Troupe v. Fenderson et al
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 11/18/2022 GRANTING 96 defendants' motion for summary judgment. 105 Plaintiff's dispositive motion DENIED. 109 Plaintiff's request for trial DENIED. 114 Plaintiff 9;s motion for trial DENIED. 117 Plaintiff's notice of detainment DENIED. 120 Plaintiff's motion for habeas corpus/trust account statement DENIED. 122 Plaintiff's request to amend scheduling order DENIED. 124 Plaintiff's motion for consolidation DENIED AS MOOT. 127 Plaintiff's request for federal intervention DENIED. (cc: all counsel and mailed to Anthony Troupe at Milwaukee County House of Correction)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTHONY L. TROUPE,
Case No. 19-cv-1318 -pp
LAVONTAY FENDERSON, BENNETT F. THILL,
GARY F. NEUBAUER, ADAM R. AMUNDSEN,
NATALIE E. LONGRIE, CODY J. DUMMER,
ALLEN WASSIL, A. FELICIA FRIERI GAINES
and LENET WEBB,
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 96), DENYING PLAINTIFF’S DISPOSITIVE MOTION (DKT. NO.
105), DENYING PLAINTIFF’S RIGHT TO TRIAL HEARING REQUEST (DKT.
NO. 109), DENYING PLAINTIFF’S MOTION FOR TRIAL CASE AS
SCHEDULED (DKT. NO. 114), DENYING PLAINTIFF’S NOTICE OF
DETAINMENT (DKT. NO. 117), DENYING PLAINTIFF’S MOTION FOR
HABEAS CORPUS/TRUST ACCOUNT ENTRY STATEMENT (DKT. NO. 120),
DENYING PLAINTIFF’S REQUEST TO AMEND SCHEDULING ORDER TO
INCLUDE JURY SELECTION & TRIAL DATE (DKT. NO. 122), DENYING AS
MOOT PLAINTIFF’S MOTION OF CONSOLIDATION (PER TO CIVIL LOCAL
RULES #42) (DKT. NO. 124), DENYING PLAINTIFF’S REQUEST FOR
FEDERAL INTERVENTION (DKT. NO. 127) AND DISMISSING CASE
After the plaintiff amended his complaint (Dkt. No. 5), the court screened
the amended complaint and allowed him to proceed on a Fourth Amendment
claim against the defendants. Dkt. No. 43 at 10. The court ordered the parties
to complete discovery by March 25, 2022 and to file dispositive motions by May
27, 2022. Dkt. No. 67. The defendants filed a motion for summary judgment on
the deadline. Dkt. No. 96. Four days later, the plaintiff filed a single-paragraph
document titled “dispositive motion.” Dkt. No. 105. The plaintiff since has filed
multiple requests for a hearing, trial and federal intervention, dkt. nos. 109,
114, 117, 127, and motions for a habeas corpus trust account entry statement,
dkt. no. 120, amendment of the scheduling order, dkt. no. 122, and
consolidation of his cases, dkt. no. 12. Because the defendants are entitled to
judgment as a matter of law, the court will grant their motion for summary
judgment and deny the plaintiff’s motions.
Defendants’ Motion for Summary Judgment (Dkt. No. 96)
The defendants moved for summary judgment on three grounds: (1)
Sergeant Webb had no personal involvement with the plaintiff’s arrest; (2) the
defendants did not violate the plaintiff’s Fourth Amendment rights; and (3) the
defendant officers are entitled to qualified immunity. Dkt. No. 97. Although this
court’s Civil Local Rule 56(b)(2) requires a party opposing a motion for
summary judgment to file a memorandum of law, a concise response to the
moving party’s statement of facts and supporting evidence, and despite the fact
that the defendants provided the plaintiff with a copy of this rule when they
filed their summary judgment motion (Dkt. No. 96-2), the plaintiff filed a oneparagraph “objection” to summary judgment. Dkt. No. 106. The defendants did
not file a reply brief.
Summary Judgment Standard
A party is entitled to summary judgment if it shows that there is no
genuine dispute as to any material fact and it 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). “Material facts” are those that “might affect the
outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over a “material
fact” is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Id.
Summary judgment is proper “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To survive summary
judgment, a party cannot rely on his pleadings and “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
248. Put another way, a non-moving party must show that sufficient evidence
exists to allow a jury to return a verdict in its favor. Brummett v. Sinclair
Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005).
Because the plaintiff is not represented by a lawyer, the defendants’
summary judgment motion put the plaintiff “on notice that any factual
assertions contained in the Declarations accompanying this Motion will be
accepted by the Court as true unless the Plaintiff shows his own Declaration(s)
or other documentary evidence contradicting those factual assertions.” Dkt. No.
96. See Civil Local Rule 56(a)(1)(A) (E.D. Wis.). The defendants attached to their
motion a copy of Civil L.R. 56, which informed the plaintiff that his responses
to the defendants’ proposed findings of fact had to be filed within thirty days.
