Jones, Brenda v. York, Brent et al

Filing 78

OPINION AND ORDER granting 47 Motion to Amend/Correct Brief in Opposition; granting 33 Motion for Summary Judgment. Signed by District Judge William M. Conley on 4/26/2021. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BRENDA JONES,
Plaintiff,

OPINION AND ORDER

v.
19-cv-699-wmc
BRENT YORK, ADAMS COUNTY, &
AS-OF-YET UNKNOWN EMPLOYEES
OF ADAMS COUNTY SHERIFF’S
DEPARTMENT,
Defendants.
In 2016, plaintiff Brenda Jones was wrongfully convicted of arson in Adams County
Circuit Court, Wisconsin. After the vacating of that conviction and all other charges being
dropped without objection by the District Attorney, Jones brought this civil action alleging
violations of the U.S. Constitution and state law by an Adams County criminal investigator
and others employed by the Adams County Sheriff’s Office. Presently before the court is
defendants’ motion for summary judgment.

(Dkt. #33.)

While the court finds the

conduct of criminal investigator York, Adams County prosecutors, and Jones’ original
defense counsel deeply troubling, the court will grant that motion because it does not rise
to a violation of the U.S. Constitution for the reasons discussed below.1 Whether there is
a remedy for wrongful prosecution and conviction under state law remains to be

1

Also before the court is plaintiff’s unopposed motion to amend/correct her brief in opposition
(dkt. #47), which the court will GRANT.

determined in a future state administrative or judicial proceeding.2

UNDISPUTED FACTS3
A. The Fire and Subsequent Investigation
In the early morning of February 17, 2013, Adams County dispatch received a call
from one of Jones’ neighbors stating that he heard an explosion and saw that the house
behind his was on fire and already mostly destroyed. By the time the fire department and
investigators arrived, the house was fully burned to the ground. Brent York, an investigator
for the Adams County Sheriff’s Department, was assigned to investigate the fire.
York then called Jones, who had been at her sister’s home that night. At that time,
Jones explained that there had been problems with ice dams leaking water in the walls,
sockets popping, and other electrical problems. By the time Jones arrived at the scene of
the explosion about an hour after that initial call, York had completed his initial
investigation, and believed that the fire was most likely caused by an accidental electrical
malfunction, released the scene the same day, and closed the file on February 27, 2013.
At that time, Jones’ homeowner’s insurance company, Rural Mutual Insurance Company,
also reached the same, initial determination -- the fire was accidental.

2

In addition to the state common law claims asserted by plaintiff in this case, over which this
court will decline supplemental jurisdiction, the state of Wisconsin has authorized an
administrative claims board to “equitably compensate” an individual wrongfully convicted
through no fault of her own, albeit at rates that would appear to understate substantially its
actual impacts. See Wis. Stat. § 775.05; Compensation for the Unjustly Imprisoned: A Model for Reform
in Wisconsin, 2005 Wis. L. Rev. 1181.
3

Unless otherwise indicated, these facts are deemed undisputed for the purposes of summary
judgment based on the parties’ proposed findings of fact, responses, and supporting material.

2

Rural Mutual arranged for Jones to stay at a motel after the fire. On March 3, 2013,
Jones’ friend, Alan Onopa, came to the motel to stay with her. According to Jones, Onopa
then got drunk, threatened her, and “turned into a nightmare.” (Jones Decl. (dkt. #30) ¶
7.) Again, according to Jones, Onopa further told her that if she did not take care of him
and give him money, he was going to turn her in for burning down the house and would
collect a reward. He also grabbed her by the throat and told her he had been taping her
for some time. Finally, after Onopa fell asleep, Jones left the motel to stay with her sister.
The following day, Jones called the Marshfield Police Department and spoke with
Officer Caleb Bornbach, who memorialized their conversation in a contemporaneous police
report. Jones informed Officer Bornbach of Onopa’s threats, including that he would say
she started the fire if she did not give him money from the fire settlement. Jones also called
Richard Pohlod, the Rural Mutual insurance adjuster, to report Onopa’s threats. Finally,
Jones tried to call Adams County Investigator York, but no one answered.
Between March 4 and March 7, Onopa called Jones numerous times, leaving
threatening voicemails on her phone. At some point, Onopa also apparently called Rural
Mutual, because on March 7, 2013, Pohlod informed York that Onopa had contacted him
and said that Jones had burned down her house. Pohlod told York that Onopa claimed to
have an audio recording of Jones admitting to setting the fire on purpose. Based on that
call, York reopened his investigation of the case, although at this time, York still had no
physical evidence that Jones had intentionally burned her house down.
On March 21, 2013, York met with Jones and recorded their conversation. During
the interview, Jones told York that: (1) Onopa threatened her and told her that if she did

