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Novotny v. City of Wauwatosa

United States District Court, E.D. Wisconsin

February 6, 2018

EDWARD NOVOTNY, III, Plaintiff,
v.
CITY OF WAUWATOSA, GEORGE SCHIMMEL, NICHOLE GABRIEL, TYLER L'ALLIER, MAYFAIR MALL SECURITY, and UNKNOWN MAYFAIR MALL SECURITY GUARD, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         The 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”)[1] 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.[2]

         On 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.

         2. STANDARD OF REVIEW

         Federal 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).

         3. FACTUAL BACKGROUND

         3.1 Plaintiff's Failure to Dispute Defendants' Proposed Facts

         The 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. (Docket #19-1).

         In 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.

         As the 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).

         Novotny 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).

         Though 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).

         3.2 Relevant Facts

         On the 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 road.

         Novotny 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.

         The 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.

         The 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.

         L'Allier 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 ...


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