United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT AS TO DEFENDANT RODNEY YOUNG (DKT. NO. 39), DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO YOUNG (DKT.
NO 41), GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 51) AND DISMISSING CASE.
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
plaintiff, representing himself, filed this lawsuit under 42
U.S.C. §1983, alleging that the defendants violated his
constitutional rights. Dkt. No. 1. On October 26, 2017, the
court issued a screening order, allowing the plaintiff to
proceed on a claim that defendant Detective Nicholas Johnson
violated his Fourth Amendment rights by arresting the
plaintiff without a warrant or probable cause, and a claim
that defendants Detectives Rodney Young and Kevin Armbruster
violated the plaintiff's Fourth Amendment rights by
interrogating him and by continuing to confine him without a
judicial determination of probable cause. Dkt. No. 8.
Young has not answered the complaint, and on October 15,
2019, the plaintiff moved for a default judgment against him.
Dkt. No. 39. On December 27, 2018, the plaintiff moved for
summary judgment. Dkt. No. 41. On April 22, 2019, the
defendants Johnson and Armbruster moved for summary judgment.
Dkt. No. 51. The court will deny the plaintiff's motion
for default judgment, deny his motion for summary judgment
and grant the defendants' motion for summary judgment.
defendants assert that on July 26, 2012, the Milwaukee Police
Department dispatched Johnson and his partner (not a
defendant) to a house at 2763 N. 6th Street in Milwaukee
“to check for a wanted subject by the name of Ennis
Brown . . . .” Dkt. No. 53 at ¶6. They indicate
that before Johnson and his partner approached the house,
Johnson ran a “wanted check” for the plaintiff.
Id. at ¶7. They say that Johnson used the
computer in the squad car to find out if the plaintiff had
any active warrants, felony wants, probation or parole holds
or medical alerts, as well as to learn any other
“pertinent information.” Id. at ¶8.
The plaintiff does not dispute that the “wanted
check” turned up an active civil arrest warrant from
Palmyra, Wisconsin, for failure to pay fines for operating a
vehicle after suspension of a license. Dkt. No. 56-2; Dkt.
No. 61 at ¶11.
defendants assert that the “wanted check” also
revealed that the Milwaukee Police Department had issued an
active “Temporary Felony Want” for the plaintiff
for first degree sexual assault. Dkt. No. 53 at ¶9; Dkt.
No. 56-1. The defendants explain that a Temporary Felony Want
is an “inter-department warrant where probable cause
exists to arrest a subject on an active investigation for a
period of 72 hours.” Dkt. No. 53 at ¶9. The
plaintiff disputes the existence of the “felony
want.” Dkt. No. 61 at ¶9.
defendants state that Johnson and his partner arrived
“on scene, ” and that they were about to knock on
the door “when a black male opened it.” Dkt. No.
53 at ¶12. The plaintiff disputes this, indicating that
he was awakened by a knock at 2:05 a.m. Dkt. No. 61 at
¶12. The defendants contend that the plaintiff
identified himself and provided his date of birth, dkt. no.
53 at ¶13; the plaintiff says he's not sure if he
was asked, dkt. no. 61 at ¶13. The defendants indicate
that Johnson and his partner then took the plaintiff into
custody and transported him to the Police Administration
Building, dkt. no. 53 at ¶¶14-15; the defendant
says that only Johnson took him into custody, and only
Johnson transported him downtown, dkt. no. 61 at
defendants say that round 8:30 the next morning (July 27,
2012), defendant Armbruster conducted a video interview of
the plaintiff in the Sensitive Crimes Division, Room 646 of
the Police Administration Building. Dkt. No. 53 at
¶¶16-17. The defendants indicate that the purpose
of the interview was to ask the plaintiff about
“multiple allegations of Sexual Assault and Physical
Abuse of a Child.” Id. at ¶16. The
defendants assert that Armbruster read the plaintiff his
rights and, according to Armbruster, the plaintiff stated
that he understood his rights and waived them. Id.
at ¶¶18-19. They stated that when Armbruster asked
the plaintiff if he had “any problem” talking to
Armbruster, the plaintiff said he did not. Id. at
¶20. The defendants say that Armbruster explained to the
plaintiff the purpose of the interview, that the plaintiff
denied the allegations and “explained why he believed
his daughters would lie about the abuse.” Id.
at ¶¶21-22. According to the defendants, the
plaintiff said he'd had enough, that he wanted to leave
the interview room and that he didn't want to get
involved. Id. at ¶¶23-24. They say that at
that point, Armbruster ended the interview. Id. at
¶25. The defendants maintain that the interview lasted a
little over a half an hour. Id. at ¶27. They
indicate that the plaintiff never requested an attorney.
Id. at ¶26.
defendants indicate that a little after 6:30 p.m. that same
day-July 27-defendant Young conducted a recorded video
interview of the plaintiff. Dkt. Id. at ¶28.
