Penterman v. Wisconsin Elec. Power Co.

• Decision Date: 06 August 1996
• Docket Number: No. 96-0164,96-0164
• Citation: Penterman v. Wisconsin Elec. Power Co., 554 N.W.2d 684, 204 Wis.2d 277 (Wis. App. 1996)
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Francis PENTERMAN, Sr., and Ruth Kamnik, Plaintiffs-Appellants, and DUPONT MUTUAL INSURANCE, a Wisconsin insurance corporation, Involuntary-Plaintiff, v. WISCONSIN ELECTRIC POWER COMPANY, a domestic corporation Defendant, and Daniel M. DASHO, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 684

554 N.W.2d 684

204 Wis.2d 277

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Francis PENTERMAN, Sr., and Ruth Kamnik, Plaintiffs-Appellants and DUPONT MUTUAL INSURANCE, a Wisconsin insurance corporation Involuntary-Plaintiff, v. WISCONSIN ELECTRIC POWER COMPANY, a domestic corporation Defendant and Daniel M. DASHO, Defendant-Respondent.

No. 96-0164.

Court of Appeals of Wisconsin.

Aug. 6, 1996.

APPEAL from an order of the circuit court for Outagamie County: JOHN A. DES JARDINS, Judge. Affirmed.

Before CANE, P.J., LaROCQUE and MYSE, JJ.

MYSE

Francis Penterman, Sr., and Ruth Kamnik appeal an order dismissing their complaint against Daniel Dasho because it failed to state a claim upon which relief could be granted and concluding that Dasho was entitled to qualified immunity from the claims. The appellants contend that the amended complaint stated a claim under 42 U.S.C. § 1983 ¹ for deprivation of constitutionally protected rights because Dasho's conduct deprived the appellants of: (1) the right of access to the courts as secured by the First and Fourteenth Amendments; (2) procedural due process; (3) protected property interests in violation of substantive due process; and (4) equal protection of the laws. We reject the appellants' arguments and affirm the order. ²

The appellants commenced an action against Wisconsin Electric Power Company (WEPCo) to recover damages from "stray voltage" on their dairy farm, alleging strict liability, nuisance, negligence, trespass and statutory violations. Following preliminary discovery, the appellants filed an amended complaint adding Dasho, of the Public Service Commission's Stray Voltage Assessment Team (SVAT), as a defendant and asserting various claims against Dasho and WEPCo under 42 U.S.C. § 1983.

According to the complaint, the appellants experienced substantial problems in their dairy operation, including reduced milk production and increased death and illness of cattle. After receiving an electrical shock from the bulk tank in their milk house, Penterman investigated and believed that stray voltage was accessing the barn through WEPCo's distribution line. Penterman then contacted SVAT, which contacted WEPCo. When WEPCo representatives came to the farm, they claimed the stray voltage was the result of on farm problems. Dasho later came to the farm to supervise and observe the testing. WEPCo continued to take the position that there was no utility problem and Dasho likewise represented that any utility responsibility had been fixed. Dasho then directed and supervised a limited SVAT analysis on the farm. In Dasho's report, he claimed that SVAT found no severe levels of stray voltage.

The complaint further alleged that Dasho, acting under color of state law, deliberately, intentionally and/or recklessly deprived the appellants of the constitutionally protected rights of access to the courts, substantive due process, procedural due process and equal protection. The appellants alleged that Dasho deprived them of these constitutionally protected rights by, among other things: (1) reporting information through testing he knew or should have known was improperly conducted and would produce inaccurate results; (2) attributing stray voltage to on farm causes when he knew or should have known that such an attribution was false; and (3) conspiring with and/or aiding and abetting WEPCo in its efforts to conceal evidence of utility-caused stray voltage on the farm.

Dasho moved to dismiss the amended complaint against him because he claimed it failed to state a claim upon which relief could be granted and because he was entitled to qualified immunity from the claims. The trial court granted the motion.

