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Brown v. Jachowicz

United States District Court, E.D. Wisconsin

August 31, 2017

CHRISTOPHER DANIEL BROWN, Plaintiff,
v.
ROBERT B. JACHOWICZ, GLEN HAASE, BRIAN M. OLSON, ANDREW AYALA, and JOHN DOE, Officer, City of Cudahy Police Department, Defendants.

          DECISION AND ORDER DISMISSING DEFENDANT JOHN DOE WITH PREJUIDCE, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 35) AND DISMISSING CASE

          HON. PAMELA PEPPER United States District Judge.

         Plaintiff Christopher Daniel Brown, a former Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights during and after his arrest on May 26, 2014. Dkt. No. 37 at ¶2. The court screened the complaint under 28 U.S.C. §1915A, and allowed the plaintiff to proceed on Fourth Amendment claims that defendants Jachowicz, Haase, Olson, Ayala and John Doe engaged in objectively unreasonable conduct during the plaintiff's arrest, as well as during his transportation to and time at the hospital, including a blood draw. Dkt. No. 10 at 7-8.

         The defendants filed their motion for summary judgment on May 31, 2016, dkt. no. 35; the plaintiff responded on August 1, 2016, dkt. no. 46; the defendants replied on August 16, 2016, dkt. no. 47. The plaintiff filed an additional response to the defendants' request for summary judgment on September 13, 2016. Dkt. 50. Although the court did not authorize the plaintiff to file a sur-reply, the court has considered it. This decision and order resolves the motion for summary judgment.

         The court's December 28, 2015 scheduling order set a deadline of February 29, 2016 for parties to amend pleadings, including amending the complaint to identify the party previously identified as John Doe. Dkt. No. 20 at 1. The court also advised the plaintiff that it could dismiss the party previously identified as John Doe if the plaintiff had not provided his real identity by that date. Id. The plaintiff never identified John Doe, and the court will dismiss the plaintiff's claims against John Doe with prejudice.

         I. FACTS[1]

         A. Parties

         The plaintiff is an adult male who was a state prisoner when he filed this lawsuit; he since has been released. Dkt. No. 37 at ¶1. Defendant Glen Haase is a Sergeant with the City of Cudahy Police Department. Id. at ¶3. The remaining defendants are City of Cudahy Police Officers; Brian Olson is a police canine officer. Id. at ¶¶2, 4-5.

         B. Arrest

         On May 24, 2014, at 6:05 p.m., a 911 caller reported a black male in the lobby of a multi-family dwelling at 6020 South Buckhorn Avenue in Cudahy, Wisconsin. Id. at ¶8. The caller, Jason Riviera, said the man threatened to kill him and his wife, and was attempting to enter the building. Id. The caller described the suspect as a thin, tall, black male wearing a green t-shirt and jeans and carrying a backpack. Id. at ¶ 9. The caller said the suspect had reentered the building. Id. It was unclear whether the plaintiff belonged or resided at the location. Id. at ¶10. City of Cudahy police officers were dispatched to respond to the call, including Sergeant Glen Haase, Robert Jachowicz, Brian Olson and Andrew Ayala. Id. at ¶¶8, 23.

         Haase was the first to arrive on the scene; he met spouses Jason and Kelly Rivieria, and they told him what had just happened. Id. at ¶¶11-12. The Rivieras were waiting in an unsecured lobby for their sons to arrive home, and Kelly was standing near a table with a newspaper on it. Id. at ¶13. The black male, later identified as the plaintiff, entered the lobby and asked Kelly if the paper was hers; she said no, and asked if it was the plaintiff's. Id. at ¶14. The plaintiff replied no, and accused Kelly of trying to steal the paper. Id. Kelly then walked away, toward Jason in the unsecured lobby area. Id. at ¶15.

         Jason saw the plaintiff use a key to enter the secure doors leading to the elevator. Id. at ¶16. The plaintiff was talking on his cell phone. Id. Jason said he heard the bell to the elevator ring and thought the plaintiff entered the elevator, but then the plaintiff exited the secure door back into the unsecured lobby. Id.

         Kelly was sitting on the wicker couch next to the table, and the plaintiff sat on a wicker chair next to her. Id. at ¶17. The plaintiff said to Kelly something like, “So about stealing the paper.” Id. Kelly told the plaintiff she did not steal anything. Id. The plaintiff rose up out of the chair, kicked Kelly in the leg, formed his hand as if he was about to choke her, and yelled that that he was going to kill her. Id. at ¶ 18.

