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McMahon v. Kindlarski

January 15, 2008

CHRISTOPHER MCMAHON, PLAINTIFF-APPELLANT,
v.
JOHN KINDLARSKI, JOHN NIEBUHR,, RONALD DEBRUYNE, SR., ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Wisconsin. No. 06 C 285-John C. Shabaz, Judge.

The opinion of the court was delivered by: Evans, Circuit Judge

ARGUED NOVEMBER 5, 2007

Before POSNER, EVANS, and SYKES, Circuit Judges.

In this suit, brought under 42 U.S.C. §§ 1983 and 1985, Christopher J. McMahon claims that Vilas County (Wisconsin) Sheriff John Niebuhr and Deputy Sheriff John Kindlarski conspired with Kristen DeBruyne and her parents, Ronald and Judith DeBruyne, to violate his rights under the Fourteenth Amendment to the Constitution. He also alleges various violations of state law. The district court granted the defendants' motions for summary judgment and McMahon appeals.

The rules regarding our review of summary judgment decisions are well-known and need not be repeated here.

But suffice to say that this case presents multiple variations on the details, on which we defer to McMahon's version as he was the nonmoving party on the summary judgment proceedings in the district court. But that said, we note that no one is really covered in glory in the case, and the tragedy is that the young child at the center of the controversy has been badly used by people who should be protecting her. Were it not for her, this case would be grist for an awful soap opera on daytime network television.

Our story begins in April 2001 when McMahon, then 26 years old, had a sexual fling with Kristen DeBruyne. Not only was DeBruyne 17 years old, she has, at some point, been diagnosed with bipolar disorder, post-traumatic stress disorder, and a personality disorder. There is a dispute about how long the McMahon/DeBruyne relationship lasted. McMahon says it was about a week. Whatever its length, it caused years of trouble. By May, DeBruyne told McMahon that she was pregnant. By September, McMahon was showing interest in the pregnancy, and DeBruyne and her family started a vicious campaign to prevent him from ever having anything to do with the baby. Kristen informed McMahon that the baby was hers and he should go out and get one of his own. McMahon told her he was going to file a paternity action. In November, Kristen's mother, Judith, made a harassment complaint against McMahon, who very soon heard, for the first of many times, from Deputy Kindlarski.

When Kristen DeBruyne's parents took action, it was Judith who took the lead. Ron DeBruyne, Kristen's father, was on the county board in Vilas County and on its Law Enforcement Committee. That committee had oversight over the sheriff's budget. Some years later, Ron said he stayed in the background because he was concerned about appearances. He acknowledged discussing matters with his wife and generally agreeing with what she was doing as this mess played out. He told a therapist who interviewed him for a custody action that if he were not concerned about appearances he would go sit on the desks of the Oneida and Vilas County police and find out why they were not doing enough about the case. To others, it might seem like the authorities were overly eager to do Judith DeBruyne's bidding.

But back to the story. Also in November, Kristen DeBruyne, now apparently 18 years of age, married another man, Michael Ervin. The baby, named Kathy,*fn1 was born in January. In that same month, McMahon had Kristen served with papers in a paternity action. Soon thereafter, in February of 2002, DeBruyne and her husband moved to Libertyville, Illinois. In March, Natalie Tyler was appointed guardian ad litem for Kathy in the paternity case. Tyler told McMahon that DeBruyne was calling him a rapist, which would make it hard for the court to let him see the baby. But, in June, a judge in Oneida County, Wisconsin, where the paternity suit was pending, ruled that there would be genetic testing done to determine paternity; the testing proved that McMahon was Kathy's father.

Allegations of child abuse and rape began swirling around. In November 2002, McMahon filed a complaint with the social services agency in Libertyville, based on information he obtained from an Internet chat site. On the site, which McMahon stayed on for many months assuming a false female identity-"bluekellylilly," a single mother-he chatted with DeBruyne. Finally, after 9 months, Kristen acknowledged slapping Kathy. McMahon used the admission against Kristen. He also told Libertyville officials that he had saved the e-mails, and on December 13, 2002, he turned his computer over to a neighboring police department so that an investigator could check it out. Unfortunately for him, the investigator found 12 images of what he considered child pornography. Suspiciously, however, the images were downloaded to the computer on December 11, at a time when McMahon was not home.

During this time, DeBruyne and her mother were interviewed by a social worker with the Vilas County Social Services Agency. They accused McMahon of being a stalker and a rapist. In January 2003, Judith DeBruyne told Kindlarski that McMahon raped her daughter. Kindlarski interviewed Kristen DeBruyne's therapist, who said that Kristen had told her some time earlier that McMahon had sexually assaulted her. Kindlarski also interviewed Ervin and told him that Kristen had been sexually assaulted by both McMahon and his brother. Later, Kristen said she had not been assaulted.

Adding fire, the Libertyville police told Kindlarski about the child pornography and sent him copies of the images. In investigating the allegations, Kindlarski prepared an affidavit in support of a subpoena for McMahon's records from the University of Wisconsin-Eau Claire computer network, a network that McMahon, a student at UW-Eau Claire, frequently used. Kindlarski then met with Dean Robert Shaw at UW-Eau Claire to serve the subpoena. When Shaw was reluctant to produce the documents, Kindlarski explained that he was investigating an allegation of sexual assault involving McMahon. In fact, at some point, Kindlarski told UW-Eau Claire officials that McMahon was a rapist. Kindlarski also investigated McMahon's run-ins with the university police.

Kindlarski interviewed McMahon at the Eau Claire sheriff's department. Kindlarski first told McMahon the interview would involve the rape allegations, but then he also asked about the child pornography. This was the first time McMahon learned that child pornography was found on his computer. The Eau Claire County district attorney declined to press charges involving the possession of child pornography.

But that was not the end of the matter. In June 2003, at a hearing in the paternity action, the attorney for Judith and Ron DeBruyne attempted to introduce the images into evidence. Kindlarski was present in court, images in hand. Also, a year later, in an affidavit to be used on the custody issue, Kindlarski stated that there was probable cause to believe that ...


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