Brooks v. Peters

• Decision Date: 19 February 1971
• Docket Number: No. 70-C-476.,70-C-476.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Donna Reiter BROOKS et al., Plaintiffs, v. Wilmer PETERS, Sheriff of Menominee County, his deputies and special deputies, Daniel Aschenbrener, District Attorney, Shawano and Menominee Counties, George Kenote, James Freschette, and N. E. Isaacson and Associates, and all persons acting in concert or cooperation with them, Defendants.

322 F. Supp. 1273

Donna Reiter BROOKS et al., Plaintiffs, v. Wilmer PETERS, Sheriff of Menominee County, his deputies and special deputies, Daniel Aschenbrener, District Attorney, Shawano and Menominee Counties, George Kenote, James Freschette, and N. E. Isaacson and Associates, and all persons acting in concert or cooperation with them, Defendants.

No. 70-C-476.

United States District Court, E. D. Wisconsin.

February 19, 1971.

Joseph F. Preloznik, Wis. Judicare, Madison, Wis., David A. Suemnick, Green Bay, Wis., for plaintiffs.

Foley & Lardner, by Maurice McSweeney, Milwaukee, Wis., for Isaacson & Associates, Kenote and Freschette.

Eberlein & Eberlein, by Frederic C. Eberlein, Shawano, Wis., for Peters.

Robert W. Warren, Atty. Gen., by Mary V. Bowman, Asst. Atty. Gen., Madison, Wis., for Aschenbrener.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The plaintiffs in this action are Menominee Indians and members of an organization known as Determination of Rights and Unity of Menominee Stockholders ("DRUMS"). They allege that the defendants have violated the plaintiffs' first and fourteenth amendment rights by preventing the plaintiffs from assembling for the "purposes of peacefully, and in a non-violent manner, expressing certain grievances held by them." On August 27, 1970, this court, after a hearing, denied the plaintiffs' application for a temporary restraining order. All of the defendants except Daniel Aschenbrener have moved for dismissal of the plaintiffs' complaint; Mr. Aschenbrener has moved for summary judgment.

The complaint alleges that the plaintiffs are stockholders in a corporation called Menominee Enterprises, Inc., whose president is the defendant Joseph Freschette. Menominee Enterprises, Inc., has formed a partnership with another defendant, N. E. Isaacson and Associates, called "Lakes of the Menominees." The affidavit of George Kenote discloses that Lakes of the Menominees is involved in the development of a recreational area called Legend Lake.

The plaintiffs contend that it is their desire to conduct peaceful demonstrations in a parking lot near a sales office operated by the Lakes of the Menominees partnership. These demonstrations, the plaintiffs argue, are part of an attempt to gather proxies to end a voting trust which the plaintiffs aver is "diluting the control of stockholders of Menominee Enterprises, Inc." The defendant George Kenote is the chairman of the voting trust.

The plaintiffs also contend:

"6. That Defendants WILMER PETERS the sheriff of Menominee County, his deputies and special deputies, and DANIEL ASCHENBRENER the district attorney of Shawano and Menominee Counties, acting under color of state law, have subjected Plaintiffs who are citizens of the United States, to the deprivation of the rights of Freedom of Speech and Assembly as guaranteed by the 1st and 14th Amendments to the United States Constitution in that:

"a) Sheriff WILMER PETERS, his deputies and special deputies, with the acquiesence sic of District Attorney Aschenbrener, have refused to allow Plaintiffs entrance to a parking lot, which is not posted and which is otherwise held open to the public and to all white citizens, for purposes of peacefully, and in a non-violent manner, expressing certain grievances held by them.

"b) That Defendants have harassed and threatened Plaintiffs, and have permitted private individuals to harass and threaten Plaintiffs, thus aiming a `chilling effect' toward Plaintiff's sic rights of Freedom of Speech and Assembly as guaranteed by the 1st and 14th Amendments to the Constitution of the United States.

"7. That Defendant GEORGE KENOTE previously signed a complaint against Plaintiffs, causing their arrest by Sheriff PETERS, that Defendants knew or should have known that there was no basis for such complaint and arrest, that the complaint and arrest were made with the sole intent of harassing Plaintiffs, and that said complaint was subsequently dismissed by the District Attorney, on his own motion, as having no legal basis, and that said harassment produces a chilling effect on the exercise of Plaintiff's sic 1st and 14th Amendment rights.

