Weber v. City of Cedarburg

• Decision Date: 08 May 1985
• Docket Number: No. 84-965,84-965
• Citation: 125 Wis.2d 22,370 N.W.2d 791
• Parties: Donald T. WEBER, Plaintiff-Appellant and Cross-Respondent, v. CITY OF CEDARBURG, Defendant-Respondent and Cross-Appellant, Eugene C. Boevers, Roland R. Church and Jacqueline S. Weber, Defendants.
• Court: Wisconsin Court of Appeals

Page 791

370 N.W.2d 791

125 Wis.2d 22

Donald T. WEBER, Plaintiff-Appellant and Cross-Respondent, v. CITY OF CEDARBURG, Defendant-Respondent and Cross-Appellant Eugene C. Boevers, Roland R. Church and Jacqueline S. Weber Defendants.

No. 84-965.

Court of Appeals of Wisconsin.

Argued Jan. 30, 1985.

Opinion Released May 8, 1985.

Opinion Filed May 8, 1985.

Review Granted.

Mark J. Rogers of Angermeier & Rogers, Milwaukee, for plaintiff-appellant and cross-respondent.

Jeffrey A. Schmeckpeper, Milwaukee, argued, for defendant-respondent and cross-appellant; Jeffrey A. Schmeckpeper and Patti J. Kurth of Kasdorf, Dall, Lewis & Swietlik, S.C., Milwaukee, on brief.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

Donald T. Weber appeals the trial court's judgment dismissing his 42 U.S.C. § 1983 claims against the City of Cedarburg. Weber claims the trial court erred in holding his complaint failed to state a claim upon which relief can be granted. We agree with the trial court's interpretation and affirm.

Weber's complaint alleges that he was the victim of a conspiracy between two Cedarburg police officers and his then wife, Jacqueline Weber. He claims that the officers, acting under color of law and according to official policy of the City of Cedarburg, conducted surveillance of Weber. The surveillance consisted of following Weber to softball games and taverns, taking notes, running license checks on cars in the parking lots of the places Weber frequented and going to Weber's employer's apartment "for the purpose of illegally entering and searching said apartment." Weber asserts that the officers justified these activities by falsely characterizing Weber as a drug user and distributor. He maintains that the officers' conduct violated his constitutional rights to be free from search and seizure without probable cause, as well as a violation of his fourteenth amendment due process rights.

The trial court dismissed the complaint, ¹ holding that there was no showing that the plaintiff was deprived of a federal right and that no actual specific harm to the plaintiff was alleged. The court allowed twenty days for Weber to replead; Weber chose instead to appeal the court's decision.

Approximately a month after the trial court issued its decision, the Wisconsin Supreme Court released its decision in Enright v. Board of School Directors, 118 Wis.2d 236, 346 N.W.2d 771, cert. denied, --- U.S. ----, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). Enright involved a 42 U.S.C. § 1983 action brought by the parents of a murdered child against the City of Milwaukee School Board, alleging negligence on the part of a school board employee. After undertaking an extensive analysis of the United States Supreme Court's decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Enright court concluded that negligent conduct by government officials will not form a basis for a section 1983 claim if the state has provided a tort remedy as a means of redress for the deprivation of constitutional rights. Enright, 118 Wis.2d, at 255-56, 346 N.W.2d at 781. In other words, if adequate remedies exist under state law, the requirements of procedural due process have been satisfied and the aggrieved party cannot proceed under a 42 U.S.C. § 1983 claim. ²

Cedarburg urges this court on appeal to extend the Enright decision to intentional conduct on the part of a government official. Cedarburg notes that there is nothing in the Enright decision suggesting that the supreme court intended to limit Enright solely to claims of negligent conduct. The City also points to the recent United States Supreme Court decision of Hudson v. Palmer, 468 U.S. ----, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), which expressly holds that the Parratt decision applies to intentional conduct.

For intentional, as for negligent deprivations of property by state employees, the State's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy. [Emphasis added, footnote omitted.]

Id. at ---- - ----, 104 S.Ct. at 3204, 82 L.Ed.2d at 407-08. Given the recent Hudson decision, the City asserts that the logic of Enright must extend to intentional conduct on the part of government employees as well. We cannot agree.

