United States District Court, W.D. Wisconsin
TAMARA M. LOERTSCHER, Plaintiff,
ELOISE ANDERSON, BRAD D. SCHIMEL, TAYLOR COUNTY, AMBER FALLOS, LIZA DALEIDEN, and JULIE CLARKSON, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
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.
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.
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’ MOTION TO DISMISS FOR MOOTNESS
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.
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).
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.
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.
state defendants’ motion to dismiss for mootness is
DEFENDANTS’ MOTION TO DISMISS
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,
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).
"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.
Factual background relevant to the county defendants’
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.
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
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.
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.)
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. ¶ 53. And, with
Daleiden, she met with Loertscher after the contempt
hearing, stated that "we just want a healthy baby,
" and ...