MICHELLE R. GILBANK v. WOOD COUNTY DEPARTMENT OF HEALTH SERVICES, et al.
No. 22-1037
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIEF OF DEFENDANTS-APPELLEES MARSHFIELD POLICE DEPARTMENT AND DEREK IVERSON
JASON R. JUST
DAVIS & KUELTHAU, s.c.
State Bar No.: 1104647
TIFFANY E. WOELFEL
DAVIS & KUELTHAU, s.c.
State Bar No.: 1093779
Attorneys for Defendants-Appellees Marshfield Police Department and Derek Iverson
318 S. Washington St., Suite 300
Green Bay, WI 54301
920.435.9378
Jason R. Just Direct Contact:
920.431.2226 – Phone
920.431.2266 – Fax
jjust@dkattorneys.com
Tiffany E. Woelfel Direct Contact:
920.431.2232 – Phone
920.431.2272 – Fax
twoelfel@dkattorneys.com
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No.: 22-1037
Short Caption: Gilbank v. Wood County Department of Health Services, et al.
(1) The full name of every party that the attorney represents in the case: Marshfield Police Department & Derek Iverson
(2) The names of all law firms whose partners or associates have appeared for the party in the case or are expected to appear for the party in this court: Davis & Kuelthau, s.c. (at the District and Appellate Courts); Corneille Law Group, llc (at the District Court only)
(3) If the party or amicus is a corporation: Not Applicable
i) Identify all its parent corporations, if any; and: Not Applicable
ii) List any publicly held company that owns 10% or more of the party‘s or amicus’ stock: Not Applicable
Attorney‘s Signature: s/ Jason R. Just
Attorney‘s Name: Jason R. Just
Date: February 15, 2022
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d).
Yes X No ___
Address:
318 S. Washington St., Suite 300
Green Bay, WI 54301
920.435.9378
Direct Contact:
920.431.2226 – Phone
920.431.2266 – Fax
jjust@dkattorneys.com
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No.: 22-1037
Short Caption: Gilbank v. Wood County Department of Health Services, et al.
(1) The full name of every party that the attorney represents in the case: Marshfield Police Department & Derek Iverson
(2) The names of all law firms whose partners or associates have appeared for the party in the case or are expected to appear for the party in this court: Davis & Kuelthau, s.c. (at the District and Appellate Courts); Corneille Law Group, llc (at the District Court only)
(3) If the party or amicus is a corporation: Not Applicable
i) Identify all its parent corporations, if any; and: Not Applicable
ii) List any publicly held company that owns 10% or more of the party‘s or amicus’ stock: Not Applicable
Attorney‘s Signature: s/ Tiffany E. Woelfel
Attorney‘s Name: Tiffany E. Woelfel
Date: February 15, 2022
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d).
Yes ___ No X
Address:
318 S. Washington St., Suite 300
Green Bay, WI 54301
920.435.9378
Direct Contact:
920.431.2232 – Phone
920.431.2272 – Fax
twoelfel@dkattorneys.com
RULE 26.1 DISCLOSURE STATEMENT................................i
RULE 26.1 DISCLOSURE STATEMENT................................ii
TABLE OF CONTENTS................................iii
TABLE OF AUTHORITIES................................vi
I. JURISDICTIONAL STATEMENT................................1
II. STATEMENT REGARDING ORAL ARGUMENT................................2
III. STATEMENT OF ISSUES(S)................................3
- Whether the District Court correctly determined that the Rooker-Feldman doctrine barred Ms. Gilbank‘s claims arising from the removal of her child in state court?................................3
- Whether the District Court correctly determined that the doctrine of issue preclusion barred Ms. Gilbank‘s constitutional claims?................................3
- Alternatively, whether the doctrine of qualified immunity bars Ms. Gilbank‘s claims against the MPD Defendants?................................3
IV. STATEMENT OF THE CASE................................4
A. The Relevant Parties................................4
B. Defendants’ Early Interactions with Ms. Gilbank and Her Daughter Arose from Concerns about Her Daughter‘s Welfare and Ms. Gilbank‘s Prior Drug Abuse................................5
D. The Wood County Courts Adjudicated All Issues Surrounding Custody of Ms. Gilbank‘s Daughter................................7
E. The Court Properly Dismisses All Claims against Defendants................................10
V. SUMMARY OF THE ARGUMENT................................12
VI. STANDARD OF REVIEW................................14
VII. ARGUMENT................................15
A. The District Court Properly Applied the Rooker-Feldman Doctrine................................16
B. The District Court Properly Found that Issue Preclusion Barred Ms. Gilbank‘s Due Process Arguments................................23
