Jacobs v. Malcomson et al

Filing 79

ORDER signed by Magistrate Judge William E Duffin on 9/9/2016. IT IS THEREFORE ORDERED that the Brown County defendants' motion for summary judgment (ECF No. 43 ) is DENIED. IT IS FURTHER ORDERED that the Medical defendants' motion for su mmary judgment (ECF No. 49 ) is GRANTED. IT IS FURTHER ORDERED that the plaintiff's motion for summary judgment (ECF No. 59 ) is DENIED. IT IS FURTHER ORDERED that the court will attempt to recruit a pro bono attorney to represent the plaintiff. (cc: all counsel) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AARON L. JACOBS, JR.,
Plaintiff,
v.

Case No. 15-CV-167

LT. J. RHODE, et al.,
Defendants.
ORDER
The pro se plaintiff, Aaron L. Jacobs, Jr., is confined at the Brown County Jail. He
filed this lawsuit under 42 U.S.C. § 1983 and was granted leave to proceed in forma
pauperis on claims regarding the conditions of his confinement, deliberate indifference
to his mental health needs, and deliberate indifference to a serious medical need.
Defendants Anderson, Baciak, Bowden, Cieslewicz, Dimmer, Johnson, Kershek,
Klarkowski, Langan, Leyendecker, Nies, Rhode, Sickle, Timreck, Trinkner, and Wolter
(the “Brown County defendants”) have filed a motion for summary judgment. (ECF No.
43.) Defendants Foster and Hutzler (the “Medical defendants”) also have filed a motion
for summary judgment. (ECF No. 49.) Jacobs has filed a cross-motion for summary
judgment. (ECF No. 59.)

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
the matter arises under a federal statute. The case was assigned to this court according
to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General
Local Rule 72 (E.D. Wis.). The parties have consented to the jurisdiction of a magistrate
judge pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.). The
summary judgment motions have been fully briefed and are ready for resolution.
BACKGROUND
Jacobs is a frequent inmate of the Brown County Jail, apparently always as a
pretrial detainee. (ECF No. 58, ¶ 1.) In his complaint, Jacobs recounts roughly 50
separate periods of incarceration in the jail dating back to December of 2002. Aside from
a roughly a two-and-a-half year period preceding October 2005, there has scarcely been
a month that Jacobs did not spend at least some time in the Brown County Jail. (ECF
No. 1-1 at 7-8.) Some of the terms were just a few days; occasionally they spanned
months. (Id.) In his time at the jail, Jacobs received dozens of sanctions for misconduct.
(ECF No. 58, ¶ 2.) These sanctions resulted in Jacobs’s placement in punitive
segregation and loss of access to out-of-cell recreation. (Id. ¶ 3.)
When an inmate who is subject to punitive segregation or loss of recreation
status is released from the Brown County Jail, the inmate’s slate is not wiped clean.
Rather, the jail’s policy provides that any unserved disciplinary sentence will “carryover” to be imposed should the inmate re-enter the jail. (Id.) Thus, if an inmate receives

2

a sanction of ten days in segregation but is released from the jail before the ten days are
up, should he again return to the jail he will be automatically placed back in segregation
until the full disciplinary sentence has been served. The combined effect of this policy
and Jacobs incurring so many sanctions is that, at least recently, he has spent all of his
time at the jail in punitive segregation without any recreation. Moreover, as of April 30,
2014, Jacobs had accrued approximately 760 days of punitive segregation sanctions and
635 days of loss of recreation sanctions remaining to be served. (ECF No. 45 ¶ 18.) As of
the date Jacobs filed his complaint in this action, February 11, 2015, he had twenty-nine
months of segregation to serve. (ECF 1-1 ¶ 3.)
Jacobs alleges that segregation with no opportunity for exercise exacerbated his
pre-existing mental health problems, leading to self-harming behaviors and further
acting out, which resulted in additional disciplinary sanctions. He contends that the
jail’s policy of carrying over un-served disciplinary time is unconstitutional. He further
alleges that the Brown County defendants and the Medical defendants were
deliberately indifferent to his medical and mental health needs in that they denied him
effective medical treatment, including adequate mental health treatment, after he
physically harmed himself.
Based on the complaint’s allegations, the court determined that Jacobs could
proceed on his deliberate indifference claims regarding five instances when he harmed
himself as well as the defendants’ alleged indifference and failure to adequately treat

