United States District Court, E.D. Wisconsin
ETHAN W. MOORE, Plaintiff,
MATTHEW D. PETERSON, UNITED HOSPITAL SYSTEM, JANE AND JOHN DOE DOCTORS, NURSES, EMPLOYEES, STAFF IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY, JOINTLY AND SEVERALLY, RICK SCHMIDT - ADMINISTRATOR, Defendants.
DECISION AND ORDER ON PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND DEFENDANTS' MOTION FOR SUMMARY
JOSEPH United States Magistrate Judge
W. Moore brings this lawsuit alleging that the
defendants-Matthew D. Peterson, United Hospital System, Jane
and John Doe Doctors, Nurses, Employees, Staff in their
individual and official capacity, jointly and severally, and
Rick Schmidt-violated his Fourth Amendment and Eighth
Amendment rights by conducting a blood draw without a
warrant. Both Moore and the defendants have moved for summary
judgment. (Docket # 35, Docket # 37.) For the reasons that
follow, Moore's motion is denied and the defendants'
motion is granted and the case will be dismissed.
Additionally, Moore's motion to amend his complaint is
denied, as is his motion to appoint counsel. His motion to
proceed in forma pauperis is denied as moot.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). “Material
facts” are those under the applicable substantive law
that “might affect the outcome of the suit.”
See Anderson, 477 U.S. at 248. The mere existence of
some factual dispute does not defeat a summary judgment
motion. A dispute over a “material fact” is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
evaluating a motion for summary judgment, the court must draw
all inferences in a light most favorable to the nonmovant.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). However, when the
nonmovant is the party with the ultimate burden of proof at
trial, that party retains its burden of producing evidence
which would support a reasonable jury verdict. Celotex
Corp., 477 U.S. at 324. Evidence relied upon must be of
a type that would be admissible at trial. See Gunville v.
Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive
summary judgment, a party cannot rely on his pleadings and
“must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
at 248. “In short, ‘summary judgment is
appropriate if, on the record as a whole, a rational trier of
fact could not find for the non-moving party.'”
Durkin v. Equifax Check Services, Inc., 406 F.3d
410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. &
Assoc., Inc., 330 F.3d 991, 994 (7th Cir. 2003)).
begin, I note that Moore has failed to comply with Civil L.R.
56 (E.D. Wis.), both by failing to submit his own proposed
findings of fact pursuant to Rule 56(b)(1)(C) and by failing
to respond to the defendants' proposed findings of fact.
While I could dismiss his motion for summary judgment on the
basis of his failure to file his own proposed findings of
fact, Civil L.R. 56(b)(1)(C)(iii), I will allow his motion to
go forward. That said, all of the defendants' proposed
findings of fact will be taken as true because Moore failed
to respond to them.
was pulled over by Pleasant Prairie Police Officer Aaron D.
Schaffer in the early morning of August 3, 2013. Officer
Schaffer suspected, based on Moore's driving, that Moore
was intoxicated. Once Moore was stopped, Officer Schaffer
administered a standardized field sobriety test. Another
officer, Carolyn Bugalecki, also arrived on the scene to
assist Officer Schaffer. Moore agreed to submit to a
preliminary breath test, which returned a result of .189.
Officer Schaffer then read Moore the “Informing the
Accused” form, and Moore stated that he would not
voluntarily submit to an evidentiary blood draw. Schaffer
completed an Affidavit for Search Warrant for Blood Draw. He
gave the form to Officer Bugalecki to have it notarized and
reviewed by a judge, and he proceeded to escort Moore to
Kenosha Memorial Hospital.
Bugalecki stayed on scene until Moore's car was towed,
and then she drove the warrant paperwork to the Kenosha
Sheriff's Department to have the warrant affidavit
notarized by a sergeant. Once the sergeant notarized the
affidavit, Officer Bugalecki took it back to the Pleasant
Prairie Police Department where Lieutenant Paul D. Merik
scanned the affidavit into an email, which he sent to Judge
David M. Bastianelli who was serving as the “on
call” judge in Kenosha County. After receiving the
signed and notarized affidavit at 3:00 a.m., he swore in
Officer Bugalecki over the telephone and examined the
affidavit. Judge Bastianelli agreed that a warrant should be
issued, and he filled out and signed the “Search
Warrant for Blood Draw, ” which he emailed back to
Lieutenant Marik at 3:10 a.m. The time indicated on the
warrant reads “3:40, ” but it should read
“3:04.” Once Lieutenant Marik learned that Judge
Bustianelli signed the warrant, he, in the presence of
Officer Bugalecki, called Officer Schaffer to let him know
that the warrant had been signed by the judge. The
phlebotomist, Mark Peterson, having been informed that a
warrant had issued, took the first blood draw at 3:33 a.m.
and a second draw at 4:38 a.m.
alleges that the blood draw, the first of which was taken at
3:33 a.m., violated his Fourth and Eighth Amendment rights
because the time on the warrant reads 3:40 a.m. The
defendants make several arguments as to why they are entitled
to summary judgment: because Moore's lawsuit is based
upon a demonstrably erroneous assumption of fact-
specifically, the time of the issuance of the warrant; that
the suit should be dismissed because the plaintiffs are
private, not state, actors; that even if Peterson was acting
under color of state law, he would be entitled to qualified
immunity; that any claims against Rick Schmidt and UHS are
insufficient to establish a constitutional violation as a
matter of law; and that Moore's blood draw claim is
insufficient to establish an Eighth Amendment violation.
defendants note, Moore's lawsuit rests on his belief that
the judge did not sign the warrant for the blood draw until
3:40 a.m., seven minutes after the first blood draw. Indeed,
in his complaint, he concedes that that if the warrant was
signed prior to the blood draw, there would be no
constitutional violation. (Compl., Docket # 1 at 10.) Moore is
correct that time written on the warrant is
“3:40.” (Exh. B to Affidavit of Officer Aaron D.
Schaffer (“Schaffer Aff.”), Docket # 41-2; Exh. F
to Affidavit of Lieutenant Paul D. Marik (“Marik
Aff.”), Docket # 42-6; Exh. C to Affidavit of Judge
David M. Bastianelli (“Bastianelli Aff.”).)
However, the defendants have presented other evidence that
the warrant was signed at 3:04 am, rather than 3:40,
- The sworn affidavit of Officer Aaron D. Schaffer, who avers
that he was told via telephone at 3:16 a.m. that the warrant
had been signed, and that Officer Bugalecki presented him
with a hard copy of the signed search warrant, a copy of
which was given to Moore. (Schaffer Aff., Docket # 41 at
- The sworn affidavit of Lieutenant Paul D. Marik, who avers
that he emailed a scan of the signed and notarized
“Affidavit for Search Warrant for Blood Draw” at
3:00 a.m. He avers that he received via email a copy of the
signed search warrant at 3:10 a.m. from Judge Bastianelli,
and that he then called Officer Schaffer to advise him that
the warrant had been signed. (Marik Aff., Docket # 42 at
¶¶ 12-17.) A copy of the email sent from Judge
Bastianelli to ...