United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge
se plaintiff Jonathan Rausch contends that defendant
Brandon Bortz, a correctional officer, violated his rights by
directing sexual comments at him during his incarceration at
the Columbia Correctional Institution. Because Rausch is
incarcerated, his complaint must be screened under 28 U.S.C.
§ 1915A. After reviewing the complaint, the court
concludes that Rausch has failed to state any claim for
relief. Accordingly, this case will be dismissed.
alleges that on February 3, 2015, Correctional Officer Bortz
approached and asked him, “where is your green
hat?” Bortz then when on to suggest that plaintiff had
“probably used [the hat] to wipe semen off of [his]
celly's stomach.” Plaintiff immediately reported
Bortz's comments to staff and filed a report through the
Prison Rape Elimination Act hotline. An investigation was
conducted, after which Bortz admitted to making sexual
comments and was disciplined, but within several weeks, Bortz
was allowed to return to his post.
plaintiff was later transferred from Columbia to Oshkosh
Correction Institution, a medium security prison, he reports
problems trusting staff, sleeping and concentrating. Raush is
also worried that he will be retaliated against for
complaining against a staff member at another prison, and he
thinks his complaint may make it difficult for him to find
employment at the Oshkosh facility.
states that he wishes to sue for damages as a result of
Bortz's sexual comment. Generally, however, verbal
harassment by a prison guard is not enough by itself
to implicate a constitutional right. See DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000)
(“[S]imple verbal harassment does not constitute cruel
and unusual punishment, deprive a prisoner of a protected
liberty interest or deny a prisoner equal protection of the
laws.”). Still, in some limited circumstances, verbal
abuse can constitute cruel and unusual punishment under the
Eighth Amendment. See Beal v. Foster, 803 F.3d 356,
358 (7th Cir. 2015). For example, in Beal, a guard
allegedly displayed his own penis to the plaintiff on
multiple occasions and made repeated sexual comments to the
plaintiff that implied the plaintiff was homosexual.
Id. The court found that the guard's behavior
and comments, when combined with allegations that other
inmates harassed him by calling him names such as
“punk, fag, sissy, and queer, ” were sufficient
to state an Eighth Amendment claim, at least at the pleading
stage. Id. Specifically, the court reasoned that the
guard's behavior may have caused the plaintiff severe
psychological harm and increased the likelihood of sexual
assaults on the plaintiff by other inmates. Id.
Bortz's comment to plaintiff -- although deplorable --
does not by itself rise to the level of cruel and unusual
punishment. Unlike the allegations in Beal,
plaintiff neither alleges that Bortz engaged in a pattern of
harassment nor that Bortz's comments placed plaintiff at
risk of assaults by others. Rather, plaintiff alleges that
Bortz made a single comment to plaintiff, and he was
immediately disciplined for it. However offensive and
deserving of discipline, therefore, Bortz's lone comment
fails to implicate plaintiff's constitutional rights.
plaintiff's concerns about potential retaliation
sufficient to raise a constitutional claim. To state a
retaliation claim, plaintiff would need to: (1) identify a
constitutionally protected activity in which he was engaged;
(2) identify one or more retaliatory actions taken by each
defendant that would deter a person of “ordinary
firmness” from engaging in that protected activity in
the future; and (3) allege sufficient facts that would make
it plausible to infer that plaintiff's protected activity
was one of the reasons defendants took the action they did
against him. Bridges v. Gilbert, 557 F.3d 541, 556
(7th Cir. 2009) (citing Woodruff v. Mason, 542 F.3d
545, 551 (7th Cir. 2008)); Hoskins v. Lenear, 395
F.3d 372, 375 (7th Cir. 2005). Here, plaintiff alleges only
concern that adverse actions will be taken against
him because he complained about Bortz's comment. Absent
an allegation of an actual act of retaliation against
plaintiff under circumstances suggesting that it was
committed by an individual prison staff member at least in
part because of his complaint, plaintiff's
unsubstantiated concerns are insufficient to state a claim.
IT IS ORDERED that:
Plaintiff Jonathan Rausch is DENIED leave to proceed on any
claim and this case is DISMISSED for failure to state a claim
upon which relief may be granted.
dismissal will count as a STRIKE for purposes of 28 U.S.C.
§ 1915(g). (barring a prisoner with three or more
“strikes” or dismissals for a filing a civil
action or appeal that is frivolous, malicious, or fails to
state a claim from bringing any more actions or appeals
in forma pauperis unless he is in imminent danger of
serious physical injury).