3

not “take care of him” and give him money, he would turn her in for burning the house
down; (2) Onopa “had me by the throat”; (3) the next day, Jones reported Onopa’s
behavior to the Marshfield Police Department and Pohlod; and (4) Onopa took some of
Jones’ belongings from the motel room. In his police report of this interview, however,
York made no mention of Jones telling him that Onopa put his hands on her throat,
although he did note that Jones had made a theft report against Onopa to the Marshfield
Police Department.
During her interview with York, Jones also played for him some of the voicemails
from Onopa, on which Onopa could be heard saying that if Jones did not call him back, he
would send his recording to the insurance company. York then asked Jones about the
recording referenced by Onopa. Jones denied its existence, and she told York that Onopa
was lying and attempting to extort money from her. York further asked Jones to call Onopa
in his presence, so that he could listen in and record their conversation. Jones agreed to
do so, and they arranged to meet at Jones’ sister’s house later that day to conduct the call.
About an hour after the interview, York met Jones at her sister’s house as agreed so
that Jones could call Onopa in York’s presence. While the parties agree that this call was
recorded, York now represents that he was unable to later locate the record. Regardless,
the parties agree that during the call, Onopa told Jones that her insurance company was
going to pay him $3,500 for the recording he allegedly had of Jones, but he would give
Jones the recording instead if she paid him.
On March 28, 2013, Jones again called Marshfield Police Officer Bornbach to add
that when Onopa threatened her with extortion, he also grabbed her by the neck, but did

4

not choke her.

Jones also mentioned that York had been investigating the fire, and

Bornbach told Jones that he would consult with York. Later that same day, Bornbach
called York, memorializing their call in a report.

During the call, York admitted to

Bornbach that Jones told him that Onopa had put his hands around her throat and
threatened extortion.4 Ultimately, however, York did not pursue any investigation into
Jones’ allegations against Onopa.
On April 2, 2013, York spoke with Onopa directly. Onopa told York that he had
made a recording of Jones talking about burning her house down two or three days after
the fire, while they were both staying at a Motel 6 in Arlington Heights, Illinois. During
that conversation, Onopa also asserted to York that his son, Daniel Onopa, had installed
a smoke detector in Jones’ house. Later, York followed up with the son and asked him if
he recalled installing a smoke detector, and he said he did not.
On April 8, 2013, York received a recording from Onopa and, after listening to it,
wrote in a police report that he recognized the voices as being those of Onopa and Jones’
although he acknowledged “there was background noises that made it difficult at times to
clearly hear the voices.” (Mills Decl., Ex. C (dkt. #36-3) 13.) According to York’s report,
in that recording, Alan Onopa
asked if Brenda had put something in the heater, and Brenda’s
answer was mostly unclear but I heard the word “match” in her
answer. Brenda was then laughing and said, “I tried to stick it
4

Bornbach also noted in his report that he would not request Onopa be charged. In a later
declaration, Bornbach explains that he “did not recommend charges in Marshfield for Alan Onopa
for extortion or disorderly conduct because my report indicates that York said that while he was in
Wausau interviewing Brenda, he obtained this recording where Onopa tried to extort Brenda Jones
for $3500. I did not and do not know where Alan was during this incident, so the evidence gathered
would have been outside my jurisdiction.” (Bornbach Decl. (dkt. #46) ¶ 7.)

