United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
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). In
other words, Peters moved for summary judgment on all claims
except the initial allegedly unlawful search of the
residence. 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.
(Docket #59). On June 28, 2019, this Court dismissed five of
the seven claims and invited an additional motion for summary
judgment on the issues of the unlawful search of a residence
and the retaliatory ransacking of Plaintiff's residence.
(Docket #81 at 15). On July 24, 2019, the Officer Defendants
filed a motion for summary judgment, explaining that they had
full consent to search the initial apartment, and arguing
that the search of Plaintiff's residence was not
retaliatory. Plaintiff never responded, and the Officer
Defendants informed the Court that they would not file a
reply. For the reasons explained below, the Officer
Defendants' second motion for summary judgment will be
granted, and the case will be dismissed.
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).
Court generally adopts the facts as stated in the earlier
order on the parties' motions for summary judgment.
See (Docket #81 at 5-8). The relevant facts are
repeated here for ease of reference, along with the
uncontested facts that the Officer Defendants submitted in
support of their second motion for summary judgment. (Docket
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, along with Esqueda and Molina, began to
conduct surveillance of the Apartment.
this backdrop, Plaintiff's story unfolds: Plaintiff is an
acquaintance of Rhodes who was visiting the Apartment on 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
Plaintiff's car and house keys.
April 15, 2015, Schott and Peters applied for a search
warrant for Plaintiff's residence. The officers
obtained a no-knock warrant at 5:10 p.m. and executed it at
7:00 p.m. As stated above, the previous night, the officers
acquired a set of Plaintiff's keys, which included his
house keys. However, according to Defendants, when they
attempted to use them to enter Plaintiff's house, the
keys did not work. (Docket #86 ¶ 19). Therefore, the
officers broke down the door to Plaintiff's residence
with a ram entry tool. They believed that the lack of answer
required a forced entry. The officers searched through
clothing, paperwork, and food containers for drugs, firearms,
and documents related to the purchase of firearms. Plaintiff
did not personally observe the search of his residence.
Unreasonable Search of the Apartment
is no dispute that the officers received consent from
Roundtree, the lessee of the Apartment, before searching it.
(Docket #85 at 3; Docket #73 at 3). Once a party consents,
police are permitted to engage in a warrantless search.
Fernandez v. California, 571 U.S. 292, 298 (2014).
Accordingly, the search was reasonable, and this claim is
dismissed as to all defendants.
Unreasonable Search of Plaintiff's Residence
alleged that the police searched his residence in an
unreasonable fashion, which included breaking down the door
and strewing papers, clothes, and food around the dwelling.
Plaintiff, however, was incarcerated from April 14, 2015 was
not and released until April 2018. In its prior order on
summary judgment, the Court noted that Plaintiff's
second-hand allegations that the police ransacked his
residence needed to be substantiated by admissible evidence.
(Docket #81 at 7 n.1). Plaintiff has not provided any
admissible evidence to support his contention that the police
engaged in an unreasonable search, nor any response to
Defendants' contentions that the search that they
conducted was reasonable under the circumstances. Defendants
explain that they attempted to use the keys to gain entry,
but, when the keys did not work, felt it necessary to use a
ram tool. (Docket #85 at 13). They defend the scope of their
search, which included clothes, papers, and the kitchen, as
places where evidence of drugs and firearms (and the purchase
thereof) could be reasonably found. They further contend,
with respect to the alleged mess, that police officers
“are not required to clean up after themselves.”
This disrespectful notion should not help win the day, but
there is little else in the case to compel a contrary ...