Kirksey v. Brennan

         EASTERN DISTRICT OF WISCONSIN                              

TERRANCE LAVELL KIRKSEY,                                            

              Plaintiff,                                            
                                   Case No. 19-CV-1278-JPS          
v.                                                                  



CORY BRENNAN, JAMES KREIN, IV,                                      
                                              ORDER                 
JAVIER VEGA, MYLES SMITH,                                           
STEPHEN VANG, JASON KENESIE,                                        
ROBERT SHREI, AARON DILLHOFF,                                       
and KENOSHA POLICE DEPARTMENT,                                      

              Defendants.                                           

    Plaintiff Terrance Lavell Kirksey, who is incarcerated at Waupun 
Correctional Institution, proceeds in this matter pro se. On March 26, 2021, 
the Court screened Plaintiff’s amended complaint and allowed Plaintiff to 
proceed on the following four claims: (1) unlawful search and seizure on 
December 26, 2018 and December 28, 2018, in violation of the Fourth  
Amendment,  against  the  Officer  Defendants;  (2)  unlawful  arrest  on 
December 28, 2018, in violation of the Fourth Amendment, against the 
Officer Defendants; (3) retaliation, in violation of the First Amendment, 
against the Officer Defendants, when Plaintiff was arrested on December 
28, 2018; and (4) a Monell claim against the Kenosha Police Department for 
an alleged unconstitutional practice, custom, or official policy. ECF No. 27 
at 7. On July 13, 2022, the Court issued a scheduling order with summary 
judgment motions due on or before January 6, 2023. ECF No. 48.       
    On December 12, 2022, Defendants filed a motion for summary     
judgment. ECF No. 61. On February 3, 2023, the Court ordered Plaintiff to 
file a response on or before February 16, 2023 or accept the consequences of 
received Defendants’ motion due to a mailing issue. ECF No. 67. That same 
day, Defendants filed an affidavit indicating that they mailed a new copy 
of the summary judgment materials on February 15, 2023.  ECF No. 68.  
    On February 17, 2023, the Court granted Plaintiff’s motion for an 
extension of time. ECF No. 69. The Court ordered Plaintiff to file any 
opposition on or before March 9, 2023. Id. That deadline has since passed, 
and Plaintiff has filed no opposition or otherwise responded. As such, 
Defendants’ motion for summary judgment is ready for disposition. As 
discussed  in  detail  below  the  Court  grants  Defendants’  motion  for 
summary judgment in full and will accordingly dismiss this case with 
prejudice.                                                           
1.   LEGAL STANDARD — SUMMARY JUDGMENT                               
    Under Federal Rule of Civil Procedure 56, the “court shall grant 
summary judgment if the movant shows that there is no genuine dispute as 
to any material fact and the movant is entitled to judgment as a matter of 
law.” Fed. R. Civ. P. 56; Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A 
fact is “material” if it “might affect the outcome of the suit” under the 
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 
(1986).  A  dispute  of  fact  is  “genuine”  if  “the  evidence  is  such  that  a 
reasonable jury could return a verdict for the nonmoving party.” Id.  
    The Court construes all facts and reasonable inferences in a light 
most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 
F.3d 356, 360 (7th Cir. 2016). In assessing the parties’ proposed facts, the 
Court must not weigh the evidence or determine witness credibility; the 
Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. 
Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).               
    In  compliance  with  the  Court’s  order,  Defendants  submitted  a 
statement of joint proposed material facts. ECF No. 62-1. As such, the 
following facts are taken directly from the parties’ stipulated facts (“PSF”). 
Defendants also included a list of disputed facts as identified by Plaintiff. 
ECF No. 62-2.                                                        
    On the night of December 26, 2018, Plaintiff drove his girlfriend, 
Alyssa Gutwasser, to Aurora Hospital for the treatment of her severe head 
injuries. PSF 1. In the early morning of December 27, 2018, Kenosha Police 
Officers responded to Aurora Hospital to investigate a potential battery of 
Ms.  Gutwasser.  PSF  2.  Plaintiff  told  officers  that  Ms.  Gutwasser  had 
sustained significant head trauma after being jumped by a gang, and then 
falling in the bathroom of the apartment she shared with Plaintiff. PSF 3. 
