O'Boyle v. Carrasco et al

Filing 106

ORDER signed by Judge Brett H Ludwig on 4/22/22 granting 87 Motion for Summary Judgment. (cc: all counsel and mailed to pro se party)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RYAN P. O’BOYLE,
Plaintiff,
v.

Case No. 16-cv-0959-bhl

GILBERT CARRASCO, et al.,
Defendants.
DECISION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiff Ryan P. O’Boyle is representing himself in this 42 U.S.C. §1983 case. He is
proceeding on Fourth Amendment claims arising from his July 20, 2016 arrest and initial
detention. On December 30, 2021, Defendants Michael Antoniak, Gilbert Carrasco, Kristopher
Maduscha, and Mary Schmitz filed a motion for summary judgment, which is fully briefed and
ready for the Court’s decision. For the reasons explained below, the Court will grant Defendants’
motion and dismiss this case.
BACKGROUND
On July 8, 2011, Ricardo Moran was stabbed twice while attending a concert at
Milwaukee’s Summerfest Festival. The City of Milwaukee Police Department investigated the
stabbing, which led to the identification of O’Boyle as the main suspect. On July 10, 2011, shortly
after O’Boyle’s last known address was identified, a Temporary Felony Want (TFW) was issued
for O’Boyle. A TFW is an interdepartmental memo stating that law enforcement has determined
there is probable cause to arrest a felony suspect for a temporary period of time. Dkt. Nos. 94, 99
at ¶¶16-20.

Defendant Detective Carrasco, who was on duty when the TFW was issued, decided to
follow up and called for backup to assist him in going to O’Boyle’s last known address. Defendant
Police Officers Antoniak and Maduscha responded to Carrasco’s call. At about 1:10 a.m. on July
11, 2011, Carrasco, Antoniak, Maduscha, and other officers who are not named in this action,
approached O’Boyle’s residence. Noreen Esselman answered the door. At the time, O’Boyle was
in his bedroom upstairs. According to Defendants, Esselman identified herself as the homeowner
and confirmed that her daughter was O’Boyle’s girlfriend and that O’Boyle was there. Defendants
assert that Esselman consented to the officers entering her home for the purpose of arresting
O’Boyle. Dkt. Nos. 94, 99 at ¶¶21-26; Dkt. No. 90 at ¶6; Dkt. No. 91 at ¶11; Dkt. No. 92 at ¶11.
O’Boyle asserts that he heard a knock at the door of the living room entrance to the stairs
leading to his bedroom. He states that Esselman was standing at the bottom of the stairs with
Maduscha. Maduscha stated, “Are you Ryan O’Boyle?” After O’Boyle responded in the
affirmative, Maduscha stated that they wanted to ask him some questions. O’Boyle stated, “Well,
I can’t really answer any questions without my attorney present, so if you’d leave a card, I’ll come
down to the station. . . .” After Maduscha ordered O’Boyle to come downstairs, O’Boyle went to
his room to put pants on and then went downstairs where officers arrested him. Dkt. No. 100 at
¶¶7-19.
Following O’Boyle’s arrest, at about 1:50 a.m., Antoniak and Maduscha transported
O’Boyle to the Milwaukee Police Administration Building Central Booking Department. A couple
of hours later, Carrasco completed two forms:

Form PA-45, entitled “Milwaukee Police

Department Arrest-Detention Report,” and Form CR-215, entitled “Probable Cause Statement and
Judicial Determination,” which was required because O’Boyle had been arrested without a
warrant. The next afternoon, about thirty-eight hours after O’Boyle was arrested, Milwaukee

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Circuit Judge Barry Phillips signed the CR-215 form, concluding that there was probable cause to
believe that O’Boyle had committed the felony charge for which he had been arrested. Dkt. Nos.
94, 99 at ¶¶30-32; Dkt. No. 88-4.
LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). “Material facts” are those under the applicable substantive law that “might
affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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. All reasonable inferences are construed in favor of
the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit evidentiary materials that set forth
specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932,
937 (7th Cir. 2010) (citations omitted). “The nonmoving party must do more than simply show
that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is properly
entered against a party “who fails to make a showing sufficient to establish the existence of an
element essential to the party’s case, and on which that party will bear the burden of proof at trial.”
Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotations omitted).
ANALYSIS
O’Boyle asserts that Antoniak, Carrasco, and Maduscha violated his Fourth Amendment
rights when they entered his residence to arrest him without a search warrant and without exigent
circumstances. 1 He also asserts that Carrasco and Schmitz violated his Fourth Amendment rights
O’Boyle was initially allowed to proceed on additional claims, see Dkt. No. 19, but those claims were dismissed on
July 30, 2021, see Dkt. No. 74.
1

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when they detained him for more than forty-eight hours without a judicial determination that there
was probable cause for his arrest. Defendants dispute O’Boyle’s claims. 2 The Court will address
each claim in turn.
I.

