Farr v. Milwaukee County Sheriff's Department et al
Filing
64
ORDER signed by Judge J P Stadtmueller on 8/13/2019. 32 Plaintiff's Motion to Appoint Counsel is DENIED. 34 Plaintiff's Motion for Reconsideration of Motion to Compel is DENIED. 35 Plaintiff's Motion for Extension of Time is DENIED as moot. 36 Defendants' Motion for Summary Judgment is GRANTED. 58 Plaintiff's Motion to Add Parties is DENIED. 61 Plaintiff's Motion to Compel is DENIED. CASE DISMISSED with prejudice. (cc: all counsel, via mail to Jason Milo Farr at Milwaukee County Jail) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON MILO FARR,
Plaintiff,
v.
LIEUTENANT STAAT, OFFICER
HUNTER, MILWAUKEE COUNTY,
and JOHN DOES,
Case No. 17-CV-1341-JPS
ORDER
Defendants.
This case comes before the Court on Defendants’ motion for
summary judgment, after a somewhat tortured procedural background.
For the reasons stated below, the Court is constrained to deny the motions
to appoint counsel and to compel. Additionally, Defendants’ motion for
summary judgment will be granted and the case will be dismissed.
1.
PROCEDURAL BACKGROUND
Plaintiff filed the above-captioned litigation on September 29, 2017.
(Docket #1). On October 19, 2017, Magistrate Judge William E. Duffin
allowed Plaintiff to proceed on Fourteenth Amendment claims against
Lieutenant Staat, Officer Hunter, and several other Doe defendants for
physical and verbal abuse sustained during his booking at Milwaukee
County Jail (“MCJ”). (Docket #5 at 5). Magistrate Duffin also allowed
Plaintiff to proceed on a Monell claim against Milwaukee County for a
custom of beating inmates on elevator rides and engaging in a code of
silence thereafter. Id. at 7. The case was reassigned to Judge Lynn Adelman
on January 2, 2018.
That same day, Plaintiff filed a motion to compel, (Docket #15), in
which he requested video images that he claimed consisted of him being
beaten, moved around the jail in a wheelchair, and subsequently stitched
up by a nurse. Id. at 1. Plaintiff also requested the names and photos of the
officers who worked on the day of the incident, as well as the nurses who
were on staff at the time. Id. Defendants timely opposed the motion on the
grounds that they had never received any initial discovery requests, so the
motion to compel was premature. (Docket #19 at 1). Defendants also
explained that Plaintiff had failed to comply with Civil Local Rule 37, which
requires written certification of a good faith attempt to confer with the
opposing party about discovery disputes. Id. at 2. On March 2, 2018, during
a scheduling conference at which Plaintiff failed to appear, Judge Adelman
denied the motion to compel as premature. (Docket #27).
At a second, more successful scheduling conference on March 19,
2018, Judge Adelman advised Plaintiff to find counsel to represent him in
the matter. (Docket #28). Two days later, Judge Adelman issued a trial
scheduling order, which set a deadline to join additional parties and amend
the pleadings for May 1, 2018. (Docket #29). Dispositive motions were due
on December 30, 2018. Id.
The case progressed without further involvement of the Court.
Plaintiff did not move to join additional parties or amend his pleadings, nor
did he file his expert disclosures. The docket was completely silent until
November 29, 2018 when, pursuant to the scheduling order, Defendants
filed their expert witness list. (Docket #30). A week later, Plaintiff filed a
motion to appoint counsel, in which he explained that he had had difficulty
securing counsel because no law firm was “willing to go up against the
city.” (Docket #32 at 1). He explained that he had contacted all the lawyers
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on a list provided by Judge Adelman, conducted his own research, and
struck out. Id. However, he did not provide any proof that he reached out
to these law firms, nor did he assert that the case was complex, nor did he
explain why he was incapable of carrying on the litigation himself. See id.
A week after that, with the summary judgment deadline looming at
the end of the month, Plaintiff filed a motion for reconsideration of the
original motion to compel production of the video footage. (Docket #34). In
this motion, he asked Judge Adelman to step down because he was
prejudiced and minimized Plaintiff’s injuries. Id. at 1. He also moved to add
Officer Rashed Farrakhan as a defendant, whose identity Plaintiff
discovered on the news, and who, Plaintiff claims, was in the room during
his beating, even though Defendants did not include him on their witness
list. (Docket #34 at 1–3). On December 20, 2018, Plaintiff filed a motion,
which remains pending, to extend the discovery deadline. (Docket #35).