5

in the heater and it,” the rest of her answer is unclear. Alan
then said that he could not believe that she did all of that
damage with just a match, and Brenda answered “ya.”
(Id.) Unsurprisingly, plaintiff objects to York’s characterization of the recording, further
contending that the recording is inaudible as to the alleged, female voice.
On May 13, 2013, York met with Onopa again, this time at the Wood County Jail
where Onopa was then being held on a probation violation. During this interview, which
was recorded, Onopa told York that: Jones did not have any money; he believed Jones had
burned her house down to be with him; he had never planned to give Jones the audio
recording for money; instead, he wanted money for items belonging to him that had been
stored in Jones’ garage and destroyed by the fire; Jones described using an electric heater
and putting a blanket in the heater to start the house on fire; and before the fire, Jones had
taken a lot of stuff out of her house, storing the items at her sister’s house. There is no
evidence that an electric heater was in the home.5
In June of 2013, York received Jones’ cell phone records for the period of January
15 through February 28, 2013, from U.S. Cellular. Mark Digerness worked for U.S.
Cellular, and he had conversations with York about those phone records and what the
underlying data meant. In particular, Digerness explained to York how to understand
where a cell phone might be located based on the data. All of the phone calls in the records

5

Also on May 13, 2013, Onopa made a written statement to his probation agent while in custody
at the Wood County Jail. In that statement, Onopa wrote that he recorded Jones’ alleged confession
on March 15, 2013 -- a week after he told Rural Mutual Insurance adjuster, Pohlod, that he had a
recording of Jones confessing to arson. The parties dispute whether York ever became aware of this
written statement, although plaintiff does not argue that this evidence was suppressed or otherwise
cite it to support her constitutional claims.

6

indicate that Jones was in Wisconsin, not Illinois, in the days and weeks after the fire.
On August 4, 2014, York referred the case to the Adams County District Attorney
for a decision on charging Jones with arson. In the materials submitted to the DA, York
did not recount Jones’ claim that Onopa had put his hands on her throat, nor did he ever
subsequently inform that claim. Additionally, the case file did not include the audio
recording of the March 21, 2013, call between Jones and Onopa, during which he
threatened to turn over a recording to Rural Mutual for $3,500 unless she paid him. After
being informed that the recording was missing, York searched his computer and audio
recorders, but was unable to find it.6

B. The Criminal Pre-Trial Proceedings, Trial, Vacation, and Dismissal of
Charges
On February 24, 2015, a criminal complaint was filed against Jones in Adams
County Circuit Court, charging her with arson of a building with the intent to defraud
under Wis. Stat. § 943.02(1)(b). On January 12, 2016, Jones filed a motion to dismiss
the case, arguing that York’s failure to preserve the March 21, 2013, recording entitled her
to dismissal, because the recording was potentially or apparently exculpatory evidence. A
hearing on that motion was held on February 4, 2016, and after considering the evidence
and arguments, including sworn testimony by Investigator York and Jones, the court held
that the lost recording was neither potentially nor apparently exculpatory and denied the
motion.

6

York testified that he did not destroy the recording. Plaintiff purports to dispute this, but cites
to no evidence to support this proposition.

7

Jones’ case proceeded to a jury trial on May 5 and 6, 2016. During the trial, the
recording that was purported to be Jones confessing to arson to Onopa at a motel in
Arlington Heights, Illinois, was played for the jury. Jones’ cell phone records were also
produced and discussed.7 Also at trial, York testified that he did not recall hearing about
any physical altercation between Onopa and Jones, and he also believed that Jones’ report
to Officer Bornbach was just a theft report. On May 6, 2016, the jury returned a verdict
of “guilty,” and Jones was later sentenced to a term of seven years of probation with nine
months jail as a condition of probation. She was also ordered to pay restitution in the
amount of $82,162.78.
Following the trial, Jones through new counsel filed a motion for post-conviction
relief on three grounds. First, she argued that Jones’ trial counsel performed ineffectively
by failing to move to suppress the recording in which she supposedly confessed to setting
fire to her house, by failing to investigate and obtain Officer Bornbach’s police report, and
by failing to investigate Onopa’s extended supervision records. Second, Jones argued that
the government’s failure to disclose Officer Bornbach’s report was improper, as was the
failure to disclose materials from the Department of Corrections’ file on Onopa and the
fact that Onopa had nine other criminal convictions. Finally, Jones argued that various,
newly discovered evidence created a reasonable probability of a different result at retrial.