The plaintiff did not respond to the defendants’ proposed findings of fact. He
filed only a one-paragraph “objection” to summary judgment. That means that
the court must deem the defendants’ uncontroverted statements of material
fact admitted. Civil L.R. 56(b)(4). See also Fabriko Acquisition Corp. v. Prokos,
536 F.3d 605, 607–08 (7th Cir. 2008) (“[A] district court is entitled to demand
strict compliance with [the local] rules for responding to a motion for summary
judgment, and . . . a court does not abuse its discretion when it opts to
disregard facts presented in a manner inconsistent with the rules.”) (citation
omitted); 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
The plaintiff filed a verified amended complaint declaring under penalty
of perjury that the allegations in it were true and correct, so the court has
treated the allegations in the amended complaint as evidence presented in
opposition to the motion for summary judgment. See Jones v. Van Lanen, 27
F.4th 1280, 1285-86 (7th Cir. 2022) (“The law allows verified complaints—
containing not just allegations but sworn statements of fact—to serve as
evidence for purposes of summary judgment). But the court is not obligated to
scour the record to develop the plaintiff’s opposition. Jeffers v. Comm’r, 922
F.3d 649, 653 (7th Cir. 2021). Mindful of the fact that the plaintiff is
representing himself and is not a lawyer, the court has decided the summary
judgment motion by considering the defendants’ uncontroverted, proposed
facts (Dkt. No. 98), the verified amended complaint (Dkt. No. 5) and the
attachments to the verified amended complaint (Dkt. Nos. 5-1, 5-2).
This case arises under the Fourth Amendment to the United States
Constitution and 42 U.S.C. §1983 and the court has jurisdiction under 28
U.S.C. §§1331 and 1343. Dkt. Nos. 7, 43. Venue lies in this district. Id.
The plaintiff resides in Wisconsin. Dkt No. 5. At the time of the events
described in the amended complaint, defendants Bennett Thill, Gary Neubauer,
Cody Dummer, Natalie Longrie, Allen Wassil, LaVontay Fenderson, Felicia
Frieri-Gaines, Lennot Webb and Adam Amundsen were employed as Racine
Police Officers. Dkt. Nos. 99 at ¶1; 100 at ¶19; 100-1; 102 at ¶1; 101 at ¶1;
102 at ¶1; 103 at ¶1; 104 at ¶1.
The amended complaint alleges that on March 28, 2018, the plaintiff
noticed that he was being followed “by unmarked cars” after leaving a class in
Racine, Wisconsin to return “to HALO (a shelter).” Dkt. No. 5 at 3. The plaintiff
states that “[a]fter discovering that [he’d] lost the means to return to
Milwaukee,” he began to panic “in order to” find his belongings, particularly the
school laptop given to him by Asia Barry. Id. at 3-4. The plaintiff says that
because he was still being followed and harassed during the “panicked search,”
he asked security at S.C. Johnson Wax Headquarters to call the police to help
him search for his belongings. Id. at 4.
The plaintiff says that “[d]uring the initial questioning,” he noticed that
defendant “Fenderson was upset, almost to the point of tears, when he notified
a ‘51st squad’ that he” had found the plaintiff. Id. The plaintiff says that
defendant Amundsen offered to drop the plaintiff off at HALO and the plaintiff
accepted on the condition that he ride with Fenderson. Id. The plaintiff says
that during the ride, he noticed that Fenderson was “still corresponding with a
‘51st squad’” until Fenderson asked why the plaintiff was in Racine; the
plaintiff responded he was “ultimately” there for the “finest woman in Racine.”
Id. at 4-5. At HALO, the plaintiff searched for, but did not locate, his
belongings. Id. at 5. He says that afterward, he “felt [he] absolutely had to leave
because [he] couldn’t find the armed security of HALO,” and he went searching
for them. Id. He thought they were outside, until someone shined a spotlight in
the plaintiff’s face and yelled at him in the rain. Id.
The plaintiff attached seventy-nine pages of exhibits to the amended
complaint and included the Racine Police Department Supplementary Report
and Use of Force Report, which identify the date of the incident as March 29,
2018. Dkt. No. 5-1 at 8; 5-1 at 11. On March 29, 2018, at approximately 5:02
a.m., Officer Amundsen was dispatched to the Homeless Assistance Leadership
Organization (HALO) at 2000 De Koven Ave, on a report that a man had stolen
a cell phone and shoes. Dkt. No. 100 at ¶3. The complainant, Richelle Raun,
identified the plaintiff. Id. at ¶4. Dispatch advised that the plaintiff was walking
toward the intersection of De Koven Ave and S. Memorial Drive wearing a grey
hoody, blue shoes and blue jeans. Id. While Amundsen was enroute to the area
of the call, he observed the plaintiff, whom he recognized from previous
contact, walking in the 1400 block of De Koven Avenue. Id. at ¶6. He
remembered the plaintiff from a call earlier that day, in which the plaintiff had
falsely claimed that he was “mugged.” Id. at ¶5.
From inside his squad car, Amundsen ordered the plaintiff to stop. Id. at
¶6. The plaintiff walked toward Amundsen’s squad car, ignored his lawful
commands, then continued to walk eastbound on De Koven Ave. Id. Amundsen
got out of his squad car and again ordered the plaintiff to “stop.” Id. at ¶7.
Amundsen told the plaintiff that he was going to be detained in reference to the
theft incident that had occurred at HALO. Id. The plaintiff ignored Amundsen’s
commands and raised his hands above his head without being prompted. Id. at
¶8. The plaintiff began looking over his shoulder as if he were planning to run
away. Id. Based on his experience and training, it appeared to Amundsen that
the plaintiff might be under the influence of an unknown substance or
suffering from some sort of mental health condition. Amundsen knew that
individuals who may be under the influence or suffering from mental health
crisis could present a heightened risk to officers. Id. at ¶9.
At the time of the encounter, the plaintiff was 6’2” and weighed 242
pounds. Dkt. No. 100-1 at 4. Due to the plaintiff’s size, odd behavior and
resistive actions, Amundsen asked that his cover officers step up their
response time. Dkt. No. 100 at ¶10; Dkt. No. 100-1 at 5-6. Amundsen then
advised the plaintiff that he was going to place him in handcuffs and ordered
him to turn around. Dkt. No. 100 at ¶10. In response to Amundsen’s
command, the plaintiff made random incoherent statements to Amundsen. Id.
