Hokamp, Pamela v. Blevins, Erman

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

PAMELA JEAN HOKAMP,

Plaintiff,

v. OPINION and ORDER

JOEL FLEWELLEN, GERMAN OLIVARES, 23-cv-181-jdp

and MIKE BURGER,

Defendants.

Plaintiff Pamela Jean Hokamp, proceeding without counsel, alleges that defendants, law

enforcement officers for the Wisconsin Rapids Police Department, used excessive force and

illegally seized her and searched her residence while responding to a 911 call about

unresponsive guest W.T.1 Hokamp brings Fourth Amendment excessive force and

illegal seizure claims against defendants Joel Flewellen and German Olivares, and a

Fourth Amendment illegal search claim against defendant Mike Burger.

Defendants filed a motion for summary judgment, which they corrected. Dkt. 48 and

Dkt. 54. Hokamp didn’t respond to their motion, but moved for summary judgment herself.

Dkt. 56. Because Hokamp failed to support her motion with individual proposed facts

supported by admissible evidence, I will deny it. But I will treat Hokamp’s motion as a

brief in opposition to defendants’ motion.

The undisputed facts show that Flewellen and Olivares had a basis to believe that

Hokamp was maintaining a public nuisance, and that they used minimal force while briefly

1 Because it’s unclear whether W.T. was a minor when the events at issue occurred, I will refer

to him by his initials.

detaining her to issue the citation. Thus, I will grant summary judgment to Flewellen and

Olivares on the illegal seizure and excessive force claims. The undisputed facts also show that

Burger conducted a limited search of the bedroom in which W.T. overdosed to determine what

drug he had taken, not to look for evidence of a crime. Hokamp hasn’t shown that, when the

events at issue occurred in June 2017, it was clearly established that this conduct violated the

Fourth Amendment. Therefore, I will grant summary judgment to Burger on the illegal search

claim on qualified immunity grounds.

UNDISPUTED FACTS

Because Hokamp didn’t respond to defendants’ proposed findings of fact, I will accept

them as true. Allen-Noll v. Madison Area Tech. Coll., 969 F.3d 343, 348–49 (7th Cir. 2020)

(district court may accept a party’s proposed findings of fact as undisputed if the opposing

party doesn’t dispute them).

On June 11, 2017, defendants Flewellen, Olivares, and Burger were dispatched to a

residence based on a report that a man was acting strangely. Hokamp, who owned the

residence, was there along with visitors W.T. and Tina Fischer. Upon arrival, defendants

received consent to enter the residence. Fischer was in one bedroom trying to wake W.T. up,

and Hokamp was in another bedroom. W.T. wasn’t responsive and had agonal breathing and

a rapid pulse. After contacting EMS, Olivares and Burger moved W.T. to the floor and put him

in the recovery position.

EMS arrived and eventually revived W.T. after administering Narcan, “a medication

that works as an opioid antagonist to reverse the effects of an opioid overdose.” Anderson v.

United States, 94 F.4th 564, 569 n.3 (7th Cir. 2024). Meanwhile, Fischer told Burger that she

suspected that W.T. took heroin. Burger asked Fischer if the officers could search the bedroom

that W.T. was in and she consented. Burger found a syringe with blood on the needle tip inside

a desk drawer. The bedroom that Hokamp was in wasn’t searched.

In the preceding five months, the police had been dispatched to Hokamp’s residence

23 times for various disturbances including drug overdoses and welfare calls arising from

criminal activity. Based on a prior overdose at the residence, Hokamp had received a citation

for violating Wisconsin Rapids Ordinance 25.29, which prohibits maintaining a public

nuisance. Olivares lived across the street from Hokamp and was aware of the repeated

disturbances and police calls to her residence, and Hokamp had been warned that this activity

was a nuisance under municipal law. Flewellen and Burger knew about the previous

disturbances and concluded that the incident with W.T. caused a similar disturbance.

As EMS continued to work on W.T., the officers asked Hokamp to speak with them in

the living room because they had determined that there was probable cause to cite her for

maintaining a public nuisance. Hokamp grew upset when Burger told her that she would be

receiving a citation, and she disregarded the officers’ orders to stay in the living room so they

could finish talking to her. In response, Olivares and Flewellen each held one of Hokamp’s

wrists and elbows to stop her from walking away. Olivares and Flewellen held Hokamp in this

manner for about ten seconds, after which she stopped trying to walk away and sat down.

