Dunn, Phillip v. Levine, Elliott et al
Filing
109
ORDER denying 101 Motion for New Trial; denying 102 Motion for Recusal. Signed by District Judge William M. Conley on 09/30/2017. (mfh),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PHILLIP S. DUNN,
OPINION and ORDER
Plaintiff,
15-cv-430-wmc
v.
RON SECORD, DAN ULRICH
and NATHAN POKE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Phillip Dunn brought this lawsuit under 42 U.S.C. § 1983,
asserting claims against various public officials and the City of La Crosse, Wisconsin. At
different stages of the case, the court dismissed most of these claims as a matter of law,
but the court permitted plaintiff to submit to a jury his claim that defendants Ron
Secord, Dan Ulrich and Nathan Poke (all officers for the La Crosse Police Department)
violated his Fourth Amendment rights by entering his locked bedroom without a warrant.
Ultimately, the jury found in defendants’ favor (dkt. #88) and the court entered
judgment in accordance with that verdict. (Dkt. #94.) Plaintiff subsequently moved for
a new trial (dkt. #101) and for the court’s recusal (dkt. #102). For the reasons discussed
below, the court will now deny both motions.
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BACKGROUND
The claim the jury considered arose out of a response to a tip from a local resident
of possible drug activity at 1929 Victory Street in La Crosse, Wisconsin. Defendants
Secord, Ulrich and Poke went to the residence to investigate. After they arrived on the
scene, a tenant at the residence, John Addis, allowed defendants to enter the home
without a warrant. After speaking with Addis and looking around the common areas of
the house, defendants kicked down a locked bedroom door. Defendants found plaintiff
inside the room and arrested him for drug possession. The question at trial was whether
defendants were justified in entering the bedroom without a warrant.1
OPINION
I. Motion for Recusal
Plaintiff asks the court to recuse itself under 28 U.S.C. § 455, which requires a federal
judge to “disqualify himself in any proceeding in which his impartiality might reasonably
be questioned,” § 455(a), or if he “has a personal bias or prejudice concerning a party,”
§ 455(b). Plaintiff supports his motion with declarations from himself and a relative who
reports attending the trial. (Dkt. ##101, 102.)
Most of plaintiff’s grounds for recusal relate to rulings by the court during the
course of the trial. As an initial matter, plaintiff (perhaps understandably) overlooks
significant rulings that went in his favor, such as the denial of part of defendants’ motion
Given the narrow issues presented by plaintiff’s motions, the court addresses the underlying
facts as they become relevant to the opinion below.
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for judgment as a matter of law and the decision over defendants’ objection to instruct
the jury that a tenant at the residence, John Addis, had not given his consent to enter the
bedroom where plaintiff was located. Instead, plaintiff seems to be objecting primarily to
a ruling related to the “protective sweep” doctrine, which the court will discuss in the
next section. In any event, adverse rulings generally are not grounds for seeking recusal,
Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 2009), and plaintiff fails to identify any
extraordinary circumstances in this case suggesting that any of the court’s rulings show
bias against him, nor am I aware of any.
Plaintiff’s only other ground for recusal is a comment made by the court at the
conclusion of the trial, after the jury returned its verdict and was excused from the
courtroom. In particular, the court acknowledged the difficult and dangerous work that
police officers do and mentioned an incident in which a high school friend (not a relative,
as plaintiff says in his declaration) was killed when responding to a domestic dispute.
Plaintiff says that the comment shows “why the Judge would side with the defendants
rather than be impartial.” (Dunn Decl. ¶ 10, dkt. #104.) Plaintiff does not explain his
objection further, but the court sees two possible bases for the objection:
(1) the
experience of my friend would make it difficult for the court to be impartial; and (2)
regardless whether the court’s relationship with the friend would show bias, the court’s
statement does.
As an initial matter, plaintiff overlooks the context in which the court made the
statement. The court had already acknowledged that plaintiff raised legitimate questions
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as to whether defendants should have acted as they did.
It was only after those
statements that the court also acknowledged that it understood why defendants (and the
jury) adopted a different view.
