Ryan, Keith et al v. Sawyer County et al
Filing
35
ORDER granting 13 Defendants' Motion for Summary Judgment. Signed by District Judge James D. Peterson on 12/11/2014. (mfh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
KEITH RYAN and
LINDA RYAN,
Plaintiffs,
OPINION & ORDER
v.
13-cv-782-jdp
SAWYER COUNTY, JAMES
MEIER, and LAURA POPPE,
Defendants.
Plaintiffs Keith and Linda Ryan own the Edelweiss Motel in Hayward, Wisconsin. The
Ryans are part of an unhappy family, whose disputes sometimes boil over requiring law
enforcement officers to keep the peace. This lawsuit arises from three interactions between the
Ryans and the Sawyer County sheriff’s department. The Ryans contend that the sheriff’s
department unlawfully seized their property on two occasions and falsely arrested Keith on a
third. They bring claims for the deprivation of their federal constitutional rights under
42 U.S.C. § 1983 and they bring parallel state law claims for the deprivation of their rights
under Wisconsin law.
Defendants have moved for summary judgment on all claims. Dkt. 13. The court will
grant the motion. The Ryans have adduced no evidence that the acts that allegedly violated
their rights were taken pursuant to any Sawyer County policy or custom, and thus the claims
against Sawyer County itself or any claims against Sheriff Meier or Deputy Poppe in their
official capacities must fail. Sheriff Meier did not cause or participate in an alleged
constitutional deprivation, and so the claims against Meier in his individual capacity must fail.
And finally, the individual capacity claims against Deputy Poppe must fail because she had
probable cause to arrest Keith Ryan and, further, she is entitled to qualified immunity against
such claims as the Ryans’.
UNDISPUTED FACTS
The following facts are, except where noted, undisputed. The Ryans’ claims arise out of
three incidents, spanning approximately two years, involving Sawyer County law enforcement
personnel.
A. September 2009 “go-cart incident”
The Ryans had the following property at the Edelweiss Motel: a truck, a tractor, a trailer,
a go-kart, and a chainsaw. William Drake (Keith Ryan’s son-in-law, married to Keith’s daughter,
Kortney) contended that all this property was his, and on September 4, 2009, he came to the
Edelweiss Motel to get it back. The parties agree that the truck was owned by Drake. Keith, an
auto mechanic by training, had been performing repairs on the truck. The parties also
apparently agree that Drake owned the trailer and the chainsaw, but the Ryans contend that
they owned the tractor and the go-cart.
Drake’s efforts to retrieve the property were unsuccessful, and someone called the Sawyer
County sheriff’s office to report a disturbance at the motel. Sawyer County dispatch sent
Deputy Sean Anderson to the motel. When he arrived, Keith yelled at Deputy Anderson to
“Get the fuck off my property,” but Keith ultimately obeyed Deputy Anderson’s orders to
return to the motel office. While Deputy Anderson spoke with Drake, Officer Kastern of the
Hayward Police Department arrived and spoke with Keith. Drake told Deputy Anderson that he
came to pay a debt and that he wanted to get his property—a truck, trailer, tractor, chainsaw,
and go-cart—from the premises. Meanwhile, Keith told Officer Kastern that he would allow
Drake to take the truck if Drake paid the $100 that Keith has spent on parts for the truck.
2
After Keith received the payment, Keith and Linda went to the garage and pushed out
Drake’s truck. Officer Kastern told Deputy Anderson that Keith had consented to Drake’s
taking the property from the motel.1 Linda then saw Drake hooking up the trailer, with the gocart on it, to his truck. Linda tried to pull the go-cart off the trailer and told Sawyer County
deputies (Deputies Kornbroke and Hoehne had arrived at the scene by then) that the go-cart
belonged to her and Keith. Officer Kastern told Linda that the dispute over the property was a
civil matter and she could go to court to resolve it, but, because the go-cart had Drake’s name
on it, the go-cart would be left on the trailer to go with Drake. Drake removed the truck, trailer,
chainsaw, and go-cart from the premises. No one had keys to the tractor; Drake was advised to
call the sheriff’s department when he had his tractor key and that someone would accompany
him when he went to retrieve the tractor. The record does not reflect the fate of the tractor.
Neither Sheriff Meier nor Deputy Poppe were on the scene that day, and they did not
participate in the incident.
The day after the go-cart incident, the Ryans spoke with Sheriff Meier at the sheriff’s
department. The Ryans complained about the deputies’ entry onto their property, their
treatment of them, and their facilitation and participation in the removal of the tractor and gocart from their premises. Meier responded that he was “done with” the incident and that he
would be “doing nothing about it.”
