Hermann, Timothy et al v. State of Wisconsin et al

Filing 47

ORDER granting defendant State of Wisconsin's 24 Motion to Dismiss; granting in part the Dunn County defendants' 12 Motion to Dismiss; denying plaintiff's 19 and 43 Motions for Entry of Default; denying plaintiff's 17 Mo tion for injunctive relief; denying plaintiffs' 34 Motion to Strike. Defendants State of Wisconsin, Megan Mittlestad, Nicholas P. Lange, Dunn County Sheriff's Office and Planning Resources and Development Committee are dismissed. Plainti ffs may have until September 14, 2017 to submit an amended complaint. Plaintiffs may have until September 21, 2017 to serve defendants Smith and Dunn County with a summons and amended complaint. Signed by District Judge James D. Peterson on 8/24/2017. (elc),(ps)

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

TIMOTHY LOUIS HERMANN and
KAREN ELAINE HERMANN,
Plaintiffs,
v.
STATE OF WISCONSIN, DUNN COUNTY,
MEGAN MITTLESTAD, NICHOLAS P. LANGE,
DENNIS P. SMITH,
DUNN COUNTY SHERIFF’S OFFICE, and
PLANNING, RESOURCES, AND DEVELOPMENT
COMMITTEE,

OPINION & ORDER
17-cv-60-jdp

Defendants.
Pro se plaintiffs Timothy Louis Hermann and Karen Elaine Hermann, who reside in
Otter Creek, Wisconsin, bring this lawsuit alleging that State of Wisconsin and various Dunn
County officials conspired unlawfully to foreclose on their home and reject their offer to buy
the real estate back.
On initial review of the Hermanns’ complaint, I permitted them to serve their
summonses on the various defendants, minus the “John Doe” defendants that I dismissed. Dkt.
7. The Hermanns filed proof of service for the remaining defendants on February 3, 2017. Two
groups of defendants subsequently filed motions to dismiss, one on behalf of the state, and one
on behalf of the Dunn County defendants. The Hermanns have also filed a motion for
injunctive relief, a motion to strike the Dunn County defendants’ brief opposing that motion,
and two motions for entry of default.
After considering these motions and the responsive filings, I will dismiss the State of
Wisconsin and will grant the Dunn County defendants’ motion to dismiss in part. Most of the

claims against the Dunn County defendants will be dismissed, and the following Dunn County
defendants will be dismissed from the case: Dunn County Sheriff’s Office, Dunn County’s
Planning, Resources, and Development Committee, Megan Mittlestad, and Nicholas Lange. I
will deny the Hermanns’ motion for injunctive relief and motion to strike. I will direct the
Hermanns to file an amended complaint further explaining their claims against defendants
Dunn County and Smith.

BACKGROUND
I stated previously that “plaintiffs’ complaint is relatively vague regarding the actions
they believe violated their rights, and the electronically available court records are not detailed
enough for me to conclusively rule . . . at this point in the proceedings.” Dkt 7, at 5. The
parties’ subsequent filings, including copies of various state court documents, have provided
me with helpful clarification of the Hermanns’ claims and the state court proceedings initiated
against them.
The Hermanns state that they owned a parcel of land and home in Otter Creek,
Wisconsin, but that Dunn County initiated foreclosure proceedings against them because they
failed to stay current on their taxes. Judgment was entered against them in September 2013 in
Dunn County case number 13-cv-20. Dkt. 14-3. The circuit court proceedings show this to be
an in rem tax foreclosure lawsuit under Wis. Stat. § 75.521.
The Hermanns believe this judgment was unjustly entered and filed numerous
documents with the register of deeds and circuit court stating that the judgment was void for
fraud. Dkt. 1, at 6-7. They remained on the property during this period. At some point after
this judgment, they began seeking what they have called “alternatives to protect their

