Wright v. Brennan et al
ORDER signed by Judge J.P. Stadtmueller on 3/9/2018: GRANTING 41 Defendants' Motion for Summary Judgment and DISMISSING CASE with prejudice. (cc: all counsel, via mail to James Lee Wright at Columbia Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES LEE WRIGHT,
CORY BRENNAN, JON SCHRANDT,
ADAM JURGENS, BRIAN WILSON,
and AUSTIN HANCOCK,
Case No. 17-CV-398-JPS
On May 19, 2017, Magistrate Judge Nancy Joseph screened Plaintiff’s
Complaint. (Docket #9). The Complaint alleged that Defendants, various
City of Kenosha police officers, violated Plaintiff’s constitutional rights
during the course of his arrest on May 8, 2014. Id. at 3-4. Plaintiff was
allowed to proceed on “Fourth Amendment claims against each of the
defendants by alleging that their actions towards him were unreasonable.
This includes their use of force, their failure to intervene to prevent force
from being used, and their refusal to provide medical care.” Id. at 4. On
February 1, 2018, Defendants moved for summary judgment. (Docket #41).
Plaintiff’s response to the motion was due on or before March 5, 2018. Civ.
L. R. 7(b). That deadline has passed and no response has been received. The
Court could summarily grant Defendants’ motion in light of Plaintiff’s nonopposition. Civ. L. R. 7(d). However, as explained below, Defendants also
present valid bases for dismissing each claim on its merits. For both of these
reasons, Defendants’ motion must be granted.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides 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 fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
The relevant facts are undisputed because Plaintiff failed to dispute
them. In the Court’s scheduling order, entered August 1, 2017, Plaintiff was
warned about the requirements for opposing a motion for summary
judgment. (Docket #20 at 2-3). Accompanying that order were copies of
Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary judgment
submission. In Defendants’ motion for summary judgment, they too
warned Plaintiff about the requirements for his response as set forth in
Federal and Local Rules 56. (Docket #41). He was provided with additional
copies of those Rules along with Defendants’ motion. Id. at 3-9. In
connection with their motion, Defendants filed a supporting statement of
material facts that complied with the applicable procedural rules. (Docket
#44). It contained short, numbered paragraphs concisely stating those facts
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which Defendants proposed to be beyond dispute, with supporting
citations to the attached evidentiary materials. See id.
In response, Plaintiff filed absolutely nothing—no brief in
opposition, much less a response to the statement of facts. Despite being
twice warned of the strictures of summary judgment procedure, Plaintiff
ignored those rules by failing to properly dispute Defendants’ proffered
facts with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a
pro se plaintiff’s filings, it cannot act as his lawyer, and it cannot delve
through the record to find favorable evidence for him. Thus, the Court will,
unless otherwise stated, deem Defendants’ facts undisputed for purposes
of deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e);
Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006)
(noting that district courts have discretion to enforce procedural rules
against pro se litigants).
In the absence of any factual disputes, and in the interest of brevity,
the Court will discuss the material facts as part of its analysis of Plaintiff’s
claims against each Defendant. All factual discussion is drawn from
Defendants’ statement of proposed facts. (Docket #44).
As noted above, Plaintiff was allowed to proceed on three species of
Fourth Amendment claims. The first, directed at Defendants Brian Wilson
(“Wilson”), Austin Hancock (“Hancock”), and Cory Brennan (“Brennan”),
is for excessive force in effectuating Plaintiff’s arrest. (Docket #1 at 6-8). The
second, leveled at Defendants Jon Schrandt (“Schrandt”) and Adam
Jurgens (“Jurgens”), asserts that they failed to intervene to prevent the other
officers’ use of excessive force. Id. at 7-8. Plaintiff’s final claim is that
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Defendants refused to secure medical care for his alleged injuries. Id. at 8-9.
The Court will address each claim in turn.
Plaintiff alleges that Wilson, Hancock, and Brennan used excessive
force when arresting him, namely by striking him forcefully in his back and
head and tasering him multiple times. Id. at 6-8. Under the Fourth
Amendment, this is in essence a claim that Plaintiff was seized
unreasonably. Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir. 2005).
The Fourth Amendment’s reasonableness standard applies, which is
concerned with whether the force used “was objectively reasonable, judged
from the perspective of a reasonable officer on the scene.” Baird v. Renbarger,
576 F.3d 340, 344 (7th Cir. 2009). Courts are called to account for all of the
circumstances of a particular case, including “‘ the severity of the crime
at issue,  whether the suspect poses an immediate threat to the safety of
the officers or others, and  whether he is actively resisting arrest or
attempting to evade arrest by flight.’” Id. (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)).
The undisputed facts reveal that Plaintiff’s recollection of events is
mistaken, and that the officers’ use of force was entirely reasonable. Officers
were called to an apartment complex related to a suspected domestic
violence incident. The encounter began with Wilson approaching the
complex in his squad car. Plaintiff, standing outside at the time, ran away
after being told to stay where he was. He then went into an apartment and
shut the door. Plaintiff’s flight led Wilson to believe that he was a suspect
in the domestic violence incident. When Plaintiff refused to open the door,
Wilson called for backup.
