Soper, Ricky v. State of Wisconsin et al
Filing
46
ORDER substituting Portage County for defendants "Portage County Sheriff's Department" and "Portage County Sheriff's Office Special Response Team." Plaintiff Ricky Soper may proceed on a claim that defendants Po rtage County, Jeff Coey, Anthony Gischia, Mike Schultz, and Ben Beaudoin unreasonably searched Soper's home by using a grenade during the search and damaging his property, in violation of the Fourth Amendment. Defendants Wayne Kropidlowski, Brian Manderville, Dale O'Kray, Dan Wachowiak, Travis Morgan, Travis Levandowski, Jason Meidl, Ryan Hoffman, Jared Mayer, Matthew McDonald, Kevin Flick, and Kimberly DesRosier are DISMISSED for Soper's serve them with the complaint. The case schedule is STRUCK. The clerk of court is directed to set a new scheduling conference before Magistrate Judge Stephen Crocker. Signed by District Judge James D. Peterson on 2/27/2017. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RICKY SOPER,
Plaintiff,
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,
ORDER
16-cv-164-bbc1
Defendants.
In a previous order, Dkt. 42, I identified problems with the complaint in this case.
Now before the court is plaintiff Ricky Soper’s attempt to fix those problems. Dkt. 44. I
begin with some background.
This case arises out of a search and seizure of pro se plaintiff Ricky Soper’s property
by various law enforcement officials. Much of Soper’s original complaint focused on
defendants’ alleged failure to return property that was unrelated to the charged crime, selling
marijuana. In the January 6, 2017 order, Dkt. 42, I considered whether Soper’s allegations
stated a claim under the Due Process Clause or the Takings Clause of the United States
Constitution. I concluded that Soper did not have a claim under the Due Process Clause
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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 this case.
because he had an adequate remedy under Wis. Stat. § 968.20, which allows a person to seek
the return of seized property in state court. I concluded that Soper did not have a claim
under the Takings Clause because that clause does not apply to property seized in the
context of a criminal investigation. I also dismissed claims that defendants violated the
Fourth Amendment by searching his home and seizing his property without a warrant and by
recording Soper and his family while they were outside the house. However, I concluded that
Soper had adequately alleged that defendants had conducted the search in an unreasonable
manner, in violation of the Fourth Amendment, by Athrowing air conditioning duct work on@
his car and using a Asimulator grenade@ outside his house. Dkt. 15 at 2. See also 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 damage on [plaintiff's]
property” in context of search).
The problem with Soper’s claim regarding the reasonableness of the search was that
he had not identified which officers had allegedly harmed his duct work and used the
grenade. Accordingly, I gave Soper an opportunity to clarify that issue.
In his response, Dkt. 44, Soper attempts to reargue many claims that the court
dismissed. However, there is nothing in Soper’s submission showing that I erred in dismissing
many of his claims, so I decline to discuss those further. Plaintiff also cites Wis. Stat. §
968.20 as a basis for requiring defendants to return his property, but federal courts do not
have authority to require public officials to comply with state law. Pennhurst State School and
Hospital v. Halderman, 465 U.S. 89, 101 (1984). If Soper believes that he is entitled to a
return of his property under § 968.20, he will have to seek relief in Wisconsin state court.
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As to his claim regarding damage to his property and use of the grenade (which he
now calls a “flash grenade” rather than a “simulator grenade”), Soper says that he does not
know which officers were involved because those events occurred outside while he was
detained inside his house. Dkt. 44, at 2. In this circuit, when a plaintiff does not know the
identity of a particular defendant, the general rule is that the plaintiff should be permitted to
conduct discovery to learn the information that he needs. Donald v. Cook County Sheriff's
Department, 95 F.3d 548, 555 (7th Cir. 1996); Duncan v. Duckworth, 644 F.2d 653, 655-56
(7th Cir. 1981). Accordingly, I will allow Soper to proceed against those officers that he has
served with his complaint because I understand him to be alleging that each of those officers
was involved in the search of his home.
I will dismiss the defendants not served: Wayne Kropidlowski, Brian Manderville,
Dale O’Kray, Dan Wachowiak, Travis Morgan, Travis Levandowski, Jason Meidl, Ryan
Hoffman, Jared Mayer, Matthew McDonald, Kevin Flick, and Kimberly DesRosier. I
instructed Soper in the January 6 order that these defendants would be dismissed if he did
not file proof of service, Dkt. 42, at 8, which he has failed to do. In fact, Soper admits that he
has not served and has no intention of serving these defendants. Dkt. 44, at 4.
Because it is possible that the served individual defendants do not have custody or
control over information that Soper needs, I will allow Soper to proceed against Portage
County as well. Although Soper incorrectly named nonsuable entities “Portage County
Sheriff’s Department” and the “Portage County Sheriff’s Office Special Response Team” in
his caption, I will substitute Portage County because Soper served the complaint on the clerk
of court for Portage County, Dkt. 6, at 5, who may accept service for the county. Fed. R. Civ.
3
P. 4(j)(2)(B) (complaint against local government may be served in accordance with state
law); Wis. Stat. § 801.11(4) (complaint against county may be served on clerk of court).
It is Soper’s burden to prove his claim against each defendant, so it will be up to
Soper to conduct discovery to learn the identities of the officer or officers involved in the
alleged use of the grenade and property damage. Neither defendants nor the court will do this
for him. Soper may wish to review the Federal Rules of Civil Procedure related to discovery,
such as Rule 26 through Rule 36 and Rule 45. If Soper is unable to prove at summary
judgment or trial that particular defendants violated his Fourth Amendment rights by using a
grenade or damaging his property needlessly, the claim may be dismissed. Also, if Soper
learns that an officer who is not a defendant is responsible for these actions, he will have to
arrange for service on that officer or the claim will be dismissed.
In light of the discovery that Soper will need to do, the March 10, 2017 deadline for
summary judgment motions is not realistic. Accordingly, I am striking the schedule and
directing the clerk of court to set a new scheduling conference before Magistrate Judge
Stephen Crocker.
In closing, I remind Soper that the only claim remaining in this case is that officers
searched his home in an unreasonable manner by using a grenade and damaging his property.
In the future, the court will disregard any references that Soper makes to other claims.
ORDER
IT IS ORDERED that:
1. Portage County is SUBSTITUTED for defendants “Portage County Sheriff’s
Department” and “Portage County Sheriff’s Office Special Response Team.”
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2. Soper may proceed on a claim that defendants Portage County, Jeff Coey,
Anthony Gischia, Mike Schultz, and Ben Beaudoin unreasonably searched
Soper’s home by using a grenade during the search and damaging his property,
in violation of the Fourth Amendment.
3. Defendants Wayne Kropidlowski, Brian Manderville, Dale O’Kray, Dan
Wachowiak, Travis Morgan, Travis Levandowski, Jason Meidl, Ryan Hoffman,
Jared Mayer, Matthew McDonald, Kevin Flick, and Kimberly DesRosier are
DISMISSED for Soper’s serve them with the complaint.
4. The case schedule is STRUCK. The clerk of court is directed to set a new
scheduling conference before Magistrate Judge Stephen Crocker.
Entered February 27, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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