Salazar v. Milwaukee Police Department et al

Filing 75

ORDER signed by Judge J P Stadtmueller on 9/23/09: denying 59 plaintiff's Motion for Summary Judgment; granting 65 defendants' Motion for Summary Judgment; granting 69 plaintiff's Motion for Leave to File belated reply brief; and, denying 74 defendants' Motion to Strike plaintiff's reply to his proposed findings of fact. (cc: plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
J A V IE R SALAZAR, P l a i n t if f, v. N A N N E T T E HEGERTY, CITY OF MILW A U K E E , AGUSTIN MOLINA, CHAD W A G N E R , T IM O T H Y BURKEE, MICHELLE FORMOLO and RODNEY KLOTKA, D e fe n d a n ts . C a s e No. 07-CV-238

DECISION AND ORDER
T h e plaintiff filed this pro se civil rights complaint under 42 U.S.C. § 1983 and is proceeding in forma pauperis on claims under the Fourth Amendment for unlawful a rre s t and false imprisonment, as well as a claim that the City of Milwaukee has an u n c o n s titu tio n a l policy of issuing arrest warrants without probable cause. In April 2 0 0 8 , the defendants filed a motion for summary judgment, which was denied as m o o t when the court granted the plaintiff's motion to file an amended complaint. N o w before the court are the parties' cross-motions for summary judgment. A d d itio n a lly , the plaintiff has filed a motion for leave to file a belated reply brief, and th e defendants have filed a motion to strike the plaintiff's reply to his proposed fin d in g s of fact. All pending motions will be addressed herein.

R U L E S REGARDING PRO SE LITIGANTS In pro se litigation, when the opposing party files a motion for summary ju d g m e n t, that motion must include a short and plain statement that any factual a s s e rtio n in the movant's affidavits and documentary evidence will be accepted as tru e unless the pro se litigant submits his own affidavits or other documentary e vid e n c e contradicting the factual assertions. Civil L.R. 56.1 (a) (1) (E.D. W is . ). A d d itio n a lly, the text of Fed. R. Civ. P. 56(e) and (f), Civil L.R. 56.1, Civil L.R. 56.2 a n d Civil L.R. 7.1 must be part of the motion. Civil L.R. 56.1 (a)(2) (E.D. Wis.). In th is case, the defendants failed to provide the plaintiff with the text of Civil Local R u le s 56.1 and 56.2 (E.D. W is.) as part of their motions for summary judgment. However, where no prejudice has occurred, the failure to give proper warnings m a y be excused. See Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994); Timms v . Frank, 953 F.2d 281, 286 (7th Cir.1992). Before the defendants filed their current motion for summary judgment, the p la in tiff filed a complete motion for summary judgment of his own, including a m o tio n , a brief, a response to the defendants' earlier proposed findings of fact, his o w n proposed findings of fact, and an affidavit. The plaintiff also later replied to the p ro p o s e d findings of fact the defendants filed as part of their current motion for s u m m a ry judgment. Thus, the plaintiff did not lose the opportunity to put forth facts in opposition to defendants' motion for summary judgment. The court concludes that

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th e defendants' failure to provide copies of all of the applicable rules did not result in prejudice and will excuse defendants' failure to give proper warnings. M O T IO N S REGARDING SUMMARY JUDGMENT MATERIALS S h o r tly after the time expired for the plaintiff to respond to the defendants' m o tio n for summary judgment, he filed a motion for leave to file a belated reply brief. H e cites his confusion regarding whether the defendants' earlier motion for summary ju d g m e n t was still pending as good cause to allow a late reply brief. He also argues th a t the defendants would not be prejudiced by his late reply brief. The defendants file d a response indicating that they did not object to the plaintiff's belated reply brief. T h e court will grant the plaintiff's motion. In addition to his motion for leave to file a belated reply brief, the plaintiff filed a reply regarding his proposed findings of fact. The defendants have filed a motion to strike the plaintiff's reply to his proposed findings of fact. They argue that the local r u l e s do not provide for any type of reply with regard to proposed findings of fact. T h e y also contend that the plaintiff's "replies" do not reply to any new factual in fo rm a tio n and, instead, continue to argue the points raised in the plaintiff's initial p r o p o s e d facts. T h e defendants acknowledged in response to the plaintiff's motion for leave to file a belated reply brief that the brief also served as a response to the defendants' m o tio n for summary judgment. As such, the plaintiff could have filed another

re s p o n s e to the defendants' proposed findings of fact that were part of their pending