7

The trial transcript shows that both the prosecution and Jones’ trial counsel Jason Lockery
questioned York about the phone records. (Trial Tr. Day 1 (dkt. #36-1) 160:20-161:13, 177:19181:17; Trial Tr. Day 2 (dkt. #36-2) 100:12-101:15, 127:24-130:17.) However, Lockery
apparently failed to draw out the fact that York’s records indicate Jones (or at least her phone) was
in Wisconsin in the days and weeks following the fire, which would appear to contradict Onopa’s
testimony that Jones was with him in Arlington Heights, Illinois at the time he claimed to have
recorded his discussion with her about the purported arson. (See id. 208:2-4, 208:24-25.)

8

A hearing on this post-conviction motion was held on June 6, 2018. At the hearing,
Jones’ former trial counsel, Attorney Jason Lockery, admitted that he: was aware of Ms.
Jones’ contacts with Officer Bornbach before the trial; had the information necessary to
obtain Officer Bornbach’s report before trial; and had requested that a public records
request be made for Officer Bornbach’s report three to four months before trial, but just
never followed up on the request. Also during the hearing, the court observed that it
considered the “most significan[t]” issue to be Jones’ trial attorney’s failure to object to the
admission of Onopa’s extortionate recording, concluding that “it would have been
inadmissible because it was made for an improper purpose for extortion and would
therefore be unlawful under section 968.31 of the statutes.” (Mills Decl., Ex. H (dkt. #388) 4.) On October 5, 2018, the government later conceded Jones’ post-conviction motion.
Three days later, the court granted Jones’ motion for a new trial and vacated her conviction.
Presumably because the state conceded the motion, the court did not issue a written
opinion when issuing its order vacating Jones’ conviction. On November 12, 2018, all
charges against Jones were dismissed.

C. Procedural History
Jones then filed the present suit against York, Adams County, and various unknown
employees of the Adams County Sheriff’s Department. In her operative complaint, she
alleged violations of her due process rights under the Fifth and Fourteenth Amendments
of the U.S. Constitution, conspiracy to deprive her of her constitutional rights, and
supervisor liability, all brought under 42 U.S.C. § 1983. She also alleged intentional
misrepresentation, negligent misrepresentation, negligent infliction of emotional distress,

9

malicious prosecution, and indemnification under Wisconsin state law. Defendants have
now moved for summary judgment on all of plaintiff’s claims.

OPINION
Summary judgment is appropriate if the moving party “shows that there is no
genuine dispute as to any material facts and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The court must view all facts and draw all inferences in the
light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
As an initial matter, plaintiff now agrees to the dismissal of her conspiracy and
supervisory liability claims. (Pl.’s Opp’n (dkt. #48) 5 n.1.) Additionally, plaintiff never
amended her complaint to identify any of the “unknown employees” named as defendants,
nor has she proposed any facts as to their liability, and so they, too, will be dismissed. See
Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made within a
specified time.”); see also Newhouse v. Johnson, No. 04-C-654, 2006 WL 2583429, at *8
(E.D. Wis. Sept. 6, 2006) (dismissing John Doe defendant at summary judgment after
plaintiff failed to identify or effectuate service of process on John Doe even after discovery).
That leaves plaintiff’s federal due process and state law claims against defendants York and
Adams County, which the court addresses below.

10

I. Constitutional Claims
Plaintiff argues that York violated her right to due process by withholding
exculpatory evidence from prosecutors, falsifying evidence, and testifying falsely at Jones’
criminal trial. (Pl.’s Opp’n (dkt. #48) 5-29.) She also contends that York “maliciously
caused a criminal complaint to be issued against her without probable cause.” (Id. at 5.)
The court will take up each of these arguments in turn.