C. Alternatively, the Court of Appeals Could Affirm the District Court‘s Grant of Summary Judgment for the MPD Defendants on the Basis of Qualified Immunity................................27
D. Ms. Gilbank Waived Any Challenge to the District Court‘s Grant of Summary Judgment for the MPD Defendants on Her Remaining Claims................................35
VIII. CONCLUSION................................39
CERTIFICATE OF SERVICE................................42
Cases
Aldrich v. Labor and Ind. Review Comm‘n, 2012 WI 53, 341 Wis. 2d 36, 814 N.W.2d 433................................24, 25
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)................................14
Andrade v. City of Hammond, 9 F.4th 947 (7th Cir. 2021)................................15, 18
Brokaw v. Mercer Ctny., 235 F.3d 1000 (7th Cir. 2000)................................28, 31
Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009)................................30
Buchanan v. City of Kenosha, 57 F. Supp. 2d 675 (E.D. Wis. 1999)................................39
C.G. Schmidt, Inc. v. Permasteelisa N. Am., 825 F.3d 801 (7th Cir. 2016)................................13
Celotex Corp. v. Catrett., 477 U.S. 317 (1986)................................14
Chavez v. Ill. State Police, 251 F.3d 612 (7th Cir. 2001)................................30
Chavez v. Martinez, 538 U.S. 760 (2003)................................38
Continental Ins. Co. v. M/V Orsula, 354 F.3d 603 (7th Cir. 2003)................................27, 38, 39
DeShaney by First v. Winnebago Cnty. Dep‘t of Soc. Servs., 812 F.2d 298 (7th Cir. 1987)................................32, 35
Dunderdale v. United Airlines, Inc., 807 F.3d 849 (7th Cir. 2015)................................14
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)................................15, 16
Felton v. Ericksen, 366 F. App‘x 677 (7th Cir. 2010)................................30
Gaetjens v. City of Loves Park, 4 F.4th 487 (7th Cir. 2021)................................38
Garg v. Potter, 521 F.3d 731 (7th Cir. 2008)................................38
Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011)................................34
Hernandez v. Cook Cnty. Sheriff‘s Off., 634 F.3d 906 (7th Cir. 2011)................................36
Jensen v. Foley, 295 F.3d 745 (7th Cir. 2002)................................24, 27
Klein v. O‘Brien, 884 F.3d 754 (7th Cir. 2018)................................23
Local 15, Int‘l Brotherhood of Elec. Workers v. Exelon Corp., 495 F.3d 779 (7th Cir. 2007)................................36
Long v. Shorebank Dev. Corp., 182 F.3d 548 (7th Cir. 1999)................................22
Mains v. Citibank, N.A., 852 F.3d 669 (7th Cir. 2017)................................16, 17
Martin v. Illinois, No. 21-1149, 2022 WL 171926 (7th Cir. Jan. 19, 2022)................................15
Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997)................................36
N. States Power Co. v. Bugher, 189 Wis. 2d 541, 525 N.W.2d 723 (1995)................................25
O‘Brien v. Caterpillar Inc., 900 F.3d 923 (7th Cir. 2018)................................14
Pearson v. Callahan, 555 U.S. 223 (2009)................................28
Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 950 F.3d 959 (7th Cir. 2020)................................14
Rascon v. Hardiman, 803 F.2d 269 (7th Cir. 1986)................................30
Reed v. Palmer, 906 F.3d 540 (7th Cir. 2018)................................31
Reichle v. Howards, 566 U.S. 658 (2012)................................28
Shipley v. Chi. Bd. of Election Comm‘rs, 947 F.3d 1056 (7th Cir. 2020)................................23
Swartz v. Heartland Equine Rescue, 940 F.3d 387 (7th Cir. 2019)................................17, 19
United States v. White, 781 F.3d 858 (7th Cir. 2015)................................38
Valenti v. Lawson, 889 F.3d 427 (7th Cir. 2018)................................14
White v. Am. Fam. Mut. Ins. Co., No. 20-1803, 2022 WL 59403 (7th Cir. Jan. 6, 2022)................................23
White v. United States, 8 F.4th 547 (7th Cir. 2021)................................36
Whiting v. Marathon Cnty. Sheriff‘s Dep‘t, 382 F.3d 700 (7th Cir. 2004)................................39
Williams v. Berge, 102 F. App‘x 506 (7th Cir. 2004)................................24
Xiong v. Wagner, 700 F.3d 282 (7th Cir. 2012)................................30, 34, 35
Statutes
Rules
Seventh Circuit Rule 28(b)................................1
Seventh Circuit Rule 34(f)................................2
Ms. Gilbank‘s jurisdictional summary is neither complete nor correct. Therefore, Detective Iverson (“Det. Iverson“) and Marshfield Police Department (“MPD,” together “MPD Defendants“) set forth the following jurisdictional statement as required by Seventh Circuit Rule 28(b).
