United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
previous order, Dkt. 42, I identified problems with the
complaint in this case. Now before the court is plaintiff
Ricky Soper's attempt to fix those problems. Dkt. 44. I
begin with some background.
case arises out of a search and seizure of pro se plaintiff
Ricky Soper's property by various law enforcement
officials. Much of Soper's original complaint focused on
defendants' alleged failure to return property that was
unrelated to the charged crime, selling marijuana. In the
January 6, 2017 order, Dkt. 42, I considered whether
Soper's allegations stated a claim under the Due Process
Clause or the Takings Clause of the United States
Constitution. I concluded that Soper did not have a claim
under the Due Process Clause because he had an adequate
remedy under Wis.Stat. § 968.20, which allows a person
to seek the return of seized property in state court. I
concluded that Soper did not have a claim under the Takings
Clause because that clause does not apply to property seized
in the context of a criminal investigation. I also dismissed
claims that defendants violated the Fourth Amendment by
searching his home and seizing his property without a warrant
and by recording Soper and his family while they were outside
the house. However, I concluded that Soper had adequately
alleged that defendants had conducted the search in an
unreasonable manner, in violation of the Fourth Amendment, by
''throwing air conditioning duct work on''
his car and using a ''simulator grenade''
outside his house. Dkt. 15 at 2. See also Petkus v.
Richland County, Wisconsin, 767 F.3d 647, 652-53 (7th
Cir. 2014) (upholding jury verdict that officers violated
Fourth Amendment by causing “needless damage on
[plaintiff's] property” in context of search).
problem with Soper's claim regarding the reasonableness
of the search was that he had not identified which officers
had allegedly harmed his duct work and used the grenade.
Accordingly, I gave Soper an opportunity to clarify that
response, Dkt. 44, Soper attempts to reargue many claims that
the court dismissed. However, there is nothing in Soper's
submission showing that I erred in dismissing many of his
claims, so I decline to discuss those further. Plaintiff also
cites Wis.Stat. § 968.20 as a basis for requiring
defendants to return his property, but federal courts do not
have authority to require public officials to comply with
state law. Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 101 (1984). If Soper believes
that he is entitled to a return of his property under §
968.20, he will have to seek relief in Wisconsin state court.
his claim regarding damage to his property and use of the
grenade (which he now calls a “flash grenade”
rather than a “simulator grenade”), Soper says
that he does not know which officers were involved because
those events occurred outside while he was detained inside
his house. Dkt. 44, at 2. In this circuit, when a plaintiff
does not know the identity of a particular defendant, the
general rule is that the plaintiff should be permitted to
conduct discovery to learn the information that he needs.
Donald v. Cook County Sheriff's Department, 95
F.3d 548, 555 (7th Cir. 1996); Duncan v. Duckworth,
644 F.2d 653, 655-56 (7th Cir. 1981). Accordingly, I will
allow Soper to proceed against those officers that he has
served with his complaint because I understand him to be
alleging that each of those officers was involved in the
search of his home.
dismiss the defendants not served: Wayne Kropidlowski, Brian
Manderville, Dale O'Kray, Dan Wachowiak, Travis Morgan,
Travis Levandowski, Jason Meidl, Ryan Hoffman, Jared Mayer,
Matthew McDonald, Kevin Flick, and Kimberly DesRosier. I
instructed Soper in the January 6 order that these defendants
would be dismissed if he did not file proof of service, Dkt.
42, at 8, which he has failed to do. In fact, Soper admits
that he has not served and has no intention of serving these
defendants. Dkt. 44, at 4.
it is possible that the served individual defendants do not
have custody or control over information that Soper needs, I
will allow Soper to proceed against Portage County as well.
Although Soper incorrectly named nonsuable entities
“Portage County Sheriff's Department” and the
“Portage County Sheriff's Office Special Response
Team” in his caption, I will substitute Portage County
because Soper served the complaint on the clerk of court for
Portage County, Dkt. 6, at 5, who may accept service for the
county. Fed.R.Civ.P. 4(j)(2)(B) (complaint against local
government may be served in accordance with state law);
Wis.Stat. § 801.11(4) (complaint against county may be
served on clerk of court).
Soper's burden to prove his claim against each defendant,
so it will be up to Soper to conduct discovery to learn the
identities of the officer or officers involved in the alleged
use of the grenade and property damage. Neither defendants
nor the court will do this for him. Soper may wish to review
the Federal Rules of Civil Procedure related to discovery,
such as Rule 26 through Rule 36 and Rule 45. If Soper is
unable to prove at summary judgment or trial that particular
defendants violated his Fourth Amendment rights by using a
grenade or damaging his property needlessly, the claim may be
dismissed. Also, if Soper learns that an officer who is not a
defendant is responsible for these actions, he will have to
arrange for service on that officer or the claim will be
light of the discovery that Soper will need to do, the March
10, 2017 deadline for summary judgment motions is not
realistic. Accordingly, I am striking the schedule and
directing the clerk of court to set a new scheduling
conference before Magistrate Judge Stephen Crocker.
closing, I remind Soper that the only claim remaining in this
case is that officers searched his home in an unreasonable
manner by using a grenade and damaging his property. In the
future, the court will disregard any references that Soper
makes to other claims.
Portage County is SUBSTITUTED for defendants “Portage
County Sheriff's Department” and “Portage