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White v. City of Racine

United States District Court, E.D. Wisconsin

March 15, 2017

KENYA L. WHITE, Plaintiff,
v.
CITY OF RACINE, ART HOWELL, and OFFICER TREDO, Defendants.

          DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 34)

          HON. PAMELA PEPPER United States District Judge

         The plaintiff, who is representing himself, filed this lawsuit under 42 U.S.C. §1983, alleging that his constitutional rights were violated. Specifically, the plaintiff claims that: (1) defendant Officer Tredo violated his rights when Tredo used excessive force while taking the plaintiff into custody, and (2) Racine Police Chief Art Howell and the City of Racine (“Racine”) have a custom, policy or practice of failing to adequately train, supervise, or discipline Racine police officers with regard to their use of force. On April 15, 2016, the defendants filed a motion for summary judgment. Dkt. No. 34. For the reasons discussed in this decision, the court grants their motion as to Chief Howell and the City of Racine, but denies their motion as to Officer Tredo.

         I. FACTS [1]

         A. Parties

         The plaintiff currently is incarcerated at the Oshkosh Correctional Institution; he was not incarcerated at the time of the events alleged in his complaint. Dkt. No. 36, ¶1. Howell is the Chief of Police for the Racine Police Department. Id. at ¶2. Tredo is a police officer with the Racine Police Department. Id. at ¶3. Racine is a municipal corporation located in Wisconsin; it operates the Racine Police Department. Id. at ¶4.

         B. The Defendants' Account of March 11, 2009

         On March 11, 2009, around 10:30 p.m., Racine police officers Joshua Laforge and Lina Edwardson (not defendants) responded to a call about shots being fired. Id. at ¶7. As they were driving, Laforge saw the plaintiff walking on the side of the street. Id. at ¶8.

         According to the officers, they followed the plaintiff for about three blocks before they tried to stop him. Id. at ¶10. Laforge states that he rolled down his window and said, “Excuse me, ” and asked the plaintiff to stop. Id. at ¶11. According to Laforge, the plaintiff looked at him, then continued walking. Id. at ¶13.

         Laforge stepped out of the marked police car and told the plaintiff to stop. Id. at ¶14. He states that he intended to ask the plaintiff whether he had heard the gunshots. Id. Laforge states that when he stepped toward the plaintiff, the plaintiff side-stepped away from him, which Laforge found to be suspicious. Id. at ¶15. As the plaintiff was turning away from him, Laforge saw a silver object in the plaintiff's left hand, and believed the plaintiff was awkwardly walking sideways away from him in an effort to conceal whatever was in his hand. Id. at ¶16. This concerned Laforge, who believed the plaintiff could be concealing a gun. Id.

         Laforge states that he shouted at the plaintiff to stop and show him his hands, or put them on a fence, several times, but the plaintiff did not stop. Id. at ¶18, 19. The plaintiff said, “Man, you on some boo-shit” and started to run away. Id. at ¶22. Laforge states that he shouted at the plaintiff to stop, but that the plaintiff ignored him and continued to run. Id. at ¶23.

         Edwardson followed the plaintiff and called out a description of him on the radio. Id. at ¶25. Tredo, who also had responded to the shots-fired call and was in the area, heard Laforge report that the plaintiff was running from him. Id. at ¶30. Tredo pulled his squad up to the area, and saw Laforge chasing the plaintiff directly toward Tredo. Id. at ¶31-32. Tredo pulled his car up on the sidewalk in front of the plaintiff, got out of his car, drew his firearm, aimed it at the plaintiff and ordered, “Police, get on the ground!” Id. at ¶¶34-36. According to Tredo, the plaintiff charged him at full speed. Id. at ¶38.

         Tredo noted that the plaintiff did not have a weapon in his hand, but indicates that by the time he realized it, he didn't have time to re-holster his gun before the plaintiff reached him. Id. at ¶¶39-40. With his gun still in his hand, Tredo tried to wrap his arms around the plaintiff's head and pull him to the ground. Id. at ¶42. Tredo states that as he swung his arm around, his handgun hit the plaintiff in the head. Id. at ¶43. The plaintiff ducked around Tredo and continued to run, with Tredo and Laforge giving chase. Id. at ¶¶44, 46.

         Tredo states that the plaintiff then threw something in the gutter; Tredo caught up to the plaintiff shortly after, and grabbed his left arm and the back of his jacket. Id. at ¶¶47-49. Tredo states that he began to fall to the ground, and that he pulled the plaintiff down with him. Id. at ¶49. Tredo tried to stabilize the plaintiff-who was prone on the ground-and get his right hand behind the plaintiff's back, but the plaintiff was actively trying to hold his hands under his chest. Id. at ¶¶51, 53. Laforge indicated that he grabbed the plaintiff's arm to try to handcuff him, but that the plaintiff was rolling around to prevent that. Id. at ¶54. So LaForge used his Taser to try to gain control of the plaintiff; the Taser “made contact” with the back of the plaintiff's right thigh. Id. at ¶55. LaForge was able to secure the plaintiff's right hand, but he had to use his Taser a second time before the plaintiff would surrender his left arm. Id. at ¶56.