3

his injuries. (ECF No. 12 at 6.) He was also allowed to proceed on a claim regarding the
conditions of his confinement. (Id.) The court determined that Jacobs’s allegations that
he was placed in segregation and not permitted out-of-cell recreation for at least one
year implicated the Constitution. Jacobs is also proceeding on a deliberate indifference
claim regarding his mental health issues and their alleged exacerbation based on the
conditions. (Id. at 7.) Lastly, the court stated that it would treat Jacobs’s claims against
the defendants in their official capacities as a claim against Brown County. (Id. at 7-8.)

SUMMARY JUDGMENT STANDARD
“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(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A.,
Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those that “might affect the
outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over a “material fact” is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the
non-moving party.” Id.
A party asserting that a fact is genuinely disputed, or not disputed, must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the

4

motion only), admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).

Medical Defendants

ANALYSIS

Defendant Nurse Hutzler was a licensed registered nurse in the State of
Wisconsin in August of 2011. (ECF No. 51, ¶ 8.) Defendant Nurse Foster was a licensed
practical nurse in the State of Wisconsin in March of 2011. (Id., ¶ 9.) Throughout 2011
Nurses Foster and Hutzler were employed by Correctional Healthcare Companies to
provide healthcare services to the inmates at the Brown County Jail. (Id., ¶ 10.)
When inmates entered the jail they were informed that if they required nonemergency medical attention they had to submit a written medical slip to the Health
Services Unit. (Id., ¶ 12.) Health Services Unit nursing staff members triaged all medical
slips received on a daily basis. (Id., ¶ 13.) If an inmate was undergoing a medical
emergency, all personnel had the authority to contact 911 and provide any necessary
emergency treatment. (Id.) Health Services Unit staff see inmates during sick call, at
which time they can determine if the inmate should be examined by a doctor in person.

5

(Id., ¶ 14.) A doctor is also available for consultation by telephone 24 hours a day, 7 days
a week. (Id.)
In his complaint Jacobs refers to five incidents when he harmed himself, four of
which occurred in 2011. On March 11, 2011, he harmed himself by repeatedly banging
his head against his cell window. (ECF No. 1-1 at 11-12.) On August 13, 28, and
September 26, 2011, he cut his wrist with a sharpened staple. A couple of years later, on
November 24, 2013, he again cut his wrist with a staple.
Jacobs’s claim against the medical defendants relates to two of those incidents.
(ECF No. 51, ¶ 5.) He alleges that Nurse Foster refused to provide him with medical
treatment on March 11, 2011, after he banged his head on his cell door. Jacobs did not
submit a request for medical treatment regarding the head injury he allegedly selfinflicted in March 2011. (Id. ¶ 16.) However, he did file a grievance relating to the
incident, according to which he stated that officers told him that they contacted Nurse
Foster and that she said she would come to assess him, but she never did. (ECF No. 604 at 2.) Nurse Foster has no recollection of being notified that Jacobs had suffered a head
injury. (ECF No. 51 ¶ 15.)
Although Jacobs claims that Nurse Foster “intentionally refused to treat
Plaintiff’s wounds,” he has not established that she knew he needed to be treated. Just
because “officers” told Jacobs that they contacted her does not mean that they did.
Nurse Foster states that she “acted according to her training, education, experience, and

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nursing judgment at all times during her assessments, care and treatment of Jacobs
throughout his time at the jail” (ECF No. 51, ¶ 19), and that she “did not consciously
disregard Jacobs’s medical needs, nor did she mistreat him.” (Id. ¶ 20.) Jacobs does not
dispute either statement. In accordance with Fed. R. Civ. P. 56(e)(2), this fact is deemed
admitted as true by Jacobs. As a result, the record does not support a finding that Foster
was deliberately indifferent to Jacobs’s medical needs on March 11, 2011. Therefore, she
is entitled to summary judgment.
As for Nurse Hutzler, Jacobs asserts that she refused to treat him after he cut
himself with a staple on August 13, 2011. However, Hutzler examined Jacobs on August
14, 2011. (ECF No. 51, ¶ 21.) She noted that Jacobs’s left wrist had a small cut and that it
appeared to be healing normally, with no signs of infection. (Id., ¶ 22.) Jacobs’s cut was
a superficial injury and did not require treatment. (Id., ¶ 23.) Although Jacobs did not
complain of pain, he was prescribed 650 mg. of Tylenol twice daily for three days per
protocol. (Id., ¶ 24.) Jacobs never submitted a medical request for additional treatment
of this injury, nor is there any evidence that he filed a complaint or grievance related to
this injury. (Id., ¶ 25.)
Setting aside the question of whether the physical injuries Jacobs sustained were
objectively serious, no reasonable factfinder could conclude that Hutzler acted with
deliberate indifference toward Jacobs. Deliberate indifference requires more than
medical malpractice or even objective recklessness. Petties v. Carter, 2016 U.S. App.

