United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT WITH RESPECT TO MONELL CLAIMS
AGAINST THE CITY OF KENOSHA (DKT. NO. 19)
PAMELA PEPPER United States District Judge.
Mark Arnold filed a complaint against the City of Kenosha and
three of its police officers, one of whom was dismissed by
stipulation. Dkt. No. 14. The plaintiff alleged federal
causes of action arising under 42 U.S.C. §1983 for false
arrest (Count I), excessive force (Count II), unlawful search
and seizure (Count III), a claim against the City of Kenosha
under Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978) (Count IV), and state law causes of action for
respondeat superior and indemnification (Count V),
and assault and battery (Count VI). Dkt. No. 1.
City of Kenosha moved for summary judgment as to the
plaintiff’s Monell claim against the
City.Dkt. No. 19. The plaintiff did not respond
to that motion within the thirty days mandated by Civil Local
Rule 56. The court issued an order, warning the plaintiff
that if he did not file a response by January 31, 2017, the
court would decide the City’s motion without the
plaintiff’s input. Dkt. No. 22. January 31, 2017 has
come and gone without any response from the plaintiff.
court will grant the City of Kenosha’s motion, because
(1) the record evidence establishes that the plaintiff cannot
show that the City of Kenosha could be held liable to the
plaintiff under Monell; and (2) the plaintiff
abandoned this claim by failing to respond to the
City’s arguments in support of its motion for summary
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of a domestic dispute involving the plaintiff
and his wife, Angela Letona. On July 20, 2012, Ms. Letona,
called 911, seeking police assistance because the plaintiff
had locked her out of what had been their home in Kenosha,
Wisconsin. Dkt. No. 20-2, at 10. The plaintiff testified in
his deposition that, about a month or so earlier, his wife
had moved out of the home and left behind much of her
clothing and personal belongings. Id. at 4.
According to Ms. Letona, she and the plaintiff had agreed
that Ms. Letona would visit the home on July 20 to attend to
her personal affairs. Id. at 5, 9. The plaintiff
testified that, after Ms. Letona asked the plaintiff for a
key to the home, he became “apprehensive” and
began to “fear for [his] safety. Id. at 6. The
plaintiff then locked Ms. Letona out of the house and left in
his van. Id. After the plaintiff had left, Ms.
Letona called the police. Id. at 10.
Police Officer Nichols was dispatched to the home; Ms. Letona
met Officer Nichols there. Id. at 15-16. She told
Officer Nichols that her husband had locked her out of the
house and driven away. Id. According to Ms. Letona,
she wanted to enter the home to retrieve her possessions.
Id. Officer Nichols then contacted Officers Anschutz
and Thomas Groth and asked them to look for the
plaintiff’s van, and if they found the plaintiff, to
ask if he would return to the couple’s home.
Id. at 16.
Anschutz and Groth found the plaintiff, and convinced him to
return to his home. Id. at 12-13. After discussing
the situation with the officers, the plaintiff agreed to
bring his wife’s clothing to the front porch; the
officers and Ms. Letona remained outside. Id. at 7.
According to the plaintiff, after he brought several armloads
of his wife’s shoes and clothing to the front porch,
the officers entered the home and a fight occurred between
the plaintiff and the officers. Dkt. No. 1,
factual allegations in the plaintiff’s complaint arise
out of the events at his home on July 20, 2012. The plaintiff
alleges that the individual defendants entered his home
without permission or a warrant, and that they physically
assaulted him while in the house with no provocation. Dkt.
No. 1 at ¶¶24-38. In their answer, the defendants
dispute the plaintiff’s account of the events at his
home. Dkt. No. 9, ¶¶14-42. During discovery, the
parties filed a stipulation dismissing the plaintiff’s
claims against Officer Groth. Dkt. No. 14. The defendants now
have moved for summary judgment as to the plaintiff’s
Monell claim against the City.
STANDARD OF REVIEW
must grant summary judgment “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(a). A genuine issue of material fact
exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In evaluating summary judgment motions, courts must
view the facts and draw reasonable inferences in the light
most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). The court may not
weigh conflicting evidence or make credibility
determinations, Omnicare, Inc. v. United Health Grp.,
Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must
consider only evidence that can “be presented in a form
that would be admissible in evidence,” Fed. R. Civ. P.
party seeking summary judgment has the initial burden of
showing that there is no genuine dispute and that it is
entitled to judgment as a matter of law. Carmichael v.
Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the moving party meets this burden, the party
opposing the motion must then “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256. A plaintiff abandons a
claim by failing to respond to arguments on that claim in a
defendant’s motion for summary judgment. Bombard v.
Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 n.2 (7th
municipality cannot be held vicariously liable under
§1983 based on an individual officer’s liability.
Monell, 436 U.S. at 691. Instead, a plaintiff may
sue a municipality directly under §1983 only if
“the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance,
regulation, or decision officially adopted or promulgated by
that body’s officers.” Id. 436 U.S. at
690. To succeed in recovering against the City, the plaintiff
is required to show that he “(1) suffered a deprivation
of a federal right; (2) as a result of either an express
municipal policy, widespread custom, or deliberate act of a
decision-maker with final policy-making authority for the
City; which (3) was the proximate cause of his injury.”
King v. Kramer, 763 F.3d 635, 649 (7th Cir. 2014)
(quoting Ienco v. City of Chicago, 286 F.3d 994, 998
(7th Cir. 2002)). Liability under Monell “is
not founded on a theory of vicarious liability or
respondeat superior that holds a municipality
responsible for the misdeeds of its employees. Rather, a
municipal policy or practice must be the ‘direct
cause’ or ‘moving force’ behind the
constitutional violation.” Woodward v. Corr. Med.
Servs. Of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004)
(internal citations omitted). It is only “when
execution of a government’s policy or custom inflicts
the injury that the government as an entity is responsible
under § 1983.” Id. (internal quotation
marks and alteration omitted) (citation omitted).
existence of a policy or custom can be established in a
number of ways: the plaintiff may point to an express
municipal policy responsible for the alleged constitutional
injury, or demonstrate that there is a practice that is so
widespread that it rises to the level of a custom that can
fairly be attributed to the municipality.”