Newman v. Vagnini et al

Filing 35

ORDER signed by Judge J P Stadtmueller on 10/18/16: granting 19 Defendants' MOTION for Partial Summary Judgment; dismissing Plaintiff's Monell claim against Defendant City of Milwaukee; and, dismissing Defendant City of Milwaukee from this action with prejudice. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE JAMES NEWMAN,
Plaintiff,
v.

Case No. 15-CV-1363-JPS

MICHAEL VAGNINI, JEFFREY CLINE,
PAUL MARTINEZ, and
CITY OF MILWAUKEE,

ORDER

Defendants.

1.

INTRODUCTION
On August 12, 2016, the defendants Michael Vagnini (“Vagnini”),

Jeffrey Cline (“Cline”), Paul Martinez (“Martinez”) (collectively the “Officer
Defendants”), and the City of Milwaukee (the “City”) filed a motion for
partial summary judgment as to the plaintiff Willie James Newman’s
(“Newman”) Monell claims. (Docket #19). The defendants submitted a
combined statement of facts and brief in support, as well as supporting
affidavits. (Combined Statement of Facts and Brief in Support, Docket #20;
Affidavits, Docket #21, #22, #23, #24, #25, and #26). On September 12, 2016,
Newman offered his brief in opposition to the motion, a response to the
statement of facts, his own statement of facts, and an affidavit of counsel
attaching various exhibits. (Brief in Opposition, Docket #27; Response to the
defendants’ Statement of Facts (“RSOF”), Docket #28; Newman’s Statement
of Facts, Docket #29; Affidavit, Docket #30). On September 29, 2016, the
defendants submitted a reply in support of their motion, a response to
Newman’s statement of facts, and additional affidavits. (Reply in Support,
Docket #31; Response to Newman’s Statement of Facts (“RPSOF”), Docket

#34; Affidavits, Docket #32 and #33). The motion is fully briefed and, for the
reasons explained below, it will be granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides the mechanism for

seeking summary judgment. Rule 56 states that 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 Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A “genuine” dispute of material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes
all facts and reasonable inferences in a light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016). In assessing the parties’ proposed facts, the Court must not weigh the
evidence or determine witness credibility; the Seventh Circuit instructs that
“we leave those tasks to factfinders.” Berry v. Chicago Transit Authority, 618
F.3d 688, 691 (7th Cir. 2010).
3.

RELEVANT FACTS
The facts are largely undisputed, and those that are disputed are

generally not material to the disposition of this motion. The Court will
provide a discussion of relevant topics, noting the parties’ disputes where
appropriate. In accordance with the standard of review, the facts are viewed
in a light most favorable to Newman.
3.1

The Search

In the early morning of April 30, 2010, Newman was sitting in his car
in a restaurant parking lot when multiple police squad cars entered the lot.

Page 2 of 16

RPSOF ¶¶ 2-5.1 Vagnini and other officers approached Newman’s car and
ordered him out of it at gunpoint. RPSOF ¶ 6. Newman testified that after he
got out, “I was searched by an officer, then Officer Vagnini said the search
wasn’t good enough. Therefore, he walked up to me, unbuckled my belt, my
pants, pulled my pants down to my knees with my underwear, and he went
in my private area, my genitals, with his bare hands, and he searched me[.]”
RPSOF ¶ 7.2
3.2

District Five Policing

The Milwaukee Police Department’s (“MPD”) District Five covers an
area of the city which is ninety percent African-American. RPSOF ¶ 8.
Beginning in 2010, an anti-gang unit comprised entirely of white police
officers, including the Officer Defendants, was created to do “proactive
policing” in District Five. RPSOF ¶¶ 9-10, 12-13. This unit was led by
Sergeant Jason Mucha (“Mucha”).3 RPSOF ¶ 11. On a typical day, “proactive

1

Citations to responsive fact documents is for brevity only; the cite may refer
to material in the asserted fact and/or the response.
2

The defendants contest Newman’s account of the search, claiming that his
pants were not pulled down nor any guns drawn, but this dispute is not relevant
to the disposition of their motion. RPSOF ¶¶ 3, 6, 7. Thus, this is not a dispute of
material facts precluding summary judgment, but instead a set of non-material facts
which may be construed in Newman’s favor for the purposes of this order.
3

In 2005 and 2006, various Wisconsin courts ruled that certain criminal
defendants could introduce evidence that Mucha had used excessive force and/or
planted drugs on other people. RPSOF ¶¶ 26-27.