They indicate that Young exchanged pleasantries with the
plaintiff and read the plaintiff his rights, and that the
plaintiff stated he understood and “agreed to make a
statement.” Id. at ¶¶29-31. The
defendants state that Young explained the charges to the
plaintiff, and that the plaintiff denied them. Id.
at ¶¶31-32. They assert that at around 6:43 p.m,
the plaintiff announced that he was “through
talking.” Id. at ¶33. They say, however,
that Young told the plaintiff to sit down; the two talked for
a bit, until the plaintiff “agreed to be civil.”
Id. at ¶¶34-36. The defendants say that
Young continued to ask questions, but stopped at about 7:14
p.m. “after [the plaintiff's] repeated
denials.” Id. at ¶37. The defendants
indicate that Young gave the plaintiff a cigarette (at the
plaintiff's request), then left the plaintiff alone for
fifteen minutes or so, returning to the interview room around
7:38 p.m. Id. at ¶¶38-41. The defendants
say that upon Young's return, however, the plaintiff
“reiterated his innocence, ” so Young ended the
interview at 7:57 p.m. Id. at ¶¶42-43, 45.
The defendants again state that the plaintiff never asked for
a lawyer during the interview with Young. Id. at
defendants submitted a disc containing the video recording of
Young's interview of the plaintiff. Dkt. No. 56-3. The
date and time stamp indicate that Young interviewed the
plaintiff around 6:30 p.m. on July 27, 2012. The content of
the video conforms to the defendants' description of
events, including that Young read the plaintiff his
Miranda warnings; that the plaintiff stated that he
understood his rights; and that he never requested an
attorney during the interview. Id.
defendants indicate that on the same day-July 27-Johnson gave
a Probable Cause Statement and Judicial Determination form to
Commissioner Cedric Cornwall. Id. at ¶46. They
state that Commissioner Cornwall reviewed the request, made a
probable cause finding, set cash bail at $40, 000 and signed
the probable cause statement at 2:55 p.m Id. at
defendants included a copy of the probable cause form with
their summary judgment materials; it shows that on July 27 at
2:55 p.m., Commissioner Cornwall found probable cause that
the plaintiff had committed the first degree sexual assault
for which he was arrested, and set bail at $50, 000. Dkt. No.
plaintiff disputes all the defendants' proposed facts
from their paragraph 16 (Armbruster conducting the 8:32 a.m.
video interview) through their paragraph 49 (Commissioner
Cornwall signing the probable cause statement). Dkt. No. 61
at p. 3. He responds that
[t]he plaintiff was not arrested or interrorgated on July 27,
2012, as the defendants would “mis-lead” this
court to believe. He was in fact “interrorgated on July
26, 2012”, prior to any “probable cause”
hearing or order of “probable cause”.
Id. The plaintiff asserts that the defendants'
findings of fact are “incorrect, ” and that the
defendants offered them to get the court to grant their
motion for summary judgment. Id. The plaintiff
argues that the defendants' affidavits are “full of
incorrect dates” and that the exhibits the defendants
have provided are not the official record. He asserts that
the exhibits appear to have been altered. Id.
supplemental statement of facts, the plaintiff denies that he
saw Armbruster on July 27, 2012. Dkt. No. 63 at
¶¶16-26. The plaintiff denies that there is a video
of Armbruster interrogating him on July 27, 2012.
Id. at ¶27. The plaintiff denies having contact
with Young on July 27, 2012. Id. at
¶¶28-40. He states that he has no knowledge of
Commissioner Cornwall making a probable cause determination
or setting bail. Id. at ¶¶46-49. The
plaintiff's complaint alleges that the plaintiff did not
have a probable cause hearing until July 31. Dkt. No. 1 at 4.
The plaintiff asserts that none of the events the defendants
described took place on July 27, 2012, and that there was no
probable cause on July 26, 2012. Dkt. No. 63 at 3. He says
that he was “without bail from July 26, 2012 through
July 31, 2012.” Id. He reiterates that the
defendants' proposed findings of facts are “made up
of misinformation to support the defendant that
‘probable cause existed' when the plaintiff was
arrested and interrogated.” Id. The plaintiff
asserts that the events the defendants describe-the
warrantless entry of his home, his arrest and both
interrogations-took place on July 26, 2012, a day before the
date the defendants cite, which the plaintiff says shows that
the events violated his Fourth Amendment rights. Id.
Wisconsin Circuit Court Access web site contains information
for State v. Ennis Lee Brown, 2012CF003796
(Milwaukee County). The first docket entry for that case
indicates that a complaint was filed on July 31, 2012, and
that the defendant made an initial appearance that same day
before Commissioner Cornwall. The complaint charged
thirty-three counts of various acts of alleged child abuse,
incest, child enticement, and use of a dangerous weapon.
https://wccawicourts.gov, last visited September 8, 2019.
