UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WISCONSIN
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`Case No. 20-cv-1502
`
`
`
`FRANK “NITTY” SENSABAUGH,
`
`
`
`
`
`MICHAEL KRZNARICH, et al.
`
`Defendant.
`
`
`______________________________________________________________________
`
`
`DECISION AND ORDER
`
`Plaintiff Frank “Nitty” Sensabaugh brings this action under § 1983 alleging that
`
`several members of the Milwaukee County Sheriff’s Office’s Mobile Response Team
`
`violated his constitutional rights by arresting him in retaliation for the exercise of his First
`
`Amendment Rights, by unreasonably seizing him and using excessive force under the
`
`Fourth Amendment and by violating his rights to equal protection under the Fourteenth
`
`Amendment. Plaintiff also asserts a ratification claim against Captain Tricia Carlson of
`
`the Milwaukee County Sheriff’s Office under the First, Fourth, and Fourteenth
`
`Amendments.
`
`On October 26, 2022, I granted defendants’ motion for summary judgment and
`
`dismissed this case. ECF 45. The clerk entered judgment the same day. ECF 46.
`
`Plaintiff has filed a Rule 59(e) motion for reconsideration of my decision and order. ECF
`
`50.
`
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 1 of 14 Document 55
`
`

`

`I.
`
`BACKGROUND
`
`Defendants Michael Krznarich, Sarah Byers, Corie Richardson, Brandon Rogers,
`
`Daniel Humphreys, and Steven Haw were, at all relevant times, employees of the
`
`Milwaukee County Sheriff’s Office (“MCSO”) and members of the Mobile Response
`
`Team (“MRT”), a unit within the MCSO that responds to large public gatherings,
`
`demonstrations, and disturbances which disrupt public order. Defendant Tricia Carlson
`
`was, at all relevant times, a captain in the MCSO.
`
`The May 25, 2020, killing of George Floyd by police in resulted in widespread
`
`protests across this country. Plaintiff, an African American, was participating in such a
`
`protest on June 2, 2020, in Milwaukee, Wisconsin. At approximately 6:30 p.m., the
`
`demonstration proceeded up an onramp from Clybourn Street onto Interstate 794 and
`
`the Hoan Bridge. Plaintiff marched with the demonstration up the onramp. As the
`
`demonstrators were marching onto the interstate, the MRT was dispatched to the
`
`scene. MRT officers hurried up the ramp and onto I-794 in an attempt to get in front of
`
`the demonstration. It is undisputed that plaintiff was shouting to other demonstrators to
`
`“fill it in, fill it in,” “close it off,” and “stay together,” though the purpose of these
`
`statements is disputed. Defendants claim plaintiff’s exclamations led them to believe
`
`that plaintiff was ordering the demonstrators to prevent the officers from moving up the
`
`ramp, while plaintiff claims he was merely instructing demonstrators to stay together for
`
`their safety. A group of demonstrators blocked the path of several MRT officers near the
`
`edge of the interstate, resulting in a shoving match between demonstrators and the
`
`MRT officers who were attempting
`
`to push past
`
`the demonstrators. Some
`
`demonstrators began throwing water bottles. Plaintiff approached the officers and
`2
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 2 of 14 Document 55
`
`

`

`demonstrators and shouted at the officers “stop.” Plaintiff’s hand then made contact with
`
`defendant Richardson’s face shield. The parties dispute whether plaintiff’s contact with
`
`Richardson was intentional.
`
`Defendant Krznarich testified that he was informed over the radio by the Incident
`
`Command Center that the protesters were being led onto the interstate by plaintiff.
`
`Krznarich knew who plaintiff was from interactions in other demonstrations that had
`
`taken place in the days prior. Once the MRT had reached the front of the protest, an
`
`officer ordered the crowd to disperse. MRT officers began firing canisters that emitted
`
`green smoke. Some demonstrators threw or kicked the smoke cannisters back at the
`
`officers. MRT officers then formed a line in front of the protest and began marching
`
`toward the demonstrators, forcing them to move back the way they had come. The
`
`protesters moved backward toward the onramp but continued to shout at the officers.
`
`Krznarich directed defendant Rogers and defendant Haw to arrest plaintiff. Rogers and
`
`Haw rushed forward through the line directly at the plaintiff; they did not announce that
`
`he was under arrest or otherwise order him to stop. Rogers tackled plaintiff, who hit the
`
`ground hard and landed on broken glass that caused lacerations that later required
`
`stitches. Haw helped Rogers hold plaintiff down.
`
`After plaintiff was subdued, the line of MRT officers quickly advanced forward
`
`and separated the plaintiff from the rest of the demonstrators. The officers then applied
`
`flex cuffs, a form of handcuffs similar to a zip tie, and helped plaintiff to his feet. Plaintiff
`
`informed the officers that the handcuffs were extremely tight and causing him pain. The
`
`officers replied that they would remove the cuffs and replace them with a new pair once
`
`they reached a squad car. After plaintiff was taken to the squad car, his handcuffs were
`3
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 3 of 14 Document 55
`
`