Olivares and Flewellen didn’t drag Hokamp across the room or otherwise use enough force to

injure her ankle or arms, and Hokamp didn’t mention a preexisting injury.

After Hokamp received the citation and EMS transported W.T. to the hospital,

defendants left her residence. The entire incident lasted for about 30 minutes. Hokamp didn’t

take any steps to dispute the citation, and the Wisconsin Rapids Municipal Court entered a

finding of guilt by default. Hokamp was assessed a fine and she ultimately paid it.

I will discuss additional facts as they become relevant to the analysis.

ANALYSIS

I will discuss the illegal seizure and excessive force claims first because they turn on

related facts. I will then turn to the illegal search claim.

A. Illegal seizure

Hokamp is proceeding on the allegation that Flewellen and Olivares illegally seized her

by dragging her to the door and “starting” to arrest her even though they had no basis to suspect

that she was involved in illegal activity. The Fourth Amendment guarantees the “right of the

people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const.

amend. IV. “[P]robable cause is an absolute defense to claims under [42 U.S.C. §] 1983 against

police officers for an allegedly unreasonable seizure.” Norris v. Serrato, 761 F. App’x 612, 615

(7th Cir. 2019). Probable cause means that the circumstances that an officer is aware of are

enough for a prudent person to believe that the suspect has committed an offense. See United

States v. Hill, 818 F.3d 289, 294 (7th Cir. 2016).

The undisputed facts show that probable cause supported Hokamp’s seizure. The police

and EMS were called to Hokamp’s residence because W.T. was unresponsive, and defendants

had reason to believe that he overdosed on heroin. In the preceding five months, the police

had been dispatched to Hokamp’s residence 23 times for various disturbances, including drug

overdoses, and she had previously been cited for maintaining a public nuisance based on a drug

overdose. Defendants knew about the repeated disturbances at Hokamp’s residence, and the

incident with W.T. involved similar activity. The evidence shows that, when Flewellen and

Olivares seized Hokamp, the circumstances were enough for a prudent person to reasonably

believe that Hokamp had violated Ordinance 25.29.

Hokamp states in her brief in opposition that she wasn’t involved in illegal activity

when Flewellen and Olivares seized her and, for that matter, had never committed a crime.

Dkt. 56 at 2–3. To But Hokamp doesn’t dispute that W.T. overdosed in her residence. Nor

does Hokamp directly dispute that she had previously been cited for maintaining a public

nuisance, or that there had been other disturbances at her residence; her unsupported

statement that she never committed a crime isn’t enough to establish that fact. Furthermore,

Hokamp states that she had “placed calls to the police due to her personal property being

stolen,” which is consistent with defendants’ contention that they had received multiple calls

about criminal activity in her residence. See Dkt. 56-1 at 2. Because no reasonable jury could

find that Flewellen and Olivares lacked probable cause to seize Hokamp, I will grant summary

judgment to them on her illegal seizure claim.

B. Excessive force

Hokamp alleges that Flewellen and Olivares dragged her to the door even though they

lacked a basis to suspect her of a crime and could see that she was wearing a cast, and that this

force sprained her ankle. Courts analyze claims that police officers have used excessive force

during arrests of free citizens under the Fourth Amendment’s objective reasonableness

standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). Whether an officer’s use of force is

reasonable depends on the totality of the circumstances, “including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.

A reasonable juror could conclude only that Flewellen and Olivares used objectively

reasonable force to detain Hokamp. The undisputed facts are that Hokamp grew upset when

Burger told her that she would be receiving a citation, and she disregarded the officers’ orders

to stay in the living room so they could finish talking to her. In response, Olivares and Flewellen

each held one of Hokamp’s wrists and elbows to stop her from walking away for about ten

seconds, releasing her when she sat down. Using minimal force to momentarily detain a suspect

whom officers have probable cause to detain and who is attempting to avoid detention is

reasonable.

In her brief in opposition, as in her amended complaint, Hokamp says that Flewellen

and Olivares “grabbed” her by her wrists and elbows and dragged her to the front door with

enough force to sprain her ankle even though she was wearing a leg cast. Dkt. 56 at 1–2. But

Hokamp didn’t support this statement with admissible evidence, thus failing to “come forward

with appropriate evidence demonstrating that there is a pending dispute of material fact.”