To safely initiate physical contact with the plaintiff, Amundsen attempted to
place the plaintiff in an escort hold. Id. at ¶11. As soon as he made contact
with the plaintiff’s right arm, the plaintiff flexed his bicep and forearm muscles.
Id. The plaintiff then pulled his arm from Amundsen’s grasp and moved away
from him, while looking over his shoulder and proceeding to move at a quicker
pace away from Amundsen. Id. at ¶¶11, 12. Amundsen again tried to place the
plaintiff in an escort hold. The plaintiff pulled away from Amundsen’s grasp;
Amundsen fell onto the sidewalk. Id. at ¶12.
After Amundsen fell to the ground, he stood up and ordered the plaintiff
to “stop.” Id. at ¶13. The plaintiff ignored Amundsen’s command and continued
to walk away from Amundsen; Amundsen pursued the plaintiff eastbound on
De Koven Avenue toward the nearby railroad tracks. Id. While Amundsen was
pursuing the plaintiff, he saw the plaintiff reach into his pocket and throw an
object “that appeared to have a shine” into the grassy area on the North side of
the 1400 block of De Koven Avenue. Id. at ¶14; Dkt. No. 100-1 at 6. Amundsen
later located the object—a glass pipe commonly used to smoke marijuana. Dkt.
No. 100 at 29; Dkt. No. 100-1 at 7.
Officer Fenderson arrived on the scene. Dkt. No. 99 at ¶4. Fenderson and
Amundsen ordered the plaintiff to “stop.” Id. The plaintiff ignored Fenderson
and Amundsen, did not stop and continued walking away from the officers.
Dkt. No. 99 at ¶¶4, 5; Dkt. No. 100 at ¶15. Due to the plaintiff’s continued
active resistance, Fenderson and Amundsen determined that the plaintiff
needed to be decentralized. Dkt. No. 99 at ¶6; Dkt. No. 100 at ¶16. When
Amundsen and Fenderson caught up to the plaintiff and attempted to place
him in an escort hold so that they could safely decentralize him onto the
sidewalk, the plaintiff showed extreme strength and pulled away from both of
them. Id. Because of the plaintiff’s strength, Amundsen decided to trip him in
order to decentralize him; the plaintiff fell to the sidewalk, with Amundsen and
Fenderson on top of him. Dkt. No. 100 at ¶16.
Amundsen and Fenderson attempted to hold the plaintiff on the ground.
Dkt. No. 99 at ¶7; Dkt. No. 100 at ¶17. The plaintiff pushed up off the sidewalk
and stood up. Id. After the plaintiff stood up, he proceeded eastbound away
from the officers. Dkt. No. 99 at ¶8; Dkt. No. 100 at ¶18. As the plaintiff fled,
officers ordered him to “stop.” Id.
More Racine police officers arrived at the scene to assist in detaining the
plaintiff, including Officers Dummer, Longrie, Frieri-Gaines, Wassil, Neubauer
and Thill. Dkt. No. 99 at ¶9; Dkt. No. 100 at ¶19; Dkt. No. 101 at ¶5; Dkt. No.
102 at ¶4; Dkt. No. 103 at ¶4. Dummer ran after the plaintiff and, to take
control of the situation that was rapidly escalating and becoming unsafe for all
involved, pushed the plaintiff against a nearby chain link fence. Dkt. No. 103 at
¶¶6, 8. Dummer attempted to control the plaintiff’s fall and landed on top of
the plaintiff. Id. at ¶8. Dummer gave the plaintiff multiple commands to place
his hands behind his back but the plaintiff actively resisted. Id. at ¶9.
Amundsen, Fenderson, Longrie, Frieri-Gaines, Wassil and Thill attempted to
place the plaintiff in handcuffs but the plaintiff thrashed around and attempted
to throw Dummer off of him. Id. ¶10; Dkt. No. 99 at ¶10. Attempts to control
the plaintiff failed due to the plaintiff’s “abnormal amount of strength.” Dkt. No.
100 at ¶20; Dkt. No. 99 at ¶11; Dkt. No. 101 at ¶7; Dkt. No. 102 at ¶6.
It appeared to Dummer, Amundsen, Thill and Frieri-Gaines that the
plaintiff was under the influence of an unknown substance based on the
superhuman strength he exhibited. Dkt. No. 103 at ¶27; Dkt. No. 100 at ¶9;
Dkt. No. 102 at ¶6; Dkt. No. 101 at ¶7. Officers gave him multiple “stop
resisting” and “give us your hands” commands. Dkt. No. 101 at ¶5; Dkt. No.
100 at ¶21; Dkt. No. 99 at ¶12; Dkt. No. 102 at ¶8. The plaintiff ignored those
commands and actively resisted the officers. Dkt. No. 101 at ¶6; Dkt. No. 100
at ¶21; Dkt. No. 99 at ¶12; Dkt. No. 102 at ¶8.
While the officers struggled to place the plaintiff in handcuffs, Dummer
executed multiple hand strikes to the plaintiff, trying create dysfunction as the
plaintiff continued to actively resist. Dkt. No. 103 at ¶11. Dummer also
attempted to place the plaintiff in an escort hold. Id. at ¶9. The hand strikes
and compliance hold were not effective in apprehending the plaintiff. Id. at ¶11.