While Plaintiff was in the waiting room at Aurora Hospital, he gave officers 
permission to enter his residence, located in Kenosha, WI, so they could 
complete their investigation. PSF 4.                                 
    On December 28, 2018, Ms. Gutwasser told Detective Brennan that 
Plaintiff had caused her injuries by hitting her, kicking her, and stomping 
on her face. PSF 5. Ms. Gutwasser informed Detective Brennan that she 
lived with her boyfriend (Plaintiff), Barbara Thomas, Andrew Billups, and 
her two minor children. PSF 6. Ms. Gutwasser told Detective Brennan that 
her two minor children had witnessed the assault, that she feared for her 
children’s safety, and that she consented to officers entering her apartment. 
PSF 7. On December 28, 2018, Officer Krein was dispatched to Plaintiff’s 
home. Officers knocked on the apartment and contacted Plaintiff. Plaintiff 
was asked to step into the hallway where he was placed under arrest. PSF 
8. Plaintiff was not arrested in retaliation for any complaints about the 
Kenosha Police Department Plaintiff had made or that he had attempted to 
committed the crime of substantial battery and domestic abuse. PSF 9. 
    Andrew Billups and Barbara Thomas advised Officer Krein that they 
had  lived  at  the  residence.  Following  Plaintiff’s  arrest,  Officer  Krein 
transported Ms. Thomas to the Kenosha Police Department’s Detective  
Bureau, where she gave a statement to Detective Brennan. PSF 10. After Ms. 
Thomas gave a statement to Detective Brennan, Officer Krein Transported 
Ms. Thomas back to her residence at which time she consented to a search 
of the apartment. PSF 11.                                            
    Plaintiff was charged with substantial battery and domestic abuse, 
Kenosha County Case No. 19-CF-3. On November 19, 2019, Plaintiff pled 
guilty to felony aggravated battery-intentional bodily harm. PSF 12. As a 
part of the criminal proceedings, Plaintiff filed motions to suppress certain 
evidence seized in his apartment, based on his assertion that his arrest on 
December 28, 2018 had been unlawful, and that the subsequent search of 
his apartment on December 28, 2018 had also been unlawful. PSF 13.  Judge 
Rossell ruled that Plaintiff had not been arrested inside his apartment, but 
rather that the arrest had occurred outside Mr. Kirksey’s apartment in the 
hallway and that the arresting officers had probable cause to effect Mr. 
Kirksey’s arrest. PSF 15. Judge Rossell also ruled that Ms. Thomas had 
authority to allow officers into the apartment. As such the motions to 
suppress evidence were denied. Id.                                   
     There is no practice or policy within the Kenosha Police Department 
of abusing citizens and/or ignoring their Constitutional Rights. PSF 15.  
3.   ANALYSIS                                                        
    Defendant’s motion for summary judgment seeks dismissal of all  
claims in the case (i.e., the Fourth Amendment illegal search and seizure 
claims, the Fourth Amendment illegal arrest claim, the First Amendment 
to file any opposition to Defendants’ motion. For the sake of completeness 
and  in  line  with  Seventh  Circuit  guidance,  however,  the  Court  has 
considered  Defendants’  motion  for  summary  judgment  to  determine 
whether it states adequate grounds for the relief requested. Bonvolanta v. 
