Freeman v. City of Milwaukee

Decision Date15 January 2014
Docket NumberCase No. 13–CV–918–JPS.
PartiesKevin FREEMAN, Sr., as parent and legal guardian of his son, K.F., a minor, Plaintiff, v. CITY OF MILWAUKEE, Chief Edward Flynn, Captain Edith Hudson, Sergeant Jason Mucha, Michael Vagnini, Jacob Knight, and Unknown Milwaukee Police Officers, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin


Janis Susler, John L. Stainthorp, Sarah J. Gelsomino, Ben H. Elson, People's Law Office, Chicago, IL, Robin Shellow, The Shellow Group, Milwaukee, WI, for Plaintiff.

Jenny Yuan, Susan E. Lappen, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.


J.P. STADTMUELLER, District Judge.

The plaintiff, Kevin Freeman, Sr.,1 filed his complaint in this matter on August 13, 2013. (Docket # 1). In it, he alleges that Michael Vagnini (Vagnini), a former police officer with the Milwaukee Police Department (“MPD”) and one of the defendants, unlawfully strip-searched him near a public street, while Jacob Knight (Knight) and other unknown MPD officers stood by and did nothing. (Compl. ¶¶ 16, 19). He sues Vagnini; Knight; the unknown officers; the City of Milwaukee (“the City”); and the officers' supervisors, Chief Edward Flynn (Flynn), Captain Edith Hudson (Hudson), and Sergeant Jason Mucha (Mucha) for violations of 42 U.S.C. § 1983, under various theories of liability. (Compl. ¶¶ 39–68). The defendants answered the plaintiff's complaint, (Docket # 24), and thereafter moved for partial judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket # 27). That motion is fully briefed (Docket # 28, # 29, # 32), and the Court now addresses it.


Before turning to the substance of the defendants' motion for partial judgment on the pleadings, the Court will first discuss the plaintiff's allegations and claims in further detail.

1.1 Alleged Facts

The plaintiff was riding as a passenger in his friend's car on December 16, 2011, when Vagnini, Knight, and the unknown officers pulled the car over on 26th Street in Milwaukee, Wisconsin. (Compl. ¶¶ 13–14).2 The officers ordered the plaintiff and the other occupants to exit the car. (Compl. ¶ 14).

Then, despite an alleged lack of probable cause, Vagnini strip-searched the plaintiff. (Compl. ¶¶ 15–16). In doing so, he pushed the plaintiff against a gate near 26th Street. (Compl. ¶ 16). Apparently unconcerned with affording the plaintiff some modicum of privacy, Vagnini reached into the plaintiff's underwear, grabbed the plaintiff's genitals, and touched the plaintiff's buttocks and anus, all within public view of the street. (Compl. ¶ 16). Knight and the unknown officers, meanwhile, stood by and did nothing. (Compl. ¶ 19).

Vagnini's search did not yield any contraband, but he nonetheless arrested the plaintiff, took him to the police station, and issued him a ticket for an ordinance violation. (Compl. ¶¶ 17–18).

This incident was, apparently, not an isolated one. In 2012, the Milwaukee County District Attorney's Office investigated other similar incidents. (Compl. ¶ 24). In October of 2012, the State of Wisconsin charged Vagnini, Knight, and two other officers with various crimes stemming from illegal strip searches and cavity searches. (Compl. ¶¶ 26–27). Vagnini and Knight both negotiated plea agreements and pled guilty to some of the charges brought against them. (Compl. ¶¶ 28–30).

However, long before the State of Wisconsin charged Vagnini, Knight, and the other officers, the Milwaukee Police Department had received complaints about similar illegal strip and cavity searches. ( See Compl. ¶¶ 31–38). Indeed, as early as 2008, MPD's Internal Affairs Division and supervisors, including Flynn, Hudson, and Mucha, received such complaints (Compl. ¶¶ 31, 33–34), but consistently rejected them as meritless (Compl. ¶ 32). Meanwhile, MPD's supervisors did not discipline the accused officers or take action to better train or supervise them. (Compl. ¶¶ 32, 35).

