United States District Court, E.D. Wisconsin
DERRICK D. MCGREGORY, SR., Plaintiff,
THOMAS OZELIE, et al., Defendants.
WILLIAM E. DUFFINI U.S. MAGISTRATE JUDGE
Derrick D. McGregory filed a lawsuit under 42 U.S.C. §
1983, alleging that the defendants violated his civil rights.
(ECF Nos. 1, 19, 30.) The court screened the complaint and
allowed McGregory to proceed with a claim that Milwaukee
Police Officers Thomas Ozelie and Allan Tenhaken used
excessive force on May 17, 2017. (See ECF No. 5.) On
July 23, 2018, the court allowed McGregory to add a third
defendant, Sergeant Allen Perry, to this case. (ECF No. 29.)
On McGregory's request, the court dismissed Sergeant
Perry from this lawsuit on December 14, 2018. (ECF No. 71.)
This matter comes before the court on the parties'
cross-motions for summary judgment. (ECF Nos. 48 and 56.)
THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
October 11, 2018, McGregory, who was pro se at the
time, filed a one page “motion for summary
judgment.” (ECF No. 48.) McGregory didn't file a
brief in support of his motion, nor did he submit proposed
findings of fact, as required by Civil Local Rules.
See Civ. L. R. 56(b) (“Motions for summary
judgment must comply with Fed.R.Civ.P. 56 and Civil L. R.
7;”) see also Civ. L. R. 7(d) (“Failure
to file either a supporting memorandum or other
papers…is sufficient cause for the Court to deny the
motion.”) Two months later, McGregory retained counsel.
(See ECF No. 68.) His counsel did not seek leave to
refile the motion in compliance with the local rules. Because
McGregory's summary judgment motion does not comply with
this court's local rules, it will be denied.
THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
following facts are undisputed. On May 17, 2017, Officers
Ozelie and Tenhaken were on bicycle patrol in Milwaukee
District 3. (ECF No. 74-5, ¶ 4.) They were familiar with
the people and activity in District 3 because they'd
patrolled the area in the past. (Id., ¶¶
7-9.) According to Officer Tenhaken, the 800 block of
28th street is an “open-air drug
market” known for “mobile drug dealing.”
(ECF No. 60, ¶¶ 5-6.) Street dealers often loiter
in the area or arrange meetings nearby to sell drugs.
around 4:28 p.m., Officers Ozelie and Tenhaken conducted a
“field interview” of Samuel Hayden on the front
porch of 846 N. 28th Street. (ECF No. 74-5, ¶ 10.) They
suspected that Hayden was loitering in the area to sell
drugs. (Id., ¶ 13.) The officers' body
camera videos (ECF Nos. 62-1 and 62-2) show that they were on
their bicycles on the sidewalk and Hayden was on the porch of
846 N. 28th Street. (Id.) Although McGregory was
also on the porch, he was not the subject of the field
interview. (Id.; see also ECF No. 74-2,
¶¶ 3-4.) Officer Ozelie recognized McGregory based
on multiple interactions in the past, including an arrest for
drugs the month before. (ECF No. 58, ¶ 12.)
six minutes into the field interview, several children
approached Officer Ozelie on the sidewalk to ask a question.
(ECF No. 62-1 at 5:55) As Officer Ozelie spoke to the
children, Hayden began to walk into the apartment building
through a clear exterior door. (Id. at 6:04-6:10.)
Officer Ozelie followed Hayden up the porch. (Id. at
6:11-6:15.) Before Officer Ozelie reached Hayden, McGregory
also walked to the exterior door of the building. (ECF No.
74-5, ¶ 16.) McGregory placed himself between Hayden and
Officer Ozelie. (Id., ¶ 17.) McGregory then
walked back out of the building and attempted to close the
door behind him. (ECF No. 62-1 at 6:13.) The parties dispute
what happened next.
to Officer Ozelie, he smelled marijuana coming from inside
the building, so he grabbed the door to prevent McGregory
from closing it. (ECF No. 58, ¶¶ 18-20.) The weight
of McGregory's body was pressed against the door, closing
it on Officer Ozelie's hand. (Id., ¶ 21.)
Although Officer Ozelie repeatedly yelled that his hand and
fingers were caught in the door, McGregory continued to
forcefully push the door closed on his fingers.
(Id., ¶¶ 22-24.) Officer Ozelie used
several “knee strikes” and “focus
strikes” to stop McGregory from pushing the door closed
on his hands. (Id., ¶¶ 26-27.) Officer
Tenhaken arrived to help Officer Ozelie. (Id.,
¶ 30.) Once Officer Ozelie freed his hands from the
door, he and Officer Tenhaken directed McGregory to the
ground and did not use any more strikes. (Id.,
¶¶ 28-33.) McGregory resisted the entire time, and
it was difficult to secure handcuffs on him. (Id.)
to McGregory, once Officer Ozelie stated that his hand was in
the door, he said “sorry” and tried to move
backwards. (ECF No. 74-2, ¶ 11.) McGregory states that
he attempted to open the door, but Officer Ozelie prevented
it by pushing McGregory into a corner and hitting him with
his fists and knees. (Id., ¶¶ 12-23.) When
Officer Tenhaken arrived, he assisted in pushing McGregory
into the corner. (Id., ¶ 24.) Officer Tenhaken
then slammed McGregory into the ground and smashed his head
into the pavement even though McGregory was already face-down
on the ground. (Id., ¶¶ 25-26.) McGregory
states that he was not resisting but rather had doubled over
in pain, blocking blows to his body. (Id., ¶
the altercation, Officer Tenhaken entered the building and
found a digital scale, small plastic bags, scissors, and a
green leafy substance inside an open mailbox to apartment
#306, an apartment that McGregory often stayed at with his
girlfriend. (ECF No. 74-5, ¶¶ 39-40.)
“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 also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668
(7th Cir. 2011). “Material facts” are those that
“might affect the outcome of the suit.” See
Anderson, 477 U.S. at 248. A dispute over a
“material fact” is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the non-moving party.”
the summary judgment stage, facts must be viewed in the light
most favorable to the nonmoving party only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no ‘genuine issue for trial.'”
Id. (quoting Matsushita Elec. Industrial Co. v.
Zenith Radio Corp.,475 U.S. 574, 586- 587 (1986)).
“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so ...