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Davis v. Schott

United States District Court, E.D. Wisconsin

June 28, 2019



          J.P. Stadtmueller U.S. District Judge

         On October 3, 2017, Plaintiff submitted a complaint alleging violations of his Fourth Amendment rights and conspiracies to violate his civil rights pursuant to 42 U.S.C. §§ 1983 and 1985. (Docket #1). The Court screened the complaint and allowed him to proceed on claims of unlawful arrest, conspiracies under Sections 1983 and 1985, unlawful search of a residence, unlawful search of a car, unlawful acquisition of a warrant, and retaliation by ransacking a residence. (Docket #3 at 9). On November 15, 2018 the defendants filed motions for summary judgment. (Docket #53 and #58). Defendant Kenneth Peters (“Peters”) moved for summary judgment on the claims of unlawful arrest, conspiracy, unlawful search of a car and unlawful acquisition of a warrant, on the grounds of issue preclusion, lack of evidence, and lack of personal involvement. (Docket #54). Defendants John Schott (“Schott”), Andrew Molina (“Molina”), Joseph Esqueda (“Esqueda”), Jose Viera (“Viera”), Derek Vernon (“Vernon”), Ryan Carpenter (“Carpenter”), Vincent Lopez (“Lopez”), Christopher Randazzo (“Randazzo”), Matthew Phillipson (“Phillipson”), Timothy Rabideau (“Rabideau”), and Matthew Omalia (“Omalia”) (collectively, the “Officer Defendants”) moved for summary judgment on all claims on the grounds that Plaintiff failed to respond to their Requests for Admission and that the doctrine of Heck v. Humphrey bars Plaintiff's claims. (Docket #59). Those motions are now fully briefed. For the reasons stated below, the Court will grant Peters' motion for summary judgment and grant in part the Officer Defendants' motion for summary judgment.


         Federal 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 nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that her case is convincing, she need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).


         The Officer Defendants moved for summary judgment on the grounds that Plaintiff failed to respond to discovery requests. On June 28, 2018, the Officer Defendants properly served Plaintiff with requests for admission, requests for production of documents, and interrogatories. During Plaintiff's deposition on July 25, 2018, he confirmed that he had received the discovery requests and planned to respond to them, but needed help preparing responses. Ultimately, he never responded. Plaintiff now attempts to dispute that he received the requests for admission, but in light of the deposition transcripts, this argument is unavailing.

         However, Plaintiff also explains that he thought that discovery was “mutually put on hold, ” until Peters and the Officer Defendants disabused him of this by filing their motions for summary judgment in November. (Docket #73 at 9). The Officer Defendants confirm that they were in settlement discussions, but explain that they never agreed to put discovery on hold. It is entirely possible that Plaintiff was confused by the settlement discussions, or mistakenly believed that he had more time to respond to the requests for admission. He has disputed material facts in his responses to the proposed statements of facts, (Docket #73 and #74), although he does not specifically counter the argument regarding the requests for admission in his opposition to summary judgment.

         Under Federal Rule of Civil Procedure 36(a)(3), a request for admission is deemed admitted unless the party to whom the request is directed timely objects or responds. In this circuit, it is “well established that pro se litigants are not excused from compliance with procedural rules.” Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008). However, federal courts are generally “reluctant to use Rule 36. . .as a snare for. . . unwary pro se [litigants].” United States v. Turk, 139 F.R.D 615, 617-18 (D. Md. 1991) (holding that it would not serve the interests of justice to grant summary judgment against pro se defendant who failed to respond to requests for admission without otherwise giving him the opportunity to be heard on facts central to the litigation); United States for Graybar Elec. Co., Inc. v. TEAM Const., LLC, 275 F.Supp.3d 737, 745 (E.D. N.C. 2017) (declining to allow a party to rely on un-answered admissions as evidence on summary judgment where the requests for admission asked the party from whom discovery was requested to “disavow the factual bases for his own crossclaims” and where the requesting party never moved to compel a response); In re Savage, 303 B.R. 766, 773 (D. Md. 2003) (“Federal Rule of Civil Procedure 36 was not intended to be used as a technical weapon to defeat the rights of pro se litigants to have their cases fairly judged on the merits.”). Additionally, courts have discretion in determining whether to permit withdrawal or amendment of a matter deemed admitted “if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party.” Fed.R.Civ.P. 36(b); Perez v. Miami-Dade Cty., 297 F.3d 1255, 1268 (11th Cir. 2002) (permitting withdrawal of deemed admissions because “the inconvenience in having to gather evidence. . .does not rise to a [justifiable] level of prejudice”) (citations and internal quotations omitted); Schendzielos v. Borenstein, 2016 WL 614473, at *4 (D. Colo. Feb. 16, 2016) (ordering withdrawal of any deemed admission at summary judgment where it preserved the presentation of the merits of the case and would not prejudice the party).

