United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
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.
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 §
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.
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.
May 2015 strip searches (Case No. 16-cv-613)
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
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.
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.
July 2016 strip searches (Case No. 16-cv-614)
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. 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
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
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.