7

LEXIS 15524, 8-9 (7th Cir. 2016) (en banc). Rather, the plaintiff must be able to prove
that the “official actually knew of and disregarded a substantial risk of harm.” Id. at 8
(citing Farmer v. Brennan, 511 U.S. 825, 844 (1994) (emphasis in original). There is no
evidence that Jacobs’s injuries were such that a finder of fact could infer that Hutzler
knew of and disregarded a substantial risk of harm. Nor is there any indication that any
absence or delay in treatment resulted in Jacobs enduring additional pain or needing
additional treatment that would have been otherwise unnecessary.
Accordingly, the court will grant the Medical defendants’ motion for summary
judgment.
Brown County Defendants
Deliberate Indifference – Mental Health and Medical Care
The parties agree that Jacobs’s claims arise under the Fourteenth Amendment’s
due process clause because at all times relevant he was a pretrial detainee. Budd v.
Motley, 711 F.3d 840, 842 (7th Cir. 2013) (citing Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 664 (7th Cir. 2012)). As a pretrial detainee, Jacobs was “entitled to at least the
same protection against deliberate indifference to his basic needs as is available to
convicted prisoners under the Eighth Amendment.” Cavalieri v. Shepard, 321 F.3d 616,
620 (7th Cir. 2003). Prison officials violate the Eighth Amendment when they are
deliberately indifferent to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S.
97, 104-05 (1976). The Supreme Court has not yet determined how much additional

8

protection the Fourteenth Amendment might give a pretrial detainee. Rice v. Corr. Med.
Servs. (In re Estate of Rice), 675 F.3d 650, 664 (7th Cir. 2012). Thus, the court applies the
same legal standards to deliberate indifference claims brought under either the Eighth
Amendment. Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010). To prevail on his
claim, Jacobs has the burden of showing that (1) the harm to him was objectively
serious; and (2) that the official was deliberately indifferent to his health or safety.
Cavalieri, 321 F.3d at 620 (citing Farmer, 511 U.S. at 833).
The Brown County defendants do not appear to dispute that the harm Jacobs
faced was objectively serious. Aside from the deleterious psychological impact, Jacobs
engaged in repeated physical self-harming behaviors. But they do dispute that they
were deliberately indifferent to his mental health and medical needs. They attempt to
show that they adequately addressed his serious medical needs with the following
proposed findings of fact:
29. However, his medical chart reflects multiple occasions in 2013 where
he received medical treatment for psychological problems. (Malcomson
Aff. ¶ 32, Ex. A; see Jacobs’ medical charts).
30. He had multiple mental health consultations with Dr. Okuleye and
was placed on suicide watch on several occasions. (Malcomson Aff. ¶ 33,
Ex. A; see Jacobs’ medical charts).
31. Plaintiff’s Brown County Jail file is replete with medical records and
notes evidencing multiple psychological visits with Correctional
Healthcare Companies. (Malcomson Aff. ¶ 34, Ex.’s A).
32. Plaintiff received regular medical and mental health treatment.
(Malcomson Aff. ¶ 35, Ex. A; see Jacobs’ medical charts).
9