B. September 2010 “baseball incident”
Keith Ryan’s father, Dr. John Ryan, had been married to Maureen Ryan for 34 years,
when John died in 2009. Keith was John Ryan’s child from a previous marriage. In October
1
Keith contends that he did not tell Officer Kastern that Drake could take the tractor or the gocart. But plaintiffs adduce no evidence to dispute that Officer Kastern told Deputy Anderson
that Keith had consented to the removal of all the property.
3
2009, Sawyer County Deputy Craig Depew spoke with Maureen at her home regarding
baseballs autographed by Babe Ruth. Maureen told Deputy Depew that the baseballs had
belonged to John Ryan, and that by virtue of his will, she now owned all his personal property,
including the baseballs, which were now missing from the safe where they had been kept.
Maureen told Deputy Depew that she believed that Keith knew the combination to the safe and
that he had taken the baseballs from her house without permission while she was away.
According to Deputy Depew, during the investigation, Keith did not claim that he owned the
baseballs.2 Deputy Depew did not believe that he had strong evidence against Keith at the time,
and the case of the stolen Babe Ruth baseballs remained unresolved.
About a year later, the Sawyer County sheriff’s department received a complaint that
Keith was a convicted felon who had firearms at the motel. Investigator Ross confirmed Keith’s
criminal record and corroborated the information that Keith possessed firearms. Investigator
Ross sought and obtained a search warrant for the Ryan residence, which Sawyer County
deputies executed on September 3, 2010. Linda was present for the search. Sawyer county
deputies located and took possession of several firearms and a quantity of ammunition. The
Ryans raise no objection to the warrant or the search and seizure of the firearms.
But during the search, Sawyer County Sergeant Rick Anderson found the autographed
baseballs in a dresser, and the deputies took possession of the baseballs along with the firearms.
Linda objected. Investigator Ross told Linda that he would be taking the baseballs because they
had been reported stolen and that Keith was the only suspect. On October 18, 2010, the
baseballs were returned to Maureen at the direction of Investigator Ross. In March 2013, at the
conclusion of the criminal case against Keith (he pleaded guilty to one count of being a felon in
2
In this litigation, however, Keith contends that John Ryan had given the baseballs to Keith
before he died.
4
possession of a firearm), he sought the return of the seized property. At that point, the Ryans
learned that the baseballs had been returned to Maureen.
Neither Meier nor Poppe participated in the search or the seizure of the property from
the Ryan residence. Neither Meier nor Poppe were involved in the return of the baseballs to
Maureen.
C. September 2011 “arrest incident”
John Kennedy was a paying guest at the Ryans’ motel in September 2011. John allowed
his brother Steve to stay with him, even though the Ryans had informed him repeatedly that
Steve was not permitted on the premises because of his excessive drinking and disruptive
behavior.
On September 13, 2011, Sawyer County Deputy Poppe was dispatched to the premises
to investigate John’s complaint that Keith was yelling and swearing at him. Town of Hayward
Police Chief Hall arrived at the scene shortly thereafter. Deputy Poppe first spoke with John,
who told her that Keith “got in his face” and started yelling “you mother fucker—I told you I
did not want that cocksucker [Steve] on my property!” According to John, Keith’s outburst was
triggered by John telling Keith that he was going to give a bicycle to a co-worker at Dairy Queen,
rather than leave it at the Edelweiss Motel. Also according to John, Keith further exclaimed,
“You get your fucking brother out of here—this is my place and I’ll fuck you!,” and Keith put
his fist in John’s face in a threatening manner. John told Deputy Poppe that both he and Steve
were concerned for their safety because Keith was unpredictable and crazy. Deputy Poppe then
spoke with Steve, who also claimed that he heard Keith yell at John, “I told you I didn’t want
that cocksucker on my property.”
5
Deputy Poppe then spoke with the Ryans, who were not disorderly in dealing with
Deputy Poppe. She told them that John had made a complaint of disorderly conduct against
Keith based on abusive and threatening conduct toward John. The Ryans disputed John’s
account of the conversation; they said that Keith was not abusive, threatening, or disorderly—he
simply insisted that John and Steve vacate the premises. The Ryans told Deputy Poppe and
Chief Hall to speak with witnesses who had heard the conversation: Valerie Stone, Richard
Stone, and Todd Kavanagh. Deputy Poppe spoke to Stone; the record is not clear whether she
spoke to the other witnesses. Ultimately, Deputy Poppe determined that she had probable cause
to arrest Keith for disorderly conduct, which she did.
Sheriff Meier was not on the scene that day, and he did not participate in the events that
transpired.
ANALYSIS
The Ryans contend that defendants violated their rights in three ways: (1) by unlawfully
seizing the tractor and go-cart; (2) by unlawfully seizing the Babe Ruth baseballs; and (3) by
arresting Keith without probable cause.