         Edwardson then searched the plaintiff and found bags of what she believed was marijuana, as well as a small digital scale. Id. at ¶60-62. As she was searching the plaintiff, Tredo saw blood on the ground, and could see that the plaintiff was bleeding from a laceration above his left eye; Tredo stated that the injury occurred when Tredo's gun had hit the plaintiff in the face. Id. at ¶65. Tredo called for a rescue squad. Id. at ¶66. Another officer applied pressure to the wound, id. at ¶67, and rode with the plaintiff in the rescue squad to the hospital, id. at ¶72. While at the emergency room, the plaintiff received stitches; a CT Scan revealed a fractured nose, although the emergency room staff could not say whether the fracture was pre-existing. Id. at ¶76.

         After being treated for his injuries, the plaintiff was transported to the Racine County Jail. Id. at ¶77. The plaintiff eventually was arrested for possession of THC with intent to deliver, possession of drug paraphernalia, and resisting/obstructing. Id. at ¶86-89.

         During the criminal proceedings that followed his arrest, the plaintiff challenged his arrest and the seizure of his property on the basis that the seizure was illegal. Id. at ¶90. This attempt was unsuccessful: the plaintiff was convicted of possession and obstruction. Id. at ¶91.

         C. The Plaintiff's Account of March 11, 2009

         The plaintiff's account of the March 11, 2009 encounter differs in significant ways. The plaintiff states that he was walking to his girlfriend's house, talking to her on his cell phone, when a squad car pulled up and stopped beside him. Dkt. No. 1-1, ¶¶8, 12-13. The plaintiff pulled off his hoodie and asked the officers how he could help them. Id. at ¶15. According to the plaintiff, the officers just stared blankly at him and did not respond. Id. at ¶16.

         The plaintiff, who was unnerved by the lack of response, states that he again started walking to his girlfriend's house. Id. at ¶¶17-18. The police officers followed in their car. Id. at ¶18. After about two and one-half blocks, the officers turned the squad in front of the plaintiff, and an officer got out of the squad car with his weapon drawn and ordered the plaintiff to show his hands and place them on a nearby fence. Id. at ¶¶19-20. The plaintiff, who says he was scared, ran “for his safety.” Id. at ¶20.

         Shortly thereafter, Tredo pulled up and blocked the sidewalk with his car, got out with his firearm drawn, pointed the firearm at the plaintiff, and yelled, “Freeze, stop, police.” Id. at ¶24. The plaintiff states that he was running so fast, and was so scared, that he couldn't stop running. Id. at ¶25. The plaintiff indicates that as he approached Tredo, Tredo tried to put the plaintiff in a headlock, but the plaintiff ducked under Tredo's arm. Id. at ¶26. The plaintiff says that Tredo realized the plaintiff was about to get away, so “in anger” he swung his firearm at the plaintiff and hit him in the face. Id. The plaintiff states that Tredo then tackled him to the ground and started punching and hitting him, while yelling, “Stop resisting.” Id. at ¶27.

         The plaintiff states that another officer (not a defendant) tased him twice for no reason Id. at ¶28. The plaintiff told the officer that he had high blood pressure, that he was not resisting, and that he couldn't breathe. Id. The officer replied, “So what, nigger, you shouldn't have ran.” Id.The plaintiff then lay in the street, bleeding from the wound in his forehead caused when Tredo hit him with the gun. Id. at ¶29.

         The plaintiff was transported to the hospital via ambulance. Id. at ¶30. He states he suffered, among other injuries, a fractured nose and a laceration on his forehead that required fourteen stitches. Id. at ¶35.

         D. The Plaintiff's Claims against Howell and Racine

         The plaintiff argues in his response to the defendants' motion for summary judgment that Racine has policies and customs of inadequate training, supervision and discipline of its officers. Dkt. No. 43 at 4. He argues that there have been “many incidents” aside from his own “where citizens have been assaulted and excessive force has been used by [Racine police officers.]” Id. The plaintiff briefly references an incident involving “Officer Rich, ” during which Rich allegedly assaulted Balaal Birmingham; an incident where Racine police officers “assaulted and body slammed” Corey Cottingham while he was handcuffed; and four other pending lawsuits against the Racine Police Department involving claims of excessive force (he provides no other details such as the party names or the case numbers). Id.

         The defendants point out that the plaintiff admitted under oath at his deposition that he has no knowledge about the training Racine police officers receive. Dkt. No. 36 at ¶92. He also admitted he had no evidence to support his contention that Racine has been long aware that its supervision, training, and discipline of police officers is inadequate, nor could he identify a particular policy or practice that gave rise to the “misconduct” the plaintiff complains about. Id. at ¶96, 98. The plaintiff also could not identify any officers who Racine had failed to discipline, other than those involved in his arrest. Id. at ¶99.

         Howell, who has worked for the Racine Police Department since 1984, states that he has personal knowledge of the police department's policies (including those in effect in 2009). Id. at ¶100, 101. He denies ever failing to properly train, supervise, discipline, or control any Racine police officers, and he clarifies that Racine does not maintain any policy, custom, or practice of failing to train, supervise, discipline, or control its police officers. Id. at ¶102, 103. He explains that Wisconsin state law governs the training of officers, including regulations governing police officer training standards in areas such as defense and arrest tactics, effecting an arrest, weapon retention, and accidental shooting. Id. at ¶109, 111.

         II. DISCUSSION

         A. Summary Judgment Standard

         “The court shall 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         A party asserting that a fact cannot be disputed or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         B. The Court Will Analyze the Plaintiff's Claims of Unlawful Arrest and Excessive ...


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