Conrod v. Smith et al

Filing 32

ORDER signed by Judge J.P. Stadtmueller on 12/27/2016. 17 Defendant Milwaukee County's MOTION for Summary Judgment GRANTED. 25 Plaintiff's MOTION for Summary Judgment DENIED. On or before 1/10/2017, Plaintiff to provide evidence and legal argument in opposition to the Court's intent to grant summary judgment sua sponte to defendants Smith and Stolowski. Defendant Milwaukee County DISMISSED. See Order for details. (cc: all counsel, via mail to Davius Conrod at Stanley Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVIUS CONROD,
Plaintiff,

Case No. 16-CV-620-JPS

v.
ROBERT R. SMITH, AMY STOLOWSKI,
and MILWAUKEE COUNTY,
Defendants.

1.

ORDER

INTRODUCTION
On November 9, 2016, the defendant Milwaukee County (the

“County”) filed a motion for summary judgment. (Docket #17). The plaintiff
Davius Conrod (“Conrod”) responded to the motion, and also offered his
own cross motion for summary judgment, on December 12, 2016. (Docket #25
and #26). The County offered its reply on December 22, 2016. (Docket #28).
For the reasons explained below, the Court must grant the County’s motion
and deny Conrod’s, and put Conrod on notice that it is considering granting
summary judgment sua sponte as to defendants Robert R. Smith (“Smith”)
and Amy Stolowski (“Stolowski”).
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.

FACTS
3.1

Conrod’s Failure to Dispute Any Facts

Conrod has been informed of the requirements of the Federal and
Local Rules regarding summary judgment at least twice; by attachments to
the Court’s trial scheduling order, and by the defendants’ own summary
judgment motion. (Docket #16 and #17). He has chosen to ignore those rules
by failing to even attempt a dispute of any of the County’s proffered facts.
Instead, he merely offers statements in his responsive brief and a collection
of exhibits, none of which are connected to any statement of facts or response
thereto. These infirmities cannot be overlooked.
Though the Court is required to liberally construe a pro se plaintiff’s
filings, it cannot act as his lawyer; the Court cannot and will not delve
through Conrod’s submissions in this case to craft a response to the County’s
statements of fact on his behalf. Indeed:
A district court is not required to “wade through
improper denials and legal argument in search of a genuinely
disputed fact.” Bordelon v. Chicago Sch. Reform Bd. of Trustees,
233 F.3d 524, 529 (7th Cir. 2000). And a mere disagreement
with the movant’s asserted facts is inadequate if made without
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reference to specific supporting material. Edward E. Gillen Co.
v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993). In short,
“[j]udges are not like pigs, hunting for truffles buried in
briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
Smith’s summary-judgment materials were woefully deficient
in either responding adequately to the defendants’ statement
or in setting forth additional facts with appropriate citations to
the record. As such, Smith’s purportedly good intentions aside,
the district court did not abuse its discretion in deeming
admitted and only considering the defendants’ statement of
material facts.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). This Court would offer a
similar analogy: it is not an archaeologist, made to sift through Conrod’s
filings hoping to piece together clues to the evidence behind his legal
positions.
Like Smith, no matter Conrod’s intentions, his utter failure to comply
with the rules of procedure means that the Court has no choice but to deem
the County’s facts undisputed for purposes of deciding the motion. Fed. R.
Civ. P. 56(e)(2). The Court will still consider his legal brief, to the extent it
could be of any value in light of the undisputed facts.
3.2

Relevant Facts

The facts relevant to the Court’s instant determination are brief.
Conrod is a former inmate in the County’s Jail (the “Jail”).1 On December 17,
2012, Milwaukee municipal judge Philip Chavez issued four warrants for
Conrod’s arrest based on probable cause that he committed the offenses
alleged therein. (Docket #21-1). Conrod was arrested on December 19, 2012.
1

Given that they are undisputed, the Court’s factual summary is drawn
exclusively from the County’s statement of facts unless otherwise noted. (Docket
#19).

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The warrants would have been provided to Jail personnel upon Conrod’s
arrival there; they were in fact kept in his Jail file. On December 18, 2012,
Stolowski, a Milwaukee police officer, swore to and signed a CR-215 form
(the “Probable Cause Statement”) recounting the basis for Conrod’s arrest,
including references to the warrants. (Docket #21-2). The Probable Cause
Statement identified Smith as the arresting officer. Id. On December 19, 2012,
the Probable Cause Statement was signed by Milwaukee County Court
Commissioner Maria S. Dorsey (“Commissioner Dorsey”), indicating that she
found probable cause to detain Conrod and setting his bail at $25,000. Id.
Commissioner Dorsey signed the Probable Cause Statement within twelve
hours of Conrod’s booking. The form itself was also kept in Conrod’s Jail file.
4.

