COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 13, 1996 |
NOTICE |
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. 95-1683
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
MICHAEL R. BEHR,
Plaintiff-Appellant,
v.
DOUGLAS COUNTY,
WISCONSIN,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Douglas County:
JOSEPH A. MCDONALD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Michael Behr appeals a summary judgment
dismissing his 42 U.S.C. § 1983 action against Douglas County. Behr argues that his pleadings state a claim
upon which relief can be granted.
Because Behr has failed to allege that an official policy of Douglas
County resulted in a constitutional violation, the complaint fails to state a
§ 1983 claim against Douglas County.
We affirm the judgment of dismissal.[1]
When reviewing summary judgment, we apply the
standard set forth in § 802.08(2), Stats.,
in the same manner as the circuit court.
Kreinz v. NDII Secs. Corp., 138 Wis.2d 204, 209, 406 N.W.2d 164, 166 (Ct. App. 1987). A reviewing court first examines the pleadings
to determine whether claims have been stated and whether material factual
issues are presented. See Grams
v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980).[2] In reviewing the sufficiency of the
complaint, we accept as true all well-pleaded facts and reasonable inferences
therefrom. Baxter v. Vigo County
School Corp., 26 F.3d 728, 730 (7th Cir. 1994). We are not compelled to accept conclusory
allegations concerning the legal effect of the facts pled in the
complaint. Id.
In general, the
complaint need not set out specific facts, but must provide notice of the
essential elements of the claim. Jackson
v. Marion County, 66 F.3d 151, 154 (7th Cir. 1995); see also §
802.02(1), Stats.; cf. Sutliff,
Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir. 1984) (Even under
notice pleading, pleader must still include either direct or inferential
allegations respecting all the material elements of a claim, and bare legal conclusions
attached to the narrated facts will not suffice.).
Behr argues that to
state a claim for relief under 42 U.S.C. § 1983, only two elements are
required: (1) the plaintiff must have
been deprived of a right secured by the constitution or laws of the United
States, and (2) the defendant's actions must have been taken under the color of
state law, relying on Kramer v. Horton, 125 Wis.2d 177, 184-85, 371 N.W.2d 801, 805
(Ct. App. 1985), rev'd on other grounds, 128 Wis.2d 404, 383 N.W.2d 54
(1986)). Behr's analysis misses the
mark. Kramer did not
involve a claim against a municipality.
A municipality is not liable in a § 1983 action "unless a
municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant County
Narcotics, Intell. & Coord. Unit, 113 S.Ct. 1160, 1162 (1993); Monell
v. DHSS, 436 U.S. 658, 690-91 (1978).
Consequently, Kramer's analysis, albeit reversed on other
grounds, is inapplicable to the case before us.
Municipalities can
"be held liable under Section 1983 for constitutional violations
caused by their official policies, including unwritten customs." Strauss v. City of Chicago, 760 F.2d 765, 766-67 (7th Cir. 1985). Municipalities cannot be held liable solely
on a theory of respondeat superior.
Id. at 767.
Proximate causation between the policy and the injury must be
present. Id. "A successful suit requires the
plaintiff to establish that he was injured, and that some municipal policy,
custom or practice proximately caused the injury." Id. In some circumstances, municipal § 1983
liability may be imposed for a single decision by a municipal policymaker. Pembauer v. City of Cincinnati,
475 U.S. 469, 480 (1986).
Here, Behr's complaint
fails to allege any policy or custom on the part of Douglas County. It fails to allege any decision of a
policymaker. The complaint's first five
paragraphs allege jurisdiction and identity of parties. The next three paragraphs allege general
legal conclusions that Douglas County, through its officers, acted under the color
of law to deprive Behr of his First and Fourteenth Amendment rights. These allegations contravene Monell,
which "made very clear ... that municipalities could not be held liable
solely on a theory of respondeat superior" in a § 1983 action. Strauss, 760 F.2d at 767. Paragraphs seven through nine generally
allege willful intimidation, harassment, damage, conspiracy to do the same,
fraud and perjured statements. They do
not allege any official policy, unwritten custom, policymaker's decision, or
make any allegation from which to infer these elements.
The next four paragraphs
allege factual matters, but fail to state any claim upon which relief could be
granted. Paragraph 10 alleges that
Douglas County failed to remedy its illegal behavior when notified of it, and
failed to respond to Behr's questions.
Without stating any date, paragraph 11 alleges that Behr, after he had
mailed out a publication, was taken prisoner on a Friday and held until the
following Tuesday. However, paragraph
11 fails to allege that it was Douglas County that made the arrest, or that the
arrest was made without a warrant or without probable cause. At the very least, Behr must allege what
made his arrest illegal and how it was a result of Douglas County's official
policy or unwritten custom. See Strauss. Paragraph 12 alleges that Douglas County
refused to take "corrective action" in response to Behr's
"demand[]."
Paragraph 13 alleges
that Behr was taken prisoner a second time on July 3 and held by Douglas
County for approximately two weeks. The
final paragraph, 14, alleges Behr's damages.
Again, these paragraphs state no year, nor that the arrest was without
probable cause or a warrant. It fails
to identify how the arrest was illegal or how it was caused by an official
policy or unwritten custom of Douglas County.
"The existence of a policy that caused a plaintiff's injury is an
essential part of Section 1983 liability ...." Strauss, 760
F.2d at 768. Some allegation indicating
the existence of such policy must be pled.
Without some indication,
apart from the fact of employment, that a policy causing plaintiff's injury
might exist, the plaintiff simply cannot proceed in court against the
municipality. Id. Because Behr has failed to allege that a
policy existed, and has failed to make any allegation from which to infer such
policy, his complaint fails to state a § 1983 claim upon which relief may be
granted.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] Behr also argues that Douglas County failed to establish a prima facie defense and that he established a material dispute of fact precluding summary judgment. Because the first issue is dispositive, we do not reach these other issues.
[2] If the complaint states a claim and the pleadings show the existence of material factual issues, the court examines the moving party's affidavits and supporting proofs to determine whether it has made a prima facie case for summary judgment. Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980). However, because we conclude that the complaint fails to state a claim upon which relief may be granted, we do not reach these next steps.