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m o tio n for summary judgment (versus their earlier motion). The court will deny the d e fe n d a n ts ' motion to strike and consider the plaintiff's reply. However, to the extent th a t the document does not contain admissible evidence, the court will consider it as p a rt of the plaintiff's argument regarding the cross-motions for summary judgment. S U M M AR Y JUDGMENT STANDARD S u m m a ry judgment is proper "if the pleadings, the discovery and disclosure m a te r ia ls on file, and any affidavits show . . . no genuine issue as to any material fact . . . and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c). The mere existence of some factual dispute does not defeat a summary ju d g m e n t motion. Instead, "the requirement is that there be no genuine issue of m a teria l fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986) (emphasis in original). For a dispute to be genuine, the evidence must be such that a

"rea s o n a b le jury could return a verdict for the nonmoving party." Id. In evaluating a motion for summary judgment, the court must draw all in fe re n c e s in a light most favorable to the nonmovant. Matsushita Electric Industrial C o ., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), Bethlehem Steel Corp v . Bush, 918 F.2d 1323, 1326 (7th Cir. 1990). However, a court is "not required to d ra w every conceivable inference from the record ­ only those inferences that are re a s o n a b le ." Bank Leumi Le-Isreal, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (c itin g Spring v. Sheboygan Area School Dist., 865 F.2d 883, 886 (7th Cir. 1989)).

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T h e moving party bears the initial burden of showing that there are no material fa c ts in dispute and that he is entitled to judgment as a matter of law. Celotex Corp. v . Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment m a y satisfy this initial burden by pointing to the plaintiff's failure to introduce e vid e n c e sufficient to support the cause of action alleged. Id. at 325. Once the m o vin g party meets its initial burden, the nonmoving party must "go beyond the p le a d in g s " and designate specific facts to support its cause of action, showing a g e n u in e issue for trial. Id. at 322-25. W h e n the moving party does not bear the burden of proof at trial, he can p re va il on a motion for summary judgment by showing that there is an absence of e vid e n c e to support any essential element of the non-moving party's case. Celotex C o rp ., 477 U.S. at 322-23. However, where the moving party bears the burden of p r o o f at trial, he can prevail only by proving every element of his case with evidence s o compelling that no reasonable jury could return a verdict for the non-moving party. S e e Anderson, 477 U.S. at 248; Select Creations, Inc. v. Paliafito America, Inc., 911 F . Supp. 1130, 1149 (E.D. W is. 1995). BACKGROUND O n September 8, 2003, Daniel Sass complained that he was the victim of an a rm e d robbery near his home on South 17th Street in Milwaukee, W is c o n s in . (D e fe n d a n ts ' Proposed Findings of Fact ("DPFOF"), ¶ 5). Sass described the s u s p e c t as a dark-complected Hispanic male, in his late teens or twenties,

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a p p ro xim a te ly 5 feet 6 inches tall, weighing approximately 140-150 pounds, with long b la c k hair in a pony tail. Id. at ¶ 6. Sass told police officers that the suspect was w e a rin g a dark blue jersey-type shirt, with white numbers and/or letters on the front a n d on the shoulders, dark blue jean shorts, which extended past his knees, white s o c k s , and a dark blue bandana with a white design on it over his mouth and nose. Id . at ¶ 13. E a r lie r that day, Officer David Martinez of the Milwaukee Police Department h a d observed the plaintiff, Javier Salazar, who he knew from prior police contact, rid in g his bicycle on Lincoln Avenue, near the scene of the robbery. Id. at ¶¶ 14-15. O ffic e r Martinez observed the plaintiff wearing clothes that fit the description Sass p ro vid e d and knew that the plaintiff matched the physical description provided by S a s s . Id. at ¶ 14. B a s e d on the descriptive information provided by Sass and Officer Martinez, th e Milwaukee police officers investigating the crime believed that the plaintiff might h a ve been the perpetrator of the crime. Id. at ¶ 16. They alerted other officers of the re s u lts of their investigation. Id. W h ile on patrol on September 16, 2003, defendant Rodney Klotka, a M ilw a u k e e police officer, saw the plaintiff in the front yard of a residence on South L a yto n Boulevard in Milwaukee, Wisconsin. Id. at ¶ 17. Officer Klotka knew the p la in tiff from prior investigations and arrested the plaintiff without incident. Id. at ¶ ¶ 17-18, 23-24. He had no further contact with the plaintiff after he was booked on

