Soper, Ricky v. State of Wisconsin et al

Filing 16

ORDER granting 9 Motion to Dismiss Defendants State of Wisconsin, Cass Cousins, Thomas Flugaur and Craig Jascor. Plaintiff Ricky Soper's complaint is DISMISSED as to those four defendants. Signed by District Judge Barbara B. Crabb on 9/14/2016. (jef),(ps) (Main Document 16 replaced w/ corrected case caption on 9/14/2016) (jef).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RICKY SOPER,
ORDER
Plaintiff,
16-cv-164-bbc
v.
STATE OF WISCONSIN,PORTAGE
COUNTY SHERIFF’S DEPT.,
JEFF COEY, WAYNE KROPIDLOWSKI
BRIAN MANDEVILLE, MIKE SCHULTZ
PORTAGE COUNTY SHERIFF’S OFFICE
SPECIAL RESPONSE TEAM,
DALE O’KRAY, BEN BEAUDOIN,
DAN WACHOWIAK, TRAVIS MORGAN,
TRAVIS LEWANDOWSKI, JASON MEIDL,
RYAN HOFFMAN, JARED MAYER,
MATTHEW MCDONALD, KEVIN FLICK,
KIMBERLY DESROSIER, THOMAS FLUGAUR,
CASS COUSINS, CRAIG JASCOR
and ANTHONY GISCHIA,
Defendants.1
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Ricky Soper has filed a complaint about various incidents arising out
of a criminal investigation for growing marijuana. He has paid the full filing fee, so he is not
proceeding in forma pauperis under 28 U.S.C. § 1915. Now before the court is a motion to

1

Plaintiff identified defendant Thomas Flugaur as “Tomas Flugart” and Cass Cousins
as “Cas Cousins” in his caption. I have amended the caption to reflect the correct spellings
of these individuals, as identified by defendants themselves.

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dismiss filed by defendants Thomas Flugaur, Cass Cousins and Craig Jascor, along with the
State of Wisconsin. Dkt. #9.
Plaintiff alleges that defendant Thomas Flugaur was the circuit court judge assigned
to plaintiff’s criminal case; defendant Cass Cousins was the prosecutor; and defendant Craig
Jascor was a probation officer. The only conduct by these defendants that plaintiff describes
in his complaint is that they “humiliated” him during a court proceeding by laughing at one
of his statements. (Most of the other defendants are law enforcement officers. I understand
plaintiff to be contending that they searched and seized his property, in violation of the
Fourth Amendment and the due process clause. I need not consider these allegations at this
stage of the proceedings because Flugaur, Cousins, Jascor and the state are the only
defendants who filed a motion to dismiss.)
Defendants argue that they are entitled to immunity and that plaintiff has failed to
state a claim upon which relief may be granted against them. Plaintiff does not respond to
any of defendants’ arguments in his one-page opposition brief. Rather, he says that it would
be “unjust” to dismiss his claims because he has invested money in bringing the lawsuit.
The amount of money a litigant spends on a lawsuit has no bearing on the question
whether a claim has merit. Although it may be rude and unprofessional to laugh at a
criminal defendant during a court proceeding, it does not violate the defendant’s rights.
Other than embarrassment, plaintiff does not identify any way in which Flugaur’s, Cousin’s
and Jascor’s conduct harmed him. Accordingly, I am granting the motion to dismiss as to
those three defendants.

2

Plaintiff does not explain in his complaint or his brief why he included the state as
a defendant. Regardless of the reason, I agree with defendants that the state cannot be sued
in this case. As defendants point out, the Supreme Court has held that the Eleventh
Amendment protects states from most lawsuits. Virginia Office for Protection & Advocacy
v. Stewart, 563 U.S. 247, 253–54 (2011). Even with respect to claims for constitutional
violations, the Court has held that a lawsuit against a state is not authorized. Will v.
Michigan Dept. of State Police, 491 U.S. 58, 65-66 (1989). Because plaintiff does not
identify why an exception to immunity would apply in this case, I am dismissing the
complaint as to the state as well.

ORDER
IT IS ORDERED that the motion to dismiss filed by defendants Thomas Flugaur,
Cass Cousins, Craig Jascor and the State of Wisconsin, dkt. #9, is GRANTED. Plaintiff
Ricky Soper’s complaint is DISMISSED as to those four defendants.
Entered this 14th day of September, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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