…
34. In addition to the psychological treatment plaintiff received from
Psychological Services Unit staff members, he received multiple telepsychiatry appointments with Babatunde Okuleye, MD.
(ECF No. 45.)
In support of their proposed findings of fact, the Brown County defendants
submit only one affidavit (technically, it is a declaration), from Captain Larry
Malcomson. (ECF No. 47.) Malcomson identifies himself as the Brown County Jail
Administrator. His affidavit authenticates four exhibits: Jacobs’s Brown County Jail file
(613 pages long) and three different jail policies. Beyond that, Malcomson’s affidavit
purports to recount details of Jacobs’s time at the Brown County Jail. However, he does
not allege that the facts are based upon his personal knowledge as required by Fed. R.
Civ. P. 56(c)(4). As a result, the court cannot accept his affidavit for any purpose beyond
its authentication of the appended exhibits.
However, the authentication of the exhibits is of little value to the court absent
findings of fact referring to specific portions of those exhibits. The proposed findings of
fact submitted by the Brown County defendants do not do that. Instead, they refer only
to Malcomson’s affidavit and “Ex. A” (Jacobs’s 613 page jail file) generally. For example,
Malcomson says that Jacobs “had multiple mental health consultations with Dr.
Okuleye.” (ECF No. 47, ¶ 33.) But he does not identify upon what documents he is
relying when he makes that statement. The proposed findings of fact are no help,
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referencing only “Ex. A, see Jacobs’ medical charts,” which apparently are included
among the 613 pages of Jacobs’s Brown County Jail file. But it is not the court’s
responsibility to scour exhibits in an attempt to search out facts that might support a
movant’s position. See Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001).
But scour the court did, in an attempt to identify what support there was for
various of the Brown County defendants’ proposed findings of fact. With regard to the
finding above that Jacobs had “multiple” mental health consultations with Dr. Okuleye,
the court has identified only two instances, a month apart, where Jacobs apparently
engaged in tele-psychiatry with Dr. Okuleye. (ECF Nos. 47-11 at 28 (Dec. 27, 2013); 4711 at 24 (Jan. 28, 2014); see also ECF Nos. 47-10 at 48 (Dec. 27. 2013); 47-10 at 44 (Jan. 28,
2014)). While two consultations is perhaps literally “multiple,” it is certainly not the
picture one gets when reading the Brown County defendants’ proposed findings of fact
and Malcomson’s affidavit.
Moreover, there is reason to doubt the accuracy of the Brown County
defendants’ proposed findings of fact and Malcomson’s affidavit upon which they
depend. Malcomson makes various statements that do not appear to be correct and
which are repeated in the Brown County defendants’ proposed findings of fact. For
example, he states that “the March 11, 2011 incident referenced in Jacobs’ complaint is
not reflected in Jacobs’ Brown County jail file[.]” (ECF No. 47, ¶ 24.) Similarly,
Malcomson states that “the September 26, 2011 incident referenced in Jacobs’ complaint

11

is not reflected in his Brown County Jail file.” (ECF No. 47, ¶ 28.) And he states that
Jacobs’s Brown County Jail file does not reflect the November 24, 2013 incident. (ECF
No. 47, ¶ 31.) The implication of these statements, of course, is that these incidents
never happened and that Jacobs is making them up.
But Jacobs attached to his declaration several jail documents evidencing his
complaint regarding the March 11, 2011 incident (ECF No. 60-4 at 2-7), the September
26, 2011 incident (ECF No. 60-4 at 34-38), and the November 24, 2013 incident (ECF No.
60-4 at 39-53). Confronted with these documents, the Brown County defendants had to
shift their position, from one denying that the incidents ever occurred to one defending
their response to the incidents. (ECF No. 75 at 12-14.) At a minimum this creates doubt
as to the completeness and accuracy of what Malcomson calls Jacobs’s Brown County
Jail file.
Turning to the five incidents where Jacobs allegedly harmed himself as a result
of the jail conditions and their effect on his mental illness, Jacobs alleges that the
defendants failed to stop him from harming himself and/or failed to provide him with
treatment after he injured himself.
In their proposed findings of fact in support of their motion for summary
judgment, the Brown County defendants substantively address only the August 28,
2011, incident. They note that the jail’s file indicates that on August 29 Jacobs twice
refused treatment and received treatment only after he was forcibly removed from his

