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

Filing 7

ORDER directing plaintiffs to serve on each of the defendants the summonses they were previously issued. The John Doe Defendants are dismissed from this lawsuit. Plaintiff's 3 motion for issuance of summons for the Doe defendants is denied. The clerk of court is directed to unseal Dkt. 6 . Signed by District Judge James D. Peterson on 2/2/2017. (elc),(ps)

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

TIMOTHY LOUIS HERMANN and
KAREN ELAINE HERMANN,
Plaintiffs,
v.
OPINION & ORDER
STATE OF WISCONSIN, DUNN COUNTY, MEGAN
MITTLESTAD, NICHOLAS P. LANGE, DENNIS P.
SMITH, DUNN COUNTY SHERIFF’S OFFICE,
PLANNING, RESOURCES AND DEVELOPMENT
COMMITTEE, and DOES 1 THROUGH 10,

17-cv-60-jdp

Defendants.
Timothy Louis Hermann and Karen Elaine Hermann, who reside in Otter Creek,
Wisconsin, bring this lawsuit alleging that various Dunn County officials conspired to
wrongfully foreclose on their home and then rejected their offer to buy the real estate back.
The Hermanns have paid the full filing fee for this action, and therefore the complaint
does not have to be screened under the in forma pauperis statue, 28 U.S.C. § 1915. But this
court has the inherent authority to screen the case on its own. See Mallard v. U.S. Dist. Ct.,
490 U.S. 296, 307-08 (1989) (in forma pauperis statute “authorizes courts to dismiss a
‘frivolous or malicious’ action, but there is little doubt they would have power to do so even
in the absence of this statutory provision.”); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.
1999) (“district courts have the power to screen complaints filed by all litigants, prisoners
and non-prisoners alike, regardless of fee status.”). I directed the Hermanns to hold off on
serving any of the defendants until I completed review of the complaint.
In reviewing the complaint, I must construe the Hermanns’ pro se pleading
generously. See Haines v. Kerner, 404 U.S. 519, 521 (1972). After reviewing the complaint, I

will allow plaintiffs to serve the defendants they have properly identified. But I will dismiss
the John Doe defendants because the Hermanns do not state any claims for relief against
them. I will also address other issues raised by the Hermanns’ submissions thus far.

ALLEGATIONS OF FACT
Plaintiffs explain that they owned a parcel of land in Otter Creek, Wisconsin, but that
“defendants” (who are identified in the complaint as the state of Wisconsin, Dunn County,
the Dunn County Sheriff’s Office, Sherriff Dennis P. Smith, county treasurer Megan
Mittlestad, corporation counsel Nicholas P. Lange, and the Dunn County “Planning,
Resources, and Development Committee,” and “Does 1 through 10”) initiated foreclosure
proceedings against them because they failed to stay current on their taxes. Although
plaintiffs do not mention the case number for this action, they say that a “tax judgment” was
issued against them on September 16, 2013. Electronic state court records show that which
corresponds to the judgment in Dunn County case no. 2013CV20, which appears to have
been an in rem tax foreclosure lawsuit under Wis. Stat. § 75.521.
Plaintiffs were later removed from their home pursuant to what they call a “false order
to vacate” on December 12, 2016. This order corresponds to a default judgment entered in
Dunn County case no. 2016CV210. The sheriff (who I take to be defendant Smith) left a
“notice to vacate” at plaintiffs’ door on December 16. The notice gave them 10 days to
vacate.
Plaintiffs met with defendant Lange and stated that they were willing to pay off their
taxes. Neither Lange nor Mittlestad would accept the payment. But Lange said that plaintiffs
could possibly repurchase the land and that he would direct their request to the county

2

Planning, Resources, and Development Committee. The committee would not meet until
January 10, so Lange said that plaintiffs would still need to vacate the property, which they
did. The committee ultimately did not agree to plaintiffs’ offer to repurchase the land.

ANALYSIS
First, I will clarify the plaintiffs’ status in this lawsuit. Although the Hermanns name
themselves as plaintiffs in the caption of their complaint, they also include “timothy louis
hermann” and “karen elaine hermann” in the caption as “private American nationals” who
are “3rd Party Interveners,” Dkt. 1, at 1. The first heading in plaintiffs’ complaint is “Motion
to Intervene.” Id. Judging from this and the contents of the complaint, the Hermanns appear
to be ascribing legal significance to the all-lowercase spelling of their names and their status
as interveners. But to be clear, there is none. I do not include their lowercase names or their
purported intervener status in the caption, and they should not include that language in their
future submissions. They are the plaintiffs in this lawsuit because they are the ones who
initiated this suit seeking redress.
Similarly, at the outset of their complaint they state the following:
Comes now, the grantee/beneficiary/heirs to the trust, timothy
louis and karen elaine of the house of Hermann, 3rd party
Interveners for the Plaintiffs, hereinafter “Petitioners”, both
being righteous freeholders on the land, non-statutory, noncommercialized, private American nationals of the union states
of America, privately residing and privately domiciling within a
non-military occupied private estate, not subject to the
jurisdiction of the UNITED STATES or any of its political
subdivisions including federal, state or municipal jurisdictions
and hereby moves the court in regards to the real land known as:
[the description of their foreclosed-upon property].

