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Barnes v. Brown County

United States District Court, E.D. Wisconsin

March 13, 2017

LAMON LAMAR BARNES, Plaintiff,
v.
BROWN COUNTY, BROWN COUNTY DRUG TASK FORCE, DAVE POTEAT, JEFF LADE, ZAK HOSCHBACH, MARK HACKETT, JOHN LAUX, GUY SHEPARDSON, INVESTIGATOR DERNBACH, VILLAGE OF ASHWAUBENON, CITY OF GREEN BAY, JUJUAN JONES, DTF INVESTIGATOR SCANLAN, MARY LYNN YOUNG, and BRAD BRODBECK, Defendants.

         DECISION AND ORDER GRANTING BROWN COUNTY DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT (DKT. NO. 226), GRANTING CITY OF GREEN BAY DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT (DKT. NO. 235), GRANTING VILLAGE OF ASHWAUBENON DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT (DKT. NO. 233/226), DISMISSING DEFENDANT JUJUAN JONES, AND DISMISSING CASE

          HON. PAMELA PEPPER United States District Judge.

         The plaintiff, Lamon Lamar Barnes, is a Wisconsin state prisoner representing himself. His lawsuit alleges that the defendants violated his rights under the United States Constitution and Wisconsin state law related to a criminal investigation conducted by a drug task force in Brown County, which resulted in his arrest and subsequent conviction on six counts of delivering cocaine. Dkt. No. 35. The defendants have moved for summary judgment. Dkt. No. 226, 235, 233. For the reasons explained in this order, the court grants the defendants' motions and dismisses this case.

         I. BACKGROUND

         A. The Complaints

         The plaintiff filed his original complaint on May 30, 2013. Dkt. No. 1. He named eleven defendants: Brown County, the Brown County Drug Task Force (DTF), Dave Poteat, John Laux, Mark Hackett, Brad Dernbach, Zak Hoschbach, Jeff Lade, Guy Shepardson, Jujuan Jones and Anthony Washington. Id. at 5-6. Two weeks later, he filed his first amended complaint. Dkt. No. 7. This complaint named the same eleven defendants, plus five John and Jane Doe defendants. Id. at 1. Several months later, on January 10, 2014, he filed a second amended complaint. Dkt. No. 21. This one named ten of the original defendants-this time, the plaintiff left out Anthony Washington-along with the five Doe defendants, but added the Village of Ashwaubenon and the City of Green Bay. Id. at 6.

         On March 5, 2014, the plaintiff filed a motion, asking leave to file a third amended complaint. Dkt. No. 34. Seven weeks later, Judge Rudolph T. Randa issued a screening order. Dkt. No. 35. In that order, he granted the plaintiff's motion to file a third amended complaint, and ruled that that complaint would be the operative complaint going forward. Id. at 10. The third amended complaint did not add, or delete, any defendants.

         While Judge Randa indicated that it appeared that the plaintiff's claims might be barred by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994), he nonetheless allowed the plaintiff to proceed on claims challenging aspects of the criminal investigation that led up to the plaintiff's January 11, 2011, arrest for delivering cocaine. Dkt. No. 35 at 5-6. The screening order summarized the plaintiff's four claims: First, the plaintiff alleged that the defendants “with[e]ld exculpatory evidence contained in unofficial files” in drug trafficking cases that involved a confidential informant, which harmed the plaintiff by depriving him of his right to a fair trial. Id. at 4. Second, the plaintiff alleged that Drug Task Force officials “fabricat[ed] evidence that was not essential to my conviction, but done in effort to establish probable cause and also separately obtain a conviction[.]” Id. Third, the plaintiff alleged that Brown County, the Drug Task Force, and participating municipalities “utilized an unconstitutional custom, policy, and/or practice for receiving and resolving complaints made by citizens about the misconduct of DTF investigators which did not allow citizens to take good faith participation in any complaint procedure[.]” Id. at 4-5. Fourth, the plaintiff alleged that Brown County, the Drug Task Force, and participating municipalities utilized an unconstitutional custom, policy, and/or practice to not strip search confidential informants “which denied DTF suspects of corroboration specifically in situations when indications were present a CI is unreliable/compromised and entered or exited a controlled transaction with manufactured evidence.” Id. at 5.

         On June 16, 2015, the plaintiff asked for leave to file a fourth amended complaint. Dkt. No. 182. Judge Randa granted that motion, dkt. no. 183, and on June 19, 2015, the clerk's office docketed the fourth amended complaint. Dkt. No. 184. This complaint identified three of the Doe defendants as Investigator Scanlan, Investigator Bradbeck[1], and Mary Lynn Young. Id. at 1. The fourth amended complaint now is the operative complaint.

