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Pantoja v. Haase

United States District Court, E.D. Wisconsin

December 2, 2016

MARCOS L. PANTOJA, Plaintiff,
v.
GLEN HAASE, JASON BARANEK, and MILWAUKEE COUNTY, Defendants.

          DECISION AND ORDER

          LYNN ADELMAN, DISTRICT JUDGE

         Marcos 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.

         On 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.

         I. BACKGROUND

         I take 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).

         Plaintiff 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. ¶ 2.

         On 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.

         On 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.

         II. DISCUSSION

         A party 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).

         A. Fourth Amendment

         The 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.

         Plaintiff's 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.

         Plaintiff 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 ...


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