ANALYSIS
The crux of Conrod’s complaint is that he believes the Probable Cause

Statement was not promptly presented to a judicial officer for review or
approval. (Docket #9 at 1-2). Along with his amended complaint, Conrod
provided a copy of the Probable Cause Statement that lacked Commissioner
Dorsey’s signature. (Docket #8-1). He further alleged that he was arrested
without a warrant. (Docket #9 at 2). Given the liberal posture required at the
screening stage, the Court permitted Conrod to proceed on Fourth
Amendment claims against the County, Smith, and Stolowski, as well as a
Monell claim against the County. Id. at 3-4. Now that Conrod’s allegations
have been supplemented by a factual record—one he has failed to
dispute—the Court is properly equipped to grant judgment in favor of the
defendants.
A government official can violate an arrestee’s Fourth Amendment

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rights if they fail to obtain a prompt judicial determination of probable cause
for the arrest within forty-eight hours thereof. Cnty. of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991). The County did not violate this rule for
two reasons. First, the existence of the municipal arrest warrants precludes
application of McLaughlin. The Lopez court explained the Fourth
Amendment’s requirements:
The Fourth Amendment protects against unreasonable
seizures; an arrest is a seizure, and the Fourth Amendment
affords persons who are arrested the further, distinct right to
a judicial determination of probable cause “as a prerequisite to
extended restraint of liberty following arrest.” [Gerstein v.
Pugh, 420 U.S. 103, 114 (1975)]. The judicial determination of
probable cause may be made before the arrest (in the form of
an arrest warrant) or promptly after the arrest, at a probable
cause hearing (sometimes called a Gerstein hearing).
Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir. 2006). The municipal
warrants supplied the probable cause for detention that the Fourth
Amendment demands. Thus, any alleged delay between his booking in the
Jail and his arraignment is irrelevant; the probable cause foundation had
already been laid. Second, even assuming the warrants did not exist, the
Probable Cause Statement was duly completed by Smith and Stolowski,
reviewed by Commissioner Dorsey, and signed by her within twelve hours
of Conrod’s booking.
Conrod’s arguments to the contrary have no merit. He claims that it
is “strange” that the County has a signed Probable Cause Statement and that
the same was not given to him by his criminal defense attorney. (Docket #26
at 5-6). Assuming Conrod means to question the authenticity of the County’s
document, Conrod does not offer any evidence in that vein (as well as failing
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to dispute its authenticity via a response to the County’s statement of facts).
Conrod next cites other allegedly unsigned probable cause statements for
other arrestees as evidence of the County’s unlawful policy. Id. at 7-9. These
other cases, even if the Court takes Conrod’s statements as true, have no
bearing on whether the County violated his Fourth Amendment rights.
Finally, Conrod also argues that, even if the Probable Cause Statement is
authentic, it violates his Sixth Amendment right to counsel. Id. at 9. The
Court need not consider this argument because it is outside the scope of his
complaint. Abuelyman v. Ill. State Univ., 667 F.3d 800, 814 (7th Cir. 2011) (“ It
is well settled that a plaintiff may not advance a new argument in response
to a summary judgment motion.”).
Because Conrod’s underlying constitutional claim fails, so too must his
Monell claim against the County. See Petty v. City of Chicago, 754 F.3d 416, 42425 (7th Cir. 2014). Further, the Court places Conrod on notice that it is
considering granting summary judgment sua sponte in favor of Smith and
Stolowski. Conrod’s Fourth Amendment claim against them is coterminous
with that against the County; he alleges they were complicit in failing to
complete the Probable Cause Statement. The Seventh Circuit holds that sua
sponte summary judgment is proper when “there are no issues of material
fact in dispute,” and “as long as the losing party is given notice and an
opportunity to come forward with its evidence.” Osler Institute, Inc. v. Forde,
333 F.3d 832, 836 (7th Cir. 2003). The Court will afford him until January 10,
2017 to provide any evidence and legal argument he can muster in
opposition. If he does not do so, the Court will enter judgment summarily in
Smith and Stolowski’s favor.

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5.

CONCLUSION
In light of the foregoing, the Court is constrained to grant the

County’s motion for summary judgment and deny Conrod’s motion for the
same. It further warns Conrod of its intent to grant Smith and Stolowski
judgment as a matter of law sua sponte on the indisputable facts presented,
unless he provides adequate evidence and argument in opposition.
Accordingly,
IT IS ORDERED that the defendant Milwaukee County’s motion for
summary judgment (Docket #17) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the plaintiff Davius Conrod’s
motion for summary judgment (Docket #25) be and the same is hereby
DENIED;
IT IS FURTHER ORDERED that the plaintiff must provide evidence
and legal argument in opposition to the Court’s grant of summary judgment
to the defendants Smith and Stolowski sua sponte on or before January 10,
2017; and
IT IS FURTHER ORDERED that the defendant Milwaukee County
be and the same is hereby DISMISSED from this action.
Dated at Milwaukee, Wisconsin, this 27th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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