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property.” One method they chose was to file a land patent, declaring their title to be absolute,
with the register of deeds on February 5, 2015. Dkt. 1-1, at 8.
In 2016, Dunn County initiated a new proceeding, case number 16-cv-210, against the
Hermanns to remove them from the property. A judgment to vacate was entered on December
12, 2016. Dkt. 14-9. The judgment gave the Hermanns until December 26 to leave the
property and authorized Dunn County “to remove the [Hermanns] and all of their personal
property with the assistance of the Sheriff if they have not vacated the property.”
The sheriff, defendant Smith, left a “notice to vacate” at the Hermanns’ door on
December 16. The Hermanns then met with defendant Lange and stated that they were willing
to pay off their delinquent taxes. They also contacted the Dunn County treasurer’s office, run
by defendant Mittlestad, and made the same offer. Neither Lange nor the treasurer’s office
would accept the payment. But Lange said that they could possibly repurchase the land and
that he would direct their request to the county Planning, Resources, and Development
Committee, the board responsible for making these decisions. The committee would not meet
until January 10, 2017, so Lange said that they would still need to vacate the property, which
they did. The committee ultimately did not agree to the Hermanns’ offer to repurchase the
land. The Hermanns returned to the property sometime following the committee’s decision.
On February 6, Smith came to the property to remove anyone he found there. The
Hermanns and their three children were on the property when Smith arrived. Timothy
Hermann was arrested for trespassing. According to Wisconsin’s online court records, both he
and Karen were charged with trespassing and later entered into deferred prosecution
agreements after pleading no contest. See Dunn County case nos. 17-cm-89 and 17-cm-90. The

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Hermanns say that Smith unlawfully arrested Timothy and used excessive force during the
arrest.

ANALYSIS1
A. Incorrect parties
I will begin by dismissing defendants Dunn County Sheriff’s Office and the Dunn
County Planning, Resources, and Development Committee as defendants. These entities are
not subject to suit because they are not separable from the county government they serve.
Whiting v. Marathon Cty. Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir. 2004). With Dunn County
already named as a defendant, there is no reason for these extraneous defendants to remain.
B. Service of process
The remaining defendants argue that they were not properly served. I will first address
defendant State of Wisconsin. The Hermanns’ proof of service shows that they served “Cristin
Clerk” at the front window of the Dunn County government building located at 800 Wilson
Avenue in Menomonie.2 Federal Rule of Civil Procedure 4(j)(2) permits service of a state or
local government by delivering a copy of the summons and complaint to either its chief
executive officer or in the manner prescribed by that state’s law for service. In Wisconsin, the
chief executive officer is the governor. Wis. Stat. § 801.11(3) permits service by delivering a

1

As I stated in my previous order, the Hermanns’ complaint “is larded with descriptions of
frivolous ‘sovereign citizen’-type theories of government illegitimacy.” Dkt. 7, at 4. Those
theories are frivolous, and for the most part, I will ignore them in analyzing the pending
motions below.
2

Judging from the names of the various persons the Hermanns say they served in this case, I
take them to mean that they served a clerk whose first name is Cristin.

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copy of the summons and the complaint to the state attorney general or the state attorney
general’s office. None of these options was satisfied by handing the documents to a clerk at the
Dunn County government building.
The Hermanns argue that service of the state was proper under Rule 4(j)(2)(A) because
“The Dunn County, Wisconsin Clerk is a chief executive officer for the State in that county”
and because “there is a fundamental principal [sic] of law that is ‘Notice to the Agent is Notice
to the Principal, Notice to the Principal is Notice to the Agent’” and the local agent for the
state was served. Dkt. 35, ¶¶ 7, 8. The Hermanns are mistaken. The federal rules and state
statutes discussed above are what govern service of process, and mere notice of a lawsuit does
not accomplish service in Wisconsin. See Heaston v. Austin, 47 Wis. 2d 67, 71, 176 N.W.2d
309 (1970). Therefore, I conclude that the state has not been properly served.
I turn to the Dunn County defendants, starting with the county itself. The Hermanns
say that they accomplished service on the county under Rule 4(j)(2) by serving Cristin Clerk
“at [the] window” of the Dunn County government building. Dkt. 8-1, at 2. Service under
Rule 4(j)(2)(A) was plainly not accomplished because a clerk at a window of a government
office is not the chief executive officer of the county. Alternatively, Wis. Stat. § 801.11(4)(a)1.
allows for service against a county to be made by delivering the summons to the chairperson of
the county board or to the county clerk. It is again clear that the Hermanns did not directly
serve either of these officials. But Wis. Stat. § 801.11(4)(b) also permits service of the
appropriate governmental official by leaving a copy of the summons “in the office of such
officer, director, or managing agent with the person who is apparently in charge of the office.”
So, the question is whether the individual that the Hermanns did serve was the person

