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Solomon v. Clarke

United States District Court, E.D. Wisconsin

March 14, 2018



          NANCY JOSEPH, United States Magistrate Judge

         Robert Solomon brings this 42 U.S.C. § 1983 action against defendants David A. Clarke, Jr., and Milwaukee County alleging that their failure to enact adequate “keep separate” policies resulted in him being attacked by another inmate. Both parties have filed cross-motions for summary judgment. For the reasons I explain below, Solomon's motion for summary judgment will be denied and defendants' motion for summary judgment will be granted.

         Before discussing the parties' cross-motions however, I address Attorney Anne Kearney's motion to withdraw as Solomon's attorney. (Docket # 72.) As she explains in her motion, more than eighteen months ago, I recruited her to represent Solomon on a volunteer basis through the briefing of summary judgment. Attorney Kearney represented Solomon through the discovery phase and the briefing of summary judgment, which required her to file a motion on Solomon's behalf and to respond to defendants' motion. Attorney Kearney has received no compensation for her extensive work; it has all been on a volunteer basis.

         She explains that Solomon recently informed her that he no longer wants her to be his attorney. Because she has met all of the obligations of her recruitment, she asks that she be permitted to withdraw as counsel. I will grant her motion. I also express gratitude to Attorney Kearney. Her willingness to volunteer her time and talents to help someone who would not otherwise have had the assistance of counsel has benefitted Solomon, the court, and our system of justice.

         RELEVANT FACTS[1]

         On May 9, 2013, Solomon, who was incarcerated at the Milwaukee County Jail, was attacked by inmate Jerome Brown and his friends in Solomon's cell. (Docket # 65 at ¶ 9, 10, 12.) Following the incident, Solomon and Brown were placed in the disciplinary housing unit and given “keep separate” designations. (Id. at ¶ 15, 16.) Keep separate is a custom and practice used throughout Milwaukee County law enforcement in order to keep certain suspects or inmates physically separate from one another. (Docket # 69 at 1.) The goals of the keep-separate system include separating inmates who pose safety risks to one another. (Id.)

         According to defendants, on-the-spot, case-by-case reviews and keep-separate determinations are completed after every inmate altercation in the Jail, immediately after the inmates are placed in the disciplinary housing unit following the altercation. (Id. at 2.) The supervisor who determines that the fighting inmates will be given keep-separate designations notifies all the lieutenants, first-line supervisors, and the classification unit of the new keep-separate designation for those inmates. (Id.) The supervisor-or someone delegated with the task-then marks the keep-separate designation on the inmates' locator cards, which are kept at the guard station in each housing unit. (Id.) Upon receiving the keep-separate notification from the supervisor, the classification unit also notes the keep-separate designation on the inmates' classification cards, which are kept with the classification unit. (Id. at 2-3.) With very limited exceptions, inmates are nearly always designated as keep-separates following an altercation. (Id. at 3.) Once inmates are designated as keep-separates, it is the Jail's intention that those inmates will be kept physically separate from one another at all times and will be kept in units that do not allow them to have any physical contact with one another. (Id.)

         Then-Lieutenant Scott Sobek was the responding supervisor who likely sent out the keep-separate notification following Brown and Solomon's altercation. (Id.) Brown's inmate locator card included the names of eight inmates under the keep separate section. (Docket # 64 at ¶ 43.) Solomon was the second to last name listed in that section. (Id.) Solomon's inmate card included only Brown in the keep separate section. (Id. at ¶ 44.)

         Solomon was moved back into the general population on the night of June 24, 2013. (Id. at ¶ 7.) Solomon did not know that Brown was in the same housing unit as him. (Docket # 65 at ¶ 20.) The next morning, at about 7 a.m., Solomon was seated at a table in the day room when Brown approached him from behind and struck him in the head with a food tray. (Docket # 64 at ¶ 13). Solomon did not fight back; instead, he moved to the guard desk. (Id. at ¶ 19.) Solomon suffered a cut over his right eye, which required five sutures to close, an abrasion near his scalp, a swollen lip, and a bruise on his elbow. (Id. at ¶ 27, 28.)

         Solomon was sent to disciplinary housing for thirty days as result of the incident. (Id. at ¶ 30.) Brown was arrested for battery of a prisoner. (Id. at ¶ 32.)


         1. Legal Framework

         Summary judgment is required where “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, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). When considering a motion for summary judgment, I take evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” Anderson ...

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