Dummer, Amundsen, Fenderson, Longrie, Frieri Gaines, Wassil and Thill
disengaged the plaintiff and Dummer deployed his Taser. Dkt. No. 98 at ¶57;
Dkt. No. 103 at 12. Dummer’s Taser deployment was ineffective. Id.; Dkt. No.
103 at ¶13. Because they were struggling to take the plaintiff into custody,
Thill then deployed his Taser. Dkt. No. 102 at ¶9. Thill’s taser prongs made
contact with the plaintiff’s abdomen. Id. The prongs had little to no effect on
the plaintiff and he attempted to pull them from his body. Dkt. No. 100 at ¶24;
Dkt. No. 102 at ¶10. Normally when a subject is tased, the pulse causes the
muscles to become uncoordinated and the muscles contract at random. Dkt.
No. 103 at ¶14.
The officers reengaged the plaintiff on the ground and continued to try to
detain him in handcuffs. Dkt. No. 99 at ¶13; Dkt. No. 103 at ¶19. Dummer
continued to deliver knee strikes to the plaintiff’s right abdomen area. Dkt. No.
103 at ¶17. While Dummer was trying to assist Fenderson in applying
handcuffs on the plaintiff’s right wrist, the plaintiff tried to bite Dummer. Dkt.
No. 103 at ¶20; Dkt. No. 101 at ¶10. Fenderson attempted to handcuff the
plaintiff in front and placed one cuff on the plaintiff’s left wrist; in the process,
the plaintiff grabbed the cuff and bit Fenderson’s right index and ring finger.
Dkt. No. 99 at ¶13. Fenderson yelled to the other officers that the plaintiff was
biting his hand. Dkt. No. 99 at ¶14; Dkt. No. 100 at ¶25; Dkt. No. 102 at ¶6;
Dkt. No. 101 at ¶10. Dummer delivered several “reactionary hand strikes” to
the plaintiff’s face to stop him from biting Fenderson. Dkt. No. 103 at ¶20. The
plaintiff eventually released Fenderson’s fingers from his mouth. Dkt. No. 103
at ¶20. Soon thereafter, Wassil and Fenderson finally were able to put
handcuffs on the plaintiff. Dkt. No. 103 at ¶22; Dkt. No. 99 at ¶15. The officers
had to handcuff the plaintiff in front of his body because they were unable to
place him into handcuffs behind his back. Dkt. No. 101 at ¶11; Dkt. No. 102 at
¶11; Dkt. No. 100 at ¶26; Dkt. No. 103 at ¶22. The officers continued to try to
secure the plaintiff for his safety as he was still attempting to break free of the
restraints and stand up. Dkt. No. 103 at ¶23; Dkt. No. 100 at ¶26.
During the entire encounter the plaintiff would yell “you are going to
have to kill me.” Dkt. No. 101 at ¶8; Dkt. No. 100 at ¶27; Dkt. No. 103 at ¶18.
The plaintiff also sang the lyrics to rap songs and made random statements to
the officers throughout the encounter. Dkt. No. 100 at ¶27; Dkt. No. 101 at
¶12. It took eight officers to place the plaintiff in handcuffs. Dkt. No. 100 at
¶20. The responding officers had to continue to hold the plaintiff down until
Racine Fire Department Rescue arrived. Dkt. No. 102 at ¶12; Dkt. No. 103 at
23. The Racine Fire Department personnel sedated the plaintiff to calm him
down and placed him onto a gurney. Dkt. No. 103 at ¶24; Dkt. No. 100 at ¶28;
Dkt. No. 102 at ¶12; Dkt. No. 101 at ¶13. The Racine Fire Department then
transported the plaintiff to the emergency room at St. Mary’s Medical Center for
medical evaluation and medical release for the Racine County Jail. Dkt. No.
103 at ¶24; Dkt. No. 100 at ¶28; Dkt. No. 101 at ¶14. Longrie, Dummer,
Amundsen and Wassil all responded to the hospital to guard the plaintiff due
to his erratic and violent behavior. Dkt. No. 103 at ¶25. The plaintiff was
handcuffed to the hospital bed to ensure the safety of hospital staff. Id. The
plaintiff was incoherent and combative during the first few hours of his
hospital stay. Id. He was uncooperative with hospital staff and shouted and
chanted unintelligible phrases and songs. Id. After approximately four hours at
the hospital, he became more and more coherent. Id. at ¶26. Eventually the
plaintiff was medically cleared and transported to the Racine County Jail
without further incident. Id.
Sergeant Webb arrived on the scene of the arrest after the plaintiff had
been detained and placed into custody; Webb had no personal contact with the
plaintiff. Dkt. No. 104 at ¶¶ 3-4. The responding officers notified Webb of the
incident and of their injuries. Dkt. No. 103 at ¶28; Dkt. No. 99 at ¶¶16-17.
Neubauer took photographs of Dummer’s injuries and of the pipe the plaintiff
had thrown in the grass north of the sidewalk in the 1400 block of Dekoven
Ave. Dkt. No. 103 at ¶29; Dkt. No. 100 at ¶29.
The plaintiff alleges in the amended complaint that “[d]uring that time
(which it was identified as [his] altercation with police of Racine) [he] felt;
stings, someone forcing [his] head down from [his] neck, another pulling [his]
pants down, ears ringing and [his] jaw not being able to close before [he]
blacked out completely.” Dkt. No. 5 at 5. He believes he was handcuffed more
than one time because he could not defend himself against blows to his face or
the hand pressing on the side of his neck. Id. The plaintiff has no recollection
of being sedated or his time at the hospital. Id. at 5-6. He recalls only “a
clapping when [he] woke up at a room with armed uniformed men asking [him]
questions while feeling groggy.” Id. at 6.