A. Withheld Evidence
Under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor violates due process by
withholding material, exculpatory evidence, including evidence related to a witness’s
credibility, where the defendant’s guilt or innocence hinges on the reliability of that
witness’s testimony. See Giglio v. United States, 405 U.S. 150, 154-55 (1972). A corollary
of this rule is that police officers “must turn over potentially exculpatory evidence when
they turn over investigative files to the prosecution.” Harris v. Kuba, 486 F.3d 1010, 1014
(7th Cir. 2007). To prevail on such a claim against an officer, a plaintiff must show that
“(1) the evidence is favorable to him; (2) the evidence was concealed by the officer; and
(3) the concealed evidence resulted in prejudice.” Cairel v. Alderden, 821 F.3d 823, 832
(7th Cir. 2016) (citing Harris, 486 F.3d at 1014). Additionally, the general rule in a civil
Brady case is that the officer must have acted “intentionally or at least recklessly.” Id. at
832 n.2 (citing Daniels v. Williams, 474 U.S. 327 (1986)).
Significant to this case, however, withheld evidence may only support a Brady claim
if the evidence was “not otherwise available to the defendant through the exercise of
reasonable diligence.” United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002). Thus,

11

evidence that is known to the accused is not actionable under Brady. See Cairel, 821 F.3d
at 832. Additionally, a delay in disclosing evidence does not necessarily constitute a Brady
violation; it is only when the disclosure was made “too late for the defendant to make use
of the evidence.” O’Hara, 301 F.3d at 569.
Here, Jones asserts that York withheld various pieces of material and exculpatory
evidence from the prosecutor.

First, plaintiff claims that York did not provide the

prosecutor with the purported recording of Onopa and Jones confessing to the arson before
a charging decision was made. Specifically, according to plaintiff, “York only provided the
District Attorney’s Office with his police reports and did not provide the prosecutors with
a copy of the original recording or the alleged enhanced recording for their review in making
a charging decision.” (Pl.’s Opp’n (dkt. #48) 12.) Even assuming that plaintiff is correct
and York did not provide the actual recording to the prosecutor before the charging
decision, however, there is no dispute that the recording was eventually produced. Indeed,
it was played for the jury at trial. Plaintiff does not argue that the recording was provided
too late for Jones to make use of the evidence, and while blame might be shared by both
Jones and the district attorney’s office if the prosecutor failed to listen to it before making
the charging decision, no reasonable fact finder could find that the recording was
unlawfully withheld from Jones or her counsel.
Second, plaintiff criticizes York for failing to obtain and provide to the prosecutor
with Marshfield Police Officer Bornbach’s report, in which he summarizes Jones’
immediate report that Onopa had threatened her and put his hands on her neck. Albeit
second hand, that report also documents York’s apparent statement to Bornbach

12

confirming that Jones had told York about her physical altercation with Onopa. Again,
however, the problem with this argument is that Bornbach’s report was readily available to
Jones and her counsel through the exercise of reasonable diligence. In particular, (1) Jones
knew that she had called Bornbach to report Onopa’s behavior, and she so testified at trial;
(2) a voicemail left for York by Bornbach was played for the jury; and (3) York confirmed
at trial that Bornbach was the officer to whom Jones reported Onopa’s threats. Moreover,
at the June 6, 2018, post-conviction motion hearing, Jones’ former trial counsel admitted
that he was aware of Jones’ contacts with Bornbach and that he had the information
necessary to obtain Bornbach’s report, but simply failed to do so. This evidence shows
that Jones was or should have been aware of the Bornbach report, and she could have,
through the exercise of reasonable diligence, obtained the report herself. Therefore, while
troubling, York’s failure to disclose Officer Bornbach’s report is not actionable under Brady.
Finally, and most troubling, plaintiff challenges York’s failure to provide the
prosecutor (and as a result, the defense) with the March 21, 2013, recording of the
conversation between Jones and Onopa, which York acknowledges he recorded. However,
defendants contend that collateral estoppel precludes this claim, as the issue was fully
litigated in the underlying criminal case through a pretrial motion.