         All but one of the defendants named in the fourth amended complaint have counsel; they have divided into three groups, each represented by different attorneys. Defendants Brown County, the Brown County DTF, Dave Poteat, Zak Hoschbach, Mark Hackett, Guy Shepardson, Investigator Dernbach, Mary Lynn Young, and Brad Brodbeck are one group, whom the court will refer to as “the Brown County defendants.” Jeff Lade and the Village of Ashwaubenon are the second group; the court refers to them as “the Ashwaubenon defendants.” John Laux, the City of Green Bay, and DTF Investigator Scanlan are the third group-“the Green Bay defendants.”

         The plaintiff also named Jujuan Jones as a defendant. Jones has not answered the complaint, or participated in this litigation.

         B. Summary Judgment Motions

         On December 8, 2014, all of the represented defendants filed a joint motion for summary judgment, dkt. nos. 123-134, supported by a joint brief, dkt. no 124. The Brown County defendants filed separate proposed findings of fact, dkt. no. 125, as did the Green Bay defendants, dkt. no. 129.

         On July 7, 2015, following the plaintiff's filing of the fourth amended complaint and identifying the Doe defendants, Judge Randa denied without prejudice the defendants' joint motion for summary judgment. Dkt No. 207. The court noted that once the newly-identified defendants had been served and had answered the complaint, it would enter a scheduling order allowing the plaintiff to conduct limited discovery relating to the new defendants. Id. at 4. The court advised the defendants that when they filed an amended motion for summary judgment, they could refer to materials from their original motion, without refiling the materials with the court. Id. at 3. The Brown County defendants (including Brodbeck and Young) answered the fourth amended complaint on July 2, 2015, dkt. no. 201; the Green Bay defendants (including Scanlan) answered on July 15, 2015, dkt. no. 211, and the Ashwaubenon defendants answered on July 23, dkt. no. 215. Judge Randa then set the new deadline for filing dispositive motions for April 15, 2016. Dkt. No. 218 at 20.

         On April 14, 2016, the Brown County defendants filed a supplemental motion for summary judgment, along with a supporting brief and supplemental proposed findings of fact. Dkt. No. 226-232. That same day, the Ashwaubenon defendants filed a letter, stating that they joined the Brown County defendants' summary judgment motion and materials. Dkt. No. 233. On April 15, 2016, the Green Bay defendants filed a renewed motion for summary judgment, along with amended proposed findings of fact. Dkt. No. 235-238. They did not file a new brief.

         The plaintiff responded to the defendants' summary judgment motion on May 26, 2016. Dkt. No. 244-248. Although the plaintiff responded to the defendants' proposed findings of fact and filed an affidavit, dkt. no. 245-247, he did not file his own proposed findings of fact. See Civil L.R. 56(b)(2)(B)(ii) (E.D. Wis.) (requiring a party opposing a motion for summary judgment to file, among other things, a response to the moving party's statement of facts by numbered paragraph, and a statement of any additional facts upon which the opposing party relies).

         On June 15, 2016, the Brown County defendants filed a reply in support of their summary judgment motion. Dkt. No. 250.

         On August 4, 2016, this case was reassigned to this court.

         II. FACTS[2]

         Brown County Drug Task Force (DTF) officials arrested the plaintiff on January 11, 2011, and charged him with six counts of delivering cocaine as part of DTF investigation number 10-0269. Dkt. No. 125 at ¶¶1-2. DTF investigation 10-0269 used a confidential informant (“CI”) named Jujuan Jones. Id. at ¶3. The DTF Investigation 10-0269 file materials refer to Jones as “CI 1395.” Id. at ¶4. A jury found the plaintiff guilty of all six charges that resulted from DTF investigation 10-0269. Id. at ¶5; State v. Barnes, Case No. 2011CF000043, Brown County Circuit Court, at https://wcca.wicourts.gov.

         A. September 17, 2010, Transaction

         The first undercover activity in DTF investigation 10-0269 took place on September 17, 2010. Dkt. No. 125 at ¶7. That day, two DTF officers, including defendant Mark Hackett, met with CI 1395 to arrange a controlled purchase of cocaine base (“crack”) between CI 1395 and a man known as Tone.[3] Id. at ¶8. The DTF officers fitted CI 1395 with a digital wireless transmitter/recorder and an audiovisual recorder, and gave him $275 of prerecorded U.S. currency. Id. at ¶9. The DTF officers provided CI 1395 with an undercover DTF vehicle to use during the controlled buy transaction. Id. at ¶10. As required by DTF policy 06 pertaining to the undercover use of informants, the DTF officers searched CI 1395 and the undercover DTF vehicle for contraband or currency, with negative results.[4] Id. at ¶11.