A. Information required by Seventh Circuit Rule 28(a)(1)
The District Court had jurisdiction over Ms. Gilbank‘s claims, which arose under federal law pursuant to
B. Information required by Seventh Circuit Rule 28(a)(2)
The appeal is of a final order and judgment. On December 15, 2020, the District Court dismissed several claims and defendants based upon motions to dismiss that had been filed.
The District Court then issued and Opinion and Order on Summary Judgment (the “Summary Judgment Order“) on December 10, 2021,
Ms. Gilbank filed her Notice of Appeal, Dkt. No. 135, and a Motion for Leave to Proceed in forma pauperis on appeal, Dkt. No. 136, on January 9, 2022. Therefore, the Notice of Appeal was timely filed. No motion for a new trial, motion for alteration of the judgment, or any other motion tolling the time within which to appeal was filed at the District Court.
C. Information required by Seventh Circuit Rule 28(a)(3)
The appeal is from a final order and judgment and no further claims or issues remain before the District Court.
II. STATEMENT REGARDING ORAL ARGUMENT
Pursuant to
III. STATEMENT OF ISSUES(S)
- Whether the District Court correctly determined that the Rooker-Feldman doctrine barred Ms. Gilbank‘s claims arising from the removal of her child in state court?
This Court should answer yes and affirm.
- Whether the District Court correctly determined that the doctrine of issue preclusion barred Ms. Gilbank‘s constitutional claims?
This Court should answer yes and affirm.
- Alternatively, whether the doctrine of qualified immunity bars Ms. Gilbank‘s claims against the MPD Defendants?
This Court should answer yes and could affirm the dismissal of the claims against the MPD Defendants on alternative grounds.
The District Court‘s Summary Judgment Order in favor of the Defendants presents the undisputed facts between Ms. Gilbank and the MPD Defendants. See Dkt. No. 131. To the extent MPD Defendants rely on facts that have not been presented the Summary Judgment Order, MPD Defendants will cite to the undisputed fact as presented in the summary judgment briefing.
A. The Relevant Parties
Michelle Gilbank is the mother of a minor daughter, who was born in 2014 and who was 4 years old during the time at issue. Summ. J. Order, Dkt. No. 131 at 2. Ms. Gilbank had sole custody and placement of her daughter until November 2017, when her daughter‘s father, Ian Hoyle, was granted supervised visitation rights. Id. Ms. Gilbank has a history of mental illness, including post-traumatic stress disorder, and methamphetamine use. Id.
At the relevant time Derek Iverson was a detective with MPD in Marshfield, Wisconsin, and Theresa Heinzen-Janz was an initial
B. Defendants’ Early Interactions with Ms. Gilbank and Her Daughter Arose from Concerns about Her Daughter‘s Welfare and Ms. Gilbank‘s Prior Drug Abuse.
On June 29, 2018, Ms. Gilbank and her child were living with Mr. Hoyle when an anonymous caller contacted Wood County HSD concerned about them because it appeared they were living in Mr. Hoyle‘s non-airconditioned garage in the summer heat. Id. at 3. Ms. Heinzen-Janz responded to the call. Id.
On July 3, 2018, Ms. Heinzen-Janz met with Ms. Gilbank again and Det. Iverson joined. Id. In preparation for the return visit, Ms. Heinzen-Janz learned that Ms. Gilbank had a history of drug use and a pending charge for possession of methamphetamine that occurred in August 2017. Id. Additionally, she spoke with Mr. Hoyle who expressed a concern about Ms. Gilbank‘s drug use. Id.
During the July 3, 2018 visit, Ms. Gilbank voluntarily provided a urine sample for a urinalysis. Id.; see also Dkt. No. 107 at PFOF 11.
C. Wood County DHS Initiates State Court Custody Proceedings over the 4-Year-Old Child After Ms. Gilbank Is Arrested for Drug Possession.
On August 21, 2018, Ms. Gilbank was pulled over for driving with a suspended license while her daughter was in the vehicle. Id. After a legal search, it was ultimately discovered that Ms. Gilbank had 0.7 grams methamphetamine in her purse, as well as several bags with white crystal-like residue and drug paraphernalia in her car. Id. Ms. Gilbank contacted Mr. Hoyle to come and take custody of their daughter. Dkt. No. 82-5.
Ms. Gilbank was then placed under arrest and taken to the police department, where she was interviewed by Det. Iverson and Ms. Heinzen-Janz. Summ. J. Order, Dkt. No. 131 at 4. Det. Iverson read Ms. Gilbank her Miranda rights and Ms. Gilbank stated she did not want to
D. The Wood County Courts Adjudicated All Issues Surrounding Custody of Ms. Gilbank‘s Daughter.
Ms. Heinzen-Janz then filed a request of temporary physical custody in Wood County Juvenile Court on August 22, 2018. Id. Ms. Heinzen-Janz also submitted a petition for a child in need of protective services under
The next day, August 24, 2018, Ms. Gilbank filed a motion to dismiss the temporary custody order, in which she alleged, at least in part, that there was insufficient evidence to support taking her child and that various government actors had violated her constitutional rights. Id. at 7. The Court denied Ms. Gilbank‘s motion. Id.
