Larson v. Brown Cnty.
| Decision Date | 27 July 2012 |
| Docket Number | Case No. 11-C-0930 |
| Parties | RODNEY A LARSON, Plaintiff, v. BROWN COUNTY, DENNIS KOCKEN, JOHN P. ZAKOWSKI, JOHN D. MCKAY, JAMES W. DROOTSAN, WILLIAM POLLARD, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
POLLARD (DOC. 8), DENYING THE AMENDED MOTION TO DISMISS DEFENDANTS
BROWN COUNTY, DROOTSAN AND KOCKEN (DOC. 17)
Rodney A. Larson ("Larson") brought this civil rights action pro se under 42 U.S.C. §§ 1983 and 1985(2), against the following parties, which he asserts are responsible for his unlawful imprisonment: Brown County; Brown County Sheriff, Dennis Kocken ("Sheriff Kocken"); Brown County District Attorney, John P. Zakowski ("DA Zakowski"); Wisconsin Circuit Court Judge, John D. McKay ("Judge McKay"); Brown County Sheriff, James W. Drootsan ("Sheriff Drootsan"); and the warden of Green Bay Correctional Institution, William Pollard ("Warden Pollard"). Defendants DA Zakowski, Judge McKay and Warden Pollard moved to dismiss for lack of personal jurisdiction and ineffective service of process, Eleventh Amendment immunity, judicial immunity, prosecutorial immunity, the Rooker-Feldman doctrine and for failure to state a claim upon which relief may be granted. In addition, Brown County, Drootsan and Kocken have moved to dismiss for lack of personal jurisdiction and ineffective service of process. For the foregoing reasons, the initial motion to dismiss is granted in part and denied in part; the latter motion is denied.
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. Dismissal of an action under such a motion is warranted if the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir.1999); see Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The essence of a Rule 12(b)(6) motion is not that the plaintiff has pleaded insufficient facts; rather, it is that even assuming the facts presented are accurate, he has no legal claim. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999).
Federal notice pleading requires only that a plaintiff set out a "short and plain" statement of the claim providing a defendant with fair notice of his claim; fair notice does not require every element of a legal theory to be set forth. Scott, 195 F.3d at 951. However, the factual allegations must be enough to rise above the speculative level, meaning that the contentions have to state a claim that is plausible on its face. See Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). "[A] district court should dismiss a complaint if 'the factual detail . . . [is] so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (quoting Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663 (2007)). Conclusions or vague language are acceptable so long as a defendant can understand the claim. See Muick v. Glenayre Elecs., 280 F.3d 741, 744 (7th Cir. 2002).
On March 6, 1994, the Highway 54 T-Mart was robbed and a convenience store clerk was attacked in New Franken, which is located in Brown County, Wisconsin. Based upon Larson's complaint, the crime was classified as armed robbery and aggravated battery. The investigation was closed on January 11, 1996.
In 2005, the Wisconsin State Crime Laboratory tested a scarf found at the crime scene and the DNA of more than one individual was found. The DNA profile was similar to nine of Larson's fifteen genetic markers, and according to Larson, the test results should have excluded him as a suspect.
On November 21, 2005, Sheriff Drootsan and Sargent Eric Frost questioned Larson about the incident at the Highway 54 T-Mart. They did not read Larson his Miranda rights or record the conversation. On December 23, 2008, fourteen years after the crime and three years after Larson was questioned, an amended complaint was filed. Larson was charged with attempted first-degree intentional homicide, contrary to Wis. Stat. §§ 940.01(1), 939.32. He moved to dismiss the action arguing that the charge was barred by the statute of limitations, but the motion was denied. After a two-day trial, a jury found Larson guilty.
Larson appealed to the Wisconsin Court of Appeals. On June 21, 2011, the Wisconsin Court of Appeals concluded, pursuant to Wis. Stat. § 939.74(1), that a prosecution for attempted first-degree intention homicide must be commenced within six years. After serving two years and nine months in prison, the Court of Appeals reversed Larson's conviction and he was released. On October 5, 2011, Larson brought the present action and this court has granted his request to proceed in forma pauperis.
