COURT OF APPEALS

DECISION

DATED AND FILED

May 2, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If

published, the official version will appear in

the bound volume of the Official Reports. 

A party may file with the Supreme Court a

petition to review an adverse decision by the

Court of Appeals. See WIS. STAT. § 808.10

and RULE 809.62. 

Appeal No. 2023AP1519 Cir. Ct. No. 2022CV367

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

PHILIP R. MARKUNAS,

 PLAINTIFF-APPELLANT,

 V.

VILLAGE OF LAKE DELTON, VILLAGE OF LAKE DELTON

POLICE DEPARTMENT, KEVIN D. SORENSON, AUSTIN M.

STODDARD, AND TYLER P. BONGARD,

 DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Sauk County: 

MICHAEL P. SCRENOCK, Judge. Affirmed.

Before Blanchard, Graham, and Taylor, JJ.

¶1 GRAHAM, J. Philip Markunas appeals a circuit court order

dismissing his complaint against three Village of Lake Delton police officers for

failure to state a claim upon which relief can be granted. See WIS. STAT.
No. 2023AP1519

2

§ 802.06(2)(a)6. (2021-22).

1

 Markunas argues that the court erroneously applied a

heightened pleading standard when assessing the sufficiency of his complaint. He 

contends that, under the notice pleading standard set forth in WIS. STAT.

§ 802.02(1)(a), the complaint states federal claims against the officers under 42 

U.S.C. § 1983 for unreasonable seizure and using excessive force, and the 

complaint also states common law claims for battery and negligence. We disagree

and affirm the court’s order.

BACKGROUND

¶2 When considering a motion to dismiss, a court accepts as true all 

well-pled facts in a complaint and all reasonable inferences to be drawn from 

those facts. Cattau v. National Ins. Servs. of Wis., 2019 WI 46, ¶4, 386 Wis. 2d 

515, 926 N.W.2d 756. The facts stated here and throughout this opinion are taken 

from Markunas’s amended complaint, which is the operative pleading for 

purposes of this appeal, and which we refer to as the “complaint.”

2

¶3 The incident that is the subject of the complaint occurred in the 

Village of Lake Delton “on or about November 8, 2020, at 4:50 p.m.” The

complaint makes the following allegations to support Markunas’s legal claims 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version.

2

 There are materials in the appellate record that provide additional factual details about 

the incident that is the subject of Markunas’s complaint. More specifically, the defendants filed 

the dash camera footage of the incident along with their motion to dismiss, and Markunas filed 

police reports from the incident along with his response to the motion. The circuit court declined 

to incorporate these materials by reference when ruling on the motion to dismiss, see Soderlund 

v. Zibolski, 2016 WI App 6, ¶37, 366 Wis. 2d 579, 874 N.W.2d 561 (2015), nor did the court 

convert the motion into one for summary judgment, see WIS. STAT. § 802.06(2)(b). Therefore, 

the court did not consider these additional materials in ruling on the motion. Neither party 

challenges those decisions by the circuit court on appeal and, like the circuit court, we confine our 

review to the facts alleged in the complaint.
No. 2023AP1519

3

against Kevin Sorenson, Austin Stoddard, and Tyler Bongard, who were police 

officers employed by the Village and on duty at that time.

¶4 At the time of the incident, Markunas “was the operator of a 

motorcycle traveling at or near the intersection of North Burritt Avenue and West 

Munroe Avenue.” “[B]y means of physical force and show of authority,” the

officers “terminated and/or restrained” Markunas’s “freedom of movement and/or 

liberty.” The officers did so “in such a manner that resulted in an unreasonable 

seizure of [Markunas’s] person.” The officers “attacked and/or used excessive 

force” on Markunas, and “subjected” him to “unreasonable force.” The officers’ 

actions were “contrary to how reasonable ... officers would act in the given

circumstance.”

¶5 The complaint further alleges that the officers’ actions “were the 

direct and proximate cause of the injuries and damages” that Markunas sustained. 

