Soper, Ricky v. State of Wisconsin et al

Filing 42

ORDER dismissing 1 complaint and 15 supplemental complaint. Amended Complaint due January 26. If plaintiff does not respond by January 26, I will dismiss the case with prejudice and direct the clerk of court to enter judgment. Signed by District Judge James D. Peterson on 1/6/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RICKY SOPER,
OPINION and ORDER
Plaintiff,
16-cv-164-bbc1
v.
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 and ANTHONY GISCHIA,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Ricky Soper is suing various entities and individuals associated with
Portage County, Wisconsin, arising out of a search and seizure of his property that resulted
in a conviction for manufacturing or delivering marijuana. State v. Soper, No. 2013cf397
(Portage Cty. Cir. Ct.). In a previous order, Judge Crabb granted the motion to dismiss filed
by the State of Wisconsin, Cass Cousins, Thomas Flugaur and Craig Jascor for plaintiff’s
failure to state a claim upon which relief may be granted. Dkt. #16. Now the remaining

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Because Judge Crabb is on medical leave, I am issuing this order to prevent an undue
delay in the progress of the case.
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defendants have filed their own motion to dismiss on various grounds. Dkt. #18.
Plaintiff does not provide a summary of his claims anywhere in his complaint or in
the document that he calls “Amendment to Pleadings,” dkt. #15, which I construe as a
supplement to the complaint rather than a replacement for it. In their motion to dismiss,
defendants construe plaintiff’s complaint as including the following claims: (1) defendants
seized a cell phone without a valid warrant; (2) defendants failed to return various
confiscated items of plaintiff’s personal property that were unrelated to the crime; (3) in the
weeks before the search, defendants placed cameras outside plaintiff’s home and the cameras
captured plaintiff urinating outside; and (4) defendants damaged plaintiff’s car and home
during the search. This summary is consistent with my own review of the complaint and
supplement, with the exception that plaintiff seems to be complaining that defendants
recorded not just him outside, but also his employees and grandchildren. (Plaintiff does not
allege that his employees or grandchildren urinated outside, only that they were present.)
I agree with defendants that claims (1), (2) and (3) should be dismissed for plaintiff’s
failure to state a claim upon which relief may be granted. However, I conclude that plaintiff
may have a viable claim under the Fourth Amendment with respect to his claim regarding
damage to his property. I am allowing plaintiff to file an amended complaint that identifies
the individual officers involved in that alleged conduct. In addition, plaintiff will have to file
proof of service with respect to any defendant identified in the amended complaint.

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OPINION
A. Claims for Warrantless Seizure, Failure to Return Property and Invasion of Privacy
I consider first plaintiffs’ claims that (1) defendants seized a cell phone without a
valid warrant; (2) defendants failed to return various confiscated items of plaintiff’s personal
property that were unrelated to the crime; and (3) in the weeks before the search, defendants
placed cameras outside plaintiff’s home and the cameras captured plaintiff urinating outside.
First, as to plaintiff’s claim that defendants seized his cell phone without a warrant,
defendants cite the warrant that was issued in this case, which defendants attached to their
answer. Dkt. #17-1. The warrant authorizes the search and seizure of “electronic devices,
including cellular telephones” that are found on plaintiff’s property. Although generally a
court cannot consider documents outside the complaint in a motion to dismiss, an exception
applies in case like this one in which the plaintiff cites the document in his complaint.
Yassan v. J.P. Morgan Chase and Co., 708 F.3d 963, 975 (7th Cir. 2013). Plaintiff does not
dispute the authenticity of the warrant.
Second, as to plaintiff’s claim that various property items have not been returned to
him, defendants discuss two potential legal theories, deprivation of property without due
process in violation of the Fourteenth Amendment and taking of property without just
compensation in violation of the Fifth Amendment. As to the due process clause, defendants
contend that plaintiff has failed to state a claim because he has adequate remedies under
state law. Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized intentional
deprivation of property by a state employee does not constitute a violation of the procedural

