772 F.2d 1395 (7th Cir. 1985), 84-3124, Gumz v. Morrissette

Docket Nº:84-3124, 84-3173.
Citation:772 F.2d 1395
Party Name:Marcus GUMZ, Plaintiff-Appellee, Cross-Appellant, v. Douglas MORRISSETTE and Lawrence Cloutier, Defendants-Appellants, Cross-Appellees.
Case Date:September 05, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1395

772 F.2d 1395 (7th Cir. 1985)

Marcus GUMZ, Plaintiff-Appellee, Cross-Appellant,


Douglas MORRISSETTE and Lawrence Cloutier,

Defendants-Appellants, Cross-Appellees.

Nos. 84-3124, 84-3173.

United States Court of Appeals, Seventh Circuit

September 5, 1985

Argued June 3, 1985.

Rehearing Denied Sept. 27, 1985.

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Russell J. Mittelstadt, Eugene R. Thompson, Madison, Wis., for plaintiff-appellee, cross-appellant.

John R. Sweeney, Wisconsin Dept. of Justice, Madison, Wis., for defendants-appellants, cross-appellees.

Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and WRIGHT, Senior Circuit Judge. [*]

CUMMINGS, Chief Judge.

Plaintiff Marcus Gumz filed this civil rights action against eleven defendants, officials and employees of the Wisconsin Department of Natural Resources ("DNR"), alleging numerous violations of the Constitution and liability pursuant to 42 U.S.C. Sec. 1983. The district court entered judgment on a jury verdict finding that defendants had used excessive force in arresting Gumz and denied defendants' post-verdict motions seeking judgment in their favor. The court also refused plaintiff's requests to amend the judgment so that the jury verdict would be read to include liability for the seizure of plaintiff's property and denied his request for recovery of hospital and medical expenses. Both parties appeal the court's post-trial rulings. For the reasons set forth below, the judgment of the district court is affirmed in part and reversed in part.


Plaintiff Marcus Gumz at all times relevant to this case was a "muck farmer"

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living near Baraboo, Wisconsin. Much of the farming in this area requires continuous drainage of the low-lying fields in order to keep the land from reverting to ponds and marshes. The maintenance of drainage systems requires removal of run-off or "muck" from waterways, thus giving rise to the term "muck farmer." Gumz raised mint and other crops on his large tract of land (some 2,700 acres) but was deeply in debt (Plaintiff's App. 104). A drainage ditch known as the leech waterway ran through Gumz' property, and the farmer utilized a "dragline" or a two-ton apparatus consisting of a steam shovel and a fifty-foot boom to scoop muck out of the waterway (Plaintiff's App. 259, 260). The DNR considered the leech waterway a navigable body subject to its regulation and in 1975 commenced a civil action in state court against Gumz for dredging the ditch without a permit in violation of WIS.STAT. Sec. 30.20 (1979). 1 That action ultimately was dismissed on September 18, 1981, after the incident at issue here occurred, because of delay and the fact that the DNR had commenced a similar and more recent action (Plaintiff's App. 212).

On October 28, 1980, Warden Dennis Jameson investigated a complaint of dredging of the leech waterway without a permit and issued a citation to the dragline operator. A dispute exists over Jameson's attempt to issue the citation to Gumz and over a subsequent automobile altercation where both Jameson and Gumz claimed they were run off the road by the other. Rather than serve it personally, Warden Jameson then sent by certified mail a dredging citation to Gumz regarding the October 28, 1980, incident, allegedly at the request of the district attorney (Defendants' App. 377). Gumz apparently refused to accept the citation, thinking it was a bill, and the letter was returned (Plaintiff's App. 104, 273, 274; Defendants' App. 377). The district attorney's office issued an arrest warrant and complaint (dated February 19, 1981, Defendants' App. 373) against Gumz for failure to answer the October 28, 1980, citation in court. Warden Jameson and defendant Warden Cloutier allegedly were informed of continued dredging on the Gumz property (Defendants' App. 183) and Cloutier decided on March 2 to investigate the dredging and to serve the arrest warrant on the following day (Defendants' App. 235-236, 243, 247).

