Sundsmo, Leonard v. Calkins, Kevin et al

Filing 169

ORDER denying 121 Motion for Reconsideration; denying as moot 145 Motion to amend the scheduling order; granting 154 Motion for Summary Judgment; denying 168 Motion for Judgment on the Pleadings. Plaintiff's state-law assault claims against defendants Pichler, Schauf, and Labroscian are DISMISSED without prejudice for plaintiff's failure to comply with Wisconsin's notice-of-claim statute. Defendant Burch may have until February 6, 2017, to respond to this order r egarding whether he wishes to continue prosecuting his motion to dismiss for lack of proper service. The trial date and associated pretrial submission deadlines are STRICKEN. Signed by District Judge James D. Peterson on 1/31/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LEONARD JOHN SUNDSMO,
Plaintiff,
v.

OPINION & ORDER

DEREK BURCH, MIKE PICHLER,
MARK R. SCHAUF and RYAN LABROSCIAN,

15-cv-2-jdp

Defendants.
Plaintiff Leonard John Sundsmo brings claims against law enforcement officials from
the city of Baraboo, Sauk County, and state of Wisconsin for an allegedly illegal search and
arrest on November 4, 2014. In a March 14, 2016 order, I dismissed several of Sundsmo’s
claims. Dkt. 117.
I dismissed Sundsmo’s (1) official capacity claims against defendants Elena Leon
(Sundsmo’s probation agent) and Kevin Calkins (the district attorney) because they cannot
be sued for money damages in their official capacities; (2) state-law claims against Calkins,
Leon, and Derek Burch (a deputy) because Sundsmo failed to comply with Wisconsin’s
notice-of-claim statutes; (3) Fourth Amendment claim against Leon for her role in issuing an
apprehension request, on qualified immunity grounds; and (4) Fourth Amendment claims
against defendants Calkins, Burch, and Ryan Labroscian, Mike Pichler, and Mark Schauf of
the Baraboo Police Department regarding the entry into Sundsmo’s girlfriend’s home and the
fact of his arrest, on qualified immunity grounds because Leon had issued an apprehension
request. This left only Sundsmo’s Fourth Amendment excessive force claims against
defendants Burch, Labroscian, Pichler, and Schauf, and his parallel state-law assault claims
against Labroscian, Pichler, and Schauf.

There are now several motions pending. Sundsmo has filed a document titled
“Objection” to the March 14, 2016 order, Dkt. 121, which I take to be a motion for
reconsideration, as well as a motion for judgment in his favor. Sundsmo has also filed a
document titled “Objection” to Calkins and Leon’s brief in opposition to the reconsideration
motion, in which he asks for judgment to be entered in his favor. Dkt. 128. I will consider
this to be his reply brief. There is also still an unresolved question whether defendant Burch
was properly served with a summons. The parties have submitted dueling affidavits on that
question. Finally, Burch and the Baraboo Police Department defendants have each filed
motions for summary judgment.
As discussed further below, I will deny Sundsmo’s motion for reconsideration and
grant the Baraboo Police Department defendants’ motion for summary judgment. I will direct
defendant Burch to explain whether he wishes to continue litigating the summons issue or
have the court reach the merits of his parallel motion for summary judgment.

OPINION
A. Sundsmo’s motion for reconsideration of the March 14, 2016 order
This court retains the power to reconsider its previous decisions. See Fed. R. Civ. P.
54(b) (courts may revise interlocutory decisions “at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities”). But it should only do so
“if there is a compelling reason, such as a change in, or clarification of, law that makes clear
that the earlier ruling was erroneous.” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572
(7th Cir. 2006).

