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Kowalczuk v. Giese

United States District Court, E.D. Wisconsin

January 13, 2020

MICHAEL A. KOWALCZUK, Plaintiff,
v.
ERIC GIESE and VILLAGE OF MOUNT PLEASANT, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         This case involves a traffic stop gone awry that ended in the driver, Michael Kowalczuk (“Kowalczuk”), being tased by Eric Giese (“Giese”), a Village of Mount Pleasant (“Mount Pleasant”) police officer. Kowalczuk filed his original complaint naming Giese, Mount Pleasant, and another officer, Matt Soens (“Soens”), as defendants. (Docket #1). He alleged claims for excessive force, false arrest, Monell liability, and punitive damages. Id.

         On September 18, 2019, the defendants filed a motion to dismiss Kowalczuk's complaint. (Docket #5). On October 9, 2019, Kowalczuk filed an amended complaint omitting Soens as a defendant and omitting his claim for false arrest. (Docket #11). On the same day, Kowalczuk filed a brief in opposition to the defendants' motion to dismiss. (Docket #12). On October 23, 2019, Giese and Mount Pleasant filed an amended motion to dismiss, noting that the arguments in their original motion relating to Kowalczuk's claims against Giese and Mount Pleasant still applied to those claims as restated in Kowalczuk's amended complaint. (Docket #14). They also filed a reply in support of their motion to dismiss the amended complaint. (Docket #15).

         Kowalczuk's amended complaint is the operative pleading in this case. Johnson v. Dossey, 515 F.3d 778, 780 (7th Cir. 2008) (when an amended complaint is filed, it becomes the controlling pleading and the prior pleading is withdrawn). The Court will deny the defendants' original motion to dismiss as moot. In deciding the motion to dismiss Kowalczuk's amended complaint, the Court will consider the brief filed in support of the defendants' original motion, the amended complaint, Kowalczuk's brief in opposition to the defendants' motion to dismiss, and the defendants' reply. For the reasons stated below, the motion to dismiss the amended complaint will be denied.

         2. STANDARD OF REVIEW

         The defendants seek dismissal of Kowalczuk's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a viable claim for relief. Fed.R.Civ.P. 12(b)(6). To state a viable claim, a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).

         In reviewing Kowalczuk's amended complaint, the Court is required to “accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in [the plaintiff's] favor[.]” Kubiak v. City of Chi., 810 F.3d 476, 480-81 (7th Cir. 2016) (citation omitted). Ultimately, dismissal is only appropriate “if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to the relief requested.” Enger v. Chi. Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016).

         3. RELEVANT ALLEGATIONS

         The following factual allegations are drawn from Kowalczuk's amended complaint. (Docket #11). On September 3, 2013, at approximately 12:30 a.m., Kowalczuk was driving to his home in Mount Pleasant, where he lived with his parents. He was obeying all traffic rules and operating his vehicle in a safe manner. Nonetheless, officer Giese, driving a marked Mount Pleasant squad car, began to follow Kowalczuk. Giese activated his lights, and Kowalczuk drove to his parents' house nearby, believing it to be a safe place to park. Giese followed.

         After parking his vehicle at his parents' house, Kowalczuk slowly opened the driver's side door. Giese exited his squad with his firearm aimed at Kowalczuk, yelling contradictory instructions to “Stop! Get out of the car! Stay in the car, right now!” Confused, Kowalczuk immediately stopped all movement. Giese approached him and told him to “Show me your hands!” Kowalczuk put his hands up.

         Within approximately one second, Giese said “Stop the car!”, but Kowalczuk's car was already stopped. Giese then said, “Get out of the car!” At the same time, Giese grabbed Kowalczuk by Kowalczuk's left arm and used physical force to remove him from the car. Kowalczuk, frightened, asked Giese what he had done wrong. Giese responded by yelling at Kowalczuk to get on the ground while, at the same time, using physical force to push Kowalczuk to the pavement. Kowalczuk turned and fell on his backside.

         Once Kowalczuk was on the ground, Giese maintained physical control of Kowalczuk by gripping Kowalczuk's arm. He again yelled at Kowalczuk to “Get on the fucking ground!” At the same time, Giese placed his other hand behind Kowalczuk's head, pushed Kowalczuk onto this right side, and placed his weight on top of Kowalczuk. Kowalczuk pleaded to be let go. Giese yelled at Kowalczuk to “Put your hands behind your back! Do it now! Put your hands behind your back and get on your stomach! Get on your stomach! Put your hands behind your back! Do it now!” Giese lessened pressure just enough for Kowalczuk to position himself on his stomach and then yelled at Kowalczuk to put his hands behind his back or he would be tased. Kowalczuk put his hands behind his back and Giese secured them in handcuffs.

         Kowalczuk's mother and father, Nancy and Jeff Kowalczuk, observed these events from inside their home. They went outside and Giese put his hand over his firearm, threatening them to “Stay back! Stay back!” Kowalczuk, still frightened, yelled for his mom. Then, contrary to Giese's instructions, Kowalczuk attempted to reposition himself on the ground to be able to see her, and then lifted himself to a seated position. Giese tackled him back to the pavement, ...


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