On March 3, 1981, Wardens Kern and Morrissette allegedly attempted to serve the arrest warrant on Gumz at the University of Wisconsin at Baraboo, but then proceeded to the Gumz property. Wardens Cloutier and Zabel first proceeded by car to the Gumz farm, observed the dredging in progress and ordered six reserve DNR personnel, who had been instructed to wait ten miles away, to stand by one mile from the Gumz property (Defendants' App. 235). Cloutier decided to arrest Gumz and knocked on plaintiff's door but he did not answer (Defendants' App. 235, 243, Plaintiff's Br. 9). Kern and Morrissette then arrived by auto and knocked on Gumz' door to serve the warrant and Gumz again did not answer. Cloutier and Zabel walked 100 yards to the site of the dredging and arrested the operators (Defendants' App. 235). Gumz exited his house, drove to the Kern-Morrissette vehicle and ordered it off his farm. After allegedly being informed of the warrant for his arrest, Gumz returned to his car and backed into the Kern-Morrissette vehicle (Defendants' App. 245). The severity of the collision and the intended destination of Gumz (the dragline site or his house) were subjects of dispute below.

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At any rate, after the collision Gumz drove toward his house and at that point defendant Cloutier called the six DNR reserves onto the Gumz property. They entered the property at high speeds and after a brief chase blocked the path of Gumz' auto without contacting plaintiff or his vehicle. The ten DNR personnel were armed with a rifle, pistols, and shotguns. (Plaintiff's App. 286-300.) Gumz then raised his hands in surrender and was arrested without incident and the dragline was seized and removed from the Gumz property (Plaintiff's App. 149-159; Defendants' App. 240-241, 264).

Gumz was taken to the Sauk County Sheriff's office where he was charged by the defendants with violating the dredging law and with a felony of criminal damage to property (Plaintiff's App. 317-318). During his custody Gumz became ill and ultimately he was released after posting a $443 bond (Defendants' App. 319, Plaintiff's App. 318). Almost immediately after his release Gumz was hospitalized for an emergency operation to implant a pacemaker, which he subsequently underwent (Plaintiff's App. 321-327).

Plaintiff filed this action on January 24, 1983, in the United States District Court for the Western District of Wisconsin, seeking $1.425 million in compensatory damages and $1 million in punitive damages. Gumz' complaint charged that the incident of March 3 resulted in violations of the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution and gave rise to liability under 42 U.S.C. Secs. 1981, 1982, 1983, 1985(2), 1985(3), 1986 and 1988, and under Wisconsin law. In its Order of August 3, 1984, the district court dismissed all claims, except those arising under Sec. 1983 and under state law, for failure to state a claim on which relief could be granted. The court also ruled that plaintiff's complaint did not adequately allege a violation of the Fourth Amendment so as to state a claim under Sec. 1983 since neither the absence of probable cause nor of a neutral and detached magistrate was asserted. This ruling has not been contested. Judge Doyle did hold that valid claims under Sec. 1983 were stated only with respect to the First and Fourteenth Amendments. See pp. 16-17 of opinion of August 3, 1984 (R. Item 26).

The First Amendment claim involved alleged retaliation toward and deterrence of Gumz in the exercise of his rights of expression. 2 Deprivations of plaintiff's liberty and property without due process of law contrary to the Fourteenth Amendment could have resulted, in the court's view, from the use of excessive force in arresting Gumz, from the seizure of the dragline without probable cause to believe it was being used illegally, from holding and interrogating the plaintiff at the sheriff's office for an excessive period of time, and from deliberate and callous indifference to plaintiff's medical needs during his confinement. (8/3/84 Order at 13-18.) Finally, the court ruled that the complaint stated a claim under Wisconsin law for assault and battery, false arrest, false imprisonment, intentional and negligent infliction of mental distress, abuse of process and negligence (8/3/84 Order at 18, 25). The court denied all of defendants' motions for summary judgment. Plaintiff does not appeal any of the adverse rulings in the August 3 Order.

On September 7, three days before trial, the court dismissed plaintiff's state law claims for failure to comply with the Wisconsin notice of claims statute (R. Items Nos. 43 (par. 8), 51 and 53), and this dismissal is not challenged.

At the close of plaintiff's case and at the close of all the evidence defendants moved for a directed verdict on all issues. The court granted the defendants' motions for directed verdict in part, dismissing most of the lower level DNR officials and employees from the case. The court took away from the jury the issues of excessive interrogation

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of plaintiff and of deliberate and callous indifference to plaintiff's medical needs during his confinement. (Defendants' App. 408, 440, 427-428.)

Both sides presented evidence at trial attempting to demonstrate the necessity and reasonableness or the excessiveness and unjustifiability of the degree of force amassed on March 3. The jury returned verdicts in favor of plaintiff and against defendants Morrissette and Cloutier on only one issue, finding that they had caused "the use of excessive force in the arrest of plaintiff on March 3, 1981," and also that Cloutier alone had maliciously caused the use of such force. The jury found that Morrissette and Cloutier had 1) not used excessive force in retaliation for Gumz' opposition to DNR policies...

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