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Hutter v. Fox

United States District Court, W.D. Wisconsin

February 21, 2019

MASON L. HUTTER, Plaintiff,



         I have consolidated these two cases filed by plaintiff Mason L. Hutter, an inmate at the Pierce County Jail. In No. 16-cv-718-jdp, Hutter alleges that St. Croix County officials placed incorrect information into his criminal or driver-license records, leading to him being arrested twice. In No. 18-cv-576-jdp, 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 take Hutter to be saying that the Pierce County arrest happened in part because of erroneous information provided by the St. Croix County defendants. The parties have filed several motions in each case.

         A. No. 16-cv-718-jdp against St. Croix County defendants

         In the '718 case, Hutter is proceeding on Fourth Amendment and Wisconsin-law negligence claims against defendants Shelly Fox, Jane Doe St. Croix County clerk of court's office employees, and St. Croix County for incorrectly putting information about someone else's drunken-driving conviction into his driver license file, and leaving that information in the file even after being alerted to the error.

         Hutter filed a document he calls a request for leave to amend the complaint, Dkt. 47, which I take to be an attempt to name a Doe defendant and add additional claims.[1] He states what he knows about the clerk's office personnel who handled his file. But all he says is that his file was passed from the judge to a clerk's office employee during his criminal proceedings, which is not enough to plausibly allege that the particular employee entered false information the record.

         Hutter states that he would like to add claims for defamation, false imprisonment, unlawful detention, libel, slander, and invasion of privacy. Although his new allegations do not make any of these causes of action more plausible, his original allegations support claims for defamation and false imprisonment, because he is alleging that the St. Croix defendants intentionally placed or kept false information in his file that they knew could lead to an erroneous arrest. The elements of a Wisconsin-law defamation claim are: a statement (1) was spoken to someone other than the person defamed; (2) is false; (3) is unprivileged; and (4) tends to harm the defamed person's reputation so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Torgerson v. Journal/Sentinel, Inc., 210 Wis.2d 524, 534, 563 N.W.2d 472 (1997); Hart v. Bennet, 2003 WI.App. 231, ¶ 21, 267 Wis.2d 919, 672 N.W.2d 306. The elements of a Wisconsin-law false-imprisonment claim are: (1) the defendant acts intending to confine the plaintiff within boundaries fixed by the defendant; (2) this act directly or indirectly results in such a confinement; and (3) the plaintiff is conscious of the confinement or is harmed by it. Herbst v. Wuennenberg, 83 Wis.2d 768, 774-75, 266 N.W.2d 391, 394-95 (1978) (quoting Restatement (Second) of Torts § 35).

         Hutter followed with a motion he titles as a “Motion to Disqualify Defendants Brief in Opposition to Request Discovery.” Dkt. 56. It actually appears to be a motion to compel responses to what he says are discovery requests aimed at identifying the identity of the Doe St. Croix County Clerk of Court's Office employees. But the discovery requests he refers to, Dkt. 37, were made before the court's preliminary pretrial conference. The court told the parties not to file discovery before that conference. See August 24, 2018 notice, unnumbered on the docket.

         Hutter also suggests that he included discovery requests with his proposed amended complaint. See Dkt. 47. But neither that document nor the earlier-filed document mentioned above are traditional discovery requests. They are not titled as interrogatories, requests for production of documents, or any other type of discovery request. Hutter merely asks defendants to tell him the names of the people who entered the incorrect information. In his reply, Hutter concedes that his filings were confusing. Regardless whether he means to withdraw the motion to compel or press on with it, I will deny it because he did not provide defendants with proper discovery requests.

         Hutter later filed a motion for leave to amend his complaint, Dkt. 75, a document titled as a proposed amended complaint, Dkt. 76, and a motion for extension of his deadline to file his amended complaint, Dkt. 77. Hutter filed his proposed amendment about a week after the November 21, 2018 deadline set by the court. I conclude that there is no prejudice to defendants, so I will grant the motion for extension of time.

         The proposed amended complaint itself is not a complete complaint; instead, it is limited to discussing the negligence claims against the “Jane Doe” clerk of court's office employees, and identifying those Does as Edie Ferrill and Jayme Foley. Discovery documents filed by the parties show why Hutter named them: their initials are on his criminal-court docket for events related to a July 1, 2015 plea hearing. See Dkt. 55 and 65. I take Hutter to be saying that he believes that the erroneous information about a prior conviction was entered on his record in conjunction with that hearing.

