Holland v. Milwaukee County Police Department
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 9/15/2022. 61 Defendant Tyrpak's motion for summary judgment GRANTED. 83 Defendants Milone, Boyack, Dillman and Romeo's motion for summary judgment GRANTED. (cc: all counsel and mailed to LeRoy Holland)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 19-cv-539-pp
ANTHONY MILONE, CHAD BOYACK,
MARK DILLMAN, NICHOLAS ROMEO,
and EDDIE TYRPAK,
ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
(DKT. NOS. 61, 83) AND DISMISSING CASE
Plaintiff Leroy Holland, who was incarcerated when he filed this case and
who is representing himself, filed a complaint alleging that the defendants
violated his constitutional rights. Dkt. No. 1. The court screened the complaint
under 28 U.S.C. §1915A and allowed the plaintiff to proceed on a claim that
defendants Milone, Boyack, Dillman, Romeo and Tyrpak used excessive force
against him when they arrested him, in violation of the Fourth Amendment to
the United States Constitution. Dkt. No. 13 at 5. The court exercised
supplemental jurisdiction over the plaintiff’s state law claims and allowed him
to proceed against the defendants on claims of battery and intentional infliction
of emotional distress. Id. at 7-8. Defendant Tyrpak has filed a motion for
summary judgment. Dkt. No. 61. Defendants Milone, Boyack, Dillman and
Romeo (the “Milwaukee defendants”), who are represented by separate counsel,
have filed an amended motion for summary judgment. Dkt. No. 83. The court
will grant the defendants’ motions and dismiss the case.
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The Plaintiff’s Allegations
In his complaint, the plaintiff alleged the following:
On Friday, 01-11-2019 I was involved in a high speed chase. I was
Pursuided [sic] by two Police officers. Anthony Milone, and Chad
Boyack upon Apperhending [sic] me in the back of 4740 N. 41st
street, on foot I stopped, And placed my hands behind my head. At
this time, one of the officer tackled me to the ground, And then
Multiple officer’s including, officer Mark Dillman, officer Nicholas
Romeo, officer Eddie Tyrpak, officer Anthony Milone, and officer
Chad Boyack. They Proceeded to Kicking And Punching me, while I
was on the ground.
I was extremely devestated [sic], and in fear for my safty [sic]. And
my life. I sustained Multiple injuries in which I was hospitalized for.
As well as this report, I would like to file charges for Police brutalitity
[sic], Malfensense [sic], Battery, intentional inflictions of emotional
distress Along with the intentional inflictions of severe Mental
Dkt. No. 1 at 2-3.
The plaintiff currently resides in Milwaukee County. Dkt. No. 64 at ¶1.
Tyrpak was a City of Wauwatosa, Wisconsin police officer and Milone, Boyack,
Dillman and Romeo were City of Milwaukee, Wisconsin police officers when the
alleged excessive force incident took place. Id. at ¶¶2-6.
On January 11, 20192 at 11:10 p.m., Dillman and Romeo, who were on
duty in a police vehicle equipped with red and blue emergency lighting,
The plaintiff did not file proposed findings of fact and did not respond to the
defendants’ proposed findings. The facts come from the defendants’ proposed
Paragraphs 1 and 2 from the Milwaukee Defendants’ Proposed Findings of
Fact state the wrong date for the incident. Dkt. No. 84 at ¶¶1-2. The correct
date is January 11, 2019, and the court has used that date.
Case 2:19-cv-00539-PP Filed 09/15/22 Page 2 of 14 Document 95
observed a silver Honda Civic with a license plate (188 XHU) that did not match
the vehicle. Dkt. No. 84 at ¶¶2-4. Dillman and Romeo, who believed the silver
Honda Civic they observed to be the silver Honda Civic taken in an armed
carjacking the previous day, attempted a traffic stop near 300 West Concordia
Avenue. Id. at ¶¶5-6. The driver of the vehicle, later identified as the plaintiff,
refused to stop, accelerated westbound and disregarded red traffic signals at
North Dr. Martin Luther King, Jr. Drive and West Concordia Avenue. Id. at ¶7.