On December 31, 2018, Defendants filed a motion for summary
judgment. (Docket #36). Ten days later, Defendants’ counsel filed a letter
with the Court requesting an extension of Plaintiff’s deadline to respond to
the motion for summary judgment. (Docket #45). Defendants explained that
there was a chance that Plaintiff may not have received the motion for
summary judgment due to an issue with his mailing address. Id. The Court
granted this motion for an extension, and Plaintiff was ordered to oppose
summary judgment by February 11, 2019. (Docket #50). Plaintiff’s motion
to extend the discovery deadline was left unresolved. See (Docket #35).1
Plaintiff never opposed the motion for summary judgment, and on
In light of the order to extend the summary judgment deadline (Docket
#50), Plaintiff’s motion to extend the discovery deadline will be denied as moot.
1
Page 3 of 19
February 25, 2019, Defendants filed a letter indicating that they would not
be filing a reply in light of the lack of response. (Docket #51).
The following month, on March 13, 2019, Defendants filed a letter to
the Court stating that Plaintiff had a new address about which he had failed
to update the Court. (Docket #53 at 1). Defendants also drew the Court’s
attention to an email in which Plaintiff made accusations of unethical
conduct against both Defendants and Judge Adelman. Id. Finally,
Defendants provided evidence that they had sent the much-sought-after
video surveillance evidence to Plaintiff, despite Plaintiff’s claims that he
never received it. (Docket #54-2).
In response to the allegations of unethical conduct against the Court,
Judge Adelman recused himself and the matter was randomly re-assigned
to this branch of the Court. On March 22, 2019, after the case was reassigned, Plaintiff filed a profanity-laced letter addressed to Judge
Adelman, expressing his frustration with the litigation and the fact that the
Doe defendants had not yet been named. (Docket #57 at 1–3). That same
day, he filed a letter addressed to Judge Stadtmueller, in which he described
his frustration with the litigation in more diplomatic terms. (Docket #58). In
this motion, he requested to add four additional officer defendants. Id. at 3.
Defendants opposed this request as untimely and provided some
background on the discovery process, including the fact that Plaintiff failed
to provide initial disclosures or respond to requests for admission, and only
filed his own discovery requests ten days before the summary judgment
deadline. (Docket #59 at 3–4). In light of the motion’s untimeliness and
Plaintiff’s failure to litigate according to the terms of the scheduling order,
that motion will be denied. Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994)
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(“pro se litigants are not entitled to a general dispensation from the rules of
procedure or court imposed deadlines.”).
On May 20, 2019, Plaintiff filed another motion to compel video
surveillance and notice of change of address. (Docket #61). He explained
that MCJ had records of the names of the inmates who could testify to the
amount of blood he lost, and vented that Defendants have not been
forthcoming about the identities of the other officers who were in the
booking room when he was assaulted. Id. Again, Defendants opposed this
on the grounds that Plaintiff did not timely file discovery requests and
failed to comply with Civil Local Rule 37. (Docket #62). That motion will be
denied for the reasons explained in Section 3, infra.
2.
MOTION FOR APPOINTMENT OF COUNSEL
2.1
Legal Background
As a civil litigant, Plaintiff has “neither a constitutional nor statutory
right to a court-appointed attorney.” James v. Eli, 889 F.3d 320, 326 (7th Cir.
2018). However, under 28 U.S.C. § 1915(e)(1), the “court may request an
attorney to represent any person unable to afford counsel.” The court
should seek counsel to represent a plaintiff if: (1) he has made reasonable
attempts to secure counsel; and (2) “‘the difficulty of the case—factually
and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013)
(quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)). Whether
to appoint counsel in a particular case is left to the Court’s discretion. James,
889 F.3d at 326; McCaa v. Hamilton, 893 F.3d 1027, 1031 (7th Cir. 2018).
While framed in terms of the plaintiff’s capacity to litigate, this
discretion must also be informed by the realities of recruiting counsel in this
District. When the Court recruits a lawyer to represent a pro se party, the
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lawyer takes the case pro bono. Unlike a lawyer appointed to represent a
criminal defendant during his prosecution, who is paid by the government
for his work, an attorney who takes a pro se civil case pro bono has no
promise of compensation.
