Carolus v. Whitney, C13-2051
| Decision Date | 05 September 2014 |
| Docket Number | No. C13-2051,C13-2051 |
| Court | U.S. District Court — Northern District of Iowa |
| Parties | WAYNE E. CAROLUS, Plaintiff, v. ROBERT M. WHITNEY, DUANE HILDENBRANDT (in his official capacity only), and BREMER COUNTY, IOWA, Defendants. |
I. INTRODUCTION ......................................2
II. PROCEDURAL HISTORY.................................2
III. RELEVANT FACTS.....................................2
IV. DISCUSSION.........................................9
V. ORDER............................................ 17
I. INTRODUCTION
This matter comes before the Court on the Motion for Summary Judgment (docket number 15) filed by the Defendants on July 16, 2014, the Resistance (docket number 22) filed by the Plaintiff on August 11, and the Reply (docket number 23) filed by the Defendants on August 21. Pursuant to Local Rule 7.c, the motion will be decided without oral argument.
II. PROCEDURAL HISTORY
On July 8, 2013, Plaintiff Wayne E. Carolus filed a complaint naming Robert M. Whitney, Duane Hildenbrandt, and Bremer County, Iowa as Defendants. Carolus claimed entitlement to recover for assault and battery, deprivation of state constitutional rights, defamation, abuse of process, federal civil rights violations (§ 1983), and malicious prosecution. Defendants filed an answer on September 9, 2013, denying the material allegations and asserting certain affirmative defenses.
On December 2, 2013, the Court adopted a proposed Scheduling Order and Discovery Plan submitted by the parties. Also at that time, the case was referred to me for the conduct of all further proceedings and the entry of judgment, in accordance with 28 U.S.C. § 636(c) and the consent of the parties.
After conferring with counsel, this matter was set for a jury trial beginning on March 30, 2015. On July 16, 2014, Defendants timely filed the instant motion for summary judgment.
III. RELEVANT FACTS
Plaintiff Wayne E. Carolus is a resident of Bremer County, Iowa. Defendant Robert M. Whitney is employed as a Bremer County deputy sheriff. Defendant Duane Hildenbrandt was sheriff of Bremer County when these events occurred, and is sued in his official capacity only.
The events giving rise to this action occurred on December 18, 2011. To understand the events of that date, however, it is necessary to first review the acrimonious relationship between Carolus and Pamela A. Carolus.1 Until recently, Carolus was married to Pamela. They have three children: John (now age 13), Elizabeth (age 11), and Mary (age 9).
The Iowa Domestic Abuse Act (Iowa Code Ch. 236) authorizes a person to file a verified petition in the district court seeking relief from domestic abuse. The court may enter a protective order, including provisions relating to temporary custody and/or visitation of children, and possession of a residence. While the record is somewhat imprecise, there was apparently an action brought by Pamela in 2010 pursuant to Iowa Code Ch. 236. No documents filed in that case are a part of this record, but an order filed in a subsequent divorce proceeding referred to "a companion Chapter 236 case that existed between the parties." See Defendants' App. 55. According to the order, "[t]he children have been in [Pamela's] custody since entry of a domestic abuse protective order in Bremer County No. DACV 0004205 (the 'DA action')."
At some point, Carolus filed for divorce in Bremer County No. CDDM 001675. On June 14, 2011, Judge Bryan H. McKinley adopted an "Order for Temporary Custody and Visitation and Temporary Restraining Order" submitted by the parties. See Defendants' App. 55-58. The children were placed in Pamela's temporary primary physical care, with Carolus to receive visitation on Wednesday afternoons and every other weekend. The order provided that "the parties will exchange the children at the children's school or at the Waverly Police Station if school is not in session."
Judge McKinley also ordered that "the parties are mutually enjoined and restrained from being or coming into each other's presence or communicating, whether directly or indirectly, with each other except as specifically permitted by the following exceptions to the general prohibitions of this restraining order." The order then permitted the parties to attend the children's activities, attend joint parenting counseling, and communicate by email regarding the children's activities, as detailed in the order.