The doctrine of

collateral estoppel (more commonly referred to as issue preclusion) “bars the relitigation,
in subsequent proceedings between the same parties, of specific issues heard and decided
in their previous suit.” Amcast Indus. Corp. v. Detrex Corp., 45 F.3d 155, 158 (7th Cir.
1995). This doctrine has been held to apply to § 1983 plaintiffs who attempt to relitigate
in federal court issues decided against them in state criminal proceedings. Allen v. McCurry,

13

449 U.S. 90, 102 (1980). Whether litigation of an issue is precluded by collateral estoppel
“turns upon such factors as the nature of the decision (i.e., that it was not avowedly
tentative), the adequacy of the hearing, and the opportunity for review.” Amcast Indus.
Corp., 45 F.3d at 158 (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80,
89 (2d Cir. 1961)).
In Jones’ criminal case, the Adams County Circuit Court considered on her motion
to dismiss:

(1) whether the lost recording made by York of the March 21, 2013,

conversation was potentially or apparently exculpatory evidence; and (2) if so, whether the
Adams County Sheriff’s Office acted in bad faith in the handling of that evidence. After
considering arguments and evidence presented by the parties, including the sworn
testimony of York and Jones the court denied the motion. In so doing, the court explained
that it found the lost recording was neither apparently nor potentially exculpatory, and
regardless, there was no evidence of bad faith.
Here, in arguing that York’s failure to disclose the recording was a violation of due
process, plaintiff necessarily contends that the recording was material and exculpatory.
Understandably, therefore, she seeks to revisit the decision reached by the state circuit
court on this same issue, but all the relevant factors suggest that plaintiff should be
estopped from relitigating this issue. The state court’s decision that the lost recording was
not apparently or potentially exculpatory was final, not tentative.

Jones could have

appealed that ruling in her post-conviction motion, but chose not to do so, and nothing in
the post-conviction briefing or the order vacating Jones’ conviction called into question the
court’s decision regarding the lost recording. As to the adequacy of the hearing, the issue

14

was fully briefed and the subject of an evidentiary hearing, at which both Jones and York
testified. Certainly, the effectiveness of Jones’ trial counsel’s conduct was called into
question as to other aspects of the criminal proceedings, but his effectiveness in arguing
the exculpatory nature of the lost recording or the prosecutor’s bad faith was not raised in
Jones’ post-conviction briefing, and she does not now identify any flaws in his
representation of Jones as to these issues, particularly as to evidence or argument regarding
the court’s ruling of a lack of bad faith. 8 Accordingly, the court will not relitigate the state
court’s decision, and thus, plaintiff also cannot support a Brady claim on this third basis.

B. Fabricated Evidence
Plaintiff also argues that there is evidence from which a reasonable jury could find
that York falsified or misrepresented evidence provided to the prosecutor. To be sure,
courts have “consistently held that a police officer who manufactures false evidence against
a criminal defendant violates due process if that evidence is later used to deprive the
defendant of her liberty in some way.” Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th
Cir. 2012). However, plaintiff has identified no such evidence.

8

Jones also suggests that York’s treatment of the phone records was somehow unconstitutional.
(Pl.’s Opp’n (dkt. #48) 12-13.) As the court understands Jones’ argument, she primarily contends
that York caused a complaint to be issued against her even though he knew from the records that
Jones was not in Illinois when Onopa said she was having a conversation with him about the arson.
However, as discussed below, there is “no free-standing constitutional tort of malicious
prosecution.” Lewis v. City of Chicago, 914 F.3d 472, 479 (7th Cir. 2019). Moreover, to the extent
that plaintiff is asserting that the phone records could support a claimed Brady violation, this, too,
must fail because plaintiff does not and cannot argue that the phone records were not disclosed as
they were presented and discussed by both sides at trial. See O’Hara, 301 F.3d at 569 (belatedly
disclosed evidence may only support a Brady violation if the disclosure was made “too late for the
defendant to make use of the evidence”).

