United States District Court, E.D. Wisconsin
CHARLES B. GILL, SR., Plaintiff,
R. Y MASIAK, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE (DKT.
NO. 53) AND STRIKING DKT. NO. 52, DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 36), GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 37) AND
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed this lawsuit
under 42 U.S.C. §1983. Dkt. No. 1. The court allowed him
to proceed on a Fourth Amendment excessive force claim
against defendants Kurt Brester and R. Casey Masiak, and a
Fourth Amendment deliberate indifference claim against
defendants Pheuchi Xiong, Michael Scharenbrock and Nicholas
Walvort. Dkt. No. 15 at 5-6. The parties filed cross-motions
for summary judgment, dkt. nos. 36, 37, which are fully
briefed and ready for the court's decision. The court will
grant the defendants' motion and deny the plaintiff's
DEFENDANTS' EVIDENCE IN SUPPORT OF THEIR MOTION
court notes that Brester is the only defendant who submitted
an affidavit in support of defendants' motion for summary
judgment. Dkt. No. 42. The defendants rely primarily on
business records (including police reports, the
defendants' “narrative sheets” describing
their encounters with the plaintiff, video of the
defendants' encounters with the plaintiff, and still
shots pulled from the videos). Dkt. Nos. 41-1 - 41-26. John
M. Balza, a captain with the City of Green Bay Police
Department, submitted an affidavit, swearing under the
penalty of perjury that the exhibits are true and correct
copies of what they purport to be. Dkt. No. 41.
summary judgment, a court generally may admit police reports
that result from the officer's own observations and
knowledge under the business record exception to the hearsay
rule (Fed. R. Evid. 803(6)), if “the party seeking to
offer the business record . . . attach[es] an affidavit sworn
to by a person who would be qualified to introduce the record
as evidence at trial, for example, a custodian or anyone
qualified to speak from personal knowledge that the documents
were admissible business records.” Latosky v.
Strunk, Case No. 08-C-771, 2009 WL 1073680, at *4 (E.D.
Wis. Apr. 21, 2009) (relying on Woods v. City of
Chi., 234 F.3d 979, 988 (7th Cir. 2000)).
not clear to the court whether Captain Balza fits into one of
these categories. He does not indicate whether he is a
custodian of the documents, and it does not seem that he has
personal knowledge of the incidents described in the
documents. He states only that he has “used Green Bay
and other law enforcement agencies reports in the past and
have found them to be reliable.” Dkt. No. 41 at
¶4. If this were all that the defendants had offered, it
is likely that the reports would not be admissible as
evidence in support of their motion. The defendants also have
submitted video evidence, however, which depicts the
circumstances described in the written reports. Dkt. Nos.
41-9, 41-10, 41-11.
plaintiff references these videos in his opposition brief,
dkt. no. 48, as well as in his own motion for summary
judgment, dkt. no. 36, relying on them as evidence to support
his claims. His reliance on (and his failure to object to the
accuracy of) the videos is sufficient to authenticate the
videos, and the videos are sufficient to authenticate the
parts of defendant Masiak's narrative sheet (dkt. no.
41-7) that describe what one can see in the
videos. See Latosky, 2009 WL 1073680 at *5.
Accordingly, the court finds that the video evidence, the
parts of Masiak's narrative sheet that describe what one
can see in the videos, and the still shots pulled from the
videos are admissible evidence for purposes of summary
court also finds that the contents of Masiak's narrative
sheet that describe events that one cannot see in the videos
(e.g., the events leading up to Masiak's stop of the
vehicle in which the plaintiff was riding) have not been
properly authenticated, so those aspects of his narrative
sheet are not admissible evidence. Further, those portions of
the narrative sheet contain only background information; the
court does not require that information to rule on the
parties' cross-motions for summary judgment.
court takes the relevant facts from “Defendants'
Proposed Findings of Fact in Support of Defendants'
Motion for Summary Judgment, ” Dkt. No. 40,
“Defendants' Reply to Plaintiff's Findings of
Evidential Contradictions in Defendants'
Motion/Affidavits for Summary Judgment, ” Dkt. No. 50,
and the plaintiff's sworn complaint, Dkt. No. 1 (which
the Seventh Circuit has instructed district courts to
construe as an affidavit at summary judgment, Ford v.
Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996)).
August 18, 2016, a little before 10 p.m., Green Bay Police
officers learned that an armed robbery had occurred at a
Family Dollar Store on Walnut Street in Green Bay. Dkt. No.
40 at ¶9. The robber had been armed with a handgun,
which he had pointed at the store clerk. Id. at
¶10. The plaintiff was identified as a suspect.
five hours later, at around 3:15 a.m., defendant Masiak was
driving on Shawano Avenue in Green Bay when he saw a red
Dodge Avenger; he recognized the car as belonging to
Stephanie J. Schuyler, the plaintiff's girlfriend.
