United States District Court, E.D. Wisconsin
DECISION AND ORDER DISMISSING DEFENDANT JOHN DOE WITH
PREJUIDCE, GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 35) AND DISMISSING CASE
PAMELA PEPPER United States District Judge.
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.
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
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
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
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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 ¶55. The