The plaintiff asserts that the Racine Police officers he named and sued
were “based of those mentioned of the alleged battery to a officer;” he says he
was not able to identify the officers who prevented him from going to court on
April 2, 2018. Id.
The plaintiff was charged with one felony count of resisting or
obstructing—causing injury, in violation of Wis. Stat. §946.41(2r); one felony
count of battery to a law enforcement officer, in violation of Wis. Stat.
§942.20(2); one misdemeanor count of disorderly conduct, in violation of Wis.
Stat. §947.01; and one misdemeanor count of possession of drug
paraphernalia, in violation of Wis. Stat. §961.573(1). Dkt. No. 100 at ¶35; Dkt.
No. 100-1 at 2.
The amended complaint states that the plaintiff was suing “within the
definition of Bivens or U.S.C. § 1983 of Title 42.” Dkt. No. 5 at 2. Section 1983
of Title 42 allows a plaintiff to sue a “person” who violates his constitutional
rights “under color of” state law. The statute “creates a federal cause of action
for ‘the deprivation, under color of [state] law, of a citizen's rights, privileges, or
immunities secured by the Constitution and laws of the United States.’”
Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997) (quoting Livadas v.
Bradshaw, 512 U.S. 107, 132 (1994)). In §1983 cases, “the plaintiff bears the
burden of proof on the constitutional deprivation that underlies the claim, and
thus must come forth with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.” McAllister v. Price, 615 F.3d 877,
881 (7th Cir. 2010).
To establish personal liability under §1983, “the plaintiff must show that
the relevant official ‘caused the constitutional deprivation at issue’ or
‘acquiesced in some demonstrable way in the alleged constitutional violation.’”
Gonzalez v. McHenry C’nty, Ill., 40 F.4th 824, 828 (7th Cir. 2022) (quoting
Palmer v. Marion C’nty, 327 F.3d 588, 594 (7th Cir. 2003)). “‘Lawsuits against
individuals require personal involvement in the constitutional deprivation to
support a viable claim.’” Id.
The plaintiff’s “objection to summary judgment” does not discuss Webb’s
involvement in the events of March 29, 2018. He says only that the “defendants
are lying.” Dkt. No. 106. That means it is undisputed that Webb arrived on the
scene after the defendant had been taken into custody and had no personal
contact with the plaintiff. Dkt. No. 104 at ¶4. Because Webb was not personally
involved in the events the plaintiff described in the amended complaint, the
court must dismiss Webb as a defendant.
Fourth Amendment claim
In its order screening the amended complaint, the court concluded that
“construing the allegations in the complaint and the attachments very liberally,
the plaintiff has stated excessive force/false arrest claims” against the
defendants. Dkt. No. 43 at 10.
The court analyzes an arrestee’s claim for excessive force under the
Fourth Amendment’s objective reasonableness standard. Graham v. Connor,
490 U.S. 386, 388 (1989). “An officer’s use of force is unreasonable if, judging
from the totality of the circumstances at the time of the arrest, the officer uses
greater force than was reasonably necessary to effectuate the arrest.” Gupta v.
Melloh, 19 F.4th 990, 996 (7th Cir. 2021) (quoting Phillips v. Cmty. Ins. Corp.,
678 F.3d 513, 519 (7th Cir. 2012)). The court evaluates whether the officer’s
actions were objectively reasonable” from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396. “The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application.” Bell v. Wolfish, 441
U.S. 520, 559 (1979). “[I]ts proper application requires careful attention to the
facts and circumstances of each 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.” Graham, 490 U.S. at 396.
The Supreme Court has “long recognized that the right to make an arrest
or investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Id. The question is whether the
force used is reasonable. Id. The Seventh Circuit has held that “increased force
may be reasonable when used in response to an arrestee’s active struggling
and in proportion to the threat presented.” Phillips, 678 F.3d at 527. That
court concluded that officers’ use of batons, knee strikes and OC spray was
reasonable given their belief that the plaintiff was intoxicated and the level of
his physical resistance. Padula v. Leimbach, 656 F.3d 595, 603 (7th Cir. 2011).
The plaintiff has presented no facts regarding his actions during the
arrest. The amended complaint talks about the plaintiff having been at HALO
the day before, the officers’ arrival and the injuries that the plaintiff says
resulted from the altercation. But the plaintiff admitted in the amended
complaint that he had no recollection of what happened between the time he
says he came out of HALO and the time he woke up in the hospital. The
plaintiff’s own attachments to the amended complaint and the defendants’
facts describe a situation in which the plaintiff actively resisted arrest, evaded
eight officers, bit one officer and injured another and required sedation to stop
him from being combative. Even then, he remained combative for another
several hours in the hospital. In response to this evidence, the plaintiff makes
the bald, unsupported assertion that the defendants are lying.
Amundsen responded to a report that the plaintiff had stolen a cell
phone and shoes. Amundsen was familiar with the plaintiff from an earlier call
and spotted him on the street. Dkt. No. 100-1 at 1, 5. Amundsen also was
aware—from the earlier call—that the plaintiff had a mental health condition or
was under the influence of an unknown substance. Id. at 5. The plaintiff
ignored multiple orders to stop and Amundsen requested backup as the
plaintiff began making random statements and speaking incoherently. Id. at 56. The plaintiff resisted Amundsen’s attempt to place him an escort hold. Id. at
6. During Amundsen’s second attempt, the plaintiff pulled away and
Amundsen fell to the sidewalk. Id. The plaintiff again ignored orders to stop
and Amundsen followed the plaintiff until Fenderson arrived. Id. As the plaintiff
pulled away, Amundsen tripped him causing him to fall. Id. The plaintiff
pushed up off the sidewalk while officers tried to hold him down. Id. He
escaped again and started to run eastbound. Id. He continued to ignore orders
to stop. Id.
