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Gill v. Masiak

United States District Court, E.D. Wisconsin

July 17, 2018

CHARLES B. GILL, SR., Plaintiff,
v.
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 DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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.[1] The court will grant the defendants' motion and deny the plaintiff's motion.

         I. DEFENDANTS' EVIDENCE IN SUPPORT OF THEIR MOTION

         The 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.

         At 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)).

         It is 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.

         The 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)[2] 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 judgment.

         The 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.

         The 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)).

         II. RELEVANT FACTS

         On 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. Id.

         About 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.

         Schuyler 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.

         According 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.

         Brester 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 4-5; 41-9.

         According 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.

         Masiak 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 ...


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