It is precisely because the state fails to provide adequate relief that Weber's section 1983 action is not precluded by the Enright decision. Section 893.80(4), Stats., establishes municipal immunity for the intentional torts committed by its employees. This automatically forecloses an action against the City of Cedarburg. Because Wisconsin's own statutes expressly preclude a cause of action against a municipality for the intentional torts of its employees, the state does not provide any postdeprivation remedy for Weber against the City of Cedarburg.

Wisconsin does have a state statute which requires a political subdivision to pay damages and costs entered against an officer when that individual has been found in violation of the law while acting within the scope of his or her employment. Sec. 895.46(1), Stats. Case law has made clear, however, that a finding with regard to an action under "color of law" pursuant to 42 U.S.C. § 1983 is not identical to a finding that specific acts were done "within the scope of employment" of a public official or employee. Cameron v. City of Milwaukee, 102 Wis.2d 448, 456, 307 N.W.2d 164, 168 (1981). Because the Cameron court could not equate conduct within the scope of a municipal or state employees' employment and conduct which may be termed "under color of law," sec. 895.46(1) cannot be used as a state substitute for section 1983. This is because "color of law" is a much larger concept than "scope of employment." Therefore, sec. 895.46(1) does not provide a suitable postdeprivation remedy for Weber's claims.

Having clarified the scope of Enright, we now turn to the trial court's dismissal of the complaint. The court dismissed Weber's claims against Cedarburg on the ground that the defendant's conduct did not deprive Weber of any right, privilege or immunity secured by federal law or the United States Constitution.

A pleading challenged by a motion to dismiss should be liberally construed with a view to achieving substantial justice. First National Bank of Wisconsin Rapids v. Dickinson, 103 Wis.2d 428, 432, 308 N.W.2d 910, 912 (Ct.App.1981). A claim should not be dismissed "unless it appears to a certainty that no relief can be granted under any set of facts that [the] plaintiff can prove in support of his allegations." Morgan v. Pennsylvania General Insurance Co., 87 Wis.2d 723, 732, 275 N.W.2d 660, 664 (1979) (citations omitted). Whether the facts alleged in a pleading state a claim on which relief can be granted presents an issue of law which we review independently on appeal. First National Bank, 103 Wis.2d, at 433, 308 N.W.2d at 912.

There are two elements essential to a 42 U.S.C. § 1983 action: (1) the defendant's conduct must be committed under color of state law, and (2) this conduct must deprive someone of rights, privileges or immunities secured by federal law or the United States Constitution. Schatzke v. Earl, 115 Wis.2d 546, 547-48, 340 N.W.2d 745, 746 (Ct.App.1983). The trial court, in its decision, held that the second element was lacking in Weber's complaint.

Weber claims the following violations were adequately alleged in his complaint:

(1) The right to be free from a search and seizure without reasonable or probable cause and the right to be let alone and to be free from unwarranted governmental intrusion into his private life;

(2) To be free from the loss, without due process, of his liberty interest in avoiding the unreasonable and arbitrary governmental intrusion on his privacy and right to be let alone; and

(3) To be free from the loss, without due process of his liberty and property interest in his reputation, business and profession.

(1) Fourth Amendment Violation

Weber alleges no search or seizure of his person, house, papers or effects by the defendants without a warrant or other lawful authority. Rather, he asserts that the defendants violated the fourth amendment by following him to softball games and taverns and by going to Weber's employer's apartment "for the purpose of illegally entering and searching said apartment." It is not alleged that the defendants ever actually entered the apartment. We agree with the trial court that no fourth amendment violation has been stated.

All surveillance is not per se violative of constitutional rights. Glaros v. Perse, 628 F.2d 679, 684 (1st Cir.1980). Law enforcement officers are entitled to reasonably "see what there is to be seen and to hear what there is to be heard, provided that the Fourth Amendment is complied with." Martinez v. Winner, 548 F.Supp. 278, 335 (D.Colo.1982) (footnotes omitted). " 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' " Id., quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). We do not perceive the data gathering of events which took place in a public forum in and of itself to be violative of Weber's fourth amendment rights. See Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335, 1337-38 (3d Cir.1975). Indeed, Weber says nothing about the conduct of the individual defendants to distinguish their behavior from that of an ordinary nosey neighbor. See Glaros at 684. This, we hold, is insufficient to constitute a violation of Weber's constitutional rights. ³

(2) Loss of Liberty Interest and

Governmental Intrusion in Private Life

Again, Weber asserts that the "stalking" activities of the defendants violated his constitutional right to be left alone. The right to privacy is a relatively narrow right, limited to protection against government interference in matters such as...