An evidentiary hearing for the CHIPS petition was held on September 25, 2018. Summ. J. Order, Dkt. No. 131 at 7. Ms. Gilbank was represented by counsel at the hearing. Id. An assistant district attorney presented evidence from Det. Iverson, Ms. Heinzen-Janz, Mr. Hoyle, and the officer that had arrested Ms. Gilbank the prior month. Id. Ms. Gilbank had the opportunity to cross-examine the state‘s witnesses, including Det. Iverson. Id. at 7-8. Ms. Gilbank, through her
On October 29, 2018, another hearing was held as to the placement of Ms. Gilbank‘s daughter. Id. Ms. Gilbank was once again represented by counsel. Id. Ms. Gilbank‘s attorney put forth evidence, including Ms. Gilbank testifying on her own behalf and a letter of support by Mr. Hoyle. Id. Ms. Heinzen-Janz appeared and testified that the child should remain with Mr. Hoyle. Id. Ultimately, the State Court agreed with Ms. Heinzen-Janz and concluded that the child should remain with Mr. Hoyle for at least a year. Id. at 9. Ms. Gilbank filed a pro se motion to dismiss the CHIPS petition arguing that the state had failed to present evidence that her daughter had been neglected, that the State Court refused to allow her to present evidence, and that her daughter should be placed with her. Id. The State Court denied the motion. Id.
E. The Court Properly Dismisses All Claims against Defendants.
In June 2020, Ms. Gilbank filed suit in the Western District of Wisconsin and sued nearly everyone she believed was involved in the investigation and legal proceedings removing her daughter from her custody. Id. Ms. Gilbank alleged that her constitutional rights were violated by the MPD Defendants in the following ways: she was forced to give a urine sample without a warrant; she was not provided an attorney after asking for one during the questioning after her arrest; and her daughter was placed with Mr. Hoyle without probable cause. Id. at 10. She also raised a number of arguments of constitutional violations by the other defendants, primarily arising from the State
Juvenile Court proceedings involving her daughter. Id. The MPD Defendants moved for summary judgment. Id. at 10.2Ultimately, the District Court granted MPD Defendants’ Motion for Summary Judgment, as well as that of the Wood County DHS Defendants. See generally Dkt. No. 131. The District Court held that any of her claims that arose from her child being removed from her—from the temporary removal through the custodial placement with Mr. Hoyle for one year by the State Court—were barred by the Rooker-Feldman doctrine. Id. at 11-12. Likewise, the Court found that Ms. Gilbank‘s due process claims were barred by the doctrine of issue preclusion. Id. at 14.
As to Ms. Gilbank‘s remaining constitutional claims, such as that she was forced to give a urinalysis without a warrant and that she was deprived of an attorney during questioning, and to the extent those arose outside of the State Court proceedings and were not barred by the Rooker-Feldman doctrine, the District Court found that the claims failed as a matter of law. Id. at 13. The District Court found that Ms. Gilbank consented to the urinalysis; thus, there was no constitutional
On January 10, 2022, Ms. Gilbank filed a notice of appeal. Dkt. No. 3. Because the District Court‘s analysis was correct, and because Ms. Gilbank has provided no reason to reverse its decision, the Court should affirm the District Court.
V. SUMMARY OF THE ARGUMENT
The District Court appropriately applied the Rooker-Feldman doctrine and found that it lacked subject matter jurisdiction over any of Ms. Gilbank‘s claims against the MPD Defendants that are inextricably intertwined with the State Court‘s juvenile decisions as to custody of her child. Ms. Gilbank argues that because Det. Iverson made allegedly false statements about her before the State Court‘s juvenile proceedings began, they are not barred by the Rooker-Feldman doctrine.
This Court can quickly reject such an argument because the “inextricably intertwined” analysis does not require a state court proceeding to predate the alleged constitutional violations. Rather, it
Additionally, the District Court appropriately applied the doctrine of issue preclusion to find that Ms. Gilbank had the opportunity to raise her due process claims in State Court and thus could not raise such arguments now. As such, the District Court properly applied the Rooker-Feldman doctrine and issue preclusion to Ms. Gilbank‘s claims and should be affirmed.
In the alternative, this Court can affirm the dismissal of the MPD Defendants under the doctrine of qualified immunity.
The Court of Appeals reviews de novo the decision by a district court to grant or deny summary judgment to a party. Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir. 2018) (citing C.G. Schmidt, Inc. v. Permasteelisa N. Am., 825 F.3d 801, 805 (7th Cir. 2016)). The Court of Appeals interprets the facts and draws all reasonable inferences in favor of the nonmoving party. Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 950 F.3d 959, 964 (7th Cir. 2020) (citing O‘Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018)).