In any event, the law is clear that a judge’s life experiences or relationships or
sympathetic statements are generally not grounds for recusal. Carlson v. Bukovic, 621 F.3d
610, 623 (7th Cir. 2010) (referring to defendant in civil rights case as “this poor cop”
during pretrial conference did not require recusal because it did “not display a deepseated favoritism or antagonism that would make fair judgment impossible”) (internal
quotations omitted); United States v. Mansoori, 304 F.3d 635, 667 (7th Cir. 2002)
(recusal not required in criminal drug case when judge’s daughter was dating agent in
Drug Enforcement Administration); Fero v. Kerby, 39 F.3d 1462, 1479 (10th Cir. 1994)
(recusal not required when judge’s brother-in-law could have benefitted financially from
particular outcome); United States v. Fisher, No. 11-40054-JAR, 2011 WL 4809806, at *4
(D. Kan. Oct. 11, 2011) (judge not required to recuse herself in drunk driving case even
though judge’s brother was killed by drunk driver); In re Disqualification of Farmer, 2014Ohio-2046, ¶ 2, 10 N.E.3d 718 (recusal not required when judge was “married to a
sergeant in the Alliance Police Department who is in a supervisory position over the
officers who made the arrest in this case and are listed as witnesses for the trial”); Com. v.
Urrutia, 653 A.2d 706, 710–11 (Pa. Sup. Ct. 1995) (recusal not required in stalking case
even though judge had been victim of stalking in the past).
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In Del Vecchio v. Illinois Dep't of Corr., 31 F.3d 1363, 1372 (7th Cir. 1994), the
court explained why a judge’s life experiences generally are not grounds for recusal:
In the real world, “possible temptations” to be biased abound. Judges are
human; like all humans, their outlooks are shaped by their lives'
experiences. It would be unrealistic to suppose that judges do not bring to
the bench those experiences and the attendant biases they may create. A
person could find something in the background of most judges which in
many cases would lead that person to conclude that the judge has a
“possible temptation” to be biased. But not all temptations are created
equal. We expect—even demand—that judges rise above these potential
biasing influences, and in most cases we presume judges do. . . [O]nly a
strong, direct interest in the outcome of a case is sufficient to overcome
that presumption of evenhandedness.
Thus, in Del Vecchio, 31 F.3d at 1675, the court concluded that a judge was not required
to recuse himself in a criminal case even though that judge had been the prosecutor in a
different case against the same defendant 14 years earlier.
Although likely of no comfort to this plaintiff, I can also assure plaintiff that the
experiences of my friend had no bearing on any rulings in the case. Indeed, even in high
school, he was not a particularly close friend; I saw him in passing perhaps a handful of
times in the two decades that followed, and it was years after our last encounter that a
close, mutual friend relayed what had befallen him. Still, Officer Michael Baribeau was a
good man, and I mourn his passing on December 19, 1995, while in the line of duty, and
think of him, as well as his family’s and his community’s loss, every time I pass the
Wisconsin Law Enforcement Memorial on the Capital square, which bears his name with
too many others. So, too, however, do I mourn the loss of innocent lives on either side of
the thin blue line, and believe that perspective enhances, rather than diminishes, my
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respect for all involved in situations like that befalling the plaintiff here, as well as my
resolve to give a fair hearing to all who come before me, very much including this
plaintiff. Moreover, the statements the court made after the jury returned its verdict in
this case simply represented an attempt to explain to both sides the reasons for the trial
and the reasons to respect the jury’s verdict.
II. Motion for a New Trial
Ironically enough, given the above, plaintiff does not directly challenge any of the
court’s rulings in his motion for a new trial. Instead, plaintiff claims he is entitled to a
new trial because the verdict is against the weight of the evidence. To prevail on such a
motion, a party must do more than show that the verdict is wrong. Whitehead v. Bond,
680 F.3d 919, 928-29 (7th Cir. 2012). Rather, he must show that no rational jury could
have rendered the verdict or that the verdict shocks the conscience. Plyler v. Whirlpool
Corp., 751 F.3d 509, 513 (7th Cir. 2014); Willis v. Lepine, 687 F.3d 826, 836-37 (7th
Cir. 2012). Plaintiff cannot meet that burden.