It is difficult to convince local lawyers to take such cases. Unlike
other districts in this Circuit, see, e.g., L.R. 83.35 (N.D. Ill.), the Eastern
District of Wisconsin does not employ an involuntary appointment system
for lawyers admitted to practice here. Instead, the District relies on the
willingness of lawyers to sign up for the Pro Bono Attorney Panel and, once
there, accept appointments as needed. See Pro Bono Program, available at:
http://www.wied.uscourts.gov/pro-bono-fund.
The District is eternally grateful to the lawyers who participate in the
Pro Bono Program, but there are never enough volunteers, and those who
do volunteer rarely take more than one or two cases a year. This is
understandable, as many are already busy attending to fee-paying clients.
Though the Pro Bono Program does provide for payment of certain
litigation expenses, it does not directly compensate a lawyer for his or her
time. Participants may seek attorney’s fees when permitted by statute, such
as in successful Section 1983 cases, but they will otherwise go unpaid. The
small pool of attorneys available to this District for pro bono appointments
stands in stark contrast to that of the Court of Appeals, which regularly
recruits counsel from across the nation to represent pro se plaintiffs on
appeal. See, e.g., James, 889 F.3d at 323 (appointing counsel from
Washington, D.C. to represent the pro se appellant); McCaa, 893 F.3d at 1029
(same).
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2.2
Analysis
With these considerations in mind, the Court returns to the question
presented: whether counsel can and should be appointed to represent
Plaintiff. First, the Court asks whether the litigant has made “reasonable”
efforts to obtain his own representation. Pruitt, 503 F.3d at 655; Jackson v.
Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). It is a question not often
litigated; many district judges either overlook arguably unreasonable
efforts at obtaining counsel, or they impose eminently practical
requirements such as the submission of evidence demonstrating that the
litigant has tried and failed to secure representation from several lawyers.
See, e.g., Kyle v. Feather, No. 09–cv–90–bbc, 2009 WL 2474627, at *1 (W.D.
Wis. Aug. 11, 2009).
The first element of Pruitt is fairly easy to satisfy, but it is not
toothless, and it is not a mere technical condition of submitting a certain
number of rejection letters. If it was, then a Wisconsin pro se plaintiff
litigating a Section 1983 action could submit rejection letters from ten
randomly selected criminal defense lawyers from Nevada and call his work
complete. This cannot be tolerated. The purpose of the reasonable-efforts
requirement is to ensure that if the Court and private lawyers must expend
scarce resources to provide counsel for a pro se litigant, he has at least made
a good-faith effort to avoid those costs by getting a lawyer himself. To fulfill
this duty, a pro se litigant should reach out to lawyers whose areas of
practice suggest that they might consider taking his case. If he learns that
some of the lawyers he has contacted do not, he should reach out to others
before he concludes that no one will help him.
Here, Plaintiff claims that he has exhausted a list of potential legal
options, and that he conducted his own independent and equally fruitless
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search for an attorney. Plaintiff has not submitted any evidence
demonstrating that he failed, much less even tried, to secure representation;
therefore the Court has no way of evaluating the extent and reasonableness
of his efforts. Nevertheless, even if the Court assumes that Plaintiff made
thorough and well-targeted efforts to obtain counsel, Plaintiff’s request
falters on the second Pruitt step: whether the difficulty of the case exceeds
his capacity to coherently present it. This assessment must be made in light
of the particular capabilities and circumstances presented by each pro se
litigant. James, 889 F.3d at 326–27. The Court of Appeals explains:
The second step is itself grounded in a two-fold inquiry
into both the difficulty of the plaintiff’s claims and the
plaintiff’s competence to litigate those claims himself. The
inquiries are necessarily intertwined; the difficulty of the case
is considered against the plaintiff’s litigation capabilities, and
those capabilities are examined in light of the challenges
specific to the case at hand. Ultimately, the question is not
whether a lawyer would present the case more effectively
than the pro se plaintiff; if that were the test, district judges
would be required to request counsel for every indigent
litigant. Rather, the question is whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff’s
capacity as a layperson to coherently present it to the judge or
jury himself. Notably, this inquiry extends beyond the trial
stage of the proceedings. The relevant concern is whether the
plaintiff appears competent to litigate his own claims, given
their degree of difficulty. This includes all of the tasks that
normally attend litigation: evidence gathering, preparing and
responding to motions and other court filings, and trial.
