United States District Court, E.D. Wisconsin
SUMMARY JUDGMENT DECISION UNDER RULE 56(f)
Joseph United States Magistrate Judge
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.
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,
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.
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.
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)).
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).
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.)
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.)
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.)
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.”
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.)
September 18 or 28, 2016,  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.)
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 ¶
November 27, 2016 Incident
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.
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. ¶ 29.) The