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Parts of Sundsmo’s briefs in support of this motion reiterate unsuccessful arguments
he made previously, such as that he could not be arrested based on an apprehension request,
but he does not provide a persuasive reason to reconsider my previous rulings. He also
incorrectly states that I did not consider individual capacity claims against defendants
Calkins and Leon. The bulk of his briefs contains arguments related to frivolous “sovereign
citizen” theories of government illegitimacy. See, e.g., United States v. Hilgeford, 7 F.3d 1340,
1342 (7th Cir. 1993) (argument that individual is sovereign citizen of state who is not
subject to jurisdiction of United States and not subject to federal taxing authority is
“shopworn” and frivolous); Bechard v. Rios, No. 14-CV-867-WMC, 2014 WL 7366226, at *1
(W.D. Wis. Dec. 24, 2014) (case dismissed where plaintiff “maintain[ed] that the social
security number that issued along with his birth certificate . . . is really an identification
number for a German-owned insurance policy.”). In particular, Sundsmo argues that my
previous rulings are unlawful because I am “impersonating” an Article III judge and instead
have been acting under the authority of an Article IV territorial court. These arguments are
frivolous and I will not consider them further. Because nothing in Sundsmo’s briefs persuades
me that my rulings in the March 14 order were incorrect, or that Sundsmo should be granted
judgment on any of his claims, I will deny his motion for reconsideration.
B. Defendants’ Pichler, Schauf, and Labroscian’s motion for summary judgment
There are two motions for summary judgment currently before the court: one filed by
defendant Burch and another filed by defendants Pichler, Schauf, and Labroscian. As
discussed further below, I cannot address the merits of Burch’s summary judgment motion
until I resolve Burch’s motion to dismiss for lack of proper service. But I can address Pichler,

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Schauf, and Labroscian’s motion. Their proposed findings are set forth below, along with
proposed findings from Burch’s motion that they seek to incorporate by reference.
Sundsmo’s responses to both summary judgment motions do not substantively
address the arguments made by defendants in their briefs, nor do they include responses to
defendants’ proposed findings of fact, or even Sundsmo’s own proposed findings. Instead,
Sundsmo objects to the various documents defendants have submitted for various reasons the
court has previously determined to be meritless, such as that defendants’ attorneys’ electronic
signatures are invalid, that the attorneys are impermissibly testifying to matters of which they
have no personal knowledge, and that defendants’ filings are invalid because their attorneys
must be registered under the Foreign Agents Registration Act.
Sundsmo’s failure to provide any proposed findings of fact opposing the motions for
summary judgment violates this court’s summary judgment procedures. See “Motions for
Summary Judgment,” Dkt. 130-1, attached to the court’s Preliminary Pretrial Conference
Order. I will consider defendants’ facts to be undisputed. Id., at § II.C. (“[u]nless the
responding party puts into dispute a fact proposed by the moving party, the court will
conclude that the fact is undisputed”). I note that Sundsmo failed to submit proposed
findings even after the court specifically instructed him to substantively respond to Burch’s
proposed findings following Burch’s own belated submission of proposed findings in support
of his motion:
I warn plaintiff that his summary judgment responses should
substantively address the issues in this case having to do with
the search and arrest. Plaintiff’s brief opposing Burch’s
(admittedly incomplete) motion for summary judgment does not
address the substance of his claims. Rather, plaintiff contends
that all of Burch’s submissions should be disregarded as failing
to comply with the Foreign Agents Registration Act. This is
nothing more than a rehash of plaintiff’s previous attempts to

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raise long-discredited “sovereign citizen” legal theories about
how to properly file legal documents in federal court. These
arguments have no traction in this court and they are not going
to get plaintiff anywhere. Whether he likes it or not, plaintiff
needs to adjust his mind set and his submissions in this lawsuit.
Dkt. 161 at 2.
Therefore, I will consider defendants’ version of the events be undisputed, with one
exception, discussed further below.
1. Undisputed facts
At about 9:30 p.m. on November 4, 2014, a person named Bob Schreiber contacted
the Sauk County Sheriff’s Department, seeking a welfare check on a West Baraboo resident
named Angela Mazerek. Schreiber stated that plaintiff Leonard John Sundsmo had taken
Mazerek’s cell phone and used it to leave a threatening message in Schreiber’s voice mailbox.
Defendant Derek Burch, a deputy with the Sauk County Sheriff’s Office, responded
to the request. He recognized both Sundsmo and Mazerek from previous law enforcement
contacts. Burch checked Sundsmo’s warrant history and discovered that an active felony
warrant had been issued (I take this to be the apprehension request discussed in my March
14, 2016 order).
Burch requested support from the Baraboo Police Department because of the felony
warrant, and because during previous contacts both Sundsmo and Mazerek had been
uncooperative with law enforcement officers. Sundsmo also had a previous conviction for
obstructing or resisting an officer. Burch arrived at Mazerek’s house with defendant Michael
Pichler and another officer from the Baraboo Police Department, either defendant Ryan
Labroscian or Officer Ellefson.1 The officers knocked on the door and shined a light into the