         Jason jumped in to separate them and told the plaintiff he was calling the police. Id. at ¶19. As Jason made the call, the plaintiff re-entered the secure part of the building, then fled out of the south exit. Id. at ¶20.

         Haase was concerned that the suspect could still be in the very large, multi-floor building or could have gone through the building and exited. Id. at ¶21. Haase wanted to try to contain the area so officers could search the building if necessary. Id. at ¶22. Haase radioed to the other officers and gave them the information about the suspect; he asked them to set up a perimeter around the building. Id. at ¶24. One of the officers had observed an individual matching the description of the suspect in the next property, on top of a building that was under construction. Id. at ¶25.

         Jachowicz drove the police transport van to the south and west of the building, and immediately saw a person (the plaintiff) matching the description of the suspect. Id. at ¶¶26-27. When Jachowicz first encountered the plaintiff, he was thirty yards from the apartment building and walking away from it. Id. at ¶30. When Jachowicz saw the plaintiff walking away from the building, he radioed to the other squads to inform them. Id. at ¶35. The nature of the call (that the suspect had threatened to kill Kelly Riviera) heightened Jachowicz's awareness for his safety and the safety of the community. Id. at ¶34. Jachowicz testified at trial that officers want to make sure to detain a suspect who just threatened to kill someone. Id.

         Jachowicz had his overhead lights activated; he got out of his vehicle, announced that he was a Cudahy police officer, and yelled to the plaintiff to stop and that he was under arrest. Id. at ¶31. The plaintiff looked toward Jachowicz, but did not stop. Id. at ¶32. The plaintiff started walking backward, which concerned Jachowicz because he feared the plaintiff was going to flee the scene. Id. at ¶33.

         At that time, Ayala and Olson (and Olson's canine) had arrived on the scene. Id. at ¶36. Olson got out of his squad car; placed his police service canine, Ezzo, on a leash; and began to walk toward the plaintiff, who was about fifty yards away. Id. at ¶37. The officers walked toward the plaintiff, and Jachowicz shouted commands for the plaintiff not to move and that he was under arrest. Id. at ¶38. Jachowicz again told the plaintiff to stop, but he refused to stop. Id. at ¶39.

         Olson believed the plaintiff was going to turn and flee, so he began to position himself and Ezzo to get behind the plaintiff in case he ran. Id. at ¶¶40-41. Olson also commanded Ezzo to bark at the plaintiff in the hope of gaining the plaintiff's compliance. Id. at ¶42.

         The plaintiff took his backpack off, which further heightened Jachowicz's awareness, because people tend to lighten their load before they take off. Id. at ¶43. The officers did not know what the plaintiff had with him, especially in his backpack, and it was possible he could access and arm himself with weapons at any time. Id. at ¶¶44-45.

         After the plaintiff dropped his backpack, Jachowicz decided to initialize further “heavy control talk” by yelling at the plaintiff clearly and concisely to stop and telling him to get on the ground. Id. at ¶46. Jachowicz told the plaintiff to stop, to show his hands, and to put his hands behind his back; he also said the plaintiff was under arrest. Id. at ¶47. Yet the plaintiff continued to walk backward. Id. Instead of getting on the ground, the plaintiff squared off at Jachowicz with an angry, menacing look and failed to follow the officers' commands. Id. at ¶48. While Jachowicz continued with his orders for the plaintiff to surrender, Olson also began to shout at the plaintiff to lie on the ground. Id. at ¶49.

         Rather than approaching the plaintiff and having direct physical contact with him, the officers were attempting to give the plaintiff orders to surrender and position himself in a way that would make it safe for the officers to approach him. Id. at ¶50. The plaintiff was not complying with their orders, and refused to get to the ground. Id. at ¶51. Ezzo was barking as the officers were giving orders. Id. at ¶52.

         Jachowicz took his service weapon out, pointed it at the plaintiff, and ordered the plaintiff to the ground. Id. at ¶53. Jachowicz did not know what the plaintiff's skill level was or what he had on him. Id. at ¶54. Jachowicz recognized the plaintiff from prior police contacts, and he remembered the plaintiff's propensity toward violence. Id. at ΒΆ55. The plaintiff ...


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