Diebitz v. Arreola

• Decision Date: 28 September 1993
• Docket Number: No. 91-C-1338.,91-C-1338.
• Citation: 834 F. Supp. 298
• Parties: Robert S. DIEBITZ, Plaintiff, v. Philip ARREOLA, Carlos Negron, Paul Popa, Audrey Rademan, Unknown Milwaukee Police Officers, and City of Milwaukee, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

834 F. Supp. 298

Robert S. DIEBITZ, Plaintiff, v. Philip ARREOLA, Carlos Negron, Paul Popa, Audrey Rademan, Unknown Milwaukee Police Officers, and City of Milwaukee, Defendants.

No. 91-C-1338.

United States District Court, E.D. Wisconsin.

September 28, 1993.

Pikofsky, Campenni & Pigatti by Seymour Pikofsky, Milwaukee, WI, for plaintiff.

Grant F. Langley, City Atty. by Jan A. Smokowicz, Asst. City Atty., Milwaukee, WI, for defendant.

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

On August 2, 1993, after a three day bench trial, judgment was entered in the above-captioned 42 U.S.C. § 1983 action in favor of Robert S. Diebitz on his excessive force claim against Audrey Rademan hereinafter referred to as Audrey Warren due to her recent marriage, in her individual capacity, in the amount of $8,000, plus costs. Pursuant to 42 U.S.C. § 1988, the judgment added an award of $8,000 in attorneys fees to Mr. Diebitz. Presently before the court is Ms. Warren's post-trial "Motion to Amend Judgment" brought pursuant to Rules 52(b) and 59(e), Federal Rules of Civil Procedure. Her motion will be denied.

I. BACKGROUND

On November 27, 1991, the plaintiff, Mr. Diebitz, commenced this civil rights action in Milwaukee county circuit court against the following defendants: (1) Philip Arreola (2) Carlos Negron, (3) Paul Popa, (4) Audrey Warren, (5) unknown Milwaukee police officers, and (6) the city of Milwaukee. Mr. Arreola was the Milwaukee chief of police at the time of the events complained about by Mr. Diebitz in his complaint. Mr. Diebitz sued him only in his official capacity. Mr. Negron, Mr. Popa, and Ms. Warren were Milwaukee police officers during the time period relevant to the allegations contained in Mr. Diebitz's complaint; each of them was sued individually and in his or her official capacity.

In his complaint, the plaintiff alleged that the defendants violated his civil rights in contravention of 42 U.S.C. § 1983 in two different ways. First, he alleged that the defendants arrested him without probable cause on February 21, 1991. See, e.g., United States v. Colonia, 870 F.2d 1319, 1322 (7th Cir.1989) (noting that "the constitutional validity of a warrantless arrest ... depends upon probable cause to effectuate the arrest under the totality of circumstances"). Second, he alleged that the defendants used excessive force against him during the course of his February 21, 1991, arrest. See, e.g., Classon v. Krautkramer, 451 F.Supp. 12, 13 (E.D.Wis.1977) (noting that "the use of excessive force in making an arrest is actionable under § 1983 and under the Fourth Amendment as incorporated in the Fourteenth Amendment").

With respect to his excessive force claims, the plaintiff alleged that an unknown police officer repeatedly kicked him in the head causing "head and facial injuries" after he was pushed to the floor of an elevator in the city jail during the course of his arrest. As a result of the excessive force used against him, the plaintiff alleged that he incurred "substantial personal injury, pain and suffering" entitling him to compensatory and punitive damages, costs, and attorneys fees.

On December 16, 1991, the defendants removed this action to federal court pursuant to 28 U.S.C. § 1441(a) and (b). The case was reassigned to this court for trial from another branch of this court. The bench trial of this action was tried over three days: July 27-28, 1993, and August 2, 1993.

At trial, after the plaintiff rested, the defendants moved, pursuant to Rule 52(c), Federal Rules of Civil Procedure, for a judgment on partial findings on all claims against all defendants. The court granted this motion in part. Specifically, the court dismissed the plaintiff's probable cause claims against all defendants. Furthermore, the court dismissed Mr. Diebitz's excessive force claims against Chief Arreola and the city of Milwaukee because the plaintiff failed to prove that the alleged excessive force used against him was pursuant to a police department, or city, policy or custom. See, e.g., Smith v. City of Joliet, 965 F.2d 235, 237 (7th Cir.1992). In all other respects, the court denied the defendants' Rule 52(c) motion.

