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Kowalewski v. Torgerud

United States District Court, W.D. Wisconsin

February 22, 2018



          BARBARA B. CRABB District Judge.

         In this 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).

         Unfortunately, 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.

         Plaintiff alleges the following facts in his complaint.


         Plaintiff 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 Torgerud.


         A. Jurisdictional Issues

         A 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).

         Generally, 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.

         Plaintiff 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.

         B. Potential Federal Claims

         Under 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.

         The 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). ...

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