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“apparently in charge” of either the county clerk’s office or the chairperson of the county
board’s office.
The Wisconsin Supreme Court has held that the “apparently in charge” language of the
statute is functionally similar to the same language in Wis. Stat. § 801.11(5)(a) regarding
corporate defendants. Hagen v. City of Milwaukee Employee’s Ret. Sys. Annuity & Pension Bd., 2003
WI 56, ¶ 17, 262 Wis. 2d 113, 663 N.W.2d 268. The Hagen court reviewed corporate service
cases and stated that “these cases stand for the proposition that personal jurisdiction . . . may
be acquired if the facts demonstrate that in effectuating substitute service on ‘the person who
is apparently in charge of the office’ of an officer, director, or managing agent of the defendant,
the process server reasonably but mistakenly serves a person who appears to be, but in fact is
not, ‘in charge’ of that office.” Id. ¶ 21 (citing Keske v. Square D Co., 58 Wis. 2d 307, 309, 206
N.W.2d 189 (1973); Horrigan v. State Farm Ins. Co., 106 Wis. 2d 675, 683-84, 317 N.W.2d
474 (1982)). The “circumstances surrounding the service of process, as they appeared to the
process server” must be considered, but “there must be more than the unsupported assumption
of the process server” that the person served was in charge of the appropriate office. Horrigan,
106 Wis. 2d at 683-84.
Here, I conclude that the Hermanns’ process server could not reasonably believe that
the person he served was in charge of either the Dunn County clerk’s office or the chairperson’s
office. In both Keske and Horrigan, the process server attempted to find the person in charge of
the office, who could accept service, by first speaking with the receptionist at the front desk.
There is no similar diligence here. The server attempted to serve both the state and county
defendants together at this location by handing it to the first person he saw. This shows that

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the server thought he could serve all of the defendants under incorrect agency theories. It does
not show any effort to serve the correct official under the state statutes.
The remaining three defendants—Mittlestad, Lange, and Smith—are all natural persons
who were not personally served pursuant to the requirements of Federal Rule of Civil Procedure
4(e) or Wis. Stat. § 801.11(1). The Hermanns argue that each of these three defendants was
properly served under Rule 4(e)(2)(C), which allows service of an individual by “delivering a
copy of [the summons and complaint] to an agent authorized by appointment or by law to
receive service of process.” Here, the Hermanns again served “Cristin Clerk” for defendants
Mittlestad and Lange. The Hermanns served “Maria Clerk,” the person at the front window of
the Dunn County Sheriff’s Office, in lieu of defendant Smith. But there is no indication on the
proof of service or any of the parties’ filings in this case showing that either of these persons
are authorized by appointment or law to receive service of process on behalf of Mittlestad,
Lange, or Smith.
To be authorized to receive service of process in Wisconsin, a defendant would have
had to designate the clerks “to perform the function, job, or duty of accepting service.” Mared
Industries, Inc. v. Mansfield, 2005 WI 5, ¶ 33, 277 Wis. 2d 350, 690 N.W.2d 835. Unlike service
for a corporate defendant, there is no “reasonably but mistaken” analysis for personal service
under Wis. Stat. § 801.11(1)(d). Id. ¶ 2 (“We hold that ‘authorized by appointment’ requires
the principal to provide an agent with actual express authority to accept service of summons
for the principal.”). There is no reason to think that either person served held this designation.
In sum, none of the defendants have been properly served. This has not stopped the
Hermanns from filing two motions for entry of default against them. I will deny both motions

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because of the service failure, and even without that failure, both sets of defendants have filed
motions to dismiss, showing that they are attempting to defend themselves in this case.
Because none of the defendants have been properly served, Rule 4(m) permits me to
either dismiss this action entirely, without prejudice, or to order that service be made within
an appropriate time. Normally I would extend the time for a pro se litigant who mistakenly
failed to properly serve a defendant. But that would be pointless here because there are other
reasons to dismiss many of the Hermanns’ claims, and I address defendants’ substantive
arguments for dismissal below.
C. Claims that the state judgments are “null and void”
A major focus of the Hermanns’ complaint is their belief that their home was improperly
foreclosed on. The Hermanns maintain that the judgments rendered against them in 2013 and
2016 were the byproduct of fraud and therefore invalid. As I explined in my previous ruling:
One of the major thrusts of the complaint seems to be the
Hermanns’ belief that the foreclosure and eviction orders issued
by the Dunn County court are void. To the extent that any of
their constitutional, Fair Debt Collection Practices Act,
conspiracy, or fraud claims depend on the validity of the state
court judgments, those claims likely will end up being dismissed
under the Rooker-Feldman doctrine, which “essentially precludes
lower federal court jurisdiction over claims seeking review of state
court judgments or over claims that are ‘inextricably intertwined’
with state court determinations.” The doctrine “is based upon
recognition of the fact that inferior federal courts generally do not
have the power to exercise appellate review over state court
decisions.” If the Hermanns believe that the state court did not
act properly, their recourse is in the state appellate system, not in
the federal district court.
Dkt. 7, at 4 (citations omitted). After reviewing the two motions to dismiss and the Hermanns’
responses, I conclude that many of the Hermanns’ claims must be dismissed for several reasons,
including the Rooker-Feldman doctrine.

