Kowalewski, Stephen v. Torgerud, Keith et al

Filing 5

ORDER dismissing 1 Complaint pursuant to Fed. R. Civ. P. 8. Amended complaint due 3/26/2018. Signed by District Judge Barbara B. Crabb on 2/22/2018. (jef/cc: plaintiff via U.S. mail),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - STEPHEN KOWALEWSKI,
OPINION AND ORDER
Plaintiff,
18-cv-004-bbc
v.
KEITH TORGERUD, ANGELA TORGERUD and
DOES 1-100,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this proposed civil action for monetary relief, pro se plaintiff Stephen Kowalewski
is alleging that defendants Keith and Angela Torgerud and several unknown individuals
working with them removed his 14-year-old daughter from his home without his consent,
a warrant or probable cause, in violation of his constitutional rights and various state laws.
Because plaintiff is proceeding under the in forma pauperis statute, 28 U.S.C. § 1915, and
cannot afford to make an initial partial payment, I must screen his complaint and dismiss
any claims that are legally frivolous, malicious, fail to state a claim upon which relief may be
granted or ask for money damages from a defendant who by law cannot be sued for money
damages. 28 U.S.C. § 1915(e)(2)(B).
Unfortunately, I cannot review the potential merits of plaintiff’s claims at this time
because his pleading does not provide enough information to support a federal claim, as
required by Rule 8 of the Federal Rules of Civil Procedure. Although I am dismissing

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plaintiff’s complaint, I will give him an opportunity to file an amended complaint that
explains his claims more clearly.
Plaintiff alleges the following facts in his complaint.

ALLEGATIONS OF FACT
Plaintiff Stephen Kowalewski entered the hospital for tests on January 12, 2017.
That same day, “defendants” removed his 14-year old daughter from his home in Galesville,
Wisconsin without his knowledge or consent. On January 13, 2017, the Galesville Police
Department and the Trempealeau County Department of Human Services “broke the code”
on his garage door and entered his home without his consent, a warrant or probable cause.
After plaintiff told the police and human services employees that he expected to see his
daughter getting off the school bus that afternoon at 3:50 p.m., they left his garage but said
nothing about the whereabouts of his daughter. Plaintiff later found a note in his driveway
that stated that his daughter was in the custody of the human services department. He
called a number on the business card left with the note and was told that his daughter was
staying with defendants Keith and Angela Torgerud.

OPINION
A. Jurisdictional Issues
A threshold question in any case is whether the court has jurisdiction over any of the
claims that plaintiff is trying to bring. Federal courts have limited jurisdiction, which means

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that they may hear a case only if Congress or the Constitution authorize it. As a result, I
must determine whether subject matter jurisdiction exists, even if none of the parties raise
the issue. McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005).
Generally, a federal court may exercise jurisdiction over a case in one of two
situations: (1) the plaintiff brings a claim that arises under federal law, 28 U.S.C. § 1331;
or (2) the plaintiff and defendants are citizens of different states and the amount in
controversy is greater than $75,000. 28 U.S.C. § 1332. Because plaintiff alleges that he
and all of the defendants are residents of Wisconsin, he must bring a claim that arises under
federal law for his case to remain in this court. Under 28 U.S.C. § 1367, a federal court may
exercise supplemental jurisdiction over a plaintiff’s properly pled state law claims, but only
if those claims are related to federal claims in the same case.
Plaintiff alleges generally that he is bringing 14 causes of action, including intentional
and negligent infliction of emotional distress, custody interference, malicious and outrageous
conduct, extortion, criminal trespassing, fraud, false arrest and imprisonment, malicious
prosecution and misuse of the courts, loss of liberty and consortium, slander, libel and
defamation. However, most of these causes of action are either crimes for which he may not
bring a private civil enforcement action, Israel Aircraft Indusustries Ltd. v. Sanwa Business
Credit Corp., 16 F.3d 198, 200-01 (7th Cir. 1994) (“No case during the last generation
creates a private right of action to enforce a statute cast in the form of a criminal
prohibition.”), or state law tort claims over which this court does not have subject matter

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jurisdiction unless plaintiff can state a federal claim upon which relief may be granted. I will
discuss the possible federal claims that plaintiff may have below.

B. Potential Federal Claims
Under 42 U.S.C. § 1983, plaintiff may bring a claim against a “person” acting under
color of state law who deprived him of rights or privileges protected by the United States
Constitution or federal laws. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Plaintiff’s
allegations that individuals removed his daughter from his custody and later entered his
home unlawfully implicate his rights under the Fourth Amendment and the due process
clause of the Fourteenth Amendment.
The Fourth Amendment protects against unreasonable searches and seizures. The
Court of Appeals for the Seventh Circuit has held that “[i]n the context of removing a child
from his home and family,” “a seizure is reasonable if it is pursuant to a court order, if it is
supported by probable cause, or if it is justified by exigent circumstances, meaning that state
officers ‘have reason to believe that life or limb is in immediate jeopardy.’” Brokaw v.
Mercer County, 235 F.3d 1000, 1010 (7th Cir. 2000). Similarly, “searches . . . inside a
home without a warrant are presumptively unreasonable” under the Fourth Amendment.
Payton v. New York, 445 U.S. 573, 586 (1980). However, law enforcement officers may
enter an individual’s home without a warrant when the individual consents, United States
v. Risner, 593 F.3d 692, 694 (7th Cir. 2010), or “when police have a reasonable belief that
exigent circumstances require immediate action and there is no time to secure a warrant.”