The Ryans assert these claims under federal law, specifically 42 U.S.C. § 1983. Section
1983 provides in relevant part that “[e]very person who, under color of [law], subjects, or causes
to be subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action.” Thus, this court has federal question
jurisdiction under 28 U.S.C. § 1331. The Ryans’ also assert claims for the same allegedly
wrongful acts under Wisconsin state law. The court has supplemental jurisdiction over the
Ryans’ state-law claims, because they are substantially related to the federal claims, under
6
28 U.S.C. § 1367. Indeed, both parties regard the state law claims as identical to the federal
claims because neither party has separately briefed the merits of the state-law claims.
Summary judgment is appropriate if defendants show that “there is no genuine dispute
as to any material fact and [they are] entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In ruling on defendants’ motion for summary judgment, the court views all facts and
draws all reasonable inferences in the light most favorable to the Ryans. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude summary judgment.” Id. at 248.
A. Status of claims against Sheriff Meier and Deputy Poppe
The court must begin with a preliminary issue, because plaintiffs’ complaint does not
make clear whether they are suing Sheriff Meier and Deputy Poppe in their official or their
individual capacities. A suit against a public official in his or her official capacity is effectively a
suit against the government entity itself. Kentucky v. Graham, 473 U.S. 159, 166 (1985). A suit
against the official in his or her individual capacity is directed at establishing the official’s
personal liability for his or her own acts that deprived a plaintiff of his or her rights. See Moore v.
State of Ind., 999 F.2d 1125, 1129 (7th Cir. 1993).
Defendants invite the court to decide this question by the presumption invoked in
Yeksigian v. Nappi: “[i]n the absence of any express statement that the parties are being sued in
their individual capacities, an allegation that the defendants were acting under color of law
generally is construed as a suit against the defendants in their official capacities only.” 900 F.2d
101, 104 (7th Cir. 1990) (citing Meadows v. Indiana, 854 F.2d 1068, 1069 (7th Cir. 1988). But
the presumption is outmoded. Courts in this circuit no longer entertain a presumption of an
7
official capacity suit after Hill v. Shelander, 924 F.2d 1370, 1373-74 (7th Cir. 1991). In Miller v.
Smith, the Seventh Circuit explained:
[In Hill, we] spelled out a new regime for § 1983 claims that do not
specify the capacity in which the defendant has been sued: Where the
plaintiff seeks injunctive relief from official policies or customs, the
defendant has been sued in her official capacity; where the plaintiff
alleges tortious conduct of an individual acting under color of state law,
the defendant has been sued in her individual capacity.
220 F.3d 491, 494 (7th Cir. 2000) (citations and quotation marks omitted).
Under the Miller approach, plaintiffs’ claims against Sheriff Meier and Deputy Poppe are
properly interpreted as individual capacity suits. Plaintiffs refer to Sawyer County’s “policies
and customs,” but they do not really identify any objectionable ones. They do not seek
injunctive relief, but they do seek punitive damages, both of which are factors that point toward
an individual capacity suit. Plaintiffs clearly allege Deputy Poppe’s individual tortious conduct
in arresting Keith. It is perhaps a closer call with Sheriff Meier, but plaintiffs allege that he was
personally involved in the seizure of the tractor and go-cart after the fact when he implicitly
ratified the conduct of the deputies by refusing to do anything about it.
The decisive factor in this case is that plaintiffs also bring a claim against Sawyer County
itself, which would make official capacity claims against Sheriff Meier and Deputy Poppe
redundant. The court would construe official capacity claims against Meier and Poppe as claims
against Sawyer County itself under Kentucky, 473 U.S. at 166 (“[A]n official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity.”); see Yeksigian, 900 F.2d
at 103. Accordingly, the court will give plaintiffs the benefit of the doubt and construe their
claims against Sheriff Meier and Deputy Poppe as individual capacity claims. Any claims based
on the policies or customs of the sheriff’s department will be captured by the Ryan’s claims
against the county itself.
8
B. Constitutional claims against Sawyer County
The Ryans assert § 1983 claims against Sawyer County for all three incidents at issue.
Under Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), municipalities and other
local government units are “among those persons to whom § 1983 applies.” However, Sawyer
County “cannot be held liable solely because it employs a tortfeasor—or, in other words, a
municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436
U.S. at 691. Rather, Sawyer County may be sued only when its officers inflict an injury in the
execution of the government’s policy or custom. Id. at 694. The goal is to “distinguish acts of
the municipality from acts of employees of the municipality, and thereby make clear that
municipal
liability
is
limited
to
action
for
which
the
municipality
is
actually
responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). “Misbehaving employees
are responsible for their own conduct[;] ‘units of local government are responsible only for their
policies rather than misconduct by their workers.’” Lewis v. City of Chi., 496 F.3d 645, 656 (7th
Cir. 2007) (quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th Cir. 2007)).
