Weber v. City of Cedarburg, 84-965

• Decision Date: 02 April 1986
• Docket Number: No. 84-965,84-965
• Citation: 129 Wis.2d 57,384 N.W.2d 333
• Parties: , 54 USLW 2551 Donald T. WEBER, Plaintiff-Appellant and Cross-Respondent-Petitioner, v. CITY OF CEDARBURG, Defendant-Respondent and Cross-Appellant, Eugene C. Boevers, Roland R. Church and Jacqueline S. Weber, Defendants.
• Court: Wisconsin Supreme Court

Page 333

384 N.W.2d 333

129 Wis.2d 57, 54 USLW 2551

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

Defendants.

No. 84-965.

Supreme Court of Wisconsin.

Argued Feb. 10, 1986.

Opinion Filed April 2, 1986.

Robert C. Angermeier, Milwaukee, argued, for plaintiff-appellant and cross-respondent-petitioner; Mark J. Rogers and Angermeier & Rogers, Milwaukee, on brief.

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

CECI, Justice.

This is a review of a decision of the court of appeals, Weber v. City of Cedarburg, 125 Wis.2d 22, 370 N.W.2d 791 (Ct.App.1985), affirming a judgment of the circuit court for Ozaukee county, Richard T. Becker, circuit judge, presiding, entered on May 3, 1984. The circuit court dismissed Donald T. Weber's 42 U.S.C. section 1983 claims against the city of Cedarburg (Cedarburg).

The issue is whether Weber's complaint alleges conduct which results in the deprivation of any of Weber's constitutional rights or interests. We find that Weber's complaint does not set forth any cognizable deprivation of any rights, privileges or immunities extended by the Constitution. We, therefore, affirm the court of appeals' decision which left intact the circuit court's judgment dismissing Weber's section 1983 claims against the city of Cedarburg for failure to state a claim upon which relief could be granted.

Defendant Eugene Boevers was, at the time material to this case, chief of police of the city of Cedarburg; defendant Roland Church was a sergeant on the Cedarburg police force. Jacqueline S. Weber, the other named individual defendant, was the wife of the plaintiff at the time material to this action. Donald Weber filed a complaint on May 10, 1982, in which he alleged, among other things, that he was the victim of a conspiracy conducted by these three which extended from the spring of 1980 until January 12, 1981.

Weber claimed that the police chief, acting under color of law, directed a pattern of official police surveillance of him, without any basis for believing Weber had committed or was about to commit an unlawful activity. The alleged police misconduct consisted of Boevers' ordering Church to conduct surveillance on Weber, including following Weber to softball games and taverns, to conduct license checks on the cars in the parking lots of the places Weber frequented, and to take notes on Weber's activities and then report such activities to Boevers. Church also allegedly went to an apartment of Weber's employer "for the purpose of illegally entering and searching said apartment," but Weber does not allege in his complaint that such an entry actually occurred. The purpose of the surveillance was allegedly for the personal benefit and advantage of Boevers and Jacqueline Weber.

To conceal the police misconduct and to justify the surveillance, the individual defendants publicly disclosed that Weber was suspected of using and distributing cocaine and other unlawful drugs, even though the defendants "knew there was no basis" for the assertions. ¹

Weber bases his section 1983 action against Cedarburg on the allegation that Boevers' and Church's conduct and actions were under color of law; that Boevers' actions, because Boevers was chief of police, "established the official policy, practices, and customs" of Cedarburg's police department; and that the police conduct "was pursuant to a pattern and practice of similar unwarranted acts of surveillance and illegal break-ins as established and ordered by defendant Boevers ..., committed at or about the same time period as the violation of the plaintiff's rights."

Weber claims that the police misconduct deprived him of the following constitutional rights:

"a. To be free from a search and seizure without reasonable or probable cause or warrant and his right to be let alone and to be free from unwarranted governmental intrusion in his private life, all as protected by the Fourth and Fourteenth Amendments to the United States Constitution;

"b. 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 as protected by the Fourteenth Amendment to the United States Constitution; and

"c. To be free from the loss, without due process, of his liberty and property interests in his reputation, business and profession as protected by the Fourteenth Amendment to the United States Constitution...."

As a result of the alleged constitutional deprivations, Weber complains of injury to his reputation, trade, and business, "particularly in his ability to make career advancements"; to his loss of right to privacy; and to his right to be free from loss of liberty and property interests without due process of law, all in the amount of $500,000.

Following its answer, Cedarburg moved the circuit court for an order dismissing the complaint against itself because, among other things, Weber failed to comply with statutory procedure for maintaining an action against Cedarburg and because the complaint failed to state a claim upon which the court could grant relief.

The circuit court initially dismissed the complaint for Weber's failure to comply with the notice of claim statute, section 893.80(1)(b), Stats. ² The court of appeals reversed. Upon remand, the circuit court again dismissed the complaint, this time on section 1983 grounds, holding that the pleadings did not suggest any deprivation of Weber's constitutional rights. The circuit court also held that Weber's complaint alleged no actual specific harm; rather, only conclusory allegations of harm were made. The court gave Weber 20 days within which to amend his complaint; instead, he appealed the court's decision to the court of appeals.

The court of appeals likewise concluded that Weber failed to adequately plead a cognizable constitutional deprivation. It held that no fourth amendment deprivation was alleged because Weber claimed no search or seizure of his person, house, papers, or effects. Weber, 125 Wis.2d at 28, 370 N.W.2d 791. It also held that the right to be free from governmental intrusion is very narrow; Weber's allegations with respect to his privacy rights did not "establish a violation of a constitutionally protected right" because attendance at softball games and taverns do not come within constitutional perimeters. Id. at 29, 370 N.W.2d 791. Finally, the court determined that the allegation that Weber " 'has suffered in his reputation, trade and business and particularly in his ability to make career advancement ...' does not sufficiently describe or allege an actual deprivation of constitutionally protected rights...." Id. at 29-30, 370 N.W.2d 791.

The purpose of a motion to dismiss for failure to state a claim upon which relief can be granted is to test the legal sufficiency of the claim. Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660 (1979). Because pleadings are to be liberally construed, a claim for relief should not be dismissed unless it appears "that no relief can be granted under any set of facts that plaintiff can prove in support of his allegations." Id. at 732, 275 N.W.2d 660.

Whether a complaint states a claim upon which relief can be granted presents a question of law. This court reviews questions of law without deference to lower courts. Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis.2d 63, 71, 375 N.W.2d 648 (1985). Because this action comes to this court on appeal from a motion to dismiss for failure to state a claim, only the allegations made within the complaint are relevant to our decision.

Weber relies on 42 U.S.C. section 1983 to hold Cedarburg liable for any misconduct of Boevers and Church. That section provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. section 1983 (1982).

An inquiry into whether a complaint alleges a section 1983 action must focus on two essential elements: (1) whether the conduct of which the plaintiff complains was committed by a person acting under color of state law; and (2) whether the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981). "The first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws' " of the United States. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979) (quoting 42 U.S.C. section 1983). Because addressing the first level of inquiry--whether the plaintiff suffered a cognizable deprivation--is dispositive of our review in this matter, we do not consider whether Boevers' and Church's conduct was under color of state law. ³ Weber's complaint alleges constitutional deprivation based on the fourth amendment (search and seizure); first amendment (freedom of association); and fourteenth amendment (deprivation of privacy and deprivation of liberty or property interest without due process of law) to the U.S. Constitution. Accordingly, we address each constitutional basis supporting Weber's section 1983 action against Cedarburg.

I.

The fourth amendment to the U.S. Constitution establishes "[t]he right of the people to be secure in their...