Id. (citations and quotations omitted). While courts need not address every
concern raised in a motion for appointment of counsel, they must address
“those that bear directly” on the individual’s litigation capacity. McCaa, 893
F.3d at 1032.
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The balancing contemplated in the second Pruitt step must also
incorporate the reality that district courts cannot be expected to appoint
counsel in circumstances which are common to all or many pro se litigants.
See Bracey v. Grondin, 712 F.3d 1012, 1017–18 (7th Cir. 2013); Pruitt, 503 F.3d
at 656 (observing that the Seventh Circuit has “resisted laying down
categorical rules regarding recruitment of counsel in particular types of
cases”); Harper v. Bolton, 57 F. Supp. 3d 889, 893 (N.D. Ill. 2014). Doing so
would place untenable burdens on court resources. It would also turn the
discretion of Section 1915(e)(2) on its head, making appointment of counsel
the rule rather than the exception.
Against this backdrop, the Court finds that Plaintiff has not
presented sufficient evidence or argument showing that he cannot litigate
this matter competently on his own. It appears that he believed that counsel
would be appointed to him, and explains that he is “slow to the workings
of legal procedures.” (Docket #63 at 2). However, Plaintiff’s novice status
and his belief that counsel would be recruited on his behalf does not entitle
him to a lawyer as a matter of law, nor does it excuse him from complying
with the Court’s scheduling order. Moreover, Plaintiff’s own motion to
appoint counsel describes the case as “cut and dry,” thereby indicating that
the factual matter and the legal issues are not so complex as to be beyond
the grasp of the average litigant. (Docket #32 at 1).
Moreover, the Seventh Circuit has rejected a plaintiff’s sheer belief
that a lawyer would do a better job as a reason for appointment of counsel.
Pruitt, 503 F.3d at 655. Plaintiff’s lack of legal training brings him in line
with practically every other pro se litigant that comes before this Court.
Furthermore, as a litigant in this Court, Plaintiff is under an obligation to
familiarize himself with the relevant legal standards and procedural rules.
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Implicit in Plaintiff’s motion is the belief that he will not be taken
seriously without a lawyer, and that he needs one to “go up against the
city.” (Docket #32 at 1). Yet that belief does not bear on Plaintiff’s ability to
perform
his
litigation
tasks,
including
sending
and
receiving
correspondence, making copies, reading and writing motions and briefs,
and performing legal and factual research. See McCaa, 893 F.3d at 1032–33.
Moreover, despite his claimed disadvantage in the legal process, Plaintiff
has submitted no evidence that he suffers from cognitive, behavioral, or
other limitations affecting his ability to present his arguments in a cogent
fashion. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014); Walker v.
Price, 900 F.3d 933, 940 (7th Cir. 2018) (noting that courts should consider
“any available evidence” of a pro se litigant’s literacy, communication skills,
education level, litigation experience, intellectual capacity, or psychological
history). His filings to date suggest that he has no such limitation. Thus,
although discovery and summary judgment might be part of the “advanced
phases” of a case, there is no reason to think Plaintiff is out of his depth.
James, 889 F.3d at 327.
In light of the foregoing standards for appointment of counsel, the
Court is constrained to deny Plaintiff’s motion.
3.
MOTION TO COMPEL
Plaintiff fashioned his second motion to compel as a motion for
reconsideration of the initial motion to compel, (Docket #34), which was
denied as premature, (Docket #27). The Court will treat the motion for
reconsideration as a renewed motion to compel because Judge Adelman’s
initial denial of the motion to compel was not a final judgment or order
subject to reconsideration under Federal Rules of Civil Procedure 59 or 60.
Plaintiff also filed a third motion to compel, which reiterated the arguments
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in his second motion to compel and suffered from the same shortcomings,
discussed below. (Docket #61).
