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McDaniels v. Smith

United States District Court, E.D. Wisconsin

September 5, 2017



          J. P. Stadtmueller, U.S. District Judge.

         Plaintiff 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. § 1915(b)(1).

         The 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. § 1915A(b).

         A claim 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) (citations omitted).

         To 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).

         In 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.

         To 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)).

         Plaintiff 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.

         After 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 Defendant after-the-fact.

         As the 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 ...

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