United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
plaintiff and prisoner Jonah Michael Marker has filed a
complaint about an alleged “pat search” of his
person that occurred in February 2017 at the Stanley
Correctional Institution, which is located in Stanley,
Wisconsin. Plaintiff has made an initial partial payment of
the filing fee, as required by 28 U.S.C. § 1915(b)(1),
so his complaint is ready for screening under 28 U.S.C.
§ 1915(e)(2) and § 1915A.
alleges that, on February 10, 2017, defendant Sgt. Chause
asked plaintiff to exit his cell and put his arms behind his
back. Chause placed handcuffs on plaintiff and subjected him
to a pat down search. (Plaintiff does not say why this was
occurring and he does not discuss any events that occurred
before Chause asked him to exit his cell.) During the search,
Chause “touched [plaintiff's] penis.”
does not provide any other details about what happened during
the search, but he says that he spoke to both an investigator
(“Mrs. Reimer”) and a captain (“Captain
Eslinger”) about the incident. The investigator asked
plaintiff whether the incident “was just an accident,
” but plaintiff says that “[t]here's no way
you can just accidentally touch someone's penis.”
After reviewing a video of the incident, the captain
“admitted that Sgt. Chause did inappropriately pat
search” plaintiff, but the captain “didn't
see it as PREA.” Plaintiff does not include a legal
theory in his complaint, but he refers repeatedly to
“PREA, ” which is the Prison Rape Elimination
Act, suggesting that plaintiff believes that Chause's
conduct was a sexual assault. Although the Act does not
create a private cause of action, Garness v. Wisconsin
Dept. of Corrections, No. 15-cv-787-bbc, 2016 WL 426611,
at *2 (W.D. Wis. Feb. 3, 2016), the Eighth Amendment to the
United States Constitution protects prisoners from some types
of sexual misconduct. For example, a bodily search may
violate the Eighth Amendment if the search or the manner in
which it is conducted shows a desire to harass, humiliate and
cause the prisoner psychological pain. King v.
McCarty, 781 F.3d 889, 897 (7th Cir. 2015).
plaintiff does not say anything about what led up to the
search, I do not understand him to be challenging the
decision to search him. Rather, I understand him to be
alleging that defendant Chause violated his rights by
“touch[ing] [his] penis.”
allegations do not state a claim under the Eighth Amendment
because plaintiff provides no basis from which it can be
plausibly inferred that Chause was trying to harass or
humiliate him. Firestone Financial Corp. v. Meyer,
796 F.3d 822, 826 (7th Cir. 2015) (to state a claim, “a
complaint must allege ‘sufficient factual matter to
state a claim to relief that is plausible on its face”)
(internal quotations omitted). Not every unwanted touch of a
prisoner by an officer violates the prisoner's rights,
even if that contact involves the prisoner's genitals.
Perales v. Bowlin, 644 F.Supp.2d 1090, 1098 (N.D.
Ind. 2009) (“That a female officer touches a male
prisoner during a pat-down search, by itself, states no claim
upon which relief can be granted even if the touching is in
the groin area.”). As other courts have recognized,
when an officer is searching a prisoner for contraband,
incidental contact with the prisoner's body may occur.
Timm v. Gunter, 917 F.2d 1093, 1100 (8th Cir. 1990)
(“[T]raining [for correctional officers] does not
include instruction to deliberately search an inmates'
genital and anal areas, although an incidental touching of
such areas may occur during the search.”).
case, plaintiff's allegation that defendant Chause
“touched [his] penis” is too vague to provide
fair notice or state a plausible claim. The word
“touch” could mean anything from brushing against
plaintiff with the back of Chause's hand to groping and
fondling plaintiff. Further, plaintiff does not say whether
Chause touched him over his clothes or under them; how long
the touching lasted; or whether Chause said or did anything
else during the search that would help show Chause's
intent. All of these factors are relevant to a determination
whether plaintiff has stated a claim under the Eighth
Amendment. Although plaintiff says that Captain Eslinger
agreed that Chause's conduct was “inappropriate,
” there is a difference between
“unconstitutional.” Without additional
information regarding why Eslinger believed that
Chause acted inappropriately, Eslinger's statement is not
helpful. Accordingly, I will give plaintiff an opportunity to
amend his complaint to provide more information, if he has
closing, I will address some other issues raised in the
complaint. First, plaintiff includes two “John
Doe” defendants in the caption of his complaint, but it
is not clear why. Plaintiff does not allege that anyone else
was involved in the pat down search, even as an observer.
Although plaintiff discusses other prison officials in his
complaint, he identifies all of them by name; he does not
refer to anyone as a John Doe in the body of his complaint.
If plaintiff wishes to maintain a claim against the two
unnamed defendants, he should explain in his amended
complaint why he is suing them and what they did to violate
plaintiff discusses events that occurred after the search,
but I do not understand him to be raising separate claims
about those issues because he does not name as defendants any
of the officials he discusses. If plaintiff did intend to
bring additional claims, I could not allow plaintiff to
proceed on them. For example, plaintiff says that officials
refused for two months to give him the name of the officer
who searched him. Perhaps if plaintiff had been unable to
learn Chause's identity before the expiration of his
statute of limitations, plaintiff could bring a claim for a
denial of his right to have access to the courts.
Christopher v. Harbury, 536 U.S. 403, 415 (2002) (in
access to courts claim, “the complaint must identify a
remedy that may be awarded as recompense but not otherwise
available in some suit that may yet be brought”).
However, plaintiff does not identify any harm caused by the
two-month delay, so I see no potential constitutional
also seems to be dissatisfied with the way that prison
officials responded when he complained about defendant
Chause's conduct. Regardless whether other officials
could have been more helpful or sympathetic, they cannot be
held liable for failing to take corrective action for a
constitutional violation that occurred in the past. The
Constitution requires prison officials to protect prisoners
from known risks of serious harm, e.g., Farmer
v. Brennan, 511 U.S. 825 (1994), but the Constitution
does not require officials to investigate or otherwise
correct wrongdoing after it has happened. Whitlock v.
Brueggemann, 682 F.3d 567, 588-89 (7th Cir. 2012);
Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).
ORDERED plaintiff Jonah Michael Marker's complaint is
DISMISSED WITHOUT PREJUDICE for his failure to provide fair
notice of his claim. Plaintiff may have until August 15,
2017, to file an amended complaint that fixes the problems
discussed in this order. If plaintiff does not respond by
August 15, 2017, I will dismiss the complaint with prejudice,
record a ...