Parties are required to respond promptly and in good faith to
discovery requests. Fed. R. Civ. P. 26(a), 33(b)(2), 34(b)(2). If a party fails to
respond, the opposition may file a motion to compel. Fed. R. Civ. P. 37(a).
Before doing so, however, Civil Local Rule 37 requires the requesting party
to personally consult with the opposing party in order to attempt to resolve
the issue. The rule requires a written certification that the moving party has
attempted, in good faith, to confer. Civ. L.R. 37.
There is no evidence that Plaintiff timely submitted his discovery
requests, or that he has attempted to consult with the opposing party to
resolve the issue. This is a particularly unusual case because there is some
evidence that the material sought to be compelled—the video—has already
been produced. See (Docket #54-2). Whether it was received is not
something over which the Court has power, but it was delivered to the
address on file with the Court. In light of the foregoing, the Court has no
basis on which to grant the motions to compel.
4.
MOTION FOR SUMMARY JUDGMENT
Defendants filed a motion for summary judgment on December 31,
2018. (Docket #36). Neither the motion, nor the accompanying proposed
facts, were opposed. See (Docket #37). Accordingly, the Court will treat
Defendants’ statement of facts as undisputed for the purpose of their
motion. Fed. R. Civ. P. 56(e)(2); Civ. L.R. 56(b)(4). For the reasons stated
below, the motion for summary judgment will be granted, and the case will
be dismissed.
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4.1
Relevant Facts
Plaintiff was arrested on the morning of July 21, 2017. He was
oppositional with the arresting officers and shackled at the ankles as a
result. When he arrived at MCJ at around 10:50 a.m., the arresting officers
required assistance to move Plaintiff from the police van into the jail. MCJ
officers thought that Plaintiff was under the influence of “some sort of
narcotics” because he seemed “incredibly agitated and aggressive and was
sweating profusely.” (Docket #37 ¶¶ 6–7).
After being cleared for booking, Plaintiff began to bang his head
against the nursing station counter. The officers intervened and proceeded
with booking. They escorted Plaintiff to a search room to perform a
standard pat search. One of the officers asked Plaintiff to kneel on a bench,
which he refused to do. Instead, he hopped up onto the bench. According
to Defendants, this necessitated a “compliance hold[] to stabilize [Plaintiff]
against the wall in a kneeling position” in order to effectuate the search. Id.
¶ 16.
Once the search was completed, at approximately 11:04 a.m.,
Plaintiff was escorted from the search room back into the main booking
area, but continued to be “so combative” that it was necessary to clear the
other inmates from the booking area to maintain order and security.
Defendants explain that “[w]hile in the booking room, [Plaintiff] refused to
stand to have his photograph taken” and “purposely went completely limp,
using deadweight tactics, and refused to stand or move on his own.”
Plaintiff’s passive resistance required the officers to hold him up in order to
get his photograph taken and conduct fingerprints. Plaintiff used profanity
against the jail staff throughout the booking process.
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After booking was completed, the officers had difficulty transferring
Plaintiff to a housing unit because he continued to go limp as a form of
passive resistance. Plaintiff was assigned to Housing Unit 4D, which is
reserved for the “most combative inmates.” Id. ¶ 26. Officer Hunter
(“Hunter”) and Lieutenant Staat (“Staat”) attempted to escort Plaintiff to
Housing Unit 4D, but found it difficult in light of Plaintiff’s posture and
body weight. They elected to put Plaintiff in a wheelchair to transport him
to Housing Unit 4D, whereupon they tried to change him into jail clothes.
Plaintiff refused to change out of his street clothing, and continued to
remain limp and uncompliant. Hunter and Staat had to physically change
Plaintiff into his jail clothes. At some point during this cumbersome clotheschanging process, while attempting to put Plaintiff in another wall
stabilization hold, Hunter and Staat noticed that Plaintiff had a laceration
above his left eyebrow. They were unsure of how this laceration occurred.
One possibility is that “the officers wobbled a bit as they tried to hold
[Plaintiff] upright and this inadvertently caused a cut above Plaintiff’s
eyebrow.” (Docket #44 at 19). Upon seeing the cut, they promptly contacted
the nursing staff.