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requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available.”). In particular, defendants point to Wis.
Stat. § 968.20, which authorizes a claim in Wisconsin circuit court for the return of property
seized during a search. As defendants point out, this court has found that § 968.20 provides
an adequate remedy in other cases under similar circumstances. Jones v. Farmer, No.
00-C-515-C, 2000 WL 34230090, at *3 (W.D. Wis. Oct. 18, 2000).
With respect to the takings clause, defendants content–correctly– that it applies only
to property taken for “public use.” U.S. Const. Amend. V (“[N]or shall private property be
taken for public use without just compensation”). It does not apply to items seized in the
context of a criminal investigation. Johnson v. Manitowoc County, 635 F.3d 331, 336 (7th
Cir. 2011) (“[T]he Takings Clause does not apply when property is retained or damaged as
the result of the government's exercise of its authority pursuant to some power other than
the power of eminent domain. Here, the actions were taken under the state's police power.”)
(citations omitted); Acadia Technolgy, Inc. v. United States, 458 F.3d 1327, 1331 (Fed. Cir.
2006) (“When property has been seized pursuant to the criminal laws or subjected to in rem
forfeiture proceedings, such deprivations are not ‘takings' for which the owner is entitled to
compensation”).
Third, with respect to plaintiff’s claim that defendants recorded him while he was
urinating outside, defendants contend that plaintiff did not have a reasonable expectation
of privacy when he was outside in public view. California v. Ciraolo, 476 U.S. 207, 213
(1986) (“What a person knowingly exposes to the public, even in his own home or office,

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is not a subject of Fourth Amendment protection.”); Oliver v. United States, 466 U.S. 170,
178, (1984) (“[A]n individual may not legitimately demand privacy for activities conducted
out of doors in fields, except in the area immediately surrounding the home.”). (Plaintiff
does not allege that defendants placed their cameras on his property or, if they did, that they
failed to obtain the necessary authorization for doing so.) Even assuming that plaintiff has
standing to challenge any recording of his employees or grandchildren, Alderman v. United
States, 394 U.S. 165, 174 (1969) ("Fourth Amendment rights are personal rights which . .
. may not be vicariously asserted."), the reasoning of Ciraolo and Oliver would apply equally
to them.
Plaintiff did not respond meaningfully to any of these arguments. In his one-page
brief, plaintiff says that he “strongly believe[s]” that defendants violated his rights and he
wants “his day in court” that he “paid for.” Dkt. #38. However, these are not reasons for
denying defendants’ motion to dismiss. I have no reason to doubt that plaintiff believes
sincerely that defendants treated him unfairly. It is understandable that plaintiff is upset
after his home was subjected to a search and he lost much property that had financial or
personal value. Unfortunately for plaintiff, however, a federal court cannot allow a case to
proceed simply because the plaintiff has endured hardship. Rather, courts must follow the
law. In this case, defendants have made persuasive arguments regarding why the law does
not support three of plaintiff’s claims. In the absence of any contrary argument from
plaintiff, I see no reason to deny defendants’ motion to dismiss with respect to the claims
discussed above.

Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1042 (7th

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Cir.1999) ("If [judges] are given plausible reasons for dismissing a complaint, they are not
going to do the plaintiff's research and try to discover whether there might be something to
say against the defendants' reasoning.").
When plaintiff says that he “paid for” his “day in court,” I understand him to be
referring to his payment of the filing fee. As the name of the fee suggests, that fee was to
allow plaintiff to file his lawsuit. (Individuals who cannot afford to prepay the filing fee may
ask for a waiver, 28 U.S.C. § 1915, but plaintiff’s income and assets rendered him ineligible
for such a waiver. Dkt. ##2 and 3.) Paying the filing fee does not give a plaintiff the right
to a trial. Rather, the Federal Rules of Civil Procedure allow a defendant to seek dismissal
of a complaint if it is not supported by the law. Fed. R. Civ. P. 12(b)(6).

