Anderson v. City of West Bend Police Dep't

• Decision Date: 28 February 2011
• Docket Number: Case No. 09–CV–840.
• Citation: 774 F.Supp.2d 925
• Parties: Heather M. ANDERSON and Dustin M. Wichmann, Plaintiffs,v.CITY OF WEST BEND POLICE DEPARTMENT, Community Insurance Corporation, Russell Petranech and Steven Wellner, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

774 F.Supp.2d 925

Heather M. ANDERSON and Dustin M. Wichmann, Plaintiffs,

v.CITY OF WEST BEND POLICE DEPARTMENT, Community Insurance Corporation, Russell Petranech and Steven Wellner, Defendants.

Case No. 09–CV–840.

United States District Court, E.D. Wisconsin.

Feb. 28, 2011.

Timothy J. Algiers, O'Meara Law Firm LLP, Michael S. Kenitz, Kenitz Law Office, Hartford, WI, for Plaintiffs.Michele M. Ford, Crivello Carlson SC, Milwaukee, WI, for Defendants.

ORDER

J.P. STADTMUELLER, District Judge.

On July 31, 2009, plaintiffs Heather M. Anderson (“Anderson”) and Dustin M. Wichmann (“Wichmann”) filed a complaint in the Washington County Circuit Court. In their complaint, plaintiffs allege the violation of their Fourth Amendment rights pursuant to 42 U.S.C. § 1983 and the violation of their privacy rights under Wisconsin law by virtue of a warrantless home entry and the fact and manner of their arrests by defendants City of West Bend Police Department (“Police Department”), Community Insurance Corporation (“Community Insurance”), Russell Petranech (“Officer Petranech”), and Steven Wellner (“Officer Wellner”). On September 1, 2009, the defendants removed this action to the U.S. District Court for the Eastern District of Wisconsin. (Docket # 1). The defendants allege that jurisdiction lies under 28 U.S.C. §§ 1331 and 1334. (Notice of Removal ¶ 5).

On June 1, 2010, the defendants filed a motion for summary judgment. (Docket # 18). Subsequently, on June 30, 2010, the plaintiffs filed a motion to amend the summons and complaint. (Docket # 's 36, 38).¹ After carefully considering the parties' submissions regarding the plaintiffs' claims, as well as the plaintiffs' motion to amend the complaint, the court will grant in part and deny in part plaintiffs' motion to amend and the court will grant in full defendants' motion for summary judgment.

BACKGROUND

In July of 2008, plaintiffs Anderson and Wichmann lived together in a second floor apartment located in West Bend, Wisconsin.² In the early morning of July 13, 2008, Wichmann returned home from the bar and a verbal altercation between the couple ensued. After the couple went to bed and later awoke on July 13, 2008, the argument continued and escalated. At some point, Wichmann and Anderson went out to the balcony of their second-floor apartment to have a cigarette and continue their fight. Anderson soon began crying, then Wichmann returned inside the apartment and locked Anderson out, leaving her screaming. Eventually, Wichmann unlocked the balcony door and let Anderson back into the apartment. Once back inside, the two continued arguing. The parties all agree that the argument was sufficiently loud for the neighbors to hear. In fact, one neighbor called 911 to report the disturbance. The neighbor later reported to law enforcement that though he had heard the couple argue before, this time he heard what sounded like furniture moving, things banging around, and a female voice saying: “Help me, help me.”

In response to the 911 call, Officer Wellner and Officer Petranech arrived at the scene and proceeded to knock on the side common door of the apartment complex. Anderson eventually responded to the officers' knocks downstairs. She had “obviously been crying” and appeared very upset. Anderson opened the door to the officers. They asked her to step outside and indicated they needed to make sure she was okay. Anderson refused their request, stated she did not need help, said she was “fine,” retreated, closed the door and locked it against the officers.

The parties disagree over whether Anderson told Officers Petranech and Wellner that she would be “right back” before locking the door and retreating to the apartment. The officers recall Anderson making a comment of this sort. (Ford Aff., Exs. C, D [Wellner Dep. 157:13–17; Petranech Dep. 16:19–24] ) (Docket # 26). Anderson does not deny promising the officers she would return or asking them to “hold on”; however, she does not confirm she said those words either. Instead, Anderson testified as follows:

Q: Did you tell [the officers] that you were not going to come outside?

A: I believe I said something—that I was fine and I didn't need to talk to them any further or something to that effect.

Q: And then you shut the door and locked it against the police officers?

A: I told them—I believe I told them something about having to put out my cigarette because there was lots of smoke in the hall.