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The Hermanns’ complaint does not include explicit allegations against the State of
Wisconsin. But in response to the state’s motion to dismiss, they state that “the County/agents
were more at fault . . . [h]owever, the principal [Wisconsin] has a responsibility to make sure
the agents are acting in good faith and lawful accountability.” Dkt. 35, ¶ 16. I take the
Hermanns to be maintaining one or more of the following theories: (1) the various Dunn
County defendants are agents for the state, thus making the state liable for its agents’
unconstitutional actions; (2) the state is liable for any erroneous decisions or procedural errors
made in its courts; or (3) the state, as principal for Dunn County, unjustly permitted the
collection of property taxes, which ultimately led to foreclosure of the Hermanns’ home. Such
claims are doomed for multiple reasons.
The State of Wisconsin is generally immune from suit, at least if it is directly named as
a defendant. Even if it were not immune, the state cannot be sued under 42 U.S.C. § 1983
because it is not a “person” within the meaning of that statute. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70-71 (1989). In addition to these problems, the Hermanns are mistaken that
employees of a county are agents of the state. If they instead meant to sue specific state
employees working in the court system, they failed to name those officials as defendants. Any
claims against court officials may be subject to judicial immunity. And if they are suing the
state because they do not agree with the judgments against them, those claims are barred by
Rooker-Feldman.3 This court simply cannot undo the state court judgments at issue here.

3

This includes the Hermanns’ claim that the judgments are void because they hold a United
States land patent over the property. Even if Rooker-Feldman did not apply, I would dismiss this
claim because this is a long-discredited theory of defense against legal action by the government
or other parties with an interest in property. See, e.g., Wisconsin v. Glick, 782 F.2d 670, 672 (7th
Cir. 1986) (“[F]ederal patents do not prevent the creation of later interests and have nothing
to do with claims subsequently arising under state law.”).

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For similar reasons, I will also deny the Hermanns’ motion for injunctive relief. Dkt. 17.
The purpose of the Hermanns’ motion is their desire to move back into their previous home.
As I discussed previously, if the Hermanns are “seeking a temporary restraining order against
government officials involved in their eviction or the sale of the real estate at issue here . . . it
is extremely unlikely that I would issue an order conflicting with orders already issued by the
state courts.” Dkt. 7, at 6. Upon review of the Hermanns’ motion and the parties’ other filings,
I conclude that the Rooker-Feldman doctrine precludes me from entertaining their request to
essentially undo the state court judgments.
I will also dismiss any claims that the Hermanns may be attempting to bring about the
validity of the underlying taxes. In their complaint, the Hermanns allege that “because of
unfair, excessive taxes the plaintiffs then started seeking alternatives . . . so that these
corporations do not steal their farm land.” Dkt. 1, at 6. Also in their complaint and in
subsequent filings the Hermanns refer to the “volunteer program” regarding the payment of
their property taxes, which the Hermanns feel “may not be fair/equitable.” In their response
brief, the Hermanns elaborate that “[t]he plaintiffs have a Constitutionally secured right to
due process of law under the . . . 13th Amendment (involuntary tax and unjust enrichment—
they [plaintiffs] were going to volunteer taxes.)” Dkt. 22, at 2. So I take the Hermanns to be
saying that the tax judgments against their property were unfair because the underlying taxes
themselves violated due process.
The due process clause imposes procedural limitations on a state’s power to deprive its
citizens of property. See Jones v. Flowers, 547 U.S. 220, 226-39 (2006). However, the United
States Supreme Court has held that 42 U.S.C. § 1983 cannot be used as a vehicle to challenge
state taxes when an adequate remedy exists under state law. Nat’l Private Truck Council v. Okla.

