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Loertscher v. Anderson

United States District Court, W.D. Wisconsin

June 6, 2016


          OPINION & ORDER


         Pursuant to 1997 Wis. Act 292, state authorities may treat a fetus of any gestational age as a child in need of protective services (CHIPS) if the "expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk of harm" to the fetus. Wis.Stat. § 48.193. Plaintiff Tamara M. Loertscher brings this suit under the authority of 42 U.S.C. § 1983, contending that Act 292 is unconstitutional. Her original complaint brought only a facial challenge to the law, but she has amended her complaint to add an as-applied challenge, as well as claims for money damages against Taylor County, Amber Fallos, Liza Daleiden, and Julie Clarkson. Loertscher contends that these county defendants violated her constitutional rights when they enforced Act 292 against her.

         This opinion and order addresses two motions now before the court. First, defendants Eloise Anderson and Brad D. Schimel (who the court will refer to as "the state defendants") again move to dismiss the case for mootness, this time because Loertscher has moved out of state. Dkt. 68. The court will deny this motion, because under the capable of repetition yet evading review doctrine, standing does not depend strictly on Loertscher’s personal situation.

         Second, the Taylor County defendants have moved to dismiss Loertscher’s claims against them, pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 83. The county defendants contend that they are entitled to absolute or, at the very least, qualified immunity from suit. The county defendants also contend that Loertscher has failed to state a claim against Taylor County because the amended complaint does not identify a county policy, practice, or procedure responsible for the alleged constitutional violations. The court will grant the county defendants’ motion with respect to the individual defendants because they are entitled to at least qualified immunity. Loertscher’s constitutional rights may have been violated; that is the ultimate issue in this case. But when viewed at the appropriate level of specificity, Loertscher’s rights were not so clearly established that the individual defendants would have known that they were violating her rights by enforcing Act 292. The court will deny the motion with respect to Taylor County itself because Loertscher has adequately alleged that her rights were violated pursuant to a Taylor County policy or practice.


         Defendants Eloise Anderson and Brad D. Schimel have again moved to dismiss Loertscher’s claims as moot. Dkt. 68; see also Dkt. 48. The facts of this case have been detailed extensively in a previous order, Dkt. 61, so the court need not repeat them here. The only new fact pertinent to the state defendants’ motion is that Loertscher has recently moved out of Wisconsin. The state defendants contend that because Loertscher has moved out of Wisconsin, she no longer faces any risk of being subjected to Act 292. The state defendants emphasize that her move was voluntary, although Loertscher alleges that she moved in part because of her fear of harassment or future intervention by local officials related to the issues in this case.

         A case is moot "when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013) (citations and quotation marks omitted). For example, if there is no reasonable expectation that the conduct will recur, or if interim "events have completely and irrevocably eradicated the effects" of the alleged conduct, then there is no longer a reason to decide it. Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). "But a case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Chafin, 133 S.Ct. at 1023 (internal citations and quotation marks omitted). As the party asserting mootness, the state defendants bear the burden of persuasion on the issue. Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 491 (7th Cir. 2004).

         In denying the state defendants’ previous motion to dismiss for mootness, the court concluded that Loertscher’s case was capable of repetition yet evading review because other women will continue to be subject to Act 292. Dkt. 61, at 17-19. Loertscher’s requested declaratory judgment would apply not only to the actions taken against Loertscher, but also to the state’s enforcement of Act 292 against other women, allegedly hundreds every year. Accordingly, the case attacks an ongoing policy that "has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties." Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974); see also Milwaukee Police Ass’n v. Bd. of Fire & Police Comm’rs of Milwaukee, 708 F.3d 921, 931 (7th Cir. 2013) (collecting cases). The court was also very aware of "the fact that a significant class of federal claims might continually escape adjudication[.]" U.S. ex rel. Fitzgerald v. Jordan, 747 F.2d 1118, 1119 (7th Cir. 1984).

