Giddeon v. Flynn et al

Filing 76

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 10/20/2015. 54 Plaintiff's MOTION for Summary Judgment DENIED. Defendants' MOTION for summary judgment GRANTED. Defendant Kurt D. Kezeske DISMISSED. (cc: all counsel, via mail to Patrick Giddeon at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PATRICK L. GIDDEON,
Plaintiff,
-vs-

Case No. 14-CV-331

EDWARD FLYNN, et al.,
Defendants.

DECISION AND ORDER
On March 25, 2014, Patrick Giddeon, a pro se plaintiff, filed a civil rights
action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On October 20, 2014, he
filed an amended complaint identifying the unnamed defendants. (ECF No.
24.)

The Court screened the plaintiff’s complaint pursuant to 28 U.S.C §

1915A(a) and allowed the plaintiff to proceed with his claims that the
defendants violated his Fourth and Fourteenth Amendment rights during his
arrest. (ECF Nos. 7, 25.) This matter is before the Court on the plaintiff’s
motion for summary judgment (ECF No. 54), which was fully briefed as of
August 5, 2015.
In addition to responding to the plaintiff’s motion, the defendants
(except Kurt Kezeske1) requested, pursuant to Federal Rule of Civil Procedure

U.S. Marshals served Kurt Kezeske with the summons and amended complaint
on June 4, 2015. (ECF No. 62.) Kezeske did not file an answer to the plaintiff’s
amended complaint and is not represented by the remaining defendants’ counsel. The
1

56(f), that the Court grant summary judgment in their favor rather than
merely denying the plaintiff’s summary judgment motion. The Court reminds
defendants that the “rigors of the summary judgment procedures set forth in
Fed.R.Civ.P. 56 and the court’s companion local rule, Civil L.R. 56, are not
empty formalities.”

National Exchange Bank and Trust v. Petro-Chemical

Systems, Case No. 11-C-134, 2013 WL 1858621, at *2 (E.D. Wis. May 1, 2013).
Due process requires that a party have a full opportunity to present the basis
for its claims before a court terminates the case or cause of action.

Id.

Generally, this “entails a movant supporting its claim with a detailed list of
proposed findings of fact, each supported by a specific citation to an applicable
part of the record. The nonmovant then has the opportunity to challenge the
movant’s contentions by not only submitting a memorandum of law in
opposition to the motion but also responding to each one of the movant’s
proposed findings of fact and supplementing those proposed facts with
proposed facts of its own.” Id. (internal citations omitted).
Although the Court does not favor the shortcut cross-motion procedure
that the defendants are advancing, it notes that the plaintiff’s reply brief
references the defendants’ “motion for summary judgment” and specifically
requests that the Court “deny Defendants’ motion for summary judgment.”
Court will address Kezeske separately at the end of this order. General references to
the defendants’ summary judgment motion should be read to exclude Kezeske.

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(ECF No. 73 at 3, 10.) In addition, the plaintiff responds at length to each of
the defendants’ proposed additional facts and arguments.

(ECF No. 74.)

Given that the plaintiff did not object to the defendants moving for summary
judgment in their response to his motion and given that the plaintiff had a
reasonable opportunity to respond to the defendants’ arguments and
additional proposed facts, the Court will also consider the defendants’
response as a cross-motion for summary judgment.
For the reasons set forth below, the defendants’ motion is granted.
I. RELEVANT FACTS2
A. The Parties
The plaintiff is currently incarcerated at Oshkosh Correctional
Institution. The events alleged in the plaintiff’s complaint occurred on August
25, 2012, in connection with his arrest.
The defendants are the following Milwaukee Police Department
officials: Edward Flynn, Michael Thomas, Jr., Claude Osburn, Jr., Kurt D.
Kezeske, Raymond L. Monfre, Dustin J. Kegley, Tabatha L. Kurzynski,
Ronald Campos, and Geoffrey Keen. The plaintiff is also suing the City of
Milwaukee.

2

The facts in this section are primarily taken from the plaintiff’s and the
defendants’ proposed statements of facts. (ECF No. 74.) The facts are undisputed
unless otherwise noted by the Court.

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B. The Events of August 25, 2012
On the morning of August 25, 2012, the Milwaukee Police Department
dispatch received calls from Qeletha and Deletha Smith for a possible
domestic violence complaint.