Delnor Cmty. Hosp., 413 F. Supp. 2d 906, 908 (N.D. Ill. 2005) (citing Nabozny 
v.  Podlesny,  92  F.3d  446,  457  n.9  (7th  Cir.  1996)  (“[T]he  Seventh 
Circuit . . . requires that before granting a dispositive motion as unopposed, 
the trial judge must look at the motion to determine whether it states 
adequate grounds for the relief requested.”)). As discussed below in detail, 
the Court grants summary judgment on all claims and will dismiss this case 
with prejudice.                                                      
    3.1  Fourth Amendment — Seizure                                 
    Defendants argue that summary judgment is appropriate on the    
illegal seizure claim because the officers had reasonable suspicion to detain 
and question Plaintiff on the morning of December 27, 2019. ECF No. 62 at 
4.                                                                   
    The Fourth Amendment protects people from unreasonable searches 
and seizures. Stopping someone is generally considered a seizure and 
ordinarily requires probable cause to be reasonable. See Dunaway v. New 
York,  442  U.S.  200,  213  (1979).  In  Terry  v.  Ohio,  the  Supreme  Court 
recognized an exception to the probable-cause requirement. 392 U.S. 1 
(1968).  “Under  Terry,  police  officers  may  briefly  detain  a  person  for 
investigatory purposes based on the less exacting standard of reasonable 
suspicion that criminal activity is afoot.” United States v. Eymann, 962 F.3d 
273,  282  (7th  Cir.  2020)  (citing  Terry,  392  U.S.  at  21–22).  Reasonable 
suspicion is a lower standard than probable cause. See Navarette v. California, 
572 U.S. 393, 397 (2014). It is a “commonsense, nontechnical [standard] that 
which reasonable and prudent men, not legal technicians, act.’” Ornelas v. 
United  States,  517  U.S.  690,  695  (1996)  (citation  omitted).  It  is  judged 
holistically, based on “the sum of all of the information known to officers at 
the time of the stop.” See Matz v. Klotka, 769 F.3d 517, 523 (7th Cir. 2014). 
    A Terry stop comes with limits. For a stop to “pass constitutional 
muster, the investigation following it must be reasonably related in scope 
and duration to the circumstances that justified the stop in the first instance 
so that it is a minimal intrusion on the individual's Fourth Amendment 
interests.” United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994). This 
means a Terry stop cannot continue indefinitely. See United States v. Sharpe, 
470 U.S. 675, 685 (1985). A stop lasting too long becomes “a de facto arrest 
that must be based on probable cause.” United States v. Bullock, 632 F.3d 
1004, 1015 (7th Cir. 2011). One of three things must happen during a Terry 
stop: “(1) the police gather enough information to develop probable cause 
and allow for continued detention; (2) the suspicions of the police are 
dispelled and they release the suspect; or (3) the suspicions of the police are 
not dispelled, yet the officers have not developed probable cause but must 
release the suspect because the length of the stop is about to become 
unreasonable.”  United  States  v.  Leo,  792  F.3d  742,  751  (7th  Cir.  2015) 
(citations omitted).                                                 
    Whether a Terry stop becomes unreasonably prolonged turns on the 
direction the Supreme Court provided in United States v. Place, 462 U.S. 696 
(1983) and United States v. Sharpe, 470 U.S. 675 (1985). In Place, the Court 
declined to adopt any bright-line time limit. See 462 U.S. at 709. “Such a 
limit,” the Court explained, “would undermine the equally important need 
to allow authorities to graduate their responses to the demands of any 
particular situation.” Id. at 709 n.10. Two years after Place rejected a “hard-
analyzing whether a Terry stop has exceeded a reasonable duration, courts 
should  “examine  whether  the  police  diligently  pursued  a  means  of 
investigation that was likely to confirm or dispel their suspicions quickly, 
during which time it was necessary to detain the defendant.” Sharpe, 470 
U.S. at 686 (citing Place, 462 U.S. at 709).                         
    Here, the Court acknowledges that the facts related to Plaintiff’s 
alleged detention at the hospital are severely lacking in detail. Plaintiff’s 
amended complaint only vaguely states “several officers refused to let 
Plaintiff leave at his will and continued to question and antagonize him.“ 
ECF  No.  21  at  2.  It  is  undisputed  that  Plaintiff  came  to  the  hospital 
voluntarily and that Defendants were there to investigate what happened 
to his girlfriend, Ms. Gutwasser. It is unclear why Plaintiff felt he could not 
leave and it is also unclear if Plaintiff tried to leave and was unable to do 
so. Given the available facts, the Court is not even necessarily convinced 
that Plaintiff was seized within the meaning of the Fourth Amendment.  
