Kunik v. Racine County, Wis., 95-3414
| Decision Date | 30 January 1997 |
| Docket Number | No. 95-3414,95-3414 |
| Citation | 106 F.3d 168 |
| Parties | Michael KUNIK and Lisa Kretschmer, Plaintiffs-Appellants, v. RACINE COUNTY, WISCONSIN, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rick Halprin, (argued), Chicago, IL, Thomas Peters, Murphy, Peters & Davis, Chicago, IL, for Michael Kunik.
Rick Halprin, Chicago, IL, Victoria Kies Garoukian, Racine County Corporation Counsel, Racine, WI, Thomas Peters, Murphy, Peters & Davis, Chicago, IL, for Lisa Kretschmer.
Mark Vannucci, Victoria Kies Garoukian, Mark Janiuk, (argued), Racine County Corporation Counsel, Racine, WI, for Racine County, Wisconsin, Racine County, Wisconsin Sheriff's Department, Robert L. Rohner.
Mark Vannucci, Victoria Kies Garoukian, Racine County Corporation Counsel, Racine, WI, for Patrick Ketterhagen, James Litwin.
James L. Santelle, (argued), Office of the United States Attorney, Milwaukee, WI, for John R. Schaefer.
James L. Santelle, Office of the United States Attorney, Milwaukee, WI, Mark Vannucci, Racine County Corporation Counsel, Racine, WI, for Henry Creekmore, Robert Schaneck.
Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit Judges.
An issue of appellate jurisdiction is the first of several procedural points on which this case turns. Earlier, in Kunik v. Racine County (I), 946 F.2d 1574 (7th Cir.1991), this Court concluded that several claims brought by plaintiffs Michael Kunik and Lisa Kretschmer under 42 U.S.C. § 1983 against the individual Racine County, Wisconsin, defendants adequately stated claims for purposes of Fed.R.Civ.P. 12(b)(6). On remand to the district court, discovery proceeded, and the district court granted summary judgment in favor of the defendants. A confused set of proceedings followed, which we discuss below, in which the plaintiffs attempted to file first a motion for reconsideration of that order and then a notice of appeal. We conclude that their efforts were successful to bring both the summary judgment ruling and the denial of reconsideration before this Court, but we agree with the district court that summary judgment was proper for the defendants.
Because we are now reviewing the grant of summary judgment, the factual background of the case has been developed more fully than it was in Kunik I. We review those facts in the light most favorable to Kunik and Kretschmer and present them here from that perspective. This lawsuit had its genesis in the criminal investigation of the murder of taxi driver Robert Buckley, in Racine County, Wisconsin, around May 30, 1984. Defendant Patrick Ketterhagen was the primary investigator for the homicide unit of the Racine County Sheriff's Department. Two potential witnesses, Frank Brackett, Sr., and Frank Brackett, Jr., alerted Ketterhagen to the possibility that two sailors from the nearby Great Lakes Naval Base, to whom they gave a ride back to Great Lakes that night, may have been responsible. The Racine authorities accordingly requested assistance from the Naval Investigative Service (NIS) at Great Lakes, which responded by assigning NIS Special Agent John Schaefer to the case.
Some time between May 31 and June 19, one Henry Creekmore contacted Schaefer and furnished information implicating Kunik, Kretschmer, Chester Adams, and James Hodges in the murder. Based on that information, Schaefer and Ketterhagen prepared photographic spreads with pictures of Kunik and Adams, which they showed to the Bracketts and Sandy Rexilius, a store clerk who had seen two sailors on the night in question. Brackett, Jr., positively identified Adams as one of the two men who came to his home on the night of the murder, and Rexilius positively identified Kunik as one of the two men who were with Brackett, Sr., in her store. Brackett, Sr., was unable to identify either Kunik or Adams, although he thought that Kunik might have been one of the two men he drove back to Great Lakes that night. Finally, Ketterhagen and Schaefer interviewed Hodges, who said that he was present when Adams and Kunik allegedly planned the murder of a cab driver. Hodges also claimed that Adams had told him that Adams had stabbed the cab driver while Kunik took his money and Kretschmer hid in the bushes.
