Bernardi v. Klein
| Decision Date | 25 January 2010 |
| Docket Number | No. 08-cv-758-slc.,08-cv-758-slc. |
| Citation | 682 F.Supp.2d 894 |
| Parties | John A. BERNARDI, Plaintiff, v. Brian KLEIN and Mandy Caygill, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Order Denying Reconsideration
COPYRIGHT MATERIAL OMITTED
Nicole Vander Meulen, Vander Meulen Law Office, Madison, WI, for Plaintiff.
Lori Marie Lubinsky, Brian C. Hough, Gesina M. Seiler, Axley Brynelson, LLP, Madison, WI, for Defendants.
STEPHEN L. CROCKER, United
States Magistrate Judge.
On December 31, 2006, defendants Brian Klein and Mandy Caygill, two police officers for the Village of Hazel Dean, Wisconsin, stopped plaintiff John Bernardi and later arrested him on suspicion of drunk driving. After results of a blood test showed that plaintiff had no ethanol in his blood, plaintiff brought this lawsuit under 42 U.S.C. § 1983 and state law. Two motions are before the court: (1) defendants' motion for summary judgment, see dkt. 13; and (2) plaintiffs motion for leave to amend his complaint, see dkt. 24.
I will deny plaintiff's motion for leave to amend his complaint as unnecessary. Plaintiff does not seek to add any new allegations to the lawsuit; he simply wishes to clarify that some of his allegations apply to his federal law7 claim in addition to his state law claim. That is not required. Even after Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, -U.S.--, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), Fed.R.Civ.P. 8, simply requires a plaintiff to provide notice of a claim that is plausible on its face. Brooks v. Ross, 578 F.3d 574, 580-81 (7th Cir. 2009). Rule 8 does not require plaintiffs to match facts with a particular legal theory—it is not even necessary for plaintiffs to include legal theories in a complaint. Jogi v. Voges, 480 F.3d 822, 826 (7th Cir. 2007); see also Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992) (). Plaintiff did all he needed to do by giving defendants notice of the facts that make up his claims.
Plaintiff's claim is divided into five parts: (1) defendants lacked reasonable suspicion to stop his car; (2) defendants lacked reasonable suspicion to require him to perform field sobriety tests; (3) defendants lacked probable cause to arrest him; (4) defendants committed the tort of intentional infliction of emotional distress through their actions during the stop and arrest; and (5) defendants intentionally omitted important facts from their police report. I conclude that I must grant summary judgment to defendants on all but the first claim.
With respect to the defendants' decision to stop plaintiff, I must deny summary judgment because the parties dispute the facts that defendants rely on to support a finding of reasonable suspicion. However, I am granting summary judgment for defendants on plaintiffs remaining Fourth Amendment claims because plaintiff has failed to show that defendants' decisions to conduct field sobriety tests and arrest him violated clearly established law. Plaintiff's claim for intentional infliction of emotional distress must be dismissed, both because he failed to comply with the notice of claim statute, Wis. Stat. S 893.80, and because the evidence shows that he cannot meet the elements of the claim. Finally, plaintiff has failed to show that any misinformation in the arrest reports violated his constitutional rights.
From the parties' proposed findings of fact and the record, I find that the following facts are undisputed:
UNDISPUTED FACTS
On December 31, 2006, around 8:00 p.m., plaintiff John Bernardi, a 61-year-old man, was driving home from dinner on Highway 80 outside the Village of Hazel Green in southwestern Wisconsin. Plaintiff was with his wife and three other guests around the same age. Defendant Brian Klein, a police officer for the village, also was traveling on Highway 80, which is a two-way, single lane highway with a speed limit of 55 miles per hour. Klein was off duty at the time.
Defendant Klein observed plaintiff's car and began to follow it. The weather was very windy, causing plaintiff to slow down when the wind hit his car.
Suspecting that the vehicle's driver might be impaired, defendant Klein called the Grant County Sheriffs Department. Klein gave the department plaintiff's license plate number and car color.1 The dispatch officer told Klein that defendant Mandy Caygill was on duty in Hazel Green; Klein told the dispatch officer that he would be following plaintiff's car into the village.
