Conley-Eaglebear v. Miller et al

Filing 85

DECISION AND ORDER signed by Judge Pamela Pepper on 5/30/2016 DENYING 80 Plaintiff's Motion to Alter or Amend Judgment. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ERIC S. CONLEY-EAGLEBEAR,
Plaintiff,
v.

Case No. 14-cv-1175-pp

FRANK MILLER,
ROB RASMUSSEN,
and KURT WAHLEN,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION TO ALTER OR
AMEND JUDGMENT (DKT. NO. 80)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner, is representing himself. He filed
this lawsuit under 42 U.S.C §1983, claiming that defendant City of Racine
Police Officer Frank Miller used excessive force when he shot the plaintiff, that
defendant City of Racine Police Officer Rob Rasmussen directed or acquiesced
in the use of excessive force, and that defendant Racine Police Chief Kurt
Wahlen failed to properly train his officers. Dkt. No. 8. On February 17, 2016,
the court denied the plaintiff’s motion for summary judgment, and granted the
defendants’ motion for summary judgment. Dkt. No. 75. Judgment was entered
on February 18, 2016. Dkt. No. 76. The plaintiff has filed a motion to alter or
amend judgment pursuant to Federal Rule of Civil Procedure 59(e).
1.

Standard of Review
“Rule 59(e) allows a court to alter or amend a judgment only if the

petitioner can demonstrate a manifest error of law or present newly discovered
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evidence.” Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 511-12 (7th Cir. 2007)). A
“manifest error” is a “wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606
(7th Cir. 2000) (citation omitted). Further, “[m]otions under Rule 59(e) cannot
be used to present evidence that could have been presented before judgment
was entered.” Obriecht, 517 F.3d at 494. Whether to grant a motion to amend
judgment “is entrusted to the sound judgment of the district court.” In re
Prince, 85 F.3d 314, 324 (7th Cir. 1996).
2.

Parties’ Arguments
The plaintiff contends that the court should have given him an

opportunity to properly support his facts instead of omitting so many facts
from Plaintiff’s Proposed Findings of Fact that failed to cite to the record. Dkt.
No. 80 at 2. He asserts that these omitted facts demonstrate that “there is a
genuine dispute as to material fact entitling him to judgment as a matter of
law.” Dkt. No. 80 at 3.
Specifically, the plaintiff contends that the court erroneously failed to
consider his allegations that he was shot in the back. Dkt. No. 80 at 3-4. He
also states that the medical records “absolutely support Plaintiff’s assertion
that his back was facing Miller when Miller shot him twice; Plaintiff’s ‘side was
[not] facing Miller in a bladed fashion.’” Dkt. No. 80 at 4. The plaintiff cites to
defendant Rasmussen’s statement that “when defendant Miller shot the
plaintiff, he never saw a firearm in the Plaintiff’s hand, and the Plaintiff’s back
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was facing the defendants.” Dkt. No. 80 at 4. Finally, the plaintiff contends that
the court should not have relied on Helman v. Duhaime, 742 F.3d 760 (7th Cir.
2014). He argues that Helman is distinguishable because, unlike the suspect in
that case (who was shot by a police officer while reaching for his gun), in this
case Miller and Rasmussen were not on the scene for the purpose of arresting
the plaintiff, because the plaintiff was not a suspect to a crime when the
officers arrived.
In response, the defendants contend that the plaintiff has not met the
legal requirements for a motion to alter or amend judgment under Rule 59(e).
According to the defendants, the plaintiff’s failure to follow federal and local
rules relative to summary judgment motions is not a reason to alter or amend
the court’s judgment. Dkt. No. 82 at 2.
The defendants also contend that the court did not commit a manifest
error of law in its consideration of admissible facts to supports its decision and
order. They state that, contrary to the plaintiff’s contention that the court
should have considered evidence that he was shot in the back while running
from the police, and that the plaintiff had discarded his gun prior to being shot,
the court did find that the plaintiff was shot in the back, citing evidence
provided by the plaintiff. Dkt. No. 82 at 4. The defendants further note that the
court cited to the plaintiff’s evidence that the officer observed two entry wounds
in his shoulder and buttock, and that the medical reports state there were two
wounds in the back of his body. Id.