`

`replaced. The record is unclear on how much time passed before plaintiff’s handcuffs
`
`were replaced. Defendants claim it was only “a minute or so,” but plaintiff described it as
`
`“a nice amount of time.” After the incident, plaintiff was taken to the hospital where he
`
`refused medical treatment.
`
`II.
`
`DISCUSSION
`
`“To prevail on a motion for reconsideration under Rule 59, the movant must
`
`present either newly discovered evidence or establish a manifest error of law or fact.”
`
`Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). A Rule 59(e) motion
`
`will succeed only where the movant clearly establishes (1) a manifest error of law or
`
`fact, or (2) that newly discovered evidence precludes entry of judgment. Cincinnati Life
`
`Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (internal quotation marks omitted).
`
`Manifest error means a “wholesale disregard, misapplication, or failure to recognize
`
`controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
`
`2000) (internal quotations omitted). It is not demonstrated merely by the disappointment
`
`of the losing party. Id. Nor is it a forum to relitigate earlier losing arguments. Ohr v.
`
`Latino Express, Inc., 776 F.3d 469, 478 (7th Cir. 2015). Parties may not use a motion
`
`for reconsideration to introduce new evidence that could have been presented
`
`earlier. Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269
`
`(7th Cir. 1996). Whether to grant a motion for reconsideration is left solely to my
`
`discretion. Id. at 1270.
`
`A. Claim of Genuine Issue of Material Fact
`
`Plaintiff argues that there are genuine issues of material fact that prevent
`
`summary judgment on all claims, namely whether defendant Krznarich was actually
`4
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 4 of 14 Document 55
`
`

`

`informed over radio by the Incident Command Center that plaintiff was the one who led
`
`protesters onto the interstate. Plaintiff claims this is a disputed proposition, arguing that
`
`it cannot be proven by Krznarich’s self-serving testimony alone and that defendants
`
`have filed no other documentation from the Incident Command Center to prove such.
`
`Plaintiff, in essence, requests that I discredit Krznarich’s claim because it is wholly
`
`contained within his own testimony. This I cannot do.
`
`The Seventh Circuit has made it clear that the term “self-serving” should not be
`
`used to “denigrate perfectly admissible evidence through which a party tries to present
`
`its side of the story at summary judgment.” Hill v. Tangherlini, 724 F.3d 965, 967 (7th
`
`Cir. 2013). The sufficiency of a self-serving statement depends on whether the
`
`statement is based on personal knowledge and whether it is grounded in observation as
`
`opposed to mere speculation. Payne v. Pauley, 337 F.3d 767, 772 (7th Cir.2003). The
`
`Seventh Circuit has extended this standard to defendants as well as plaintiffs. Whitlock
`
`v. Brown, 596 F.3d 406, 411 (7th Cir. 2010) (holding that self-serving deposition
`
`testimony may satisfy a defendant’s evidentiary burden on summary judgment); Waldon
`
`v. Wal-Mart Stores, Inc., Store No. 1655, 943 F.3d 818, 823 (7th Cir. 2019) (same).
`
`Here, Krznarich testified as to his personal knowledge—that the Incident Command
`
`Center informed him that plaintiff had led the protestors onto the interstate. Krznarich
`
`was not speculating as to what he was told. As such, it would have been error for me to
`
`discredit his testimony. Whitlock, 596 F.3d at 411-412.
`
`Plaintiff in his motion cites Mullin v. Temco Mach., Inc., 732 F.3d 772, 779 (7th
`
`Cir. 2013), for the principle that “enough inaccuracies regarding a defendant’s
`
`documentation of an event may allow a jury to make reasonable inferences about
`5
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 5 of 14 Document 55
`
`

