Black v. Clarke

285 F. Supp. 3d 1070
CourtDistrict Court, E.D. Wisconsin
DecidedJanuary 5, 2018
DocketCase No. 17–CV–156–JPS
StatusPublished

This text of 285 F. Supp. 3d 1070 (Black v. Clarke) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. Clarke, 285 F. Supp. 3d 1070 (E.D. Wis. 2018).

Opinion

J. P. Stadtmueller, U.S. District Judge

1. INTRODUCTION

This action arises from an encounter on an airplane between former Milwaukee County Sheriff David Clarke ("Clarke") and the plaintiff, Daniel Black ("Black"), which led to airport questioning and a social media spat. Black accuses Clarke of First, Fourth, and Fourteenth Amendment violations, and seeks to hold both him and Milwaukee County liable.

On September 11, 2017, the defendants filed a motion for summary judgment. (Docket # 15). Black responded on October 11, 2017, (Docket # 25), and the defendants *1074replied on October 25, 2017 (Docket # 29). For the reasons explained below, the defendants' motion will be granted in part and denied in part. The surviving claim will proceed to a jury trial.

2. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 states 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) ; see Boss v. Castro , 816 F.3d 910, 916 (7th Cir. 2016). A "genuine" dispute of material fact is created when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc. , 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chicago Transit Auth. , 618 F.3d 688, 691 (7th Cir. 2010).

3. FACTUAL BACKGROUND

3.1 Plaintiff's Failure to Dispute Defendants' Proposed Facts

Many of the relevant facts are undisputed because Black failed to dispute them. Federal Rule of Civil Procedure 56 and Civil Local Rule 56 describe in detail the form and contents of a proper summary judgment submission. In connection with their motion for summary judgment, the defendants filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket # 17). It contained short, numbered paragraphs concisely stating those facts they proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

As the party opposing the defendants' motion, Black was required to file "a concise response to the moving party's statement of facts" containing "a reproduction of each numbered paragraph in the moving party's statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon[.]" Civ. L. R. 56(b)(2)(B). Black did no such thing. He filed only a memorandum of law opposing summary judgment, his own proposed facts, and a declaration attaching evidentiary material. (Docket # 25-28). The effect of this failure is that, for the purpose of deciding summary judgment, the defendants' uncontroverted statements of material fact are deemed admitted. Civ. L. R. 56(b)(4); see also Fabriko Acquisition Corp. v. Prokos , 536 F.3d 605, 607-08 (7th Cir. 2008) ("[A] district court is entitled to demand strict compliance with [the local] rules for responding to a motion for summary judgment, and ... a court does not abuse its discretion when it opts to disregard facts presented in a manner inconsistent with the rules.") (citation omitted).

The Court will consider Black's proposed facts, (Docket # 28-12), only to the extent they do not contradict the defendants' uncontroverted proposed facts, (Docket # 17).1

*10753.2 Relevant Facts

On January 15, 2017, Clarke boarded a plane bound for Milwaukee, Wisconsin from the Dallas / Forth Worth International Airport. He took his seat toward the front of the plane. Black boarded the plane after Clarke, and, during the boarding process, stopped in the aisle immediately adjacent to Clarke's seat. Black asked Clarke if he was the Milwaukee Sheriff, and Clarke responded affirmatively. Then, in what Clarke believed was a physically threatening manner, Black stared at Clarke and shook his head. As Black started to walk toward his seat, Clarke asked Black if he had a problem, and Black responded by turning, shaking his head, and waving Clarke off in a manner indicating displeasure. The men did not have further interaction during the flight.

Before the plane took off, Clarke used his cell phone to call Inspector Edward Bailey ("Bailey"), who was then employed by the Milwaukee County Sheriff's Office and whose regular duties included meeting Clarke at the Milwaukee airport when Clarke arrived home from an out-of-state trip. Clarke informed Bailey of the confrontation with Black, saying "it had happened again" and that he had had a "confrontation with a passenger on an aircraft." (Docket # 17 at 4).2 Clarke described Black to Bailey and told Bailey that the confrontation had not been physical. Clarke did not think that it amounted to an offense for which a citation or arrest was appropriate. Clarke nevertheless told Bailey that he wanted deputies to conduct a "field interview" of Black when the plane arrived in Milwaukee. According to Clarke's undisputed version of the facts, a "field interview" in the Sheriff's parlance is a "voluntary police-citizen encounter in which an officer obtains information from a citizen and makes an identification of the citizen." (Docket # 17 at 4).3

Bailey immediately called Captain Mark Witek ("Witek"), commander of the Airport Division of the Milwaukee County Sherriff's Office, to relay the information he had just received from Clarke.

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Bluebook (online)
285 F. Supp. 3d 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-clarke-wied-2018.