Van Loo v. Braun

• Decision Date: 05 September 1996
• Docket Number: No. 95-C-367.,95-C-367.
• Citation: 940 F.Supp. 1390
• Parties: Cheryl L. VAN LOO, Plaintiff, v. Steve BRAUN, individually and in his official capacity as Chief of Police for the City of Markesan, Wisconsin; Richard Horzewski; Eileen Van Loo; and Elton Van Loo, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

940 F.Supp. 1390

Cheryl L. VAN LOO, Plaintiff, v. Steve BRAUN, individually and in his official capacity as Chief of Police for the City of Markesan, Wisconsin; Richard Horzewski; Eileen Van Loo; and Elton Van Loo, Defendants.

No. 95-C-367.

United States District Court, E.D. Wisconsin.

September 5, 1996.

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David Goluba, Ripon, WI, for Plaintiff.

Gregg T. Heidenreich, Stilp, Cotton & Wells, Milwaukee, WI, for Steve Braun.

Jon R. Wilsnack, Stam & Wilsnack, Markesan, WI, for Eileen Van Loo and Elton Van Loo.

John E. Thiel, Godfrey & Kahn, Oshkosh, WI, for Richard Horzewski.

DECISION AND ORDER

WARREN, District Judge.

Before the Court are two Motions for Summary Judgment filed separately by defendant Richard Horzewski and defendant Steven Braun. For the reasons that follow, the Court concludes that Horzewski and Braun are entitled to dismissal from suit for plaintiff's failure to raise a successful cause of action under 42 U.S.C. § 1983 and under the doctrine of qualified immunity. Therefore, the Court GRANTS both defendants' Motions for Summary Judgment.

I. PROCEDURAL BACKGROUND AND FINDINGS OF FACT

The plaintiff, Cheryl Van Loo, a resident of Markesan, Wisconsin, was married to Ronald Van Loo. Cheryl and Ronald had three children, Jessie, Jonathan and Laura. In March of 1995, Ronald and Cheryl were going through divorce proceedings. Only Laura, born October 28, 1988, was a minor at the time of the divorce. A temporary court order entered in the divorce proceedings gave joint custody of Laura to Ronald and Cheryl. Ronald had primary custody of Laura and Cheryl had visitation rights. (June 7 and August 5, 1994 Temporary Orders.)

On March 28, 1995, Ronald Van Loo died. At this time, Cheryl and Ronald's children were living with Ronald's parents, Elton and Eileen Van Loo. On March 29, 1995, Cheryl learned of Ronald's death and also learned that her daughter Laura was staying with her mother and father-in-law. On March 31, 1995, Cheryl called Eileen Van Loo in order to make arrangements to visit Laura on Saturday, as was her usual routine, and requested to take Laura to Ronald's funeral the next day. Eileen told Cheryl that Cheryl and Ronald's adult sons, Jessie and Jonathan, intended to take Laura to the funeral. Cheryl did not want to visit with Laura on Friday and did not attempt to make arrangements to visit Laura on Friday. (Cheryl Dep. at 16-18.)

Following that telephone conversation, Cheryl Van Loo went to the Markesan Police Station to see what she could do about "retrieving [her] daughter from the Van Loo's." (Cheryl Dep. at 20.) The officers she spoke with told Cheryl that they could not assist her. Cheryl Van Loo then telephoned her attorney, David Goluba, who contacted defendant Steven Braun, Chief of Police for the City of Markesan. (Braun Dep. at 9-10.) Chief Braun told Goluba that he could not take any action against Eileen and Elton Van Loo without a court order. (Id. at 14.) Furthermore, Braun, having assessed the situation, determined that no criminal act had taken place and there was no probable cause to make an arrest. (Id. at 15.)

Later, Cheryl Van Loo went to the Green Lake County Sheriff's Department. (Cheryl Dep. at 24, 31.) She spoke with Chief Deputy Sheriff Richard Horzewski who decided that the situation reported by Cheryl posed no threat of imminent danger to Laura Van Loo. (Horzewski Aff. ¶ 6.) Moreover, Horzewski consulted with Judge William McMonigal about Cheryl Van Loo's complaint. (Id. at ¶ 4.) Horzewski later spoke with John Selsing, Family Court Commissioner. (Horzewski Dep. at 15-16.) Horzewski determined that the Sheriff's Department was under no obligation to assist in what he perceived to be a civil matter and took no further action. (Horzewski Aff. ¶ 5.) Chief Braun called the Sheriff's Department and informed a dispatcher that he wanted to be notified if there was a call from the Van Loo residence. (Braun Aff. ¶ 13.)