To establish Sawyer County’s liability, the Ryans must show the existence of an official
policy or an established custom that is “the moving force” behind the deprivation of their
constitutional rights. Estate of Sims v. Cnty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007)
(quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)); see also Monell, 436 U.S. at 694.
The Ryans can establish a policy or custom through: “(1) an express policy that causes a
constitutional deprivation when enforced; (2) a widespread practice that is so permanent and
well-settled that it constitutes a custom or practice; or (3) an allegation that the constitutional
injury was caused by a person with final policymaking authority.” Estate of Sims, 506 F.3d at 515
(citing Lewis, 496 F.3d at 656). The Ryans do not allege they that they were injured by any
9
express policy, nor do they point to any permanent, widespread practice. Rather, they take the
third option, alleging that Sheriff Meier is a person with final policymaking authority, and thus
his conduct as sheriff necessarily reflects the policy or custom of Sawyer County. Dkt. 1-1;
Dkt. 25, at 6-7. This argument fails.3
Plaintiffs contend (and defendants are willing to concede) that Sheriff Meier has final
policymaking authority. But this is wrong, at least in part. Contrary to plaintiffs’ assertion, Dkt.
25, at 7, a Wisconsin sheriff does not have universal final policymaking authority on everything
within the purview of the department. A sheriff does retain the discretion to choose the ways
and means of preserving his constitutionally protected duties, such as making the work
assignments of deputies. Dunn Cnty. v. Wisconsin Employment Relations Comm'n, 2006 WI App
120, ¶ 15, 293 Wis. 2d 637, 649, 718 N.W.2d 138, 144. But a sheriff’s policymaking authority
is also limited by statute, the Wisconsin and federal constitutions, and even by collective
bargaining agreements. Id. It is thus far too simplistic to say that the sheriff “has final
policymaking authority” and leave it at that. Under plaintiffs’ theory, any action by a sheriff
would be the action of a person with final policymaking authority, which would thus subject the
county to liability for anything the sheriff does on the job. This is not the law.
Plaintiffs must identify some decision by Sheriff Meier that reflects his policymaking
decision in an area in which he is the final policymaking authority. Plaintiffs have failed to do
so. The only decision by Sheriff Meier about which plaintiffs complain is his decision not to
follow up on their complaint after the go-cart incident. Plaintiffs do not point to any policy
reflected in this decision, let alone a policy in an area in which Sheriff Meier is the final
policymaking authority. Sheriff Meier simply determined that this particular complaint did not
3
The court notes that the Ryans do not contend that Deputy Poppe has any policymaking
authority. Thus, any official-capacity claim against her, or any claim directly against the county
based on her individual action, fails.
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warrant further action. Even if he were wrong to dismiss the Ryans’ complaint (and nothing in
the record suggests that he was), this single decision does not reflect his policymaking authority.
Sheriff Meier’s liability for his treatment of the Ryans’ complaint, if any, is solely his, not the
county’s.
The court concludes that defendants are entitled to summary judgment dismissing
plaintiffs’ claims against Sawyer County and any official capacity claims against Sheriff Meier
and Deputy Poppe.
C. Individual capacity claims against Sheriff Meier
A valid § 1983 claim for damages against an official in his individual capacity requires a
showing of direct responsibility for the improper action. Moore, 999 F.2d at 1129. In other
words, “an individual cannot be held liable in a § 1983 action unless he caused or participated
in an alleged constitutional deprivation.” Id. (quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869
(7th Cir. 1983)).
The fundamental problem for the Ryans is that they cannot and do not dispute that
Meier did not personally cause or participate in any of the three incidents at issue. The Ryans
agree that Meier “did not in any way make any decisions, participate or condone any law
enforcement decisions” relating to the baseball incident, and that he did not make decisions
relating to or condone the arrest incident. Dkt. 15, at 13, 16, and Dkt. 34. They also agree that
Meier “in no way personally participated in any decision made with regard to what law
enforcement activities would take place” with respect to the go-cart incident. Dkt. 15, at 7, and
Dkt. 34. The Ryans base their claims against Sheriff Meier solely on his handling of the
complaint they made the day after the go-cart incident. The court has already concluded that
Sawyer County is not liable for Sheriff Meier’s handling of the complaint. But the question here
11
is whether Meier could be individually liable as a consequence of his decision to do nothing
about the Ryans’ complaint.
Generally, individual liability attaches only to those who directly participate in the
constitutional deprivation. Cygnar v. City of Chicago, 865 F.2d 827, 847 (7th Cir. 1989).