Nurse Trisha Majewski arrived in the recreation area of Housing
Unit 4D at 11:33 a.m. and determined that Plaintiff needed stitches. At 11:47
a.m. he was escorted to the health clinic. Plaintiff became agitated, and
Hunter and Officer Dingman had to “physically restrain [Plaintiff] as
nursing staff attempted to stitch his cut.” (Docket #37 ¶ 46). Though he only
needed five stitches, the process took nearly an hour.2
Defendants submitted a DVD with their motion for summary judgment
materials. See (Docket #38 ¶ 2). This DVD was not readable, and the Court did not
consider it in evidence. The DVD only contains footage of the booking room, id.,
2
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Plaintiff was released from MCJ the next day.
MCJ staff rely on a standard called Principles of Subject Control
(“POSC”) to evaluate when to use force in correctional settings. POSC
permits officers to use a variety of force techniques upon noticing various
“indicators” that purportedly “could allow [officers] to predict that a
subject is going to become assaultive.” Id. ¶ 54. POSC evaluations consider
five factors, the first of which is “level of resistance,” which can be used to
assess the “degree of threat,” and encompasses everything from virtual
unconsciousness to assault with a deadly weapon. Id. ¶¶ 55–56. This broad
spectrum includes deadweight tactics. Officers are also trained that when
an inmate ignores officers and ceases all movement, this “may predict a
possible assault.” Id. ¶ 57. Based on the level of resistance, POSC prescribes
a range of intervention and stabilizing techniques, though officers are
under no obligation to start with the lowest one. POSC instructs that officers
can use “control alternatives” (i.e., force) to “overcome passive resistance,”
including the use of a baton. Id. ¶ 64; (Docket #38-3 at 65–66). In other
words, POSC’s guidelines are so permissive that officers are allowed to use
batons against a passively resisting inmates. Defendants do not make use
of the other factors that might be considered in the POSC use of force
assessment.
making it less relevant because the wall holds in question occurred in the search
room and in Housing Unit 4D. In a somewhat contradictory turn, in his motion to
compel the video surveillance footage, Plaintiff acknowledged that there were no
video cameras in the areas where he alleges that he was harmed. See (Docket #15
at 2) (“[O]fficers made sure to wheelchair [Plaintiff] to a place where there were
no cameras. . .present to do the dirty dee[d] in the first place.”). Moreover, Plaintiff
did not oppose Defendants’ proposed facts or motion for summary judgment.
Therefore, the DVD evidence is ultimately of little concern.
Page 14 of 19
On two occasions, first during the pat search, and second during the
clothes changing in Housing Unit 4D, Staat and Hunter used a wall
stabilization technique to handle Plaintiff, which is one of the compliance
holds permitted by the POSC training guide to “overcome passive
resistance.” (Docket #37 ¶ 65). This entails officers using their shoulders and
legs to keep an inmate upright against the wall. Id. ¶ 66. Officers are
instructed to face inmates away from them to minimize resistance. Id. ¶ 67.
The officers speculate that Plaintiff’s injury may have occurred during one
of these holds.
4.2
Legal Standard
Federal Rule of Civil Procedure 56 provides that 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); 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 the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
4.3
Analysis
4.3.1
Fourteenth Amendment Violation
The Fourteenth Amendment governs a pretrial detainee’s use of
force claim. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). “[A] pretrial
detainee must show only that the force purposely or knowingly used
against him was objectively unreasonable.” Id. at 2473. “[O]bjective
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reasonableness turns on the ‘facts and circumstances of each particular
case.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts must
consider what the officer knew at the time that the force was used. Id.
Courts “must also account for the ‘legitimate interests that stem from [the
government’s] need to manage the facility in which the individual is
detained,’ appropriately deferring to the ‘policies and practices that in th[e]
judgment’ of jail officials ‘are needed to preserve internal order and
discipline and to maintain institutional security.” Id. (quoting Bell v. Wolfish,
441 U.S. 520, 540, 547 (1979)). The following factors bear on reasonableness
of force: “the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any effort made by
the officer to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the officer;
and whether the plaintiff was actively resisting.” Id.
Defendants assert that their use of force—the wall hold—was
necessary and reasonable under the circumstances of Plaintiff’s passive
resistance and established non-compliance. The wall hold was intended to
manage Plaintiff in order to complete the booking process. Although it was
forceful, it was not designed to injure or otherwise cause harm, unlike other
force techniques at their disposal. Defendants believe that Plaintiff’s injury
occurred during the second wall hold, during which they attempted to
dress Plaintiff in jail clothes, and had some difficulty maneuvering him.