12

cell. (ECF No. 58, ¶¶ 22-24.) Although Jacobs did receive medical treatment following
his injuries, Jacobs alleges that Bowden told him to “go ahead” when Jacobs said he was
going to kill himself. (ECF No. 60-4 at 17.) When Jacobs proceeded to cut his wrists,
defendant Bowden did nothing. (ECF No. 60-4 at 17-18.) The jail’s file also indicates
that defendants Anderson, Cieslewicz, Leyendecker, and Rhode refused to help Jacobs
while he was cutting himself. A reasonable finder of fact could conclude that the
defendants’ conduct amounted to deliberate indifference to a serious medical need.
Therefore, the Brown County defendants’ motion for summary judgment is denied as to
this incident.
As for the remaining four incidents (March 11, 2011, ECF No. 60-4 at 2; August
13, 2011, ECF No. 60-4 at 9; September 26, 2011, ECF No. 60-4 at 34-37; November 24,
2013, ECF No. 60-4 at 40), as discussed above the defendants allege that Jacobs’s jail file
contains no reference to any of these incidents. (ECF No. 58, ¶¶ 21, 25, 28.) As a result,
the Brown County defendants’ proposed findings of fact establish nothing more than
that the jail’s file is incomplete. As part of his own motion for summary judgment,
Jacobs provides jail records relating to each incident. (ECF No. 60-4.) It was only in
response to Jacobs’s motion for summary judgment that the Brown County defendants
argued that the facts contained in the records do not support a claim of deliberate
indifference. While the jail records produced by Jacobs preclude summary judgment on
behalf of the Brown County defendants, they do not establish that Jacobs is entitled to

13

summary judgment, either. Based on the court’s review of the records, it concludes that
reasonable finders of fact may disagree as to whether the Brown County defendants’
conduct amounted to deliberate indifference.
In sum, factual issues remain as to whether the Brown County defendants were
deliberately indifferent to Jacobs’s mental health care needs. Consequently, the court
must deny the Brown County defendants and Jacobs’s motions for summary judgment
as to this claim. The court must also deny the parties’ motions for summary judgment
as to Jacobs’s medical care claims based on the five self-harm incidents.
Conditions of Confinement
The parties agree that Jacobs’s conditions of confinement claim arises under the
Fourteenth Amendment’s due process clause because at all times relevant he was a
pretrial detainee. Budd, 711 F.3d at 842 (citing Rice., 675 F.3d at 664). However, courts
look to Eighth Amendment case law as a guide in evaluating conditions of confinement
claims brought by pretrial detainees. Id. The alleged conditions must be objectively
serious enough to amount to a constitutional deprivation, and the defendant prison
official must possess a sufficiently culpable state of mind. Smith v. Dart, 803 F.3d 304,
309 (7th Cir. 2015) (citations omitted).
The Constitution requires a jail to provide only “the minimal civilized measure
of life’s necessities.” Townsend v. Cooper, 759 F.3d 678, 687 (7th Cir. 2014) (quoting Gillis
v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006)). These necessities include “shelter, heat,

14

hygiene items and clothing.” Id. (citing Gillis, 468 F.3d at 491). See, e.g., Murphy v. Walker,
51 F.3d 714, 721 (7th Cir. 1995) (reversing dismissal of complaint alleging that plaintiff
spent a week and a half in a cell without adequate heat, clothing, or bedding); VinningEl v. Long, 482 F.3d 923, 924-25 (7th Cir. 2007) (reversing summary judgment for
defendant prison guards where prisoner was held for six days without sanitation items
in cell contaminated with human waste and in which sink and toilet did not work).
According to Jacobs, inmates in segregation at the jail do not receive family
visits, family phone calls, bed sheets, clocks, toothbrush, dental floss, shampoo, canteen
or commissary, razors and nail clippers, indigent haircuts, natural sunlight,
photographs, newspapers, magazines, wash cloths, mop, television, and radio. While
punitive segregation undoubtedly results in a loss of much that is otherwise available to
prisoners in the general population (after all, it is punitive), from a constitutional
perspective, what matters is not so much what is taken away but what remains.
The Brown County defendants emphasize that under the jail’s policy inmates in
segregation will have access to food, religious practices unless the practice impinges on
the safety or security of the jail, courts and other professionals such as attorneys, and
basic sanitary and hygiene requirements, “such as soap, toothpaste and toothbrush, and
access to minimal amounts of exercise.” (ECF No. 58, ¶ 33.) But the existence of a policy
does not establish that, as a factual matter, Jacobs actually received these necessities. A