    However, even assuming Plaintiff was seized, the Court finds that 
given  the  record  before  it,  Defendants  acted  reasonably  because  they 
diligently pursued their investigation of who injured Ms. Gutwasser and it 
was necessary to detain Plaintiff during that investigation. See Sharpe, 470 
U.S. at 686. In the early morning of December 27, 2018, Kenosha Police 
Officers responded to Aurora Hospital to investigate a potential battery of 
Ms. Gutwasser—who had serious injuries. See PSF 2. Plaintiff spoke to 
officers while in the public waiting room. ECF No. 63 at 5, Plaintiff’s Depo. 
Plaintiff  told  Defendants  that  he  had  driven  Ms.  Gutwasser  to  the 
emergency  room  after  she  was  assaulted  by  a  gang  and  fell  in  their 
bathroom. Id. While Plaintiff was in the hospital waiting room, he gave 
officers permission to enter his residence to complete their investigation 
at  5,  Plaintiff’s  Depo.  Given  Ms.  Gutwasser’s  serious  injuries,  the 
Defendants’ initial questioning of Plaintiff after he brought her into the 
hospital was eminently reasonable. Plaintiff’s answers increased the need 
to investigate when Defendants learned he was her significant other and 
Plaintiff  told  a  strange  story  about  a  gang  attacking  Ms.  Gutwasser. 
Nothing in the record indicates that Defendants unreasonably delayed their 
investigation or detained Plaintiff for any longer than was necessary. As 
such, the Court finds that no illegal seizure occurred, and the Court will 
accordingly  grant  Defendants’  motion  for  summary  judgment  on  this 
claim.                                                               
    3.2  Fourth Amendment — Illegal Search                          
    The Court first addresses the issue of what searches are at issue in 
this case. The Court’s screening order, in hindsight, could certainly been 
clearer; it provided: “Plaintiff may proceed on a claim for a violation of his 
Fourth Amendment rights when his dwelling was searched without a     
warrant and when he was arrested.” See ECF No. 27 at 6. Without any  
opposition from Plaintiff, it is not entirely clear what Plaintiff’s position on 
any illegal search claims would be. Thus, in order to be thorough and cover 
all of Plaintiff’s allegations, the Court addresses the legality of the following 
three searches: (1) the search of Plaintiff’s apartment on December 27, 2018; 
(2) Defendants’ entry into Plaintiff’s home on December 28, 2018 without a 
warrant;  and  (3)  Defendants’  warrantless  search  of  Plaintiff’s  home 
following his arrest.                                                
         3.2.1  December 27, 2018 — Search of Plaintiff’s Home      
    First, the Court easily dispels of any claim that the December 27, 2018 
search of Plaintiff’s home was illegal. The Fourth Amendment generally 
prohibits the warrantless entry of a person's home to perform a search or 
seizures  inside  a  home  without  a  warrant  are  presumptively   
unreasonable.”);  Illinois  v.  Rodriguez,  497  U.S.  177,  181  (1990).  But  the 
prohibition does not apply when voluntary consent has been obtained, 
either from the individual whose property is searched, or from a third party 
who possesses common authority over the premises. Id. When a person  
allows a third party to exercise authority over his property, he assumes the 
risk  that  the  third  party  might  permit  access  to  others,  including 
government agents. United States v. Terry, 915 F.3d 1141, 1145 (7th Cir. 2019) 
(citations omitted). In a § 1983 case, once the defendant presents evidence 
that the plaintiff consented to the search, the burden shifts to the plaintiff 
to establish the lack of consent to search. Valance v. Wisel, 110 F.3d 1269, 1279 
(7th Cir. 1997).                                                     
    At his deposition, Plaintiff conceded that he allowed officers into his 
apartment on December 27, 2018 to complete their investigation. PSF 4. 
Given Plaintiff’s lack of opposition, the Court has no independent basis to 
conclude  that  consent  was  not  voluntarily  given.  Given  Plaintiff’s 
admission that he consented to the December 27, 2018 search, the Court 
finds  that  this  search  was  reasonable.  As  such,  the  Court  will  grant 
Defendants’ motion for summary judgment on this claim.               