         On September 17, 2010, CI 1395 drove to a gas station, where he and Tone had agreed to meet. Id. at ¶12. CI 1395 approached Tone while Tone was in a black Toyota Camry. Id. at ¶13. After waiting a few minutes at the gas station, a blue Hummer, driven by a heavy-set, unidentified man, pulled into the gas station. Id. at ¶14. CI 1395 gave Tone $275. Id. at ¶15. After receiving $275 from CI 1395, Tone left the Camry and got into the front passenger seat of the Hummer. Id. at ¶16. The vehicle drove away, and was gone for less than a minute before pulling back into the gas station. Id. at ¶17. Tone exited the Hummer, got back into his vehicle, and handed CI 1395 two bags of crack. Id. at ¶¶18-19. CI 1395 then got back into the undercover DTF vehicle and returned to the DTF officers. Id. at ¶20.

         Upon meeting back up with DTF officers, CI 1395 returned the recording equipment, vehicle and the purchased crack. Id. at ¶21. DTF officers performed a field test on the crack to confirm the weight and the presence of cocaine base. Id. at ¶22. DTF officers itemized all of the expended prerecorded money by serial number as required by DTF policy 06 pertaining to the purchase of evidence. Id. at ¶23. They placed the crack, all recorded audio and visual material, and all other evidence collected during the controlled transaction into labeled evidence bags as required by DTF policy 09. Id. at ¶24. As required by DTF policy 06 pertaining to the undercover use of informants, DTF officers searched CI 1395 and the DTF vehicle for any currency or contraband with negative results. Id. at ¶25.

         Officer Hackett transported all evidence collected during the controlled transaction directly to the DTF, where it was weighed and processed. Id. at ¶26. Officer Hackett packaged and sealed the evidence. Id. at ¶27. He completely and accurately entered the items of evidence into “Evidence Manager.” Id. at ¶28. Officer Hackett printed bar code labels from Evidence Manager, and affixed them to the outside of each package of evidence collected during the controlled transaction. Id. at ¶29. He placed each sealed and labelled item of evidence collected during the controlled transaction into an evidence locker. Id. at ¶30.

         On September 17, 2010, CI 1395 told DTF officers that he was not able to ascertain the identity of the man driving the blue Hummer. Id. at ¶31. That day, a surveillance unit that included Lieutenant John Laux followed the blue Hummer, and observed the driver exiting the vehicle at an apartment complex. Id. at ¶32. Lieutenant Laux observed that the driver of the blue Hummer was a heavier-set black man. Id. at ¶33. Officer Hackett researched the license plates law enforcement had observed on the blue Hummer involved in the controlled transaction, in an attempt to determine the identity of the driver. Id. at ¶34. The blue Hummer was registered to a woman living in Milwaukee. Id. at ¶35. On September 17, 2010, Officer Hackett discovered that the woman to whom the blue Hummer was registered had a son named Lamon Barnes. Id. at ¶36. Officer Hackett obtained an undated photograph of Lamon Barnes and showed it to Lieutenant Laux. Id. at ¶37. Lieutenant Laux confirmed that the person in the photograph was the same person he observed driving the blue Hummer involved in the controlled transaction. Id. at ¶38.

         B. October 5, 2010, Transaction

         On October 5, 2010, CI 1395 met with DTF officers Mark Hackett and Guy Shepardson to prepare for a second controlled purchase of crack from Tone. Id. at ¶39. At their meeting, CI 1395 told DTF officers that Tone was going to obtain the crack from a man known as Blue. Id. at ¶40. That day, CI 1395 called Tone, and they eventually agreed to meet at Tone's house, where they could wait for their supplier to arrive with the crack. Id. at ¶41. DTF officers fitted CI 1395 with a digital wireless transmitter/recorder and an audiovisual recorder, and gave CI 1395 $450 in prerecorded U.S. currency. Id. at ¶42. The DTF officers searched CI 1395 for U.S. currency and contraband, with negative results. Id. at ¶43.

         CI 1395 went to Tone's house, where they waited for Blue. Id. at ¶44. While at Tone's house, Tone told CI 1395 that he had just received a text from a different crack dealer, a man known as Fatz, and that Fatz would be bringing the crack over shortly. Id. at ¶45. Tone told CI 1395 that Fatz was the other man in the Hummer that had accompanied him during the September 17, 2010, transaction. Id. at ¶46.

