United States District Court, W.D. Wisconsin
MASON L. HUTTER, Plaintiff,
SHELLY FOX, JANE DOE ST. CROIX COUNTY CLERK OF COURTS OFFICE EMPLOYEES, and ST. CROIX COUNTY, Defendants. MASON L. HUTTER, Plaintiff,
RICK HUNEKE and PIERCE COUNTY, Defendants.
D. PETERSON, DISTRICT JUDGE.
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.
No. 16-cv-718-jdp against St. Croix County
'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
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. 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.
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 §
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
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
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.
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.
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.
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.
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.
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.
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
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
No. 18-cv-576-jdp against Pierce County defendants
'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.
Notice of claim
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. Both sides have submitted
evidence along with their briefing, so I will consider the
motion as one for summary judgment on this issue.
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.
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 ...