`

`credibility,” and that “such issues of credibility are not resolved at summary judgment.”
`
`ECF 50 at 7. But in Mullin, the Seventh Circuit reversed the district court’s finding of
`
`summary judgment due to evidence presented by the plaintiff that conflicted with the
`
`testimony presented by the defendant’s, thus proving a dispute of fact. 732 F.3d at 779.
`
`In this case, plaintiff has presented no evidence contradictory to Krznarich’s testimony
`
`that he received word from the Incident Command Center that plaintiff had led the
`
`protesters onto the interstate aside from the assertion that plaintiff did not in fact do so.
`
`Plaintiff also cites Ortiz v. City of Chicago, 656 F.3d 523, 532 (7th Cir. 2011), for the
`
`principle that the court should “not weigh the credibility of witnesses on summary
`
`judgment.” ECF 50 at 7. This is true; a court must not consider credibility or weigh
`
`conflicting testimony on summary judgment. But the Court of Appeals in Ortiz held that
`
`a party could not ask the court to not consider the testimony of the other side’s
`
`witnesses by merely attacking their credibility without any evidence that what they
`
`claimed was untrue. 656 F.3d at 532. This is exactly what plaintiff asks me to do, but the
`
`law does not allow it.
`
`No evidence has been offered by plaintiff disputing the veracity of Krznarich’s
`
`testimony. Plaintiff instead provides testimony of witnesses who state that plaintiff was
`
`not leading the demonstration and that he was not the one who led them onto the bridge
`
`that day. This fact, whether plaintiff actually led the protest onto the interstate, is clearly
`
`disputed. However, it is not relevant nor at issue. The issue is what a reasonable officer
`
`would have understood based on the undisputed facts available at the time. I need not,
`
`and do not, accept as fact whether or not plaintiff led the demonstrators onto the
`
`interstate. The testimony cited by plaintiffs stating that plaintiff was not actually the
`6
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 6 of 14 Document 55
`
`

`

`leader of the demonstration does not create a genuine issue of material fact as to
`
`whether the Incident Command Center communicated to Krznarich that plaintiff had led
`
`the demonstrators that day. Therefore, I must consider Krznarich’s testimony that
`
`Incident Command Center communicated to officers on the scene that plaintiff was the
`
`one who led the protesters onto the interstate as fact in determining what was
`
`objectively reasonable under the circumstances.
`
`Plaintiff also misconstrues my decision, quoting my decision as stating that
`
`“plaintiff had led the protestors onto the interstate.” ECF 50 at 8. However, this quote
`
`appears within a sentence containing the legal conclusion that a reasonable officer with
`
`knowledge of the undisputed facts could have reasonably concluded that plaintiff had
`
`led the protestors onto the interstate. ECF 45 at 6 (“All told, a reasonable officer could
`
`have concluded that plaintiff had led protesters onto the interstate, directed them to
`
`block the MRT’s path, and pushed an officer’s face mask while shouting at him.”). I
`
`reiterate, I need not and do not accept as fact whether plaintiff actually led the
`
`demonstrators onto the interstate that day in resolving defendants’ motion for summary
`
`judgment because the reasonableness of defendants’ reliance on the communication
`
`from the Incident Command Center does not depend on whether or not it was true.
`
`Lastly, plaintiff argues that Krznarich’s credibility is “materially suspect,” ECF 50
`
`at 5, such that I cannot rely on his testimony on summary judgment. In support, plaintiff
`
`lists several claims made by Krznarich that are either not corroborated by any other
`
`witness or have been contradicted by another witness. Plaintiff maintains that Krznarich
`
`testified that on plaintiff was swinging a glass water bottle, carrying a backpack full of
`
`broken glass, and resisting arrest; these claims were not corroborated by any other
`7
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 7 of 14 Document 55
`
`