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Hancock arrived to assist. The domestic violence victim exited the
apartment and spoke with the officers, showing them her injuries. The
victim further stated that she feared for her children’s safety; they were still
in the abode. Wilson and Hancock then kicked the door in and entered the
apartment with their guns drawn. They found Plaintiff in a back bedroom.
Plaintiff reluctantly complied with their orders and laid down on the
ground. Unsure of whether the apartment was truly clear, or if Plaintiff
could still access a weapon, the officers moved in to handcuff him. Plaintiff
actively resisted their efforts to bring his hands together behind his back.
To gain compliance, Hancock struck Plaintiff in the back with his hand.
Brennan then arrived and, seeing the struggle, put his weight across
Plaintiff’s legs. Throughout this time, the officers repeatedly told Plaintiff
to stop resisting, and he continued to ignore them. Despite their efforts, the
officers could not gain control of Plaintiff’s right arm. Wilson thus felt
compelled to tase Plaintiff in the back. This achieved compliance and
allowed the officers to secure Plaintiff in handcuffs.
These facts demonstrate that the officers were justified in using, and
escalating, the force applied to Plaintiff. The crime at issue was a serious
domestic violence incident. The officers also reasonably believed that
Plaintiff posed a continuing threat to the victim’s children and to anyone
else; he was locked in the apartment and might have been barricading
himself within or obtaining a weapon. Finally, Plaintiff both fled and
resisted the officers throughout their encounter.
The officers initially used no force against Plaintiff. Only when his
resistance continued and the officers feared for their safety did they
incrementally increase the level of force. They were justified in moving
from a strike, to putting their weight on Plaintiff’s body, to eventually using
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a taser. In the end, “[t]he calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396-97. With this principle in mind, and on
these undisputed facts, no reasonable jury could find that Wilson, Hancock,
or Brennan employed excessive force in arresting Plaintiff.
Failure to Intervene
Plaintiff contends that Schrandt and Jurgens failed to intervene to
stop the other officers’ use of excessive force. This claim fails for two
reasons. First, without a viable underlying claim of excessive force,
Schrandt and Jurgens cannot be held liable for failing to intervene. Harper
v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). Second, even absent this
principle, Schrandt and Jurgens were in no position to intervene. One of the
essential elements of a failure-to-intervene claim is the defendant having
“‘a realistic opportunity to intervene to prevent the harm from occurring.’”
Abdullahi, 423 F.3d at 774 (quoting Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.
1994)). While Schrandt and Jurgens were indeed on scene at the apartment
complex, neither was present in the apartment when Plaintiff was arrested.
They could not intervene against a use of force which they did not know
about until (at best) after the fact.
Refusal to Secure Medical Care
Plaintiff’s final claim is that each Defendant refused to obtain
medical treatment for his injuries, despite his repeated requests for the
same. The Fourth Amendment’s reasonableness standard also controls this
claim. The Seventh Circuit has identified four factors which help determine
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whether an officer’s response to a request for medical attention was
(1) whether the officer has notice of the detainee’s medical needs;
(2) the seriousness of the medical need;
(3) the scope of the requested treatment; and
(4) police interests, including administrative, penological, or
Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011).
The relevant facts begin after Plaintiff’s arrest. He was taken to a
squad car and the taser probes were removed from his back. Plaintiff then
complained to Brennan that his mouth hurt. Brennan did not see any sign
of illness or injury, but nevertheless reported the concern to his supervising
sergeant. The sergeant told Brennan to take Plaintiff to jail. As part of the
intake process, Brennan asked Plaintiff if he had any injuries, and Plaintiff
responded negatively. The next day, Plaintiff completed a medical
questionnaire. The only injury he listed was a pre-existing dental condition.
While incarcerated, Plaintiff submitted numerous requests for medical care,
but none were related to the alleged injuries sustained during his arrest.
These facts show that the first and second elements are not met. First,
Defendants had no notice of a medical need. Plaintiff’s single complaint
about his mouth was not supported by any objective observation, or indeed
his own statements taken later at the jail. Second, even assuming Plaintiff
had a medical need, it was his pre-existing dental condition, for which he
had previously sought treatment. There is no evidence that Plaintiff had
any serious injuries arising from the May 8, 2014 arrest which required
medical care. Defendants’ response to Plaintiff’s request for medical
attention was therefore reasonable. In other words, Defendants were under
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no obligation to take Plaintiff to the hospital or otherwise seek care for him,
when he himself admitted that he had no injuries.
On the undisputed facts presented, summary judgment is
appropriate in Defendants’ favor on each of Plaintiff’s claims against them.
The Court must, therefore, grant Defendants’ motion and dismiss this
action with prejudice.
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #41) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 9th day of March, 2018.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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