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Burch’s proposed findings contradict each other about the identity of the third officer

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house. They saw that a television was on, and a hall light was turned on, but no one inside
responded. After the officers’ attempts to contact the persons inside failed, Burch called
Schreiber back.
Schreiber stated that he was concerned because of a recent incident in which
Sundsmo had physically assaulted Mazerek and then took away her phone to prevent her
from calling the police, and because Sundsmo had left several threatening phone calls on
Schreiber’s cell phone that night. Schreiber also said that Sundsmo owned two vehicles with
Minnesota plates, and that Mazerek owned a blue car. All three of those vehicles were at
Mazerek’s house that night.
Defendant Burch believed that Sundsmo was in the house, so he called Sauk County
District Attorney Kevin Calkins at about 10:20 p.m. to discuss whether there was probable
cause to enter the house. Based on the circumstances described and the felony warrant,
Calkins advised that he believed there was probable cause for Burch to enter. The officers
then entered the home with handguns drawn to “clear” the rooms of the house. The officers
found Sundsmo and Mazerek in a bedroom.
Two or three officers, including Deputy Burch, stood at the entrance to Mazerek’s
bedroom telling Mazerek and Sundsmo to show their hands, and for Mazerek to immediately
get out of bed. Defendants’ account is that they did not point their guns at Mazerek or
Sundsmo. Sundsmo disputes this fact. In defendant Burch’s proposed findings (which the
Baraboo Police Department defendants incorporate into their own), defendants acknowledge
that Sundsmo and Mazerek state that the officers pointed their guns at them from about ten

initially at the scene. But it is clear that at some point before Sundsmo’s arrest, defendant
Labroscian joined the team of officers at the scene.

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to twelve feet away, as they entered the bedroom.2 Dkt. 153, at 4, ¶ 21 (citing Sundsmo
Depo., Dkt. 138, at 65-66; Mazerek Depo., Dkt. 139, at 31-32). I will assume Sundsmo’s
version to be true for purposes of this motion.
The officers directed Mazerek to immediately accompany them out of the room,
which she did. Once it was clear that neither Sundsmo nor Mazerek were armed, the officers
holstered their guns. Burch then approached Sundsmo and helped him put on a knee brace.
Sundsmo was taken to the Sauk County Jail.
Defendant Mark Schauf is the chief of the Baraboo Police Department. He was not
present at the arrest.
2. Analysis
To succeed on a motion for summary judgment, the moving party must show that
there is no genuine issue of material fact and that he is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue
of material fact arises only if sufficient evidence favoring the nonmoving party exists to
permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc., 414
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About a month after summary judgment briefing was closed, Sundsmo submitted a
document titled “answer/rebuttal/objection to . . . Motion(s) for Summary Judgment,”
Dkt. 167, and a document titled “Motion for Judgment on the Pleadings,” Dkt. 168. The
motion for judgment on the pleadings was filed after the court’s deadline for dispositive
motions, and in any event, contains only frivolous arguments of the sort contained in his
summary
judgment
oppositions.
I
will
deny
that
motion.
Sundsmo’s
“answer/rebuttal/objection” contains similar frivolous arguments, but also contains a
statement that the officers woke him with “guns pointed mere inches from our heads.”
Dkt. 167, at 5. This statement is too late to be considered at summary judgment and is not
in proper evidentiary form. But even if it were timely and in evidentiary form, I would
disregard it because it is directly contradicted by Sundsmo’s deposition testimony, in which
he stated that the officers did not point their guns at him within inches of his face, but rather
from about ten feet away. Dkt. 138, at 65-66. See, e.g., McCann v. Iroquois Mem'l Hosp., 622
F.3d 745, 751 (7th Cir. 2010) (sham-affidavit rule “is designed to avoid sham factual issues
and prevent parties from taking back concessions that later prove ill-advised”).