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In particular, plaintiff contends that “York falsified his police report of his [March
21] conversation with Jones regarding what she reported to York had occurred between
Jones and Onopa at the hotel in Marshfield, what she told York she told officer Bornbach,
and what conversations York had with Officer Bornbach in verifying Jones’ statements to
Bornbach.” (Pl.’s Opp’n (dkt. #48) 27.) As plaintiff points out, there are differences
between York’s report and the recording of his interview with Jones, as well as other
evidence in the record. In particular:
•

York did not mention in his report that Jones told him that Onopa had put his
hands on her throat, while the recording of the interview shows that Jones told
York “he had me by the throat.”

•

York wrote that Jones called the Marshfield police department to report a
theft, while in the recording, Jones told York that she called to report Onopa’s
behavior to the Marshfield Police Department the day after the incident. Only
later in the interview, did she say that Onopa took some of her belongings
from the motel room.

•

York did not memorialize his March 28 call with Bornbach in a police report,
although the parties do not dispute that the call occurred.

Unfortunately for plaintiff, these differences are not enough for a reasonable jury to
find that York fabricated or falsified his report. The “hallmark of a fabrication case” is that
the officer “created the evidence that [he] knew to be false.” Petty v. City of Chicago, 754
F.3d 416, 423 (7th Cir. 2014). While York certainly could have been more thorough and
detailed in his report, there is no evidence that York knew what he wrote or omitted writing
was false. The Seventh Circuit has explained in the context of the Fourth Amendment
that “the Constitution does not demand perfection.” Pulera v. Sarzant, 966 F.3d 540, 55556 (7th Cir. 2020); see also King v. Grams, No. 05-C-928, 2006 WL 1598679, at *8 (E.D.

16

Wis. June 2, 2006) (explaining that “it is not unexpected that one person’s memory of
specific details might diverge from another’s, or that a person’s own memory might not be
perfect in every detail,” but such discrepancies do not necessarily mean that “the witnesses
committed perjury or that the prosecutor knowingly made false remarks”). Here, while
York’s report was not perfect, his statements or omissions do not amount to a material,
constitutional violation.
Plaintiff also suggests that York incorrectly summarized his report regarding the
recording of Jones purportedly confessing to arson. According to plaintiff, York did not
disclose to the prosecutor that the woman’s voice on the recording was “inaudible.” (Pl.’s
Opp’n (dkt. #48) 11.) To the contrary, York did include in his report that the voices were
difficult to hear clearly, although he believed the female voice to be Jones based on his own
interactions with her. Even if York arguably had reason to suspect that Jones was not
present for the recorded conversation Onopa claimed he had with her in Illinois -- having
been given phone records indicating she (or again, at least her phone) was in Wisconsin
during that time period9 -- plaintiff runs into a problem of proving causation. Specifically,
both the phone records and the recording were presented for the jury at trial, and from the
court’s review of the trial transcript, York did not repeat his opinion that the female voice
was Jones for the jury. Thus, plaintiff would be hard-pressed to prove a causal connection
between the report and Jones’ conviction.

See Whitlock, 682 F.3d at 582 (to state a

9

It is not entirely clear that plaintiff even is making this argument in her brief. (See Pl.’s Opp’n
(dkt. #48) 12-13.) Nevertheless, for thoroughness the court will consider it here.

17

constitutional claim under § 1983, officer’s act of fabrication must have caused plaintiff’s
injury).

C. False Trial Testimony
Plaintiff also accuses York of lying to the jury.

(Pl.’s Opp’n (dkt. #48) 27.)

However, this argument is squarely foreclosed by the rule that trial testimony, including
false testimony from a law enforcement officer, is not actionable under § 1983. See Briscoe
v. LaHue, 460 U.S. 325, 326 (1983) (holding that § 1983 does not authorize a plaintiff to
assert a claim for damages against a police officer for giving perjured testimony at his
criminal trial); Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995) (“In Briscoe, the Court
held that a police officer had absolute immunity from suit under § 1983 for giving perjured
testimony at the defendant's criminal trial.”) (citing Briscoe, 460 U.S. at 326). Plaintiff
points to Avery v. City of Milwaukee, 847 F.3d 433 (2017), for the proposition that “an
officer who withholds exculpatory evidence and then testifies falsely is not protected by
qualified or absolute immunity.” (Pl.’s Opp’n (dkt. #48) 29.) But what Avery actually
holds is that an officer who fabricates evidence cannot immunize himself from liability by
authenticating falsified evidence at trial and then repeating the same false facts in his trial
testimony. 847 F.3d at 441. Thus, Avery does not repudiate the general rule that witnesses
are immune from suit under § 1983 for the testimony they give in a criminal trial.

