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Thom v. Garrigan

United States District Court, W.D. Wisconsin

March 25, 2019

DAVID THOM, CRYSTAL THOM, WILLIAM CADWALLADER, ROBERT L. WENTWORTH, RAYMOND BOYLE, and MICHAEL O'GRADY, Plaintiffs,
v.
DANIEL GARRIGAN, CHARLES POCHES, MATTHEW FOSTER, PETER HIBNER, ROBIN KVALO, BRAD MEIXNER, SUSAN CONNER, SHAWN MURPHY, KENNETH MANTHEY, JASON STENBERG, ROBERT BAGNELL, KEITH KLAFKE, BENJAMIN NEUMANN, KEVIN TODRYK, PETER WARNING, PETER BARTACZEWICZ, ANTHONY BRAUNER, MICHAEL SCHULZ, DAWN WILCOX, MARIE MOE, SCOTT KLICKO, BRIAN NOLL, ROGER BRANDNER, JOSEPH RUF, JORDAN HAUETER, LEDA WAGNER, DOUGLAS JARZYNSKI, DAVID CLARK, MICHAEL HAVERLEY, MARK SMIT, ALEXANDER AGNEW, BENJAMIN OETZMAN, TERRI PULVERMACHER, MAX JENANASCHET, CORY MILLER, GREGORY BISCH, THOMAS M. DRURY, CHARLES MILLER, KATHRYN E. MILLER, ROBERT BECKER, CHARLES CHURCH, and MARK HAZELBAKER, Defendants.

          OPINION AND ORDER

          James D. Peterson, District Judge.

         In this civil action for injunctive and declaratory relief, plaintiffs David Thom, Crystal Thom, William Cadwallader, Robert Wentworth, Raymond Boyle, and Michael O'Grady have raised numerous federal and state constitutional claims against 40 defendants associated with numerous local government entities, including the City of Portage, Portage School District, Columbia County, the City of Lodi, the Village of Pardeeville, and Marquette County. Plaintiffs allege that defendants have acted collectively to violate their constitutional rights by creating a multi-county drug task force that engages in racial profiling and conducts unlawful searches and seizures at local high schools. Plaintiffs also accuse defendants of engaging in racketeering, distributing drugs, evading taxes, extorting local businesses, covering up murders committed by local police, and violating various other constitutional provisions.

         There are several motions before the court. First, on July 25, 2018, I entered an order explaining that plaintiff O'Grady was subject to a filing bar imposed by the Court of Appeals for the Seventh Circuit that prohibited him from filing any documents in any case in this circuit until he paid off the filing fees he had accumulated from previous frivolous litigation. See O'Grady v. Habeck, No. 11-3881 (7th Cir. Apr. 24, 2012). I stated that O'Grady could not proceed with their lawsuit until the filing bar had been lifted. O'Grady has responded, submitting evidence that he has paid off all of his filing fees and that the court of appeals vacated his filing bar on August 13, 2018. Dkt. 99-1. In light of this evidence, I will accept documents filed by O'Grady in this case.

         Next, a subset of the defendants filed motions to partially dismiss the complaint. Plaintiffs then filed a motion to amend and supplement their complaint, realleging all of their allegations and claims from the initial complaint and adding claims against two additional defendants. I will grant plaintiffs' motion and I will consider the original complaint, Dkt. 1, and the supplement, Dkt. 63, to be the operative pleading. Defendants have renewed their motions for partial dismissal, which are now ready for decision. Dkt. 58 and Dkt. 76.

         As explained below, I am granting in part and denying in part defendants' motions to dismiss specific claims from the amended complaint. Under the court's inherent authority to manage cases, I am dismissing the remainder of the amended complaint without prejudice because it violates Rules 8 and 20 of the Federal Rules of Civil Procedure. I will give plaintiffs an opportunity to explain to the court how they wish to proceed with their claims.

