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Pierner-Lytge v. Mitchell

United States District Court, E.D. Wisconsin

August 27, 2019



          Nancy Joseph United States Magistrate Judge

         Amanda Pierner-Lytge brought this 42 U.S.C. § 1983 lawsuit against Patrick Mitchell and Scott Post in their official capacities as West Allis Chief of Police and City Attorney, respectively. (Docket # 1.) Pierner-Lytge alleges that, on several occasions, the defendants seized and retained her property under Wis.Stat. § 968.20(1m)(d) in violation of the Second, Fourth, and Eighth Amendments to the U.S. Constitution. (Id.)

         The defendants filed no pretrial motions in this case. Pierner-Lytge moved for summary judgment and was denied. (Docket # 15, 26.) Trial was originally scheduled for June 10, 2019. On May 17, 2019, the parties submitted their joint pretrial report, proposed jury instructions and verdict form, and numerous motions in limine. (Docket # 29, 31, 32, 34, 36, 38, 39.) After reviewing these submissions, I held a conference with the parties at which I expressed concern about the lack of legal authority to support the plaintiff's claims. (Docket # 45.) I ordered the plaintiff to submit further legal authority supporting the constitutional claims or, if such authority was not available, explain why I should not sua sponte grant summary judgment for the defendants under Fed.R.Civ.P. 56(f). (Id.) I set a briefing schedule, allowing the defendants to respond and the plaintiff to reply. (Id.) That briefing is now complete. (Docket # 46, 47, 48.)

         The parties having been given notice and a full and fair opportunity to respond, I now conclude that judgment in favor of the defendants is appropriate as a matter of law for the reasons explained below.


         In general, the court shall grant summary judgment if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. The mere existence of some factual dispute does not defeat a summary judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a rational trier of fact could not find for the non-moving party.'” Durkin v. Equifax Check Services, Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th Cir. 2003)).

         Under Fed.R.Civ.P. 56(f), after giving notice and a reasonable time to respond, the court may grant summary judgment (1) for a nonmovant, (2) on grounds not raised by a party, or (3) on its own after identifying for the parties material facts that may not be genuinely in dispute. See Osler Inst., Inc. v. Forde, 333 F.3d 832, 836 (7th Cir. 2003) (a district court may grant summary judgment on its own motion, as long as the losing party is given notice and an opportunity to address the issues) (citing, inter alia, Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)); Goldstein v. Fidelity & Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir. 1996) (district court may enter summary judgment even if no motion has been filed, but must not take the losing party by surprise in doing so) (citing Hunger v. Leininger, 15 F.3d 664 (7th Cir. 1994); Choudhry v. Jenkins, 559 F.2d 1085, 1089 (7th Cir. 1977)); see also Schurr v. A.R. Siegler, Inc., 70 F.Supp.2d 900, 911 n.6 (E.D. Wis. 1999) (court-supplied legal argument is appropriate basis for sua sponte summary judgment in favor of defendant).


         Pierner-Lytge has been diagnosed as having bipolar disorder. (Defendants' Proposed Findings of Fact (“DPFOF”), Docket # 21 ¶ 1.) She has cut herself to relieve stress. (Id. ¶ 2.) At times, she has not taken her medication as prescribed for her bipolar disorder. (Id. ¶ 4.) Since at least 2016, she has had suicidal thoughts. (Id. ¶ 5.) She has made suicidal statements on social media in the past, resulting in her friends contacting law enforcement to check on her. (Id. ¶ 12.)

         On May 3, 2016, West Allis police officers were dispatched to 915 South 111th Street in West Allis for a welfare check on Pierner-Lytge. (Id. ¶ 7.) Pierner-Lytge told officers that she had cut herself prior to the interaction with the officers. (Id. ¶ 8.) She told the officers that she was feeling suicidal, but that she did not have a plan to harm herself. (Id. ¶ 9.) She also told the officers that she had not taken her bipolar medication for two years. (Id. ¶ 11.) The West Allis Police transported her to the Dewey Center without incident. (Id. ¶ 10.)

         On July 27, 2016, West Allis Police officers were contacted by Ryan Jarnagin and subsequently performed a welfare check on Pierner-Lytge. (Id. ¶ 13.) The officers noted several superficial lacerations to Pierner-Lytge's arm, which were self-inflicted. (Id. ¶ 14.) She informed the officers that she wanted to harm herself. (Id.) She stated that she had been sexually assaulted in June 2016, and fired from her job following the sexual assault. (Id.) She informed the officers that the Milwaukee County DA's office was not going to issue charges against the offenders in her sexual assault. (Id.) Pierner-Lytge voluntarily sought treatment from mental health professionals. (Id. ¶ 17.) West Allis Police officers conveyed her to Milwaukee County Mental Health facility without incident for an evaluation. (Id. ¶ 17.)