On October 15, 2011, there was an altercation between Carolus and Pamela. Officer Tony Krull of the Waverly Police Department responded to the scene and interviewed Carolus. According to Carolus, John had been with him that day, and Pamela was going to drop Mary off so that she could take Elizabeth out for her birthday.2 Pamela was upset, however, and kept yelling at Carolus and wouldn't let him leave. Eventually, Pamela grabbed Carolus' left ear and her fingernail cut the back part of his ear, causing it to bleed. Pamela went to the Law Center and was questioned by officers. Pamela admitted that the parties argued and that she grabbed at Carolus when he wanted to leave. According to Pamela, Carolus then grabbed her throat and slammed her up against the side of a vehicle. Carolus admitted that he pushed her "in the chin and neck area" and she "fell back" toward the vehicle. After hearing both versions of the events, officers arrested Pamela for domestic abuse assault and released the girls to Carolus' care.
As part of the criminal proceeding, Judicial Magistrate Steven M. Egli issued a no contact order on October 16, 2011. See Defendants' App. 50-51. Carolus is named as the protected party, with Pamela named as defendant. Among other things, the order provides that Pamela "is restrained from any contact" with Carolus. The order further provides that"defendant [Pamela] may enter the residence once in the company of a peace officer to retrieve defendant's clothing and work-related items."
On November 1, 2011, Carolus filed a pro se request to clarify the "order of protection." See Defendants' App. 52. Specifically, Carolus asked that he be granted possession "of my farm and home," that the children be added as protected parties, and that the parties be permitted to contact each other in the presence of counsel "to speed up our divorce." Pamela, acting through counsel, filed a resistance on November 4. The matter came on for hearing before District Associate Judge Peter B. Newell on November 21. A transcript of the hearing is included in Defendants' Appendix as Exhibit B (Defendants' App. 29-40).3 Carolus, who was unrepresented by counsel at the hearing, told Judge Newell that he "would like to be able to go out to the farm" and believed that he "should be the one to have possession of the residence." Pamela's attorney responded by asserting that Judge McKinley's order "controls the custody and visitation issues." Pamela's attorney also noted that "[t]he children reside at the farm with Mrs. Carolus and have done so — in the house — the entire time the divorce has been pending." According to counsel, the initial Chapter 236 action awarded Pamela possession of the farm and "it was just assumed . . . that would continue" when the temporary custody order was entered by Judge McKinley.
After hearing the parties, Judge Newell stated that he was "not going to get involved" in issues that were going to be litigated in the divorce, such as "who's in possession of the house or who has custody of the children." Accordingly, Judge Newell announced that no modification of the no contact order would be entered. Carolus then asked for clarification regarding whether "this order prohibits me from being on my farm." Judge Newell responded: "This order doesn't do that." Carolus told JudgeNewell that he had been advised by Deputy Whitney that the order prohibited him from being on the farm. When Carolus asked that the assistant county attorney instruct the sheriff's department that he was allowed to be on the farm, Judge Newell responded "I don't know that that's true."
At that point, the assistant county attorney advised Judge Newell that when she talked to Carolus, he didn't seem to understand that the no contact order also prevented him from having contact with Pamela, and she explained that to him. Carolus apparently expressed concerns about wanting to be able to go on his farm and, according to the assistant county attorney, "I said if he had to conduct farming activities, I didn't see any reason he couldn't go onto his farm as long as he didn't have contact with Mrs. Carolus or go into the house where she was residing." Pamela's attorney then advised Judge Newell that neither the chapter 236 order nor the temporary order entered in the divorce action "really addressed the farm, per se." Pamela's attorney stated, however, that "I think as long as they didn't have direct personal contact, he could go in the fields; he just can't go in the house." Judge Newell concluded the discussion by again advising Carolus that "you can't have contact with her and she can't have contact with you."4
In an order filed on November 29, Judge Newell declined to modify the no contact order, citing the temporary custody and visitation and temporary restraining order entered by Judge McKinley in the divorce proceeding.
To continue reading
Request your trial