Menier v. Thompson, s. 94-3102
| Decision Date | 19 March 1996 |
| Docket Number | 94-3104,Nos. 94-3102,s. 94-3102 |
| Citation | 85 F.3d 631 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Robert MENIER, Plaintiff-Appellant, v. Thomas J. THOMPSON, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the Western District of Wisconsin, Nos. 93-C-0648-C and 93-C-0746-C; Barbara Crabb, Judge.
Before FLAUM, EASTERBROOK and ROVNER, Circuit Judges.
On the night of November 9, 1990, Officer Chuck Pardun, a part-time police officer employed by the Village of Luck and a duly appointed deputy sheriff of Polk County, and Robert Menier were driving toward each other on Highway 35 in Polk County, Wisconsin. Officer Pardun saw the other driver veer across the white line on the right side of the road when a pick-up truck tried to pass. The officer turned around, stopped Menier and, after further investigation, arrested him for driving while intoxicated, Wis.Stat. § 346.63(1), and disorderly conduct, Wis.Stat. § 947.01. The officer later took Menier for a blood test at a hospital in St. Croix Falls, where Officer Thomas J. Thompson, a police officer employed by the City of St. Croix Falls, informed Menier that he was under arrest for disorderly conduct at the hospital. Menier was acquitted of driving while intoxicated--the only charge for which he was prosecuted. In consolidated suits pursuant to 42 U.S.C. § 1983, Menier sued both officers for false arrest and each of their respective municipal employers for maintaining a policy of failing to train their officers. 1 The district court granted summary judgment to the defendants. We affirm.
Menier claims that the district court should have independently reviewed the entire record instead of relying on its own summary judgment procedure to limit the scope of its review. Under the court's streamlined system, the moving party supplies a set of proposed undisputed material facts. Then the non-moving party may demonstrate a dispute as to each fact with which it disagrees and propose additional undisputed material facts necessary to the disposition of the case. Both sides must support each proposed fact or asserted dispute with citations to the record. Properly supported factual assertions, if not disputed, are deemed admitted, and factual assertions lacking proper support may be disregarded. In addition, the court in its discretion may choose to search the record for additional evidence. The district court provided Menier with a written set of instructions for this procedure and ordered him to comply with them. Menier included a set of documented proposed facts with his motion for summary judgment. The court denied his motion and informed him that he needed to file a proper response to the defendants' proposed facts, which accompanied their own motion for summary judgment. 2 It reiterated the need for citations to the record and further warned him that it would not consider any facts not included in proposed findings of fact. Menier responded with a set of denials, but he failed to cite to the record--at least with respect to any facts pertinent to the district court's disposition. 3 As a result, the district court effectively granted summary judgment on the basis of the defendants' proposed facts. It apparently chose not to search for additional evidence.
Under Federal Rule of Civil Procedure 83 (1994), "[i]n all cases not provided for by rule, the district judges ... may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act." The district court's order conflicted neither with Federal Rule of Civil Procedure 56, nor with the court's local rules. A district court may, pursuant to a local rule, rely upon the nonmoving party to demonstrate a dispute concerning a genuine issue of material fact, even though that party may consider the relevant information to be readily available. 4 E.g. Doe v. Cunningham, 30 F.3d 879, 885 (7th Cir.1994); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.1994). For example, in Tatalovich v. City of Superior, 904 F.2d 1135, 1139-1140 (7th Cir.1990), this court held that the district court did not violate Rule 56 by refusing to consider certain evidentiary materials due to a failure to comply with its local rule (now repealed), which bears a striking resemblance to the procedure in this case. Whether adopted as part of a court's order or as a local rule, this procedure is proper. See Doe, 30 F.3d at 882, 885. Menier also objects to defense counsel's failure to take into account his evidence in setting forth the undisputed facts. The district court properly allowed the proposed facts to stand because Menier failed to cite contrary evidence in the record. Tatalovich, 904 F.2d at 1139. Although counsel has an ethical obligation enforceable under Federal Rule of Civil Procedure 11 not to seek summary judgment if the record as a whole will not support it, Menier does not contend that counsel should be sanctioned.
"In order to prevail in an unlawful arrest action, the plaintiff must show lack of probable cause." Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir.1993), cert. denied, 114 S.Ct. 1833 (1994). An officer has probable cause to make an arrest when the facts and circumstances within his knowledge and of which he has reasonably trustworthy information suffice to warrant a prudent person's belief that the suspect has committed or is committing an offense. Jones v. Webb, 45 F.3d 178, 181 (7th Cir.1995). This determination is based on the information available to the officer at the moment of arrest. Maltby v. Winston, 36 F.3d 548, 557 (7th Cir.1994), cert. denied, 115 S.Ct. 2576 (1995). "Probable cause can be found as a matter of law, however, only when the facts permit but one conclusion--that is, 'only when no reasonable jury could find that the officer[ ] did not have probable cause' to make an arrest." Jones, 45 F.3d at 182 (citation omitted). Even if probable cause does not exist, an officer has qualified immunity if he reasonably believed that he had probable cause. Edwards v. Cabrera, 58 F.3d 290, 293 (7th Cir.1995). But see Boyce v. Fernandes, No. 95-2160, 1996 WL 78458, slip op. at 1 (7th Cir. Feb. 26, 1996) (). Regardless, if probable cause does exist, the officer is immune, and the claim lacks merit.
In light of the limited facts before it, the district court properly granted summary judgment on the drunk driving false arrest claim. Officer Pardun saw the pick-up truck driver flash his lights and attempt to pass Menier. He saw Menier veer across the white line on the right side of the road twice. Menier later blamed the truck for his swerving. The officer detected an odor of alcohol, and he perceived evidence of impairment in Menier's performance of various field sobriety tests. Menier consented to take a portable breath test, behaved argumentatively while the test was being brought to the scene and withdrew his consent when it arrived. Given the truck driver's evident desire to pass Menier, the repeated swerving, the odor of alcohol, the poor performance on the sobriety tests and the refusal to take the breath test, we doubt that a reasonable jury could dispute that a prudent person would be warranted in believing that Menier was intoxicated to the degree that he was not capable of driving safely. Cf. Wis.Stat. § 346.63(1)(a). The district court properly found as a matter of law that the officer reasonably believed he had probable cause. Officer Pardun is immune.
Similarly, based upon the limited set of facts before it, the district court properly granted summary judgment to Officer Thompson. In the presence of hospital staff and ten or so members of the public at the hospital, Menier "threw his arms in the air and yelled in a loud voice, 'Up my ass,' 'Jesus Christ you fuckers,' and other remarks." (R.36 at 5-6.) To establish a violation of Wisconsin's disorderly...
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