1.2 Plaintiff's Claims and Defendants' Motion

The plaintiff's complaint alleges various theories of liability against the defendants. Specifically, he alleges the following claims:

Count One: Unreasonable search and seizure in violation of 42 U.S.C. § 1983, against Vagnini (Compl. ¶¶ 39–40);

Count Two: False arrest in violation of 42 U.S.C. § 1983, against Vagnini, Knight, and the unknown officers (Compl. ¶¶ 41–42);

Count Three: Failure to intervene in violation of 42 U.S.C. § 1983, against Knight and the unknown officers (Compl. ¶¶ 43–44);

Count Four: Conspiracy to deprive the plaintiff of his constitutional rights in violation of 42 U.S.C. § 1983, against Vagnini, Knight, and the unknown officers (Compl. ¶¶ 45–51);

Count Five: Municipal liability in violation of 42 U.S.C. § 1983, and pursuant to Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against the City (Compl. ¶¶ 52–61);

Count Six: Supervisory liability in violation of 42 U.S.C. § 1983, against Flynn, Hudson, and Mucha (Compl. ¶¶ 62–65); and

Count Seven: Indemnification, pursuant to Wis. Stat. § 895.46, such that the City must pay any tort judgment for which its employees (here, Vagnini, Knight, the unknown officers, Flynn, Hudson, and Mucha) are responsible (Compl. ¶¶ 66–68).

The defendants have moved to dismiss Count Five (Br. in Supp. (Docket # 28) at 9–14), Count Six (Br. in Supp. at 14–18), and Count Four (Br. in Supp. at 18–19), pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.


The Court reviews a motion under Rule 12(c) using the same standard it would when reviewing a motion under Rule 12(b)(6). Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.2009) (citing Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir.2007)). This means that the Court must treat all of the plaintiff's factual allegations as true and draw all reasonable inferences in his favor. Scherr, 703 F.3d at 1073 (citing Fail–Safe, 674 F.3d at 892). Doing so, the Court must then determine whether the complaint contains sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To be clear, this requires only that the plaintiff has provided a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). He need not plead extremely specific facts; so long as he has given the defendants “fair notice of what the ... claim is and the grounds upon which it rests,” so as to “raise a right to relief above the speculative level,” then the Court should not dismiss the challenged counts of the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).


With the relevant allegations and legal standard set forth, the Court now turns to evaluating the substance of the defendants' Rule 12(c) motion.

3.1 Monell Claims Against the City of Milwaukee

In Monell, the Supreme Court held that municipalities are “persons” for purposes of 42 U.S.C. § 1983, and thus may be held liable for violations of civil rights, so long as the municipality has adopted or otherwise promulgated a policy or custom that violated the plaintiff's constitutional rights. 436 U.S. at 690, 98 S.Ct. 2018. The plaintiff has asserted a Monell claim against the City. (Compl. ¶¶ 52–61). The defendants, however, argue that the plaintiff's factual allegations in support of his Monell claim are not adequate to raise the inference that the City had a policy or custom that violated the plaintiff's constitutional rights. (Br. in Supp. at 9–14).

The Court will turn to the merits of this argument shortly, but must first discuss the pleading standards applicable to Monell claims.

3.1.1 Further Discussion of Application of Rule 12 Standard to Monell Claim

At the outset, the Court must note that Monell claims are subject to the pleading standard set out by the Supreme Court in the Twombly and Iqbal cases and discussed more fully by the Court, above. McCauley v. City of Chicago, 671 F.3d 611, 615 (7th Cir.2011) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, and Twombly, 550 U.S. at 570, 127 S.Ct. 1955). This is an important note because the plaintiff asserts that a liberal pleading standard applies to Monell cases. (Pl.'s Resp. (Docket # 29) at 6–7). Specifically, the plaintiff asserts that Seventh Circuit precedent allows Monell claims to escape dismissal even when they are “based on relatively conclusory allegations.” (Pl.'s Resp. at 6–7) (citing Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); McCormick v. City of Chicago, 230 F.3d 319, 323 (7th Cir.2000); Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir.2001); Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 480 (7th Cir.1997); Sledd v. Lindsay, 102 F.3d 282, 288–89 (7th Cir.1996); Jackson v. Marion Cty., 66 F.3d 151, 153–54 (7th Cir.1995)). Prior to the issuance of the Iqbal and Twombly decisions, it may very well have been possible to state only “boilerplate allegations,” and survive dismissal in § 1983 cases. Lanigan, 110 F.3d at 480. But, in the time since, the Seventh Circuit has not returned to such a liberal pleading standard. See McCauley, 671 F.3d at 615, 617–18. In fact, the Seventh Circuit has made clear that Iqbal applies to motions to dismiss in Monell cases, just as it would apply in any other case. Id., at 618 (quoting Iqbal, 556 U.S. at 683, 129 S.Ct. 1937, for the proposition that a Monell plaintiff must “allege enough ‘by way of factual content to nudge his claim of purposeful discrimination across the line from conceivable to plausible.’ (internal quotation omitted)). In that way, under McCauley, the Court must disregard conclusory and boilerplate statements in...

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