Specifically, Markunas “sustained injuries to his body” and suffered “pain” and 

“emotional distress” as a result of the officers’ actions. He “was required to seek

medical attention,” and “may be required to seek additional and continued medical

attention in the future and to expend large sums of money for said medical

attention.” For a period of time, Markunas “was unable to maintain his

employment” or “engage in his normal activities,” and may “continue to be so

restricted.”

¶6 The complaint alleges that the officers are liable under 42 U.S.C. 

§ 1983 for making an unreasonable seizure and using excessive force, and for the 
No. 2023AP1519

4

common law torts of battery and negligence.

3

 The officers moved to dismiss the

complaint for failure to state a claim. After reviewing the parties’ briefs, the

circuit court concluded that the complaint should be dismissed because Markunas

fails to allege sufficient facts to support his claims. Markunas appeals.4

DISCUSSION

¶7 “A motion to dismiss for failure to state a claim tests the legal 

sufficiency of the complaint.” Data Key Partners v. Permira Advisers LLC, 2014 

WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (citation omitted). On appeal, we

review de novo the circuit court’s determination that Markunas’s complaint fails

to state a claim. Id., ¶17. We begin by setting forth the pertinent legal standards, 

and we then apply those standards to the allegations in the complaint.

I.

¶8 WISCONSIN STAT. § 802.02(1), which sets forth the notice pleading 

standard in Wisconsin, provides that a complaint must contain “[a] short and plain 

 

3

 Markunas’s complaint also named the Village and its police department as defendants. 

In his brief opposing the defendants’ motion to dismiss, Markunas voluntarily dismissed his 

causes of action against those two defendants, as well as a standalone claim that the complaint 

purported to make against all defendants for punitive damages. As a result of the voluntary 

dismissal, the remaining claims at issue in this appeal are the federal civil rights and common law 

claims identified above against the officers in their individual capacities.

4

 The parties’ appellate briefs do not comply with WIS. STAT. RULE 809.19(8)(bm), 

which addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, 

when paginating briefs, parties should use “Arabic numerals with sequential numbering starting 

at ‘1’ on the cover”). This rule was amended in 2021, see S. CT. ORDER 20-07, 2021 WI 37, 397 

Wis. 2d xiii (eff. July 1, 2021), because briefs are now electronically filed in PDF format and 

electronically stamped with page numbers when they are accepted for efiling. As our supreme 

court explained when it amended the rule, the pagination requirement ensures that the numbers on 

each page of the brief “will match ... the page header applied by the eFiling system, avoiding the 

confusion of having two different page numbers” on every page of a brief. S. CT. ORDER 20-07

cmt. at x1.
No. 2023AP1519

5

statement of the claim, identifying the ... occurrence ... out of which the claim 

arises and showing that the pleader is entitled to relief.”

5

 § 802.02(1)(a). Our 

supreme court elaborated on the meaning of this standard in Strid v. Converse, 

111 Wis. 2d 418, 331 N.W.2d 350 (1983), and more recently in Data Key

Partners, 356 Wis. 2d 665, and Cattau, 386 Wis. 2d 515.

6

¶9 As these cases explain, “a complaint must plead facts that, if true, 

would entitle the plaintiff to relief” for a violation of applicable law. Data Key

Partners, 356 Wis. 2d 665, ¶21 (citing Strid, 111 Wis. 2d at 422-23). To satisfy 

this standard, the complaint must provide “more than labels and conclusions,” and 

more than a “formulaic recitation of the elements of a cause of action.” Data Key

Partners, 356 Wis. 2d 665, ¶37 (citation omitted); see also Cattau, 386 Wis. 2d 

515, ¶5. It must instead plead facts, and a complaint states a claim “if proof of

[its] well-pleaded facts ... would satisfy each element of a cause of action.” 

Cattau, 386 Wis. 2d 515, ¶6 (citing Data Key Partners, 356 Wis. 2d 665, ¶21);

see also Strid, 111 Wis. 2d at 422-23 (“[T]he sufficiency of the facts alleged ... 

control the determination of whether a claim for relief is properly ple[]d.”).

¶10 We draw two guiding principles from these cases.