`

`defense witness and were contradicted by plaintiff’s witnesses. Plaintiff also states that
`
`Krznarich testified that defendant Humphreys placed the flex cuffs on plaintiff’s wrists
`
`and that Humphreys was injured by plaintiff; these claims were contradicted by
`
`Humphreys, who stated that he did not put the cuffs on plaintiff and that he was not
`
`injured by plaintiff. These facts are disputed. However, they are not relevant to
`
`defendant’s motion for summary judgment. Nor does the existence of disputed facts
`
`lend any credence to plaintiff’s claim that Krznarich is unreliable. The challenging of a
`
`witness’ credibility is not alone enough to avoid summary judgment. Dugan v. Smerwick
`
`Sewerage Co., 142 F.3d 398, 406 (7th Cir. 1998). “[W]hen challenges to witness’
`
`credibility are all that a plaintiff relies on, and he has shown no independent facts—no
`
`proof—to support his claims, summary judgment in favor of the defendant is
`
`proper.” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (emphasis in original).
`
`Nevertheless, plaintiff failed to raise the argument that Krznarich’s credibility
`
`prevented me from relying on his testimony as to whether or not he received the
`
`communication from the Incident Command Center on summary judgment. As a result, I
`
`may not now consider this argument on a motion for reconsideration. Caisse Nationale
`
`de Credit Agricole, 90 F.3d at 1270; Bally Exp. Corp. v. Balicar, Ltd., 804 F.2d 398, 404
`
`(7th Cir. 1986); Laserage Tech. Corp. v. Laserage Lab'ys, Inc., 972 F.2d 799, 804 (7th
`
`Cir. 1992) (raising an argument for the first time in a motion for reconsideration “is too
`
`little, too late.”).
`
`As such, plaintiff has not shown any manifest error of law or fact in my
`
`determination that there is no genuine issue of material fact as to whether Krznarich
`
`
`
`
`8
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 8 of 14 Document 55
`
`

`

`was informed by the Incident Command Center that plaintiff led the demonstrators onto
`
`the interstate.
`
`B. Claim of Error as to Plaintiff’s Excessive Force Claim
`
`Plaintiff argues that my order granting summary judgment for defendants
`
`misconstrues the excessive force claim, resulting in manifest error. Plaintiff argues that
`
`the facts viewed in the light most favorably to him as the non-moving party preclude
`
`summary judgment on excessive force. Plaintiff cites facts such as plaintiff’s efforts to
`
`de-escalate the conflict, that officers did not say anything to plaintiff, ask him to stop,
`
`grab his arm, or ask him to turn around, the force with which plaintiff was tackled, the
`
`severity of the lacerations received, and that plaintiff was not resisting arrest. Plaintiff
`
`claims I did not consider these facts in assessing his excessive force claim. This is not
`
`the case.
`
`In determining whether the force used was reasonable under the Fourth
`
`Amendment, I considered the factors spelled out by the Supreme Court in Graham v.
`
`Connor. 490 U.S. 386, 396 (1989) (“proper application [of the Fourth Amendment
`
`reasonableness test] requires careful attention to the facts and circumstances of each
`
`particular case, including the severity of the crime at issue, whether the suspect poses
`
`an immediate threat to the safety of the officers or others, and whether he is
`
`actively resisting arrest or attempting to evade arrest by flight.”). I found that “[a]lthough
`
`the severity of the crime at issue and whether the individual is resisting arrest are
`
`relevant considerations, they do not outweigh the other circumstances in this case.”
`
`ECF 45 at 8. I reiterated the danger that the situation posed to officers, demonstrators,
`
`and the general public due to the presence of demonstrators on the interstate. In
`9
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 9 of 14 Document 55
`
`