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The defendants also state that the plaintiff has not provided evidence
that defendant Miller had subjective knowledge that the plaintiff had discarded
his gun at any time before he shot the plaintiff. Id. Rather, the admissible
evidence supports the fact that defendant Miller saw evidence that the plaintiff
had a gun before shooting the plaintiff. Id.
In addition, the defendants contend that the court’s reliance on Helman
was not erroneous, “given the Plaintiff’s admission that he had a firearm
tucked in his waistband underneath his shirt while walking and being observed
by Defendant Miller, and the barrel of the gun was located at his knee.” Dkt.
No. 82 at 5. According to the defendants:
The admissible evidence unrefuted by Plaintiff is that during
Defendant Miller’s foot pursuit of Plaintiff, the Plaintiff made an
extremely exaggerated draw motion with his right hand from his
pants and Defendant Miller saw a gun in Plaintiff’s right hand . . .;
and that Defendant Miller saw the Plaintiff with the gun in his
hand, and rotating toward his direction . . . .
Dkt. No. 82 at 5-6.
3.

Court’s Summary Judgment Decision and Order
In granting the defendants’ motion for summary judgment, the court

concluded that the plaintiff had not identified any genuine issues of material
fact:
The plaintiff’s three “disputed factual issues” are not
“material,” as required by Rule 56.
First, the court concludes that a material dispute does not
exist as to which way the plaintiff was facing when Miller shot him.
The defendants’ submissions indicate that the plaintiff began to
turn toward Miller, made an exaggerated gun-drawing motion,
defendant Miller saw the gun, and the plaintiff’s side was facing
Miller in a bladed fashion. The defendants did not assert that the
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plaintiff was facing Miller head-on; he had had his back to Miller,
and was in the process of turning when he was shot (a fact borne
out by the medical records the plaintiff attached).
In contrast, the plaintiff’s averments in his sworn amended
complaint and his declaration conflict. In his sworn amended
complaint, the plaintiff avers: “I was speaking to Jessica Hubrich
on the cell phone belong[ing] to my girlfriend Renee and fleeing
from the police with no gun on me and I got shot in my back two
times by order of Police Officer Rasmussen[.]” Dkt. No. 8 at 5 ¶ 11.
In his declaration, however, the plaintiff avers that once he exited
the door into the courtyard, he
withdrew a firearm that I had concealed in my waist
band. Once I withdrew the firearm I threw it towards
some bushes and continued to run to the wooden
fence straight from the courtyard doors. Once I
reached the wooden fence I reached my right hand
upward to attempt to climb over the fence when at that
moment I was shot two times.
Dkt. No. 68 at 1-2.
The court is not required to consider the facts set forth in
these two filings, see McNeil v. United States, 508 U.S. 106, 113,
(1993); Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.
2008). The fact that the plaintiff tells two different stories in the
filings supports the court’s conclusion that his version of events
does not raise a genuine issue of material fact regarding which way
he was facing when he was shot. See Burton v. Downey, 805 F.3d
776, 785 (7th Cir. 2015) (citing Scott v. Harris, 550 U.S. 372, 380
(2007)). And again, the fact that the plaintiff had—and admits that
he had—a firearm in his waistband as he was fleeing, and that he
pulled it out of his pants—and admits that he did so—while he was
fleeing, makes the question of which direction he was facing when
Miller shot him immaterial.
Second, the defendants do not deny that defendant Miller
shot the plaintiff in the back of his body. The plaintiff’s medical
records from his exhibits, Dkt. No. 42-1, describe the gunshot
wounds as located toward the back and side of his body. See Dkt.
No. 42-1 at 1 (shot “one time to the buttock area and once to the
left arm”); Id. at 5 (gunshot wound “to the left hip”), Id. at 7 (“left
thigh/buttock gunshot wound”). The evidence, and the defendants’
admissions, demonstrate that both facts are true—the plaintiff had
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a wound to the back of his body, and one to the side. That fact is
not material to the question of whether Miller used excessive force.
Finally, the defendants do not deny that the plaintiff was not
wanted for committing a crime on or before the chase on June 3,
2010. Nothing in the record indicates that Miller and Rasmussen
chased the plaintiff, or that Miller shot him, because of a belief
that he was wanted for a crime. The reason defendant Miller fired
his weapon is because he believed that the plaintiff posed a threat
of serious physical harm. Thus, there is no dispute—material or
otherwise—about the fact that the plaintiff was not wanted before
June 3, 2010.
Dkt. No. 75 at 11-13.
After concluding that the plaintiff had identified no genuine issues
of material fact, the court determined that the defendants were entitled
to judgment as a matter of law:
A plaintiff has a constitutional protection against being shot
on sight if he did not put anyone else in imminent danger or
attempt to resist arrest for a serious crime. Weinmann, 787 F.3d at
448 (kicking down a door and immediately shooting an armed
suicidal person who is neither resisting arrest nor threatening
anyone save himself is an excessive use of force); cf. DeLuna v. City
of Rockford, 447 F.3d 1008, 1011-12 (7th Cir. 2006) (officer’s use
of deadly force was reasonable when suspect said “I’ve got
something for you. You are going to have to kill me,” and refused to
raise his hands or stop walking toward the officer). In Garner, 471
U.S. at 21, the Court held that it was unreasonable to kill a
“young, slight, and unarmed” burglary suspect by shooting him in
the back of the head while he was running away on foot, and when
the officer “could not reasonably have believed that [the suspect] . .
. posed any threat,” and “never attempted to justify his actions on
any basis other than the need to prevent an escape.”
On the other hand, the Seventh Circuit has held that an
officer who shoots a suspect when the suspect is reaching for his
firearm exhibits a response that is “objectively reasonable,” and
thus cannot be found to have violated that suspect’s Fourth
Amendment rights. Helman v. Duhaime, 742 F.3d 760, 763 (7th
Cir. 2014).