 

5

 The parties agree that the notice pleading standard set forth in WIS. STAT. § 802.02(1) 

applies to Markunas’s claims. Other types of claims, including claims involving fraud, are 

governed by a different “heightened” pleading standard set forth in WIS. STAT. § 802.03. The 

parties agree that § 802.03 is not at issue in this case.

6

 In Cattau, our supreme court clarified that Data Key is consistent with and did not 

overrule the pleading standard articulated in Strid v. Converse, 111 Wis. 2d 418, 331 N.W.2d 350 

(1983). See Cattau v. National Ins. Servs. of Wis., Inc., 2019 WI 46, ¶7, 386 Wis. 2d 515, 926 

N.W.2d 756.
No. 2023AP1519

6

¶11 First, it is important to distinguish between the factual allegations 

and the legal conclusions that are pled in a complaint. Data Key Partners, 356 

Wis. 2d 665, ¶19. This is so because it is the factual allegations, rather than any

legal conclusions, that we evaluate to determine whether a complaint states a 

claim. Id. (“[W]e accept as true all facts well-pleaded in the complaint and the 

reasonable inferences therefrom.”); id., ¶25 (“[C]ourts are not bound to accept as 

true a legal conclusion couched as a factual allegation.” (citation omitted)); id., 

¶21 (“Bare legal conclusions set out in a complaint provide no assistance in 

warding off a motion to dismiss.”).

¶12 Second, when determining whether the factual allegations state a 

claim, we measure those allegations against the substantive legal standards that

govern the claim. See id., ¶31 (“[T]he sufficiency of a complaint depends on [the] 

substantive law that underlies the claim made because it is the substantive law that 

drives what facts must be pled.”); see also Strid, 111 Wis. 2d at 423-24

(comparing the factual allegations in the complaint to the elements of malicious 

prosecution); id. at 426-27 (comparing the factual allegations in the complaint to 

the elements of abuse of process).

¶13 Although Markunas mentions these concepts in passing in his 

appellate briefing, he does not evaluate his complaint in light of these principles. 

He instead pivots to other language from the cited cases to argue that his 

complaint is sufficient.

¶14 Markunas first cites Strid to support the proposition that even 

“skeletal” claims can survive a motion to dismiss. See Strid, 111 Wis. 2d at 427 

(concluding that the complaint “stated a claim—although skeletal—for abuse of 

process”). We do not as a general matter disagree with this proposition, but it 
No. 2023AP1519

7

requires further explanation. To the extent that a complaint alleges facts that

would, if true, satisfy the elements of a cause of action, or facts from which 

reasonable inferences could be drawn that would satisfy the elements of a cause of 

action, then the claim, although “skeletal,” will survive a motion to dismiss. If, on 

the other hand, the complaint alleges legal conclusions couched as facts, then, as 

we have discussed, the complaint does not state a claim. In other words, 

barebones factual allegations that amount to the skeleton of a cause of action may 

suffice to state a claim, but bare legal conclusions will never state a claim, not 

even a “skeletal” one.

¶15 Markunas also focuses on a footnote in Data Key, which seeks to 

clarify what constitutes a “factual assertion.” Data Key Partners, 356 Wis. 2d 

665, ¶21 n.9. That footnote states: “Factual assertions are evidenced by 

statements that describe: ‘who, what, where, when, why, and how.’” Id. (citing 

State v. Allen, 2004 WI 106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433). Relying on 

this footnote, Markunas argues that his complaint is sufficient because it describes 

the “who, what, where, when, why, and how” of the occurrence that gave rise to 

his claims. This footnote from Data Key does not, as Markunas appears to argue,

supplant the guiding principles set forth above. That is, a plaintiff cannot avoid 

pleading facts that would satisfy the elements of a cause of action by merely

pleading facts that describe some aspects of the who, what, where, when, why, and 

how of a transaction or occurrence, but that do not align with the elements of a 

cause of action. As stated, “the sufficiency of a complaint depends on [the] 

substantive law that underlies the claim made because it is the substantive law that 

drives what facts must be pled.” Data Key Partners, 356 Wis. 2d 665, ¶31.
No. 2023AP1519

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II.

