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Smith v. City of Janesville

United States District Court, W.D. Wisconsin

October 17, 2019

ANTHONY J. SMITH and FLYING A.J.'S TOWING COMPANY, LLC, Plaintiffs,
v.
CITY OF JANESVILLE, DAVID J. MOORE, JIMMY G. HOLFORD, JR., JIMMY G. HOLFORD, III, and JOEL P. MELTON, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Under 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment, plaintiffs Anthony Smith, who is African American, and his company, Flying A.J.'s Towing Company, LLC, claim that various members of the Janesville Police Department and the City of Janesville delayed placing Flying A.J.'s on a new, “no preference” tow list in mid-June of 2016 and then removed it from the list altogether in August of 2016, based on Smith's race and in retaliation for his complaining about race discrimination. Plaintiffs brought similar claims against the Town of Beloit and its chief of police in 2010 based on a far more egregious set of facts, including “staggering, ” blatantly racist remarks by the then chief of police. Smith v. Wilscon, 705 F.3d 674, 676 (7th Cir. 2013). After a three-day trial, the jury in that case returned a mixed verdict, finding that race was a motivating factor in the defendants' actions against plaintiff, but ultimately finding no liability for failure to prove causation. See Id. This court observed how “painful [it must be] to learn that one's worst suspicions are true when it come[s] to the motives of a public official, particularly if the official is the chief of police.” Smith v. Wilson, No. 10- cv-062-wmc (W.D. Wis. June 16, 2011) (post trial order, ECF No. 273).

         For plaintiffs, that same sentiment no doubt resonates here, but it is only an echo, for this is a different case with different facts. Pending before the court is defendants' motion for summary judgment on all claims (dkt. #14), and a careful examination of those facts as derived from the record in this case compels the conclusion that plaintiffs have not provided sufficient evidence to allow a reasonable jury to render a verdict in their favor. Accordingly, the court will grant defendants' motion.

         UNDISPUTED FACTS[1]

         A. Overview of the parties

         Plaintiff Anthony Smith is African American. Smith and his wife own and operate plaintiff Flying A.J.'s Towing Company, LLC, which was established in 2002.

         Defendant City of Janesville is a Wisconsin municipal corporation. The remaining defendants were at all relevant times employees of the Janesville Police Department. Specifically, defendant David J. Moore was police chief; defendant Jimmy G. Holford, Jr. was deputy police chief; defendant Jimmy G. Holford, III was a sergeant[2]; and defendant Joel P. Melton was a police officer. All were sued in both their individual and official capacities.

         B. Creation of the Janesville “no preference” tow list

         This case centers around Flying A.J.s' placement on and then removal from the Janesville Police Department's “no preference” tow list. Companies placed on the tow list are eligible to be called on by the police department to tow vehicles in cases where the vehicle owner does not have a preference as to what company to use.

         Before June 2016, the Janesville Police Department had called companies on the Rock County tow list, but after a number of complaints, Deputy Chief Holford recommended to Chief Moore that the department create and maintain its own list. Moore agreed, and together Moore and Holford created an application form for the department's new list. On or before June 5, 2016, the form was sent to all the companies on the old Rock County list, which included Flying A.J.'s. The form included a list of required qualifications and requested that the applicant “sign and return [the form] by June 23, 2016.” (Smith Dep., Ex. 10 (dkt. #13-10) 2.) Within ten days, four towing companies had submitted applications. After Holford determined that all of these companies met the requirements set by the police department, Moore approved the initial list of four towing companies, and the department announced that list on June 15, 2016. The owners of all four towing companies were white.

         Six days after the initial list was announced, but two days before the June 23 application deadline, Smith submitted Flying A.J.'s application to be on the tow list. Deputy Chief Holford confirmed his receipt of the application, but informed Smith that the application had been placed “on file in the event [that the Janesville Police Department] needs to replace or add to its current list.” (Smith Dep., Ex. 14 (dkt. #13-14).)

         Smith then lodged a complaint with the Janesville City Manager's office claiming that the police department had discriminated against him because of his race by placing Flying A.J.'s application on a “waiting list.” The complaint was forwarded to Police Chief Moore, who then informed Deputy Chief Holford. The next day, Moore called Smith to discuss the complaint. On the call, Moore assured Smith that race had nothing to do with the make-up of the initial list and told him that if Flying A.J.'s met the police department's requirements, it would be included on the tow list.