         3.2.2  Warrantless Entry of Plaintiff’s Home               
    Plaintiff  maintained  in  his  deposition  that  Defendants  illegally 
entered  his  residence  on  December  28,  2018,  to  arrest  him  without  a 
warrant. See ECF No. 62 at 6 (citing Plaintiff’s deposition, ECF No. No. 63 
at 8). Defendants do not concede that they arrested Plaintiff inside his 
residence. ECF No. 62 at 7. Defendants acknowledge this disputed fact, as 
they must at the summary judgment stage, and instead argue that even 
residence to arrest him was lawful based on Ms. Gutwasser’s consent. Id. 
    As  established  above,  a  warrantless  search  of  a  home  is 
constitutionally permissible with consent. In this instance, the undisputed 
facts show that Ms. Gutwasser resided with Plaintiff. See PSF 6; see also ECF 
No. 63 at 9 (Plaintiff admitting in deposition that Ms. Gutwasser lived with 
him). The undisputed evidence also shows that Ms. Gutwasser provided 
consent for the warrantless entry into Plaintiff’s home on December 28, 
2018. PSF 7; see also ECF No. 63 at 15 (Plaintiff admitting in deposition that 
he had no idea if Ms. Gutwasser gave officers permission to enter the 
home). Defendants’ evidence shows that Ms. Gutwasser had authority to 
consent to the search of Plaintiff’s residence. Plaintiff has failed to file any 
opposition and thus failed to establish the lack of consent to search. As such, 
the Court finds that the Defendants’ warrantless entry into his home on 
December 28, 2018 was reasonable, and the Court will grant Defendants’ 
motion for summary judgment on this claim.                           
         3.2.3  Warrantless Search Following Plaintiff’s Arrest     
    Finally, Plaintiff claims that following his arrest on December 28, 
2018, Defendants unlawfully entered and searched his residence. ECF No. 
27 at 7. Defendants argue they are entitled to summary judgment because 
Ms. Thomas had apparent authority to consent to their entry and search. 
ECF No. 62 at 7.                                                     
    The Fourth Amendment’s prohibition against warrantless entry into 
the home does not apply when officers have obtained voluntary consent 
from the individual whose property is to be entered or from a third party 
who possesses common authority over the property. Rodriquez, 497 U.S. at 
177. The Supreme Court has clarified that a warrantless entry based on a 
third-party's consent is reasonable under the Fourth Amendment as long as 
over the property, even if it is later discovered that the third party did not 
have common authority over the property. Id. at 186–89.              
    Here, the undisputed facts establish that Ms. Thomas gave officers 
consent to search Plaintiff’s residence following his arrest on December 28, 
2018. PSF 11. Plaintiff maintained in his deposition that Ms. Thomas did not 
live with Plaintiff, and Plaintiff would therefore likely argue that she did 
not have common authority over the property to give consent for the search. 
Nonetheless, the Court finds that Defendants’ search of the property was 
reasonable  given  Plaintiff’s  apparent  authority.  Ms.  Thomas  told  the 
officers that she lived at the residence. PSF 10.  Following Ms. Thomas’s 
statement at the Kenosha Police Department, Officer Krein transported Ms. 
Thomas back to the residence where she consented to a search of the  
apartment. PSF 11. Based on these facts, the Court finds that Defendants 
reasonably believed that Ms. Thomas had common authority over the    
property to provide consent to search. The Court therefore finds the search 
of  Plaintiff’s  residence  following  his  arrest  was  reasonable,  and  will 
accordingly  grant  Defendants’  motion  for  summary  judgment  on  this 
claim.                                                               
    3.3  Fourth Amendment — False Arrest                            
    The Court allowed Plaintiff to proceed on a Fourth Amendment    
claim for his unlawful arrest on December 28, 2018. ECF No. 27 at 7. 