10

Tax Comm’n, 515 U.S. 582 (1995). Here, the Hermanns had the remedy of the state court
proceedings themselves, and even if there were no previous proceedings, they would be required
to challenge the taxes under the procedures set forth in the Wisconsin statutes rather than file
a federal lawsuit about them. See Wis. Stat. § 71.88 (taxpayer must appeal to the Department
of Revenue and then to the Tax Appeals Commission). Therefore, any due process claims that
the Hermanns are pursuing regarding what they allege are “unfair, excessive taxes” must also
be dismissed. I conclude that the Hermanns have no actionable claims against the State of
Wisconsin, and I will grant the state’s motion to dismiss.
D. FDCPA claims
The Hermanns have alleged violations of 15 U.S.C. § 1692, The Fair Debt Collection
Practices Act, by each defendant. The Hermanns have since abandoned these claims, stating
“for the sake of simplicity the plaintiffs will forgo the FDCPA argument in the complaint.”
Dkt. 22, at 3. The Hermanns are the master of their complaint, and their decision to abandon
any FDCPA claims would be enough reason to dismiss those claims.
But even if they decided to later attempt to reinstate those claims, I would have to
dismiss them. The act applies only to consumer debts. Heintz v. Jenkins, 514 U.S. 291, 294
(1995) (“[T]he Act defines ‘debt collector’ to whom it applies as including those who ‘regularly
collect or attempt to collect, directly or indirectly, [consumer] debts owed or due or asserted
to be owed or due another.’”). Taxes are therefore not considered “debts” under 15 U.S.C. §
1692 and do not qualify for the FDCPA’s protection “because they generally are used for
communal rather than personal, family, or household purposes.” Newman v. Boehm, Pearlstein
& Bright, 119 F.3d 477, 481 (7th Cir. 1997) (citing Staub v. Harris, 626 F.2d 275,
278 (3d Cir. 1980)).

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E. Other § 1983 claims
I will address the Hermanns’ § 1983 claims as they relate to each remaining defendant.
Defendant Mittlestad, treasurer for Dunn County, seeks dismissal based on § 1983’s
requirement of personal involvement. In support of their motion, the Dunn County defendants
cite authority stating, “Section 1983 creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the individual defendant caused or
participated in a constitutional deprivation.” Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d
1014, 1036 (7th Cir. 2003) (quoting Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996)). But
Mittlestad’s lack of direct involvement is not necessarily fatal. Hildebrandt also states that “[a]n
official satisfies the personal responsibility requirement of section 1983 . . . if the conduct
causing the constitutional deprivation occurs at [her] direction or with [her] knowledge and
consent. That is, [s]he must know about the conduct and facilitate it, approve it, condone it,
or turn a blind eye.” Id. at 1039 (citing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
Nonetheless, the Hermanns have not alleged that Mittlestad plausibly did anything to
violate their constitutional rights. They allege only that Mittlestad, or her staff, refused to
accept the payment of their delinquent taxes. I take them to mean that the payment should
have undone the foreclosure and allowed them to return to their home. But this is not how
Wisconsin’s in rem foreclosure process works. This process allows persons with an interest in
land affected by tax liens a redemption period in which they may pay off the delinquent taxes
and costs to the county treasurer. Wis. Stat. § 75.521(5). However, once this redemption
period ends, a judgment may be entered “adjudging that the county is vested with an estate in
fee simple absolute in such lands.” Wis. Stat. § 75.521(13)(b). At that point, “all persons . . .
who may have had any right, title, interest, claim, lien or equity of redemption in such lands,

12

are forever barred and foreclosed of such right, title, interest, claim, lien or equity of
redemption.” Id. That is what happened here. The judgment entered against the Hermanns on
September 16, 2013, shows that their redemption period ended on April 10, 2013. Dkt. 14-5.
The refusal to accept back payment of taxes did not plausibly violate a constitutional right of
the Hermanns, so it cannot support a § 1983 claim. Therefore, I will dismiss Mittlestad from
this action.
I will also dismiss defendant Lange, corporation counsel for Dunn County. The
Hermanns allege that Lange informed them they needed to vacate their property, that they
could make a request to repurchase the property with the planning committee, and that the
committee would render a decision on their request. Lange did not violate any rights of the
Hermanns by accurately restating the terms of the December 2016 judgment. As for the
statement about repurchasing the property, the Hermanns followed Lange’s advice, made their
request to repurchase, and, just as Lange represented, the county board made a decision.
Unfortunately for the Hermanns, the committee did not allow them to repurchase the property.
But even assuming that the Hermanns could bring a claim against the committee, its actions
are not attributable to Lange. In short, Lange’s accurate statements did not violate the
Hermanns’ rights in any way.
I take the Hermanns to be saying that defendant Smith, the sheriff, violated their rights
in several ways. They say that Smith improperly served them with state court process by
“leav[ing] the complaint and summons in front of the plaintiffs’ door.” Dkt. 1, at 7. They also
allege that Smith left a notice for the Hermanns to vacate their property by December 26,
2016, which did not give them sufficient notice under Wisconsin law and that Smith did not