At trial, defendants relied primarily on a safety rationale to justify their entry into
plaintiff’s bedroom. Although plaintiff disputes some of defendants’ testimony, the court
must draw all reasonable inferences in favor of the jury’s verdict. Davis v. Wessel, 792
F.3d 793, 803 (7th Cir. 2015).
version of events.
Accordingly, the court accepts as true defendants’
In particular, defendants testified that they came to plaintiff’s
residence because of a tip about possible illegal drug use or distribution there. After
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plaintiff’s fellow tenant Addis gave defendants consent to enter their residence (but not
plaintiff’s locked bedroom), defendants observed illegal drugs in the common areas of the
home. When defendants asked Addis if anyone else was present, Addis became nervous
and brought defendant Ulrich into the bathroom; once there, Addis asked Police Officer
Ulrich to close the door and turn on the fan so no one else could hear them. Addis then
told the officer that two people were “hiding” in the bedroom. Addis did not say they
were co-tenants or otherwise identify who they were.
For his part, Officer Ulrich testified that in his experience, individuals who are
hiding when they know police are present generally are not doing so “for good reasons.”
As a result, the defendants knocked on the bedroom door, but no one responded. Under
these circumstances, the officers believed that the occupants of the bedroom may pose of
a safety threat.
The jury was required to answer a single question to determine liability:
“Has
plaintiff Phillip Dunn proven by a preponderance of the evidence that defendants Ron
Secord, Dan Ulrich and Nathan Poke were not justified in entering plaintiff's locked
bedroom without obtaining a search warrant?”
(Dkt. #88.)
The jury instructions
identified two grounds that could have provided the necessary justification:
[O]fficers do not need a warrant to enter a private room such as plaintiff
Dunn's locked bedroom if there are important reasons for entering the
room and there is insufficient time to obtain a search warrant from a judge.
One reason is that the officers had a reasonable belief that there were
"exigent circumstances" for entering the room. Exigent circumstances may
exist where there is a compelling need to act, without enough time to secure
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a warrant. Such circumstances may include preventing the destruction of
evidence or reasonable concerns for the safety of officers or others.
Another reason is called a "protective sweep." An officer may conduct a
protective sweep of the house if the officer has a reasonable belief that the
sweep is necessary to protect the officers from an ambush.
(Dkt. #86 at 3.)
In his four-page opening brief, plaintiff does not develop an argument that no
rational jury could have found defendants were justified in entering his room under either
the exigent circumstances doctrine or the protective sweep doctrine. Rather, he devotes
most of his brief to issues that the jury was not asked to consider. First, he says that
defendants acted “under color of law,” but that issue was undisputed at trial, so it was
not included on the special verdict form or the jury instructions. Second, he says that,
John Addis, his fellow tenant at the residence, did not give defendants consent to enter
the bedroom, but again the jury did not consider that issue. Indeed, the court instructed
the jury as a matter of law that “John Addis did not give defendants permission to enter
plaintiff Dunn's bedroom.” (Id. (emphasis added).)
In fairness, plaintiff does make conclusory assertions in his opening brief that
defendants’ entry was not justified under any exception to the warrant requirement, but
he does not discuss the actual evidence presented at trial or otherwise develop an
argument to support his assertions. On the contrary, plaintiff’s only support is a citation
to the court’s summary judgment opinion, but that opinion is not evidence, as the court
informed plaintiff in the pretrial order.
(Dkt. #58 at 6.)
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Accordingly, the court
concludes that plaintiff has failed to show that the jury’s verdict is against the manifest
weight of the evidence.