“Summary judgment is appropriate if there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law.” Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853 (7th Cir. 2015) (citing
Likewise, the Court reviews a district court‘s application of the Rooker-Feldman doctrine de novo. Martin v. Illinois, No. 21-1149, 2022 WL 171926, at *1 (7th Cir. Jan. 19, 2022) (citing Andrade v. City of Hammond, 9 F.4th 947, 949 (7th Cir. 2021)). The Rooker-Feldman doctrine implicates subject matter jurisdiction, as the doctrine is “a narrow prohibition against lower federal courts’ taking subject-matter jurisdiction over ‘cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.‘” Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
VII. ARGUMENT
The District Court properly applied the Rooker-Feldman doctrine to find that it lacked jurisdiction over Ms. Gilbank‘s federal claims that arose from, and were intertwined with, the removal of her child from her custody through the State Court‘s custodial decisions. Likewise, the
A. The District Court Properly Applied the Rooker-Feldman Doctrine.
The District Court properly applied the Rooker-Feldman doctrine in holding that it lacked jurisdiction over any Ms. Gilbank‘s claims arising from, and intertwined with, the state juvenile court proceedings. The Rooker-Feldman doctrine “prevents lower federal courts from exercising jurisdiction over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced.” Mains v. Citibank, N.A., 852 F.3d 669, 675 (7th Cir. 2017) (citing Exxon Mobile Corp., 544 U.S. at 284). The Rooker-Feldman doctrine applies not only to claims that directly seek to set aside a state-
Stated otherwise, for the Rooker-Feldman doctrine to apply, there must be no way for the injury complained of by a plaintiff to be separated from a state court judgment. Id. However, if the claim alleges an injury that is independent of the state-court judgment that the state court failed to remedy, then the Rooker-Feldman doctrine does not apply. Id. (citations and quotations omitted). The courts apply a two-step analysis to determine whether Rooker-Feldman doctrine bars jurisdiction.
First, we consider whether a plaintiff‘s federal claims are “independent” or, instead, whether they “either ‘directly’ challenge a state court judgment or are inextricably intertwined with one.” Swartz v. Heartland Equine Rescue, 940 F.3d 387, 391 (7th Cir. 2019). If they are “independent” claims, the Rooker-Feldman doctrine does not preclude federal courts from exercising jurisdiction over them. But if they “directly” challenge or are “inextricably intertwined” with a state-court judgment, then we move on to step two.
At step two, we determine “whether the plaintiff had a reasonable opportunity to raise the issue in state court
proceedings.” Jakupovic v. Curran, 850 F.3d 898, 902 (7th Cir. 2017). Only if the plaintiff did have such an opportunity does Rooker-Feldman strip federal courts of jurisdiction.
Andrade, 9 F.4th at 950. This Court has explained that “[f]or a federal claim to be inextricably intertwined with a state-court judgment, there must be no way for the injury complained of by the plaintiff to be separated from the state court judgment.” Id. (cleaned up).
Ms. Gilbank‘s federal claims against Det. Iverson are inextricably intertwined with the state juvenile court‘s decision that there was probable cause to remove her child from her custody. Ms. Gilbank complains that Det. Iverson “interfered in Plaintiff‘s right to the care, custody, and control of her daughter” and that Det. Iverson “created, submitted, and signed false documents with Wood County Circuit Court implying that Plaintiff was under the influence and left her daughter without care on August 21, 2018.” Ms. Gilbank‘s Statement on Appeal, Dkt. No. 3 at 1–2. Ms. Gilbank asserts that because these actions occurred prior to “any court involvement,” they occurred separate from a state court judgment. Id. at 2, 4. She also claims that she “seeks no reversal of Wood County Court rulings.” Id. at 4. Therefore, she argues that the Rooker-Feldman doctrine does not bar her claims based upon
The first element of the Rooker-Feldman doctrine has undoubtedly been met. It is axiomatic that Ms. Gilbank‘s federal claims against Det. Iverson—specifically that he interfered with her right to the care, custody, and control of her daughter and that his statements influence the State Court‘s decision—are inextricably intertwined with the state juvenile court‘s decision that there was probable cause to remove Ms. Gilbank‘s daughter from her custody. Id.; see, e.g., Swartz v. Heartland Equine Rescue, 940 F.3d 387, 391 (7th Cir. 2019) (explaining that the State Court‘s finding of probable cause and ordered seizure of Plaintiff‘s animals produced the injury the plaintiffs now claimed).