Defendants  maintain  the  arrest  was  lawful  because  Defendants  had 
probable cause to arrest Plaintiff. ECF No. 62. At 6. Defendants do not 
identify any specific crime that they had probable cause to arrest for; 
instead, they simply state that “a reasonable officer would have believed 
that Mr. Kirksey had assaulted Ms. Gutwasser.” Id.                   
Montano v. City of Chicago, 535 F.3d 558, 568 (7th Cir. 2008); Reynolds v. 
Jamison, 488 F.3d 756, 765 (7th Cir. 2007). A police officer has probable cause 
to arrest if a reasonable person would believe, based on the facts and 
circumstances known at the time, that a crime had been committed. McBride 
v. Grice, 576 F.3d 703, 707 (7th Cir. 2009) (citing Beck v. Ohio, 379 U.S. 89, 91 
(1964)). Normally, an officer may base a determination of probable cause 
on information from the putative victim if the officer reasonably believes 
that the victim is telling the truth. Id. An officer should pursue reasonable 
avenues of investigation and may not close his eyes to facts that would 
clarify the situation, but once an officer has established probable cause, he 
may end his investigation. Id. The Supreme Court has made clear that “an 
arresting officer’s state of mind (except for the facts that he knows) is 
irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543 U.S. 
146, 153 (2004). Since that decision, the Seventh Circuit has held that “’an 
arrest can be supported by probable cause that the arrestee committed any 
crime.’”  Jump  v.  Village  of  Shorewood,  42  F.4th  782,  789  (7th  Cir.  2022) 
(quoting Abbott v. Sangamon County, Ill., 705 F.3d 706, 715 (7th Cir. 2013)). 
    Despite  Defendants’  failure  to  identify  a  specific  crime  in  their 
argument, Plaintiff was eventually charged with substantial battery and 
domestic abuse, Kenosha County Case No. 19-CF-3. Plaintiff later pled 
guilty  to  felony  aggravated  battery-intentional  bodily  harm.  PSF  12. 
Wisconsin’s criminal battery statute, Wis. Stat. § 940.19. Section 940.19 
establishes criminal liability for both simple battery (“[w]hoever causes 
bodily harm to another by an act done with intent to cause bodily harm to 
that person or another without the consent of the person so harmed is guilty 
of  a  Class  A  misdemeanor,”  id.  §  940.19(1))  and  substantial  battery 
(“[w]hoever causes substantial bodily harm to another by an act done with 
felony,” id. § 940.19(2)). Both simple and substantial battery share three 
elements: (1) causation, (2) harm, and (3) intent. See State v. Martin, 456 
N.W.2d 892, 895 (Wis. Ct. App. 1990). Simple battery adds a fourth element, 
that the act is done without the consent of the person harmed. Wis. Stat. 
§ 940.19(1); see State v. Giwosky, 326 N.W.2d 232, 234–35 (Wis. 1982) (citing 
“the four elements of [simple] battery” as bodily harm, causation, intent, 
and lack of consent). Criminal intent in Wisconsin can be inferred from a 
party's overt acts and conduct and inferences fairly deducible from the 
circumstances. State v. Lunz, 273 N.W.2d 767, 772 (Wis. 1979). The levels of 
harm are statutorily defined. “ ‘Bodily harm’ means physical pain or injury, 
illness, or any impairment of physical condition,” Wis. Stat. § 939.22(4), 
while  “‘[s]ubstantial  bodily  harm’  means  bodily  injury  that  causes  a 
laceration that requires stitches, staples, or a tissue adhesive; any fracture 
of  a  bone;  a  broken  nose;  a  burn;  a  petechia;  a  temporary  loss  of 
consciousness, sight or hearing; a concussion; or a loss or fracture of a 
tooth,” id. § 939.22(38).                                            
    Here, the Court finds that Plaintiff’s arrest on December 18, 2018 was 
lawful  because  the  undisputed  facts  show  the  defendant  officers  had 
probable cause to arrest him for battery. On December 26, 2018, Plaintiff 
drove his girlfriend, Ms. Gutwasser, to Aurora Hospital for the treatment 
of her severe head injuries. PSF 1. On December 27, 2018, Defendants 
responded to Aurora Hospital to investigate a potential battery of Ms. 