In his reply brief, plaintiff raises new arguments to support his motion, but he
does not explain why he failed to raise them in his opening brief. Narducci v. Moore, 572
F.3d 313, 324 (7th Cir. 2009) (“[T]he district court is entitled to find that an argument
raised for the first time in a reply brief is forfeited.”). Even if I consider these arguments,
however, he has not shown that he is entitled to a new trial. For example, plaintiff relies
primarily on testimony from defendant Ulrich that one of the occupants of the house
told him that someone named “PJ” was in the bedroom, and Ulrich knew (or at least
believed) that “PJ” was the plaintiff and should have known from his previous
interactions with plaintiff that he was not dangerous. Even if the jury accepted this logic,
plaintiff did not establish at trial the extent of his previous interactions with Ulrich.
Moreover, the fact that plaintiff had not used violence against Ulrich in the past would
not determine whether plaintiff posed a safety threat. As noted above, defendants did not
rely on a history of violence as a justification for entering the bedroom. Rather, they
relied on: Addis’s statement that plaintiff was hiding; Addis’s nervous behavior when
discussing plaintiff; the presence of drugs in the home; and plaintiff’s refusal to respond
to defendants’ knocking. Perhaps each of these factors in isolation would not be enough
to sustain the jury’s verdict. In combination, however, they are sufficient to show that
defendants had a reasonable belief that the occupants of the bedroom posed a threat to
the officers’ safety, as well as the safety of those civilians still around them.
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Alternatively, plaintiff challenges the jury instructions indirectly with an argument
that the court should not have allowed defendants to proceed with a theory under the
“protective sweep” doctrine. In particular, he points in his reply brief to a statement in
the court’s summary judgment opinion noting that the cases cited by defendants under
the protective sweep doctrine all involved searches incident to arrest and that defendants
had not arrested anyone at the time they entered the bedroom. (Pl. Reply Br. (dkt.
#106) at 3 (citing S.J. Op. (dkt. #57) at 12).) Plaintiff seems to be asserting that the
court held as a matter of law in its summary judgment opinion that defendants could not
proceed with a theory under the protective sweep doctrine. That is obviously incorrect.
Rather, Judge Crabb simply concluded defendants had not shown that they were entitled
to judgment as a matter of law (dkt. #57 at 12), so the issue would have to proceed to
trial.
Moreover, plaintiff did not move for summary judgment, so the court did not
consider whether he should prevail outright. Pourghoraishi v. Flying J, Inc., 449 F.3d 751,
765 (7th Cir. 2006) (“[A] court cannot sua sponte [on its own motion] enter summary
judgment . . . without notifying the parties of its intentions and allowing them an
opportunity to cure the defect in the complaint or to respond.”). Regardless, as it turns
out, the law is on defendants’ side, even if they failed to cite that law in their summary
judgment or post trial briefs. In United States v. Starnes, 741 F.3d 804 (7th Cir. 2013),
the court rejected the view that the protective sweep doctrine applies only when officers
are making an arrest:
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The philosophy behind a protective sweep . . . remains the same regardless
of how the officers arrived in the home. When officers enter the residence
of a criminal suspect and have reason to believe that a particular area might
harbor an individual . . . who poses a danger to the officers or others, the
Fourth Amendment permits a quick and limited protective sweep . . . Thus
the constitutionality of a protective sweep does not depend on whether that sweep is
incidental to a search warrant, an arrest warrant, or a consensual search. What
matters are the specific facts that would give a reasonable officer, who is
lawfully inside a home, a reasonable belief based on specific and articulable
facts which, taken together with the rational inferences from those facts,
reasonably warrant the officer in believing that the area swept harbored an
individual posing a danger to the officer or others.
Id. at 810 (emphasis added; internal quotations, citations and alterations omitted).
Accordingly, the court concludes that it was not error to allow defendants to proceed
under the protective sweep doctrine nor to instruct the jury on it.
ORDER
IT IS ORDERED that plaintiff Phillip Dunn’s motion for recusal (dkt. #102) and
motion for a new trial (dkt. #101) are DENIED.
Entered this 30th day of September, 2017.
BY THE COURT:
/s/
__________________________________________
WILLIAM M. CONLEY
District Judge
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