         For these reasons, the Court declines to allow the unanswered requests for admission as evidence for the purpose of summary judgment. Many of the requests for admission are conclusions of law that directly contradict what Plaintiff alleged in his complaint. For example, the Officer Defendants request the following admissions: “[D]efendant officers did not violate Plaintiff's civil rights”; “No false statements were listed in the Affidavit for Search Warrant of the Residence”; “The officer's search of Plaintiff's residence was not conducted in an unreasonable manner in violation of any of Plaintiff's civil rights.” (Docket #63-1 at 3-4). Defendants never filed a motion to compel responses-perhaps because a failure to respond to these requests might lead to an admission. Yet these were legal questions that Defendants knew, from the moment the complaint was filed, that they would need to litigate. They are not suddenly prejudiced for having to compile evidence in support of their positions. Accordingly, the Court will not consider the requests for admission for the purpose of evaluating facts on summary judgment.

         3. RELEVANT FACTS

         On April 14, 2015, the Milwaukee Police Department (“MPD”) was in the process of conducting surveillance on Norman Rhodes (“Rhodes”), who is not a party to this litigation. An arrest warrant had been issued for Rhodes because he had violated terms of his parole. The officers involved in this case were using a confidential informant (“CI”) to gain information about Rhodes. The CI gave Schott the address of an apartment where he believed that Rhodes lived (“the Apartment”). The CI also said that Rhodes was using a handgun to engage in the sale of marijuana. Based on this information, Schott began to conduct surveillance of the Apartment along with Esqueda and Molina.

         Against this backdrop, Plaintiff's story unfolds: Plaintiff is an acquaintance of Rhodes who was visiting the Apartment the night of April 14, 2015. Plaintiff has a prior felony conviction and was completing a term of parole in relation to that crime. A little before 5:00 p.m., Plaintiff arrived at the Apartment in a Nissan Altima with a female friend. Together, they entered the Apartment. About 15-20 minutes later, Rhodes arrived at the Apartment in a black Chevrolet Malibu, with Monita Roundtree (“Roundtree”), the lessee of the Apartment, and Roundtree's daughter in tow. At approximately 5:20 p.m., Schott called six additional officers to assist in the investigation and arrest of Rhodes. These back-up officers included Viera, Carpenter, Peters, Randazzo, Phillipson, and Rabideau. The officers did not have, nor did they seek, a warrant to search the Apartment. They announced their presence at the Apartment, but nobody opened the door. They entered in order to effectuate Rhodes' arrest. After entering the Apartment, they smelled burnt marijuana and saw marijuana on the dining room table. The officers promptly placed both Plaintiff and Rhodes in handcuffs. They did not arrest either of the two women. Roundtree gave the officers consent to conduct a full search of the Apartment. The officers found drugs and associated paraphernalia, which suggested sale or use of illegal drugs.

         While searching the Apartment, the officers found the keys to Plaintiff's Nissan. The officers did not have a warrant to search the Nissan. Nevertheless, Esqueda proceeded to unlock the car and go inside. Shortly thereafter, the officers called the K-9 unit, led by Vernon. Vernon deployed the K-9 unit around the Nissan only. The K-9 unit alerted the officers to contraband on the passenger's side of the car. Following the alert, the officers again entered the car and recovered a fully loaded gun from either the passenger compartment of the vehicle, (Docket #59 at 3), or the center console, (Docket #54 at 1). Once the gun was seized, the officers stopped using the K-9 unit; no further searches were conducted.

         On April 15, 2015, Schott and Peters applied for a search warrant for Plaintiff's residence. The officers described the basis for probable cause and incorrectly stated that the prior evening, Plaintiff had arrived at the Apartment in the same vehicle as Rhodes. The officers obtained the warrant at 5:10 p.m. and executed it at 7:00 p.m. Schott and Peters had a set of Plaintiff's keys, which included his house keys. Despite this, they broke down the door to Plaintiff's ...

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