Page 3 of 16

policing” involved use of the “train” strategy. RPSOF ¶¶ 14-16.4 In the train
strategy, the lead car, usually Vagnini, would be responsible for selecting
vehicles to stop or persons to be interviewed. RPSOF ¶ 18.5 The train strategy
led to more traffic stops and individual interviews, which in turn increased
the likelihood of searches being conducted. RPSOF ¶ 23. The train strategy
was discontinued in District Five on March 20, 2012, because the anti-gang
unit officers were suspended by the MPD. RPSOF ¶ 17.6 By March 21, 2012,

4

The defendants dispute who coined the term “the train.” RPSOF ¶ 15. This
semantic disagreement is of no moment. They further dispute that the strategy,
whether called a “train” or something else, was a formal strategy used by the MPD.
RPSOF ¶¶ 16, 18. This is belied by Gregory Kuspa’s (“Kuspa”) testimony on how
the anti-gang unit operated:
Q:
A:
Q:
A:

Q:
A:
Q:
A:

So you would leave the district and go out on patrol
[on a typical day]?
Yes. Not every day, but –
Typically?
A typical day – if we had something going on maybe
from the night before, we’d stay in and work on it.
Otherwise, we would get together and go on the
street.
And you would patrol in a line of cars?
For the most part, yes.
...
Whose idea was it to patrol the neighborhood in a
train of cars like that?
It’s actually a strategy - I don’t know if it was made
up by this person or if he may have got it from
somewhere[.]

(Docket #30-3 at 31:6-32:110) (emphasis added); see id. at 29:22-35:25.
5

The defendants’ disputes are again undermined by Kuspa’s testimony. See
supra note 4.
6

See supra notes 4 and 5.

Page 4 of 16

the media began widespread reporting of the strip search scandal. RSOF ¶¶
30-31.
3.3

Chief Flynn’s Involvement

Milwaukee Police Chief Edward A. Flynn (“Flynn”) took that position
in 2008. Once the anti-gang unit began operating, Flynn attended meetings
with Vagnini and other officers. Those officers would report on the meetings
to the other members of the anti-gang unit. RPSOF ¶ 19. This included Jacob
Knight (“Knight”), with whom they discussed the directives issued in those
meetings. RPSOF ¶ 20. They told Knight that Flynn and the other command
staff “wanted dots on a map,” meaning traffic stops and individual
interviews, “so they could say that something was being done by the police.”
RPSOF ¶ 21. This coincided with the strategy employed after Flynn became
chief in 2008, which was that after a serious crime occurred in an area, the
police would “saturate” the area, conducting additional traffic stops and
interviews. RPSOF ¶ 22. The defendants claim that this strategy may not
have preceded Flynn taking office. RPSOF ¶ 22.
Flynn did not, however, know that the train strategy was being
employed by the anti-gang unit until 2012. RPSOF ¶ 24. If he had, Flynn
would have stopped its use because it is not an effective use of limited police
resources. RPSOF ¶ 25. Newman concedes that Flynn was not actually aware
of the strip search issue prior to March 2012, but maintains that he should
have been aware. RSOF ¶¶ 32-33.
In March 2012, after the strip search scandal broke, Flynn told the
media that the issue of strip and body cavity searches was a “serious training

Page 5 of 16

issue.” RPSOF ¶ 29.7 He further commented that the strip search scandal was
“an egregious violation of public trust,” that the officers involved “went
rogue,” and that they “broke the law” and violated MPD policy. RPSOF ¶ 46.
Nevertheless, Flynn had approved multiple promotions for the supervisors
of District Five. RPSOF ¶ 46.
3.4

MPD Investigation

In early 2012, Captain David Salazar (“Salazar”) was assigned to the
MPD Internal Affairs division, where he investigated citizen complaints
against police officers. RSOF ¶¶ 7-8. On January 31, 2012, Salazar received
two complaints directed at Vagnini for unlawful search practices during a
traffic stop. RSOF ¶¶ 9-11. Salazar reviewed Vagnini’s records which
revealed similar allegations from March 5, 2010, and sometime in 2011. RSOF
¶¶ 12-13, 15. The March 5, 2010 complaint was investigated, found
unsubstantiated, and closed. RSOF ¶ 14. The 2011 complaint was
investigated and turned over to the Milwaukee County District Attorney for
prosecutorial review, but no charges resulted, and that complaint was not
otherwise pursued. RSOF ¶¶ 16-19.
Upon review of these complaints, Salazar determined that they might
show a pattern of unlawful behavior by Vagnini. RSOF ¶ 20. He ordered that