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F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary
judgment record must be drawn in the nonmoving party’s favor. Baron v. City of Highland
Park, 195 F.3d 333, 338 (7th Cir. 1999). If the nonmoving party fails to establish the
existence of an essential element on which that party will bear the burden of proof at trial,
summary judgment for the moving party is proper. Celotex, 477 U.S. at 322.
The only claims remaining in the case are Sundsmo’s Fourth Amendment excessive
force claims against defendants Burch, Labroscian, Pichler, and Schauf, and his parallel statelaw assault claims against Labroscian, Pichler, and Schauf. Some of these claims can be
dismissed at the outset.
The Baraboo Police Department defendants state that Sundsmo did not serve the City
of Baraboo with a notice of claim pursuant to Wis. Stat. § 893.80. Sundsmo does not dispute
this, so I will dismiss his state-law claims.
Defendant Schauf, the chief of the Baraboo police, was not present at Sundsmo’s
arrest, and there are no facts in the record suggesting that he had anything to do with the
officers’ conduct during the incident. Because there is no evidence that Schauf was personally
involved in the incident, I will dismiss Sundsmo’s excessive force claim against him.
This leaves Sundsmo’s excessive force claims against defendants Burch, Labroscian,
and Pichler. As I stated in the March 14 order, allegations about excessive force used in an
arrest may state a claim for unreasonable seizure under the Fourth Amendment. Graham v.
Connor, 490 U.S. 386, 395 (1989). This type of claim requires an analysis of “the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. “[T]he

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‘reasonableness’ of the use of force is judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Sow v. Fortville Police Dep’t, 636
F.3d 293, 303 (7th Cir. 2011)
Sundsmo contends that the officers drew their guns and pointed them at his and
Mazerek’s heads from about ten feet away, as they entered the bedroom. In the March 14
order, I stated that “[w]ithout further information from the parties about how plaintiff’s
arrest was effectuated, I cannot say as a matter of law that his claims fail under the Graham
analysis.” Dkt. 117, at 18.
But defendants have now provided further information about what happened during
the arrest, and the virtually undisputed facts concerning those events show that no
reasonable jury could find in Sundsmo’s favor on his excessive force claims. Rather, the jury
would conclude that defendants acted reasonably.
As I stated in the March 14 order, pointing a gun at someone who poses no danger
can violate the Fourth Amendment in the right circumstances. See Baird v. Renbarger, 576
F.3d 340, 345 (7th Cir. 2009) (discussing cases in which courts have held that pointing of
gun by officer was unreasonable). But officers “are allowed to [point their guns at citizens]
when there is reason to fear danger.” Id. at 346 (emphasis in original), and they “may take
reasonable action to secure the premises and to ensure their own safety” when effectuating a
warrant. Los Angeles Cty., Cal. v. Rettele, 550 U.S. 609, 614 (2007).
That is what defendants did here. There was reason to think that Sundsmo presented
a threat: defendants had received a report that Sundsmo had been physically violent toward
Mazerek and threatened Schreiber, and they were aware of his previous conviction for
obstructing or resisting an officer. They also had reason to be wary given that neither