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S e p te m b e r 16, 2003. Id. at ¶ 28. None of the other defendants had any personal in vo lve m e n t in the arrest of the plaintiff or his detention. Id. at ¶¶ 26, 29, 31. A c c o rd in g to Officer Klotka, he had received information from other Milwaukee p o lic e officers relative to the investigation of the armed robbery of Sass. Id. at ¶ 19. H e believed that the plaintiff was suspected of being the perpetrator of the crime a g a in s t Sass: (1) based upon the investigation conducted by fellow Milwaukee p o lic e officers; and (2) because the description Sass provided matched the d e s c rip tio n of the plaintiff, which was provided by another Milwaukee police officer w h o observed the plaintiff prior to the armed robbery at a location near where the c rim e had occurred. Id. at ¶¶ 20-21. Officer Klotka relied upon information provided b y the investigating officers, who he believed to be credible and reliable sources of i n f o r m a t io n . Id. at ¶ 22. Officer Klotka also knew, based on his training with the M ilw a u k e e Police Department, as well as the guidelines from the State of W is c o n s in L a w Enforcement Standards Board, "that a police officer may effect the arrest of an in d ivid u a l when he has probable cause to believe the individual may have committed a crime, and that an officer may rely on the investigatory work and statements of o the r officers in making the probable cause determination." Id. at ¶ 25. In contrast, the plaintiff avers that the arrest was based on a felony suspect in form a tio n report that had been entered into the NCIC. (Affidavit of Javier Salazar, ¶ 2). The sworn discovery responses attached to the plaintiff's affidavit contain a n u m b e r of responses explicitly denying that the plaintiff's arrest was based on a

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te m p o r a ry felony warrant. (Affidavit of Javier Salazar, Exhibits). In the responses, th e defendants repeatedly state that the plaintiff was arrested because probable c a u s e existed to conclude that he had committed a felony, by being the perpetrator o f the armed and masked robbery of Sass. Id. T h e Milwaukee Police Department Felony Suspect Information Report states th e following as probable cause for the arrest of the plaintiff: A fte r officer broadcasted the description of the actor, P.O. Martinez re c a lle d seeing a subject who matched the description and clothing e a rlie r before in the area. Victim picks out Salazar as a person who he h a d seen in the neighborhood almost every day and believes Salazar h a d robbed him. Salazar was masked, and ADA Potter wants Salazar q u e s tio n e d and wants the victim to appear in the DA's office to explain. (A ffid a vit of Javier Salazar, Exhibits). T h e plaintiff has also provided a copy of Detective Molina's report regarding the armed robbery. As part of the "Statement of Victim Daniel L. Sass," the report s ta te s : D a n ie l stated the actor, based upon the subject's hair length and p h ys ic a l description, could possibly be a subject that hangs around in th e neighborhood. Daniel stated he has seen this subject that he has in mind almost every day this past summer and this subject hangs a ro u n d the 17th and 16th St. area. Id . Later, the report indicates that Detective Molina, s h o w e d photo array #14950 to the victim, DANIEL SASS and at that tim e he picked out the subject in the fourth position, Javier SALAZAR. D a n ie l stated this is the subject he had seen almost every day all s u m m e r but he had never seen this subject wearing a blue jersey as he h a d seen on the actor today. Daniel stated this subject SALAZAR has h a ir past the shoulders and it's wavy. Daniel stated he couldn't say for

