Burritt v. Ditlefsen

• Decision Date: 30 November 2015
• Docket Number: No. 15–1896.,15–1896.
• Citation: 807 F.3d 239
• Parties: Paul BURRITT, Plaintiff–Appellant, v. Lisa DITLEFSEN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

807 F.3d 239

Paul BURRITT, Plaintiff–Appellant,

v.Lisa DITLEFSEN, et al., Defendants–Appellees.

No. 15–1896.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 2, 2015.

Decided Nov. 30, 2015.

Peter J. Nickitas, Peter J. Nickitas Law Office, LLC, Minneapolis, MN, for Plaintiff–Appellant.

Gesina M. Seiler, Axley Brynelson, Madison, WI, for Defendants–Appellees.

Before BAUER, POSNER, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

Plaintiff-appellant, Paul Burritt ("Burritt"), appeals the district court's order granting summary judgment in favor of defendants-appellees, Lisa Ditlefsen ("Ditlefsen") and Polk County, on all of Burritt's causes of action, as well as the district court's denial of his Rule 59(e) motion. Burritt's complaint advances claims under 42 U.S.C. § 1983 for false arrest and false imprisonment in violation of his Fourth and Fourteenth Amendment rights, as well as state common law claims for false imprisonment, malicious prosecution, negligence, and defamation. Burritt's claims stem from his arrest for an alleged sexual assault of an eleven-year-old girl, which allegation turned out to be false. For the following reasons, we affirm.

I. BACKGROUND

Because the facts giving rise to Burritt's arrest are central to the issues in this case, we present them in detail. In early November 2011, Handi–Lift Transportation, Inc. ("Handi–Lift"), a provider of transportation for medical purposes, hired Burritt as a driver. (Burritt had previously worked as an EMT). On November 23, 2011, Burritt was assigned to transport an eleven-year-old girl ("SMH") from Impact Counseling Services ("ICS"), located in Hayward, Wisconsin, to her home in Birchwood, Wisconsin. Burritt was not the regular driver of this route; he had never driven the route prior to November 23, 2011, and had not previously transported SMH.

Burritt picked SMH up at ICS at 4:15 p.m. At 5:01 and 5:02 p.m., SMH used Burritt's cell phone to call her mother to let her know she would be late. Burritt dropped SMH off near her home at 6:14 p.m. The distance between ICS and SMH's home is roughly 30 miles and should be a 40–minute drive.

A. Initial Investigation

Five days later on November 28, 2011, SMH told her counselor at ICS that the Handi–Lift driver sexually assaulted her on November 23, 2011; ICS contacted the Hayward Police Department. SMH was unwilling to speak with the male officer who responded, Ryan Ignace ("Ignace"). When Ignace could not locate a female police officer, he requested that Sara Ross Poquette ("Poquette") with Sawyer County Health & Human Services interview SMH.

When Poquette arrived at ICS, she met with Ignace, SMH, and SMH's mother and stepfather. Ignace told everyone that Poquette's interview of SMH would be recorded, and everyone consented.

Poquette began by questioning SMH about the difference between the truth and a lie. SMH gave appropriate responses indicating she knew the difference between the truth and a lie and that there are consequences of lying.

SMH reported that after Burritt picked her up at ICS, he deviated from the normal route and drove her to a house in the country, describing the property as an old farm with outbuildings or sheds, but without farm animals. SMH was able to draw a picture of the house, showing wooded areas and the driveway, and indicating where Burritt parked the Handi–Lift van. She stated Burritt got out of the van, went to the house and let out his six dogs, one of which was a pitbull.

SMH stated that after he let out his dogs, Burritt came back to the van, opened the sliding van door next to her, and touched her on her neck, chest, and pubic area, over her clothes. Burritt then tried to unzip her pants. She yelled, "Get away from me," kicked him, and closed the sliding van door on his hand. SMH then stated that Burritt punched her twice on the inside of her left knee, which left two small bruises. She stated that Burritt said, "I really wanted to have you."

SMH stated that Burritt closed the sliding van door, put his dogs away, and drove the van from the home. She thought Burritt was speeding because she saw a speed limit sign of "53" but Burritt was going 70. She saw the Dinner Bell Restaurant, located in Trego, Wisconsin. Burritt stopped at a gas station near Rice Lake, Wisconsin, got gas, and bought something in a brown paper bag, which SMH thought was beer. At some point during the trip, SMH used Burritt's cell phone to call her mother. Finally, Burritt dropped her off at a silage pile a short distance from her home because Burritt was afraid to drop her off in her driveway. Burritt told SMH to say they were late because they made a "ding dong disaster," went the wrong way, and took a wrong turn. Poquette, a qualified social worker, had no concerns about SMH's suggestibility or reliability, and felt SMH was credible and gave sufficiently detailed information.