7

The defendants assert that Flynn disagrees with Newman’s
characterization of this statement. RPSOF ¶ 29. From the partial transcript provided
to the Court, it appears that Flynn actually made the statement in May 2012.
(Docket #30-5 at 170:4-19). However, as of the time of his deposition, Flynn was
unable to agree that “at least at that point in time in May, you considered it to be,
at the very least, a very serious training issue[.]” Id. at 170:20-22. Flynn responded
that “[t]his is a quote without any context. I don’t know what the question is that
I was being asked. I don’t recall if I was being asked a theoretical [end of
document][.]” Id. at 170:23-25. Given this inconsistency and limited record, the
testimony can support the fact that the statement was made, but cannot support the
implication sought by Newman that Flynn still agrees with the statement.

Page 6 of 16

the old complaints be opened and reinvestigated, as well as an investigation
of the new complaints. RSOF ¶¶ 21-22. Salazar kept his superiors informed
of the status of his investigation and also contacted the Milwaukee County
District Attorney for advice on the possibility of criminal charges against
Vagnini. RSOF ¶¶ 25-26.
Flynn was first fully briefed regarding the Vagnini investigation on
March 19 or 20, 2012. RSOF ¶ 27. By that date, Newman had not filed any
complaints against the Officer Defendants.8 RSOF ¶¶ 23-24. Immediately
after the briefing, Flynn suspended Vagnini and the rest of the anti-gang unit.
RSOF ¶ 28. In 2013, Flynn instituted MPD-wide retraining on policies related
to searches. RPSOF ¶ 41.
3.5

Officers’ Criminal Prosecutions and Civil Lawsuits

In late 2012, Vagnini, Knight, Jeffery Dollhopf, and Brian Kozelek
were criminally prosecuted for their roles in illegally searching persons in
District Five. RPSOF ¶ 34.9 Vagnini was charged with various sexual assault
and illegal search felonies and sentenced to over two years in prison. RPSOF
¶¶ 35, 37, 39. At his sentencing, Vagnini apologized for his actions and said
he had “misinterpreted the law.” RPSOF ¶ 38. Knight was charged with
lesser felonies and received a much lighter sentence. RPSOF ¶¶ 36, 40.
Numerous civil lawsuits have been filed and settled in this District since 2013
involving Vagnini and the other anti-gang unit officers with regard to their
allegedly unconstitutional strip and body cavity searches. RPSOF ¶ 47.
8

In fact, Cline and Martinez had no history of complaints regarding
unlawful searches. RSOF ¶ 24.
9

Newman claims that they were prosecuted for searching AfricanAmericans, but the defendants note that the criminal charges, including that for
Vagnini provided as an exhibit, do not specify the race of the victims. RPSOF ¶ 34;
(Docket #30-10).

Page 7 of 16

3.6

Officers’ Training and Supervision

The MPD trains its officers using the Wisconsin Law Enforcement
Officers Criminal Law Handbook (“Handbook”) which includes information
on conducting searches. RSOF ¶ 34. The Handbook states that a frisk or pat
down search may be used if an officer reasonably suspects that the person is
dangerous. RSOF ¶ 35. The Officer Defendants were trained on this point
and understood that the primary purpose of such searches was to find
concealed weapons. RSOF ¶¶ 38-39.
As to strip searches, the Handbook provides that they may be
conducted if the requirements of Wisconsin Statute Section 968.255 are
met. RSOF ¶ 36.10 These are, inter alia, that the person searched must be
arrested and not exposed to anyone not involved in the search. Wis. Stat.
§ 968.255(b)(2)(ag) and (b). Further guidance is found in the MPD Standard
Operating Procedure (“SOP”) on strip searches, in effect since April 2010,
which states that strip searches must have approval from a captain (or higher
authority) and can only occur with probable cause that a person “has
secreted a weapon or evidence.” RSOF ¶ 37. The SOP defines a strip search
as one “in which a detained person’s genitals…[are] uncovered and either
exposed to view or touched by a person conducting the search.” RSOF ¶ 37.
The Officer Defendants have submitted affidavit testimony that they
understood the definition of a strip search and the above-described rules on
conducting them. RSOF ¶¶ 40, 42. They further testified that they knew it
was unlawful to pull down a subject’s pants in public to conduct a search or
have skin-to-skin contact with a subject’s genitalia while retrieving a secreted

10

This fact includes a typographical error, mistakenly referencing a nonexistent Section 968.225. The Handbook correctly cites Section 968.255, which
governs strip searches.

