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Hutter v. Huneke

United States District Court, W.D. Wisconsin

July 27, 2018

MASON L. HUTTER, Plaintiff,
v.
RICK HUNEKE and PIERCE COUNTY SHERIFF'S DEPARTMENT, Defendants. MASON L. HUTTER, Plaintiff,
v.
RICK HUNEKE and PIERCE COUNTY SHERIFF'S DEPARTMENT, Defendants.

          ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         In case no. 16-cv-717-jdp, plaintiff Mason L. Hutter alleges that a Pierce County sheriff's deputy violated his rights under the Fourth Amendment and state law by pulling him over, arresting him, and fabricating testimony in support of a warrant for a blood draw. I previously screened the complaint and concluded that Hutter could bring a Fourth Amendment claim against Huneke, but I stayed service of the complaint pending Hutter explaining what he would like to do with potential state-law claims for defamation or infliction of emotional distress. See Dkt. 12 and 24 in the '717 case. I explained that Hutter needed to comply with the Wisconsin notice-of-claim statute governing state-law claims against municipal employees before he could bring his state-law claims. It was too late to include those claims in his current lawsuit, but I gave him a chance to explain whether he would like to proceed in this lawsuit with only his current federal claim, or file a notice of claim and then file a new lawsuit. Dkt. 24 in the '717 case.

         After a series of submissions by Hutter and orders by this court, Hutter has clarified his choice: he filed a notice of claim, and wants to close this case and re-assert his claims in a new case. So this case will be dismissed under Federal Rule of Civil Procedure 41(a)(1)(A)(i), and I will direct the clerk of court to file his complaint under a new case number: 18-cv-576-jdp.

         From the financial information that Hutter has submitted in the '717 case, I conclude that he qualifies for in forma pauperis status in the new case, and he may proceed without prepayment of any amount of the filing fee.

         At the time Hutter made the choice to proceed with a new case, he was not incarcerated. Nonetheless, because he is proceeding in forma pauperis, I must screen the complaint and dismiss any portion that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for monetary damages from a defendant who by law cannot be sued for money damages. 28 U.S.C. § 1915. I must read Hutter's pro se complaint generously. See Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam).

         ALLEGATIONS OF FACT

         I will recount the facts from my order screening Hutter's complaint in the '717 case. I accept them as true at the screening stage. SeeBonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010).

         Hutter's allegations involve events occurring on January 23, 2016, while he was on probation. He states that early that morning, he was driving a friend home when he was pulled over by defendant Rick Huneke of the Pierce County Sheriff's Department. Huneke said that he smelled alcohol inside the vehicle. Hutter responded that he was sober and was “cabbing” his friend home.

         Huneke asked Hutter to step out of the car, and then had him perform field sobriety tests. Hutter says that he performed these tests with “minimal issues, ” but Huneke said that he failed the tests. Huneke asked Hutter to take a preliminary breath test and give a blood sample, but Hutter refused. Huneke got a warrant to draw Hutter's blood and took him to the hospital, where the blood draw was performed.

         Hutter was booked for operating a motor vehicle while intoxicated, third-offense. His probation was revoked on two other cases because of the incident and he was sentenced to a total of about three years of incarceration. But his criminal case for the events of January 23 was ultimately dismissed on the prosecutor's motion. Hutter says that Huneke made “‘incorrect sorry'” statements in the criminal OWI proceedings. I take Hutter to be saying that Huneke no longer believed that Hutter was intoxicated on that night.

         ANALYSIS

         As I previously stated in the '717 case, Hutter may proceed on Fourth Amendment claims against defendant Huneke for pulling him over for no reason and lying to a court commissioner to get a warrant to draw his blood. I take Hutter to be bringing state-law claims for infliction of emotional distress and defamation.

         To maintain a claim for intentional infliction of emotional distress, a plaintiff must establish: (1) that the defendant's conduct was intended to cause emotional distress; (2) that the defendant's conduct was extreme and outrageous; (3) that the defendant's conduct was a cause-in-fact of the plaintiff's emotional distress; and (4) that the plaintiff suffered an extreme disabling emotional response to the defendant's conduct. Rabideau v. City of Racine, 2001 WI 57, ¶ 33, 243 Wis.2d 486, 627 N.W.2d 795 (citing Alsteen v. Gehl, 21 Wis.2d 349, 359-60, 124 N.W.2d 312 (1963)). To state a claim for negligent infliction of emotional distress, a plaintiff must show that (1) the defendant's conduct fell below the standard of care; (2) the plaintiff suffered an injury; and (3) the defendant's conduct was a cause in fact of the plaintiff's injury. Bowen v. Lumbermen's Mutual Casualty Co., 183 Wis.2d 627, 632, 517 N.W.2d 432 (1994).

         Construing Hutter's complaint generously, I will allow him to proceed on claims under both theories. But at summary judgment or trial, he will need to show that he suffered severe emotional distress, not just temporary or slight discomfort. See Alsteen, 124 N.W.2d at 318. Hutter also states claims against Pierce County under the doctrine of respondeat superior. See, e.g., Javier v. City of Milwaukee, 670 F.3d 823, 828 (7th Cir. 2012) ...


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