         Defendants have filed a motion to dismiss the proposed amended complaint, Dkt. 81, because Hutter did not comply with the court's procedures for identifying Doe defendants by submitting an amended complaint identical to the current operative pleading with the only changes being the identification of the Does. See Dkt. 46, at 5. They contend that because the new amended complaint should supersede the current operative pleading, the court no longer has jurisdiction over the new complaint containing only state-law negligence claims. They also contend that Hutter fails to state negligence claims against these defendants.

         I agree that Hutter's proposed amendment does not comply with the letter of the court's instructions, but defendants do not show why I should dismiss the case for a mistake that comes nowhere close to prejudicing them. I take the proposed amendment to be a supplement to the current operative pleading; there is no reason to believe that Hutter means to dismiss his constitutional claims. The court tasked him with identifying the Doe defendants and he has done so. Particularly given his pro se status, I will excuse his failure to follow the exact Doe-naming procedure laid out by the court. I will consider Hutter's first amended complaint, Dkt. 18, and his new complaint naming the Does, Dkt. 76, together as the operative pleading.

         I will partially grant defendants' motion regarding their argument that Hutter fails to state claims against the now-identified Doe defendants. He names Ferrill and Foley as defendants because they worked on his file in July 2015, before Hutter's two arrests. Hutter's theory is that these defendants mixed up his driver-license number with another case being litigated contemporaneously involving a different person who had been convicted of second-offense operating while intoxicated. This later caused Hutter to be arrested twice because his record contained false information about past convictions, a revoked license, an ignition interlock requirement, or something similar.

         I granted Hutter leave to proceed on Fourth Amendment claims that defendants Fox and the Does (now Ferrill and Foley) failed to fix the erroneous records after Hutter alerted them to it. I did not allow him leave to proceed on Fourth Amendment claims about the initial placement of that information in his record, because that mistake was at most negligence. See Dkt. 17, at 3. All Hutter plausibly alleges against Ferrill and Foley is that they negligently placed the information in his record. So he may proceed on negligence and his new defamation claims against them, but he may not proceed on Fourth Amendment or his new false-imprisonment claims against them. Counsel for the existing defendants state that they will accept service on behalf of Ferrill and Foley.

         I will also grant defendants' request to dismiss “St. Croix County Clerk of Court's Office” as a defendant. Hutter names either the office or the clerk as a defendant in various filings, but I have already allowed him to proceed against the county. He may not proceed against the clerk of court's office because it is not a distinct legal entity. Nor do I take Hutter to be attempting to bring a claim against the person holding the clerk of court's office.

         In my previous screening order, I did not allow Hutter to proceed on a Fourth Amendment claim against St. Croix County, because nothing in the complaint suggested that the individual defendants' decisions were the result of a policy or practice. See Dkt. 22, at 2. Hutter has filed another motion for leave to amend his complaint, Dkt. 88, and a proposed supplement to the complaint, Dkt. 89, in which he states that he would like to add the county as a defendant because he can now show that the county had a policy of poor record maintenance, citing an incident in which a document was stamped “filed” two days before it was stamped “received.” While Hutter appears to indeed identify an error in a county filing, this incident is not enough to plausibly allege a county custom or practice necessary to support a constitutional claim against the county, so I will deny his motion to amend the complaint further.

         B. No. 18-cv-576-jdp against Pierce County defendants

         In the '576 case, Hutter is proceeding on Fourth Amendment claims against defendant Rick Huneke of the Pierce County Sheriff's Department for pulling him over for no reason and lying to a court commissioner to get a warrant to draw his blood. He is also proceeding on Wisconsin-law infliction-of-emotional-distress and defamation claims against defendants Rick Huneke and Pierce County.

         1. Notice of claim

         Defendants filed a motion to dismiss Hutter's state-law claims against defendant Huneke and Pierce County, contending that Hutter failed to comply with Wisconsin's notice- of-claim statute, Wis.Stat. § 893.80, for bringing claims against counties or their employees. Dkt. 15.[2] Both sides have submitted evidence along with their briefing, so I will consider the motion as one for summary judgment on this issue.

         I previously allowed Hutter to dismiss his original case, no. 16-cv-717-jdp, and reopen it under a new case number after he made clear that he had not filed a proper notice of claim before initiating the '717 case, but he asserted that he indeed later filed a proper notice. Defendants now contend that Hutter has still not complied with § 893.80. They point to various documents that Hutter submitted in the '717 case, saying that Hutter believes them to satisfy the notice-of-claim statute for the current case, but that none of those documents actually complies with the statute.

         The relevant portion of the statute for purposes of this case is § 893.80(1d), which states in part:

[N]o action may be brought or maintained against any . . . governmental subdivision or agency thereof nor against any officer, official, agent or employee of the . . . subdivision or agency for acts done in their official capacity or in the course of their ...

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