After the close of evidence and the presentation of closing arguments, the court orally stated its findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure. In so doing, the court summarily dismissed several of the plaintiff's remaining claims. These claims included the plaintiff's excessive force claim against Officer Negron; the parties stipulated to his dismissal from the action. The court also dismissed Mr. Diebitz's excessive force claims against the defendants identified as unknown Milwaukee police officers because the evidence failed to identify such officers at trial. In addition, the court dismissed the plaintiff's excessive force claims against Officers Popa and Warren in their official capacities because the plaintiff failed to prove that the alleged excessive force used by them was pursuant to a police department, or city, policy or custom. See, e.g., Smith, 965 F.2d at 237.

After disposing of the above claims, I stated, in considerable detail, my findings of fact and conclusions of law with respect to the plaintiff's two remaining claims. Those two claims were: (1) the plaintiff's excessive force claim against Officer Popa in his individual capacity, and (2) the plaintiff's excessive force claim against Officer Warren in her individual capacity. What follows is a brief summary, but by no means verbatim account, except where noted, of some of my oral findings of fact and conclusions of law with respect to these two claims.

On February 20, 1991, at approximately 9:30 p.m., Mr. Diebitz and his friend Joseph Rosetto drove from Mr. Diebitz's home, located at 2109 North 55th Street in Milwaukee, to a bar called the "Main Gate." At that bar, Mr. Diebitz and Mr. Rosetto shot pool and drank beer from approximately 10:00 p.m. until 1:15 a.m. on February 21, 1991. They then left the "Main Gate" in Mr. Rosetto's car. Mr. Rosetto was driving, and Mr. Diebitz was in the front passenger seat. Their destination was Mr. Diebitz's home.

During their drive home, Mr. Rosetto and Mr. Diebitz found that they were being followed by a police squad. They made several evasive maneuvers in an effort to elude the police squad following them. The squad tailing them was driven by Sergeant Chester Ulickey of the Milwaukee police department. Mr. Rosetto ultimately pulled his car over in the eastbound lane of West Lloyd Street between 56th and 57th street — a few blocks from Mr. Diebitz's home. Both Mr. Rosetto and the plaintiff exited Mr. Rosetto's automobile. They began walking in separate directions.

Sergeant Ulickey ultimately apprehended Mr. Rosetto near the location where Mr. Rosetto had pulled his car over on Lloyd Street. Mr. Rosetto was subsequently placed under arrest because of an outstanding warrant for possession of a concealed weapon.

Sergeant Ulickey had noticed that another person had walked away from Mr. Rosetto's car, and therefore he called for backup over his police radio. Two police squads from the Milwaukee police department responded — Squad # 39 consisting of Officers Negron and Warren and Squad # 93A made up of Officers Sholler and Popa.

Mr. Diebitz was ultimately confronted by Officer Warren in an alley north of Lloyd Street between 56th and 57th Street. At that location, Officer Warren, with the assistance of Officer Popa, who arrived moments later, placed Mr. Diebitz under arrest for prowling.

Both Mr. Rosetto and Mr. Diebitz were transported to the city jail in Squad # 93A — a police van used to transport arrestees. Both men shouted loud and profane remarks, tried to escape from their handcuffs, and kicked the sides and doors of the police van. However, Mr. Diebitz did not suffer any injuries to himself during his trip to the city jail.

Officers Sholler and Popa had to stop their van twice to deal with the combative behavior of Mr. Rosetto and Mr. Diebitz. At the second stop, Officers Sholler and Popa called for back-up to assist them in recuffing the arrestees. Officers Negron and Warren in Squad # 39 responded and subsequently followed Squad # 93A to the city jail.

Upon arrival at the city jail, Officer Warren and other unidentified officers, but not Officer Popa:

entered the elevator ... in ... the garage at the city jail and were taken to the fifth floor. And in the elevator because of Mr. Diebitz's continued resistance to his arrest, Officer Rademan Warren and the other officers who were in the elevator did what the testimony identifies as "decentralized" the plaintiff, which I take it is a police term for ... causing the arrestee to be put on the floor on his stomach face down. And the record satisfies me that at that time Mr. Diebitz was kicked several times in the face by various unknown officers causing the injuries he now complains about. The hospital report (Exhibit six) and the photographs (Plaintiff's Exhibits one to five) persuade the court that serious injuries were inflicted upon the plaintiff and that Mr. Diebitz has met his burden of proving that by the credibility of his own testimony, coupled with the court's evaluation of the exhibits just alluded to which reflect injuries which, in my opinion, could not reasonably have been caused in the manner that the defendants have urged upon the court.

Transcription by the court of August 2, 1993, electronic court reporting of the court's oral findings of fact and conclusions of law hereinafter August 2, 1993, Findings.

Mr. Diebitz did not suffer any further injuries after he left the elevator on the fifth floor of the city jail. He spent the night in a cell at the city jail until his release on the morning of February 21, 1991. His girl-friend picked him up at which time she observed his two black and blue eyes and swollen forehead. He visited the West Allis Memorial...