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s u re if this person in the fourth position is the person who had robbed h im . Id . (Capitalization in original). T h e plaintiff also submits that any information from Officer Martinez constitutes in a d m is s ib le hearsay and that the report itself contained deliberate false statements, o r showed a reckless disregard for the truth. (Plaintiff's Response to Defendants' P ro p o s e d Findings of Fact, ¶¶ 10-12, 19). D IS C U S S I O N T h e plaintiff argues that he is entitled to summary judgment because he was a r re s te d without probable cause. He contends that the basis for his arrest was a felon y suspect information report that contained false statements or, alternatively, s h o w e d a reckless disregard for the truth. The plaintiff submits that there would be n o probable cause for his arrest if the felony suspect information report is excluded. H e further maintains that the use of temporary felony warrants is unconstitutional b e c a u s e it does not involve a judicial determination of probable cause. The defendants also argue that they are entitled to summary judgment on the p la in tiff's claims. They submit that Officer Klotka had probable cause to arrest the p la in tiff and, in any event, Officer Klotka is entitled to qualified immunity relative to th e plaintiff's arrest. The defendants also argue that former Police Chief Nannette H e g e rty is not a proper party to this action and that the plaintiff was not unlawfully d e ta in e d by any of the defendants. Further, the defendants contend that there was n o causal connection between the temporary felony warrant issued for the plaintiff 9

a n d his subsequent arrest by Officer Klotka. They argue that the policy of the M ilw a u k e e Police Department is that an officer has probable cause to arrest a s u b je c t when the officer has reliable information which causes him to believe that a s u b je c t has committed a crime and, because that is a lawful standard, the plaintiff's p o lic y claim fails. The defendants also maintain that the plaintiff has presented only e vid e n c e regarding his own arrest and that a single incident is not an adequate basis for inferring an unlawful policy. I. F O U R T H AMENDMENT CLAIMS A. U n la w fu l Arrest

I n order to prevail on a claim of an unlawful arrest in violation of the Fourth A m e n d m e n t , the plaintiff must show that he was arrested without probable cause; p ro b a b le cause is an absolute defense to such a claim. Williams v. Rodriguez, 509 F .3 d 392, 398 (7th Cir. 2007). The Seventh Circuit recently set forth the standard for p ro b a b le cause: A police officer has probable cause to arrest a person if, at the time of th e arrest, the "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable c a u tio n , in believing, in the circumstances shown, that the suspect has c o m m itte d , is committing, or is about to commit an offense." Michigan v . DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). In ascertaining whether an officer had probable cause, the court is to vie w the circumstances from the perspective of a reasonable person in th e position of the officer. Chelios, 520 F.3d at 686. The jury must d e te rm i n e the existence of probable cause "`if there is room for a d iffe re n c e of opinion concerning the facts or the reasonable inferences to be drawn from them.'" Sornberger v. City of Knoxville, Ill., 434 F.3d 1 0 0 6 , 1013-14 (7th Cir. 2006) (quoting Maxwell v. City of Indianapolis, 9 9 8 F.2d 431, 434 (7th Cir. 1993)). Only if the underlying facts claimed 10

to support probable cause are not in dispute may the court decide w h e th e r probable cause exists. Maxwell, 998 F.2d at 434. Gonzalez v. City of Elgin, No. 08-2658, 2009 W L 2525565, at *9 (7th Cir. Aug. 20, 2 0 0 9 ). Probable cause "does not require evidence sufficient to support a conviction, n o r even evidence demonstrating that it is more likely that not that the suspect c o m m itte d a crime." Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008) (quoting U n ite d States v. Sawyer, 224 F.3d 675, 679 (7th Cir. 2000)). The plaintiff contends that information received from Officer Martinez is nona d m is s ib le hearsay and is insufficient to support a proposed finding of fact. He a rg u e s that what Officer Martinez relayed to other officers regarding Javier Salazar p o s s ib ly being the perpetrator of the robbery of Sass is non-admissible hearsay. H o w e ve r, this would undermine the efficacy of law enforcement agencies. If officers w e re bound only by their personal knowledge and could not act on the information a n d knowledge gained by other officers through observation and investigation, they w o u ld be rendered impotent. Officers are free to exchange information, and an o ffic e r may effect an arrest based on probable cause that resulted from information s h a r e d amongst officers. A s the Supreme Court explained in United States v. Hensley, 469 U.S. 2 2 1 , 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), "`[e]ffective law e n fo rc e m e n t cannot be conducted unless police officers can act on d ire c tio n s and information transmitted by one officer to another and that o ffic e r s , who must often act swiftly, cannot be expected to crosse xa m in e their fellow officers about the foundation for the transmitted in fo rm a tio n .'" Id. at 231, 105 S.Ct. at 682 (quoting United States v. R o b in s o n , 536 F.2d 1298, 1299 (9th Cir. 1976)). Therefore, so long as "th e facts and circumstances within [an agency's collective] knowledge 11