"8. That on July 11, 1970, Paul Bang, a cameraman for National Educational Television (NET), while filming a meeting organized by DRUMS, was beaten by one of the deputies in the presence of the Sheriff, and that the Sheriff failed to act to stop the beating until the demand was made upon him by Joseph F. Preloznik, Attorney for the Plaintiffs, and that Plaintiff's sic fear that there will be recurrences of the beatings and harassment as experienced by Paul Bang and others, and that threats of such violence have indeed been made upon the lives and property of Plaintiffs and the members of DRUMS.

This court's jurisdiction and the plaintiffs' alleged cause of action is founded upon 28 U.S.C. § 1343(3) and (4), and 42 U.S.C. §§ 1981, 1982 and 1983. Injunctive relief, only, is sought.

It is my opinion that this is a proper case for the application of abstention. This case has had at least three separate contacts with the state courts. There has been a request for relief made to the circuit court for Outagamie County; there was communication with the county judge of Shawano-Menominee County; and, finally, there was a state arrest made pursuant to a formal complaint. Thus, there has been significant state court activity so as to suggest the applicability of the following language from Dombrowski v. Pfister, 380 U.S. 479, 484, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965):

"* * * It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings."

In Phillips v. Nash, 311 F.2d 513, 516 (7th Cir. 1962), the court said:

"We are convinced that Congress never intended, by the enactment of the Civil Rights Act, to open the federal courts to suits to be brought by those persons who have been prosecuted by a State's Attorney and who claim that such official acted with malice, or otherwise did not fully comply with his official duties. We should not, by judicial fiat, convert what would otherwise be ordinary state-law claims for false imprisonment, malicious prosecution or assault and battery into Civil Rights cases merely on the basis of conclusory allegations in a complaint that constitutional rights have been violated."

Although the complaint attempts to assert a cause of action under the civil rights act, the complaint does not, in my opinion, depict a situation in which state courts will fail to assure adequate vindication of these claimed constitutional rights. Thus, abstention would seem appropriate under Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), and 28 U.S.C. § 2283. In the recent case of Arensman v. Brown, 430 F.2d 190, 194 (7th Cir. 1970), the court quoted from Stefanelli et al. v. Minard et al., 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138 (1951), as follows:

"For even if the power to grant the relief here sought may fairly and constitutionally be derived from the generality of language of the Civil Rights Act, to sustain the claim would disregard the power of courts of equity to exercise discretion when, in a matter of equity jurisdiction, the balance is against the wisdom of using their power. Here the considerations governing that discretion touch perhaps the most sensitive source of friction between States and Nation, namely the active intrusion of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the States."

In Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), federal courts were directed to entertain applications for declaratory relief where first amendment rights were in jeopardy; however, in the case at bar, declaratory relief is not requested, but, instead, only an injunctive remedy is sought. There is no compelling reason why this court should assert power to decide the issues presented by this complaint; but, on the other hand, there is good reason for applying principles of comity to the existing situation. See Zwicker v. Boll, 270 F.Supp. 131 (W.D.Wis.1967), aff'd 391 U.S. 353, 88 S.Ct. 1666, 20 L.Ed.2d 642 (1968).

Even without the foregoing disposition because of abstention, I find that the complaint is insufficient as to the several defendants. I will now consider the claims against the various parties.

The motions to dismiss of Joseph Freschette and N. E. Isaacson and Associates must be granted. There is nothing in the complaint to indicate the manner in which these defendants were involved in the events alleged to have occurred. A civil rights complaint requires at least a modicum of factual allegations to link a defendant to the wrongs of which a plaintiff complains. See Borchlewicz v. Partipilo, 44 F.R.D. 540, 542 (E.D.Wis.1968).

It has already been noted that the only relief sought by the plaintiffs is of an equitable nature. Thus, this case is much like Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969), where the court stated at page 1086:

"This is a suit for equitable relief only and it is apparent from the literal wording of section 1983 that injunctive relief is a proper remedy

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