Q: And you shut the door and locked it against the police officers?

A: Yes.

(Ford Aff., Ex. A [Anderson Dep. 113:25, 114:1–12] ). Though the plaintiffs attempt to create a factual dispute based on this testimony, the court finds that the reasonable inferences drawn from the above evidence suggest that Anderson's comments, whatever they actually were, left the officers with the impression that she would likely be returning to speak with them after she locked the door. It is undisputed that Anderson never returned to the door.

The lower unit tenant of the apartment complex, Gustave Witte, unlocked the side door for the officers, which led into a common hallway. The officers then climbed the stairs to the plaintiffs' apartment, announced themselves, and began knocking on the door. The officers knocked on the door and announced themselves repeatedly. At some point, Officer Petranech spoke to Lieutenant Vetter, his supervisor, who had also responded to the domestic abuse call. Lieutenant Vetter was advised of what the other two officers had observed with regard to Anderson's distraught appearance and failure to reappear to the side door, as she implied she would. Lieutenant Vetter then went to speak to witnesses and the officers set up a perimeter on the stairway to await the results of the investigation. It is agreed that the officers continued in their attempts to make contact with the plaintiffs for approximately twenty to twenty-five minutes. During this time period, Officer Wellner heard noise from within the apartment that led him to believe that individuals were inside the unit. Officer Petranech heard what he believed to be a television set turn on. Lieutenant Vetter soon returned and reported what he had learned from witnesses, including the report that the 911 caller heard a female voice say “help me” as well as banging sounds and furniture moving. Shortly before Lieutenant Vetter ordered a warrantless entry into the apartment, Wichmann called the dispatcher at the West Bend Police Department inquiring as to why there were police officers knocking on his door.

Officer Wellner broke down the interior apartment door. Upon entry into the apartment, the officers conducted a sweep of the unit with their weapons drawn, eventually finding both plaintiffs in the shower. Anderson believes she was initially hidden from the officers by the shower curtain and was not observed until after Wichmann was out of the shower and on the ground. Both plaintiffs were ordered out of the shower and onto the ground. The plaintiffs initially refused the requests because they were naked. The parties do not dispute that after Wichmann's refusal to voluntarily step out of the shower, Officer Petranech grabbed him, threw him over his leg in a takedown maneuver, causing Wichmann to hit his face against the floor.

Anderson grabbed a bath mat to cover the front of her body when she stepped out of the shower. Officer Petranech admits to pointing his weapon at where he believed Anderson's body would be, after she poked her head out from behind the shower curtain. He kept it pointed at her while repeatedly ordering her out of the shower. Once Anderson was out of the shower, Officer Petranech handcuffed Wichmann, applying pressure with his knee to Wichmann's arm and back. Wichmann claims the pressure from the handcuffs “messed up” his wrists. (Wichmann Dep. 81:19–25). The parties do not dispute that Officer Petranech dragged Wichmann about 8 to 10 feet, while he was still on the floor, into the adjacent kitchen where Officer Wellner took custody of the plaintiff and escorted him to the bedroom. Wichmann received a burn on his hip from the friction between his body and the floor. While in the bedroom, Wichmann was assisted in putting on shorts and the handcuffs were temporarily removed to allow him to put a shirt on before leaving the apartment.

Officer Petranech also handcuffed Anderson and took her into another room to be dressed. Officer Petranech assisted Anderson in getting dressed while she was still handcuffed, all the while allowing her to keep the bath mat covering the front portion of her body. Once her shorts were halfway up, Officer Petranech removed her handcuffs from one arm and allowed Anderson to finish putting on her shorts. Anderson was not re-cuffed until she finished dressing. The parties do not dispute that Anderson was denied requests for a female officer in front of which she could change. Anderson also objected to having only Officer Petranech in the room while she changed and, therefore, Officer Wellner came into the room as well. (Anderson Dep. 233:11–18). Once she was fully clothed, the officers searched Anderson. Anderson contends this search was unreasonable as the officers had already picked out her clothes and, thus, had no reason to search her person. Plaintiffs received a municipal citation for disorderly conduct, without a domestic abuse enhancer, as a result of this incident.

DISCUSSION

I. Motion to Amend

The court finds it most expedient to first address the plaintiffs' motion to amend the complaint as its resolution affects the court's disposition on summary judgment. The plaintiffs request leave to amend the complaint in four ways. First, in recognition that the Police Department is not a suable entity under § 1983, the plaintiffs request an amendment changing the municipal defendant from the Police Department to the City of West Bend. Second, the plaintiffs seek amendment of the complaint to clarify that Officers...