Gutwasser. PSF 2. Although Plaintiff told the officers that Ms. Gutwasser’s 
injuries were caused by a gang and then falling in the bathroom, see PSF 3, 
Ms. Gutwasser later told Detective Brennan on December 28, 2018, that 
Plaintiff had caused her injuries by hitting her, kicking her, and stomping 
believed  that  Plaintiff  committed  the  crime  of  battery.  Although  Ms. 
Gutwasser was the victim accusing Plaintiff, nothing in the record indicates 
that Defendants had any reason to think Ms. Gutwasser was not telling the 
truth. The fact that Ms. Gutwasser waited over a day to accuse Plaintiff does 
not  affect  Defendants’  reasonableness  in  believing  her  story.  After  all, 
“[a]cts of domestic violence often are intended to dissuade a victim from 
resorting  to  outside  help,  and  include  conduct  designed  to  prevent 
testimony to police officers or cooperation in criminal prosecutions.” Giles 
v.  California,  554  U.S.  353,  377  (2008).  As  such,  the  Court  finds  that 
Defendants had probable cause to arrest Plaintiff on December 28, 2018, for 
battery.                                                             
    3.4  First Amendment — Retaliation                              
    The Court allowed Plaintiff to proceed on a claim for a violation of 
his First Amendment rights when he was allegedly arrested in retaliation 
for  attempting  to  submit  a  complaint  against  the  Kenosha  Police 
Department.  ECF  No.  27  at  6.    Defendants  argue  that  Plaintiff’s  First 
Amendment retaliation claim fails as a matter of law because Plaintiff fails 
to provide any proof of retaliatory treatment. ECF No. 62 at 9. Specifically, 
Defendants  argue  that  Plaintiff’s  claim  fails  because  Defendants  had 
probable cause to arrest him.                                        


    1The Court identifies a discrepancy in Defendants’ filings. Defendants’ 
joint  statement  of  undisputed  facts  provides  that  it  is  undisputed  that  Ms. 
Gutwasser told Detective Brennan that Plaintiff had caused her injuries. See PSF 5. 
However, Defendants’ proposed disputed material facts provides the same fact. 
ECF No. 62-2 ¶ 2. Under normal circumstances, it would be unclear if this fact is 
disputed. However, given Plaintiff’s lack of any opposition, Plaintiff fails to 
address  Defendants’  assertion.  As  such,  the  Court  will  consider  the  fact 
(2019), the Supreme Court held that probable cause typically defeats a claim 
for retaliatory arrest. As discussed in detail above, the Court finds that 
Defendants had probable cause to arrest Plaintiff. That does not, however, 
entirely end the analysis of this issue.                             
    The  Nieves  rule  has  at  least  one  important  exception,  which 
recognizes that police often “have probable cause to make arrests” for a 
wide range of minor offenses “but typically exercise their discretion not to 
do so.” Id. at 1727. A plaintiff who cannot plead and prove an absence of 
probable cause can still succeed if he shows objective evidence that he was 
“arrested when otherwise similarly situated individuals not engaged in the 
same sort of protected speech had not been.” Id. For example, the Nieves 
majority wrote that if a plaintiff critical of police brutality is arrested for 
jaywalking, that plaintiff might prevail on a retaliatory arrest claim by 
showing  that  “jaywalking  is  endemic  but  rarely  results  in  arrest.”  Id. 
Likewise,  a  plaintiff  might  prevail  by  pointing  to  similarly-situated 
comparators, statements from arresting officers or other police officials, or 
a wide range of other “objective evidence” of retaliation. See Lund, 956 F.3d 
at 945 (citing Nieves, 139 S. Ct. at 1727).                          
    Here, Plaintiff has provided zero evidence or argument that this is 
the  type  of  case  where  officers  improperly  exercised  their  discretion. 
