United States District Court, W.D. Wisconsin
MASON L. HUTTER, Plaintiff,
RICK HUNEKE and PIERCE COUNTY SHERIFF'S DEPARTMENT, Defendants. MASON L. HUTTER, Plaintiff,
RICK HUNEKE and PIERCE COUNTY SHERIFF'S DEPARTMENT, Defendants.
D. PETERSON DISTRICT JUDGE.
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.
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:
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.
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).
recount the facts from my order screening Hutter's
complaint in the '717 case. I accept them as true at the
screening stage. See Bonte v. U.S. Bank,
N.A., 624 F.3d 461, 463 (7th Cir. 2010).
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.
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.
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
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
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).
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) ...