The dispatch officer contacted defendant Caygill, telling her that defendant Klein had observed "a possible drunk driver." The officer gave Caygill the description, license plate number and location of plaintiff's car. Once Caygill spotted plaintiff's car, she began to follow it, positioning her squad car behind plaintiff's car and ahead of Klein's. Klein flashed his headlights at Caygill to signal that she was following the right car.
Defendant Caygill followed plaintiff's car for 7/10 of a mile. (The parties dispute whether plaintiff's car crossed the center line during this time.) At approximately 8:30 p.m., Caygill activated her emergency lights and stopped plaintiffs car. This was her first traffic stop for suspected drunk driving.
Caygill approached plaintiffs car.2When plaintiff asked Caygill why she had stopped his car, she told him that he had crossed the center line. Plaintiff produced his driver's license upon request and Caygill took the license back to her squad car. Defendant Klein ran a check on plaintiff's license, which showed that plaintiff had no previous arrests for impaired driving. Klein shared this information with defendant Caygill.
Defendant Caygill returned to plaintiff's car and asked him whether he had been drinking; plaintiff said that he had "one margarita before dinner." The passengers in the car concurred. (The parties dispute whether plaintiff smelled like alcohol.) Plaintiff spoke "slowly and deliberately." Plaintiff did not slur his speech at this time or any other time throughout the evening and he never changed the way he spoke.
Defendant Caygill instructed plaintiff to step out of his car to perform field sobriety tests. Plaintiff responded that he did not want to perform the tests because he had not done anything wrong. After Caygill threatened to arrest plaintiff, he agreed to perform the tests.
Plaintiff informed defendants that he was suffering from neck and back problems and that he was being treated by a chiropractor. In addition, plaintiff said that he needed to use the bathroom. (The parties dispute whether plaintiff said he was suffering from "leg" problems and whether he told defendants he was not sure that he could perform the tests.) Defendants did not ask plaintiffs wife for confirmation of plaintiff's statements. The air temperature was "freezing cold" and the wind was still "blowing hard."
Defendant Caygill first conducted the Horizontal Gaze Nystagmus test, which Caygill had not conducted before. The test is 77% accurate and is the most reliable of all the tests. Caygill instructed plaintiff to follow her pen with his eyes without turning his head. Caygill had been trained to
look for three possible clues in each eye: (1) as the eye moves from side to side, whether it moves smoothly or jerks, (2) when the eye moves as far to the side as possible and is kept at that position, whether it jerks distinctly, and (3) as the eye moves toward the side, whether it starts to jerk prior to a 45 degree angle.
Dft.'s PFOF, dkt. 15, ¶ 83.
As plaintiff followed the moving pen, he moved his head. Plaintiff told Caygill that he moved his head because she moved the pen outside his field of vision. (The parties dispute whether plaintiff's eyes jerked during the test.)
Next, defendant Caygill administered the "one leg stand" test, which requires the subject to count to 30 out loud with one leg raised approximately six inches off the ground, keeping the raised foot parallel to the ground and his arms at his sides. After Caygill demonstrated the test for plaintiff, she instructed him to perform the test, elevating his foot until she told him to put it down. After six seconds, plaintiff put his foot down. During a second attempt, plaintiff swayed, used his arms for balance and then put his foot down after twelve seconds.
Third, defendant Caygill administered the "walk and turn" test, which requires the subject to perform these maneuvers: (1) take nine heel-to-toe steps on a straight, imaginary line while watching his feet, keeping his hands by his side and counting each step out loud, (2) turn 180 degrees by planting the front foot on the line and taking a series of short, choppy steps with the other foot, (3) take nine heel-to-toe steps back on the same line while watching his feet, keeping his hands by his sides and counting each step out loud. Caygill demonstrated the test to plaintiff and gave him instructions. During the test, plaintiff did not perform the turn as instructed, lost his balance, began a new line while walking back and walked 16 steps instead of nine.
Finally, defendant Caygill asked plaintiff to perform an "alphabet test," which is not a "standardized" field sobriety test like the other tests she administered. Plaintiff performed this test without difficulty.
While plaintiff was performing the tests, Caygill "heard the release of gas from the Plaintiff's bottom on more than one occasion." Each time this happened, plaintiff told defendants that he "desperately needed" to use the bathroom. Defendants denied these requests.
After plaintiff completed the tests, defendant Caygill informed...
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