Abraham v. Piechowski, 97-C-0705.

Citation13 F.Supp.2d 870
Decision Date10 August 1998
Docket NumberNo. 97-C-0705.,97-C-0705.
PartiesRobert S. ABRAHAM, Daniel M. Abraham and Matthew J. Abraham, Plaintiffs, v. Sergeant Mark S. PIECHOWSKI, Sheriff Patrick J. Fox, Waushara County Sheriff's Department and Waushara County, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

David J. Bartz, Madison, WI, for Plaintiffs.

Donald L. Romundson, Green Bay, WI, for Defendants.


ADELMAN, District Judge.

This case raises the important question of whether, when enforcing the law, a sheriff represents the county or the state, and the related question of whether, in view of Wisconsin constitutional and statutory changes, the Seventh Circuit's last pronouncement on the issue has continuing force. The issue is important because of the Eleventh Amendment. If a sheriff acts on behalf of the state rather than the county when enforcing the law, Eleventh Amendment immunity protects the sheriff from being liable for damages in federal court. I find, however, that when sheriffs perform law enforcement functions they represent the county not the state, and that sovereign immunity, therefore, does not bar this lawsuit. Nevertheless, the lawsuit fails in other respects.


On September 28, 1996, Robert S. Abraham and his sons, Daniel and Matthew, went duck hunting on the Pine River in the Town of Saxeville, Waushara County, Wisconsin. (DFOF, ¶ 1.)1

On the same day, Bonnie Vaughan-Kepplinger (hereinafter "Kepplinger") was visiting her summer home near the river. That afternoon, Kepplinger and a friend went canoeing down the Pine River. At approximately 2:30 p.m., the women encountered duck decoys and heard shooting they felt was directed at them. They became concerned for their safety. (DFOF, ¶ 2; RFOF, ¶ 3.) Kepplinger noticed an individual (Robert, although she did not know his name at the time) shooting from behind foliage on the bank of the river, and she called out loudly in his direction. Kepplinger says she yelled out because she was at substantial risk of physical harm and wanted the shooter to identify himself and explain what was going on. (See DFOF, ¶ 3; Kepplinger Aff., ¶ 2.) The Abraham boys say Kepplinger instead was shouting accusations that they were trespassing.2 (RFOF, ¶ 3.) Plaintiffs concede, though, that at one point Kepplinger may have asked who was shooting. (DFOF, ¶ 3; RFOF, ¶ 3.)

Following her encounter with the Abrahams, Kepplinger paddled home and called the sheriff's office. Sergeant Mark Piechowski, a Waushara County sheriff's deputy, was dispatched to Kepplinger's house. Kepplinger and Piechowski then headed to the scene of the shooting; exactly when they arrived is in dispute, although the general time frame is not. The Abrahams say Piechowski showed up at about 5:00 p.m.; defendants say Piechowski arrived at Kepplinger's house at 5:36 p.m. and then proceeded to the river. (DFOF, ¶¶ 4, 5; RFOF, ¶¶ 4/5.) Kepplinger pointed out the person she thought shot at her. Piechowski had her confirm that she was sure the man was shooting at her, then asked if she wanted the man arrested for reckless use of a firearm. Kepplinger responded "yes." (DFOF ¶ 5.)

Piechowski approached Robert at that point. The parties characterize the confrontation differently. According to plaintiffs, Piechowski approached Robert aggressively, with one hand on his weapon and the other on handcuffs. Piechowski supposedly was "a foot from [Robert's] face" and said "I'll take you all in. You're all under arrest." (RFOF, ¶ 6/7.) Defendants, on the other hand, say Piechowski merely asked Robert to put his gun down and advised Robert about Kepplinger's complaint, at which point Robert denied shooting at her or her canoe. Defendants agree that Piechowski advised Robert that he was arresting him for reckless use of a firearm. But they say that only when Robert indicated he would not leave his sons alone did Piechowski reply that he then would "take them all in" and that "they were all under arrest." (DFOF, ¶¶ 6, 7.)