D. Probable Cause
Plaintiff also spends much of her brief arguing that York wrongfully caused a
complaint to be issued against Jones without probable cause, but fails to explain how these

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allegations give rise a constitutional claim. See Albright v. Oliver, 510 U.S. 266, 271 (1994)
(“The first step in any [§ 1983] claim is to identify the specific constitutional right allegedly
infringed.”).

Because there exists “no free-standing constitutional tort of malicious

prosecution,” a plaintiff must rely on other constitutional rights to protect against “abusive
arrests and fabrication of evidence.” Lewis, 914 F.3d at 479 (internal quotations and
alterations omitted); see also Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018).
Here, plaintiff does not allege that she was detained before trial, and so, she cannot
raise a Fourth Amendment claim of pretrial detention without probable cause. Manuel v.
City of Joliet, Ill., 137 S. Ct. 911, 918 (2017). Regardless, her allegations of fabricated or
suppressed evidence are discussed under the Due Process framework above, which further
demonstrates a lack of proof.

Accordingly, plaintiff has identified no other relevant

constitutional claim, and the court can only conclude that she has not stated a federal
constitutional claim for the alleged issuance of a complaint against her without probable
cause.

E. Monell Claim
In addition to the claims made through York’s conduct, plaintiff purports to state a
§ 1983 claim against Adams County itself under the framework established by the Supreme
Court in Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 660 (1978). To
sustain this claim, however, plaintiff must prove that she suffered a constitutional injury,
that a policy or widespread custom of falsifying or withholding evidence existed, and that
such a policy or custom was the “direct cause” or “moving force” of her constitutional
injury. See Bd. of Cnty. Comm. of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997).

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Because the court has found no constitutional injury, Jones’ Monell claim must
necessarily be dismissed.

See Jenkins v. Bartlett, 487 F.3d 482, 494 (7th Cir. 2007)

(“[B]ecause Officer Bartlett did not violate Mr. Jenkins' constitutional rights, there can be
no Monell liability on the part of the City or Chief Jones.”); Sallenger v. City of Springfield,
Ill., 630 F.3d 499, 505 (7th Cir. 2010) (summarily dismissing Monell claim where no
underlying constitutional violation found). Moreover, plaintiff’s offer of proof of an even
colorable constitutional claim is wholly devoid of proof of a policy or widespread custom.
Accordingly, plaintiff’s Monell claim must be dismissed as well.

II. State Law Claims
Having dismissed plaintiff’s federal claims, there remains the question as to whether
the court should exercise supplemental jurisdiction over plaintiff’s remaining state law
claims.

To begin, there exists a general presumption that federal district courts will

relinquish jurisdiction over any supplemental state-law claims where, as here, all federal
claims are dismissed before trial. RWJ Mgmt. Co. v. BP Prod. N. Am., Inc., 672 F.3d 476,
479 (7th Cir. 2012). Although this presumption is rebuttable, “it should not be lightly
abandoned.” Id. (quoting Khan v. State Oil Co., 93 F.3d 1358, 1366 (7th Cir. 1996)).
Here, no compelling reasons weight in favor of retaining jurisdiction over the pendant state
law claims. On the contrary, given the gravity of Jones’ allegations against defendants, it
is best for Wisconsin courts to decide what, if any, state remedy is available. Therefore,
the court will dismiss these claims without prejudice.

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ORDER
IT IS ORDERED that:
1) Plaintiff’s unopposed motion to amend/correct her brief in opposition (dkt.
#47) is GRANTED.
2) Defendants’ motion for summary judgment (dkt. #33) is GRANTED.
Entered this 26th day of April, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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