`

`“balancing of the nature and quality of the intrusion on [an] individual’s Fourth
`
`Amendment interests against the countervailing governmental interests at stake,”
`
`Graham, 490 U.S. at 396, I found the officers’ interest in defusing the volatile situation to
`
`be strong. I gave defendant officers “considerable leeway” regarding the degree of force
`
`appropriate due to the dangerous situation posed. Abbott v. Sangamon Cnty., Ill., 705
`
`F.3d 706, 725 (7th Cir. 2013). As previously stated in my order, at the time of plaintiff’s
`
`arrest:
`
`[H]undreds of demonstrators had entered the interstate creating a
`situation that was dangerous to demonstrators, to commuters, and the
`police. The officers heard plaintiff order the demonstrators to “fill it in” and
`“close it off,” orders which were quickly followed by a shoving match
`between demonstrators and police. The crowd was unruly and several
`confrontations with officers had already occurred; some of
`the
`demonstrators were throwing water bottles at the police and kicking
`smoke cannisters toward them. The officers witnessed plaintiff shouting
`“stop” at a group of officers and pushing Richardson’s face shield. They
`had also been advised that plaintiff was leading the demonstrators and
`had directed them onto the interstate. The situation was volatile, with
`demonstrators shouting at the advancing officers. In addition, the officers
`had reason to believe that plaintiff was willing and able to incite the crowd
`to interfere with their efforts to move the demonstrators off the interstate.
`The officers were outnumbered and faced a dangerous and fluid situation
`that they reasonably believed might escalate.
`
`
`
`ECF 45 at 8-9. These facts relevant to the officers’ perception of the
`
`circumstances—that demonstrators were on the interstate in conflict with police, that
`
`Incident Command Center had
`
`informed
`
`them
`
`that plaintiff was
`
`leading
`
`the
`
`demonstrators, that plaintiff was shouting “fill it in” and “close it off”, at other
`
`demonstrators, and that plaintiff yelled “stop” at Richardson whilst his hand made
`
`contact with Richardson’s face shield—are all undisputed. My determination of
`
`reasonableness is not inconsistent with plaintiff’s claim that he was attempting to de-
`10
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 10 of 14 Document 55
`
`

`

`escalate the situation at the time of arrest. Regardless of whether plaintiff’s claim is true,
`
`what defendants observed him doing in furtherance of this goal supported the officers’
`
`belief that plaintiff was directing the crowd. Nor is it inconsistent with plaintiff’s claim that
`
`the defendants’ takedown of the plaintiff was effectuated with considerable force. The
`
`Seventh Circuit has upheld the use of a tackle takedown to end mild resistance.
`
`Johnson v. Rogers, 944 F.3d 966, 969 (7th Cir. 2019).
`
`I also directly addressed in my decision plaintiff’s claim of the severity of his
`
`injuries caused by the broken glass. As there was “no evidence that Rogers and Haw
`
`knew that there was broken glass on the interstate,” ECF 45 at 9, the reasonableness of
`
`the forced used does not depend on injuries caused by the presence of the glass on the
`
`ground. In determining whether force is excessive under the Fourth Amendment, the
`
`question is “whether the force used is reasonable, not whether things turned out badly.”
`
`Johnson, 944 F.3d at 969. Plaintiff also argues that the force used is excessive
`
`considering it was for “a minor rule of the road violation.” ECF 50 at 2. Though violation
`
`of being a pedestrian on a highway contrary to Wis. Stat. §346.16(2)(a) is the only
`
`offense that plaintiff was ever charged for, defendants also at the time had probable
`
`cause to arrest plaintiff for unlawful assembly and disorderly conduct. Plaintiff has not
`
`shown any manifest error of fact or law in my determination that based on the totality of
`
`the circumstances defendants Rogers and Haw use of force was reasonable.
`
`C. Claim of Error as to Application of Qualified Immunity
`
`Plaintiff takes issue with my ruling that defendants Rogers and Haw are
`
`regardless protected by qualified immunity, claiming that it is based “on the erroneous
`
`factual proposition that Officers Rogers and Haw reasonably believed plaintiff had led
`11
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 11 of 14 Document 55
`
`