Antoniak, Carrasco, and Maduscha Are Entitled to Summary Judgment on
O’Boyle’s Claim that They Entered His Residence in Violation of the Fourth
Amendment.
“The Fourth Amendment generally prohibits the warrantless entry of a person’s home,

whether to make an arrest or to search for specific objects.” Illinois v. Rodriquez, 497 U.S. 177,
181 (1990). However, a well-established exception to that general prohibition allows officers to
enter a home if they first obtain the voluntary consent of any person possessing authority. Georgia
v. Randolph, 547 U.S. 103, 109 (2006) (citations omitted). A person with authority may include
the owner of the property or a fellow occupant who shares common authority over the property.
Id. (citations omitted). Officers may not rely on the consent of a co-occupant if a second occupant
is physically present and objects. Id. at 122-23. Importantly, officers are under no obligation to
“take affirmative steps to find a potentially objecting co-tenant before acting on the permission
they had already received.” Id. at 122. Thus, if a person “with self-interest in objecting is in fact
at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas
the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Id.
at 121.
Defendants assert that Esselman confirmed that she was the owner of the home and that
O’Boyle was present. They also assert that, based on her responses to their questions, they
believed they had her consent to enter the home to arrest O’Boyle. O’Boyle insists that Esselman

Defendants also assert that O’Boyle’s claims are time-barred by Wisconsin’s three-year statute of limitations, but,
as O’Boyle points out, at the time of the alleged violations, the statute of limitations was six years, not three years.
See D’Acquisto v. Love, No. 20-C-1034, 2020 WL 5982895, at *1 (E.D. Wis. Oct. 8, 2020) (explaining that in 2018
the Wisconsin legislature changed the statute of limitations under Wis. Stat. §893.53 from six years to three years).

2

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did not consent and that officers entered the home with a show of force, but he offers no evidence
to support his assertions or to call into question the reasonableness of Defendants’ belief that
Esselman had consented to them entering. O’Boyle concedes that he was not present when officers
first interacted with Esselman or when they entered the home; his first interaction with Defendants
was after they had already entered. Accordingly, he has no personal knowledge about what
happened when the officers entered, and his speculation about Defendants’ interactions with
Esselman is insufficient to create a triable issue. See Petts v. Rockledge Furniture LLC, 534 F.3d
715, 721 (7th Cir. 2008) (“inferences supported only by speculation or conjecture do not suffice
to create a triable issue”).
Consistent with the Supreme Court’s holding in Randolph, once the officers secured the
consent of Esselman, they were under no obligation to take steps to find potential objectors in the
residence before acting on her consent. Accordingly, Antoniak, Carrasco, and Maduscha are
entitled to summary judgment on O’Boyle’s claim that they entered his home in violation of the
Fourth Amendment.
II.

Carrasco and Schmitz Are Entitled to Summary Judgment on O’Boyle’s Claim that
They Detained Him in Violation of the Fourth Amendment.
The Supreme Court has explained that, under the Fourth Amendment, a “State has no

legitimate interest in detaining for extended periods individuals who have been arrested without
probable cause.” County of Riverside v. McLaughlin, 500 U.S. 44, 55 (1991). However, with that
in mind, “a jurisdiction that provides judicial determinations of probable cause within 48 hours of
arrest will, as a general matter, comply with the promptness requirement . . . .” Id.
Carrasco explains that after O’Boyle’s arrest he completed the CR-215 Form entitled
“Probable Cause Statement and Judicial Determination,” which contained his summary of official
reports, victim statements, and officers’ findings. Dkt. No. 90 at ¶10. Carrasco submitted the form
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for a judicial determination at 3:42 a.m. on July 11, 2011, within a few hours of O’Boyle’s arrest.
Id. Milwaukee County Circuit Judge Barry Phillips determined there was probable cause to arrest
and detain O’Boyle at 3:40 p.m. on July 12, 2011, just more than thirty-eight hours after O’Boyle’s
arrest. Id. at ¶12; Dkt. No. 88-4.
O’Boyle disputes the validity of the executed form. He explains that he has repeatedly
sought production of this document for eleven years, first in his criminal proceedings and then in
this case. He states that Defendants have only ever produced the first page of this document signed
by Carrasco. According to O’Boyle, Defendants provided the second page with Judge Phillips’
determination for the first time in support of their summary judgment motion. He states that “[i]t
seems very convenient that this document just ‘miracled’ into existence now . . . .” Dkt. No. 98 at
27. Defendants did not respond to O’Boyle’s assertions regarding their failure to produce this
document in discovery.
If O’Boyle’s assertions are true, the Court shares his frustration with Defendants’ failure
to timely produce this document. Had they done so, it is possible that the time and resources spent
by the Court and the parties could have been preserved. However, the mere fact that Defendants
failed to timely produce the document does not call into question its genuineness. Defendants’
counsel declared under penalty of perjury that the document was a “true and accurate copy.” Dkt.
No. 89 at ¶6. And, under Fed. R. Evid. 902, the document is self-authenticating because Judge
Phillips signed it under seal. O’Boyle provides no evidence that the document was forged or
otherwise fabricated, and his unsupported suspicions are insufficient to create a triable issue
regarding the document’s authenticity. See Bodor v. Town of Lowell, 248 F. App’x 752, 753-54
(7th Cir. 2007). Accordingly, because O’Boyle fails to rebut Defendants’ evidence that a judicial

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determination of probable cause was made within forty-eight hours of his arrest, Carrasco and
Schmitz are entitled to summary judgment on this claim.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment (Dkt.
No. 87) is GRANTED and this action is DISMISSED. The Clerk of Court is directed to enter
judgment accordingly.
Dated at Milwaukee, Wisconsin on April 22, 2022.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

This order and the judgment to follow are final. Plaintiff 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 Fed. R. App. P. 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 Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
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. 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 judgment. The Court cannot extend
these deadlines. See Fed. R. Civ. P. 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.

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