During the morning of April 1, 1995, the next day, Cheryl Van Loo and Cheryl's mother, Angeline Laper, arrived at Eileen and Elton Van Loo's residence to take Laura to Ronald's funeral and parked in the Van Loo's driveway. (Cheryl Dep. at 30-32.) Eileen Van Loo contacted the police and Chief Braun was dispatched to the residence to assist in the situation. (Eileen Dep. at 9, 15, 26; Cheryl Dep. at 34-35.) Eileen Van Loo stated in her deposition that she called Chief Braun to assist because she did not want any "fighting and yelling" and because her grandsons, Jessie and Jonathan "were upset" and "wanted that little girl until after the funeral at least." (Eileen Dep. at 15, 26.) Eileen Van Loo believed that Cheryl was not going to attend the funeral. After speaking with all parties, Chief Braun told Cheryl Van Loo that she could return at 6:00 p.m. after the funeral to take Laura. (Cheryl Dep. at 38-40.) Cheryl consented to this compromise and stated "Okay and we'll be there." (Cheryl Dep. at 40.) Ms. Laper testified defendant Braun informed the plaintiff and her that he was "going to see if [he could] work something out," and Ms. Laper was "satisfied" with the arrangement to retrieve Laura at 6:00 p.m. that evening. (Laper Dep. at 29, 37.) Ms. Laper also testified that Cheryl "agreed" with defendant Braun. (Id. at 37.) While assisting in this domestic disturbance, Chief Braun visually observed the Van Loo residence and Laura and believed Laura was not in any danger and that her safety and well-being were not jeopardized. (Braun Aff. ¶ 11.) Cheryl Van Loo returned to the home of Eileen and Elton Van Loo at 6:00 p.m. on April 1, 1995, and picked up Laura. Eileen and Elton Van Loo did not resist Cheryl or give her any trouble. Laura has lived with Cheryl Van Loo since that time. (Cheryl Dep. at 41.)

In an affidavit submitted by Cheryl Van Loo, she states defendant Braun, while at Elton and Eileen Van Loo's residence, "became enraged and he raised his voice screaming that he was going to arrest [plaintiff and her] mother for trespassing if [plaintiff] did not leave." (Cheryl Aff. ¶ 14.) Ms. Laper testified that Officer Braun raised his voice. (Laper Dep. at 29.) Cheryl Van Loo states she was "directed" or "ordered" to return at 6:00 p.m. to pick up Laura, and did not "negotiate" or "agree" that Laura could stay with her grandparents. (Id. at ¶ 17.) Further, the plaintiff states in her affidavit she was intimidated by defendant Braun's yelling and was afraid of being arrested for trespassing.

On April 10, 1995, Cheryl Van Loo filed a complaint alleging that Eileen and Elton Van Loo (a) violated Wis.Stat. § 948.30(1)(b) by detaining a child who was not their own with the unlawful purpose of depriving the plaintiff of the parent/child relationship, the unlawful purpose of usurping plaintiff's parental rights, and the unlawful purpose of controlling the actions, conduct and freedom of the minor child, and (b) intentionally withheld Cheryl Van Loo's minor child from her parents for more than 12 hours, without the consent of the parent, in violation of Wis. Stat. § 948.31(2).

Cheryl Van Loo also claims that Steve Braun and Richard Horzewski (a) violated the First, Fifth and Fourteenth Amendments to the Constitution of the United States by purposefully and deliberately withholding police assistance and depriving Cheryl Van Loo of her minor child and parental rights, (b) violated the Fourteenth Amendment of the Constitution of the United States by singling plaintiff out for differential treatment by refusing law enforcement assistance, and (c) violated Wis.Stat. § 939.05(2)(b) by conspiring with Eileen and Elton Van Loo to violate Wis.Stat. § 948.30(1)(b) and Wis.Stat. 948.31(2) by extending the unlawful detention of Cheryl Van Loo's minor child through the denial of law enforcement assistance.

On November 16, 1995, this Court dismissed defendant Lance Buchholtz pursuant to the parties' stipulation for dismissal. Before the Court are defendant Richard Horzewski's fully briefed Motion for Summary Judgment, defendant Steven Braun's fully briefed Motion for Summary Judgment, and numerous Motions to Strike.¹ This Court has jurisdiction pursuant to 28 U.S.C. § 1343 and 28 U.S.C. § 1331 because the complaint attempts to allege a cause of action under 42 U.S.C. § 1983. Venue is proper in the Eastern District of Wisconsin because the events or omissions that form the basis of the complaint occurred in this district. 28 U.S.C. § 1391(b).

II. STANDARD OF REVIEW

Summary judgment is no longer disfavored under the Federal Rules. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) ("Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole which are designed to `secure the just, speedy and inexpensive determination of every action.'"). Indeed, Federal Rule of Civil Procedure 56 requires a district court to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; the requirement is that there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be material, it must relate to a disputed matter that "might affect the outcome of the suit." Id.

The party moving for summary judgment bears the initial burden of showing that there are no material facts in dispute and that judgment should be entered in its favor. Hannon v. Turnage, 892 F.2d...