Page 8 of 16

item. RSOF ¶¶ 43-44. Finally, they testified that they knew violating
department rules and/or state and federal law was not tolerated by Flynn,
and that such violations could result in discipline and criminal prosecution.
RSOF ¶ 45.
Newman denies the truth of the Officer Defendants’ affidavit
testimony on strip searches, offering conflicting evidence regarding their
training. RSOF ¶¶ 40, 42, 44. Newman asserts that Mucha testified that he
received no training on when or under what circumstances he could conduct
strip or body cavity searches. RPSOF ¶ 30. The defendants counter that his
testimony falls short on this point; Mucha does not state that he never
received such training, and otherwise testified that he was aware of the strip
search SOP. RPSOF ¶ 30. Edith Hudson (“Hudson”), the captain of District
Five while the anti-gang unit was in place, could not recall in her 2014
deposition whether any officers in that district received training on
conducting pat down searches. RPSOF ¶ 33. She further testified that pat
down searches were not “something that again was brought to my attention
as an issue.” (Docket #30-8 at 69:21-23).
Knight believed that if an officer searched a person and felt something
he believed to be drugs, the officer could put his hands down the person’s
pants to find and remove the object. RPSOF ¶ 31. Knight stated that he used
interior layers of clothing, such as underwear, as a barrier between him and
the person’s genitalia, and that his efforts would be directed at manipulating
the drugs, not touching the person. RPSOF ¶ 31. Knight was not taught at the
police academy or while working with the MPD about when strip and body
cavity searches were appropriate or how to perform them. RPSOF ¶¶ 32,

Page 9 of 16

45.11 Knight testified that his superiors did not teach him the proper method
for pat downs and searches, and that they were instead focused on getting
“dots” and did not ask questions on how the anti-gang unit obtained those
“dots.” RPSOF ¶ 44.
Vagnini testified that his training was also deficient. He stated that the
technique he used to search Newman was not taught by the MPD. RPSOF
¶ 48. Vagnini claimed that he was trained on how to search people and
conduct pat downs, but received no training on how to recover drugs hidden
in various places on a person. RPSOF ¶ 48. Instead, he spoke with two
Wisconsin district attorneys in 2007, who informed Vagnini that in a lawful
search, he could “manipulate” a person’s butt and genitals through their
clothing “as long as you don’t expose anything private” or have skin-to-skin
contact with the person. RPSOF ¶ 48. Vagnini did not demonstrate this
technique to his MPD supervisors, but Mucha observed Vagnini using it and
did not object. RPSOF ¶ 48.
With regard to officer supervision, Hudson did not know how Mucha
ran the anti-gang unit, but she was not notified of problems with pat down
searches and would have relied on her lieutenants to bring such an issue to
her attention. RPSOF ¶ 42. Hudson was unfamiliar with the “train” strategy
they were employing and only went out with them one time while she was
captain of District Five. RPSOF ¶ 43.
4.

ANALYSIS

11

The defendants dispute whether Knight was taught that he could perform
a cavity search, but that does not undermine Newman’s asserted fact.

Page 10 of 16

Three claims remain in Newman’s lawsuit.12 First, Newman alleges
that Vagnini unlawfully searched him. (Docket #1 at ¶¶ 34-35). Second,
Newman asserts that Cline and Martinez failed to intervene to stop Vagnini’s
unconstitutional search. Id. at ¶¶ 36-37. Finally, Newman contends that the
City bears liability for implementing an unconstitutional policy, namely
failing to appropriately train or supervise the Officer Defendants. Id. at
¶¶ 38-42. The defendants contest the first two claims but recognize that
disputes of material fact exist for each. (Docket #20 at 2-3). Thus, the instant
motion is directed solely at the City’s liability. (Docket #19).
Local government entities, such as municipalities and counties, cannot
be held vicariously liable for constitutional violations committed by their
employees. Monell v. Dept. of Social Services of City of New York, 436 U.S. 658,
690 (1978). Such entities can, nevertheless, be liable under Section 1983 if “the
unconstitutional act complained of is caused by: (1) an official policy adopted
and promulgated by its officers; (2) a governmental practice or custom that,
although not officially authorized, is widespread and well settled; or (3) an
official with final policy-making authority.” Thomas v. Cook County Sheriff’s
Dept., 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell, 436 U.S. at 690).
The City will bear liability for its policies if Newman can show that it
was deliberately indifferent to the known or obvious consequences of those
policies, i.e., that they would cause unconstitutional harm. Thomas, 604 F.3d
at 303. Such policies must also be the “moving force” behind the
constitutional violation. Estate of Sims v. County of Bureau, 506 F.3d 509, 514
(7th Cir. 2007). Liability can arise from both implementing an