13

provide them with this information until December 16. Later, when Smith removed the
Hermanns, they say he used excessive force and falsely arrested him.
Some of the Hermanns’ allegations raise yet more claims that run afoul of the RookerFeldman doctrine. They believe that improper service invalidates the judgments against them,
but I cannot issue a ruling that the underlying state proceedings are void. As for the terms of
the order to vacate, defendant Smith did not author it—the judge did. But aside from that
problem, the question of sufficient notice is one for the state courts. If the Hermanns believe
that service or notice was not proper, they should have raised those issues in the state circuit
court or in an appeal.
I also take the Hermanns to be alleging that defendant Smith falsely arrested Timothy.
Wisconsin’s electronic court records show that Timothy’s criminal proceedings stemming from
the February incident are not resolved; the court is waiting to see whether Timothy will comply
with the terms of a deferred prosecution agreement. See Dunn County case no. 17-cm-89. I
am required to stay their claim in this court under the abstention doctrine set forth in Younger
v. Harris, 401 U.S. 37 (1971). Under Younger, federal courts should abstain from issuing orders
that would interfere with ongoing state criminal prosecutions, except in limited circumstances.
Id. at 45. The Hermanns’ false arrest claim is stayed pending resolution of state court
proceedings, including appeals and collateral review proceedings.
A couple of the Hermanns’ potential claims against Smith are not clearly meritless, at
least at this point. I take the Hermanns to be saying that Smith intentionally or unreasonably
delayed delivering the notice so as to cause them harm. Moreover, in their later filings, they also
take issue with the manner in which Smith executed the court’s order. The Hermanns say that
they were removed by “unlawful” or excessive force. I take this to be an attempt by the

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Hermanns to supplement their complaint to add a Fourth Amendment excessive force theory
against Smith. But their new allegations are conclusory, and because they will need to re-serve
their complaint upon Smith anyway, I will give them a short time to file an amended complaint
including their claims against Smith. I will give them further instructions for the amended
complaint at the end of the opinion.
I will also allow the Hermanns to amend their complaint and re-serve Dunn County.
The Hermanns allege that Dunn County, through its planning committee, acted with bias and
prejudice when it denied the Hermanns’ request to repurchase their property. There is the
possibility that the Hermanns could show that the planning board acted discriminatorily or
abused its power to spite the Hermanns.
Although local municipalities are not typically liable under § 1983 for the actions of
individual employees, it is still possible where those actions reveal a policy or custom of the
municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“We conclude, therefore,
that a local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under § 1983.”). I will
therefore allow the Hermanns to amend and serve their complaint to Dunn County. But the
Hermanns will have to explain how the planning committee, by choosing not to repurchase the
land, violated their rights or otherwise wronged them.
F. Conspiracy claims
The Hermanns’ allegations pertaining to their conspiracy claims are simply too vague
and unsupported to allow them to proceed. The Hermanns’ position appears to be that the

15

various defendants’ actions speak for themselves and demonstrate they “were in concert to
conspire to commit this outrageous fraud to injure them.” Dkt. 1, at 10. These are the exact
kinds of vague allegations that the pleading rules prohibit. A “plaintiff’s obligation to provide
the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
Even before Twombly and Iqbal, “conspiracy allegations were often held to a higher standard
than other allegations; mere suspicion that persons adverse to the plaintiff had joined a
conspiracy against him or her was not enough.” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir.
2009).
The Hermanns do, however, allege that they “have reason to believe that someone in
the committee may have an interest in the plaintiffs’ farm land and instead have engaged to
pursue unjust enrichment.” Dkt. 1, at 8. If the Hermanns have specific knowledge of a board
member abusing their power to commit fraud, these allegations needed to be pleaded with
particularity under Federal Rule of Civil Procedure 9(b) when they amend their complaint.
G. Motion to strike
The Hermanns have moved to strike the Dunn County defendants’ brief opposing their
motion for injunctive relief. They make three primary arguments for this. First, the “false brief
should be stricken from the record because [it] does not do justice, but seek[s] to destroy the
plaintiffs’ rights and pursuit of justice.” Dkt. 34, at 1. Second, the Hermanns argue that
representations by defendants’ counsel “must be stricken from the record” because she “does
not have personal or firsthand knowledge of the facts.” Dkt. 22, at 3. Lastly, the filings were

