United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 52) AND DISMISSING
PAMELA PEPPER UNITED STATES DISTRICT JUDG
Allen Bland was a state prisoner when he filed this case. On
October 16, 2014, the court entered an order allowing him to
proceed on Fourth Amendment claims for unlawful arrest and
excessive force arising out of his arrest in 2010. Dkt. No. 7
at 2. On December 14, 2015, the defendants filed a motion for
summary judgment, Dkt. No. 52, which now is fully briefed.
For the reasons stated below, the court grants the
defendants' motion for summary judgment.
court takes the facts primarily from the
“Defendants' Proposed Findings of Fact, ”
which the plaintiff did not dispute. Dkt. No. 54. Instead of
responding to each proposed finding of fact, the plaintiff
filed a sworn document entitled “Plaintiff's
Affidavit In Opposition To Defendant's Declarations and
Proposed Finding of Fact, ” which contains very few
factual allegations relevant to the plaintiff's unlawful
arrest and excessive force claims. Dkt. No. 59. The court
also reviewed the “Plaintiff's Opposition to
Defendant's Motion for Summary Judgment and Brief in
Support, ” Dkt. No. 58, and the Plaintiff's Amended
Complaint, Dkt. No. 6, both of which are sworn. The court
will set forth the plaintiff's relevant facts below.
times relevant to this case, Timothy Graham was a Detective
employed by the Milwaukee Police Department. Dkt. No. 54,
¶1. On July 3, 2010, as part of an investigation into
heroin distribution, Graham arrested a known heroin dealer
from whom Graham had performed controlled purchases of
heroin. Id. at ¶¶2-3. The individual
Graham arrested subsequently became a confidential informant,
and told Graham that he had the ability to purchase heroin
from a “big player” in Chicago who went by the
name “Big Baby.” Id. at ¶¶5-7.
confidential informant described “Big Baby” as a
shorter, African-American male, with a stockier build and a
medium complexion. Id. at ¶8. The confidential
informant told Graham that he purchased heroin from
“Big Baby” just a week or two before his arrest.
Id. at ¶9. The confidential informant told
Graham that “Big Baby” usually traveled as a
passenger, with a second individual acting as driver.
Id. at ¶10. The last time the confidential
informant met with “Big Baby, ” “Big
Baby” arrived in a blue Chevrolet Impala. Id.
confidential informant described a typical drug purchase from
“Big Baby.” Id. at ¶¶12-16. A
drug purchase from “Big Baby” began over the
phone, sometimes with “Big Baby” contacting the
purchaser and sometimes with the purchaser contacting
“Big Baby.” Id. at ¶12. “Big
Baby” would not discuss drug transactions over the
phone. Id. at ¶13. Instead, he would agree to
meet on a certain date and would bring a large quantity of
heroin to the prearranged meeting to allow the purchaser to
buy however much the purchaser wanted. Id.
“Big Baby” would call the purchaser when he was
leaving Chicago and again when he exited the freeway in
Milwaukee. Id. at ¶14. Only then would
“Big Baby” tell the purchaser where to meet.
Baby” used codes to inform purchasers where to meet.
Id. at ¶15. For example, if “Big
Baby” told a purchaser he was “going for gas,
” it meant that “Big Baby” wanted to meet
at a specific gas station. Id. If “Big
Baby” told a purchaser he was “going for food,
” it meant that Big Baby wanted to meet at a specific
restaurant location. Id. The confidential informant
said the code “going for gas” meant to meet at a
Citgo gas station located at 58th and Center Streets in
Milwaukee, WI, and the code “going for food”
meant to meet at Robert's Frozen Custard located on 60th
Avenue in Milwaukee, WI. Id. at ¶16.
5, 2010, with Graham present, the confidential
informant placed a call to a Chicago area number that the
confidential informant identified as “Big
Baby's” phone number. Id. at ¶17.
During that call, the voice on the other end of the line
(identified as “Big Baby”) indicated that he
would meet with the confidential informant in Milwaukee that
evening. Id. at ¶18. Later that evening, the
confidential informant placed another call to the same
number; “Big Baby” said that he could not make it
that evening but that he would come to Milwaukee the
following day. Id. at ¶19. Graham did not
consider the delay unusual, because inter-state drug deals
often take several days between the first call and the day of
the actual transaction. Id. at ¶20.
next day, July 6, 2010, the confidential informant and
“Big Baby” traded a number of calls which
ultimately resulted in “Big Baby” telling the
confidential informant he would be in Milwaukee that evening.