Kepplinger and Robert engaged in a brief colloquy with one another in the presence of Deputy Piechowski, during which Robert threatened to sue Kepplinger. Defendants say Kepplinger offered to withdraw her complaint and let the matter rest if Robert agreed to drop his threats about suing her, and that Robert seemed agreeable to that solution. (DFOF, ¶ 8.) According to defendants, Piechowski and Kepplinger then left the scene together. (DFOF, ¶ 10.) Kepplinger says she observed no improprieties by Piechowski at any time. (DFOF, ¶ 14.)

The Abrahams, on the other hand, say Kepplinger recanted her complaint three times and quit the scene. Piechowski, though, nevertheless continued to detain them for a period of ten minutes after Kepplinger left and fifteen minutes since Kepplinger last recanted her story. (RFOF, ¶¶ 9, 10.) Plaintiffs say Piechowski conducted no investigation at the scene such as interviewing them or checking their weapons to see if they had been fired. (PFOF ¶ 3.) And although Piechowski ultimately departed without handcuffing anyone, taking anyone to the sheriff's station, or citing them for any wrongdoing, at the time he left he had never indicated that the Abrahams were free to go. (PFOF ¶ 1.) Each of the plaintiffs felt that they were under arrest from the time Piechowski arrived on the scene until the time he departed, (PFOF, ¶ 2), although after arriving back at the Abrahams' house, Robert did tell another hunter "that they were going to be arrested, `but they never actually were.'" (DFOF, ¶ 12).

Piechowski returned to Kepplinger's house and made out a report. He cleared the scene at 6:19 p.m. (DFOF, ¶ 13.) Taking all facts in plaintiffs' favor, their entire encounter with Piechowski thus lasted at most an hour and twenty minutes.

On June 24, 1997, Robert and his two sons filed this case against Piechowski and Piechowski's boss, Sheriff Patrick F. Fox, in both their individual and official capacities; the Waushara County Sheriff's Department; and Waushara County. Each plaintiff alleges against Piechowski a separate claim under 42 U.S.C. § 1983 and state-law claims of false imprisonment and intentional infliction of emotional distress (Counts I—IX). Each asserts a claim for supervisory liability of Fox under sections 1983 and 1986 for failure to train, instruct, or supervise Piechowski (Counts X—XII). And each plaintiff sues the county and sheriff's department under section 1983 for various policies that allowed the events to unfold as they did (Counts XIII-XV).

Currently before me is defendants' motion for summary judgment. In response to the motion plaintiffs conceded that they have no individual capacity claims against Piechowski and Fox and that the Waushara County Sheriff's Department is not a separate suable entity. That leaves two issues for decision: (1) does the Eleventh Amendment to the United States Constitution bar the claims against Piechowski and Fox in their official capacities?; and (2) do the facts support plaintiffs' federal claims against the county?


As is well known, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In analyzing whether a question of fact exists, the court construes the evidence in the light most favorable to the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party has the initial burden of demonstrating that he or she is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once this burden is met, the nonmovant must designate specific facts to support or defend each element of the cause of action for which he or she bears the burden, showing that there is a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548.

The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there is a genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. The presence of a genuine issue of material fact is to be determined by the substantive law controlling that case or issue. Kendrick v. East Delavan Baptist Church, 886 F.Supp. 1465, 1471 (E.D.Wis.1995).

"Material" means that the factual dispute must be outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir.1997). "`[F]acts not outcome-determinative under the applicable law, though in dispute, may still permit the entry of summary judgment.'" Id. at 1292 (quoting Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n, 806 F.2d 146, 149 (7th Cir.1986)). And a failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

Whether a material issue of fact is "genuine" necessarily requires some qualitative determination of sufficiency of the evidence. Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183, 186 (1987). To defeat a properly supported motion for summary judgment, the opposing parties must present specific and sufficient evidence that, if believed by a jury, would actually support a verdict in their favor. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "A district judge faced with [a summary judgment motion] must decide ... whether the state of the evidence is such that, if the case were tried tomorrow, the plaintiff would have a fair chance of obtaining a verdict. If not, the motion should be granted and the case dismissed." Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572-73 (7th Cir.1989) (citations...

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