Showing that an official failed to remediate the deprivation is not, in itself, sufficient. Thus,
Sheriff Meier is not liable merely because he failed to investigate, correct, or take punitive action
in response to misconduct. Baskin v. City of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998);
Fiorenzo v. Nolan, 965 F.2d 348, 351 (7th Cir. 1992). Individual liability would attach to Sheriff
Meier if he knew of an abusive practice and actually condoned it. Kernats v. O'Sullivan, 35 F.3d
1171, 1182 (7th Cir. 1994). At a minimum, the Ryans would have to show that Sheriff Meier
was deliberately indifferent to complaints of abusive practices, so that it could be said that he
has effectively adopted the abusive practices as county policy. Wilson v. City of Chi., 6 F.3d
1233, 1240 (7th Cir. 1993) (citations omitted).
The Ryans use the phrase “deliberate and reckless indifference,” Dkt. 25, at 6-7, to
describe Sheriff Meier’s reaction to their complaint. But they fall far short of adducing evidence
sufficient to establish this level of intent. The day after the go-cart incident, the Ryans
complained to Sheriff Meier that his deputies made a warrantless and unjustified entry onto
their property, issued orders to both Keith and Linda, physically assaulted and verbally abused
Linda, and facilitated the removal of the tractor and go-cart from their premises even though
Linda offered to show proof of ownership of the go-cart. Sheriff Meier told the Ryans that he
was “done with” the incident and that he would be “doing nothing about it.”
The Ryans’ evidence shows only that Sheriff Meier did not investigate, correct, or take
punitive action in response to their report of misconduct by his deputies. This is not a sufficient
showing under Baskin. 138 F.3d at 705. The Ryans do not adduce any facts to show that Sawyer
12
County deputies engaged in a pattern of abuse, or that Sheriff Meier was aware such a pattern.
Even in the case of the single incident reported by the Ryans, the Ryans adduce no evidence
that Sheriff Meier believed that his deputies had committed any act of misconduct. The Ryans
adduce no evidence showing Sheriff Meier’s knowledge or investigation of the go-cart incident
prior to their meeting with him. In sum, all the Ryans can show is that Sheriff Meier did not
follow up on their complaint. But they have no evidence to show what Sheriff Meier knew or
thought about the conduct of his deputies during the incident.
Defendants are entitled to summary judgment on the Ryans’ individual capacity claims
against Sheriff Meier.
D. Individual capacity claims against Deputy Poppe
The Ryans allege § 1983 individual capacity claims against Deputy Poppe for falsely
arresting and imprisoning Keith in September 2011. Poppe would be liable for false arrest or
imprisonment if Keith were detained without probable cause. Hall v. Gearhart, No. 12-cv-788,
2014 WL 2002809, at *6 (W.D. Wis. May 14, 2014) (citation omitted). Probable cause is an
absolute defense to any § 1983 claim for wrongful arrest or false imprisonment. Gutierrez v.
Kermon, 722 F.3d 1003, 1007 (7th Cir. 2013); Mustafa v. City of Chi., 442 F.3d 544, 547 (7th
Cir. 2006); Schertz v. Waupaca Cnty., 875 F.2d 578, 582 (7th Cir. 1989).
“An officer has probable cause to make an arrest only when the facts and circumstances
within his knowledge and of which he has reasonably trustworthy information are sufficient to
warrant a prudent person in believing that the suspect has committed an offense.” Reher v. Vivo,
656 F.3d 772, 776 (7th Cir. 2011). Probable cause relies on the officer’s common-sense
judgment based on the totality of the circumstances. United States v. Reed, 443 F.3d 600, 603
(7th Cir. 2006). “The test is an objective one and evaluates whether probable cause existed on
13
the facts as they appeared to a reasonable police officer, even if the reasonable belief of that
officer is ultimately found to be incorrect.” Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003)
(citation omitted).
The information available to Deputy Poppe at the time of the arresting incident included
John’s and Keith’s competing versions of their argument. John reported that Keith was yelling,
swearing, and putting his fist in John’s face in a threatening manner. The account of John’s
brother, Steve, was consistent with John’s. Keith reported that, although he asked John and
Steve to vacate the premises, Keith was not abusive, threatening, or disorderly. Deputy Poppe
was informed that there were witnesses to the argument, and she interviewed one, Valerie
Stone.4 Dkt. 19-1 and Dkt. 32, at 30. Stone left the immediate scene as the argument escalated,
but her account tended to confirm John’s account of the beginning of the argument, and that
Keith used somewhat aggressive language with Steve. Dkts. 19-1, 28-8.