The next day, warrants were issued for the arrests of Adams and Kunik. The authorities caught up with Adams in Pennsylvania, along with Kretschmer (his girlfriend), whom they also arrested under an earlier Lake County, Illinois, warrant for an unrelated offense. They found Kunik in Kenosha County, Wisconsin. Much of the present lawsuit is based on the interrogation of Kretschmer that followed these arrests; Kunik, for his part, consistently declined to make any statement. Kretschmer first offered the alibi that she was out on a birthday date on the critical night, but her social engagement proved to have taken place the night before. Continuing their interrogation, Ketterhagen and Schaefer misleadingly told Kretschmer that they had information leading them to believe that she was involved in the murder, that she had lied, and that Kunik had accused her of involvement in the crime. They discussed her personal situation, including the fact that she was pregnant, that she could end up having the baby in prison (implicitly if she did not cooperate), and that she might be able to get help for her substance abuse problem if she helped them. During the same interview, Kretschmer eventually admitted that she had not told the truth in her prior statement; in her second statement, she implicated Kunik and Adams, as well as herself and Hodges. Some time after this conversation, the Racine County Circuit Court issued a warrant for her arrest in connection with the Buckley murder. She later recanted her incriminating statements, both prior to the trial and at trial, claiming that they had resulted from Schaefer's and Ketterhagen's "intimidation, threats and coercion." As Kunik I noted, both Kunik and Adams were acquitted at the trial, and Kretschmer had received immunity prior to testifying.
Based on this record, the plaintiffs' complaint alleged that the individual Racine County defendants (who are the only ones left at this point) conspired to violate their civil rights, in violation of 42 U.S.C. § 1983 (Count I), and that they violated their civil rights by falsely accusing and arresting Kunik and Adams (Count III) and by falsely arresting and imprisoning Kretschmer on the murder warrant (Count IV). The complaint also contained other counts that Kunik I held were properly dismissed. 946 F.2d at 1580, 1582. At this stage, therefore, we have only to consider the conspiracy and substantive claims brought by Kunik and Kretschmer against Sheriff Robert Rohner and Deputies Ketterhagen and James Litwin, in their individual capacities.
The posture in which the district court received the summary judgment motions is important to our evaluation of the court's ruling. In keeping with Eastern District of Wisconsin Local Rule 6.05, the defendants supported their motion with extensive evidentiary materials, including detailed affidavits from the officers involved, deposition transcripts of the parties involved, court records and transcripts from the underlying criminal case, and similar materials. Based on those submissions, they also offered separately numbered proposed findings of fact. In response, as the district court put it, Local Rule 6.05(d) provides that "[i]n deciding a motion for summary judgment, the court will conclude that there is no genuine material issue as to any proposed finding of fact to which no response is set out." See also Fed.R.Civ.P. 56(e). Following those rules, the district court concluded that summary judgment for the defendants was "compelled."
In the interest of caution, however, the district court also chose to go the extra mile and to comb through the record on its own to see if there was "any evidence or testimony that may support plaintiffs' allegations that Schaefer (who was dismissed from the case in Kunik I ) and Ketterhagen conspired to and did knowingly obtain false evidence against Kunik and Kretschmer for the purpose of procuring their false arrest and imprisonment in violation of 42 U.S.C. § 1983." In the end, the court found only evidence that the two investigators used tactics that were intended to play on the witnesses' natural fears and self-interest. Viewing the case from the perspective of the law of qualified immunity, the court concluded that a reasonable officer would not have known either that the tactics in question were inherently coercive and violated clearly established law, or that the information elicited was clearly false. Thus, even apart from the plaintiffs' inadequate presentation of their motion, the court ruled that summary judgment for the remaining defendants was appropriate.
That judgment was officially entered on July 6, 1995. On July 17, 1995, the plaintiffs filed a motion for reconsideration under Fed.R.Civ.P. 60(b)(1), claiming that their failure to include supporting materials with their response to the summary judgment motion was the result of "excusable neglect." Astonishingly, the basis for this claim was plaintiff's counsel's explanation that he had simply signed the summary judgment brief without reading or reviewing it, which was why he knew nothing about its striking deficiencies. In his reply brief, plaintiff's counsel also argued that he no longer needed to rely on Rule 60, because he had...
To continue reading
Request your trial
-
Whitlock v. Brueggemann
...kinds of suspect techniques, unlike falsified evidence and perjured testimony, may turn out to be true. See, e.g., Kunik v. Racine Cnty., 106 F.3d 168 (7th Cir.1997) (granting qualified immunity to police defendants who obtained confession using coercive tactics because “such confessions mi......
-
Janusiak v. Cooper
..., 560 U.S. 370, 386–87, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010), and that Janusiak was eight months pregnant, see Kunik v. Racine Cty. , 106 F.3d 168, 174–75 (7th Cir. 1997) (section 1983 suit). But it also recognized that she had a high-school education, prior experience with law enforceme......
-
Luevano v. Wal-Mart Stores, Inc.
...(7th Cir.2000) (“a notice of appeal from a final judgment ... is adequate to bring up everything that preceded it”); Kunik v. Racine County, 106 F.3d 168, 172 (7th Cir.1997) (noting that Rule 3(c) does not require that “every individual order in a case that preceded final judgment ... be se......
-
Tango Music, LLC v. Deadquick Music, Inc.
...brings up the order denying the motion, Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Kunik v. Racine County, 106 F.3d 168, 173 (7th Cir.1997); Cintrón-Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d 522, 525 n. 3 (1st Cir.2002), and also since the groun......