THE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST
DEFENDANT YOUNG AND THE PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT (DKT. NOS. 39, 41)
October 30, 2017, the clerk's office transmitted to the
U.S. Marshal for service on the defendants the
plaintiff's complaint, the court's screening order, a
waiver of service form and other documents related to
service. Dkt. No. 9. Almost two months later, on December 22,
2017, the Marshal filed a process receipt and return for
defendant Young. Dkt. No. 16. The receipt indicated that on
November 22, 2017, the Marshal had mailed the service package
to Young via Federal Express, but that as of December 21,
2017, Young had not returned the waiver of service or filed
it with the court. Id. at 1. A few days later, the
clerk's office notified the court that while defendant
Armbruster would be filing a waiver of service, defendant
counsel could not accept service for Young because he was
retired. The next day, on December 28, 2017, the clerk's
office issued a summons to Young.
February 2, 2018, the Marshal filed another process receipt
and return for Young. Dkt. No. 27. It indicated that the
summons and service packet had been forwarded to the Marshal
on January 22, 2018. Id. It further stated that on
January 23, 2018 at 4:45 p.m., the Marshal had received a
call from Young stating “[g]ood luck trying to serve
me” before hanging up. Id. The receipt further
stated, “25 January-fwd to E/AR to attempt.”
Id. Finally, the receipt showed that the marshal had
served Young at 10:15 a.m. on January 30, 2018. Id.
order issued on August 28, 2018, the court noted that the
Marshal had served Young on January 30, 2018. Dkt. No. 34 at
11. Young's response was due twenty-one days after
that-by February 20, 2018, but Young had not answered or
appeared. Id. The court ordered the plaintiff to
notify the court how he wanted to proceed regarding Young.
October 2018, in response to the court's directive, the
plaintiff filed a one-paragraph motion for default judgment
as to Young. Dkt. No. 39. The motion asserted that Young had
failed to file an answer to the complaint. Id.
Because Young had not answered the complaint, the clerk's
office entered default as to Young the next
The defendants did not respond to this motion, likely because
Johnson and Armbruster had no stake in the motion and Young
had not answered.
little over two months later (again, well in advance of the
then-scheduled February 22, 2019 summary judgment deadline),
the plaintiff filed a document captioned “Motion for
Summary Judgement Against the Defendant-Rodney Young-.”
Dkt. No. 41. While the caption of the motion refers to
summary judgment, and the first paragraph of the motion
references Federal Rule of Civil Procedure 56 (the summary
judgment rule), the entire motion discusses Young's
failure to answer the compliant, despite the U.S. Marshal
having served the complaint on the plaintiff's behalf,
and despite the deadline for filing an answer having passed.
Id. at 1-2. The plaintiff alleges that there can be
no genuine dispute as to any material fact regarding Young,
because Young chose not to answer the complaint. Id.
Again, the defendants did not respond, because neither
Johnson nor Armbruster have a stake in the motion and Young
has not answered.
is no question that Young failed to file an answer to the
complaint. The history of the marshal's attempts to serve
him supports a conclusion that Young deliberately refused to
answer. Fed.R.Civ.P. 55 provides a two-step process for a
plaintiff to obtain default judgment when a defendant
hasn't answered. VLM Food Trading Intern., Inc. v.
Ill. Trading Co., 811 F.3d 247, 255 (7th Cir. 2016).
Rule 55(a) says that if a defendant fails to plead or
otherwise defend, and “that failure is shown by
affidavit or otherwise, the clerk must enter the party's
default.” Once the clerk has entered default, Rule
55(b)(2) requires a party to apply for default judgment
against the party who failed to answer. Once it has been
established that the defendant defaulted (didn't answer),
“the well-pleaded allegations of a complaint relating
to liability are taken as true.” VLM Food
Trading, 811 F.3d at 255 (quoting Dundee Cement Co.
v. Howard Pipe & Concrete Prods., Inc., 722 F.2d
1319, 1323 (7th Cir. 1983)). “Even when a default
judgment is warranted based on a party's failure to
defend, the allegations in the complaint with respect of the
damages are not deemed true. The district court must instead
conduct an inquiry in order to ascertain the amount of
damages with reasonable certainty.” In re
Catt, 368 F.3d 789, 793 (7th Cir. 2004) (quoting
Stewart v. Hicks, 395 N.E.2d 308, 312 (1979)).
only allegation the plaintiff made against Young in his
complaint was that Young “continued to question [the
plaintiff] after [the plaintiff] demanded an attorney . . .
.” Dkt. No. 1 at 4. In his prayer for relief, the
plaintiff asked for $150, 000 of “cumulative”
damages against each defendant,  and $3, 000, 000 in punitive
damages “for failure to correct and train staff.
Id. at 5.
default has been established, the court must accept as true
the plaintiff's allegation that Young continued to
question the plaintiff after the plaintiff demanded an
attorney. But the court is not required to deem the
plaintiff's allegations regarding damages as true; the
plaintiff still must prove that he is entitled to the damages
he seeks. Neither the plaintiff's motion for default
judgment nor his motion for summary judgment prove that he
suffered any damage as a result of Young's questioning,
much less that he suffered $150, 000 worth of damage.
plaintiff alleges that Young continued to question him even
after he asked for a lawyer. But he does not allege that he
told Young anything. He does not allege that he confessed to
a crime that he did not commit, or that he admitted something
that damaged him. The defendants' proposed facts indicate
that in response to ...