At this point, the situation escalated. Officers pursued the plaintiff and
Dummer fell onto the plaintiff after pushing him into the fence. Id. Even then,
eight officers could not get the plaintiffs into handcuffs because of the
“abnormal amount of strength that [the plaintiff] was displaying.” Id. All the
evidence in the record confirms that the plaintiff actively resisted, ignored
officers’ commands and made it impossible to get him in handcuffs. “All trained
techniques executed to create dysfunction were unsuccessful and ineffective in
controlling [the plaintiff’s] active resistance.” Dkt. No. 103 at ¶27. After being
tasered, the plaintiff pushed up off the ground and yelled “you are going to
have to kill me” as he continued to resist arrest. Id. at ¶¶16, 18. The plaintiff
bit Fenderson, and only released Fenderson’s fingers after Dummer delivered
reactionary hand strikes. Id. at ¶21. He remained combative during the first
few hours of his hospital stay (even after sedation). Id. at ¶25.
A reasonable officer in the defendants’ position would have concluded
that the escalation of force was necessary to restrain the plaintiff. On this
record, the escalated use of force was necessary to detain the plaintiff. The
plaintiff has presented no evidence giving rise to a genuine dispute of material
fact regarding whether a reasonable officer in the defendants’ position would
have found the escalation of force necessary. The defendants are entitled to
judgment as a matter of law on the plaintiff’s excessive force claim.
False arrest claim
The court also concluded at screening that the plaintiff had asserted
false arrest claims against the defendants. Dkt. No. 43 at 10. The defendants
did not present arguments regarding a false arrest claim. But the evidence
demonstrates that the plaintiff cannot prevail on a false arrest claim. “[A]rrests
are ‘seizures’ of ‘persons,’ [so] they must be reasonable under the
circumstances.” District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577,
585 (2018). “A warrantless arrest is reasonable if the officer has probable cause
to believe that the suspect committed a crime in the officer’s presence.” Id. at
586 (citing Atwater v. Lago Vista, 532 U.S. 318, 354 (2001)). There is no
genuine issue of material fact that the officers had probable cause to arrest the
plaintiff; he resisted arrest, committed battery to at least one (and likely more)
officers and committed disorderly conduct. Because the officers had probable
cause to arrest the plaintiff, he cannot prevail on a false arrest claim.
The defendants also argue that they are entitled to qualified immunity.
Dkt. No. 97 at 11-12. Whether an officer is entitled to qualified immunity
“involves a two-pronged inquiry: (1) whether the facts, read in favor of the of
the non-moving party, amount to a constitutional violation; and (2) whether the
constitutional right was clearly established at the time of the alleged violation.”
Rainsberger v. Benner, 913 F.3d 640, 647 (7th Cir. 2019). Put another way,
“officers are entitled to qualified immunity . . . unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of their conduct was
‘clearly established at the time.’” Wesby, 138 S. Ct. at 589 (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012).
The court has found that the defendants did not violate the plaintiff’s
statutory or constitutional rights. There is no need for the court to determine
whether the defendants would have been entitled to qualified immunity if they
had violated the plaintiff’s constitutional rights, because they did not do so.
Plaintiff’s Dispositive Motion (Dkt. No. 105)
On May 31, 2022, the plaintiff filed a document titled “Dispositive motion
& request to proceed under oath.” Dkt. No. 105. The plaintiff wrote: “Due to the
defendants’ noncompliance to the scheduling order, I request that they proceed
under oath with penalty of perjury. I attempted a ‘good faith & confer’ to no
response as well. Attached is the email correspondence.” Dkt. No. 105. The
plaintiff attached a May 26, 2022 email that he sent to defense counsel stating
“I haven’t heard anything from the defendants of the order by the Chief
Magistrate for a joint deposition.” Dkt. No. 105-1 at 1-2. Defense counsel
responded the same day, explaining to the plaintiff that counsel had not
received an order from the court requiring defendants to appear for a
deposition. Dkt. No. 105-1 at 1. Counsel indicated that the deadline for
discovery had closed on March 25, 2022. Id.
The court will deny the plaintiff’s motion for several reasons. First, the
document is not a “dispositive motion.” “A dispositive motion is a motion
asking for a court order that entirely disposes of one or more claims in favor of
the moving party without need for further court proceedings.” https://
definitions.uslegal.com/d/dispositive-motion/. The plaintiff’s filing does not
ask the court to resolve the plaintiff’s claims. It asks the court to require the
defendants to proceed under oath, although the plaintiff does not provide a
rule or other authority supporting that request. Second, to the extent that the
plaintiff is accusing the defendants of failing to comply with the scheduling
order, it has no merit. The court issued the scheduling order on September 14,
2021. Dkt. No. 67. It required the parties to complete discovery by March 25,
2022 and to file dispositive motions by May 27, 2022. Id. The defendants filed
their motion for summary judgment on the May 27, 2022 deadline. The
plaintiff has provided no evidence that the defendants did not comply with the
discovery deadline or other deadlines in the September 14, 2021 scheduling
order. Finally, if a party makes a good-faith attempt to resolve discovery
disputes and is unsuccessful, the remedy is to file a motion to compel under
Fed. R. Civ. P. 37 and Civil L.R. 37 before the deadline for completing
discovery. The plaintiff filed this document on May 31, 2022, over two months
after the deadline for completing discovery. The court will deny the motion.