         Also on July 27, 2016, Pierner-Lytge posted on her social media account: “Just got home from talking with the DA. Doesn't see the fear of force necessary to prosecute. Doesn't help the cop left out the part about dude threatening to corner me in a Porta potty either...So yea now I'm stuck. Having really strong urges to cut again. Doesn't feel like living either. It feels like rape charges are never brought about unless the victim gets beat up or killed.” (Id. ¶ 16.) She also posted, “I can't cope anymore.” (Id.)

         On July 30, 2016, West Allis Police officers made contact with Pierner-Lytge in the parking lot of Greenfield Park. (Id. ¶ 18.) She informed the officers she was dealing poorly with a traumatic incident. (Id.) She informed the officers that she was not suicidal, but she really needed mental health treatment. (Id.) She told the officers she would find it beneficial to go to inpatient counseling. (Id.) West Allis Police officer Steven Martin contacted mental health facilities in Milwaukee County and in Waukesha County to assist Pierner-Lytge in finding mental health support. (Id. ¶ 19.) None of the mental health facilities contacted would admit her if she was not suicidal. (Id.) Pierner-Lytge told West Allis Police that she would contact NAMI for assistance. (Id.) She then left Greenfield Park on her own, without needing police assistance. (Id. ¶ 20.)

         On September 18 or 28, 2016, [2] West Allis Police officers were dispatched to the intersection of South 112th Street and West Walker Street, and encountered Pierner-Lytge, who told them that she was feeling depressed and had walked around her neighborhood for three hours in an attempt to collect herself. (Id. ¶ 21.) She told police that walking the neighborhood did not help her to collect herself, so she asked that they transport her to Milwaukee County Mental Health. (Id.)

         West Allis Police officers searched Pierner-Lytge prior to transporting her to Milwaukee County Mental Health and found an electronic control device (taser) and a folding knife. (Id. ¶ 22.) The officers transported the items to the West Allis Police Department Control Room while Pierner-Lytge was at Milwaukee County Mental Health, because the facility would not allow those items. (Id.; Plaintiffs Proposed Findings of Fact (“PPFOF”), Docket # 17 ¶ 20.) The items were taken for safekeeping. (PPFOF ¶ 18.) West Allis Police officers transported Pierner-Lytge to Milwaukee County Mental Health upon her request. (DPFOF ¶ 22.) The items were returned to her without a petition to the court, as they were not seized for a criminal charge or for evidence in any way. (PPFOF ¶ 19.)

         1. November 27, 2016 Incident

         On November 27, 2016, West Allis Police officers responded to the parking lot of the Target at 2600 South 108th Street, where Pierner-Lytge was located in her vehicle. (DPFOF ¶ 23.) The officers reported that she had several small cuts on her left forearm. (Id.) Officers asked her if she had been cutting herself, and she said yes. (Id. ¶ 24.) She told the officers that she cut herself because she was stressed out because of school and work and that cutting relieves the stress. (Id. ¶ 26.) She told the officers she had attempted suicide in the past, and that she took medication relating to her attempted suicides. (Id.) She stated she cut herself for stress relief and not for the purpose of attempting suicide. (Id. ¶ 27.) She stated she had no intention of harming herself and she did not wish to die. (Id.)

         Officer Kendall observed a handgun in a cup holder of Pierner-Lytge's car and relayed that information to the other officer responding for officer safety. (PPFOF ¶ 21.) The West Allis Police officers removed Pierner-Lytge from her vehicle and patted her down. (DPFOF ¶ 25.) Pierner-Lytge complied with officer commands during this interaction. (PPFOF ¶ 22; Defendants' Response to PPFOF, Docket # 20 ¶ 22.) The officers asked Pierner-Lytge if she had any weapons in her vehicle and she responded that she had a Concealed Carry Permit and that there were weapons in the vehicle. (DPFOF ¶ 24.) The officers took possession of a firearm located in Pierner-Lytge's vehicle (in plain view next to the center console), described as a black Glock model 17, 9mm handgun, as well as a black Glock 9mm magazine with 16 Hornady 9mm Luger cartridges, a black clip-on nylon holster, a black Smith and Wesson knife, a camouflage folding knife, and a black pitbull stun-gun. (Id. ΒΆ 29.) The officers ...

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