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Leaf v. Shelnutt, 400 F.3d 1070, 1081 (7th Cir. 2005). Exigent circumstances also justify
warrantless entry when, for example, law enforcement must rescue an individual from
imminent danger, prevent a suspect from escaping, or prevent the destruction of evidence.
Sutterfield v. City of Milwaukee, 751 F.3d 542, 557 (7th Cir. 2014) (citing cases).
Under the due process clause of the Fourteenth Amendment, the Supreme Court has
recognized a person’s right to familial relations and the protected liberty interest of parents
in the care, custody and management of their children. Siliven v. Indiana Department of
Child Services, 635 F.3d 921, 928-29 (7th Cir. 2011) (summarizing cases); Brokaw, 235
F.3d at 1018-19 (same). However, like Fourth Amendment rights, “the constitutional right
to familial integrity is not absolute” and “is limited by the compelling governmental interest
in the protection of children particularly where the children need to be protected from their
own parents.” Brokaw, 235 F.3d at 1019 (internal citations omitted). Therefore, claims
relating to the removal of children under the Fourth and Fourteenth Amendments are
evaluated under the same standard. Id. (“[C]ourts have recognized that a state has no
interest in protecting children from their parents unless it has some definite and articulable
evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent
danger of abuse.”).
Although plaintiff provides little information about the circumstances under which
his daughter was removed from his home and various officials entered his garage, his
allegations that both actions were taken without his consent or a warrant likely state a claim
under the Fourth and Fourteenth Amendments. However, “[t]o recover damages under §

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1983, a plaintiff must establish that a defendant was personally responsible for the
deprivation of a constitutional right.” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995).

“An individual cannot be held liable in a § 1983 action unless he caused or

participated in [the] alleged constitutional deprivation.” Starzenski v. City of Elkhart, 87
F.3d 872, 879 (7th Cir. 1996) (emphasis in original).
Although plaintiff names the Torgeruds and 100 John and Jane Does as defendants,
he does not provide any information about them, who they worked for or what each of them
did to violate his rights. For example, it is not clear from plaintiff’s allegations who the
Torgeruds are, but it appears that they are private citizens who may be serving as foster
parents or guardians for plaintiff’s daughter. Foster parents and relatives do not become
state actors solely because they take physical custody of allegedly neglected and abused
children. Letisha A. by Murphy v. Morgan, 855 F. Supp. 943, 947 (N.D. Ill. 1994).
Therefore, unless the Torgeruds are state or county employees or were performing services
for the government other than just serving as foster parents, plaintiff will not be able to state
a federal claim against them. Plaintiff also mentions the Galesville Police Department and
the Trempealeau County Department of Human Services in his complaint, but he does not
make clear whether the Doe defendants worked for either department or in a different state
agency. As discussed further below, although plaintiff may not know the names of most of
the individuals whom he seeks to sue, he will need to provide more information in order to
state a claim upon which relief may be granted against any of them.

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C. Rule 8 and Next Steps
Under Fed. R. Civ. P. 8(a)(2), a complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Rule 8 also requires that the
complaint contain enough allegations of fact to make a claim for relief plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Because plaintiff’s complaint does not comply with Rule 8, I must
dismiss it without prejudice. Plaintiff is free to file an amended complaint that includes the
allegations that are missing.
If plaintiff chooses to file an amended complaint, he should keep it short and to the
point and draft it as if he were telling a story to people who know nothing about his
situation. In particular, he should include allegations that would allow someone reading the
complaint to answer the following questions:
•

How and why his daughter was removed from his custody?

•

Why does plaintiff believe that the removal of his daughter occurred
without a warrant, court order or reasonable suspicion that she was in
imminent danger?

•

Why does plaintiff believe that the people who entered his home did not have a
warrant and that exigent circumstances did not justify the entry?

•

Who did the individual defendants work for and what did each of them do to
violate plaintiff’s rights? (Plaintiff may number his John or Jane Doe defendants
as he did in his original complaint, but he should discuss the role and actions of
each defendant separately.)

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Plaintiff should not include in his amended complaint any claims that allege
violations of state criminal law or any claims against private individuals who do not work for
a city, county or state government. Plaintiff also should not bring any claims challenging a
state court order or the actions of any judges or court officials. Federal district courts lack
jurisdiction to hear claims seeking to vacate state court judgments or challenge divorce,
custody or alimony decrees. Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923). Plaintiff makes several references to “judicial corruption,” but
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 plaintiff would not be able to bring a claim against any judge or court
commissioner for conduct arising out of official decisions or actions.
If plaintiff’s amended complaint satisfies Rule 8, I will consider the merits of his
claims.

ORDER
IT IS ORDERED that plaintiff Stephen Kowalewski’s complaint is DISMISSED
without prejudice for failure to comply with Fed. R. Civ. P. 8. He may have until March 26,

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2018 to file an amended complaint that complies with Rule 8. If plaintiff does not file an
amended complaint by March 26, the clerk of court is directed to close this case.
Entered this 22d day of February, 2018.
BY THE COURT:

/s/
___________________________
BARBARA B. CRABB
District Judge

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