Further evidence that the State Court‘s decisions caused the claimed injuries is found in Ms. Gilbank‘s own words, i.e. the “504 days” of injury that she alleges she suffered from the date her child was removed from her custody. Ms. Gilbank‘s Statement on Appeal, Dkt. No. 3 at 3. Therefore, the remedy she seeks remediation from is the removal of her
Similarly, if the Court or a jury were to find either that Det. Iverson interfered with Ms. Gilbank‘s custodial rights to her child or that Det. Iverson “created, submitted, and signed false documents,” such a decision would call into question the State Court‘s determination that there was probable cause to removal the child from her custody. See generally id. As such, Ms. Gilbank‘s federal claims are clearly inextricably intertwined with the State Court‘s juvenile decisions.
Ms. Gilbank‘s own Statement on Appeal explicitly shows how her federal claim is inextricably intertwined with the State Court‘s decision. Ms. Gilbank asserts:
Defendants’ violations of law on August 21 and 22, 2018 caused the court to take action which caused the Plaintiff and her daughter severe trauma and injury for 504 days. Plaintiff could find not a single juvenile court case in which Wood County Court ruled against Wood County DHS recommendation when a child‘s primary caregiver was not present for the initial hearing.
Likewise, the second factor of the Rooker-Feldman doctrine has clearly been met. Ms. Gilbank had a reasonable opportunity to raise her arguments as to the lack of probable cause and the allegedly false statements by Det. Iverson in the State Court proceedings. Indeed, as the District Court noted, Ms. Gilbank raised the argument that probable cause was lacking and the State Court rejected such an argument. Summ. J. Order, Dkt. No. 131 at 7-8. Not only did Ms. Gilbank have the opportunity to raise such arguments in the State Court proceedings, she had the opportunity to cross-examine Det. Iverson about his statements to the State Court and to challenge any evidence authored by Det. Iverson that had been entered before the Court if she believed those documents to be false, as she now asserts. Id. at 8. She did not do so. Id.
Because Det. Iverson‘s alleged actions are inextricably intertwined with the State Court‘s proceedings and decisions, and because Ms. Gilbank had reasonable opportunity to raise these issues in State Court, both factors of the Rooker-Feldman doctrine clearly apply and the District Court properly held that it lacked jurisdiction over Ms. Gilbank‘s federal claims. This Court should affirm the District Court‘s application of the Rooker-Feldman doctrine.
Additionally, to the extent Ms. Gilbank properly raised an argument on appeal related issue preclusion—which the MPD Defendants assert she has not—the District Court properly found that issue preclusion barred her due process claims. Ms. Gilbank asserts that the District Court erred in applying issue preclusion to her claims of due process violation. Ms. Gilbank‘s Statement on Appeal, Dkt. No. 3 at 5. However, such an argument is undeveloped aside from Ms. Gilbank‘s unsupported assertion that “Defendants have not been party to any other legal action involving Plaintiff.” See generally id. Ms. Gilbank failed to address in any meaningful way the District Court‘s finding that issue preclusion barred her due process claims which were raised in the state court. Because Ms. Gilbank failed to “engage with the reasons she lost” and failed to develop her arguments, the Court can find that Ms. Gilbank failed to properly present her issue preclusion argument and dismiss such an argument. See, e.g., White v. Am. Fam. Mut. Ins. Co., No. 20-1803, 2022 WL 59403, at *1 (7th Cir. Jan. 6, 2022) (citing Klein v. O‘Brien, 884 F.3d 754, 757 (7th Cir. 2018)); Shipley v. Chi. Bd. of Election Comm‘rs, 947 F.3d 1056, 1062–63 (7th Cir. 2020); Williams v. Berge, 102 F. App‘x 506, 508 (7th Cir. 2004).
To the extent that this Court finds that Ms. Gilbank did not waive her issue preclusion argument, the Court should hold that the District Court properly applied issue preclusion against Ms. Gilbank‘s due process claims. When applying issue preclusion, “[f]ederal courts must give state court judgments the same preclusive effect ‘as would a court in the rendering state‘“; therefore, the Court must apply Wisconsin law in performing this analysis. Jensen v. Foley, 295 F.3d 745, 749 (7th Cir. 2002) (citation omitted). The first step in the issue preclusion analysis is determining “whether the issue or fact was actually litigated and determined in the prior proceeding by a valid judgment in the previous action and whether the determination was essential to the judgment.” Aldrich v. Labor and Ind. Review Comm‘n, 2012 WI 53, ¶ 97, 341 Wis. 2d 36, 814 N.W.2d 433 (internal citations and quotations omitted). The second step in the issue preclusion analysis is determining “whether applying issue preclusion comports with principles of fundamental fairness.” Id. ¶ 98 (internal citations and quotations omitted). The fundamental fairness analysis considers a number of factors, none of
(1) Could the party against whom preclusion is sought have obtained review of the judgment as a matter of law;
(2) Is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) Do significant differences in the quality or extensiveness of proceedings between two courts warrant relitigation of the issue;
(4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and
(5) Are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?