Id. at ¶¶11-14; Dkt. No. 41-7 at 1. The
vehicle accelerated and made several turns, leading Masiak to
believe that the driver was attempting to elude him. Dkt.
Nos. 40 at ¶15; 41-7 at 2-3. Masiak activated his squad
car's lights and siren, as the car pulled into an alley,
turned onto North Maple Avenue, and finally pulled over at
North Maple and Mather Street. Dkt. Nos. 40 at
¶¶16-18; 41-7 at 3. After the car stopped, a woman
got out of the driver's seat; Masiak recognized the
driver as Schuyler (whom he'd had contact with earlier in
the evening while looking for the plaintiff). Dkt. Nos. 40 at
¶¶13, 19; 41-7 at 3.
began walking toward Masiak's squad car; he told her to
stop, but she just kept walking. Masiak made contact with her
at the trunk of her car. Dkt. Nos. 40 at ¶¶20-21;
41-7 at 3; 41-9. While he was talking to Schuyler, he noticed
the car shift slightly, so he shined his flashlight into the
back seat. Dkt. Nos. 40 at ¶22; 41-7 at 3. Masiak saw a
black male (later identified as the plaintiff) lying across
the back seat of the vehicle. Dkt. Nos. 40 at ¶23; 41-7
at 3; 41-9. Masiak ordered Schuyler to get on the ground, and
he ordered the plaintiff to put his hands on the front seat
headrest. Dkt. Nos. 40 at ¶24; 41-7 at 3.
to Masiak, neither Schuyler nor the plaintiff were listening
to his commands: Schuyler tried to get back into the driver
seat, and the plaintiff was moving around in the back seat.
Dkt. Nos. 40 at ¶25-26; 41-7 at 3; 41-9. At one point,
Masiak “kicked the back of the car to get [the
plaintiff's] attention.” Dkt. Nos. 40 at ¶27;
41-7 at 4; 41-9. Schuyler sat down on the pavement next to
the driver's door. Dkt. Nos. 40 at ¶28; 41-7 at 4;
41-9. Masiak could see the plaintiff in the back seat, and
observed that the plaintiff had a screwdriver in his right
hand; he told the plaintiff to “empty his hands”
and put his hands on the headrest of the car. Dkt. Nos. 40 at
¶29; 41-7 at 4. Masiak saw the plaintiff try to hide the
screwdriver in his hand, then put his right hand into his
pocket. Dkt. No. 40 at ¶30. Masiak saw the plaintiff lay
down “several times” in the back seat, and it
appeared to Masiak that the plaintiff was reaching for the
passenger rear door, so he kicked the door to keep it from
opening. Dkt. Nos. 40 at ¶32; 41-7 at 4. Masiak could
see that the plaintiff's hands were empty, but he was
unsure where the screwdriver was. Dkt. No. 41-7 at 4.
arrived on the scene, and both Masiak and Brester issued
commands for the plaintiff to get on the ground. Dkt. Nos. 40
at ¶34; 41-7 at 4. As the plaintiff got out of the car,
the officers told him to turn around and get down on the
ground, but he did not comply with commands to get on the
ground, so Masiak and Brester “went hands on”
with the plaintiff, “decentralized” him to the
ground and placed him in handcuffs. Dkt. Nos. 40 at
¶¶35-37; 41-7 at 4; 41-9. Officers assisted the
plaintiff to his feet, searched him, found nothing of
evidentiary value, and placed him in the back of Masiak's
squad car. Dkt. Nos. 40 at ¶¶38-39, 41; 41-7 at
to Brester, a short time later, he heard “banging
noises” coming from inside Masiak's squad car. Dkt.
Nos. 40 at ¶43; 42 at ¶5. Officers activated the
rear facing camera that points into the backseat of the squad
car, so they could record the plaintiff's movements. Dkt.
No. 42 at ¶6-7. Officers determined that the plaintiff
was banging his head against the fiberglass partition of the
squad car, causing a laceration to his forehead. Dkt. Nos. 40
at ¶44; 42 at ¶9; 41-10.
noticed that the plaintiff's head was bleeding, so he
called the Green Bay Fire Department Rescue Unit to assess
the wound. Dkt. Nos. 40 at ¶50; 41-7 at 5. At one point,
an officer opened the squad car's rear door to tell the
plaintiff he was going to put the seatbelt on so the
plaintiff would no longer hit his head; the plaintiff
replied, “I didn't hit my head, dude.” Dkt.
Nos. 40 at ¶¶48-49; 41-10 at time stamp
00:59-01:01. The officer told the plaintiff an ambulance was
coming. Dkt. No. 41-10 at time stamp 00:59-01:07. After the
officer closed the squad car door, the plaintiff repeatedly
hit his head on the divider between the front and back ...