Pullen v. House

• Decision Date: 20 February 2015
• Docket Number: No. 13–cv–827–bbc.,13–cv–827–bbc.
• Citation: 88 F.Supp.3d 927
• Parties: Marvin PULLEN and Group Health Cooperative of South Central Wisconsin, Plaintiffs, v. Cary G. HOUSE, Colleen M. Michelson and City of Madison, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

88 F.Supp.3d 927

Marvin PULLEN and Group Health Cooperative of South Central Wisconsin, Plaintiffs¹

v.Cary G. HOUSE, Colleen M. Michelson and City of Madison, Defendants.

No. 13–cv–827–bbc.

United States District Court, W.D. Wisconsin.

Signed Feb. 20, 2015.

Lisa Claire Goldman, Davey & Goldman, Madison, WI, for Plaintiffs.

Matteo Reginato, Samuel C. Hall, Jr., Crivello Carlson, S.C., Milwaukee, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

On March 16, 2011, defendant Colleen M. Michelson, an officer for the Madison Police Department, pulled over plaintiff Marvin Pullen to investigate possible child abuse by the mother of plaintiff's daughter. Plaintiff was not suspected of any wrongdoing and the mother was not in the car, which would suggest that the stop would be brief and uneventful. Instead, the stop became contentious and physical. After plaintiff failed to comply with some of Michelson's orders, Michelson and defendant Cary House (another Madison police officer, who arrived on the scene shortly after plaintiff was stopped) subjected plaintiff to a “knee strike” and three taser strikes and then handcuffed and arrested him for resisting an officer in violation of Wis. Stat. § 946.41. (Neither side explains what a “knee strike” is, but I assume that the officer used his knee to hit plaintiff.) Plaintiff was taken to the hospital in an ambulance for injuries he sustained when the third taser strike caused him to fall on his face. The charge for resisting was later dismissed.

In this civil lawsuit brought under 42 U.S.C. § 1983 and state law, plaintiff contends that his injuries were the result of a false arrest and use of excessive force by defendants. In addition, he contends that the City of Madison may be held liable for failing to train, supervise and discipline its officers adequately.

Defendants have moved for summary judgment on all of plaintiff's claims. Dkt. # 23. With respect to plaintiff's federal claims against the officers, defendants argue that they had probable cause to arrest plaintiff for both resisting an officer and aiding and abetting child abuse and that no reasonable jury could find that defendants used excessive force. In the alternative, defendants argue that clearly established law does not show that they violated plaintiff's constitutional rights, so they are entitled to qualified immunity. Defendants argue that plaintiff's state law claims are governed by the same standard as federal law and should be dismissed as well. Finally, defendants argue that city cannot be held liable under § 1983 because plaintiff has not adduced evidence of a policy that caused any constitutional violation that may have occurred.

Plaintiff has filed a cross motion for summary judgment on his federal claims. Dkt. # 27. He argues that, under the undisputed facts, clearly established law establishes that defendants subjected him to a false arrest and excessive force. In addition, he argues that the city may be held liable as a matter of law.

I am granting plaintiff's motion for summary judgment with respect to the issue whether defendants had probable cause to arrest plaintiff for aiding and abetting child abuse. I am granting defendants' motion for summary judgment with respect to plaintiff's claim against the city and with respect to plaintiff's claim that defendant Michelson failed to intervene to stop defendant House from delivering a knee strike to plaintiff and from deploying the third taser strike. However, for the reasons discussed below, I conclude that genuine issues of material fact preclude granting either side's motion for summary judgment with respect to the remaining issues.

OPINION

A. Police Reports

On many occasions in their proposed findings of fact, defendants rely on their police reports to prove the truth of a particular fact without citing any affidavit or deposition testimony to back up the report. Because plaintiff objects to the police reports as hearsay, an important threshold question is whether defendants' police reports are admissible in the context of the parties' motions for summary judgment.

Neither side cites binding authority supporting their view. Defendants cite Woods v. City of Chicago, 234 F.3d 979 (7th Cir.2000), for the proposition that “[p]roperly authenticated police reports are admissible as business records” under Fed.R.Evid. 803(6), but Woods does not include that holding. Rather, the court held that the statements in the police reports were not hearsay because the defendants were not relying on them for the truth of the matter. Id. at 986–87.