         CI 1395 checked back in with Officers Hackett and Shepardson under the guise of confirming whether his ride would stay a little longer. Id. at ¶47. CI 1395 returned the recording equipment and currency to DTF officers and was searched for any currency or contraband with negative results. Id. at ¶48. CI 1395 called Tone and Tone assured him that Fatz was still on his way. Id. at ¶49. DTF officers fitted CI 1395 again with the digital wireless transmitter/recorder and an audiovisual recorder, and gave him the $450 in prerecorded U.S. currency. Id. at ¶50.

         CI 1395 returned to Tone's house and gave Tone money for the crack. Id. at ¶51. While CI 1395 stayed inside, Tone went outside to get the crack from Fatz. Id. at ¶52. After going outside to meet Fatz, Tone came back inside his house and gave the crack to CI 1395. Id. at ¶53. CI 1395 departed Tone's residence, and met back up with DTF Officers Hackett and Shepardson immediately. Id. at ¶54.

         CI 1395 returned the recording equipment to DTF officers. Id. at ¶55. DTF officers searched CI 1395 for any currency or contraband, with negative results. Id. at ¶56. DTF officers performed a field test on the crack purchased by CI 1395 to confirm its weight and the presence of cocaine base. Id. at ¶57. DTF officers itemized all of the expended prerecorded money by serial number. Id. at ¶58. They placed the crack, all recorded audio and visual material, and all other evidence collected during the controlled transaction, into labeled evidence bags. Id. at ¶59.

         When DTF officers tested and weighed the crack, the bag appeared to weigh less than it was supposed to. Id. at ¶60. Upon learning that he had not received as much crack as he was told he was getting, CI 1395 called Fatz directly. Id. at ¶61. CI 1395 told Fatz that he was the guy who just bought the crack with Tone, and told him the amount was short. Id. at ¶62. CI 1395 asked if he could just deal directly with Fatz for future drug purchases. Id. at ¶63. Fatz told CI 1395 that if the amount of crack was short, that was between CI 1395 and Tone. Id. at ¶64. Fatz told CI 1395 that they could deal with each other directly for future drug purchases. Id. at ¶65.

         On October 5, 2010, Officer Hackett transported all evidence directly to the DTF where it was weighed and processed. Id. at ¶66. Officer Hackett packaged and sealed the evidence. Id. at ¶67. He completely and accurately entered the items of evidence collected during the controlled transaction into Evidence Manager. Id. at ¶68. Officer Hackett printed bar code labels from Evidence Manager, and affixed them to the outside of each package of evidence. Id. at ¶69. He placed each item of evidence collected into an evidence locker. Id. at ¶70.

         C. October 20, 2010, Transaction

         On October 20, 2010, DTF Officers Hackett and Shepardson met with CI 1395 to set up a controlled transaction. Id. at ¶71. CI 1395 would purchase the crack directly from Fatz. Id. at ¶72. By October 20, 2010, the DTF had positively identified Fatz as the plaintiff, Lamon Barnes. Id. at ¶73. That day, CI 1395 called the plaintiff and arranged to meet at Wal-Mart. Id. at ¶74. Officers Hackett and Shepardson fitted CI 1395 with a digital wireless transmitter/recorder and an audiovisual recorder and gave him $450 of prerecorded U.S. currency. Id. at ¶75. DTF officers searched CI 1395 and his vehicle for any currency or contraband, with negative results. Id. at ¶76.

         A surveillance unit of DTF officers located near plaintiff's residence observed the plaintiff getting into a blue Hummer. Id. at ¶77. The surveillance unit of DTF officers followed the plaintiff as he drove the blue Hummer to Wal-Mart, then observed him get out and walk into the store. Id. at ¶78. Approximately two minutes after the plaintiff walked into Wal-Mart, CI 1395 arrived at Wal-Mart and began walking toward the store. Id. at ¶79. As he was walking toward the entrance to Wal-Mart, CI 1395 called the plaintiff, and the plaintiff asked that CI 1395 meet him inside the store. Id. at ¶80. As CI 1395 entered the Wal-Mart store, two DTF officers, including Zak Holschbach, also entered the store and kept visual contact on CI 1395 and the plaintiff. Id. at ¶81. CI 1395 met the plaintiff inside the Wal-Mart store, and they walked through the laundry detergent aisle while the plaintiff talked on his cell phone. Id. at ¶82. CI 1395 and the plaintiff exited the Wal-Mart store together and got into the blue Hummer. Id. at ¶¶83-84. CI 1395 gave the plaintiff $300 of prerecorded U.S. currency, and the plaintiff then gave CI 1395 a bag of crack. Id. at ¶85. The plaintiff told CI 1395 that he only had $300 worth of crack to sell. Id. at ¶86. The plaintiff discussed the October 7th controlled transaction with CI 1395, and told CI 1395 that Tone messed with the bag of crack and that was why the weight was off. Id. at ¶87. About a minute after receiving the crack from the plaintiff, CI 1395 got out of the Hummer in the Wal-Mart parking lot and walked back to his car as the plaintiff drove away. Id. at ¶88.