         Loertscher’s move out of Wisconsin does not change any of these considerations. The state defendants apparently stand ready to enforce Act 292 across the state, but the proceedings are still shrouded in confidentiality, making it difficult to determine the extent of enforcement. Because the conduct is still capable of repetition yet evading review, the issues in this case are still very much alive. Loertscher’s amended complaint, in which she asserts a claim for damages, adds another dimension to the standing analysis. If these claims survive (and one will, as discussed in the next section), the court will have to consider the merits of Loertscher’s case even if her claims for declaratory and injunctive relief were not viable.

         The state defendants’ motion to dismiss for mootness is denied.


         A motion to dismiss pursuant to Rule 12(b)(6) tests the complaint’s legal sufficiency. To state a claim upon which relief can be granted, a complaint must provide only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8 "does not require ‘detailed factual allegations, ’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.] . . . Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555 (internal citations and quotation marks omitted).

         The "court must accept the complaint’s well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiff’s favor." Transit Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). Accordingly, for purposes of this motion, the court draws the facts from the amended complaint. Dkt. 66.

         A. Factual background relevant to the county defendants’ motion

         Loertscher has sued Taylor County and three of its employees: Amber Fallos, Taylor County Department of Human Services agency director; Liza Daleiden, Taylor County Department of Human Services deputy director; and Julie Clarkson, Taylor County Department of Human Services social worker. Again, most of the background facts are set out in a previous order, Dkt. 61, so the court summarizes here only the allegations relevant to the county defendants’ motion.

         When Loertscher came to believe that she might be pregnant, she sought medical care from the Taylor County Department of Human Services (TCDHS). Unnamed TCDHS personnel referred Loertscher to the Eau Claire Mayo Clinic emergency room. On August 1, 2014, Loertscher went to the Mayo Clinic emergency room for treatment. Mayo Clinic personnel tested Loertscher’s urine, which confirmed that she was pregnant but also showed that she had used marijuana, amphetamine, and methamphetamine. Loertscher was voluntarily admitted to the Mayo Clinic Behavioral Health Unit (BHU) for in-patient psychiatric and medical care on a short-term basis.

         A day or so later, August 2 or 3, 2014, personnel from the Mayo Clinic informed TCDHS of Loertscher’s pregnancy and drug test results. The court infers from the amended complaint that TCDHS took steps that led to the filing of the CHIPS petition against Loertscher. The amended complaint alleges that an unknown person, sued as a John/Jane Doe defendant here, signed a "Temporary Physical Custody Request, " Dkt. 16-1, which effectively converted Loertscher’s voluntary admission to the Mayo Clinic BHU to an involuntary detention there. About the same time, a Taylor County court commissioner appointed a guardian ad litem for Loertscher’s fetus.

         On August 5, 2014, Loertscher was taken by Mayo Clinic social workers to a conference room, where she was given a copy of the as-yet-unsigned CHIPS petition. Taylor County Court Commissioner Gregory Krug was on the phone, prepared to conduct a hearing on the petition. Also on the phone were Taylor County Corporation Counsel Courtney Graff, the GAL for Loertscher’s fetus, Michael Schiffler, and two of the three individual county defendants, Julie Clarkson and Liza Daleiden. (A transcript of the hearing was attached to the original complaint. Dkt. 1-2.)

         The specific allegations against the three individual county defendants are as follows:

Clarkson told a Mayo Clinic social worker that the court had ordered Loertscher to remain at the Mayo Clinic until human services could take her to a residential treatment facility. Dkt. 66, ¶ 38. Clarkson was also present at the August 25, 2014, contempt hearing. Id. ¶ 49. She testified that Loertscher had failed to abide by the August 5, 2014, order by refusing to submit to in-patient treatment. Id. ΒΆ 53. And, with Daleiden, she met with Loertscher after the contempt hearing, stated that "we just want a healthy baby, " and ...

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