United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
19, 2017, Magistrate Judge Nancy Joseph screened
Plaintiff's Complaint. (Docket #9). The Complaint alleged
that Defendants, various City of Kenosha police officers,
violated Plaintiff's constitutional rights during the
course of his arrest on May 8, 2014. Id. at 3-4.
Plaintiff was allowed to proceed on “Fourth Amendment
claims against each of the defendants by alleging that their
actions towards him were unreasonable. This includes their
use of force, their failure to intervene to prevent force
from being used, and their refusal to provide medical
care.” Id. at 4. On February 1, 2018,
Defendants moved for summary judgment. (Docket #41).
Plaintiff's response to the motion was due on or before
March 5, 2018. Civ. L. R. 7(b). That deadline has passed and
no response has been received. The Court could summarily
grant Defendants' motion in light of Plaintiff's
non-opposition. Civ. L. R. 7(d). However, as explained below,
Defendants also present valid bases for dismissing each claim
on its merits. For both of these reasons, Defendants'
motion must be granted.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides 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 fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016).
relevant facts are undisputed because Plaintiff failed to
dispute them. In the Court's scheduling order, entered
August 1, 2017, Plaintiff was warned about the requirements
for opposing a motion for summary judgment. (Docket #20 at
2-3). Accompanying that order were copies of Federal Rule of
Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary
judgment submission. In Defendants' motion for summary
judgment, they too warned Plaintiff about the requirements
for his response as set forth in Federal and Local Rules 56.
(Docket #41). He was provided with additional copies of those
Rules along with Defendants' motion. Id. at 3-9.
In connection with their motion, Defendants filed a
supporting statement of material facts that complied with the
applicable procedural rules. (Docket #44). It contained
short, numbered paragraphs concisely stating those facts
which Defendants proposed to be beyond dispute, with
supporting citations to the attached evidentiary materials.
response, Plaintiff filed absolutely nothing-no brief in
opposition, much less a response to the statement of facts.
Despite being twice warned of the strictures of summary
judgment procedure, Plaintiff ignored those rules by failing
to properly dispute Defendants' proffered facts with
citations to relevant, admissible evidence. Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003). 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, unless otherwise stated, deem
Defendants' facts undisputed for purposes of deciding
their motion for summary judgment. See Fed. R. Civ.
P. 56(e); Civ. L. R. 56(b)(4); 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).
absence of any factual disputes, and in the interest of
brevity, the Court will discuss the material facts as part of
its analysis of Plaintiff's claims against each
Defendant. All factual discussion is drawn from
Defendants' statement of proposed facts. (Docket #44).
noted above, Plaintiff was allowed to proceed on three
species of Fourth Amendment claims. The first, directed at
Defendants Brian Wilson (“Wilson”), Austin
Hancock (“Hancock”), and Cory Brennan
(“Brennan”), is for excessive force in
effectuating Plaintiff's arrest. (Docket #1 at 6-8). The
second, leveled at Defendants Jon Schrandt
(“Schrandt”) and Adam Jurgens
(“Jurgens”), asserts that they failed to
intervene to prevent the other Defendants refused to secure
medical care for his alleged injuries. Id. at 8-9.
The Court will address each claim in turn.
alleges that Wilson, Hancock, and Brennan used excessive
force when arresting him, namely by striking him forcefully
in his back and head and tasering him multiple times.
Id. at 6-8. Under the Fourth Amendment, this is in
essence a claim that Plaintiff was seized unreasonably.
Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th
Cir. 2005). The Fourth Amendment's reasonableness
standard applies, which is concerned with whether the force
used “was objectively reasonable, judged from the
perspective of a reasonable officer on the scene.”
Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir.
2009). Courts are called to account for all of the
circumstances of a particular case, including
“‘ the severity of the crime at issue, 
whether the suspect poses an immediate threat to the safety
of the officers or others, and  whether he is actively
resisting arrest or attempting to evade arrest by
flight.'” Id. (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)).
undisputed facts reveal that Plaintiff's recollection of
events is mistaken, and that the officers' use of force
was entirely reasonable. Officers were called to an apartment
complex related to a suspected domestic violence incident.
The encounter began with Wilson approaching the complex in
his squad car. Plaintiff, standing outside at the time, ran
away after being told to stay where he was. He then went into
an apartment and shut the door. Plaintiff's flight led