Shortly thereafter, defendants Thomas,

Osburn, and Keen arrived at the scene to investigate the complaint.
Thomas’s incident report indicates that he spoke with Qeletha Smith
who stated that the plaintiff (her former boyfriend and the father of her child)
entered her house, yelled at her, placed his hand on her neck, and pushed her
to the ground. (ECF No. 56-3 at 1.) Osborn spoke to Qeletha only briefly
before beginning his search for the plaintiff.
Osburn’s incident report indicates that, while checking the area for
the plaintiff, Deletha called to inform the officers that the plaintiff returned
to the house to possibly retrieve a gun. (Id. at 2-3) Osburn spoke to the
plaintiff’s son who stated that the plaintiff “ran into the yard, picked up the
gun from under the rear porch of the house and ran northwest through the
alley.” (Id. at 3.) Osburn checked the area on foot but was not able to locate
the plaintiff. (Id.)
About two hours after the initial complaint, the plaintiff was one of six
passengers in a car. The car entered an alley to pick up the plaintiff’s sister.
Osburn was in a police van nearby and followed the car into the alley.
Osburn stopped the vehicle by flashing his lights and sounding his siren.

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The car was traveling within the speed limit, was fully registered and
licensed, and had not violated any traffic laws at the time Osburn stopped it.
Osborn approached the car, and the driver rolled down his window to ask if
there was a problem. Osborn said no, but refused to let the car leave until all
the occupants of the car informed him of their names. When the plaintiff
stated his name, Osborn grabbed his Taser and called for back-up.
After a few minutes, additional officers arrived and approached the
vehicle with guns drawn. The officers ordered all of the occupants except for
the plaintiff to get out of the vehicle. Osborn then ordered the plaintiff out of
the vehicle, handcuffed him, and placed him under arrest. The plaintiff did
not have any guns or weapons on his person when he was arrested.
The driver of the car gave Osborn permission to search the car and the
trunk. In the trunk, Osborn found an orange bag, which he searched with
the permission of the driver. Osborn found a gun inside the bag. The driver
informed Osborn that the plaintiff’s sister had placed the bag in the trunk,
and the plaintiff’s sister, who appeared to be under the influence of alcohol,
informed Osborn that the gun belonged to the plaintiff.
Osborn and Kezeske questioned the plaintiff about the gun. They did
not read the plaintiff his rights, and they denied his request to be transported
to the police station. After the plaintiff repeated for about thirty minutes
that he did not know anything about the gun and that he wanted to be

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transported to the station, the plaintiff indicates that Osborn informed the
plaintiff that he would sit in the back of the squad car until he acknowledged
that the gun was his. Osborn closed the squad car door and walked away.
After about five minutes, Osborn returned and started to question the
plaintiff again. The plaintiff told Osborn that the car was hot and he felt
light-headed. He asked again to be taken to the station. The plaintiff states
that Osborn repeated that the plaintiff was going to sit there until he
admitted the gun belonged to him. Kezeske was sitting in the driver seat
when Osborn made this statement.
According to the plaintiff, Osborn said to him, “If you say the gun is
yours I would let everybody go and tell the District Attorney that you was a
Good Samaritan.” (ECF No. 74 at 11.) The plaintiff asked Osborn what he
wanted him to say, and Osborn instructed him to say, “It’s my gun.” (Id.)
The plaintiff says he said, “What you said,” to which Osborn replied that the
plaintiff needed to say “it’s my gun” loudly so that both Keen and Kezeske
could hear. The plaintiff asked Keen and Kezeske if they were going to let
Osborn treat him like that, but they just turned their head. The plaintiff said
that Osborn then closed the squad car door and told Kezeske to take the
plaintiff to the station.
According to Osborn’s incident report, Osborn told the plaintiff that he
had found a gun that his sister admitted to placing in the car. He advised the

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plaintiff that because the driver is a convicted felon he was going to have to
arrest the driver. Osborn’s incident report states that the plaintiff began to
tear-up and shake his head.

He said, “I can’t allow someone else to be

arrested for something I did, I’m a good Samaritan. You know whose gun it
is, it’s my gun.” (ECF No. 56-3 at 3.) Osborn’s incident report indicates that
the plaintiff refused to make any further statements.
II.

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th
Cir. 2011). “Material facts” are those that “might affect the outcome of the
suit.” See Anderson, 477 U.S. at 248. A dispute over a “material fact” is
“genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or (B)

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showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4).
III.

ANALYSIS

A. Stopping the Car without Probable Cause
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Cont. Amend. IV. As the Seventh Circuit has noted:
Over time, the Supreme Court has developed a series of
corollary principles to give effect to this basic constitutional
mandate in the particular context of automobile searches.
The temporary detention of an individual during the stop of
an automobile by the police, even if only for a short period of
time and for a limited purpose, constitutes the seizure of a
person within the meaning of this constitutional provision.
Consequently, an automobile stop is subject to the
constitutional imperative that it not be unreasonable under
the circumstances. As a general matter, the decision to stop
an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred.
Whether probable cause exists depends upon the reasonable
conclusions to be drawn from the facts known to the officer
at the time he acts.