Plaintiff cites Palmer v. Hoffman, 318 U.S. 109, 113, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.1993), for the general proposition that records “made in anticipation of litigation” cannot qualify as business records under Rule 803(6), but in neither of those cases did the court hold that police reports should be treated as records made in anticipation of litigation. In fact, neither case involved police reports at all.

Defendants also cite three district court cases, but the court in each of those cases simply stated that police reports could qualify as business records under some circumstances. Bloodworth v. Village of Greendale, 2011 WL 98835, at *5 (E.D.Wis.2011) ; Latosky v. Strunc, 2009 WL 1073680, at *4 (E.D.Wis.2009) ; Hottenroth v. Village of Slinger, 2003 WL 24153923, at *5 n. 8 (E.D.Wis.2003). None of these cases include any reasoning or a discussion of the circumstances in which it would be appropriate to treat police reports as a business record. (Some of these cases discuss treating police reports as “public records” under Fed.R.Evid. 803(8), but defendants do not argue that the police reports qualify under the public records exception to the hearsay rule, so I do not consider that question.)

The key question that is not addressed by the parties or the cases they cite is whether police reports may be considered sufficiently reliable to qualify as business records when they were prepared by the party being sued, a party who would have had an incentive to prepare the report in a self-serving manner, regardless whether the party was anticipating a lawsuit at the time. Fed.R.Evid. 803(6)(E) (record does not qualify for hearsay exception if “the source of information or the method or circumstances of preparation indicate a lack of trustworthiness”).

In my own research, I uncovered United States v. Ware, 247 F.2d 698, 700 (7th Cir.1957), which seems to support plaintiff's position. Relying on Palmer, 318 U.S. 109, 63 S.Ct. 477, the court held that reports by prepared by federal narcotics agents in the context of an arrest were inadmissible hearsay:

[E]ven if memoranda such as the ones in question are regularly prepared by law enforcement officers, they lack the necessary earmarks of reliability and trustworthiness. Their source and the nature and manner of their compilation unavoidably dictate that they are inadmissible under [the hearsay exception for business records]. They are also subject to the objection that such utility as they possess relates primarily to prosecution of suspected law breakers, and only incidentally to the systematic conduct of the police business.

In Bracey v. Herringa, 466 F.2d 702, 705 (7th Cir.1972), the court of appeals relied on Ware in the context of a § 1983 lawsuit to hold that “it was error for the district court to accept in support of the defendants' motion for summary judgment prison records which included the self-serving statements of the defendants themselves as well as statements of other prison guards who were subject to possible Civil Rights Act liability. This kind of record lacks reliability and trustworthiness.” In a footnote, the court stated in dicta that “[p]olice reports are ordinarily excluded when offered by the party at whose instance they were made.” Id. at n. 9.

The holdings, dicta and reasoning of these cases are strong support for a conclusion that defendants' police reports are not admissible in this case as business records under Fed.R.Evid. 803(6). Although both Ware and Bracey are older cases, I did not uncover any cases within the circuit undermining their continuing viability. As recently as 2013, the court of appeals has cited Bracey with approval. Jordan v. Binns, 712 F.3d 1123, 1135 (7th Cir.2013) (holding that insurance adjuster's report created after accident should have been excluded as hearsay).

However, there is an additional wrinkle that the parties do not address. In Jajeh v. County of Cook, 678 F.3d 560, 567–68 (7th Cir.2012), the court of appeals raised the question whether recent changes to Fed.R.Civ.P. 56 have eliminated the requirement that, in the context of a motion for summary judgment, statements must be sworn to be admissible:

In 2010, Rule 56 was reorganized and altered. “Subdivision (c)(4) carries forward some of the provisions of former subdivision (e)(1). Other provisions are relocated or omitted.” Fed.R.Civ.P. 56, advisory committee's note (2010 amends.). Rule 56(c)(4) no longer requires a formal affidavit to be submitted, but instead allows a declaration to be used to oppose a motion for summary judgment, so long as it is “made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.”

The court did not decide whether the unsworn statement was admissible because the court decided the appeal on other grounds. Id.

Jajeh was about unsworn declarations, but in Olson v. Morgan, 750 F.3d 708, 714 (7th Cir.2014), the court expanded the question to “whether anything more than an unsworn statement is needed to oppose summary judgment.” The court then cited Fed.R.Civ.P. 56(c)(2)-(4) for the proposition that “the Federal Rules of Civil Procedure allow parties to oppose summary judgment with materials that would be inadmissible at trial so long as facts therein could later be...