In their respective motions to dismiss, defendants argue that this court lacks personal jurisdiction over the defendants because Larson failed to serve defendants with process as required. Rule 4 of the Federal Rules of Civil Procedure provides in part:
(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). The Seventh Circuit has held that the 120-day period to effectuate service is tolled when the plaintiff relies on the United States Marshal to serve defendants, until the date on which in forma pauperis status is granted. Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 557 n.5 (7th Cir. 1996) (citing Paulk v. Dep't of the Air Force, 830 F.2d 79 (7th Cir. 1987)).
Here, the time period to serve defendants was tolled from Larson's request for in forma pauperis status, October 5, 2011, until this court granted his request, April 9, 2012. Counting 120 days from the court's April 9 order, the complaint must be served upon defendants no later than August 6, 2012. Consequently, defendants' respective motions to dismiss for lack of personal jurisdiction due to insufficient service will be denied and the United States Marshals' will be directed to serve defendants forthwith.
According to defendants Brown County, Sherif Kocken and Sherif Drootsan, a six-year statute of limitations applies to Section 1983 civil rights claims made in Wisconsin. Gary v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989). Hence, these defendants ask the courtto dismiss the action with prejudice asserting that the relevant statutes of limitations have expired.
Larson alleges that his civil rights were violated on various occasions, commencing November 21, 2005. Less than six years later, on October 5, 2011, Larson filed this action. Because Larson filed the complaint before the expiration of the relevant statute of limitations, his claims are not barred.
Defendants DA Zakowski, Judge McKay and Warden Pollard also move to dismiss asserting Eleventh Amendment immunity, judicial immunity, prosecutorial immunity, the Rooker-Feldman doctrine and failure to state a claim upon which relief may be granted. JUDGE JOHN D. MCKAY
It is a fundamental principle that judges are entitled to absolute immunity from damages for their judicial acts. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349 (1976); Richman v. Sheahan, 270 F.3d 430, 434 (7th Cir. 2001). Absolute immunity focuses on the governmental function being performed and the nature of the responsibilities of the official, not on the specific action taken. Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998). If a petitioner brought a claim against a judge defendant in his individual capacity for his or her judicial acts, the judge would nevertheless be entitled to judicial immunity. See Mireles, 502 U.S. at 9. The Seventh Circuit Court of Appeals analyzes three factors to determine whether a particular act or omission is entitled to judicial immunity: (1) whether the act or decision involves the exercise of discretion or judgment, or is rather a ministerial act which might as well have been committed to a private person as to a judge; (2) whether the act is normally performed by a judge; and (3) the expectationsof the parties, i.e., whether the parties dealt with the judge as a judge. Dawson v. Newman, 419 F.3d 656, 661 (7th Cir. 2005). Moreover, a judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.
This action was brought against Judge McKay in his individual and official capacities. (Compl. ¶¶ 7, 45.) Larson maintains that he was injured by Judge McKay when the judge: denied his motion to dismiss because he believed the issues were more appropriate for consideration by the appellate court (Compl. ¶ 34); denied the motion to dismiss knowing that if he granted the motion Larson would have avoided trial and imprisonment (Compl. ¶ 35); exercised his will and not his judgement by allowing a known time-barred prosecution (Compl. ¶ 35); based decisions upon his desire to clear the case from his docket (Compl. ¶ 36); denied the admission of exculpatory evidence (Compl. ¶ 36); denied various other motions (Compl. ¶ 36); failed to inform the jury that interrogation procedures did not comply with Wisconsin law (Compl. ¶ 36); and disregarded illegal acts brought to his attention (Compl. ¶ 36). Larson contends that Judge McKay allowed the case to progress despite warning signs that the prosecution was unlawful. (Doc. 20 at 4.)
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