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Losse v. City of Appleton

United States District Court, E.D. Wisconsin

May 16, 2019

RYAN R. LOSSE, Plaintiff,
v.
CITY OF APPLETON, et al, Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          William C. Griesbach, Chief Judge.

         Plaintiff Ryan Losse claims that his civil rights were violated when he was arrested for violating the terms of his probation and held in custody in the Outagamie County Jail for 10 weeks, despite the existence of video evidence completely exonerating him of the violation that led to his arrest. Plaintiff filed this action for damages under 42 U.S.C. § 1983 against two Appleton police officers, his probation officer and the officer's supervisor, the City of Appleton, and Outagamie County. The case is before the court on the defendants' motions for summary judgment. The court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. For the following reasons, the defendants' motions for summary judgment will be granted and the case dismissed.

         PRELIMINARY MATTERS

         As a preliminary matter, the defendants argue that their proposed findings of fact must be deemed admitted as uncontroverted for the purposes of summary judgment because Plaintiffs counsel failed to respond to them in accordance with Civil Local Rule 56. Under the local rules of the district, a party opposing a motion for summary judgment must file within 30 days of service of the motion "a concise response to the moving party's statement of facts" that consists of "a reproduction of each numbered paragraph in the moving party's statement of facts followed by a response to each paragraph." Civil L.R. 56(b)(2) (E.D. Wis.). If a fact is disputed, the non-moving party must include a specific reference to an affidavit, declaration, or other part of the record that supports the claim that a genuine dispute exists as to that fact. Id. The local rules also state that any uncontroverted statements of fact will be deemed admitted for the purpose of deciding summary judgment. Civil L.R. 56(b)(4) (E.D. Wis.).

         Plaintiffs counsel did not file any responses to the defendants' proposed finding of fact when he filed his response to the motions. On April 2, 2019, 4 days after the defendants filed their reply briefs, Plaintiffs counsel filed a response to the defendants' proposed findings of fact. The City of Appleton, Sergeant West, and Officer Taschner (the Appleton Defendants) filed a motion to strike Plaintiffs responses on April 9, 2019, because they are untimely and for failing to comply with the local rules. To date, no response has been filed to the motion to strike.

         The motion to strike is granted. Failure to file a response to a motion is itself grounds to grant it under the local rules. Civil L.R. 7(d) (E.D. Wis.) ("Failure to file a memorandum in opposition to a motion is sufficient cause for the Court to grant the motion."). Moreover, even now, Plaintiff has offered no reason for his failure to respond to the defendants' proposed findings of fact. To allow the late filing absent any showing of good cause would likely add to the defendants' burden by requiring revision and refiling of their replies. Absent any explanation why the defendants should be forced to do so, the motion to strike will be granted and the defendants' proposed findings of fact will be deemed admitted for purposes of deciding the pending motions. See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) ("We have . . . repeatedly upheld the strict enforcement of [local] rules, sustaining the entry of summary judgment when the non-movant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts."); Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005) ("A district court does not abuse its discretion when, in imposing a penalty for a litigant's non-compliance with [the local rules], the court chooses to ignore and not consider the additional facts that a litigant has proposed.").

         BACKGROUND

         At approximately 1:15 a.m. on June 21, 2017, Sergeant West and Officer Taschner of the Appleton Police Department were dispatched to investigate a complaint about a suspicious vehicle that had been running outside a home for 45 minutes to an hour. The caller did not know if the car was occupied, but claimed there had been an ongoing problem with people passing out in the their vehicles in that area. The officers located the vehicle, a red Mitsubishi Eclipse, in the driveway to the rear of the residence at 725 East Byrd Street, and observed a male occupant asleep in the driver's seat with what appeared to be a pipe for smoking methamphetamine in his hand. The officers knocked on the car's window to get the occupant's attention. When the occupant awoke, he looked around, ignored the officers' commands to turn the vehicle off, backed the car down the driveway and fled. Appleton police officers initially pursued the vehicle but ultimately aborted their pursuit due to safety concerns. A Grand Chute police officer also pursued the vehicle at one point within his jurisdiction but ultimately had to call off his pursuit as well for safety concerns.