Plaintiff’s Right to Trial Hearing Request (Dkt. No. 109)
Plaintiff’s Motion for Trial as Scheduled (Dkt. No. 114)
Plaintiff’s Notice of Detainment (Dkt. No. 117)
On June 13, 2022, the court received from the plaintiff a document titled
“Right to trial hearing request.” Dkt. No. 109. The document stated:
Due to the interruption possibly by the defendants and switch of
representation without notice,1 I would like the court to swear in the
defendants as their reports of the felony criminal case and
deposition differs from they bodycam’/dashcam footage supported
by medical records that includes usage of ketamine[.]
Id. The plaintiff attached to this document a letter from the University of
Wisconsin Milwaukee’s University Housing Department dated June 7, 2022,
terminating the plaintiff’s “Individual Housing Facility Use Agreement as an
There has been no “switch of representation” by the defendants. Since their
first appearance in the case, the defendants have been represented by Attorney
Kyle Moore. Attorney Moore was with Gunta Law Offices at the beginning of the
case, and now is with Wirth and Moore, but he remains defense counsel (as
does Attorney Ann Wirth).
intern” because they were unable to verify that he had a legitimate internship
with “Studio Troupe.” Dkt. No. 109-1 at 1. The plaintiff also attached a copy of
his driver’s license. Id. at 2.
On July 5, 2022, the court received from the plaintiff a document titled
“motion for trial.” Dkt. No. 114. This document stated, “I don’t see my case on
the calender of the computer at the federal courthouse, nor any hearings. No
service nor notice of change of representation for suit from defendants.
Demand for trial, @ 7/14/22.” Id. The plaintiff attached a letter from the Social
Security Administration indicating that he had applied for a Social Security
card on June 14, 2022 and that it should be arriving in about two weeks. Dkt.
No. 114-1. Handwritten at the bottom of this letter was a notation, “Unable to
receieve mail as forwarded to church. Given fake money and have felony case
22cf52392 at date of trial.” Id. The plaintiff also attached photocopies of the
front and back of a $100 bill. Dkt. No. 114-2.
On July 19, 2022, the court received from the plaintiff a document titled
“Notice of detainment.” Dkt. No. 117. This document stated:
Per to rule 38 (local rules),3 I would like to demand a jury trial and
to be there for it, as supported by the 7th amendment of the
constitution. In additionally supported by rule 11th, the association
of the defence is hindering my consititutional right to trial and acting
under color of law from a probation hold warrent arrest on 7/8/22
to be charged with 22cf2539 (incident date 11/7/20). As I signed
The public docket identifies this as State v. Troupe, 2022CF002539
(Milwaukee County Circuit Court), a criminal case charging the plaintiff with
burglary to a room within a building in violation of Wis. Stat. §943.10(1m)(f).
https://wcca.wicourts.gov. The complaint was filed on June 27, 2022 and a
jury trial is scheduled for January 3, 2023. Id.
This court’s local rules have no rule numbered 38.
TLP papers with Higgins as a employee of the city of Milwaukee and
department of corrections to be arrested by West Allis Police after
grabbing a parking permit for my Silvercrest. For this hindered me
from trial as scheduled and of my education. Please foword to 7th
circuit U.S. Court of Appeals, as I’m not able to recieve my SSN card
nor any postage.
The plaintiff is not entitled to a hearing or a trial. The court has
concluded that there is no genuine dispute as to an issue of material fact and
that the law requires judgment in favor of the defendants. None of the
documents the plaintiff attached to his motions support his demand for a trial;
they do not appear to relate to this case at all. The court will deny the requests.
Plaintiff’s Motion for Habeas Corpus/Trust Account Entry
Statement (Dkt. No. 120)
On August 10, 2022, the court received from the plaintiff a document
titled “motion for habeas corpus/trust account entry statement in case nos. 19cv-1318, 21-cv-1176, and 22-cv-853.” Dkt. No. 120. The motion says that the
plaintiff needs the protection of habeas corpus to prevent PO holds by
“defendant Dorian A. Higgins4 over judges’ and Magistrates’ summons and
orders.” Id. The plaintiff says that “this” prevents him from “the orders made by
District 7 United States Court of Appeals in Chicago.” Id. He says that someone
named Officer Johnston told him that he had to be in custody “for the
unavailable form.” Id. He indicates that he is attaching the city attorney’s
request for impartial findings of fact, citing a Wisconsin statute, and mentions
warrants and probation holds to “halt judges’/Magistrates’ scheduling of
There is no defendant named Dorian A. Higgins in this case.
criminal and civil cases;” he says he needs access to PACER at the federal
courthouse. Id. The plaintiff attached a February 15, 2022 letter addressed to
him from the Office of the City Attorney in Racine, Wisconsin, in which the City
Attorney said that he had no body camera footage for incident numbers 1812668, 18-12693 and 18-12690. Dkt. No. 120-1.
The plaintiff likely intended to file this motion in Case No. 22-cv-853 in
response to the deputy clerk’s request for a certified copy of his institutional
trust account statement. Case No. 22-cv-853, Dkt. Nos. 3, 6. The court denied
the motion in that case because the plaintiff had not demonstrated that the
Milwaukee County Jail had refused to provide the plaintiff with a trust account
statement and because it was his responsibility to either provide the court with
his trust account statement or provide proof that he was unable to do so. Case
No. 22-cv-853, Dkt. No. 13 at 2. Because the motion has nothing to do with
this case, the court will deny it.
