United States District Court, E.D. Wisconsin
KENYA L. WHITE, Plaintiff,
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.
PAMELA PEPPER United States District Judge
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
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.
The Defendants' Account of March 11, 2009
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.
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.
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.
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
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.
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
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.
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.
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.
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.
The Plaintiff's Account of March 11, 2009
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.
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.
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.
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
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.
The Plaintiff's Claims against Howell and Racine
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
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.
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.
Summary Judgment Standard
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.
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.
The Court Will Analyze the Plaintiff's Claims of
Unlawful Arrest and Excessive ...