings. The clerk of court will be directed to close the case, and Whyte may move to
reopen this case when his criminal proceedings are completed.
IT IS ORDERED that:
Plaintiff Peter Whyte’s motion for leave to file a sur-reply to defendants’ motion for
summary judgment, dkt. 51, is DENIED as moot.
Defendants’ motion for summary judgment, dkt. 17, is GRANTED IN PART; the
case is STAYED until the conclusion of plaintiff’s pending state criminal proceedings,
including any relevant state collateral review proceedings. The clerk of court is
directed to close the case, subject to reopening upon notice by plaintiff of the
completion of his state court collateral attack on his underlying conviction.
Entered this 19th day of July, 2013.
BY THE COURT:
WILLIAM M. CONLEY
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