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Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 456-57 (7th Cir. 2010)
(internal quotations and citations omitted).
The plaintiff argues that Osborn did not have probable cause to stop
the car in which he was a passenger because the car was traveling within the
speed limit, was properly licensed and registered, and the driver had not
committed any traffic violations.
flows from that unlawful stop.

He argues that the arrest that occurred
The defendants’ agree that Osborn lacked

probable cause to stop the car, but they argue that the lack of probable cause
is immaterial as to the plaintiff because Osborn had probable cause to arrest
him.
The Seventh Circuit has explained that,
In [U.S. v.] Green we said the question was whether “the
causal chain has been sufficiently attenuated to dissipate
the taint of the illegal conduct,” 111 F.3d [515,] 521 [(7th
Cir. 1997)], and in like vein in [U.S. v.] Johnson we
considered whether “a lawful arrest based on any
outstanding warrant for a passenger in the vehicle
constituted an intervening circumstance that dissipated any
taint caused by an initial traffic stop that had lacked
reasonable suspicion,” 383 F.3d [538], 544 [(7th Cir. 2004)],
and concluded that it did. But a simpler way to justify the
result in those cases (and this one), without talking about
“taints” and “dissipation” and “intervening circumstances”
(and what do those terms mean, really?), is to note simply
that the arrest was based on a valid warrant rather than on
anything turned up in the illegal search. If police stopped
cars randomly, looking for persons against whom there were
outstanding warrants, the drivers and passengers not
named in warrants would have good Fourth Amendment
claims. But a person named in a valid warrant has no right

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to be at large, and so suffers no infringement of his rights
when he is apprehended unless some other right of his is
infringed, as would be the case had the police roughed up
Atkins gratuitously in the course of trying to determine
whether he was the person named in the warrant. Graham v.
Connor, 490 U.S. 386, 396–97 (1989); Catlin v. City of Wheaton, 574
F.3d 361, 366 (7th Cir. 2009); Cortez v. McCauley, 478 F.3d 1108,
1127 (10th Cir. 2007) (en banc). But that is not the plaintiff's
complaint.
Atkins v. City of Chicago, 631 F.3d 823, 826-27 (7th Cir. 2011).
The plaintiff points out that, unlike in Atkins, there was no warrant for
his arrest; however, he does not dispute that Osborn had probable cause to
arrest him.3 The defendants argue that probable cause for a warrantless
arrest is equivalent to probable cause for the issuance of an arrest warrant,
so the analysis in Atkins applies with equal force in these circumstances.
The Court concludes that Atkins applies because Osborn had probable
cause to arrest the plaintiff based on the domestic violence complaint he had
responded to earlier that day and based on the information he had about the
plaintiff’s retrieval of a gun.

In short, there was no infringement of the

plaintiff’s rights when Osborn stopped the car without probable cause and
took the plaintiff into custody because there was independent, pre-existing

The plaintiff identifies discrepancies between Osborn’s incident report and his
testimony at a suppression hearing about whom Osborn learned his information from
(i.e., from a witness or from another officer), but he does not dispute that Osborn, along
with other officers, responded to a domestic violence complaint or that Osborn spoke to
the plaintiff’s son who advised Osborn that his dad had retrieved a gun and left on foot.
3

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probable cause for the plaintiff’s arrest. See Banks v. Fuentes, 545 Fed.Appx.
518, 520-21 (7th Cir. 2013) (“Like a warrant, the investigative alert
authorized [the plaintiff’s] arrest because other officers already had made a
determination of probable cause. Thus, there was no infringement of [the
plaintiff’s] rights when the officers stopped him and took him into custody . . .
.”) (citations omitted). The Court grants the defendants’ motion for summary
judgment as to this claim.
B. The Search of the Car
The plaintiff also contends that there was an unlawful search of the
trunk of the car, which resulted in the discovery of a gun. The plaintiff was
not the driver of the car, and, according to the defendants, the driver gave
Osborn permission to search the car, including the trunk and the bags located
therein. The plaintiff does not dispute this fact; he merely states that it is
not supported by the record. That is not so. Osborn’s incident report, which
the plaintiff entered into the record (see ECF No. 56), states, “Randolph [the
driver of the car], . . . gave me permission to search all areas of the car and or
baggage.” (ECF No. 56-3 at 3.)
In any event, “rights guaranteed by the Fourth Amendment are
personal, and may not be assessed vicariously.

