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Schwab v. Milwaukee Police Dept.

United States District Court, E.D. Wisconsin

September 15, 2016

NAYTHAN ANDREW SCHWAB, Plaintiff,
v.
MILWAUKEE POLICE DEPT., SEAN McCORD, SCOTT CHARLES, MICHAEL LEES, and SCOTT RANDOW, Defendants.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge United States District Court

         Plaintiff Naythan Andrew Schwab, proceeding pro se, brought this 42 U.S.C. § 1983 civil rights action against the above-named law enforcement defendants, alleging violations of constitutional rights relating to his arrest for disorderly conduct. Schwab claims he was subjected to excessive force during his arrest in violation of the Fourth Amendment. The Court has jurisdiction under 28 U.S.C. § 1331. This case is now before the Court on Defendants' motion for summary judgment. (ECF No. 55.) For the reasons that follow, summary judgment will be granted in favor of the Milwaukee Police Department, Scott Charles, and Scott Randow. Summary judgment will be denied for Sean McCord and Michael Lees.

         BACKGROUND

         In the early morning hours of May 31, 2009, Officers Sean McCord and Michael Lees of the Milwaukee Police Department were on patrol near Walter Street in Milwaukee. McCord and Lees observed an individual, later identified as Naythan Andrew Schwab, in an argument with a security guard from a local tavern. The argument between Schwab and the security guard took place in the middle of East Michigan Avenue and was obstructing traffic. Schwab admits he was yelling at the guard, but denies that he ever hit anyone. (ECF No. 76-1, 5-8.)

         The parties dispute what happened after the initial confrontation, but for purposes of deciding the defendants' motion for summary judgment, the court must accept the plaintiff's version. Fed.R.Civ.P. 56(a); McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016). This is because resolving factual disputes is the job of the jury, not the judge. Viewing the evidence in the light most favorable to the plaintiff, Schwab ran away from the hostile security guards and stopped when he realized that uniformed Milwaukee police officers were also pursing him. (ECF No. 68, ¶ 8.) Schwab was tackled by the first security guard to reach him. McCord positioned himself on Schwab's back in order to better restrain him. Lees observed the security guard punch Schwab at least once. (ECF No. 78-7, 3.) Schwab alleges, as does an eyewitness, that the officers punched and kicked Schwab while he was on the ground. (ECF No. 68, ¶ 10; ECF No. 66-1.) When Schwab was on the ground, he repeatedly yelled “I am not resisting!” (ECF No. 68, ¶ 11; ECF No. 66-1.) Schwab was handcuffed while still face down on the concrete and thrown in the police van (ECF No. 68, ¶ 13.) There were visible scrapes on Schwab's face when he was placed into the van. (ECF No. 78-6, 3.) McCord used his foot to push Schwab's legs into the van and instructed other officers to place a spit mask on Schwab. (Id.) Schwab alleges that he was choking on his own blood and the officers did not provide any assistance. (ECF No. 68, ¶ 16.)

         At the criminal justice facility, Schwab was unable to walk and the officers were forced to use a wheelchair to move him. Schwab requested multiple times-without success-for his handcuffs or shackles to be loosened. Schwab claims that when McCord examined the handcuffs, he intentionally tightened both of them. (ECF No. 68, ¶ 26.) The officers returned Schwab back to the van and Lees monitored Schwab for about an hour. When Schwab would not move his leg out of the path of the police van's door, Lees closed the door on Schwab's leg using “a good amount of force, using about 80% of his weight.” (ECF No. 78-7, 4.) Lees continued to use that force on Schwab's legs for about a minute until he no longer felt resistance from Schwab. (Id.) Despite his repeated requests, Schwab claims that he was never provided any medical assistance or seen by a nurse. (ECF No. 68, ¶ 28.)

         On June 10, 2009, Schwab filed a citizen complaint report with the Milwaukee Police Department, alleging that he had been subject to excessive force on May 31, 2009. (ECF No. 78-2.) The Professional Performance Division/Special Investigation Section of the Milwaukee Police Department conducted an investigation into Schwab's complaint and came to the conclusion that it was unfounded on November 5, 2009. (ECF No. 78-3.) Schwab ultimately pled guilty to disorderly conduct on January 28, 2011. During the guilty plea hearing, Schwab characterized his actions on May 31, 2009 as I was

being loud and confrontational with the security guard. I was swearing and causing a scene. People stopped heading to their vehicle and formed a circle. I became boisterous and provoked an altercation. I involved myself in violent, obnoxious, distasteful behavior. . . . I had -- I approached the guard, and I became threatening; and I said some things that I shouldn't have said that were violent towards the security guards. . . . I threatened to -- to use my fists to solve the problem when I should have solved it a different way. . . . I approached the guards, and I was ready to fight; and I let them know I was ready to fight. And I was -- I became threatening, and my intentions were to have an altercation. . . . I got in -- I got in the guard's face, and I said whoever did this, we can fight right now; and I became threatening; and I did everything except for put my hands on the -- on the guard. I was in his face. I was threatening. I was angry. My actions were violent.

(ECF No. 76-1, 5-8.) Schwab thereafter commenced this action against several of the officers involved in his arrest, along with the Milwaukee Police Department. The Defendants now move for summary judgment on the ground that the undisputed material facts establish that they are entitled to judgment as a matter of law.

         ANALYSIS

         A. Summary Judgment Standard

         Summary judgment is proper “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.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D. Wis.1991). “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. In deciding a motion for summary judgment, the court will view the facts in the light most favorable to the non-moving parties. Crull v. Sunderman, 384 F.3d 453, 460 (7th Cir. 2004).

         B. Schwab and Braboy's Affidavits

         As an initial matter, Defendants argue that the Court should disregard the affidavits of both Naythan Schwab and Jameel Braboy. Specifically, they argue that Schwab's affidavit should be considered sham for conflicting with his prior sworn statements given at his guilty plea hearing for disorderly conduct. Defendants also argue that Braboy's affidavit should be ...


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