United States District Court, E.D. Wisconsin
MICHAEL A. KOWALCZUK, Plaintiff,
ERIC GIESE and VILLAGE OF MOUNT PLEASANT, Defendants.
Stadtmueller U.S. District Judge
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.
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).
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controlling pleading and the prior pleading is withdrawn).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.
STANDARD OF REVIEW
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).
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).
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
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.
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
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.
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,