Kreger-Mueller, Valerie v. Flores, David et al

Filing 15

ORDER plaintiff's 12 second amended complaint pursuant to Fed. R. Civ. P. 8. Plaintiff's third amended complaint due 11/10/2016. Signed by District Judge James D. Peterson on 10/20/2016. (jef),(ps)

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

VALERIE KREGER-MUELLER,
Plaintiff,
v.
DAVID M. FLORES, JUDGE SHELLY GAYLORD,
JASON HANSON, JUDGE RICHARD NIESS,
JENNIFER GINSBERG, SAFE HARBOR, DANE
COUNTY CPS, DANE COUNTY CIRCUIT COURT,
DAVID MANDELL, and COURTNEY PLEIST,

ORDER
16-cv-326-jdp

Defendants.
Pro se plaintiff Valerie Kreger-Mueller brings this proposed civil action against several
defendants, including county employees and departments. Dkt. 1 and Dkt. 4. In an August 2,
2016, order, I reviewed her initial complaint and amended complaint and concluded that
they did not meet the pleading requirements of Federal Rule of Civil Procedure 8. Dkt. 6. I
offered Kreger-Mueller an opportunity to file a second amended complaint and include
additional facts so that I could understand the nature of her claims. Kreger-Mueller has filed
a second amended complaint. Dkt. 12.
Kreger-Mueller’s second amended complaint contains many disjointed allegations
against a number of people, including some who are not named as defendants. Federal Rule
of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” A complaint “must be presented with
intelligibility sufficient for a court or opposing party to understand whether a valid claim is
alleged and if so what it is.” Viacom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 775
(7th Cir. 1994). Kreger-Mueller’s allegations are vague and conclusory. I cannot divine any

cognizable claims from these allegations, but I will allow Kreger-Mueller one final
opportunity to submit a complaint that states a claim for relief.
First, Kreger-Mueller alleges that various Dane County Circuit Court judges ruled
against her. These allegations concern judges’ judicial conduct. Judges have absolute
immunity from liability for judicial conduct. Richman v. Sheahan, 270 F.3d 430, 434 (7th Cir.
2001). Judicial immunity “confers complete immunity from suit, not just a mere defense to
liability.” Dawson v. Newman, 419 F.3d 656, 660 (7th Cir. 2005). Court commissioners
performing “functions integral to the judicial process” are also immune from liability.
Dellenbach v. Letsinger, 889 F.2d 755, 763 (7th Cir. 1989). This means that Kreger-Mueller
cannot proceed against any judge or court commissioner with any claim arising out of their
official decisions or actions.
Second, Kreger-Mueller alleges that defendants City of Middleton Police Department,
City of Middleton Police Commission Board, Dane County Child Protective Services, and
David Flores deprived Kreger-Mueller of her parental rights when Court Commissioner
Hanson awarded Flores primary placement and sole custody of Kreger-Mueller’s daughter in
an ex parte order. The biological parent of a child has a fundamental right, protected by the
due process clause of the Fourteenth Amendment, to parent that child. See Lassiter v. Dep’t of
Soc. Servs., 452 U.S. 18, 27 (1981). A parent may be deprived of that right only if she is
afforded notice and an opportunity to be heard at a meaningful time in a meaningful way. In
cases involving the termination of parental rights or the removal of a child from the parental
home, this would usually require a hearing. Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir.
1982). When the state provides adequate remedies to the parent, there is no due process
violation. Id. at 515. Wisconsin allows for review of ex parte orders regarding child custody

2

and placement, and this review provides an adequate remedy for an erroneous order. See, e.g.,
Jones v. Jones, 142 Wis. 2d 943, 419 N.W.2d 573 (Ct. App. 1987) (reviewing a Dane County
Court Commissioner’s ex parte order granting custody of a child and concluding that court
hearings concerning the order after it was entered satisfied due process).
Here, Kreger-Mueller alleges that Dane County Circuit Court Judge Shelley Gaylord
has stayed a motion for sole custody and primary placement of Kreger-Mueller’s daughter. So
it appears that Kreger-Mueller is pursuing the available state remedies and thus has no due
process claim under the Fourteenth Amendment. Only if Kreger-Mueller has been completely
shut out of the process, such that she has had no meaningful opportunity to be heard
concerning her parental rights, may she be able to state a claim under 42 U.S.C. § 1983 for
the violation of her Fourteenth Amendment rights. If Kreger-Mueller wants to pursue this
claim in her third amended complaint, she must allege that she has no remedy at all, not just
that she is dissatisfied with the results. She should tell a more complete story about what led
to Commissioner Hanson’s order and what steps she has taken to reverse that order. She
should explain how each named defendant has blocked her access to a means of challenging
the termination of her parental rights.
Third, it appears that Kreger-Mueger asserts failure to investigate claims against some
defendants on behalf of her daughter. These claims must be dismissed because, as I have
explained multiple times, Kreger-Mueller cannot represent her child pro se. See Dkt. 6 and
Dkt. 14. To assert her child’s rights in this lawsuit, the child must be represented by a lawyer.
Kreger-Mueller still has not stated a claim under Rule 8. She has yet to tell me exactly
what the defendants did to violate her constitutional rights.

At this point, the only

conceivable claim that she has alleged is that some defendants are blocking her from

3

challenging the termination of her parental rights. I will give her a final opportunity to amend
her complaint and to describe how each defendant violated her rights. She should exclude
extraneous information and focus on only those allegations that support a claim. If her third
amended complaint does not solve the problems identified in this order, her case will be
dismissed for failure to state a claim. This is her last chance.
Finally, Kreger-Mueller alleges that officers from the Middleton Police Department
violated her Fourth Amendment rights by falsely arresting her on August 23, 2016, and
September 1, 2016. This claim appears to be unrelated to the child custody proceedings at
the heart of Kreger-Mueller’s complaint, and so it does not belong in the same lawsuit. Under
Rule 20, multiple claims against multiple defendants may be joined in one lawsuit only if
they arise out of the same transaction or occurrence and present questions of law or fact that
are common to them all. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Kreger-Mueller
should not include these allegations in her third amended complaint unless she can show how
the alleged false arrests are connected to the child custody proceedings. Whether KregerMueller brings these claims in this lawsuit or another one, she will not be able to proceed
with them under the facts she currently alleges, as she has not named the individual officers
as defendants, nor has she alleged that the Middleton Police Department’s policy or practice
caused the alleged false arrests. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 691 (1978).

ORDER
IT IS ORDERED that:
1. Plaintiff Valerie Kreger-Mueller’s second amended complaint is DISMISSED,
without prejudice, for failure to comply with Federal Rule of Civil Procedure 8.

4

2. Plaintiff may have until November 10, 2016, to submit a third amended
complaint more clearly detailing her claims against defendants. If plaintiff submits
a third amended complaint as required by this order, I will take that complaint
under advisement for screening. If plaintiff fails to respond to this order by the
deadline, I will dismiss the case for plaintiff’s failure to state a claim upon which
relief may be granted.
Entered October 20, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

5