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COURT OF APPEALS DECISION DATED AND RELEASED August 6, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0164
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
FRANCIS PENTERMAN,
SR., AND
RUTH KAMNIK,
Plaintiffs-Appellants,
DUPONT MUTUAL INSURANCE, A
WISCONSIN INSURANCE CORPORATION,
Involuntary-Plaintiff,
v.
WISCONSIN ELECTRIC
POWER COMPANY,
A DOMESTIC CORPORATION
Defendant,
DANIEL M. DASHO,
Defendant-Respondent.
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, J. 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 (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 deprivation of a
constitutionally protected property interest caused by a state employee's
random, unauthorized conduct does not give rise to a § 1983 procedural due
process claim, unless the state fails to provide an adequate postdeprivation
remedy. Zinermon v. Burch,
494 U.S. 113, 130 (1990); Jones v. Dane County, 195 Wis.2d 892,
914-15, 537 N.W.2d 74, 80 (Ct. App. 1995).
Where the state cannot predict and guard in advance against a
deprivation, a postdeprivation tort remedy is all the process the state can be
expected to provide, and is constitutionally sufficient. Jones, 195 Wis.2d at 914-15,
537 N.W.2d at 80.
The complaint includes
allegations that Dasho attributed stray voltage to on farm causes when he knew
such an attribution was false and that he conspired with WEPCo to conceal
evidence of the stray voltage. The
appellants cite Bretz v. Kelman, 773 F.2d 1026 (9th Cir. 1985),
for a per se rule that a conspiracy can never be characterized as random. This position was rejected in Easter
House v. Felder, 910 F.2d 1387, 1399 (7th Cir. 1990). While a conspiracy is not random from the
point of view of the conspirators, a conspiracy may be a random act, if from
the point of view of the state, the state cannot anticipate or control such
conduct in advance. Id. We conclude that the state could not be
expected to predict and guard in advance against Dasho's alleged conduct. The state cannot be expected to anticipate
that Dasho would conspire to conceal evidence regarding stray voltage on a
farm. Because Dasho's alleged
unauthorized actions are both random and unpredictable, we next look to whether
the state provides an adequate postdeprivation remedy.
We conclude that the
state provides adequate postdeprivation remedies. Based on Dasho's alleged conduct, the appellants would have
several tort remedies available under Wisconsin law.[3] Postdeprivation remedies provided by the
state will not be considered inadequate even if they fail to provide all the
relief which may have been available had the appellants proceeded under §
1983. Casteel v. Kolb,
176 Wis.2d 440, 445-46, 500 N.W.2d 400, 403 (Ct. App. 1993). Because Dasho's conduct was random and
unpredictable and state law provides adequate postdeprivation remedies, the
process is sufficient. See Jones,
195 Wis.2d at 914-15, 537 N.W.2d at 80.
Therefore, we conclude that the appellants have failed to state a claim
for deprivation of procedural due process.
Next, the appellants
contend that they stated a claim for deprivation of protected property
interests in violation of substantive due process. The appellants alleged in their complaint that WEPCo and Dasho's
wrongful conduct caused them
substantial
injury and damages including death of livestock, reduction in value of affected
livestock, reduction in milk production, and reduction in value of their farm
property.
Substantive due process
rights are founded not upon state provisions but upon deeply rooted notions of
fundamental personal interests derived from the Constitution. Mangels v. Pena, 789 F.2d 836,
839 (10th Cir. 1986). The protections
of substantive due process have, for the most part, been limited "to
matters relating to marriage, family, procreation, and the right to bodily
integrity." Albright v.
Oliver, 114 S.Ct. 807, 812 (1994).
Accordingly, mere property interests are not subject to substantive due
process claims. Regents of
University of Michigan v. Ewing, 474 U.S. 214, 229-30 (1985) (Powell,
J., concurring); see also Mangels, 789 F.2d at 839; Kauth
v. Hartford Ins. Co., 852 F.2d 951, 956-57 (7th Cir. 1988). Because the property interests asserted by
the appellants bear little resemblance to the fundamental interests that
previously have been viewed as protected by the Constitution, we conclude that
the appellants failed to state a claim for deprivation of substantive due
process. See Ewing,
474 U.S. at 229-30.
Finally, the appellants
contend that Dasho's conduct deprived them of the equal protection of the
laws. The equal protection clause of
the Fourteenth Amendment guarantees that "all persons similarly situated
should be treated alike." City
of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). Generally, equal protection
claims require the complainant be a member of a cognizable class. See Huebschen v. DHSS,
716 F.2d 1167, 1171 (7th Cir. 1983); Esmail v. Macrane, 53 F.3d
176, 178 (7th Cir. 1995). Because the
appellants are not members of a cognizable class, their equal protection claim
in general would fail. However, there
is an exception to the cognizable class requirement as stated in Esmail. Esmail held that unequal
treatment which is motivated by vindictiveness or animosity violates the equal
protection clause. Id. at
179. Because the appellants made no
allegation that Dasho's actions were motivated by vindictiveness or animosity
toward the appellants, we conclude that the appellants have failed to state a
claim for violation of equal protection.
Because we conclude that
the appellants' amended complaint fails to state a claim upon which relief
could be granted against Dasho, we affirm the order.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.
[1] 42 U.S.C. § 1983 provides in
relevant part:
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.
[2] Penterman also contends that the trial court erred when it determined that Dasho was entitled to qualified immunity from the claims. Because we conclude that the complaint does not state a claim upon which relief could be granted against Dasho, we need not address this issue. See Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983) (only dispositive issues need be addressed).