Dillman and Romeo initiated a vehicle pursuit of the Honda Civic because the
plaintiff did not stop, the vehicle matched the description of an armed robbery
vehicle and the license plate did not match the vehicle. Id. at ¶8.
Boyack and Milone, who were on duty in a marked black-and-white Ford
Explorer police vehicle, took over the primary pursuit position, with emergency
lights and sirens activated, near North Teutonia Avenue and Burleigh Street.
Dkt. No. 84 at ¶¶1, 9. Several officers observed the plaintiff travel at excessive
speeds, disregard numerous traffic control devices and pass several motorists,
which they believed created a significant risk of serious injury or death to the
plaintiff, members of the public, to themselves and to other officers. Id. at ¶10.
At 11:13 pm, Milwaukee Police Officers James English and Jordan Hemmings
joined the vehicle pursuit and three minutes later, Milwaukee Police Officers
Kevin Hansen and Tiffany Williams also joined. Id. at ¶¶11-12. The pursuit,
which lasted eighteen minutes from the time it started until the plaintiff was
taken into custody after running from the vehicle, extended from the City of
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Milwaukee into the City of Wauwatosa, covered over 20.8 miles of city streets
and involved speeds that exceeded 100 miles per hour. Id. at ¶¶13-16.
At 11:23 p.m., Tyrpak was on routine patrol near North 100th Street and
West Hampton Avenue in Wauwatosa when he heard over the radio that the
Milwaukee Police Department was pursuing a silver Honda Civic believed to
have been taken in an armed robbery carjacking. Dkt. No. 64 at ¶15. During
the pursuit, the Milwaukee Police Department sought assistance from Tyrpak
in the form of stop sticks. Id. at ¶16. In response, Tyrpak deployed stop sticks
as the suspect vehicle entered the intersection of North 92nd Street and West
Hampton Avenue, but the vehicle avoided the stop sticks and continued to flee.
Id. at ¶17. Tyrpak continued to monitor the pursuit over the radio, repositioned in the 9600 block of West Hampton Avenue and deployed the stop
sticks a second time. Id. at ¶18. The suspect vehicle drove over the stop sticks,
which appeared effective. Id. at ¶19. The vehicle continued, but eventually the
passenger side tire, which had been punctured by the stop sticks, fell off the
vehicle near 4600 West Hampton Avenue. Id. at ¶20; Dkt. No. 84 at ¶18.
The vehicle pursuit ended near 4740 North 41st Street, in the City and
County of Milwaukee. Dkt. No. 84 at ¶19. At 11:28 p.m., the plaintiff jumped
out of the vehicle as it was still moving. Id. at ¶20. The Honda Civic hit a
parked vehicle. Id. at ¶21. Officers yelled, “police, stop” as and after the
plaintiff exited the moving vehicle. Id. at ¶25. The plaintiff ran through a
gangway and into the backyard of 4740 North 41st Street. Id. at ¶26. Milone
observed the plaintiff run toward a garage located on the property. Id. at ¶27.
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He tried to gain control of the plaintiff, but due to the momentum of the chase,
both the plaintiff and Milone struck the garage. Id. at ¶28. Milone sought to
gain control of the plaintiff’s hands to neutralize the safety risk he believed the
plaintiff presented and because he did not want to give the plaintiff an
opportunity to reach for a weapon. Id. at ¶¶29-30. As Milone attempted a
“secure the head technique,” Romeo assisted in gaining control of the plaintiff
by completing a decentralization of the plaintiff and Milone, which caused all
three to fall to the ground. Id. at ¶31. Once the plaintiff was on the ground, he
was quickly handcuffed and taken into custody. Dkt. No. 84 at ¶32. Romeo and
Dillman assisted in turning the plaintiff over and helping him to his feet. Id. at
¶33. Officers escorted the plaintiff to the marked squad car assigned to English
and Hemmings for transport to District 5 Police Station. Id. at ¶34.