See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994). I will grant summary

judgment to Flewellen and Olivares on the excessive force claim.

C. Illegal search

I allowed Hokamp to proceed on the allegation that Burger searched a room in her

residence, which suggested that he was looking for evidence of a crime. But defendants contend,

and Hokamp hasn’t disputed, that Burger was trying to determine what drug W.T. took to

assist EMS in ensuring his survival. Dkt. 55 at 17–18; see Dkt. 53 ¶ 12. And defendants contend

that it wasn’t clearly established when Burger conducted the search that the

Fourth Amendment prohibited it. See Stockton v. Milwaukee Cnty., 44 F.4th 605, 620 (7th

Cir. 2022) (“Qualified immunity shields state actors from liability where their conduct does

not violate clearly established . . . constitutional rights . . . .”).

In resolving questions of qualified immunity at summary judgment, courts ask:

(1) whether the facts, when taken in the light most favorable to the plaintiff, show that the

defendant violated a federal right; and (2) whether the right was clearly established at the time

of the violation. Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam). District courts “have

discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). I will consider the second prong because it’s

dispositive here.

“A right is clearly established where it is sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Stockton, 44 F.4th at 620. In

most cases, the plaintiff must identify a “closely analogous case finding the alleged violation

unlawful,” or at least a “clear trend” in persuasive authority showing that “recognition of the

right by a controlling precedent was merely a question of time.” Id.; Reed v. Palmer,

906 F.3d 540, 547 (7th Cir. 2018). If there is no controlling decision by the U.S. Supreme

Court, Wisconsin cases are relevant to determine what the defendants “might have thought

the law, including the federal constitution, permitted them to do.” Sutterfield v. City of

Milwaukee, 751 F.3d 542, 573 (7th Cir. 2014). The plaintiff bears the burden of defeating the

defendant’s claim to qualified immunity. Taylor v. City of Milford, 10 F.4th 800, 806

(7th Cir. 2021).

The issue is whether it was clearly established in June 2017 that Burger’s search violated

the Fourth Amendment. It’s undisputed that Burger searched the bedroom to determine what

drug W.T. took to help EMS ensure his survival, not to look for evidence of a crime. Hokamp

has made no effort to identify authority holding, or even suggesting, that the Fourth

Amendment prohibited that conduct, and I found none clearly establishing that rule as of June

2017. In fact, the state supreme court had held that police officers serving as “community

caretakers” may be constitutionally permitted to perform warrantless searches and seizures for

the purpose of ensuring the welfare of community members. See State v. Matalonis, 2016 WI 7,

¶ 30. Similar to this case, when Burger conducted the search, the state supreme court hadn’t

excluded the possibility of “sustain[ing] the search of someone’s medicine cabinet, nightstand,

or pursue in an effort to locate drugs” “in the case of a reported suicide attempt by drug

overdose.” See Sutterfield, 751 F.3d at 577. The U.S. Supreme Court has clarified that law

enforcement’s community caretaking functions alone wouldn’t justify “warrantless searches

and seizures in the home.” Caniglia v. Strom, 593 U.S. 194, 196 (2021). But Caniglia was

decided four years after the events at issue, so it could not have clearly established that Burger’s

search violated the Fourth Amendment. Because Hokamp hasn’t met her burden to show that

it was clearly established that Burger’s conduct violated the Fourth Amendment, I will grant

summary judgment to Burger on the illegal search claim.

ORDER

IT IS ORDERED that:

1. Defendants’ motion for summary judgment, Dkt. 48 and Dkt. 54, is GRANTED,

with the result that plaintiff Pamela Jean Hokamp’s claims are DISMISSED with

prejudice.

2. Plaintiff’s motion for summary judgment, Dkt. 56, is DENIED.

3. Defendant Flewellen is to be recaptioned as “Joel Flewellen,” and defendant Burger

is to be recaptioned as “Mike Burger.”

4. The clerk of court is directed to enter judgment and send plaintiff copies of this

order and the judgment.

Entered June 6, 2024.

BY THE COURT:

/s/

________________________________________

JAMES D. PETERSON

District Judge