The issue whether the complaint states a claim upon which relief may be granted is a question of law that we review without deference to the trial court. Koestler v. Pollard, 162 Wis.2d 797, 802, 471 N.W.2d 7, 9 (1991). On review, we must accept as true the facts stated in the complaint and all reasonable inferences to be drawn from those facts. Greene by Schoone v. Farnsworth, 188 Wis.2d 365, 369, 525 N.W.2d 107, 109 (Ct.App.1994). We will affirm the dismissal only if it is quite clear that the plaintiff cannot recover under any circumstances. Id.

A party asserting a claim under 42 U.S.C. § 1983 must allege (1) that some person has deprived him of a federal right, and (2) that the person who deprived him of that right acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, ---, 64 L.Ed.2d 572 (1980). The parties do not dispute that the complaint sufficiently alleges that Dasho was acting under color of state law during the actions stated in the complaint. Therefore, we must address whether the allegations are sufficient to state a claim that Dasho deprived the appellants of a federal right.

First, the appellants contend that Dasho's conduct deprived them of the right of access to the courts. The right of access to the courts is one of the fundamental rights protected by the Constitution. Ryland v. Shapiro, 708 F.2d 967, 971 (5th Cir.1983). The appellants contend that the allegation that Dasho, individually and in concert with WEPCo, knowingly reported that no stray voltage existed when in fact stray voltage did exist is sufficient to allege denial of access to the courts.

The appellants rely on Ryland and Bell v. Milwaukee, 746 F.2d 1205 (7th Cir.1984), for their argument. In Ryland, the complaint alleged that a local prosecutor murdered Ryland's daughter. The local prosecutor then prevented a full investigation by cancelling an autopsy and getting a coroner to sign a death certificate listing suicide as the cause of death. Id. at 969. In Bell, police officers shot an unarmed youth in the back killing him. The officers then planted a knife in the youth's hand and conspired to portray the killing as self-defense. Id. at 1216. While the youth's father filed a wrongful death action soon after the killing, the officers' cover-up and resistance prevented him from gaining access to the key facts necessary to prove such a claim. Id. at 1261.

The courts in both Ryland and Bell concluded that the cover-up and resistance preventing access to key facts was sufficient for a claim of denial of access to the courts. Access to the courts must be adequate, effective and meaningful. Bell, 746 F.2d at 1261. This constitutional right is lost where police officials shield the public and the victim's family from key facts that would form the basis of the family's claims. Id. The appellants argue that Dasho similarly shielded key facts which form the basis of their claim against WEPCo and therefore they were denied their constitutional right of access to the courts.

We conclude that the complaint is not sufficient to state a claim that the appellants were denied their constitutional right of access to the courts. The appellants' complaint does allege that Dasho concealed facts by reporting that no stray voltage existed when in fact it did exist. However, both Ryland and Bell are distinguishable. In Ryland and Bell, the facts of the deaths were in the sole control of the defendants. In contrast, the facts allegedly concealed in this case were not in the sole control of Dasho. The appellants were personally involved and had firsthand knowledge of facts regarding the possibility of stray voltage. The facts known to the appellants were sufficient to enable them to obtain an expert to test for stray voltage and file a lawsuit promptly, unlike Ryland and Bell. The appellants were free to have an expert of their own choosing investigate the possibility of stray voltage. There is no allegation that Dasho attempted to prevent any additional investigation or that he concealed any physical evidence in order to prevent an investigation. The alleged concealing of facts did not deny the appellant access to the courts; at most, it hampered the discovery of evidence. Because Dasho was not in sole control of the facts allegedly concealed and because the evidence necessary to pursue a claim was readily accessible from alternate sources, this case is distinguishable from Ryland and Bell and we conclude that the complaint does not state a claim for denial of access to the courts.

The appellants next contend that the allegations were adequate to state a claim for violation of their rights to procedural due process. First, we note that the due process clause is not implicated by the negligence of an official causing unintended loss of or injury to life, liberty or property. Daniels v. Williams, 474 U.S. 327, 328 (1986). Accordingly, insofar as the complaint alleges negligence, the complaint does not state a claim for deprivation of procedural due process.

The appellants, however, also alleged in their complaint that Dasho's conduct was deliberate and intentional and that he conspired with WEPCo to conceal evidence. Therefore, we address whether the appellants have stated a claim for deprivation of procedural due process based on the alleged intentional conduct.

A...