16

not redacted to remove the Hermanns’ sensitive information, “especially the birth certificate,
birth dates and social security number.” Dkt. 34, at 1.
I will deny the motion. As stated above, I am denying the Hermanns’ motion for
injunctive relief, largely because of the Rooker-Feldman doctrine. Besides, the Hermanns’ mere
disagreement with defendants’ positions is not reason enough to strike their filings. Defendants
are permitted to bring a motion to dismiss prior to answering under Federal Rule of Civil
Procedure 12, and that is exactly what they did. The argument that defense counsel does not
have personal knowledge to represent the facts is also without merit—it is indeed the role of
counsel to present evidence without being a direct witness to the events underlying a case.
Finally, with regard to the personal information contained in exhibits, defendants contacted
the clerk of court shortly after the Hermanns filed their motion and asked how to fix the
problem. The clerk’s office placed the offending documents under seal and directed defendants
to file new, redacted versions of the documents, which defendants have done. See Dkt. 38 and
Dkt. 39. Defendants promptly worked to correct their error, so I will not take the drastic action
of striking their opposition brief.

CONCLUSION
I am granting defendants’ motions to dismiss, for the most part. I am dismissing almost
all of the Hermanns’ claims, particularly any that are intertwined with the previous state court
judgments. Most of the defendants are also dismissed. The only claims surviving are these:


Claims that defendant Smith delayed in serving the notice to vacate, falsely
arrested Timothy, and used excessive force in removing the Hermanns from the
property.



Claims that defendant Dunn County used fraud or discriminated against the
Hermanns in refusing to allow them to repurchase their property.

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But that does not mean the case can proceed with these claims. The Hermanns have
failed to properly serve defendants Smith and Dunn County. I will give them a short time to
serve these defendants under Federal Rule of Civil Procedure 4 or Wisconsin Statutes Chapter
801.
The Hermanns will also have to submit an amended complaint explaining the basis for
the two sets of claims against Smith and Dunn County listed above. They should draft the
amended complaint as if they were telling a story to people who know nothing about their
situation. The Hermanns should identify clearly the facts that form the basis for their claims
against Smith and Dunn County and set forth their allegations in separate, numbered
paragraphs using short and plain statements. The complaint should not contain long recitations
of legal theory, particularly “sovereign citizen” theories of exceptions to the normal rules of
land ownership or civil procedure. The Hermanns are subject to the same Wisconsin and
federal laws as everybody else. The important task is for the Hermanns to tell a coherent story
that will allow the reader to understand exactly what Smith or Dunn County did to harm them,
and why the Hermanns believe that defendants’ actions were excessive, discriminatory, or
fraudulent. If the amended complaint contains sovereign-citizen type allegations, rather than
a plain statement of the reasons why the Hermanns are entitled to relief, I will dismiss the case
entirely.

ORDER
IT IS ORDERED that:
1. Defendant State of Wisconsin’s motion to dismiss, Dkt. 24, is GRANTED.
2. The Dunn County defendants’ motion to dismiss, Dkt. 12, is GRANTED IN PART.

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3. Plaintiffs Timothy Louis Hermann and Karen Elaine Hermann’s motions for entry
of default, Dkt. 19 and Dkt. 43, are DENIED.
4. Defendants State of Wisconsin, Megan Mittlestad, Nicholas P. Lange, Dunn
County Sheriff’s Office, and Planning, Resources, and Development Committee are
DISMISSED.
5. Plaintiffs’ false arrest claim is STAYED.
6. Plaintiffs’ motion for injunctive relief, Dkt. 17, is DENIED.
7. Plaintiffs’ motion to strike, Dkt. 34, is DENIED.
8. Plaintiffs may have until September 14, 2017, to submit their amended complaint
as discussed in this opinion.
9. Plaintiffs may have until September 21, 2017, to serve defendants Smith and Dunn
County with a summons and amended complaint.
Entered August 24, 2017.

BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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