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Brown v. Johnson

United States District Court, E.D. Wisconsin

September 9, 2019

NICHOLAS JOHNSON, et al., Defendants.



         The 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.

         Defendant 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.

         I. FACTS

         The 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.

         The 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.

         The 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 ¶¶14-15.

         The 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.

         The 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 ¶44.

         The 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.

         The 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 ¶¶47-49.

         The 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. 56-4.

         The 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.

         In a 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.

         The 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., last visited September 8, 2019.


         On 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.

         On 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.

         In an 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. Id.

         In 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 day.[1] The defendants did not respond to this motion, likely because Johnson and Armbruster had no stake in the motion and Young had not answered.

         A 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.[2]

         There 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)).

         The 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, [3] and $3, 000, 000 in punitive damages “for failure to correct and train staff. Id. at 5.

         Because 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.

         The 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 ...

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