Rather, they must be

championed by the one whose rights were infringed by the government’s
conduct.” U.S. v. Price, 54 F.3d 342, 345-46 (7th Cir. 1995). Here, only the

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driver of the car had a reasonable expectation of privacy in it; the same
cannot be said for the plaintiff “who was a mere passenger going along for the
ride.” Id.; see U.S. v. Walton, 763 F.3d 655, 666 (7th Cir. 2014) (holding that
a passenger lacks standing because “A mere passenger has no right to ward
off onlookers or protect his privacy in a car that he has no power over.”). As
such, the plaintiff has no standing to challenge the search of the vehicle and
summary judgment will be granted in favor of defendants on this claim.
C. Osborn’s Interrogation of the Plaintiff
The plaintiff also argues that Osborn’s questioning of him for thirty
minutes violated the Fourth Amendment. Specifically, the plaintiff states
that he was forced to sit in the back of the squad car for about thirty minutes
and told that he would not be transported to the station until he admitted
that the gun found in the trunk belonged to him. The plaintiff states that at
one point, he was left in the squad car with the door closed for five minutes,
during which time he became hot and light-headed. The plaintiff does not
state whether the squad car was running during this five minutes, but he
does indicate that another officer sat in the front seat while Osborn spoke to
him.
The plaintiff’s claim that Osborn used excessive force in the course of
the arrest is analyzed under the Fourth Amendment’s “reasonableness”
standard. Sow v. Fortville Police Department, 636 F.3d 293, 303 (7th Cir.

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2011). “The ‘reasonableness’ of the use of force is judged from the perspective
of a reasonable officer on the scene, rather than with 20/20 vision of
hindsight.” Id.
The plaintiff was not subjected to excessive force merely because he sat
in the back of a squad car with the door closed for five minutes while another
officer sat in the front seat. The plaintiff points to no case law to support this
claim, nor does he allege any other type of physical contact or use of force.
The plaintiff’s claim will be dismissed.
D. Supervisory and Municipal Liability Claims
“A failure to train theory or a failure to institute a municipal policy
theory requires a finding that the individual officers are liable on the
underlying substantive claim.” Tesch v. County of Green Lake, 157 F.3d 465,
477 (7th Cir. 1998). Because the Court has concluded that the officers did not
violate the Constitution in connection with the plaintiff’s arrest, defendants
Flynn, Keen and the City of Milwaukee cannot be held liable to the plaintiff.
Id. (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)).
E. Kurt D. Kezeske
On July 17, 2015, the U.S. Marshals filed a Process Receipt and Return
form indicating they served Kezeske with the summons and amended
complaint on June 4, 2015. (ECF No. 62.) Kezeske did not respond to the
plaintiff’s amended complaint, nor has he entered an appearance. Although

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the plaintiff filed a declaration in support of an entry of default on May 8,
2015 (which was premature in light of the Court’s order to the Marshals to
make additional efforts to serve Kezeske), the plaintiff did not file any such
declaration after Kezeske was served with the summons and amended
complaint on June 4, 2015.
The Court finds that even if the plaintiff had timely requested the
entry of a default order, the only just outcome as to Kezeske is to dismiss him
from this action. Even where an order of default has been entered (which it
has not here), entry of a default judgment is not a matter of right. 10 Moore’s
Federal Practice and Procedure—Civil §55.20. Whether a default judgment
should be entered is a matter resting in the sound discretion of the district
court. Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722
F.2d 1319, 1322 (7th Cir. 1983).

A factor this Court must consider in

exercising its discretion is whether entry of a default judgment will result in
injustice.

See McDaniel v. Nationwide, 85 B.R. 69, 71 (N.D. Ill. 1988)

(citations omitted); see Hudson v. State of N.C., 158 F.R.D. 78, 80 (E.D. N.C.
1994).
Here, the Court has fully analyzed the plaintiff’s claims and found that
they lack merit. There are no facts unique to Kezeske that would result in a
different finding as to him. In fact, the plaintiff simply lumps Kezeske in
with Osborn and the rest of the officers. It would be unjust to allow the

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plaintiff to prevail on invalid claims based only on Kezeske's procedural
missteps. Accordingly, the Court dismisses Kezeske from this action.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion for summary judgment
(ECF No. 54) is DENIED.
IT IS ALSO ORDERED THAT the defendants’ motion for summary
judgment is GRANTED.
IT IS FURTHER ORDERED THAT defendant Kurt Kezeske is
DISMISSED.
This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30 days of the entry of
judgment. See Federal Rule of Appellate Procedure 3, 4. This Court may
extend this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the 30-day deadline. See
Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for
relief from judgment under Federal Rule of Civil Procedure 60(b). Any motion
under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of
the entry of judgment. The Court cannot extend this deadline. See Federal

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Rule of Civil Procedure 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The Court cannot extend this
deadline. See Federal Rule of Civil Procedure 6(b)(2).
A party is expected to closely review all applicable rules and determine,
what, if any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 20th day of October, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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