Conrod v. Smith et al

Filing 38

ORDER signed by Judge J.P. Stadtmueller on 1/18/2017: GRANTING summary judgment in favor of defendants Robert R. Smith and Amy Stolowski upon the Court's sua sponte motion; DENYING 37 Plaintiff's Motion for Reconsideration; and DISMISSING action with prejudice. (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 and AMY
STOLOWSKI,
Defendants.

ORDER

On December 27, 2016, the Court granted summary judgment in favor
of the former defendant Milwaukee County (the “County”). (Docket #32). In
that order, the Court gave notice to the plaintiff Davius Conrod (“Conrod”)
that based on the undisputed facts, it was considering granting summary
judgment sua sponte in favor of the remaining defendants, Robert R. Smith
(“Smith”) and Amy Stolowski (“Stolowski”). Id. at 6. It gave Conrod until
January 10, 2017 to provide any evidence or legal argument he wished to
present to avoid that result. Id. at 6-7.
Conrod filed a document on that date, but it is not solely an
opposition to sua sponte summary judgment. Instead, it appears to be a
combined motion to reconsider the entirety of the Court’s December 27 order
as well as briefly addressing the sua sponte summary judgment issue. (Docket
#37). The Court will address the sua sponte summary judgment issue first.
The Court refers the reader to the standard of review and statement
of fact portions of the December 27 order. (Docket #32 at 1-4). As noted
above, Conrod was directed to provide evidence and argument in opposition
to summary judgment in favor of Smith and Stolowski. Conrod’s instant

submission includes no statements of fact, affidavits, or any other evidence
to support a genuine dispute as to the facts stated in that order.
Conrod instead presents various arguments related to the facts of this
case.1 First, he states that he was arrested on December 19, not December 17,
and that “the municipal warrants did not play a role in that arrest because
they were not issued as warrants.” (Docket #37 at 1). These contentions are,
at best, disputes of fact which should have been presented in response to the
County’s motion for summary judgment, but in any event they are not
supported here by any evidence. Next, Conrod explains that he was confused
about the discovery process, leading to his failure to respond to the County’s
discovery requests. This is irrelevant, as the County’s statement of facts,
which Conrod failed to dispute, were not based on the absent responses.
(Docket #19). The only other statement in the document related to Smith and
Stolowski is as follows:
The plaintiff would like to request to this court to not
grant summary judgment sua sponte for defendants Smith and
Stolowski on or before January 10, 2017 and give the plaintiff
an opportunity to at least clarify the disputed fact of question
of issue [sic] which has not been addressed.
(Docket #37 at 3). This conclusory request offers no real argument, and
further, the “opportunity” Conrod seeks was already provided when the
Court set the January 10 deadline.
Nothing in Conrod’s submission provides a factual or legal basis to
avoid summary judgment in Smith and Stolowski’s favor. As discussed in

1

It is not clear whether these arguments have anything to do with Smith and
Stolowski, but in an abundance of caution, the Court addresses them here.

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the December 27 order, the undisputed facts demonstrate that not only was
probable cause for his arrest supported by the municipal warrants, the
probable cause statement itself was duly completed by Smith and Stolowski.
(Docket #32 at 4-6). They are entitled to summary judgment on Conrod’s
Fourth Amendment claim just as the County was. Smith and Stolowski will
be dismissed from this matter accordingly.
The Court turns to the reconsideration portions of Conrod’s
submission. Conrod asserts that his motion is made pursuant to both Rule
59(e) and Rule 60(b) of the Federal Rules of Civil Procedure (“FRCP”).
(Docket #37 at 1). The Harrington court explained:
Altering or amending a judgment under Rule 59(e) is
permissible when there is newly discovered evidence or there
has been a manifest error of law or fact. Vacating a judgment
under Rule 60(b) is permissible for a variety of reasons
including mistake, excusable neglect, newly discovered
evidence, and fraud. While the two rules have similarities, Rule
60(b) relief is an extraordinary remedy and is granted only in
exceptional circumstances. Rule 59(e), by contrast, requires that
the movant “clearly establish” one of the aforementioned
grounds for relief.
Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (citations and
quotations omitted). Conrod’s motion must be denied under both rules.
Conrod’s reconsideration section begins by arguing that other cases
from this District dealing with the same issue are inapposite. (Docket #37 at
4). Even if true, the December 27 order did not reference or rely on those
decisions, but rather was grounded in Seventh Circuit and U.S. Supreme
Court precedent. See (Docket #32 at 4-7). Next, Conrod reiterates his
contention that because he possesses a different probable cause statement

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form than that presented by the County, there is a dispute of fact. (Docket
#37 at 4-5). He apparently wants the County to explain how he was able to
obtain an unsigned form. Id. at 5. Again, by failing to dispute the County’s
statements of fact, Conrod gave the Court no choice but to rely on the
document the County provided. Further, as was the case in his briefing on
the County’s summary judgment, Conrod fails to provide any evidence that
the County’s document it not authentic. (Docket #32 at 5-6). Conrod also
reiterates his discovery problem, but as noted above, it had no bearing on the
December 27 order. Finally, though he is intently focused on the probable
cause statement form, he offers no genuine evidence or argument to dispute
the import of the municipal warrants, which the Court identified as an
independent ground warranting judgment in the County’s favor. Id. at 5.
Conrod has failed to “clearly establish” any manifest error of law or
fact in the December 27 order as required by FRCP 59(e). He has not
attempted to argue any of the grounds provided in FRCP 60(b). His motion
for reconsideration must, therefore, be denied. As all of the defendants have
been granted summary judgment, the Court will direct that a final judgment
be entered dismissing this matter.
Accordingly,
IT IS ORDERED that upon the Court’s sua sponte motion, summary
judgment be and the same is hereby GRANTED in favor of the defendants
Robert R. Smith and Amy Stolowski;
IT IS FURTHER ORDERED that the plaintiff Davius Conrod’s
motion for reconsideration (Docket #37) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the Clerk of the Court shall enter

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judgment in this matter in accordance with the instant Order and the Court’s
order of December 27, 2016 (Docket #32); and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
Dated at Milwaukee, Wisconsin, this 18th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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