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In this case, the plaintiff admits that he drew a very large
gun from his waistband. The defendants’ facts demonstrate that he
did so in an exaggerated manner, and that he looked like he might
raise the firearm toward Miller or Rasmussen. Not knowing what
the plaintiff was going to do, Miller acted quickly, and fired his
weapon. The plaintiff posed a serious threat of physical harm to
the officers, and potentially to the community at large. Under the
circumstances, defendant Miller’s response was “objectively
reasonable,” did not constitute excessive force, and did not violate
the plaintiff’s Fourth Amendment rights.
Because there are no genuine issues of material fact in
dispute, and because the defendants are entitled to judgment as a
matter of law, the court will deny the plaintiff’s motion for
summary judgment and grant the defendants’ motion for summary
judgment.
Dkt. No. 75 at 13-15.
4.

Discussion
Both the Local Rules and the Federal Rules of Civil Procedure require a

party’s proposed findings of fact to cite to evidentiary materials in the record.
See Fed. R. Civ. P. 56(c)(1); Civil L.R. 56(b)(1), (2) (E.D. Wis.). The court did not
include in the “Facts” section of its summary judgment order many of the facts
from the Plaintiff’s Proposed Findings of Fact, because many of them did not
cite to the record. Dkt. No. 75 at 2. A court has discretion to enforce its local
rules, even with regard to a pro se litigant. See McNeil v. United States, 508
U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir.2008). Here, the court acted within its
discretion when it concluded that the plaintiff’s filings failed to comply with
local rules, and as a consequence essentially accepted as true many of the
defendants’ proposed facts. See Turner v. Cox, 569 Fed.. App’x 463, 467 (7th
Cir. 2014).
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Despite the fact that the plaintiff’s proposed findings did not comply with
the federal and local rules, however, the court did reference the plaintiff’s
sworn amended complaint and his sworn Declaration in the “Discussion”
section of its summary judgment order. And, as described above, the court
determined that it was not required to accept as true the facts set forth in the
filings, because they told two different stories.
The court’s summary judgment order demonstrates that the plaintiff’s
remaining arguments lack merit. First, the court acknowledged that the facts
supported an inference that he was shot in the back. Second, the court
referenced the plaintiff’s medical records. Finally, the court acknowledged that
the officers did not arrive on the scene for the purpose of arresting the plaintiff.
The court granted summary judgment in favor of the defendants even after
finding the above facts (the facts the plaintiff argues that the court
disregarded).
The plaintiff has not shown that the court’s summary judgment order
contains a manifest error of law. Accordingly, the court will deny the plaintiff’s
motion for reconsideration.

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5.

Conclusion
The court DENIES the plaintiff’s motion to alter or amend judgment. Dkt.

No. 80.
Dated in Milwaukee, Wisconsin this 30th day of May, 2016.

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