Ignace then interviewed SMH's mother and stepfather. SMH's mother confirmed that SMH had called her on the night of the alleged assault. She reported that SMH told her the van driver told SMH to call and say they had made a wrong turn and were going to be late. She indicated SMH did not sound like her usual self during this phone call, and reported that SMH began having night terrors on the night of the alleged assault. SMH's mother and stepfather stated they were very strict about lying at home. The stepfather stated that he saw tire tracks by the silage pile, where SMH reported Burritt dropped her off, roughly 300 feet from their driveway.

On November 28, 2011, Ignace contacted Bill Lussier ("Lussier"), an owner of Handi–Lift, to request information about Burritt, which Lussier provided. Lussier also sent to Ignace a copy of the Handi–Lift transport log prepared by Burritt, which showed, per the odometer readings of the van, that Burritt traveled 121 miles to transport SMH, but "21" was written as the total miles traveled.

Lussier informed Burritt of SMH's allegations. Lussier had Burritt write out his own version of events pertaining to the November 23, 2011, transport of SMH. Lussier also directed Burritt to have his hand examined, given SMH's report of having closed the van door on Burritt's hand. Burritt went to a clinic the same day and had his hand examined, which showed no injury. Lussier sent Burritt's written statement and the results of the medical examination to the Hayward Police Department the following day.

On November 29, 2011, Ignace went to ICS and photographed a bruise on SMH's knee. Ignace and Hayward Police Assistant Chief Faulstich ("Faulstich") went to Burritt's home in Turtle Lake, Wisconsin, located in Polk County. Ignace took photographs of the property, noting several vehicles in the driveway bearing "EMT" license plates. Several dogs were present outside, and others could be heard barking inside the house. Between the house and the farm field were three buildings. Ignace did not see any farm animals. Faulstich and Ignace felt SMH's description of the location of the alleged assault matched Burritt's property.

Ignace reviewed Burritt's statement, in which he claimed he took a wrong turn that took him to Rice Lake. Ignace then used Yahoo maps to determine how long it would take to drive from ICS in Hayward to Rice Lake, through Trego via Highway 53, to SMH's home in Birchwood. (SMH had reported seeing a sign with "53" on it). Yahoo maps indicated a distance of 75 miles for this route. Faulstich and Ignace concluded that the alleged assault took place at Burritt's home in Polk County and referred the case to the Polk County Sheriff's Department.

B. Investigation by Ditlefsen and Polk County

Ditlefsen is an investigator employed by the Polk County Sheriff's Department since 2002. In 2003, she was assigned to the Investigations Unit, specializing in sensitive crimes (including sexual assaults of children). When she was assigned to Investigations, she received specialized training from the Department of Justice and the FBI on investigation of crimes against children. Since 2004, Ditlefsen has investigated roughly 500 cases involving sensitive crimes.

On December 1, 2011, Ditlefsen received a voicemail message from Faulstich informing her of a possible sexual assault case (SMH's case) in Polk County. The next day, Ditlefsen spoke with Faulstich, who informed her of the details of SMH's case, providing her with the information gained from their investigation. Ditlefsen reviewed various documents and photographs she received from the Hayward Police Department. In particular, she reviewed the Handi–Lift transport log for Burritt's trip, which Burritt had signed. The log reflected that Burritt picked up SMH at ICS at 4:15 p.m., with an odometer reading of 218,267 miles, and dropped her off at home at 6:20 p.m., with an odometer reading of 218,388 miles. Although the difference between the odometer readings revealed a total of 121 miles traveled, Burritt had recorded the total mileage of the trip as 21 miles. Ditlefsen thought the mathematical calculation error was suspicious and that the total miles traveled supported SMH's claims.

Ditlefsen also spoke with Poquette, whom she knew as an experienced child interviewer, about Poquette's interview of SMH. Poquette informed her of the information gained from the interview and agreed to send Ditlefsen her notes and a CD of the recorded interview.

Also on December 2, 2011, Ditlefsen spoke with SMH's mother. She confirmed that SMH was usually picked up from ICS at 4:00 p.m. and dropped off at home at 5:00 p.m. She confirmed that on November 23, SMH was roughly 1.5 hours late, arriving home around 6:30 or 6:45 p.m. She also confirmed that Burritt was not SMH's regular driver, and that he dropped SMH off by the silage pile, rather than pulling into the driveway. These details were in line with SMH's claims.

In addition, Ditlefsen reviewed a statement from Debbie Schlapper ("Schlapper"), SMH's counselor at ICS. The version of events given to Schlapper by SMH was consistent with the...