With this informational background, the propriety of Deputy Poppe’s probable cause
determination then depends on the applicable criminal statute. Stokes v. Bd. of Educ. of the City of
Chi., 599 F.3d 617, 622 (7th Cir. 2010). Wisconsin’s disorderly conduct statute provides:
(1) Whoever, in a public or private place, engages in violent, abusive,
indecent, profane, boisterous, unreasonably loud or otherwise disorderly
conduct under circumstances in which the conduct tends to cause or
provoke a disturbance is guilty of a Class B misdemeanor.
Wis. Stat. § 947.01. Thus, a typical disorderly conduct offense in Wisconsin has two elements:
(1) “that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably
loud, or similar disorderly conduct” and (2) “that the defendant’s conduct occurred under
4
In opposition to defendants’ motion for summary judgment, the Ryans submit two additional
witness statements. Dkts. 28-6, 28-7. Defendants contend that the witness statements are
inadmissible as unauthenticated and hearsay. The evidentiary dispute is immaterial. What
matters is the information available to Deputy Poppe, and she did not speak to the additional
two witnesses.
14
circumstances where such conduct tends to cause or provoke a disturbance.” State v. Schwebke,
2002 WI 55, ¶ 24, 53 Wis. 2d 1, 17, 644 N.W.2d 666, 674 (2002) (internal quotation marks
omitted). Wisconsin courts have interpreted the phrase “similar disorderly conduct” broadly to
mean “conduct of a type not previously enumerated but similar thereto in having a tendency to
disrupt good order and to provoke a disturbance.” Id. (internal quotation marks omitted).
In view of the information available to Deputy Poppe and Wisconsin’s disorderly
conduct statute, the court determines that Deputy Poppe had probable cause to arrest Keith for
disorderly conduct. Deputy Poppe credited John’s version of the events, under which Keith had
been loud, abusive, and threatening. Stone’s witness account gave no reason to doubt John’s
version of the events. Keith would have been entitled to contest all the underlying facts at trial
on the disorderly conduct charge. But on the record of this case, the Ryans provide no reason to
second-guess Deputy Poppe’s decision to believe John’s version of the events. Probable cause
“requires only that a probability or substantial chance of criminal activity exists; it does not
require the existence of criminal activity to be more likely true than not true.” Mucha v. Vill. of
Oak Brook, 650 F.3d 1053, 1056-57 (7th Cir. 2011). The undisputed facts of this case show that
Deputy Poppe had reason to believe that Keith had probably committed disorderly conduct.
But even if Deputy Poppe had made the wrong call, she is entitled to qualified immunity.
An officer “is entitled to qualified immunity in a false-arrest case when, if there is no probable
cause, ‘a reasonable officer could have mistakenly believed that probable cause existed.’” Fleming
v. Livingston Cnty., Ill., 674 F.3d 874, 880 (7th Cir. 2012) (quoting Humphrey v. Staszak, 148
F.3d 719, 725 (7th Cir. 1998)); see also Reher, 656 F.3d at 777 (granting qualified immunity to
officer who could have reasonably, but mistakenly, believed that plaintiff had committed
disorderly conduct even though the information available to the officer at the time was probably
too vague to support an arrest). Qualified immunity provides “ample protection to all but the
15
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,
341 (1986). Law enforcement officers are given this broad protection, not as a license to violate
constitutional rights, but to safeguard their ability to act in the public interest even in the face
of ambiguity, without fear of being sued. See Hunter v. Bryant, 502 U.S. 224, 228-29 (1991); see
also Malinowski v. DeLuca, 177 F.3d 623, 626-27 (7th Cir. 1999) (articulating policy reasons
behind the immunity). Although qualified immunity is an affirmative defense, the burden of
defeating an assertion of qualified immunity rests with the plaintiff. Spiegel v. Cortese, 196 F.3d
717, 723 (7th Cir. 1999).
The Ryans cannot meet their burden here. The Ryans argue that summary judgment is
inappropriate because there are disputed issues of fact that must go to a jury. Under Keith’s
version of the facts, which the court must credit, he was not disorderly and should not have
been arrested. But the Ryans miss a critical point, which is that the question here is not Keith’s
ultimate guilt or innocence. What matters is what Deputy Poppe knew about the incident, and
what she knew is not disputed. The Ryans do not dispute that Deputy Poppe had both John’s
and Keith’s versions of the events. The Ryans contend that Deputy Poppe should have talked to
two more witnesses, and that she should have reached a different conclusion based on what she
knew. But the Ryans do not contest that Deputy Poppe had information that, if believed, would
support her decision to arrest Keith. This is not a case like Payne v. Pauley, 337 F.3d 767 (7th
Cir. 2003), in which the arresting officer and the plaintiff presented diametrically opposed
accounts of the officer’s conduct. Here, the parties do not meaningfully dispute Deputy Poppe’s
conduct, or the information on which she acted. The Ryans simply think she made the wrong
call and arrested the wrong party. The court must view the incident from the perspective of a
reasonable person in the position of the arresting officer. Wheeler v. Lawson, 539 F.3d 629, 634
16
(7th Cir. 2008). Stepping into Deputy Poppe’s shoes, the court concludes that her assessment
was reasonable, even if it were mistaken.