         Moore then instructed Deputy Chief Holford to determine whether Flying A.J.'s met the tow list requirements. On July 12, 2016, Holford met with Smith at the Flying A.J.'s Janesville office. Smith stated that during the meeting, Holford warned him that if he mentioned race discrimination, “the interview would be terminated and Flying A.J.'s application for the tow list would not be considered.” (Smith Decl. (dkt. #25) ¶ 11.)[3]Later that same day, the Janesville police department issued a new tow list. In addition to the four previously-included towing companies, Flying A.J.'s and another tow company --KB Towing -- had been added to the new list.

         C. July 25 traffic incident

         On July 25, 2016, Sergeant Holford III and Officer Melton responded to a car crash. One of the cars involved in the crash required a tow. Because Flying A.J.'s was the next company on the tow list rotation, and the car's owner expressed no preference as to what tow company to use, it was called.

         Although the parties disagree about some of the events on July 25, 2016, they do not dispute the following core facts: Flying A.J.s' driver, Calvin Richardson, promptly arrived at the crash site; Richardson neither spoke to any police officer at the scene nor to the vehicle owner, Susan Paul; and Richardson was informed by Flying A.J.s' dispatcher that the vehicle owner wanted the car delivered to Rock County Honda, but Richardson first took the car to Flying A.J.s' Janesville lot, intending to deliver the car to the Honda location the next morning.

         After the incident, Melton followed up with the vehicle owner. Paul said that she was unhappy with the tow service she received and that her GPS unit was missing from her car. Later, Officer Melton documented the July 25, 2016, incident in a memo, which was submitted to Deputy Chief Holford. The memo noted that: the Flying A.J.'s driver “refused” to give Paul a ride home; the driver did not consult with Paul; Flying A.J.'s “wasn't willing” to tow the car directly to Rock County Honda but would drop it off the next morning; and that “the experience with [Flying A.J.'s] was disappointing.” (Melton Decl., Ex. 1 (dkt. #20-1).)

         D. Removal from tow list

         On August 1, 2016, Holford emailed Smith, attaching Melton's memo, which he referred to as a “complaint” about Flying A.J.'s service. (Holford Decl., Ex. 8 (dkt. #18-8) 1.) Holford's email also stated that he was “interested in [Smith's] response” as he investigated the issues raised in the complaint. After receiving no response for a week, Holford emailed Smith again on Monday, August 8, this time asking him to “[p]lease respond by Thursday, August 11th.” (Holford Decl., Ex. 8 (dkt. #18-8) 1.) Later that same day, Holford also stopped by Flying A.J.'s Janesville address twice, but did not encounter Smith or any other Flying A.J.'s employee. Both times he knocked on the door and called out, but concedes he did not try the door or checked around the garages. He further testified that the lights were out and that he did not see or hear any activity.

         That same evening, Smith responded to Holford via email, addressing both main issues raised in Melton's memo, as well as voicing general concerns about race discrimination and discriminatory policing in Wisconsin. Referring to the July 25 incident, Smith wrote that after loading up the car and ensuring the road was clean and safe, no customer or officer was in sight. He further explained that Paul's vehicle was not taken straight to the Honda dealership because it would have been closed by the time the driver arrived. He also advised that Paul never asked for a ride home and any allegation that Flying A.J.'s refused to give Paul a ride home was a “bold faced lie from somebody trying to get us removed off of the tow rotation list.” (Holford Decl., Ex. 9 (dkt. #18-9) 1-2.) Finally, he expressed his concern that Officer Melton's memo included “trumped up charges, ” that “[s]ome of these officers just look for a reason to shoot and kill an African American, ” and that he “no longer feels safe because of these allegations.” (Id.)

         The next morning, Tuesday, August 9, Deputy Chief Holford emailed Smith, stating that he thought it would be most productive for Smith to stop by his office on Thursday, August 11. (Holford Decl., Ex. 10 (dkt. #18-10) 1.) Smith neither responded to this email nor did he come to Holford's office on August 11, prompting Holford to email Smith again and propose another meeting, this time on Tuesday, August 16. (Holford Decl., Ex. 10 (dkt. #18-10) 1.) He warned Smith ...


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