United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
proposed civil action for monetary relief, pro se plaintiff
Stephen Kowalewski is alleging that defendants Keith and
Angela Torgerud and several unknown individuals working with
them removed his 14-year-old daughter from his home without
his consent, a warrant or probable cause, in violation of his
constitutional rights and various state laws. Because
plaintiff is proceeding under the in forma pauperis statute,
28 U.S.C. § 1915, and cannot afford to make an initial
partial payment, I must screen his complaint and dismiss any
claims that are legally frivolous, malicious, fail to state a
claim upon which relief may be granted or ask for money
damages from a defendant who by law cannot be sued for money
damages. 28 U.S.C. § 1915(e)(2)(B).
I cannot review the potential merits of plaintiff's
claims at this time because his pleading does not provide
enough information to support a federal claim, as required by
Rule 8 of the Federal Rules of Civil Procedure. Although I am
dismissing plaintiff's complaint, I will give him an
opportunity to file an amended complaint that explains his
claims more clearly.
alleges the following facts in his complaint.
Stephen Kowalewski entered the hospital for tests on January
12, 2017. That same day, “defendants” removed his
14-year old daughter from his home in Galesville, Wisconsin
without his knowledge or consent. On January 13, 2017, the
Galesville Police Department and the Trempealeau County
Department of Human Services “broke the code” on
his garage door and entered his home without his consent, a
warrant or probable cause. After plaintiff told the police
and human services employees that he expected to see his
daughter getting off the school bus that afternoon at 3:50
p.m., they left his garage but said nothing about the
whereabouts of his daughter. Plaintiff later found a note in
his driveway that stated that his daughter was in the custody
of the human services department. He called a number on the
business card left with the note and was told that his
daughter was staying with defendants Keith and Angela
threshold question in any case is whether the court has
jurisdiction over any of the claims that plaintiff is trying
to bring. Federal courts have limited jurisdiction, which
means that they may hear a case only if Congress or the
Constitution authorize it. As a result, I must determine
whether subject matter jurisdiction exists, even if none of
the parties raise the issue. McCready v. White, 417
F.3d 700, 702 (7th Cir. 2005).
a federal court may exercise jurisdiction over a case in one
of two situations: (1) the plaintiff brings a claim that
arises under federal law, 28 U.S.C. § 1331; or (2) the
plaintiff and defendants are citizens of different states and
the amount in controversy is greater than $75, 000. 28 U.S.C.
§ 1332. Because plaintiff alleges that he and all of the
defendants are residents of Wisconsin, he must bring a claim
that arises under federal law for his case to remain in this
court. Under 28 U.S.C. § 1367, a federal court may
exercise supplemental jurisdiction over a plaintiff's
properly pled state law claims, but only if those claims are
related to federal claims in the same case.
alleges generally that he is bringing 14 causes of action,
including intentional and negligent infliction of emotional
distress, custody interference, malicious and outrageous
conduct, extortion, criminal trespassing, fraud, false arrest
and imprisonment, malicious prosecution and misuse of the
courts, loss of liberty and consortium, slander, libel and
defamation. However, most of these causes of action are
either crimes for which he may not bring a private civil
enforcement action, Israel Aircraft Indusustries Ltd. v.
Sanwa Business Credit Corp., 16 F.3d 198, 200-01 (7th
Cir. 1994) (“No case during the last generation creates
a private right of action to enforce a statute cast in the
form of a criminal prohibition.”), or state law tort
claims over which this court does not have subject matter
jurisdiction unless plaintiff can state a federal claim upon
which relief may be granted. I will discuss the possible
federal claims that plaintiff may have below.
Potential Federal Claims
42 U.S.C. § 1983, plaintiff may bring a claim against a
“person” acting under color of state law who
deprived him of rights or privileges protected by the United
States Constitution or federal laws. Parratt v.
Taylor, 451 U.S. 527, 535 (1981). Plaintiff's
allegations that individuals removed his daughter from his
custody and later entered his home unlawfully implicate his
rights under the Fourth Amendment and the due process clause
of the Fourteenth Amendment.
Fourth Amendment protects against unreasonable searches and
seizures. The Court of Appeals for the Seventh Circuit has
held that “[i]n the context of removing a child from
his home and family, ” “a seizure is reasonable
if it is pursuant to a court order, if it is supported by
probable cause, or if it is justified by exigent
circumstances, meaning that state officers ‘have reason
to believe that life or limb is in immediate
jeopardy.'” Brokaw v. Mercer County, 235
F.3d 1000, 1010 (7th Cir. 2000). Similarly, “searches .
. . inside a home without a warrant are presumptively
unreasonable” under the Fourth Amendment. Payton v.
New York, 445 U.S. 573, 586 (1980). However, law
enforcement officers may enter an individual's home
without a warrant when the individual consents, United
States v. Risner, 593 F.3d 692, 694 (7th Cir. 2010), or
“when police have a reasonable belief that exigent
circumstances require immediate action and there is no time
to secure a warrant.” Leaf v. Shelnutt, 400
F.3d 1070, 1081 (7th Cir. 2005). ...