Without evidence to the contrary, the Court has no reason to believe that 
the exception to Nieves applies in this case. As such, the Court finds that 
Plaintiff’s First Amendment retaliatory arrest claim fails as a matter of law 
because  Defendants  had  probable  cause  to  arrest  him.  The  Court  will 
accordingly  grant  Defendants’  motion  for  summary  judgment  on  this 
claim.                                                               
    Finally, Plaintiff brought a Monell claim against the Kenosha Police 
Department for its alleged unconstitutional practice, custom or official 
policy. ECF No. 27 at 7. Based on the Court’s analysis above, however, 
Plaintiff’s Monell claim must be dismissed because there is no underlying 
constitutional violation.                                            
    To be liable for an unconstitutional policy, “[t]he municipal policy or 
practice  must  be  the  ‘direct  cause’  or  ‘moving  force’  behind  the 
constitutional  violation,  which  a  plaintiff  may  show  directly  by 
demonstrating that the policy is itself unconstitutional.” Minix v. Canarecci, 
597 F.3d 824, 832 (7th Cir. 2010). “[I]f no constitutional violation occurred 
in the first place, a Monell claim cannot be supported.” Petty v. City of 
Chicago,  754  F.3d  416,  424  (7th  Cir.  2014);  see  also  Sallenger  v.  City  of 
Springfield, Ill., 630 F.3d 499, 504 (7th Cir. 2010) (“[A] municipality cannot 
be liable under Monell when there is no underlying constitutional violation 
by a municipal employee.”). The Court has already concluded that Plaintiff 
failed  to  demonstrate  that  a  constitutional  violation  occurred.  Because 
Plaintiff has suffered no violation of his rights, there can be no municipal 
liability.  Accordingly,  the  Court  will  grant  Defendants’  motion  for 
summary judgment on the Monel claim.2                                
4.   CONCLUSION                                                      
    Despite ample opportunity, Plaintiff failed to oppose Defendants’ 
motion for summary judgment. For the reasons explained above, the Court 
has independently analyzed Defendants’ motion and grants  summary    


    2Defendants  also  argued  that  Plaintiff’s  claims  are  barred  by  Heck  v. 
Humphrey, 512 U.S. 477 (1994). ECF No. 62 at 14. Because the Court grants 
summary judgment on the merits of the claims, the Court need not address this 
judgment as to all claims. The Court will accordingly dismiss this case with 
prejudice. 
      Accordingly, 
      IT IS ORDERED that Defendants’ motion for summary judgment, 
ECF No. 61, be and the same is hereby GRANTED in full as provided in 
this Order; and 
      IT  IS  FURTHER  ORDERED  that this  action be  and  the  same  is 
hereby DISMISSED with prejudice. 
      The Clerk of the Court is directed to enter judgment accordingly. 
      Dated at Milwaukee, Wisconsin, this 21st day of March, 2023. 
                              “ TH re 
                                      Sy    A 
                                 he} 
                              SARS FA  Lien    a    □ 
                              J\P.      mueller 
                              U®. DistricfFJudge 

 This Order and the judgment to follow are final. A dissatisfied party may 
 appeal  this  Court’s  decision to the  Court of Appeals for the  Seventh 
 Circuit by filing in this Court a notice of appeal within thirty (30) days of 
 the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend 
 this deadline if a party timely requests an extension and shows good 
 cause  or  excusable  neglect  for  not being  able  to  meet  the  thirty-day 
 deadline.  See  Fed.  R.  App.  P.  4(a)(5)(A).  Moreover,  under  certain 
 circumstances, a party may ask this Court to alter or amend its judgment 
 under  Federal  Rule  of  Civil  Procedure  59(e)  or  ask  for  relief  from 
 judgment  under  Federal  Rule  of  Civil  Procedure  60(b).  Any  motion 
 under Federal Rule of Civil Procedure 59(e) must be filed within twenty- 
 eight (28) days of the entry of judgment. The Court cannot extend this 
 deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of 
 Civil Procedure 60(b) must be filed within a reasonable time, generally 
 no more than one year after the entry of the judgment. The Court cannot 
 extend this deadline.  See id.  A party is expected to closely review all 
 applicable rules and determine what, if any, further action is appropriate 
 in a case. 
                           Page 17 of 17