3

Id. at 1-2. The complaint is larded with descriptions of frivolous “sovereign citizen”-type
theories of government illegitimacy. See, e.g., United States v. Hilgeford, 7 F.3d 1340, 1342 (7th
Cir. 1993) (argument that individual is sovereign citizen of state who is not subject to
jurisdiction of United States and not subject to federal taxing authority is “shopworn” and
frivolous); Bechard v. Rios, No. 14-CV-867-WMC, 2014 WL 7366226, at *1 (W.D. Wis. Dec.
24, 2014) (case dismissed where plaintiff “maintain[ed] that the social security number that
issued along with his birth certificate . . . is really an identification number for a Germanowned insurance policy.”). Plaintiffs should be aware that none of these theories support any
viable claims, and should not be included in their future submissions. The real question is
whether the facts plaintiffs allege will support any claims.
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.” Remer v. Burlington Area Sch. Dist.,
205 F.3d 990, 996 (7th Cir. 2000) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16
(1923); D.C. Ct. of App. v. Feldman, 460 U.S. 462, 482 n.16 (1983)). 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.” Garry v. Geils, 82 F.3d 1362, 1365 (7th
Cir. 1996). 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. But plaintiffs’ complaint is

4

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 on any of
plaintiffs’ claims sua sponte at this point in the proceedings. The Hermanns may now serve
their summonses on defendants.
The Hermanns do not limit their claims to the fact of their foreclosure. They also take
issue with the manner in which they were forced to leave their home, and later conduct by
county officials in negotiating a possible resale. In particular, plaintiffs say that the notice to
vacate within ten days “in the middle of winter” was cruel and unusual punishment under the
Eighth Amendment. But because the Hermanns’ eviction was not the result of criminal
proceedings against them, the Eighth Amendment does not apply to them. Nonetheless, pro
se plaintiffs are not required to plead legal theories, and it is possible that their claims could
fall within a Fourth Amendment theory for unreasonable seizure. So I will not dismiss this
claim.
I will dismiss the Hermanns’ claims against the ten “John Doe” defendants they name
in their complaint. Short of their inclusion in the list of defendants involved in a conspiracy,
the complaint does not contain any explanation of what any of the Doe defendants did to
harm plaintiffs, or even what job any of these people held. The Hermanns are free to amend
their complaint to include allegations against each of these defendants, but for now they are
dismissed. Accordingly, I will deny plaintiffs’ motion for issuance of summons for each of the
Doe defendants.
Finally, the Hermanns have registered on the courts electronic filing system, and have
filed ex parte and under seal a document titled “Declaration of Ex Parte Emergency and
Order.” Dkt. 6. But nothing in this filing justifies its ex parte, sealed designation. Perhaps

5

plaintiffs mean to be seeking a temporary restraining order against government officials
involved in their eviction or the sale of the real estate at issue here, but as stated above, it is
extremely unlikely that I would issue an order conflicting with orders already issued by the
state courts, and I certainly would not do so without hearing from defendants. If plaintiffs
seek some remedy from the state court’s decisions, they should seek that in the state court
system. Plaintiffs also ask for an order to serve the summons they have already been issued.
As stated above, this order grants that request.
I will direct the clerk of court to unseal this submission. Plaintiffs should be aware
that the court seals documents only in circumstances in which a party can show that there is
an exceptional reason to keep sealed portions of the court’s docket, which is usually
presumed to be public record. Ex parte filings are also disfavored because each party to a
lawsuit usually deserves to know what the other parties are filing in a lawsuit. In the future, if
plaintiffs intend to file something ex parte or under seal, they should include a motion in
which they explain why they believe it is necessary to keep the filing confidential.

6

ORDER
IT IS ORDERED that:
1. Plaintiffs Timothy Louis Hermann and Karen Elaine Hermann are directed to
serve on each of the defendants the summonses they were previously issued.
2. The John Doe defendants are DISMISSED from this lawsuit.
3. Plaintiffs’ motion for issuance of summonses for the Doe defendants, Dkt. 3, is
DENIED.
4. The clerk of court is directed to unseal Dkt. 6.
Entered February 2, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

7