15

policy can be violated. 1 In their proposed findings of fact, other than citing to the jail’s
policy, the Brown County defendants do not establish that Jacobs was actually afforded
the necessities required by the policy. Nor does Jacobs specifically state that he was
denied shelter, heat, hygiene items, or clothing. Therefore, the court cannot grant
summary judgment to either party as to this aspect of Jacobs’s conditions of
confinement claim.
On the other hand, it appears undisputed that while in segregation, inconsistent
with the jail’s policy, Jacobs was not afforded access to minimal amounts of exercise.
Instead, he was subjected to 24-hour lockdown in his cell. Under certain circumstances,
a denial of exercise might be appropriate or even unavoidable. In Pearson v. Ramos, 237
F.3d 881 (7th Cir. 2001), the court of appeals reversed a judgment of $30,000 in favor of
the prison inmate who was denied outdoor recreation for a year. The prison had
imposed this disciplinary sanction in the form of four 90-day sanctions for serious
misconduct, the sentences to be served consecutively. The inmate’s infractions were
undoubtedly serious:
In the first one, the plaintiff and another inmate attacked and beat a guard,
injuring him seriously enough to require his hospitalization. In the
1

Or a policy might conflict with a law. The jail’s policy states that an inmate who commits a “major violation” may
be placed in segregation for up to 25 days for the first offense, 30 days for the second, and 35 days for the third.
(ECF No. 47-13 at 3.) Under state law, “[f]or violating the rules of the jail, an inmate may be kept in solitary
confinement, under the care and advice of a physician, but not over 10 days.” Wis. Stat. § 302.40. Apparently no
court has yet decided how this limitation might apply in the context of multiple violations. Tatum v. Clarke, 2015
U.S. Dist. LEXIS 143830, 15-16 (E.D. Wis. Oct. 22, 2015). Nor is the question before the court as to whether the
Brown County Jail’s segregation constitutes “solitary confinement” as that term is used in the statute. Moreover, the
parties have not raised this matter in their briefs. Therefore, the court finds it inappropriate to address this point
further.

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second, the plaintiff set fire to blankets, coats, and cardboard boxes,
producing so much smoke that prisoners with respiratory problems had
to be evacuated. Next, the plaintiff spat in the face of a guard who was
trying to restrain him after the plaintiff had assaulted another guard. Last,
he threw a broom and a bottle of unspecified “bodily fluids” at a medical
technician, and the fluids got on the victim’s face.
Id. at 885. Under these circumstances, the court concluded that the mere fact that a
series of infractions led to a lengthy period during which the inmate was denied
recreation did not amount to a constitutional violation. Otherwise, a prisoner could
generate a constitutional claim simply by re-offending. Id. at 886.
The Brown County defendants place much weight upon Pearson. However, the
inmate in Pearson was not a pretrial detainee; he had been convicted of a crime. Perhaps
more importantly, significant in the court’s conclusion in Pearson was the fact that there
was no evidence that the inmate suffered any physical or psychological harm as a result
of the deprivation of recreation, much less that the defendants were aware of it. Pearson,
237 F.3d at 886-87. Jacobs contends that he did suffer such harm as a result of his
deprivation of recreation when coupled with the segregation.
“[L]ack of exercise can rise to a constitutional violation ‘[w]here movement is
denied and muscles are allowed to atrophy[] [and] the health of the individual is
threatened.’” Smith v. Dart, 803 F.3d 304, 313 (7th Cir. 2015) (quoting French v. Owens,
777 F.2d 1250, 1255 (7th Cir. 1985); citing Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.
1996) (“Lack of exercise may rise to a constitutional violation in extreme and prolonged
situations where movement is denied to the point that the inmate’s health is
17

threatened.”); Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997)). “[S]egregation is akin
to solitary confinement and … such confinement, uninterrupted by opportunities for
out-of-cell exercise ‘could reasonably be described as cruel and, by reference to the
current norms of American prisons, unusual.’” Delaney v. DeTella, 256 F.3d 679, 684 (7th
Cir. 2001) (quoting Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001)).
The records provided to the court start in 2011. It appears that since then there
have been three periods where Jacobs spent more than 100 consecutive days in custody:
from June 16, 2011 until October 6, 2011 (112 days); from April 15, 2013 until August 21,
2013 (128 days); and from August 29, 2013 until April 30, 2014 (244 days). It appears
that Jacobs spent the entirety of these spans in punitive segregation without recreation
time, i.e., on 24-hour lockdown. On this record, the Brown County defendants have not
established that Jacobs was afforded “minimal amounts of exercise” as required by the
jail’s policy.
As for whether these denials of exercise were injurious, the record supports a
finding that Jacobs suffers from mental illnesses. (See ECF No. 60-6 at 9, 2015 DOC
Psychological Evaluation.) He also engaged in self-harming behavior. It is not a reach to
conclude that months-long spans in segregation with no out-of-cell recreation had a
negative effect on Jacobs’s mental health. See Delaney, 256 F.3d at 683 (“Given current
norms, exercise is no longer considered an optional form of recreation, but is instead a
necessary requirement for physical and mental well-being.”). Indeed, after three of his