¶16 We now turn to Markunas’s complaint, applying the guiding 

principles set forth above. It is true that Markunas’s complaint is “not completely 

devoid of facts.” See id., ¶44. Based on the complaint, we can reasonably infer 

that Markunas was riding his motorcycle in the Village, that he was stopped by 

one or more of the officers, that some or all of the officers used force against him 

at some point during the traffic stop and may have arrested him, and that he 

incurred unspecified injuries.

¶17 However, the remainder of the complaint is comprised of bare legal 

conclusions about what transpired during the traffic stop. The complaint alleges

that the seizure of Markunas was “unreasonable,” that the force used was 

“excessive,” and that the officers’ actions were “contrary to how reasonable 

officers would act in the given circumstance.” As we now explain, these 

allegations merely recite the legal standards that Markunas would be required to 

satisfy to succeed on his claims—they do not identify any facts that, if true, would 

satisfy those legal standards. Accordingly, as discussed more thoroughly below, 

these allegations are bare legal conclusions, and are insufficient to survive the 

officers’ motion to dismiss. Id., ¶19 (“[L]egal conclusions stated in the complaint 

are not accepted as true, and they are insufficient to enable a complaint to 

withstand a motion to dismiss.”).

¶18 We begin with Markunas’s claims under 42 U.S.C. § 1983, which 

provides a civil cause of action against any person who, acting “under color of 

[law],” deprives another person of “any rights, privileges or immunities secured by 

the Constitution and laws.” To prevail on his § 1983 claims, Markunas must

demonstrate, among other things, that the officers’ conduct deprived him of any 
No. 2023AP1519

9

“rights, privileges, or immunities secured by the Constitution or laws of the United 

States.” Weber v. City of Cedarburg, 129 Wis. 2d 57, 65, 384 N.W.2d 333 

(1986). Here, the complaint alleges that the officers violated Markunas’s rights

under the Fourth Amendment to the United States Constitution by conducting an 

unreasonable seizure, and by using excessive force. We address each claim in 

turn.

¶19 The following substantive law governs Markunas’s unreasonableseizure-based 42 U.S.C. § 1983 claim. The Fourth Amendment to the United 

States Constitution protects against unreasonable seizures. State v. Smith, 2018 

WI 2, ¶1, 379 Wis. 2d 86, 905 N.W.2d 353. “A seizure occurs [for Fourth 

Amendment purposes] ... ‘when [an] officer, by means of physical force or show 

of authority, has in some way restrained the liberty of a [person].’” County of

Grant v. Vogt, 2014 WI 76, ¶20, 356 Wis. 2d 343, 850 N.W.2d 253 (quoting 

United States v. Mendenhall, 446 U.S. 544, 552 (1980)). A traffic stop is a 

seizure for Fourth Amendment purposes, and therefore “must not be unreasonable 

under the circumstances.” State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 756 

N.W.2d 569. An arrest is also a seizure for Fourth Amendment purposes, and 

must also be reasonable under the circumstances. State v. Dumstrey, 2016 WI 3, 

¶17, 366 Wis. 2d 64, 873 N.W.2d 502. There is a vast body of case law on what 

makes a traffic stop or arrest unreasonable, but, for purposes of this opinion, it 

suffices to say that a traffic stop is unreasonable if it is not supported by 

reasonable suspicion and an arrest is unreasonable if it is not supported by

probable cause. Popke, 317 Wis. 2d 118, ¶11; Dumstrey, 366 Wis. 2d 64, ¶17.

¶20 Here, we can infer from the complaint’s factual allegations that the 

officers seized Markunas and his motorcycle in a traffic stop and at some point 

may have arrested him. However, we can infer no more than that. Markunas has 
No. 2023AP1519

10

not pled any facts regarding the circumstances of the traffic stop that, if true, 

would show that the traffic stop was itself unreasonable. He does not, for 

example, plead any facts from which we could conclude that the officers lacked 

reasonable suspicion for the stop, or that the stop lasted longer than necessary to 

address the circumstances that justified it. See Smith, 379 Wis. 2d 86, ¶10. Nor 

does Markunas plead any facts at all about the extension of the stop or the arrest 

that we infer occurred during the traffic stop, but which are not actually alleged in 

the complaint.