Id. ¶ 110. Notably absent from this determination is any requirement that there be identical parties in both disputes for issue preclusion to apply—which is the entire basis of Ms. Gilbank‘s minimal issue preclusion argument. N. States Power Co. v. Bugher, 189 Wis. 2d 541, 550-51, 525 N.W.2d 723 (1995) (“Unlike claim preclusion, an identity of parties is not required in issue preclusion.“).
As explained by the District Court, Ms. Gilbank had every opportunity to bring her due process arguments in the State Court‘s
Likewise, the justice and equity factors support finding issue preclusion. Ms. Gilbank had the opportunity to review the State Proceedings through the state appellate procedures but chose not to. Id. at 9. Moreover, Ms. Gilbank provide no reason that these issues should be relitigated in federal court. Ms. Gilbank had every incentive to raise these arguments during the State Court‘s juvenile proceedings, which was the more appropriate proceeding in which to seek relief and had the higher burden of persuasion. Similarly, there are no public policy or individual circumstances that would render the application of collateral estoppel to be fundamentally unfair. As such, the justice and equity
Overall, the District Court properly applied issue preclusion and Ms. Gilbank offered no argument or reason for finding that the District Court had erred in applying issue preclusion based upon the State Court‘s juvenile proceedings. See, e.g., Jensen, 295 F.3d at 749 (finding that the issue of probable cause was a controlling and material issue in a temporary custody order and, thus, the plaintiff was barred from raising that issue again in a
C. Alternatively, the Court of Appeals Could Affirm the District Court‘s Grant of Summary Judgment for the MPD Defendants on the Basis of Qualified Immunity.
In the alternative, the Court can affirm the District Court‘s dismissal of the MPD Defendants under the doctrine of qualified immunity.4 The doctrine of qualified immunity “protects government officials from individual liability under Section 1983 for actions taken while performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable
“Qualified immunity under
The doctrine of qualified immunity applies to the actions taken by Det. Iverson. Ms. Gilbank alleges that Det. Iverson violated her constitutional rights by partaking in the removal of her child from her custody. Statement on Appel, Dkt. No. 3. However, it is often unclear what she means by “removal,” specifically whether she means the legal proceedings that removed her child from her custody or whether she is alleging that Defendants physically removed or seized her child from
It appears Ms. Gilbank‘s allegations against Det. Iverson arise solely from the legal proceedings that removed her child from her custody. However, Det. Iverson took no direct role in those legal proceedings. Det. Iverson neither filed the request for temporary physical custody of the child nor did he submit the CHIPS petition. Summ. J. Order, Dkt. No. 131 at 4. He appeared at one of the CHIPS hearings and provided testimony. Id. However, Ms. Gilbank has not raised any specific allegations as to testimony he gave at that proceeding that would violate her constitutional rights and give rise to a claim. See generally Statement on Appeal, Dkt. No. 3. Moreover, Ms. Gilbank, through counsel, was given the opportunity to cross-examine him during that proceeding. Summ. J. Order, Dkt. No. 131 at 7-8. Likewise, Det. Iverson did not make the decision as to probable cause or the custody of the child—as both such decisions were made by the State Court.
Therefore, Det. Iverson was not the party who filed the custody or CHIPS petition, nor was he the party that ultimately made those decisions. To the extent Ms. Gilbank‘s claims arise from those decisions,
To the extent Ms. Gilbank‘s argument relies upon Det. Iverson‘s testimony at the CHIPS proceeding, qualified immunity applies. Det. Iverson is entitled to qualified immunity unless it was “sufficiently clear that every reasonable official would understand that what he was doing [was] unlawful.” Gupta, 19 F.4th at 1000 (citations omitted). As long as Det. Iverson reasonably believed his actions to be lawful, in light of clearly established law, he is entitled to qualified immunity. Xiong v. Wagner, 700 F.3d 282, 290 (7th Cir. 2012). However, testifying at a child custody or CHIPS proceeding is not unlawful. It is Ms. Gilbank‘s burden to demonstrate that Det. Iverson‘s actions were violations of her clearly established constitutional rights and Ms. Gilbank has offered
To the extent that Ms. Gilbank is now asserting that Det. Iverson and Ms. Heinzen-Janz seized her child by physically taking custody over her child and then placed her child with her child‘s father, such an argument is also barred by the doctrine of qualified immunity.5
However, even if Det. Iverson and Wood County DHS had taken physical custody over the child and placed her with her father, such actions would have been reasonable. Moreover, such actions would not have been a constitutional violation, because they had both probable cause and exigent circumstances to justify taking temporary custody of Ms. Gilbank‘s daughter. “In the context of removing a child from his home and family, a seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent circumstances, meaning that state officers have reason to believe that life or limb is in immediate jeopardy.” Brokaw, 235 F.3d at 1010.
