United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
BARBARA A. TEELING, BRAD FRIEND, MELISSA MORAN, ANTHONY LACOMBE, FAYE FLANCHER, and JOHN DOES, Defendants.
Stadtmueller U.S. District Judge.
Raymond J. Bergeron Davila, who is incarcerated at Columbia
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that the defendants
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed
and paid an initial partial filing fee of $0.36. See
28 U.S.C. § 1915(b)(1).
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. Section 1983, a
plaintiff must allege that: 1) he was deprived of a right
secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Village of North Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is
obliged to give the plaintiff's pro se
allegations, “however inartfully pleaded, ” a
liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
allegations relate to a time when he was incarcerated in the
Racine County Jail (the “Jail”). (Docket #1 at
2). Two of his claims are based on an allegedly improper body
cavity search. Id. at 5-14. Specifically, Plaintiff
states that in early 2016, Defendant Brad Friend
(“Friend”) sought a search warrant to conduct a
body cavity search on Plaintiff, solely to punish Plaintiff
for his continual self-harming behavior. Id. at 5.
Plaintiff alleges that Friend had influence with Defendant
Judge Faye Flancher (“Flancher”) of the Racine
County Circuit Court, and he used it to obtain his desired
warrant. Id. at 6-7.
8, 2016, Plaintiff was taken to a local hospital by Defendant
Anthony Lacombe (“Lacombe”) and other officers.
Id. at 8-9. The search warrant provided that
Plaintiff could be subjected to medical imaging scans as well
as a physical cavity search. Id. An x-ray did not
show any foreign objects in Plaintiff's body.
Id. at 10. Nevertheless, Lacombe insisted that
Plaintiff should be cavity searched. Id. The
hospital's medical staff performed the cavity search at
Lacombe's request, and it too apparently turned up no
foreign objects. Id. at 11-12. Plaintiff was then
returned to the Jail. Id. at 12. Plaintiff alleges
that Lacombe and the other jail staff taunted him about the
cavity search, suggesting that it would teach him a lesson.
first claim with respect to the cavity search is for cruel
and unusual punishment in violation of the Eighth Amendment.
Id. at 3, 14, 21-26. His second claim is that the
cavity search was done in violation of the Fourth Amendment
because probable cause was absent. Id. at 4, 14,
21-26. Both claims are asserted against Friend, Flancher, and
Lacombe. Id. at 14.
may proceed on a claim for cruel and unusual punishment
against Friend and Lacombe for the cavity search incident. A
strip or cavity search of a prisoner can violate the Eighth
Amendment when it “was motivated by a desire to harass
or humiliate rather than by a legitimate justification, such
as the need for order and security in prisons.”
King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015).
Plaintiff adequately alleges that Friend and Lacombe's
sole motivation was to humiliate and punish him. Though
Friend was not physically present for the search, Plaintiff
alleges that he obtained the warrant with a malicious purpose
and the intent that the search be carried out. Further,
Friend is identified as a lieutenant, and Lacombe as a
sergeant, so the Court can infer that Friend had ordered
Lacombe to carry out his will.
may also proceed against Friend and Lacombe under the Fourth
Amendment. The Fourth Amendment requires that searches
conducted by government agents be done in a reasonable
manner. Id. at 899. Prisoners like Plaintiff have
extremely limited Fourth Amendment rights, but they do at
least extend to bodily integrity. Id. at 900.
Plaintiff's allegations support the inference that the
cavity search was unreasonable, given that the x-ray had been
negative for the presence of contraband. Friend and Lacombe
may later argue that the warrant immunized their conduct or
that the search was otherwise reasonable, but the Court will
let them decide which defenses, if any, may be applicable to
may not proceed on any claims against Flancher. As a judicial
officer in Wisconsin, Flancher “cannot be sued for
damages under § 1983 or state law for judicial actions,
even if the judge commits a procedural error or acts in
excess of authority, unless the judge acts in clear absence
of jurisdiction.” Da Vang v. Hoover, 478 F.
App'x 326, 327 (7th Cir. 2012). Plaintiff does not allege
that Flancher lacked jurisdiction, only that she was
complicit in the search by issuing the warrant. Flancher must be
dismissed from this action with prejudice.
third and fourth claim arises from events soon after the
search. (Docket #1 at 15-20). These claims involve Defendants
Barbara Teeling (“Teeling”), Friend, Sergeant
Melissa Moran (“Moran”), John Doe Deputy
Inspector 1 (“Inspector 1”), and John Doe
corrections officers 2 through 5 (“Officer 2, ”
etc.), all of whom were correctional personnel at the Jail
(the “Corrections Defendants”). Id. at
16. On June 16, 2016, Plaintiff was put in a restraint chair,
apparently due to suicidal thoughts or actions related to the
cavity search. Id. While strapped in the chair, he
bit himself enough to cause bleeding. Id. at 17. The
Corrections Defendants all witnessed this (at various times,
while performing their other duties) but did nothing to stop
it; at most, they asked him to stop and did no more after he