¶21 Instead, the complaint merely alleges that the officers “terminated 

and/or restrained [Markunas’s] freedom of movement and/or liberty”—which is to 

say that the officers effectuated a “seizure,” as that term is defined in Mendenhall, 

446 U.S. 544, and other cases—and that the resulting seizure was “unreasonable.” 

These allegations are nothing more than bare legal conclusions, which assign

dispositive legal significance to facts that are not found in the complaint. See

Bayland Bldgs., Inc. v. Spirit Master Funding VIII, LLC, 2017 WI App 42, ¶6, 

377 Wis. 2d 149, 900 N.W.2d 94 (addressing the distinction between propositions 

of fact and conclusions of law, and explaining that “conclusions of law assign 

legal significance” to propositions of fact). As mentioned, we do not accept legal 

conclusions as true for purposes of evaluating the sufficiency of the complaint. 

Accordingly, Markunas fails to state a claim for an unreasonable seizure.

¶22 We now turn to the substantive law governing Markunas’s

excessive-force-based 42 U.S.C. § 1983 claim. “A claim of excessive use of force 

arising during arrest is grounded in the Fourth Amendment protection against 

unreasonable seizures as applied to the States by the Fourteenth Amendment.” 

Robinson v. City of W. Allis, 2000 WI 126, ¶27, 239 Wis. 2d 595, 619 N.W.2d 

692 (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). Whether an officer 
No. 2023AP1519

11

has exerted excessive force against a person depends on whether the officer’s 

actions were objectively reasonable. Id. (citing Graham, 490 U.S. at 397). A 

reviewing court should evaluate the reasonableness of the officer’s actions based 

on the “perspective of a reasonable officer on the scene, rather than with the 20/20 

vision of hindsight,” and should consider, among other things, whether the suspect 

posed an immediate threat to the safety of the officer or others and whether the 

suspect actively resisted arrest. State v. Krause, 168 Wis. 2d 578, 589, 484 

N.W.2d 347 (Ct. App. 1992) (citing Hammer v. Gross, 932 F.2d 842, 846 (9th 

Cir. 1991) (citing Graham, 490 U.S. at 396)).

¶23 At the motion to dismiss stage, we assume that Markunas’s factual 

allegations about seeking medical attention are true, and based on those 

allegations, we infer that he was injured in some way during the traffic stop. 

However, the complaint does not allege any facts that, if true, would show that his 

injuries were caused by the officers’ use of force, or that the degree of any force 

used was unreasonable under the circumstances. Again, the allegation that the 

officers used “excessive force” is a legal conclusion because it assigns legal 

significance to facts that are not stated in the complaint, and that Markunas does 

not even attempt to describe. He therefore fails to state a claim for excessive force 

against the officers.

¶24 Our analysis of Markunas’s common law battery claim is similar to 

our analysis of the excessive-force-based 42 U.S.C. § 1983 claim. See Robinson, 

239 Wis. 2d 596, ¶30 (“The touchstone of both causes of action is the objective 

reasonableness of the use of force.”). A tortive battery occurs if a defendant 

causes bodily harm to a plaintiff to which the plaintiff does not consent. See
No. 2023AP1519

12

McClusky v. Steinhorst, 45 Wis. 2d 350, 357, 173 N.W.2d 148 (1970); see also

WIS JI—CIVIL 2005 (Battery: Bodily Harm).7 However, Wisconsin law 

recognizes that a police officer’s potential liability for battery is founded on legal 

and policy considerations that are distinguishable from those in an ordinary battery 

case, and that officers have some license to use force that may cause bodily harm

when carrying out an arrest. Wirsing v. Krzeminski, 61 Wis. 2d 513, 519, 213 

N.W.2d 37 (1973). As the pertinent Wisconsin Civil Jury Instruction explains:

The fact that the evidence in this case shows 

physical contact between [the officers] and [Markunas], 

which resulted in injury to [Markunas], is not proof that 

[the officers] used excessive force.

