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Sundsmo v. Burch

United States District Court, W.D. Wisconsin

January 31, 2017

LEONARD JOHN SUNDSMO, Plaintiff,
v.
DEREK BURCH, MIKE PICHLER, MARK R. SCHAUF and RYAN LABROSCIAN, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Leonard John Sundsmo brings claims against law enforcement officials from the city of Baraboo, Sauk County, and state of Wisconsin for an allegedly illegal search and arrest on November 4, 2014. In a March 14, 2016 order, I dismissed several of Sundsmo's claims. Dkt. 117.

         I dismissed Sundsmo's (1) official capacity claims against defendants Elena Leon (Sundsmo's probation agent) and Kevin Calkins (the district attorney) because they cannot be sued for money damages in their official capacities; (2) state-law claims against Calkins, Leon, and Derek Burch (a deputy) because Sundsmo failed to comply with Wisconsin's notice-of-claim statutes; (3) Fourth Amendment claim against Leon for her role in issuing an apprehension request, on qualified immunity grounds; and (4) Fourth Amendment claims against defendants Calkins, Burch, and Ryan Labroscian, Mike Pichler, and Mark Schauf of the Baraboo Police Department regarding the entry into Sundsmo's girlfriend's home and the fact of his arrest, on qualified immunity grounds because Leon had issued an apprehension request. This left only Sundsmo's Fourth Amendment excessive force claims against defendants Burch, Labroscian, Pichler, and Schauf, and his parallel state-law assault claims against Labroscian, Pichler, and Schauf.

         There are now several motions pending. Sundsmo has filed a document titled "Objection" to the March 14, 2016 order, Dkt. 121, which I take to be a motion for reconsideration, as well as a motion for judgment in his favor. Sundsmo has also filed a document titled "Objection" to Calkins and Leon's brief in opposition to the reconsideration motion, in which he asks for judgment to be entered in his favor. Dkt. 128. I will consider this to be his reply brief. There is also still an unresolved question whether defendant Burch was properly served with a summons. The parties have submitted dueling affidavits on that question. Finally, Burch and the Baraboo Police Department defendants have each filed motions for summary judgment.

         As discussed further below, I will deny Sundsmo's motion for reconsideration and grant the Baraboo Police Department defendants' motion for summary judgment. I will direct defendant Burch to explain whether he wishes to continue litigating the summons issue or have the court reach the merits of his parallel motion for summary judgment.

         OPINION

         A. Sundsmo's motion for reconsideration of the March 14, 2016 order

         This court retains the power to reconsider its previous decisions. See Fed. R. Civ. P. 54(b) (courts may revise interlocutory decisions "at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities"). But it should only do so "if there is a compelling reason, such as a change in, or clarification of, law that makes clear that the earlier ruling was erroneous." Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006).

         Parts of Sundsmo's briefs in support of this motion reiterate unsuccessful arguments he made previously, such as that he could not be arrested based on an apprehension request, but he does not provide a persuasive reason to reconsider my previous rulings. He also incorrectly states that I did not consider individual capacity claims against defendants Calkins and Leon. The bulk of his briefs contains arguments related to frivolous "sovereign citizen" theories of government illegitimacy. See, e.g., United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (argument that individual is sovereign citizen of state who is not subject to jurisdiction of United States and not subject to federal taxing authority is "shopworn" and frivolous); Bechard v. Rios, No. 14-CV-867-WMC, 2014 WL 7366226, at *1 (W.D. Wis. Dec. 24, 2014) (case dismissed where plaintiff "maintain[ed] that the social security number that issued along with his birth certificate ... is really an identification number for a German-owned insurance policy."). In particular, Sundsmo argues that my previous rulings are unlawful because I am "impersonating" an Article III judge and instead have been acting under the authority of an Article IV territorial court. These arguments are frivolous and I will not consider them further. Because nothing in Sundsmo's briefs persuades me that my rulings in the March 14 order were incorrect, or that Sundsmo should be granted judgment on any of his claims, I will deny his motion for reconsideration.

         B. Defendants' Pichler, Schauf, and Labroscian's motion for summary judgment

         There are two motions for summary judgment currently before the court: one filed by defendant Burch and another filed by defendants Pichler, Schauf, and Labroscian. As discussed further below, I cannot address the merits of Burch's summary judgment motion until I resolve Burch's motion to dismiss for lack of proper service. But I can address Pichler, Schauf, and Labroscian's motion. Their proposed findings are set forth below, along with proposed findings from Burch's motion that they seek to incorporate by reference.

         Sundsmo's responses to both summary judgment motions do not substantively address the arguments made by defendants in their briefs, nor do they include responses to defendants' proposed findings of fact, or even Sundsmo's own proposed findings. Instead, Sundsmo objects to the various documents defendants have submitted for various reasons the court has previously determined to be meritless, such as that defendants' attorneys' electronic signatures are invalid, that the attorneys are impermissibly testifying to matters of which they have no personal knowledge, and that defendants' filings are invalid because their attorneys must be registered under the Foreign Agents Registration Act.

         Sundsmo's failure to provide any proposed findings of fact opposing the motions for summary judgment violates this court's summary judgment procedures. See "Motions for Summary Judgment, " Dkt. 130-1, attached to the court's Preliminary Pretrial Conference Order. I will consider defendants' facts to be undisputed. Id., at § II.C. ("[u]nless the responding party puts into dispute a fact proposed by the moving party, the court will conclude that the fact is undisputed"). I note that Sundsmo failed to submit proposed findings even after the court specifically instructed him to substantively respond to Burch's proposed findings following Burch's own belated submission of proposed findings in support of his motion:

I warn plaintiff that his summary judgment responses should substantively address the issues in this case having to do with the search and arrest. Plaintiff's brief opposing Burch's (admittedly incomplete) motion for summary judgment does not address the substance of his claims. Rather, plaintiff contends that all of Burch's submissions should be disregarded as failing to comply with the Foreign Agents Registration Act. This is nothing more than a rehash of plaintiff's previous attempts to raise long-discredited "sovereign citizen" legal theories about how to properly file legal documents in federal court. These arguments have no traction in this court and they are not going to get plaintiff anywhere. Whether he likes it or not, plaintiff needs to adjust his mind set and his submissions in this lawsuit.

Dkt. 161 at 2.

         Therefore, I will consider defendants' version of the events be undisputed, with one ...


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