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Moore v. Peterson

United States District Court, E.D. Wisconsin

December 1, 2016

ETHAN W. MOORE, Plaintiff,


          NANCY JOSEPH United States Magistrate Judge

         Ethan 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.


         The 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 party.” Id.

         In 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)).


         To 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.[1]

         Moore 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.

         Officer 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.


         Moore 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.

         As the 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.[2] (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, specifically:

- 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 ¶¶ 12-13.)
- 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 ...

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