[The officers] had the lawful authority to use such 

force in making the arrest as a reasonable police officer 

would believe to be necessary. But the use of force beyond 

that which a reasonable police officer would believe 

necessary under all the circumstances then existing is 

excessive force.

WIS JI—CIVIL 2008 (Battery: Excessive Force in Arrest).

¶25 Much like Markunas’s civil rights claims under 42 U.S.C. § 1983, 

his complaint fails to plead facts that, if true, would satisfy the elements of a 

common law battery claim. Again, Markunas’s allegation that the force used was 

“excessive” is a legal conclusion, which we do not accept as true for purposes of 

evaluating the sufficiency of his complaint.

 

7

 Throughout the case, Markunas has cited to the statute that criminalizes battery, WIS.

STAT. § 940.19(1)-(5), and to the elements of the criminal offense. Markunas’s references to

§ 940.19 are misplaced because he is attempting to bring a civil claim that is governed by other 

standards.
No. 2023AP1519

13

¶26 Finally, we turn to the substantive law that governs Markunas’s 

common law negligence claim. To establish a defendant’s negligence, a plaintiff 

must show, among other things, that the defendant breached a duty of care that the 

defendant owed to the plaintiff. Behrendt v. Gulf Underwriters Ins Co., 2009 WI 

71, ¶14, 318 Wis. 2d 622, 768 N.W.2d 568. A defendant breaches a duty of care if 

the defendant fails to “exercise that degree of care as would be exercised by a 

reasonable person under the circumstances.” Id., ¶16 (citation omitted).

¶27 Here, the complaint alleges that, “in the course of [the seizure],” the 

officers “acted in a negligent manner by acting contrary to how reasonable police 

officers would act in the given circumstance, thereby causing the injuries sustained 

by [Markunas] as hereinafter described.” Again, this is a legal conclusion—

essentially, a paraphrase of the legal standard for proving a breach of the duty of 

care. Markunas does not allege any facts about how the officers acted that, if true, 

would support that legal conclusion. He therefore fails to state a negligence claim 

against the officers.8

¶28 As shown above, Markunas has failed to allege facts that, if true, 

would satisfy the elements of any of the four causes of action identified in the 

complaint. And he does not identify, nor are we aware of, any other cause of 

action that, although not identified in the complaint, is satisfied by the factual 

allegations in the complaint. See Strid, 111 Wis. 2d at 422-23 (“The operative 

facts themselves, if they show [the elements of a cause of action], constitute the 

cause of action. What they are called [in the complaint] is immaterial.” (citation

 

8

 Markunas arguably fails to allege other elements of negligence as well, but we need not 

address those elements because our determination about breach is dispositive. See Strid, 111 

Wis. 2d 418, 424 (“the absence of any one element is fatal to the claim”).
No. 2023AP1519

14

omitted)); see also Cattau, 386 Wis. 2d 515, ¶4 (The complaint is sufficient “[i]f

the facts reveal an apparent right to recover under any legal theory,” even if the 

plaintiff did not specifically identify that legal theory (i.e. that specific cause of 

action) in the complaint or the subsequent briefing.).

¶29 Before ending our discussion, we pause to address an argument that 

Markunas makes about the circuit court’s decision in this case. Markunas argues 

that the court imposed a “heightened pleading standard,” requiring him to “plead 

facts tantamount to a blow-by-blow graphic novel.” We reject this argument for 

two reasons. First, we independently review the sufficiency of a complaint, so it 

would not matter if the court had applied an erroneous standard—we would 

review the complaint de novo and conclude, as we have, that it fails to satisfy the 

notice pleading standards that are set forth above. Second, we do not agree with 

Markunas’s characterization of the circuit court’s order. As we understand the 

court’s explanation, the problem is not that the complaint fails to provide a “blowby-blow” account of Markunas’s interactions with the officers. The problem is 

that it fails to identify any blow—or any other use of force—at all, and therefore 

fails to plead facts that would, in the words of WIS. STAT. § 802.02(1), “show[]

that [Markunas] is entitled to relief.”

CONCLUSION

¶30 For all of these reasons, we affirm the circuit court’s order

dismissing the complaint.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.