.. . warrant a prudent person in believing that the [suspect] had c o m m itte d or was committing an offense," Beck v. Ohio, 379 U.S. 89, 9 1 , 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), an officer of that agency, a c t in g in good-faith reliance on such "facts and circumstances," has p ro b a b le cause to effectuate an arrest. See Hensley, 469 U.S. at 232, 1 0 5 S.Ct. at 682 (1985). T a n g w a ll v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998). T h e plaintiff also insists that he was arrested pursuant to the issuance of a te m p o ra ry felony warrant generated by Detective Agustin Molina and assigned in c id e n t number 03-252-3008. He submits that other defendants were involved in th e creation of the temporary felony warrant. However, the plaintiff's insistence that h e was arrested based on a temporary felony warrant is argument, not evidence. All of the evidence presented by the defendants, including their discovery re s p o n s e s , which were filed by the plaintiff, reinforces the defendants' position that n o temporary felony warrant existed for the plaintiff at the time of his arrest. The e vid e n c e indicates that the temporary felony warrant remains active for only 72 h o u rs and then expires. The plaintiff was arrested far more than 72 hours after the te m p o ra ry felony warrant was entered. The plaintiff's affidavit is not sufficient to c o n tra d ic t the defendants' evidence that the temporary felony warrant had expired a n d was not the basis of the plaintiff's arrest. The plaintiff does not have personal k n o w le d g e or documentary or testimonial evidence that a temporary felony warrant w a s the basis of his arrest. The court is not in the position to consider the legality o f temporary felony warrants because the admissible evidence in the record

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in d ic a tes that Officer Klotka's arrest of the plaintiff was not based on the temporary fe lo n y warrant. The plaintiff also argues vehemently that the felony suspect information report, w h ic h seems to be a means for officers to share information, is unconstitutional and c o n ta in s deliberate lies or a reckless disregard for the truth. He compares the s ta te m e n t attributed to Sass in Detective Molina's report and the language of the fe lo n y suspect information report. In his report, Detective Molina states that Sass s ta te d that the actor "could possibly be a subject that hangs around in the n e ig h b o r h o o d , " and that Sass picked out the plaintiff in a photo array, but Sass "c o u ld n 't say for sure if this person in the fourth position is the person who had ro b b e d him." (Affidavit of Javier Salazar, Exhibits). The felony suspect information re p o rt states: "Victim picks out Salazar as a person who he had seen in the n e ig h b o rh o o d almost every day and believes Salazar had robbed him." Id. They are n o t identical, but neither are they blatantly contradictory. Even if there is a discrepancy, there is no admissible evidence to indicate that O ffic e r Klotka arrested the plaintiff due to the felony suspect information report. In s te a d , his determination of probable cause to arrest was based on the fact that the d e s c rip tio n Sass provided matched the description of the plaintiff, and another officer o b s e rv e d the plaintiff near the crime scene prior to the crime wearing clothes that fit th e description Sass provided of his attacker's clothing. The court concludes that the in fo rm a tio n Officer Klotka had at the time of the plaintiff's arrest constitutes probable

