United States District Court, E.D. Wisconsin
CARLOS C. MCDANIELS, Plaintiff,
WARDEN JUDY SMITH, JIM ZANON, TODD GILLINGHAM, SGT. POBRANZ, CINDY O'DONNELL, BRAD HOMPE, KATHY SABEL, CITY OF OSHKOSH POLICE DEPARTMENT, and JOHN DOE, Defendants.
Stadtmueller, U.S. District Judge.
Carlos C. McDaniels, who is incarcerated at Oshkosh
Correctional Institution (“Oshkosh”), 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 #3).
Plaintiff has been assessed and paid an initial partial
filing fee of $20.14. See 28 U.S.C. §
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)).
alleges that at some point in early June 2017, while
incarcerated at Oshkosh, Defendant Sgt. Pobranz
(“Pobranz”) touched his butt in a sexually
suggestive manner during a pat down search. (Docket #1 at 6).
Pobranz also whispered in Plaintiff's ear at the same
time, “[d]on't I know you from somewhere?”
Id. Plaintiff's unit was in lockdown at the time
so he could not call the prisoner complaint hotline.
Id. He made an interview request for Defendants
Warden Judy Smith (“Smith”) and unit manager
Kathy Sabel (“Sabel”) but never received a
response. Plaintiff also wrote a letter to the Defendant City
of Oshkosh Police Department which went unanswered.
Id. at 7.
the lockdown was over, Plaintiff spoke to other inmates who
had a similar experience with Pobranz. When Plaintiff was
finally able to call the prisoner complaint hotline, they
told him the Pobranz issue was being dealt with. In the next
few weeks, Plaintiff filed a number of inmate complaints
concerning Pobranz's actions. Id. Defendant Todd
Gillingham (“Gillingham”) rejected one of these
out of hand as duplicative. Id. Another complaint
was dismissed by the John Doe complaint examiner.
Id. Plaintiff appealed that decision but Defendant
Brad Hompe (“Hompe”) denied the appeal, citing
the ongoing investigation into Pobranz's misconduct.
Id. at 8. Plaintiff alleges that Hompe's
decision was made in consultation with Defendant deputy
warden Jim Zanon (“Zanon”). Id.
Plaintiff apparently took an appeal of Hompe's ruling,
which was subsequently denied by Defendant Cindy
O'Donnell (“O'Donnell”). Id.
states that no one ever came to talk to him about the Pobranz
investigation. He further alleges that he was “moved
off of K-Unit in retaliation, due to he was /is the most
vocal about what Pobranz has done[.]” Id.
Plaintiff's requests for relief are wide-ranging,
combining both injunctive and monetary relief against nearly
all Defendants. Id. at 9-12.
may proceed on a claim of cruel and unusual punishment
against Pobranz. “A prison guard carrying out a prison
security measure can violate the Eight Amendment in one of
two ways: by maliciously inflicting pain or injury, . . . or
by performing some action that is intended to humiliate the
victim or gratify the assailant's sexual
desires[.]” Gillis v. Pollard, 554 F.App'x
502, 505 (7th Cir. 2014) (citations and quotations omitted).
As alleged by Plaintiff, Pobranz's groping and comment
during the pat down search are of the latter variety.
has not stated viable claims against any other Defendant.
None were actually present when Pobranz acted or could have
intervened to stop him. Plaintiff merely complained to each
Seventh Circuit explains,
[the prisoner's] view that everyone who knows about a
prisoner's problem must pay damages implies that he could
write letters to the Governor of Wisconsin and 999 other
public officials, demand that every one of those 1, 000
officials drop everything he or she is doing in order to
investigate a single prisoner's claims, and then collect
damages from all 1, 000 recipients if the letter-writing
campaign does not lead to better medical care. That can't
be right. The Governor, and for that matter the
Superintendent of Prisons and the Warden of each prison, is