Deputy Poppe is entitled to summary judgment on the claim against her.
E. The conduct of the other deputies
The Ryans do not bring claims against the Sawyer County deputies who were most
directly involved with the go-cart incident and the baseball incident. Accordingly, the court
would not have to decide whether Deputy Anderson, Investigator Ross, or any other Sawyer
County deputy would be liable to the Ryans. Nevertheless, the court will comment briefly on
the go-cart and baseball incidents because there are additional reasons why the Ryans’ claims are
ultimately doomed. If there is no underlying constitutional deprivation, there is nothing for
Sawyer County or any of its employees to be held liable for. Sallenger, 630 F.3d at 504.
As for the go-cart incident, Sawyer County deputies went to the Edelweiss Motel in
response to Drake’s telephone call reporting a family dispute and a possible fight. Deputies
properly responded to this call, and they were entitled to enter the Ryan property in doing so.
United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993). Moreover, the Ryan property was a
motel, and the Ryans do not contend that Sawyer County deputies entered any private part of
the Ryan residence. It appears that the deputies stayed on the parts of the property accessible to
the public. Thus, any claim that Sawyer County deputies violated the Ryans’ Fourth
Amendment rights by a warrantless entry would fail.
As for the alleged seizure of the go-cart: Sawyer County deputies did not seize the gocart, Drake did. The fact that Sawyer County deputies were present when Drake took the gocart does not turn the incident into a police seizure. Sawyer County deputies would be liable for
Drake’s seizure of the Ryans’ property only if the deputies conspired with Drake to take the go-
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cart, and the deputies knew that the taking was illegal. Pepper v. Vill. of Oak Park, 430 F.3d 805,
810 (7th Cir. 2005). The Ryans adduce no evidence to support such a claim. Sawyer County
deputies responded to a report of a family fight. The deputies facilitated a more or less peaceful
resolution of the property dispute that was fueling the fight. The Ryans complain that the
deputies would not evaluate the documents that Linda offered to prove their ownership of the
go-cart. The deputies managed to keep the peace, and the court will not second guess their
decisions concerning who got possession of the go-cart. That kind of intra-family dispute would
have been more properly addressed to Judge Judy, to whom the family turned to resolve at least
some of their disputes. Dkt. 14, at 29, and Dkt. 25, at 5-6.
As for the Babe Ruth baseballs, the Ryans do not object to the search warrant or the
seizure of the firearms. But they do not get far with their argument that the baseballs were
outside the scope of the warrant, which was directed to firearms and ammunition. The search
did not have to end as soon as the deputies found the first firearm, because there may have been
more guns and ammunition in the residence. The baseballs had been reported stolen, so when
Investigator Ross found them, the baseballs were evidence of a crime, and thus appropriately
seized even if the warrant was not directed at them specifically. Russell v. Harms, 397 F.3d 458,
465 (7th Cir. 2005).
The return of the baseballs to Maureen Ryan, however, is more problematic. Although
Investigator Ross considered Maureen to be the “undisputed” owner, the question of ownership
had not been formally resolved when he returned the baseballs to her. Moreover, he did so
without giving notice to Keith, from whom the baseballs were taken. But the Ryans have
adduced no evidence that the allegedly improper return of the baseballs to Maureen was made
according to some county policy or custom. Thus, the resulting deprivation of property was the
kind of “random and unauthorized” seizure that does not subject the county to liability. And
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the Ryans have not made any claim against Investigator Ross, the person who actually gave the
baseballs to Maureen.
The Ryans face a further problem: they have an adequate post-deprivation remedy for
Investigator Ross’s random and unauthorized taking of the baseballs. Wisconsin state statutes
provide a process by which a person claiming a right to property seized pursuant to a search
warrant can recover the property when it is not needed as evidence, and assuming it is not
contraband. Wis. Stat. § 968.20(1). In this case, it was too late for that process. Accordingly,
the Ryans pursued (albeit tardily) the process under Wis. Stat. § 893.80(1d) for claims against
governmental bodies. Their claim was disallowed by Sawyer County. Dkt. 1-1, ¶ 42. The Ryans
will not succeed in pressing this claim (see the next section below), but the state did provide an
adequate post-deprivation remedy. The Ryans do not have a viable claim for the deprivation of
property without due process of law when the government affords an adequate post-deprivation
remedy. Hudson v. Palmer, 468 U.S. 517, 534 (1984).
