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Bland v. Esqueda

United States District Court, E.D. Wisconsin

September 30, 2016

ALLEN BLAND, Plaintiff,
v.
OFFICER JOSEPH ESQUEDA, OFFICER ERIN ILLEMAN, OFFICER SCHEURING, OFFICER SOMMER, and CITY OF MILWAUKEE, Defendants.

          DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 52) AND DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDG

         Plaintiff 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.

         I. FACTS

         The 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.

         A. Confidential Informant

         At all 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.

         The 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. at ¶11.

         The 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. Id.

         “Big 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.

         B. Plaintiff's Arrest

         On July 5, 2010[1], 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.

         The 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.

         Based 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.

         At 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 ¶31.

         When 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.

         In full 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.

         When 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.

         Scheuring 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 ...


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