12

A number of claims and defendants were dismissed on July 19, 2016,
pursuant to the parties’ stipulation. (Docket #17).

Page 11 of 16

unconstitutional policy and failing to establish a policy “in situations where
rules or regulations are required to remedy a potentially dangerous
practice[.]” Thomas, 604 F.3d at 303. The Seventh Circuit has not established
“any bright-line rules defining a ‘widespread custom or practice,’” other than
that “the plaintiff must demonstrate that there is a policy at issue rather than
a random event.” Id. Once that threshold is reached, “the jury must make a
factual determination as to whether the evidence demonstrates that the
[municipality] had a widespread practice that [caused] the alleged
constitutional harm.” Id.
Newman asserts a Monell claim on two grounds: one for failure to
train and another failure to supervise. They are assessed under the same
standard. For these Monell derivatives, “the inadequacy of police training [or
supervision] may serve as the basis for § 1983 liability only where the failure
to train amounts to deliberate indifference to the rights of persons with
whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388
(1989). The Dunn court explained:
Deliberate indifference may be shown in one of two
ways. First, a municipality shows deliberate indifference when
it fails to train its employees to handle a recurring situation
that presents an obvious potential for a constitutional violation
and this failure to train results in a constitutional violation.
Second, a municipality shows deliberate indifference if it fails
to provide further training after learning of a pattern of
constitutional violations by the police.
Dunn v. City of Elgin, Illinois, 347 F.3d 641, 646 (7th Cir. 2003) (citations
omitted). In other words, “[i]t may happen that…the need for enhanced
training is so obvious, and the inadequacy of training is so likely to result in
the violation of constitutional rights, that a jury could reasonably attribute to
the policymakers a deliberate indifference to those training needs.” Tapia v.
Page 12 of 16

City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992) (quoting Erwin v. County
of Manitowoc, 872 F.2d 1292, 1298 (7th Cir. 1989)). Crucially, “[Newman] must
show that the failure to train [or supervise] reflects a conscious choice among
alternatives that evinces a deliberate indifference[.]” Rice ex rel. Rice v.
Correctional Medical Services, 675 F.3d 650, 675 (7th Cir. 2012).
Preliminarily, the Court makes three observations which constrain
its ruling. First, as noted above, it must take Newman’s description of the
search as true. Although the Officer Defendants dispute his account, their
dispute only prohibits summary judgment on the unlawful search and
failure to intervene claims (which they do not seek here anyway). Thus, in
evaluating Newman’s Monell claim, the Court must begin by believing his
story, then move on to assess his Monell evidence. Second, the Court notes
the limited scope of Newman’s Monell claim. He does not assert that the City
itself had a policy of promoting the use of unlawful strip searches on AfricanAmerican males. Instead, the “policy” at issue is the City’s failure to properly
train or supervise the anti-gang unit which conducted those unlawful
searches. Finally, the parties appear to agree that Flynn is the relevant
policymaker and is, therefore, the “the City” for the purposes of the Monell
claim; for instance, if Flynn knew that the anti-gang unit was being
inadequately trained or supervised, the City would be liable. See (Docket #20
at 24-26; Docket #27 at 14-17; Docket #31 at 4).
With those points in mind, the Court finds that Newman has failed to
raise an issue of material fact to prevent summary judgment against him. The
parties primarily dispute whether the Officer Defendants actually received
the training that the City provides on the strip search issue, such as the
Handbook policies and SOP. They further dispute whether their on-the-job
experience overrode or failed to supplement that training. Newman
Page 13 of 16