About two minutes and ten seconds elapsed from the time the plaintiff
abandoned the moving vehicle until officers escorted him to the sidewalk near
the transport squad. Dkt. No. 84 at ¶¶35-36; Dkt. No. 76-2, Exh. B, Dillman
Body Worn Camera, 18:25–20:35. The only interaction involving use of force
between the plaintiff and the Milwaukee defendants occurred in that two
minutes and ten seconds. Id. at ¶39.
Rear facing squad video of the vehicle driven by English and Hemmings
recorded the plaintiff from the time officers placed him into the transport
vehicle up to and after he arrived at District 5 for processing. Dkt. No. 84 at
¶37; ECF No. 75-4, Exh. D, Rear Facing Video of Squad 5428, 21:00–37:00. At
11:38 p.m., squad 5428 (English and Hemmings) left the scene at 4740 North
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41st Street with the plaintiff to escort him to District 5. Dkt. No. 84 at ¶38.
Throughout the transport to District 5, the plaintiff engaged in unsolicited
conversation with the transporting officers, including asking questions and
making statements referencing the driving of the pursuing officers, who “drive
pretty good, too;” as well as a reference that he should be on TV, “should have
been a star” with “MPD, Waukesha, everything” pursuing him. Id. at ¶40. They
arrived at District 5 Police Station plaintiff at 11:46 p.m. on January 11, 2019.
Id. at ¶43.
On January 12, 2019, at 1:15 a.m., Romeo directed the plaintiff into
Interview Room 2 at District 5. Dkt. No. 84 at ¶44. The plaintiff was not in
handcuffs during the encounter, which was recorded using Evidence.com. Id.
The plaintiff refused to make a statement regarding the stolen vehicle. Id. at
¶45. During the interview, the plaintiff did not exhibit any behavior to suggest
he was in any fear, distress or discomfort. Id. at ¶46. Later that morning, the
plaintiff was transported to St. Mary’s Hospital as part of standard procedure
when an arrest involves an accident and remained there for about one hour
before receiving medical clearance. Id. at ¶47. The plaintiff was transported to
the Milwaukee County Justice Facility at 11:44 a.m. Id. at ¶49.
The Milwaukee defendants submitted uncontroverted audio and video
recording evidence taken from multiple Milwaukee Police Department body
worn cameras and squad car devices depicting the events of January 11, 2019
involving the plaintiff. Dkt. No. 84 at ¶50. There is no video, audio, pictorial or
other evidence that Milwaukee Police Officers kicked or punched the plaintiff
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during his arrest as alleged in his complaint. Id. at ¶51. (In his brief in
opposition to the motion for summary judgment—which is neither signed nor
sworn—the plaintiff asserts that the excessive force began after he got out of
his car, ran about five yards, stopped and placed his hands on his head. Dkt.
No. 88 at 1.)
Defendant Tyrpak’s only involvement in the incident was as assisting
officer to deploy stop sticks. Dkt. No. 64 at ¶23. He did not assist in taking the
plaintiff into custody, did not have any physical contact with the plaintiff on
January 11, 2019, and did not speak to him on that date. Id. at ¶¶24-25.
Summary Judgment Standard
“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 also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be, or is, genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
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or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
Defendant Tyrpak contends that the plaintiff has not stated a claim
against him because he has not demonstrated that Tyrpak was involved in the
plaintiff’s arrest. Dkt. No. 62 at 3. It is undisputed that while Tyrpak deployed
the stop sticks, he did not participate in the plaintiff’s arrest. Tyrpak did not
assist in taking the plaintiff into custody and he did not have any physical
contact with the plaintiff on January 11, 2019. Section 1983 limits liability to
public employees who are personally responsible for a constitutional violation.
Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). For liability to
attach, the individual defendant must have caused or participated in a
constitutional violation. Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d 1014,
1039 (7th Cir. 2003). Because Tyrpak had no personal involvement in the
plaintiff’s arrest (and therefore could not have participated in the alleged use of
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excessive force at the site of the arrest), the court will grant his motion for
The Milwaukee Defendants
The Milwaukee Defendants argue that they used reasonable force to
arrest the plaintiff and did not violate his rights under the Constitution or state
law. Dkt. No. 72 at 21-23. The plaintiff filed a two-page, unverified response in
which he states that officers used excessive force after he got out of the car, ran
five yards, stopped and placed his hands behind his head. Dkt. No. 88 at 1. He
states that the officers waited ten hours before taking him to the hospital so
the swelling in his face would go down. Id. at 2. According to the plaintiff, his
head hurt and his vision was blurry, but the police officer did all the talking at
hospital. Id. He states that he went to the House of Correction where he saw a
doctor and that subsequently he was transferred to Dodge Correctional
Institution where staff noticed his face “wasn’t right.” Id. The plaintiff says that
they took him to the hospital, and he continued to go there and see a physical
therapist. Id. Now that he has been released, he states that he goes to Aurora
Hospital and he also sees a physical therapist. Id.
The court analyzes a claim that a law enforcement officer used excessive
force when effectuating an arrest under the Fourth Amendment’s objective
reasonableness standard. Avina v. Bohlen, 882 F.3d 674, 678 (7th Cir. 2018)
(citing Cyrus v. Town of Mukwonago, 624 F.3d 856, 861 (7th Cir. 2010)).
“Whether a police officer used excessive force is analyzed from the perspective
of a reasonable officer under the circumstances, rather than examining the
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officer’s actions in hindsight.” Id. (quoting Dawson v. Brown, 803 F.3d 829,
833 (7th Cir. 2015)). When assessing whether the amount of police force was
reasonable, the court looks to circumstances indicating (1) the severity of the
suspected crime, (2) whether the suspect posed an immediate threat to the
officer on the scene or others, and (3) whether the suspect was actively
resisting or attempting to evade arrest. Id.; see also Graham v. Conner, 490
U.S. 386, 396 (1989). The court’s goal in examining these factors is to
determine “whether the force used to seize the suspect was excessive in
relation to the danger he posed … if left unattended.” Dawson, 803 F.3d at 833.
If there are sufficient undisputed material facts to establish that the officer
acted reasonably under the circumstances, the court must resolve the issue as
a matter of law, rather than allow a jury to “second-guess” the officer’s action.
Id. (citing Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003)).
It is undisputed that defendants Dillman and Romeo attempted a traffic
stop of the silver Honda Civic the plaintiff was driving because the license
plates did not match the car and because they believed it was a silver Honda
Civic that had been taken in an armed carjacking the previous day. When the
plaintiff failed to stop, Dillman and Romeo initiated a vehicle pursuit that
lasted over eighteen minutes, covered over twenty miles of city streets and
involved speeds over 100 miles per hours. (The plaintiff himself admitted in his
complaint that he was involved in a high-speed chase.) When the plaintiff ran
over stop sticks Tyrpak had put down, his tire came off and he slowed down,
jumped out of the vehicle while it was moving and ran. Defendants Milone,
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Boyack, Romeo and Dillman knew as they were in hot pursuit of the plaintiff
that he could be the armed carjacker from the previous day, believed that there
was a high probability that he had a weapon, knew that they had observed him
commit two felony offenses3 and believed that he created and posed a serious,
potentially grave, threat to their safety, the safety of other officers, pedestrians
and other motorists by his conduct that night. Dkt. No. 84 at ¶22.
