United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
plaintiff, Edward Novotny, III, (“Novotny”), who
proceeds in this matter pro se, brought this action
against the City of Wauwatosa (the “City”), two
of its police officers, Tyler L'Allier
(“L'Allier”) and Nichole Gabriel
(“Gabriel”), and City of Wauwatosa prosecutor
George Schimmel (“Schimmel”) (collectively, the
“defendants”) for alleged violations of his civil
rights. Specifically, Novotny claims that L'Allier and
Gabriel violated his Fourth Amendment rights by stopping him
without reasonable suspicion after they received a tip from a
mall security officer that Novotny had driven under the
influence into the mall parking lot. Novotny also claims that
the City and Schimmel violated his Fourteenth Amendments by
giving him a bench trial instead of a jury trial for his
municipal citation and by allowing the introduction of
evidence at the trial that contained errors. Finally, Novotny
alleges that the defendants conspired against him to violate
his civil rights.
November 1, 2017, the defendants filed a motion for summary
judgment, along with a supporting brief, proposed findings of
fact, and four affidavits. (Docket #19-#25). Novotny
requested, and was granted, an extension to file his
response; on December 29, 2017, he filed two response briefs,
an affidavit, and his own proposed findings of fact. (Docket
#29-#32). The defendants replied on January 12, 2018. (Docket
#33). For the reasons explained below, the defendants'
motion will be granted and this action will be dismissed.
STANDARD OF REVIEW
Rule of Civil Procedure 56 states that 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 Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A “genuine” dispute of material fact
is created when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court construes all facts and reasonable
inferences in a light most favorable to the non- movant.
Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). In assessing the parties'
proposed facts, the Court must not weigh the evidence or
determine witness credibility; the Seventh Circuit instructs
that “we leave those tasks to factfinders.”
Berry v. Chicago Transit Auth., 618 F.3d 688, 691
(7th Cir. 2010).
Plaintiff's Failure to Dispute Defendants' Proposed
relevant facts are undisputed because Novotny failed to
dispute them. Federal Rule of Civil Procedure 56 and Civil
Local Rule 56 describe in detail the form and contents of a
proper summary judgment submission. In the defendants'
motion for summary judgment, they warned Novotny about the
requirements for his response as set forth in Federal and
Local Rules 56. (Docket #19 at 1-2). They also provided
Novotny with copies of those Rules along with their motion.
connection with their motion, the defendants filed a
supporting statement of material facts that complied with the
applicable procedural rules. (Docket #21). It contained
short, numbered paragraphs concisely stating those facts they
proposed to be beyond dispute, with supporting citations to
the attached evidentiary materials. See id.
party opposing the defendants' motion, Novotny was
required to file “a concise response to the moving
part[ies'] statement of facts” containing “a
reproduction of each numbered paragraph in the moving
part[ies'] statement of facts followed by a response to
each paragraph, including, in the case of any disagreement,
specific references to the affidavits, declarations, parts of
the record, and other supporting materials relied
upon[.]” Civ. L. R. 56(b)(2)(B).
did not do this. He filed his own statement of proposed
facts, (Docket #32), but he did not provide a response to the
defendants' proposed facts. The effect of this failure is
that, for the purpose of deciding summary judgment, the
defendants' uncontroverted statements of material fact
are deemed admitted. See Fed. R. Civ. P. 56(e); Civ.
L. R. 56(b)(4); see also Fabriko Acquisition Corp. v.
Prokos, 536 F.3d 605, 607-08 (7th Cir. 2008) (“[A]
district court is entitled to demand strict compliance with
[the local] rules for responding to a motion for summary
judgment, and . . . a court does not abuse its discretion
when it opts to disregard facts presented in a manner
inconsistent with the rules.”) (citation omitted);
Hill v. Thalacker, 210 F. App'x 513, 515 (7th
Cir. 2006) (noting that district courts have discretion to
enforce procedural rules against pro se litigants).
the Court is required to liberally construe a pro se
plaintiff's filings, it cannot act as his lawyer, and it
cannot delve through the record to find favorable evidence
for him. Thus, the Court will consider Novotny's proposed
facts, (Docket #32), only to the extent they do not
contradict the defendants' uncontroverted proposed facts,
(Docket #21), and are not subject to dispute by the
defendants, (Docket #34).
morning of February 5, 2015, Novotny was driving northbound
on Interstate 41 in Wauwatosa, Wisconsin when he experienced
car trouble. He exited the highway and pulled into the nearby
Mayfair Mall parking lot. One of the wheels came off of his
car before he reached the parking lot, and it remained in the
got out of his damaged car and began to walk away across the
mall parking lot. A mall security guard saw this and,
suspecting that Novotny was intoxicated, contacted the
Wauwatosa Police Department. Defendants Gabriel and
L'Allier, both police officers with the Wauwatosa Police
Department, were dispatched to the scene. When they arrived,
the mall security officer pointed out the damaged car and
identified Novotny as the driver, who was then walking toward
the south end of the mall parking lot.
officers made contact with Novotny and collected identifying
information from his Illinois driver's license. They
asked him what was going on, and he explained that he was
driving to work when he experienced car trouble, and he was
now walking to find an auto parts store for materials to fix
his car's damaged wheel. While speaking with Novotny the
officers could detect a strong odor of intoxicants coming
from his person. They observed Novotny's eyes to be
bloodshot and glossy. Novotny's speech was slurred. The
officers asked Novotny if he had consumed any alcoholic
beverages, and Novotny responded that he had two to four
beers and some wine the previous night.
officers then asked Novotny to participate in field sobriety
tests, including a horizontal gaze nystagmus test, a walk and
turn test, a one-leg stand test, and a recitation of the
alphabet. Novotny was able to recite the alphabet without
mistakes, but his performance on the other tests caused the
officers to believe he was intoxicated. Novotny then agreed
to give a breath sample to measure his level of intoxication,
but his attempts to blow did not yield a sufficient sample.
placed Novotny under arrest for driving while intoxicated. He
was handcuffed and transported to the Wauwatosa Police
Department for booking and processing. At the station,
L'Allier asked Novotny to submit to a blood sample and
Novotny refused. L'Allier issued Novotny a traffic
citation for operating a motor vehicle while intoxicated