Thus, although their use of force was purposeful and knowing, it was also
proportional to the needs of the correctional facility to process pretrial
detainees. Defendants affirm that any injury that occurred was an accident
derived from Plaintiff’s non-compliance, and “liability for negligently
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inflicted harm is categorically beneath the threshold of constitutional due
process.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1990).
Plaintiff has not provided any evidence to the contrary. There are no
affidavits from eye-witnesses who saw the officers beat him up. There are
no photos of the laceration for a jury to evaluate whether the injury was so
severe as to suggest intentionality. In short, there is nothing in the record to
dispute the relevant facts proffered by the defendants.
The Court has reviewed the evidence and, even when considered in
the light most favorable to the non-moving party, it does not suggest that
the wall hold was an unconstitutional use of force. There is also no evidence
from which a jury could conclude that the laceration was the result of an
excessive and intentional use of force. Accordingly, there is no evidence
upon which a reasonable jury could find that Plaintiff’s Fourteenth
Amendment rights were violated.
4.3.2
Monell Claim
A municipal entity can be liable under Section 1983 only when there
is a predicate constitutional violation, and that violation is a result of that
entity’s (1) express policy; (2) widespread custom or practice; or (3) a
decision by an agent of the entity who has “final policymaking authority.”
Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009); Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Plaintiff has not made any
arguments that the POSC on which Defendants rely are unconstitutional,
so there is no express policy at issue, nor is there a decision by a final
policymaking authority. Rather, Plaintiff asserts a widespread custom or
practice of abuse.
In order to establish liability on the part of Milwaukee County for a
widespread pattern and practice of abuse, Plaintiff must provide evidence
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that would lead to a reasonable inference that Milwaukee County was
deliberately indifferent to the widespread practice. Palmer v. Marion Cty.,
327 F.3d 588, 596 (7th Cir. 2003); Bd. of Cty. Comm’rs of Bryan Cty., Okla. v.
Brown, 520 U.S. 397, 407 (1997). Deliberate indifference is typically proven
in Monell cases by “a pattern of similar constitutional violations.” Connick v.
Thompson, 563 U.S. 51, 62 (2011).
Such a de facto policy of constitutional violations occurs if the
defendants had a habit of purposefully ignoring a need for action. City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989); Calhoun v. Ramsey, 408 F.3d
375, 380 (7th Cir. 2005). Thus, Plaintiff must provide evidence that
Defendants had notice of an ongoing problem such that allowing the
problem to endure was akin to a conscious choice among alternatives.
Canton, 489 U.S. at 389, City of Okla. City v. Tuttle, 471 U.S. 808, 823 (1985).
This can be done by “showing a series of bad acts and inviting the court to
infer from them that the policymaking level of government was bound to
have noticed what was going on and by failing to do anything must have
encouraged or at least condoned, thus in either event adopting, the
misconduct of subordinate officers.” Jackson v. Marion Cty., 66 F.3d 151, 152
(7th Cir. 1995).
Plaintiff has not proffered any evidence showing that there was a
widespread de facto policy of abusing inmates on the way to Housing Unit
4D. Not only is there no evidence that Plaintiff was beaten up, there is no
evidence that other inmates were beaten up, either. There are no affidavits
from other passive resistors who were injured. There is simply no evidence
upon which a reasonable jury could draw to find Milwaukee County liable
for a pattern and practice of abuse in Housing Unit 4D.
Page 18 of 19
5.
CONCLUSION
In light of the foregoing, the Court is constrained to deny Plaintiff’s
motion for appointment of counsel, deny Plaintiff’s motion to compel, and
grant Defendants’ motion for summary judgment.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to appoint counsel (Docket
#32) be and the same is hereby DENIED;
IT
IS
FURTHER
ORDERED
that
Plaintiff’s
motion
for
reconsideration of the motion to compel (Docket #34) be and the same is
hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for extension of
time (Docket #35) be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Docket #36) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to add parties
(Docket #58) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to compel
(Docket #61) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 13th day of August, 2019.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
Page 19 of 19
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