Smith et al v. City of Milwaukee et al

Filing 25

ORDER signed by Judge J P Stadtmueller on 8/7/2012 Denying as moot 5 Motion to Dismiss; Denying 21 Motion to Withdraw as Attorney; Denying as moot 22 Motion to Postpone Response; Granting 17 Motion to Dismiss Portions of the Amended Complaint; and Dismissing the claims against defendants City of Milwaukee, Captain Regina Howard, and City of Milwaukee Police Department. (cc: all counsel) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARKUS W. SMITH, and
BRITTANY SMITH,
Plaintiffs,

Case No. 12-CV-179-JPS

v.
CITY OF MILWAUKEE, OFFICER
THOMAS MULTHAUF, OFFICER
TELLY KEMOS, CAPTAIN REGINA
HOWARD, and CITY OF
MILWAUKEE POLICE
DEPARTMENT,

ORDER

Defendants.

On March 12, 2012, the defendants in this action filed a Motion to
Dismiss (Docket #5). Following that motion, plaintiffs Markus W. Smith and
Brittany Smith (collectively, “Smiths”) filed an Amended Complaint,
rendering the March 12 motion moot. The court will deny that motion as
such. On April 18, 2012, defendants City of Milwaukee (“City”), City of
Milwaukee Police Department (“MPD”), and Captain Regina Howard
(“Howard”) filed a Motion to Dismiss Portions of the Amended Complaint
(Docket #17), requesting their dismissal for the Smiths’ failure to state a
claim. Subsequently, on July 16, 2012, Attorney Jefferson Cooper, counsel for
the Smiths, filed a Motion to Withdraw (Docket #21). The Smiths filed a short
letter (Docket #23) objecting to that withdrawal on July 31, 2012. Attorney
Cooper also filed a Motion to Postpone Response (Docket #22), requesting a
stay of any obligation to respond to interrogatories until the disposition of his
Motion to Withdraw. Per the following discussion, the court will deny

Attorney Cooper’s Motion to Withdraw, deny the motion to postpone as
moot, and grant the relevant motion to dismiss.
1.

MOTION TO WITHDRAW
Because counsel has not carried his burden, the court will deny the

motion to withdraw. Counsel bears the burden of demonstrating consent to
a motion to withdraw or “a valid and compelling reason for the court to
allow the withdrawal over objection.” Woodall v. Drake Hotel, Inc., 913 F.2d
447, 449 (7th Cir. 1990). Attorney Cooper’s motion notes that there has only
been “a complete breakdown in communication” and that he is unable to
effectively represent the Smiths. He provides no further explanation, either
in the motion or by affidavit. The Smiths’ objection letter takes issue with
that statement, asserting that Attorney Cooper simply told the Smiths that
he was not a civil lawyer and has decided he no longer wants to represent
them. Attorney Cooper has certainly not demonstrated consent to the
motion, and has failed to provide a valid, compelling reason to allow
withdrawal at this time. The court will therefore deny the motion, and will
likewise deny the Motion to Postpone Response, as moot.
2.

MOTION TO DISMISS
Because the Smiths have failed to state a plausible claim for relief

against the City, MPD, or Howard, the court will dismiss the claims against
those defendants. Per Rule 12(b)(6), a motion to dismiss asserts that the
plaintiff has failed to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). In order to survive the motion, the complaint must allege
sufficient facts to state a “plausible” claim for relief. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The court reads the complaint in the light most favorable to the plaintiff,
accepts all well-pleaded facts as true, and draws all possible inferences in
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favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008). Factual allegations are presumed true, “even if doubtful in fact.”
Twombly, 550 U.S. at 555. However, legal conclusions are not entitled to this
assumption of truth. Iqbal, 129 S. Ct. at 1950. While “labels and conclusions”
and “a formulaic recitation of the elements” are insufficient, the complaint
need only “raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
The Smiths have primarily alleged that defendants Officer Thomas
Multhauf and Officer Telly Kemos violated their civil rights by unlawful
arrest and making false statements. Such violations are actionable under 42
U.S.C. § 1983. Liability under that statute generally requires direct personal
responsibility for a violation. Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.
1981). It is well settled that a municipality may only be held liable for
violations committed by employees where it is execution of government
policy or custom that inflicts the injury at issue. Monell v. Dep’t of Social Servs.
of City of New York, 436 U.S. 658, 694 (1978). In order to establish municipal
liability, the plaintiff may carry his or her burden with evidence of official
pronouncements, agency action pursuant to delegated authority, actions by
individuals with final decision-making authority, inaction, or custom.
McNabola v. Chi. Transit Auth., 10 F.3d 501, 509-10 (7th Cir. 1993). A direct
causal link between policy and injury is required. Id. at 510. A simple
respondeat superior theory of liability is insufficient. Monell, 436 U.S. at 691.
Likewise, respondeat superior, alone, is insufficient to make a supervisor
liable. Logan v. Godinez, No. 10-CV-4418, 2010 WL 2836957, at *2 (N.D. Ill.
July 19, 2010). Mere negligent supervision does not create liability; the
supervisor must be personally involved in the conduct. Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001). A causal connection is required, such
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that the supervisor “must know about the conduct and facilitate it, approve
it, condone it, or turn a blind eye.” Hildebrandt v. Ill. Dep’t of Natural Res., 347
F.3d 1014, 1039 (7th Cir. 2003).
With regard to the MPD, the Smiths concede that it is not a suable
entity. Thus, the court will dismiss the MPD. In their Amended Complaint,
the Smiths’ only allegations as to the City are that the officers were at all
times on duty, acting in their official capacity, and under color of law; that
they were wearing the uniform and badges of the MPD and were employed
and empowered by the City; and that the City is responsible for “screening,
training, supervising, disciplining, and overseeing its police officers.”
Likewise, as to Howard, the Smiths allege only that she was the officers’
supervisor at the time and is responsible for “training, supervision,
discipline, and oversight of the officers under her command,” including the
officers in question.
With respect to the City, the Smiths have made no allegations as to
any official practice, policy, or custom that gave rise to the alleged violations
perpetrated by the officers in question. Thus, they have failed to state a claim
for relief as to the City.

As to Howard, the bare allegation that she

supervised the officers in question does no more than raise a simple
respondeat superior theory of liability. That is insufficient. Without any
further allegations of direct knowledge and some form of explicit or tacit
approval, the Smiths have also failed to state a claim for relief against
Howard. Thus, the court will grant the City’s, MPD’s, and Howard’s motion
for dismissal.
Accordingly,
IT IS ORDERED that the defendants’ Motion to Dismiss (Docket #5)
be and the same is hereby DENIED as moot;
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IT IS FURTHER ORDERED that Attorney Jefferson L. Cooper’s
Motion to Withdraw (Docket #21) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the plaintiffs’ Motion to Postpone
Response (Docket #22) be and the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that the defendants’ Motion to Dismiss
Portions of the Amended Complaint (Docket #17) be and the same is hereby
GRANTED. The claims against defendants City of Milwaukee, Captain
Regina Howard, and City of Milwaukee Police Department are hereby
DISMISSED.
Dated at Milwaukee, Wisconsin, this 7th day of August, 2012.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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