B. Property Damage Claim
Defendants largely overlooked plaintiff’s allegation that defendants damaged his car
and home during the search. Their only argument for its dismissal is that “Wisconsin law
provides a common-law tort remedy . . . for property damage.” Dkt. #31 at 10. However,
this argument rests on the assumption that the claim is best analyzed as a deprivation of
property under the due process clause. That is incorrect because plaintiff is not alleging that
defendants took his home and car; he is alleging that they damaged it in the context of
searching it. Thus, plaintiff’s claim is more appropriately viewed as alleging an unreasonable
search. Petkus v. Richland County, Wisconsin, 767 F.3d 647, 652-53 (7th Cir. 2014)
(upholding jury verdict that officers violated Fourth Amendment by causing “needless

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damage on [plaintiff’s] property” in context of search). Under that theory, plaintiff has a
potentially viable claim.
However, plaintiff is not yet home free, for two reasons. First, as defendants point
out, plaintiff does not identify which of the many defendants were involved in causing the
property damage. Rather, plaintiff alleges only that “officers” damaged his “collector car”
by “throwing air conditioning duct work on it” and damaged the outside of the house with
a “simulator grenade.” Dkt. #15 at 2. Plaintiff’s failure to identify particular defendants
is a problem because a defendant cannot be held liable for a constitutional violation unless
he or she was personally involved in the alleged conduct. Kuhn v. Goodlow, 678 F.3d 552,
555-56 (7th Cir. 2012). Further, under federal pleading rules, “[e]ach defendant is entitled
to know what he or she did that is asserted to be wrongful.” Bank of America, N.A. v.
Knight, 725 F.3d 815, 818 (7th Cir. 2013). Accordingly, I will give plaintiff an opportunity
to file an amended complaint that identifies which officers were involved in damaging his
property. United States v. $196,969.00 U.S. Currency, 719 F.3d 644, 647 (7th Cir. 2013)
(“[P]arties usually get a chance for a do-over of a complaint that fails to state a claim but
may be reparable.”).
A second potential problem is that plaintiff has not served his complaint on all of the
defendants or obtained a waiver of service from them, as he is required to do under Fed. R.
Civ. P. 4. In particular, plaintiff has not filed proof of service with respect to the following
defendants: Wayne Kropidlowski, Brian Manderville, Dale O’Kray, Dan Wachowiak, Travis
Morgan, Travis Levandowski, Jason Meidl, Ryan Hoffman, Jared Mayer, Matthew

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McDonald, Kevin Flick, and Kimberly DesRosier. Dkt. #6. If plaintiff includes any of these
defendants in his amended complaint, he will have to accompany his amended complaint
with proof of service for each of those defendants or show cause why he has not yet served
those defendants.

C. Entity Defendants
One final matter requires attention. Plaintiff includes two entities in his caption, the
“Portage County Sheriff’s Department” and the “Portage County Sheriff’s Office Special
Response Team.” As defendants point out, these two entities cannot be sued because they
are simply part of Portage County. Barlass v. Carpenter, No. 10-cv-454-slc, 2010 WL
3521589, *3 (W.D. Wis. Sep. 7, 2010) (“Wisconsin municipalities may be sued, Wis. Stat.
§ 62.25, but individual agencies and departments may not.”). If plaintiff intended to sue
Portage County, he has failed to state a claim upon which relief may be granted. Portage
County cannot be held liable for a constitutional violation unless its own policies, customs
or practices caused the violation. Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir.
2016). Because plaintiff has not alleged that the officers damaged his property in accordance
with a policy, practice or custom of Portage County, he cannot proceed against the county.

ORDER
IT IS ORDERED that
1. Plaintiff Ricky Soper’s original, dkt. #1, and supplemental complaint, dkt. #15,

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are DISMISSED.
2. Plaintiff may have until January 26, 2017, to do the following: (1) file an amended
complaint in which he identifies each of the officers involved in allegedly damaging his car
and home, specifying to the extent he is able what each defendant did; and (2) if he has not
already done so, file proof of service with respect to any defendant in the amended
complaint or show cause why he has not yet served that defendant or those defendants.
3. If plaintiff does not respond by January 26, I will dismiss the case with prejudice
and direct the clerk of court to enter judgment.

Entered January 6, 2017.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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