In sum, even if the Ryans had pursued claims against the Sawyer County deputies
involved in the incidents with the go-cart and the baseballs, the record establishes that none of
these deputies violated the Ryans’ constitutional rights.
F. Tort claim against Sawyer County
Section II of the Ryans’ complaint concerns “Claims Arising Under State Law.” This
section is far from crystal clear, but it appears that in addition to asserting claims under the
Wisconsin constitution for violation of the their due process rights, the Ryans are also pressing a
common law tort claim against Sawyer County for the wrongful taking of the Babe Ruth
baseballs. Defendants move for summary judgment on this common law claim on the grounds
that the Ryans failed to comply with the notice of claim provisions in Wis. Stat. § 893.80(1d).
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The Ryans concede that they did not strictly comply with the notice of claim
requirements, because their notice of claim was filed more than 120 after the events giving rise
to the claim. The baseballs were seized on September 3, 2010, and returned to Maureen Ryan
on October 8, 2010. The Ryans tell this court that they learned of the delivery of the baseballs
to Maureen in “March 2013” without giving the precise date. They contend that they told thensheriff Mark Kelsey that they “would be making a claim against the Sheriff’s Department for the
value of the baseballs.” Dkt. 28, ¶ 65. According to the complaint (but without evidentiary
support), the Ryans presented a written notice of claim to Sawyer County on or about July 22,
2013.
The Ryans make essentially two arguments for why they should be excused from strict
compliance with the notice of claim provisions. First, they contend that they should be entitled
to a “discovery rule” and that the notice of claim clock started only when they discovered the
disposition of the baseballs. The Ryans provide no authority that supports the application of a
discovery rule to the notice of claim provision, and its plain language seems to foreclose such a
reading. Wisconsin courts have rejected the application of the discovery rule to similar statutes.
See, e.g., Oney v. Schrauth, 197 Wis. 2d 891, 901, 541 N.W.2d 229, 232 (Ct. App. 1995). In
addition, their claim to the benefit of the discovery rule is not supported by the facts. Although
the Ryans do not indicate the precise day in March 2013 on which they learned of the
disposition of the baseballs, court records show that Linda appeared at a hearing on March 6,
2013, to request the return of the items seized pursuant to the warrant. Thus, even if the Ryans
had the benefit of the discovery rule, they waited more than 120 days after March 6 to file a
written notice of claim with the county.
The second argument the Ryans make for excusing their failure to strictly comply with
the notice of claim requirement is that they substantially complied by telling then-sheriff Kelsey
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about their claim. Pursuant to Wis. Stat. § 893.80(1d)(a), substantial compliance is sufficient if
(1) the governmental entity has actual notice, and (2) failure to give the requisite notice is not
prejudicial to the governmental entity. The Ryans bear the burden to show substantial
compliance. E-Z Roll Off, LLC v. Cnty. of Oneida, 2011 WI 71, ¶ 49, 335 Wis. 2d 720, 747, 800
N.W.2d 421, 435. Mere assertions are not enough: the Ryans would have to adduce specific
facts showing there is a genuine issue for trial on the issue of prejudice. Id.
The Ryans have adduced no evidence whatsoever on the issue of prejudice. Accordingly,
following the Wisconsin Supreme Court’s rationale in E-Z Roll Off, this court need not consider
whether the Ryans can show actual notice, because the failure to adduce evidence showing a
lack of prejudice is fatal to their attempt to show substantial compliance. This would be a very
hard showing to make, because the Ryans should have presented their claim within 120 days of
October 8, 2010, at the latest, but they did not do so for nearly three years. The Ryans knew
that the baseballs had been seized on the grounds that Keith had stolen them from Maureen. If
the Ryans could show that Keith owned the baseballs, they should have pressed their claim of
ownership long before they did. In sum, there is no reason why the Ryans should be excused
from strict compliance with the written notice of claim requirement in Wis. Stat. § 893.80(1d).
Defendants are entitled to summary judgment on the Ryans’ common law claim for the
value of the baseballs.
G. State-law constitutional claims
The Ryans also brought state-law constitutional claims mirroring their federal claims
with respect to the baseball and arrest incidents. The parties agree that the Ryans’ rights under
the United States Constitution and the Wisconsin constitution are substantively the same.
Dkt. 25, at 19, and Dkt. 32, at 40. Neither party has separately briefed the state constitutional
21
claims. Accordingly, defendants are also entitled to summary judgment on the Ryans’ state-law
constitutional claims for the same reasons they are entitled to summary judgment on the federal
constitutional claims.
ORDER
IT IS ORDERED that:
1. Defendants’ motion for summary judgment, Dkt. 13, is GRANTED.
2. The clerk is ordered to enter judgment for defendants and close this case.
Entered this 11th day of December, 2014.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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