         ANALYSIS

         Plaintiffs' amended complaint is 29 single-spaced pages and contains nine “counts.” Defendants have moved to dismiss five of the nine counts of the amended complaint. Even without considering the merits of defendants' motion, it is apparent that plaintiffs' amended complaint has several problems and must be dismissed in full. Many of plaintiffs' allegations are vague and conclusory. The complaint includes so much argument and legal jargon that it is difficult to discern the factual basis for many of plaintiffs' claims. But the most significant problem with plaintiffs' amended complaint is that it contains too many claims against too many defendants. Plaintiffs' claims cover a multi-year time period, involve numerous government officials and entities, and challenge several different government programs that appear to have little relationship to each other. Even if there is some relationship between the claims and defendants, the sheer number of claims and defendants would render this case unmanageable. Therefore, even if defendants had not filed a motion to dismiss some of plaintiffs' claims, I would not have permitted plaintiffs to proceed with this case as they have structured it. For these reasons, I will resolve the specific arguments raised by defendants in their motions to dismiss and then will direct plaintiffs to respond to this order by clarifying how they wish to proceed with their remaining claims.

         A. Defendants' motions to dismiss specific claims

         Defendants argue that Count 4 of the amended complaint should be dismissed as barred by the applicable statute of limitations; Counts 5, 6, and 9 should be dismissed for failure to state a claim upon which relief may be granted; and Count 7 should be dismissed for lack of standing. I address each of these arguments below.

         1. Count 4: defendants Jarzynski, Wagner, Jenanaschet, and Pulvermacher violated plaintiff Cadwallader's constitutional rights in 2010

         Count 4 of the amended complaint seeks a declaration that defendants Jarzynski, Wagner, Jenanaschet, and Pulvermacher violated plaintiff Cadwallader's Fourth and Fourteenth Amendment and state law rights in 2010, when they forced entry into his residence purportedly to perform a wellness check on Cadwallader's guest, Kelly Bishell. Cadwallader alleges that defendants entered his home without a warrant or consent and that they subsequently shot and killed Bishell.

         Defendants move to dismiss Count 4 on the ground that Cadwallader's claim is barred by the six-year statute of limitations that applies to claims brought under 42 U.S.C. § 1983 in Wisconsin. See Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009). Defendants' argument is persuasive. Cadwallader's challenge to the reasonableness of the warrantless entry into his residence falls under the Fourth Amendment. See Sutterfield v. City of Milwaukee, 751 F.3d 542, 550 (7th Cir. 2014) (claim that police acted unlawfully by forcibly entering home to detain potentially suicidal individual fell under Fourth Amendment); Johnson v. Manitowoc Cty., 635 F.3d 331, 336 (7th Cir. 2011) (“[C]hallenges to the ‘reasonableness of a search by government agents clearly fall under the Fourth Amendment, and not the Fourteenth.'”) (quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)). Fourth Amendment claims accrue at the time the alleged violation occurred, so Cadwallader's claim accrued in 2010 at the time of the warrantless entry. See Evans v. Poskon, 603 F.3d 362, 363 (7th Cir. 2010) (“[A] claim asserting that a search or seizure violated the Fourth Amendment . . . accrues immediately.”) (citations omitted); Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir. 1998) (same). Because the claim accrued more than six years before plaintiffs filed this lawsuit, it is barred by the statute of limitations.

         Plaintiffs respond that the six-year limitation period did not begin to run until 2016 or 2017, when Cadwallader learned that Jarzynski had claimed falsely that Cadwallader had given verbal permission for Jarzynski to enter his residence. But it is not Jarzynski's alleged false statements that provide the factual basis for Cadwallader's Fourth Amendment claim; it is the alleged warrantless entry in November 2010. Because plaintiffs concede that the entry occurred more than six years before they filed suit, the claim is untimely. Therefore, I will grant defendants' motion to dismiss Count 4 of the amended complaint.

         2. Count 5: defendants Foster, Murphy, Manthey, Noll, Klicko, Brandner, Drury, Miller, Miller, Ruf, Becker, Poches, and Kvalo failed to prevent others from conspiring to violate various federal and state constitutional rights

         Count 5 of the amended complaint alleges that numerous defendants had final policy-and decision-making authority and could have restrained or prevented others from conspiring to violate plaintiffs' constitutional rights, but that defendants failed to do so. Defendants move to dismiss this claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiffs provide no factual basis for it. Plaintiffs respond ...


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