specifically asserts that Flynn’s proactive policing policy “was done without
training [the Officer Defendants] in how to properly perform strip searches,
and without providing supervision to [sic] insure that the recurring pat
downs and searches were performed in a constitutionally permissible
manner.” (Docket #27 at 17).
The Court is not convinced that Newman has raised more than a
scintilla of evidence on the deficiency of the Officer Defendants’ training or
supervision.13 See Roger Whitmore’s Auto. Services, Inc. v. Lake County, Illinois,
424 F.3d 659, 669 (7th Cir. 2005). However, Newman’s claim fails for a
different reason. As noted above, Newman’s claim requires that the City
display deliberate indifference in failing to train or supervise. This in turn
mandates that Newman prove that the City—here Flynn—made the
following conscious choices: 1) to implement the relevant training and
supervision, knowing of the great risk of constitutional violations; 2) enact
the proactive policing policy, again with the knowledge that this would
exacerbate the constitutional risk; and 3) refuse to change the policy or
update the training or supervision after learning of their inadequacy. The
undisputed evidence presented here shows that the opposite is true.
As to the first and second choices, Newman has not shown that Flynn
knew that the manner of training the Officer Defendants on handling strip
searches “present[ed] an obvious potential for a constitutional violation[.]”

13

Further, it seems highly unlikely that Newman could show that a failure
to train or supervise was the “moving force” behind his constitutional injury, given
the Officer Defendants’ affidavit testimony that they knew of the Handbook and
SOP rules and knew that violating them was punishable. It appears that they
simply ignored those rules, and thus the “moving force” was Vagnini, not the City.
See Wilson v. Cook County, 742 F.3d 775, 780 (7th Cir. 2014). Again, though,
Newman’s claim fails for other reasons.

Page 14 of 16

Dunn, 347 F.3d at 646 (emphasis added). The training, including the
Handbook and SOP policies and that provided by district attorneys, is not
facially deficient, although Newman attempts to assert its failings by splitting
hairs. Specifically, he claims that the proactive policing policy “created a
recurring situation that presented an obvious potential for constitutional
violations[, because the] subordinate police officers did not receive training
in how to recover suspected narcotics detected as part of the search[.]”
(Docket #27 at 16). However, the policies broadly prohibit strip searches of
the variety alleged here; they more than adequately instruct an officer that
he may not to strip search a person in public or have skin-to-skin contact in
an effort “to recover suspected narcotics detected as part of the search[.]” Id.
As to the third choice, there is no evidence that Flynn knew of any strip
search issues until 2012, and once Salazar completed his investigation and
briefed him, Flynn suspended the anti-gang unit and instituted MPD-wide
retraining on searches. On the state of the record, the City cannot bear Monell
liability for a strip search problem that was not obvious and that it did not
know about until well after Newman’s complained-of search.
Newman’s other arguments fail. He asserts that after “Vagnini’s
unconstitutional conduct at District 5 became known to Chief Flynn, he, by
inference, ratified this conduct by promoting Vagnini’s then supervising
officers.” (Docket #27 at 15-16). This is, however, not buttressed by any
evidence on the circumstances of the promotions or why they occurred.
Given the dearth of support, the Court cannot conclude that such an
inference would be reasonable. Newman also contends that, although Flynn
did not actually know about the Officer Defendants’ misconduct prior to
2012, he should have known. RSOF ¶¶ 32-33. Again, the deliberate

Page 15 of 16

indifference standard negates this argument. It was impossible for Flynn to
make a conscious choice regarding an issue he was not actually aware of.
5.

CONCLUSION
Newman has not shown that the strip search issue was obvious at the

outset of Flynn’s proactive policing program. Further, Newman has not
disputed that Flynn was unaware of the strip search issue until well after he
was allegedly subjected to an improper strip search. Thus, he cannot
maintain a Monell claim against the City for failure to train or supervise the
Officer Defendants prior to their alleged constitutional violation. While this
result may differ from that in previous strip search cases involving Vagnini,
the Court must decide the defendants’ motion on the undisputed evidence
before it and is not at liberty to seek relevant evidence elsewhere; the Court
cannot do Newman’s work for him.
Accordingly,
IT IS ORDERED that the defendants’ motion for partial summary
judgment (Docket #19) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the plaintiff’s Monell claim against
the defendant City of Milwaukee (Docket #1 at ¶¶ 38-42) be and the same is
hereby DISMISSED; and
IT IS FURTHER ORDERED that the defendant City of Milwaukee be
and the same is hereby DISMISSED from this action with prejudice.
Dated at Milwaukee, Wisconsin, this 18th day of October, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 16 of 16