`

`hundreds of demonstrators onto the interstate and had directed them to interfere with
`
`the police.” ECF 50 at 4. However, the defendants’ “reasonable belief” is not itself a fact
`
`to be proved, but a legal conclusion within the objective reasonableness standard
`
`required in assessing Fourth Amendment excessive force claims. See Graham, 490
`
`U.S. at 397 (“[T]he question is whether the officers’ actions are ‘objectively reasonable’
`
`in light of the facts and circumstances confronting them, without regard to their
`
`underlying intent or motivation.”). As previously discussed, my finding that the
`
`defendants’ belief that plaintiff had led hundreds of demonstrators onto the interstate
`
`and that plaintiff had directed them to interfere with the police was objectively
`
`reasonable based on the undisputed facts in the record. I make no finding as to whether
`
`or not plaintiff actually did lead the demonstration that day, but merely what a
`
`reasonable officer in the position of defendants could have concluded.
`
`Qualified immunity attaches when an official’s conduct does not violate the
`
`clearly established constitutional rights of which a reasonable officer would have known.
`
`White v. Pauly, 580 U.S. 73, 137 (2017). To defeat qualified immunity, plaintiff must
`
`show that he was deprived of a constitutional right that was “clearly established at the
`
`time and under the circumstances presented.” Bianchi v. McQueen, 818 F.3d. 309, 317
`
`(7th Cir. 2017). To do so, plaintiff must provide “either a reasonably analogous case that
`
`has both articulated the right at issue and applied it to a factual circumstance similar to
`
`the one at hand or that the violation was so obvious that a reasonable person would
`
`have recognized it as a violation of the law.” Canen v. Chapman, 847 F.3d 407, 412 (7th
`
`Cir. 2017) (quoting Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997)). When there
`
`is not precedent directly on point, the precedent relied on by plaintiff must place the
`12
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 12 of 14 Document 55
`
`

`

`constitutional question “beyond debate.” Dockery v. Blackburn, 911 F.3d 458, 468 (7th
`
`Cir. 2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083,
`
`(2011)).
`
`The Supreme Court has held that the clearly established right must be defined
`
`with specificity, and “has repeatedly told courts ... not to define clearly established law at
`
`a high level of generality.” City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503
`
`(2019) (per curium) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). “Use of
`
`excessive force is an area of the law in which the result depends very much on the facts
`
`of each case, and thus police officers are entitled to qualified immunity unless existing
`
`precedent squarely governs the specific facts at issue.” Kisela, 138 S. Ct. at 1153. It
`
`would be error for me to find that the general “right to be free of excessive force” is
`
`clearly established law for the purposes of qualified immunity. Emmons, 139 S. Ct. at
`
`503; Johnson, 944 F.3d at 969 (“The principle ‘do not use excessive force’ is clearly
`
`established but does not tell an officer what kinds of force, in which situations, are
`
`excessive and therefore does not negate immunity.”).
`
`Plaintiff bears the burden of establishing the existence of the clearly established
`
`right violated. Cibulka v. City of Madison, 992 F.3d 633, 640 (7th Cir. 2021); Marshall v.
`
`Allen, 984 F.2d 787, 797 (7th Cir. 1993) (“[O]nce a defendant claims qualified immunity,
`
`the burden is on the plaintiff to show that the right claimed to have been violated was
`
`clearly established.”). Plaintiff has failed to meet his burden of demonstrating a clearly
`
`established right violated by defendants. In both this motion and in his opposition to
`
`summary judgment, plaintiff cited no controlling decision, nor am I aware of any,
`
`demonstrating that their actions were a clearly established violation or that would have
`13
`
`
`
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 13 of 14 Document 55
`
`

`

`given defendants fair warning that their actions were unconstitutional. Nor has plaintiff
`
`demonstrated that defendants’ conduct was beyond debate so obviously a violation that
`
`any reasonable person would consider it a violation of plaintiff’s constitutional rights.
`
`Plaintiff has not shown any manifest error of law or fact in my determination that
`
`defendants Rogers and Haw are entitled to qualified immunity.
`
`III.
`
`CONCLUSION
`
`For the reasons stated, IT IS ORDERED that plaintiff’s motion for reconsideration
`
`at ECF no. 50 is DENIED.
`
`Dated at Milwaukee, Wisconsin, this 5th day of September, 2023.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Lynn Adelman
`LYNN ADELMAN
`United States District Judge
`
`
`
`
`
`
`
`14
`
`Case 2:20-cv-01502-LA Filed 09/05/23 Page 14 of 14 Document 55
`
`