Plaintiff’s Request to Amend Scheduling Order to Include Jury
Selection & Trial Date (Dkt. No. 122)
On August 24, 2022, the court received from the plaintiff a document
titled “Request to amend scheduling order to include jury selection & trial
date.” Dkt. No. 122. The only portion of this document that appears to relate to
scheduling is his statement that he “would need the court to set from
indefinate to consitutionally sound time as I face more time due to my faith in
GOD and stance of human rights against those acting in the color of law.” Id.
Otherwise, the document discusses conversion of docket entries, the plaintiff
not having his wallet, the cost of commissary items and the fact that Aramark
will not provide the plaintiff a statement. Id.
All the deadlines the court set in the September 2021 scheduling order
have passed, so if the plaintiff is seeking extension of those deadlines, he made
his request too late. If he is asking the court to schedule a trial date, the court
already has indicated that the plaintiff is not entitled to a trial because there
are no genuine disputes as to issues of material fact and the defendants are
entitled to judgment as a matter of law. The court will deny the motion.
Plaintiff’s Motion of Consolidation (Per to Civil Local Rules #42) of
Cases 19cv1318/21cv1176/22cv853 (Dkt. No. 124)
On September 14, 2022, the court received from the plaintiff a document
titled “Motion of consolidation (Per to civil local rules #42) of cases
19cv1318/21cv1176/22cv853.” Dkt. No. 124. This motion states:
With yet another stolen wallet by those acting under the color of law
and organized by the defendants in order to hinder my
consititutional rights/ability to appear at court, I require to use
exhibits of the lowest case number for more civil rights infringement
thats currently resulted in my enslavement by those that deny GOD
and Jesus Christ as our Lord/Savior. As I maintain my please of ‘not
guilty’ of misdemeanors, the force revocation/holds over my felony
bond will result into violation of parole from forced probation to
move me to Racine County Jail instead of giving me the chance to
beat 22cf2139 fairly, and speedy as pro se as protected (assumed)
by the US Constitution. My accuser of the revocation is preventing
me from linking Milwaukee Office of Violence Prevention laundering
to “black isrealites” via “baba” of #414life as shown and recorded by
my social media to be published by conservative media like Fox 6,
Africa American Round Table, etc. Please enter all exhibits and send
docket summarys. Almost killed by defendants on 8/5/22 via auto
accident. One nation under GOD.
The plaintiff attached to this document a notice from the State of
Wisconsin Division of Hearings and Appeals of a revocation hearing scheduled
for October 4, 2022, dkt. no. 124-1 at 2, a revocation hearing request, dkt. no.
124-1 at 3, an inmate property receipt, dkt. no. 124-1 at 4, and a waiver of
final revocation hearing, dkt. no. 124-1 at 5-6.
The court has dismissed Case Nos. 21-cv-1176 and 22-cv-853 and is
dismissing this case. There are no longer any cases for the court to consolidate.
The state revocation hearing is not related to this case. The court will deny the
motion as moot.
Plaintiff’s Request for Federal Intervention (Dkt. No. 127)
On October 11, 2022, the court received from the plaintiff a “request for
federal intervention” in Case Nos. 19-cv-1318, 21-cv-1176, and 22-cv-853. Dkt.
No. 127. The plaintiff writes:
Included are infomation of the unlisted revocation/sentencing case
#090522-557258 to prevent me from proceeding effectively nor
working/schooling via gaslighting and threats made of killing my
mother with gang raping of Aisa Barry by those acting under the
color of law as currently enslaved by the defendants of these suits.
Please conduct or close these suit for I can proceed with action as
pledged, ‘to the republic from which it stands, one nation under
Id. The plaintiff attached to this document a blank waiver form from the
Milwaukee County Sheriff’s Department for a person to sign if he wants
to waive Huber/GPS privileges and remain in the 3D Occupant Worker
Program at the Milwaukee County Jail to work time off his sentence,
along with a Wisconsin Department of Corrections custody credit form.
Dkt. No. 127-1.
Although it is not clear, it appears that the plaintiff is asking this
federal court to intervene in a state criminal matter. (He may have been
making that request in some of his earlier filings as well.) The court
cannot grant that request. “[Younger v. Harris, 401 U.S. 37 (1971)]
generally requires federal courts to abstain from taking jurisdiction over
federal constitutional claims hat involve or call into question ongoing
state proceedings.” FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595 (7th
Cir. 2007). “‘The rule in Younger v. Harris is designed to permit state
courts to try state cases free from interference by federal courts.’” Id.
(quoting Forty One News, Inc. v. Cty. of Lake, 491 F.3d 662, 665 (7th Cir.
2007)). This federal court cannot interfere with the ongoing revocation
proceedings in state court. The court will deny the motion.
The court GRANTS defendants’ motion for summary judgment. Dkt. No.
The court DENIES the plaintiff’s dispositive motion. Dkt. No. 105.
The court DENIES the plaintiff’s right to trial hearing request. Dkt. No.
The court DENIES the plaintiff’s motion for trial as scheduled. Dkt. No.
The court DENIES the plaintiff’s notice of detainment. Dkt. No. 117.
The court DENIES the plaintiff’s motion for habeas corpus/trust account
entry statement. Dkt. No. 120.
The court DENIES the plaintiff’s request to amend scheduling order to
include jury selection & trial date. Dkt. No. 122.
The court DENIES AS MOOT the plaintiff’s motion of consolidation (per
to civil local rules #42) of cases 19cv1318/21cv1176/22cv853. Dkt. No. 124.
The court DENIES the plaintiff’s request for federal intervention. Dkt. No.
The court ORDERS that this case is DISMISSED. The clerk will enter
Dated in Milwaukee, Wisconsin this 18th day of November, 2022.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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