Id. at ¶21. At approximately 5:00 p.m.,
“Big Baby” contacted the confidential informant
to tell him that he was leaving Chicago for Milwaukee.
Id. at ¶22. At approximately 6:48 p.m.,
“Big Baby” called the confidential informant to
tell him that he was getting off the freeway in Milwaukee and
that he was “going to get something to eat.”
Id. at ¶23.
on what the confidential informant had previously told Graham
about the codes “Big Baby” used, this meant that
“Big Baby” would be going to Robert's Frozen
Custard. Id. at ¶24. Graham immediately
traveled to Robert's Frozen Custard with the confidential
informant and set up surveillance. Id. at
¶¶25-26. Graham also radioed and asked for four
City of Milwaukee police officers to be in the area of
Robert's Frozen Custard. Id. at ¶27.
approximately 7:00 p.m., a blue Chevrolet Impala parked in
the lot of Robert's Frozen Custard. Id. at
¶28. Two African-American males exited the vehicle and
went into Robert's Frozen Custard, and the passenger
matched the confidential informant's description of
“Big Baby.” Id. at ¶¶29-30.
The confidential informant also visually confirmed that the
man who had exited the passenger door of the Impala was
“Big Baby.” Id. at ¶30. The man the
confidential informant identified as “Big Baby”
is the plaintiff in this case, Allen Bland. Id. at
the two men exited the store and sat at an outside table to
eat, Graham contacted the nearby police officers (Illeman,
Esqueda, Sommer, and Scheuring) and asked them to approach
the plaintiff and ultimately arrest him. Id. at
¶¶32-33. Graham had previously informed Illeman,
Esqueda, Sommer, and Scheuring what he had learned during the
course of his investigation. Id. at ¶34.
uniform, Illeman, Esqueda, Sommer, and Scheuring walked over
to where plaintiff and the other suspect were eating.
Id. at ¶35. Illeman and Esqueda approached the
plaintiff while Sommer and Scheuring approached the second
individual. Id. at ¶36. Illeman, Esqueda,
Sommer, and Scheuring identified themselves as police
officers and told the plaintiff and the other individual that
they were under arrest. Id. at ¶¶37-38.
Illeman and Esqueda approached the plaintiff, he stood up
from the picnic table where he was seated and took one step
away from the table into the parking lot. Id. at
¶39. The plaintiff then “bladed” himself to
the officers, which means he turned his body partially away
from the officers in a defensive posture. Id. at
¶40. Based on his training and experience, Illeman
interpreted this posture to mean that the plaintiff was
either going to flee or fight the officers. Id. at
¶41. Illeman grabbed the plaintiff's arm to restrain
him from fleeing the area. Id. at ¶42. In
response, the plaintiff began swinging his arm in an effort
to break Illeman's grip. Id. at ¶43.
Esqueda then grabbed the plaintiff's right arm in an
effort to assist Illeman. Id. at ¶44. The
plaintiff gripped the arms of Illeman and Esqueda and began
swinging his arms and twisting the officers in an attempt to
break free. Id. at ¶45. The plaintiff pushed
the officers and attempted to pull away from their grasp.
Id. at ¶46. Illeman and Esqueda held on to the
plaintiff in an attempt to control him and prevent him from
fleeing. Id. at ¶47. The plaintiff continued to
actively resist and attempt to pull away from the officers.
Id. at ¶50.
became concerned that Illeman and Esqueda were at risk of
physical harm and that the plaintiff might escape custody.
Id. at ¶51. Because Illeman and Esqueda were
unable to subdue the plaintiff, Scheuring approached the
plaintiff from the front and began ordering the plaintiff to
“stop resisting, ” or words to that effect.
Id. at ¶52. Then, because the plaintiff
continued to actively resist Illeman and Esqueda and refused
to comply with commands to stop resisting, Scheuring
delivered a single knee strike to the plaintiff's front
abdominal area. Id. at ...