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Lindsey v. Tom

United States District Court, W.D. Wisconsin

November 28, 2016

CRAIG TOM, A. JONES, and JOHN DOE, Defendants. CARLOS LINDSEY, Plaintiff,

          OPINION & ORDER


         Pro se plaintiff Carlos Lindsey, a state prisoner confined at the Wisconsin Secure Program Facility (WSPF), has filed two similar complaints under 42 U.S.C. § 1983, each challenging strip searches under the Fourth and Eighth Amendments. Lindsey contends that defendants in both cases had no penological reason for the strip searches and that they conducted the searches to humiliate him. In Case No. 16-cv-613, Lindsey alleges that during a strip search, the prison staff touched his genitals and buttocks, used unclean gloves, and aimed a camera at his genitals, in front of a female staff member and “spectators.” Case No. 16-cv-613, Dkt. 1, at 1-3. In Case No. 16-cv-614, Lindsey alleges that during another strip search, a female prison staff member removed his clothing, in view of other female staff members, out in the hallway when the strip search could have been conducted in a “strip cell, ” a more private area where strip searches were usually conducted. Dkt. 1, at 1-4.

         Lindsey has an extensive litigation history that suggests a pattern of abuse, even though he does not yet have three “strikes” that would limit his ability to file new cases under 28 U.S.C. § 1915(g). But he has two: Eastern District of Wisconsin Case No. 14-cv-130, Dkt. 9, at 8, and Case No. 16-cv-822, Dkt. 12, at 5. And he has had another case dismissed as a sanction because he fabricated evidence in response to a motion for summary judgment. Case No. 16-cv-43, Dkt. 47, at 1. Because the judge in Case No. 16-cv-43 did not deem Lindsey's case to be “frivolous, malicious, or [one that] fails to state a claim upon which relief may be granted, ” I will not count it as a strike under § 1915(g). But fabricating evidence is a serious abuse of the litigation process, on par with the conduct that leads to restrictions under § 1915(g).

         I remind Lindsey that Rule 11 of the Federal Rules of Civil Procedure prohibits litigants from presenting any pleading, motion, or other paper for any improper purpose, and that factual contentions in any court submission must have evidentiary support, or will have evidentiary support after reasonable opportunity for investigation. Given Lindsey's history, I am warning him that I will impose severe sanctions-including dismissal of these cases and restrictions on his ability to file future cases-if I conclude that he has made any false or unsupportable statement to this court.

         Lindsey has made initial partial payments of the filing fee under 28 U.S.C. § 1915(b)(1) for both cases. The next step is for me to screen his complaints and dismiss any portion that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for monetary damages from a defendant who by law cannot be sued for money damages. 28 U.S.C. §§ 1915 and 1915A. I must read Lindsey's complaints generously. See Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam). With these principles in mind, I will allow Lindsey to proceed with his Eighth Amendment claims and dismiss his Fourth Amendment claims in both cases.


         A. May 2015 strip searches (Case No. 16-cv-613)

         In May 2015, Lindsey was strip searched at WSPF for an unidentified reason. He was then placed under the strict supervision of the prison staff. Lindsey was not permitted to exit his cell without staff escort for the next 24 hours, until his second strip search.

         The next day, the prison staff sought to strip search him again. Lindsey refused because he believed that the staff had no reason for the search. The staff then subjected Lindsey to a “staff assisted visual bodily cavity strip search.” Case No. 16-cv-613, Dkt. 1, at 2. Defendant Craig Tom ordered the strip search and defendant A. Jones, with some unnamed staff members, conducted the search. No nurse was present during the strip search.

         The staff conducted the second strip search as follows. They escorted Lindsey to a “non-private location, ” where female staff and “spectators” were present. Id. at 2-3. The staff cut off Lindsey's clothing and exposed his private parts. The staff then spread Lindsey's buttocks and manipulated his genitals, while wearing unclean gloves. The staff also pointed a camera at his genitals and filmed the strip search.

         B. July 2016 strip searches (Case No. 16-cv-614)

         In July 2016, Lindsey was strip searched at WSPF three more times, again for reasons unidentified in the complaint. The first strip search was on July 12, 2016.[1] He was then placed in his cell with one pair of socks, some underwear, and a bare mattress. The cell had a camera that allowed the staff to monitor Lindsey closely. It appears that Lindsey could not leave his cell until his second strip search, which took place the next day, early in the morning, on July 13, 2016, at 7 a.m. Lindsey was then strip searched yet again, at 9:45 a.m.

         Although Lindsey does not make clear defendants' roles in conducting the strip searches, Lindsey alleges that defendant Craig Tom and Larry Primmer “trample[d] upon” Lindsey's constitutional rights through “the strip search, ” without specifying which of the three strip searches involved Tom and Primmer. Dkt. 1, at 4. Construing Lindsey's complaint generously, I understand Lindsey's complaint to mean that Tom and Primmer ordered at least one, and potentially all three, of the strip searches.

         Lindsey does not describe the first and second strip searches, but he describes the third as follows. The staff escorted Lindsey to a hallway, a “non private location” instead of a “strip cell, ” which Lindsey describes as a more private place, where strip searches were ordinarily conducted at WSPF. Dkt. 1, at 3. The staff placed Lindsey on his knees, and a female staff member removed his clothing to expose his private parts. According to Lindsey, strip searches at WSPF were usually conducted with the inmates removing their own clothes at the direction of the prison staff.


         C. Eighth ...

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