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c a u s e , and that Officer Klotka appropriately relied on information that resulted from th e observations and investigation of other officers. As a result, the plaintiff's § 1983 c la im for unlawful arrest is barred. See Schertz v. Waupaca County, 875 F.2d 578, 5 8 2 (7th Cir. 1989); see also Williams, 509 F.3d at 398. Because of the finding of probable cause, the court need not consider whether O ffic e r Klotka is entitled to qualified immunity relative to the plaintiff's arrest. H o w e v e r, the court notes that qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 4 7 5 U.S. 335, 341 (1986). Thus, even if the court reached the issue of qualified im m u n ity, it would be very difficult for the plaintiff to show in this case that Officer K lo tk a is not entitled to its protections. Anderer v. Jones 385 F.3d 1043, 1049 (7th C ir. 2004) (internal quotations omitted) ("[A]s long as a reasonably credible witness o r victim informs the police that someone has committed, or is committing, a crime, th e officers have probable cause to place the culprit under arrest, and their actions w ill be cloaked with qualified immunity if the arrestee is later found innocent."). B. False Imprisonment

T h e plaintiff was also allowed to proceed at screening on a Fourth A m e n d m e n t claim for false imprisonment. Like his claim for unlawful arrest,

p ro b a b le cause bars this claim. See Schertz v. Waupaca County, 875 F.2d 578, 582 (7 th Cir. 1989); see also Williams, 509 F.3d at 398.

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N e ve rth e le s s , the plaintiff may have been able to pursue a Fourteenth A m e n d m e n t claim based on the fact that he was detained for almost a week without a n appearance before a magistrate for a judicial determination of probable cause. S e e County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991) (establishing 4 8 -h o u r rule for probable cause hearings after warrantless arrests); Gerstein v. P u g h , 420 U.S. 103, 125 (1975). However, none of the defendants in this case were in vo lve d in that deprivation so they cannot be held liable under § 1983. C. Personal Involvement

T h e defendants submit that, other than Officer Klotka, none of the defendants w e re personally involved with the plaintiff's allegations of unlawful arrest or false im p ris o n m e n t. The plaintiff's claims arise under 42 U.S.C. § 1983, which provides th a t: E v e ry person who, under color of any statute, ordinance, regulation, c u s to m , or usage, of any State or Territory or the District of Columbia, s u b je c ts , or causes to be subjected, any citizen of the United States or o th e r person within the jurisdiction thereof to the deprivation of any rig h ts , privileges, or immunities secured by the Constitution and laws, s h a ll be liable to the party injured in an action at law, suit in equity, or o th e r proper proceeding for redress. S in c e a § 1983 cause of action is against a "person," in order "[t]o recover damages u n d e r § 1983, a plaintiff must establish that a defendant was personally responsible for the deprivation of a constitutional right." Johnson v. Snyder, 444 F.3d 579, 583 (7 th Cir. 2006) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). In

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o rd e r to be personally responsible, an official "must know about the conduct and fac ilitate it, approve it, condone it, or turn a blind eye." Id. B e c a u s e none of the defendants, other than Officer Klotka, were involved in t h e arrest or detention of the plaintiff, they are entitled to summary judgment on t h o s e claims. The plaintiff tries to hold them accountable for their roles in the te m p o ra ry felony warrant, but that is not at issue here. II. P O L IC Y CLAIM T h e plaintiff's final claim is a claim against the City of Milwaukee that it m a in ta in s an unconstitutional policy of issuing temporary felony warrants that do not h a ve a judicial determination of probable cause. The plaintiff has failed to present e vid e n c e that he was arrested pursuant to a temporary felony warrant, or even s p e c ific a lly pursuant to the felony information suspect report. Thus, the court cannot c o n s id e r the constitutional validity of temporary felony warrants. The defendants are e n title d to summary judgment on this claim. Accordingly, IT IS ORDERED that the plaintiff's motion for summary judgment (Docket #59) b e and the same is hereby DENIED; I T IS FURTHER ORDERED that the defendants' motion for summary ju d g m e n t (Docket #65) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that the plaintiff's motion for leave to file belated re p ly brief (Docket #69) be and the same is hereby GRANTED; and

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IT IS FURTHER ORDERED that the defendants' motion to strike plaintiff J a vie r Salazar's reply to his proposed findings of fact (Docket #74) be and the same is hereby DENIED. T h e clerk of the court is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 23rd day of September, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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