United States District Court, E.D. Wisconsin
MARCOS L. PANTOJA, Plaintiff,
GLEN HAASE, JASON BARANEK, and MILWAUKEE COUNTY, Defendants.
DECISION AND ORDER
ADELMAN, DISTRICT JUDGE
L. Pantoja, a Wisconsin state prisoner who is representing
himself, filed a civil rights action under 42 U.S.C. §
1983, alleging that defendants violated his Fourth Amendment
rights following his warrantless arrest. ECF No. 12. I
screened the complaint pursuant to 28 U.S.C. § 1915A and
allowed plaintiff to proceed with two claims: (1) that two
police officers, Glen Haase and Jason Baranek, failed to
provide plaintiff with a prompt probable cause determination
following his warrantless arrest and (2) that Milwaukee
County had a widespread custom or policy of denying indigent
individuals the right to a prompt probable cause
determination following warrantless arrests. ECF No. 14.
September 15, 2016, defendants moved for summary judgment.
ECF Nos. 38 & 43. Plaintiff did not file a response to
either motion. Instead, he filed a letter that included
“evidence” that he wanted me to consider in
arriving at my decision. ECF No. 48. Defendants filed their
replies on October 25, 2016. ECF Nos. 49 & 51. For the
reasons discussed below, I will grant defendants' motions
for summary judgment and dismiss the case.
the following facts from defendants' joint proposed
findings of fact (ECF No. 40) and plaintiff's sworn
amended complaint (ECF No. 12), which I construe as an
affidavit at the summary judgment stage. Ford v.
Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996).
Defendants' joint proposed findings of fact are deemed
admitted solely for the purpose of deciding summary judgment
because plaintiff has not disputed them. Civ. L. R. 56(b)(4).
is an inmate who is confined at the Stanley Correctional
Institution. ECF No. 40, ¶ 1. Defendants are City of
Cudahy police officer Glen Haase, City of Oak Creek police
officer Jason Baranek, and Milwaukee County. Id.
January 21, 2014, officers executed a search warrant at
plaintiff's residence in Milwaukee and found nine grams
of heroin, pills, marijuana, cash, and a gun. Id.
¶¶ 4-5. Haase and Baranek arrested plaintiff and
took him to the Cudahy police station. Id.
¶¶ 6-7. At the police station, an officer read
plaintiff his constitutional rights. Id. ¶ 7.
Plaintiff signed a document entitled “Cudahy Police
Constitutional Rights and Waiver” and agreed to answer
questions and make a statement. Id. ¶ 8. Two
days later, on January 23, plaintiff was released without
charges. Id. ¶ 12-13.
February 24, 2014, Keith Villwock of the Milwaukee County
Sheriff's Department arrested plaintiff for being a felon
in possession of a firearm. Id. ¶ 15. Villwock
provided a probable cause statement that day. Id.
¶ 20. Court Commissioner Katharine F. Kucharski made a
probable cause determination the next day. Id.
¶ 20. Plaintiff was charged with and pled guilty to one
count of being a felon in possession of a firearm.
Id. ¶ 21. He was separately charged with and
pled guilty to two counts resulting from the January 21
search of his residence and his arrest that day, one for
possession of heroin with intent to deliver and one for being
a felon in possession of a firearm. Id.
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). To survive a
motion for summary judgment, 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). For the
purposes of deciding this motion, I resolve all factual
disputes and make all reasonable factual inferences in favor
of the non-moving party. Springer v. Durflinger, 518
F.3d 479, 483-84 (7th Cir. 2008).
Fourth Amendment requires a timely judicial determination of
probable cause as a prerequisite to extended restraint of
liberty following a warrantless arrest. Gerstein v.
Pugh, 420 U.S. 103, 114 (1975). A probable cause
determination made within 48 hours of arrest is presumptively
“prompt.” County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991). After 48 hours, the
burden shifts to the government to demonstrate the existence
of a bona fide emergency or other extraordinary circumstance
to justify the delay. Id. at 57.
amended complaint implies that Haase and Baranek arrested
plaintiff without a warrant on January 21, 2014 and held him
in custody for 36 days without a probable cause
determination. Am. Compl., ECF No. 12, at 2. However, during
his deposition, plaintiff stated that he was not held for 36
days but instead was arrested two separate times, on January
21 and then on February 24, over a roughly 34-day period.
Pantoja Dep., ECF No. 41-2, at 41:11-:21.
has not provided any evidence that would allow a jury to find
that he was held for longer than 48 hours without a probable
cause determination after either arrest. First, Haase and
Baranek arrested plaintiff without a warrant at 6:00 a.m. on
January 21, 2014. ECF No. 1-1. Two days later, he was
released from custody. Pantoja Dep., ECF No. 41-2, at 26:21.
Defendants argue that plaintiff was held for less than 48
hours. Defs.' Mem., ECF No. 39, at 3-4. They provide no
evidence as to the time of day on January 23 that he was
released (if he was released after 6:00 a.m., then he was
held for more than 48 hours), but plaintiff has not
meaningfully responded to ...