18

self-harm incidents, Jacobs filed grievances in which he cited “24 hour lockdown” as
one of the reasons he was harming himself. (See ECF No. 60-4 at 9, 21, 35.)
A plaintiff alleging that he was subject to unconstitutional conditions of
confinement must also be able to demonstrate that the defendants were aware that “he
faced a substantial risk of serious harm and disregarded that risk by failing to take
reasonable measures to abate it.” Townsend, 759 F.3d at 687 (citing Farmer v. Brennan, 511
U.S. 825, 847 (1994)). The documents submitted by Jacobs contain multiple instances
where he alleges that he notified the Brown County defendants that his prolonged 24hour lockdown was causing him to harm himself and that they rebuffed his pleas for
help. Whether the Brown County defendants took appropriate steps to abate the risks
associated with 24-hour lockdown depends, in part, upon the medical and mental
health care they afforded Jacobs. And, as discussed above, the Brown County
defendants have not demonstrated that they took reasonable measures to abate the risk
of serious harm.
The Brown County defendants contend that Jacobs must present expert evidence
of causation between the lack of exercise and an exacerbation of his mental condition.
Cf. Pearson, 237 F.3d at 886 (noting that inmate was not competent to testify on relation
between exercise and dental problems); Gruenberg v. Schneiter, 474 Fed. Appx. 459, 463
(7th Cir. 2012) (affirming grant of summary judgment in favor of defendants where
inmate presented no admissible evidence linking muscle pain and depression to

19

exercise deprivation). Self-represented indigent inmates are unlikely to have the
resources needed to obtain an expert witness. While there certainly are many instances
where the lack of expert evidence leads to the dismissal of an inmate’s case, the court
must be mindful of how confinement and indigence complicate litigation. Under certain
circumstances, it might be appropriate to recruit an attorney to represent an indigent
litigant or to appoint an expert under Fed. R. Evid. 706, see Ledford v. Sullivan, 105 F.3d
354, 361 (7th Cir. 1997).
Having concluded that Jacobs’s claims do not fail for any other reason, the court
concludes that the lack of expert evidence would be an inappropriate basis upon which
to grant summary judgment at this point. Jacobs has requested that the court appoint an
attorney to represent him. Given the facts and posture of this case, the court concludes
that it is appropriate to now grant that request. See Garner v. Sumnicht, 554 Fed. Appx.
500, 501 (7th Cir. 2014) (district court should have recruited lawyer for inmate whose
case depended on medical evidence that inmate was not capable of presenting) (citing
Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc)); see also Jackson v. Hepp, 558 Fed.
Appx. 689, 693 (7th Cir. 2014)). Should the court succeed in recruiting a volunteer
attorney, the court will permit a period of limited discovery related to the question of
whether the denial of exercise imperiled Jacobs’s physical or mental health.
Finally, the Brown County defendants contend that they are entitled to qualified
immunity. Qualified immunity “protects government officials from suit for damages

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when their conduct does not violate clearly established statutory or constitutional
rights.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Determining whether an official is
entitled to qualified immunity involves two inquiries: “(1) whether the facts, taken in
the light most favorable to the plaintiff, make out a violation of a constitutional right,
and (2) whether that constitutional right was clearly established at the time of the
alleged violation.” Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir. 2013). A right is
clearly established if a “reasonable official would have understood what he is doing
violates that right.” Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (internal quotations
and brackets omitted). To prove that the official violated a clearly established right, a
plaintiff must use Supreme Court precedent, circuit case law, or a consensus of out-ofcircuit case decisions. See Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 473 (7th Cir.
2011).
According to the defendants, Jacobs has failed to establish the deprivation of any
constitutional right or that the rights allegedly violated were clearly established at the
time of the violation. They note that the court in Pearson approved the stacking of
sanctions and thus, at a minimum, it was not clearly established that the stacking of
punitive sanctions was cruel and unusual punishment. (ECF No. 44 at 21, 27-29.)
However, this argument misses the point. As the court understands Jacobs’s
argument, his claim is two-fold. First, rather than challenging the jail’s policy of
“stacking” (requiring inmates subject to multiple disciplinary terms to serve those terms