Moreover, even if Ms. Gilbank was not being arrested, there is still probable cause to remove the 4-year-old based upon fear of immediate harm or neglect because of Det. Iverson and Wood County‘s DHS‘s knowledge and past interactions with Ms. Gilbank. It is undisputed that Ms. Heinzen-Janz responded to a call concerning the child‘s welfare on June 29, 2018. Dkt. No. 107 at PFOF 5. It is also undisputed that Ms. Gilbank informed Ms. Heinzen-Janz and Det. Iverson that she had recently smoked a small amount of methamphetamine residue on or around July 3, 2018, while having sole custody of her 4-year-old child. Id. at PFOF 9. Likewise, it is undisputed that on July 23, 2018, Ms. Gilbank admitted to the use of methamphetamines. Id. at PFOF 13. Then, it was undisputed that while her 4-year-old was in her custody, Ms. Gilbank had 0.7 grams of methamphetamine and drug paraphernalia in her possession. Id. at PFOF 17. Therefore, based upon
However, the Court need not get into such analysis, rather Det. Iverson is entitled to qualified immunity unless it was “sufficiently clear that every reasonable official would understand that what he was doing [was] unlawful.” Gupta, 19 F.4th at 1000 (citations omitted). There is nothing to support an argument that another police officer would understand that assisting DHS in taking temporary custody over a child whose parent was being arrested and then placing that child into the custody of her other parent was “unlawful.” Rather, Seventh Circuit precedent provides that an officer that fails to take custody over a minor
Likewise, there is nothing to support an argument that another police officer, or social worker, would believe that removing custody over a child from a parent after repeated drug-related incidents in a month and placing the child in the custody of her other parent would be “unlawful.” As long as Det. Iverson reasonably believed his actions to be lawful, in light of clearly established law, he is entitled to qualified immunity. Xiong, 700 F.3d at 290. Because Ms. Gilbank has failed to meet her burden of demonstrating that Det. Iverson‘s actions were clearly established violations of her constitutional rights, Det. Iverson is entitled to qualified immunity.
D. Ms. Gilbank Waived Any Challenge to the District Court‘s Grant of Summary Judgment for the MPD Defendants on Her Remaining Claims.
To the extent Ms. Gilbank seeks to revive any of her other claims against the MSD Defendants that she brought before the District Court, such claims have been waived. The Court‘s precedent is clear that arguments not made in opening appellate briefs, or “skeletal
Ms. Gilbank‘s Statement on Appeal pertains entirely the removal of her child from her custody and her alleged federal claims arising therefrom. See generally Ms. Gilbank‘s Statement on Appeal, Dkt. No. 3. However, Ms. Gilbank‘s Statement is devoid of arguments relating to the other arguments she raised at the District Court, including her claims against MPD and her claims of constitutional violations arising
The District Court held that Det. Iverson‘s questioning of Ms. Gilbank without an attorney did not violate her
Because the District Court properly applied the Rooker-Feldman doctrine and doctrine of issue preclusion, and because Ms. Gilbank has not identified any error by the District Court, this Court should affirm the District Court and dismiss Ms. Gilbank‘s appeal.
Dated this 14th day of February 2022.
Respectfully submitted,
DAVIS & KUELTHAU, s.c.
s/ Jason R. Just
JASON R. JUST
State Bar No.: 1104647
TIFFANY E. WOELFEL
State Bar No.: 1093779
Attorneys for Defendants-Appellees
Marshfield Police Department and
Derek Iverson
DAVIS & KUELTHAU, s.c.
318 S. Washington St., Suite 300
Green Bay, WI 54301
920.435.9378
Jason R. Just
Direct Contact:
920.431.2226 - Phone
920.431.2266 - Fax
jjust@dkattorneys.com
Direct Contact:
920.431.2232 - Phone
920.431.2272 - Fax
twoelfel@dkattorneys.com
This brief complies with the type-volume limitation of
This brief contains 7,923 words, excluding the parts of the brief exempted by
Dated this 14th day of February 2022.
DAVIS & KUELTHAU, s.c.
s/ Jason R. Just
JASON R. JUST
State Bar No.: 1104647
TIFFANY E. WOELFEL
State Bar No.: 1093779
I certify that on February 14th, 2022, I electronically filed the foregoing Brief of Defendants-Appellees Marshfield Police Department and Derek Iverson with the clerk of court using the CM/ECF system, which will accomplish electronic notice and service for all participants who are registered CM/ECF users.
I further certify that a copy of the above document was mailed to:
Michelle R. Gilbank
919 West Blodgett Street
Marshfield, WI 54449
Dated this 14th day of February 2022.
DAVIS & KUELTHAU, s.c.
s/ Jason R. Just
JASON R. JUST
State Bar No.: 1104647
TIFFANY E. WOELFEL
State Bar No.: 1093779