         West remained at the residence and attempted to see if anyone was home. Nobody answered West's repeated knocking on the door. Dispatch provided West with a phone number for the homeowner, Linda Jeanty, and West contacted her. Jeanty, who was not home at the time, told West that her son, Plaintiff Ryan Losse, lived with her at that address and that she did not believe the Mitsubishi Eclipse belonged to her son.

         Plaintiff was serving a 24-month term of probation for one count of possession of methamphetamine at the time. West was able to pull up a photo of him using the Department of Corrections (DOC) offender locator database. Both West and Taschner viewed the photo of Plaintiff in the database and concluded that Plaintiff had been the driver of the red Mitsubishi Eclipse. Based on his identification of Plaintiff as the driver of the vehicle, West requested a warrant for his arrest for one count of resisting or obstructing an officer. West also called the DOC's after-hours telephone number. In response to requests from both the Appleton Police Department and the Grand Chute Police Department, an on-call DOC supervisor for the DOC Division of Community Corrections (DCC) issued an apprehension request for Plaintiff the same day. The DOC DCC also notified Plaintiffs probation agent, Chad Corrigan, that it had issued an apprehension request for Plaintiff.

         On June 22, 2017, the Lake Winnebago Area Metropolitan Enforcement Group conducted a search of Plaintiff s residence as part of its investigation of his brother Robert-who was also on supervision at the time and living in Jeanty's house-based on information that Robert was selling methamphetamine. The search was conducted pursuant to 2013 Wisconsin Act 79, which authorizes law enforcement to search the residence of a person on parole, probation, or extended supervision, based on reasonable suspicion that the person is committing, is about to commit, or has committed a crime or violation of a condition of supervision. During their search, investigators found methamphetamine in plain sight in Robert's room. In Plaintiffs bedroom they also found 13 baggies with the corners cut out of them, and one corner-cut baggie with residue that later tested positive for methamphetamine, in the trash can. Investigators also found a black air gun, the orange tip of which had been painted over in black, on a shelf in Plaintiffs room. The conditions of Plaintiffs supervision prohibited him from possessing drug paraphernalia and a firearm and/or any other weapon without obtaining permission from his probation agent. After the search, the investigators contacted Appleton Police who proceeded to arrest Plaintiff pursuant to the earlier-issued apprehension request. Once Corrigan was notified of Plaintiff s arrest, he sent Outagamie County Jail an order to detain Plaintiff.

         Corrigan met with Plaintiff at the jail on June 22, 2017. Plaintiff denied involvement in the car chase and told Corrigan that a person with the first name Lee had been driving a red Mitsubishi Eclipse on the evening in question. Corrigan then proceeded to review West's police report that explained how the officers viewed the photo of Plaintiff from the DOC's offender locator database to identify the occupant of the vehicle. Corrigan also received a telephone call from one of the investigators who conducted the search of Jeanty's home. The investigator informed Corrigan about the contraband found in Plaintiffs bedroom and also informed him that the Mitsubishi Eclipse had a history of being at the residence and was seen being driven by Lee Carter, as well as other individuals. On June 23, Corrigan asked the DOC's jail liaison to take another statement from Plaintiff regarding Lee Carter and Plaintiffs knowledge of the contraband found in his room. In a signed written statement Plaintiff denied any knowledge of the drug paraphernalia, denied being the driver of the Mitsubishi Eclipse, asserted that Lee Carter was the person who had been in the driveway in the vehicle, and admitted to possessing the air gun.

         On June 24, 2017, West and Taschner went to the Outagamie County Jail to speak with Plaintiff. West read Plaintiff his Miranda rights, but discontinued the interview after Plaintiff informed the officers that he had an attorney, and simply gave Plaintiff their contact information to pass along to his attorney so that his attorney could contact them.

         During his investigation into Plaintiffs alleged violation of the conditions of his supervision, Corrigan spoke with the probation agents for Plaintiff s brother Robert and Lee Carter. In a signed written statement Carter denied any involvement in the police pursuit. Corrigan also spoke with Sergeant West who informed him how he and Taschner verified Plaintiff was the ...


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