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Cooper v. Haw

United States District Court, E.D. Wisconsin

March 13, 2019

MICHAEL R. COOPER, Plaintiff,
v.
LIEUTENANT HAW AND LIEUTENANT MONTANO, Defendants.

          DECISION AND ORDER

          William E. Duffin U.S. Magistrate Judge

         Plaintiff Michael R. Cooper is a Wisconsin state prisoner representing himself. He filed this case alleging the defendants violated his Fourteenth Amendment due process rights during disciplinary proceedings at the Milwaukee County Jail. The court found Cooper's first complaint deficient and gave him an opportunity to amend. Cooper did so, and the court allowed him to proceed on a procedural due process claim against defendants Lieutenant Haw and Lieutenant Montano. Both the plaintiff and the defendants have moved for summary judgment. The court will deny the plaintiff's motion for summary judgment, grant the defendants' motion for summary judgment, and dismiss this case.

         The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal law. Venue is proper under 28 U.S.C. § 1391. The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.). 1. 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 under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         A party asserting that a fact cannot be or is genuinely 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 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).

         2. Relevant Facts

         The relevant facts are taken from both the plaintiff's and the defendants' Proposed Findings of Fact. (ECF Nos. 26, 27, 37, 38, and 41.) They include the undisputed facts as well as facts that were not properly disputed. The court also construes Cooper's complaint as an affidavit to the extent the allegations comply with the requirements for affidavits―that is, they are based on personal knowledge, they are admissible in evidence, and the plaintiff is competent to testify to the statements made. Ford v. Wilson, 90 F.3d 245, 247 (7th Cir. 1996) (citing then Fed.R.Civ.P. 56(e), now Fed.R.Civ.P. 56(c)(4)).

         In April 2017 Cooper was a pretrial detainee housed at the Milwaukee County Jail. (ECF No. 26, ¶ 1; ECF No. 27 ¶ 1.) At all times relevant, both Haw and Montano were employed by the Milwaukee County Sheriff's Office (the MCSO) as Corrections Officer Lieutenants at the Milwaukee County Jail. (ECF No. 26, ¶¶ 12, 13.)

         On April 25, 2017, Cooper was housed in pod 5B, cell 38. (ECF No. 26, ¶ 17.) Another inmate, Alexander, was housed in pod 5B, cell 24. (Id., ¶ 18.) Pod 5B is a general housing unit, and only one officer per shift is assigned to pod 5B. (Id., ¶¶ 21, 22.) That day, Robert Ehlers, who is not a party in this case, worked for the MCSO as a Corrections Officer and was assigned to pod 5B on first shift, working 6:00 a.m. to 2:30 p.m. (Id., ¶¶ 15, 16.) Ehlers explained the dayroom rules to all the inmates in pod 5B prior to breakfast service, which occurred at approximately 6:50 a.m., and included in his explanation that inmates are to refrain from fighting. (Id., ¶¶ 23, 24.)

         After breakfast, at approximately 7:15 a.m., Ehlers noticed Cooper walking quickly in the dayroom toward a cell that was not his. (ECF No. 26, ¶ 25.) Ehlers saw Cooper strike Alexander and heard a corresponding loud “thwack.” (Id., ¶¶ 27, 28.) He shouted “hey” at Cooper and Alexander and ordered them both to lock into their cells, which they did without issue. (Id., ¶¶ 29, 30.) Consistent with policy involving a major incident, Ehlers also ordered the entire pod to lock into their cells so that the circumstances of the incident could be addressed. (Id., ¶ 31.) It is Jail procedure to remove all inmates involved in fights from general housing pods to maintain the safety and security of the pod, the inmates in that pod, the officer assigned to the pod, and the Jail as a whole. (Id., ¶ 32.) Inmates who perpetrate an assault against another inmate are housed in disciplinary housing units pending a disciplinary hearing. (Id., ¶ 33.)

         Montano was assigned to work first shift in the Jail that day. (ECF No. 26, ¶ 14.) Ehlers called Montano to respond, and Montano called for additional corrections staff. (Id., ¶¶ 34, 35.) Montano arrived at pod 5B around 7:18 a.m. and Ehlers debriefed her. (Id., ¶ 36.) Ehlers told Montano that he saw and heard Cooper strike Alexander in the face. (Id., ¶ 37.) When Montano talked to Cooper, he denied hitting Alexander and suggested that Montano review the tape. (Id., ¶ 38.) After speaking with Ehlers, Cooper, and Alexander, Montano determined that there was enough evidence to place Cooper on pending discipline status. (Id., ¶ 46.)

         Around 7:20 a.m., three correctional officers arrived to pod 5B with a restraint belt and assisted Montano in escorting Cooper to disciplinary housing. (ECF No. 26, ¶ 47.) Montano informed Cooper that he was being taken to disciplinary housing, on pending discipline status, for assaulting another inmate. (Id., ¶ 50; see also Ex. 1008 to Dec. of Katherine West, ECF No. 42-1 at 16-17.) Montano told Cooper he would have a disciplinary ...


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