The plaintiff alleged in the complaint that Milone and Boyack
apprehended him and that after he placed his hands behind his head, one of
the officers tackled him to the ground. Dkt. No. 1 at 2. Next, the plaintiff
alleged that multiple officers, including Dillman, Romeo, Tyrpak, Milone and
Boyack kicked and punched him while he was on the ground. Id. The video
evidence of the incident flatly contradicts the plaintiff’s claims. The Milwaukee
Defendants were wearing body cameras during the January 11 incident, both
during the pursuit and during the arrest. The body camera recordings show
that the plaintiff jumped out of a car and ran from the street through a gate
between two houses. Milone was the first out of his car; he ran after the
On January 13, 2019, a criminal complaint charging the plaintiff with
Attempting to Flee or Elude an Officer, a Class I Felony, and Second Degree
Recklessly Endangering Safety, a Class G Felony, was filed in Milwaukee
County Circuit Court for the January 11, 2019 events that form the basis of
this case. Dkt. No. 84 at ¶52; State v. Holland, Case No. 2019CF181
(Milwaukee County Circuit Court), available at https://wcca.wicourts.gov. On
September 13, 2019, the plaintiff was convicted of second degree recklessly
endangering safety after pleading guilty. Id. at ¶53. The charge of Attempting to
Flee/Elude an Officer was dismissed and read in for sentencing purposes. Id.
The court sentenced the defendant to a term of one year of confinement and
four years of extended supervision. State v. Holland, Case No. 2019CF181
(Milwaukee County Circuit Court), available at https://wcca.wicourts.gov.
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plaintiff (shouting things like “Stop! Police! It’s over!”) between the two houses,
catching up with the plaintiff in a backyard area behind a house. Both men
were moving so quickly that when Milone reached the plaintiff, the two of them
collided with a garage. Romeo arrived at about the same time, and the three
men fell to the ground. Other officers arrived quickly; someone shouted at the
plaintiff first to put his hands behind his head, then to put them behind his
back. Within seconds, the officers had placed handcuffs on the plaintiff. There
was no kicking. There was no punching. There is no indication that the plaintiff
was in fear for his safety or his life; he answered questions by the officers,
talking to the officers about a family member who had been injured or killed in
a car crash. Once the officers had patted the plaintiff down, they helped him to
his feet and walked him to the squad car.
When a party’s assertion is contradicted by an objective record, such as
a videotape, courts must view “the facts in the light depicted by the videotape.”
Scott v. Harris, 550 U.S. 372, 380-81 (2007) (holding that if one account of the
facts “is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment”); Williams v. Brooks, 809 F.3d 936,
942 (7th Cir. 2016) (relying on video from a dashboard camera rather than the
non-moving party’s account to grant summary judgment because the video
clearly depicted the physical confrontation in question).
The record shows that the Milwaukee defendants used no more force
than was necessary to apprehend the plaintiff and to secure him. They did not
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punch him or kick while he lay on the ground (or at any other time during the
arrest). A reasonable factfinder could not conclude that the Milwaukee
defendants used excessive force when they arrested the plaintiff. See Smith v.
City of Chi., 242 F.3d 737, 743-44 (7th Cir. 2001) (holding that if a reasonable
officer would think that a suspect who had committed a minor traffic violation
was trying to flee, the officer may use a higher degree of force to protect the
community and the officers than would otherwise be justified).
Because the court has determined that the plaintiff has no federal claim,
the court will relinquish supplemental jurisdiction over the plaintiff’s state law
claims. See 28 U.S.C. §1367(c)(3); Lavite v. Dunstan, 932 F.3d 1020, 1034-35
(7th Cir. 2019). The court will grant the Milwaukee defendants’ motion for
The court GRANTS defendant Tyrpak’s motion for summary judgment.
Dkt. No. 61.
The court GRANTS the Milwaukee defendants’ amended motion for
summary judgment. Dkt. No. 83.
The court DISMISSES this case. The clerk will enter judgment
This order and the judgment to follow are final. A dissatisfied party 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 thirty days of the entry of
judgment. See Federal Rule of Appellate Procedure 3, 4. This court may extend
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this deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the thirty-day deadline. See
Federal Rule of Appellate Procedure 4(a)(5)(A).
Under limited 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 twenty-eight days of
the entry of judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2). 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 the judgment. The court cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 15th day of September, 2022.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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