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consecutively), he is challenging the jail’s policy of carrying over disciplinary sentences
that have not been completed should they be re-admitted to the jail. Second, Jacobs
contends that the jail’s practice of depriving him of any out-of-cell recreation for lengthy
stretches of time is unconstitutional.
Pearson did not address the first issue. As for the second, while the court in
Pearson found no constitutional violation when the inmate was denied recreation for
roughly a year, it so held only because Pearson had not established that the absence of
exercise resulted in any physical or mental harm to him. Contrary to the defendants’
assertions, it was clearly established during the relevant time period that the prolonged
deprivation of out-of-cell recreation resulting in physical or psychological harm, where
officials knew of the harm but failed to act on it, could violate the Constitution. See
French, 777 F.2d at 1255; Antonelli, 81 F.3d at 1432; Delaney,256 F.3d at 684; Thomas, 130
F.3d at 764.
As explained above, Jacobs, a pretrial detainee, has been subjected to extended
periods of time in punitive segregation with no out-of-cell recreation. These conditions
could violate his constitutional rights, especially because it appears that he was
subjected to them three times for over 100 days, and a reasonable finder of fact could
conclude that his mental health allegedly deteriorated as a result. Moreover, there is a
genuine dispute of material fact as to whether the defendants took reasonable steps to
address the harm Jacobs allegedly suffered.

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Accordingly, the defendants are not entitled to qualified immunity.
Monell
The Brown County defendants contend that they are entitled to summary
judgment on Jacobs’s official capacity claim against Brown County because Jacobs has
not suffered a constitutional deprivation and has failed to identify any policy or custom
of the municipal defendant. (Jacobs did not name Brown County as a defendant, but
because he sued the Brown County defendants in their official capacities the court
permitted him to proceed on a Monell claim without requiring him to file an amended
complaint naming Brown County, see Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir.
2008).) Brown County cannot be liable for the unconstitutional acts of its employees
unless those acts were part of an official custom or policy. King v. Kramer, 680 F.3d 1013,
1020 (7th Cir. 2012) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978); see also
Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008)). To survive summary judgment,
Jacobs “must present evidence demonstrating the existence of an official policy,
widespread custom, or deliberate act of a county decision-maker of the municipality or
department.” King, 680 F.3d at 1020 (quoting Grieveson, 538 F.3d at 771). Jacobs must
also show that the official policy or custom caused his constitutional deprivation. Id.
As discussed above, a reasonable factfinder could conclude that Jacobs suffered
constitutional deprivations based on the conditions of confinement he was under at the
jail, as well as the defendants’ treatment (or alleged lack of treatment) of Jacobs’s mental

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health and medical needs. In addition, Jacobs has identified a jail policy that allegedly
caused the constitutional deprivation(s). Jacobs alleges that the jail’s policy requiring
that his unserved disciplinary sentences “carry-over” when he is discharged and
subsequently re-enters the jail has resulted in continuous punitive segregation and loss
of out-of-cell recreation. Jacobs alleges that this constant segregation without any
opportunity for recreation results in unconstitutional conditions of confinement,
exacerbates his mental illnesses, and causes him to harm himself.
The Brown County defendants have not shown that they are entitled to summary
judgment on Jacobs’s Monell claim.

ORDER
IT IS THEREFORE ORDERED that the Brown County defendants’
motion for summary judgment (ECF No. 43) is DENIED.
IT IS FURTHER ORDERED that the Medical defendants’ motion for
summary judgment (ECF No. 49) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for summary
judgment (ECF No. 59) is DENIED.
IT IS FURTHER ORDERED that the court will attempt to recruit a pro
bono attorney to represent the plaintiff.
Dated at Milwaukee, Wisconsin this 9th day of September, 2016.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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