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Sundsmo nor Mazerek came to the door after the officers announced their presence. After
the officers were assured that neither Sundsmo nor Mazerek were armed, they holstered their
guns. Their actions were reasonable given the circumstances, and nowhere near the level of
conduct that the Seventh Circuit has found to be so excessive as to possibly violate the
Fourth Amendment. See, e.g., Baird, 576 F.3d at 344 (use of submachine gun to round up and
detain residents during search); Jacobs v. City of Chi., 215 F.3d 758, 773-74 (7th Cir. 2000)
(pointing gun at elderly man’s head for ten minutes after realizing he was not the desired
suspect); McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir. 1992) (pointing gun at nineyear-old child during search and threatening to pull trigger).
Accordingly, I will grant defendants Pichler, Schauf, and Labroscian’s motion for
summary judgment on Sundsmo’s excessive force claim. Because I conclude that these
defendants did not use excessive force in the court of arresting Sundsmo, I will not address
their alternative argument that they enjoy qualified immunity for their actions.
C. Service of defendant Burch
The only claim remaining in this case is Sundsmo’s excessive force claim against
defendant Burch. Burch has filed a motion for summary judgment that I would grant for the
same reasons as those stated above regarding the Baraboo Police Department defendants’
motion. But I cannot formally rule on the merits of this motion until I resolve Burch’s earlier
motion to dismiss the claim against him for lack of service. Dkt. 93. A dismissal without
proper service would be without prejudice to Sundsmo’s filing a new lawsuit and starting
over.
In support of his motion to dismiss, Burch provided an affidavit that he was not
personally served with the summons. Dkt. 114. Sundsmo had already provided a proof of

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service declaration filled out by Jon Micheal Kutz, Dkt. 4-1, that I concluded was ambiguous
as to whether Kutz had actually accomplished service. I directed Sundsmo to provide a
declaration from Kutz explaining precisely how he served Burch, and I stated that if there
continued to be a factual dispute over proper service, I would hold a hearing on the issue.
Dkt. 117, at 10.
The parties continue to dispute service. Sundsmo provides an affidavit from Kutz
stating that he personally served Burch with the summons. Dkt. 118. But Burch responded
with his own affidavit stating that all he received was the complaint, Dkt. 124, so he
maintains that he was not properly served with a summons. In response to Burch’s
submissions, Sundsmo submitted another affidavit from Kutz in which he states that, given
the confusion over service, he sent Burch by certified mail a copy of the summons. Dkt. 129.
Unfortunately for Sundsmo, service by mail is not authorized by Rule 4 or by
Wisconsin law, at least without publication of the summons and a showing that Burch could
not be served personally. See Wis. Stat. § 801.11(1)(c). Sundsmo has not met these
requirements. The question is whether Kutz actually did serve him the first time around. As I
stated in the previous order, the way to resolve this dispute is with a hearing. Durukan Am.,
LLC v. Rain Trading, Inc., 787 F.3d 1161, 1164 (7th Cir. 2015) (evidentiary hearing
necessary to resolve factual disputes over service). But Burch may conclude that a hearing is
unnecessary given my earlier discussion of the Baraboo defendants’ summary judgment
motion.
I will give Burch a short time to respond to this order, explaining whether he would
like to proceed to a hearing on the service issue, or whether he would like to withdraw his
motion to dismiss on personal jurisdiction grounds and have the court grant his summary

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judgment motion. Either way, this case is not destined for trial, so I will strike the March 20
trial date and associated submission deadlines. For this reason, Burch’s motion to amend the
scheduling order to extend his expert disclosure deadline will be denied as moot.

ORDER
IT IS ORDERED that:
1. Plaintiff Leonard John Sundsmo’s motion for reconsideration of the court’s
March 14, 2016 order, Dkt. 121, is DENIED.
2. Plaintiff’s motion for judgment on the pleadings, Dkt. 168, is DENIED.
3. Defendants Mike Pichler, Mark Schauf, and Ryan Labroscian’s motion for
summary judgment, Dkt. 154, is GRANTED.
4. Plaintiff’s state-law assault claims against defendants Pichler, Schauf, and
Labroscian are DISMISSED without prejudice for plaintiff’s failure to comply
with Wisconsin’s notice-of-claim statute.
5. Defendant Burch may have until February 6, 2017, to respond to this order
regarding whether he wishes to continue prosecuting his motion to dismiss for
lack of proper service.
6. The trial date and associated pretrial submission deadlines are STRICKEN.
7. Defendant Burch’s motion to amend the scheduling order, Dkt. 145, is
DENIED as moot.
Entered January 31, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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