         CI 1395 immediately met with DTF officers, and returned the recording equipment and unused currency. Id. at ¶89. CI 1395 gave DTF officers the purchased crack. Id. at ¶90. DTF officers searched CI 1395 and his vehicle for any currency or contraband, with negative results. Id. at ¶91. DTF officers performed a field test on the crack to confirm its weight and the presence of cocaine base. Id. at ¶92. They itemized all of the expended and unexpended prerecorded money by serial number. Id. at ¶93. DTF officers placed the crack, all recorded audio and visual material, and all other evidence collected during the controlled transaction into labeled evidence bags. Id. at ¶94.

         Officer Hackett transported all evidence collected during the controlled transaction directly to the DTF where it was weighed and processed. Id. at ¶95. Officer Hackett packaged and sealed the evidence collected during the controlled transaction. Id. at ¶96. He completely and accurately entered the evidence into Evidence Manager. Id. at ¶97. Officer Hackett printed bar code labels from Evidence Manager, and affixed them to the outside of each package of evidence. Id. at ¶98. He placed each item of evidence collected in the controlled transaction into an evidence locker. Id. at ¶99.

         D. October 29, 2010, Transaction

         On October 29, 2010, DTF Officers Hackett and Holschbach met with CI 1395 to prepare for another controlled transaction buy of crack from the plaintiff. Id. at ¶100. The plaintiff called CI 1395 and agreed to meet at a gas station. Id. at ¶101. DTF officers fitted CI 1395 with a digital wireless transmitter/recorder and an audiovisual recorder, and gave him $600 of prerecorded currency. Id. at ¶102. DTF officers searched CI 1395 and his vehicle for contraband or currency, with negative results. Id. at ¶103. A surveillance unit of DTF officers, including Brad Dernbach, was located near the plaintiff's residence, and observed the blue Hummer and a white Cadillac parked in the parking lot. Id. at ¶104. The surveillance unit observed the plaintiff leave the building with a woman, and watched as the pair drove away in the white Cadillac. Id. at ¶105. The surveillance unit followed the plaintiff as he drove to a set of storage units and met with an unidentified man, then as he went to the gas station to meet CI 1395. Id. at ¶106.

         CI 1395 got into the back seat of the Cadillac when it arrived at the gas station. Id. at ¶107. The plaintiff drove the white Cadillac around to the back of the gas station and parked against an apartment complex garage. Id. at ¶108. CI 1395 gave prerecorded U.S. currency to the plaintiff, who gave CI 1395 a bag of crack. Id. at ¶109. The plaintiff dropped CI 1395 off at his vehicle, and CI 1395 met back up with Officers Hackett and Holschbach. Id. at ¶110.

         CI 1395 returned the recording equipment to DTF officers and gave DTF officers the purchased crack. Id. at ¶111. DTF officers searched CI 1395 and his vehicle for contraband or currency, with negative results. Id. at ¶112. DTF officers performed a field test on the crack to confirm its weight and the presence of cocaine base. Id. at ¶113. DTF officers itemized all of the expended prerecorded money by serial number. Id. at ¶114. The officers placed the crack, all recorded audio and visual material, and all other evidence collected during the controlled transaction into labeled evidence bags. Id. at ¶115. Officer Hackett transported all evidence collected during the controlled transaction directly to the DTF where it was weighed and processed. Id. at ¶116. He packaged and sealed the evidence collected during the controlled transaction. Id. at ¶117. Officer Hackett completely and accurately entered the items collected during the controlled transaction into Evidence Manager. Id. at ¶118. He printed bar code labels from Evidence Manager, and affixed them to the outside of each package of evidence collected during the controlled transaction. Id. at ¶119. Officer Hackett placed each item of evidence collected during the controlled transaction into an evidence locker. Id. at ¶120.

         E. December 3, 2010, Transaction

         On December 3, 2010, DTF Officers Hackett and Shepardson met with CI 1395 to set up a controlled transaction of crack from the plaintiff. Id. at ¶121. CI 1395 called the plaintiff and they agreed to meet at a Subway restaurant. Id. at ¶122. DTF officers fitted CI 1395 with a digital wireless transmitter/recorder and an audiovisual recorder, and gave him $600 of prerecorded currency. Id. at ¶123. DTF officers provided CI 1395 with an undercover DTF vehicle for use during the controlled transaction. Id. ...


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