United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
Travis James Lebich, who is incarcerated at Kettle Moraine
Correctional Institution (“KMCI”), 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 $14.04. 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. Vill. 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,
alleges that on July 20, 2017, while incarcerated at KMCI,
correctional officers Conard and Nietzel woke him to perform
a urine analysis. (Docket #1 at 3). Prior to the analysis,
Plaintiff was strip searched in the bathroom. Id.
Conard, who is presumably male, actually performed the search
in the shower area. Id. Nietzel, identified as
female, could see Plaintiff being searched from her place at
the officer's station. Id. The officers also
allowed other inmates in to use the bathroom while Plaintiff
was naked. Id. at 4. Plaintiff asked Conard to
perform the search with the shower curtain drawn, but Conard
refused. Id. at 3. Plaintiff says the urine analysis
was done in retaliation for Plaintiff “sticking up for
two fellow inmates” the day before. Id. at 4.
Apparently, an officer Lamb was upset by Plaintiff's
actions and put in motion the events which led to the urine
analysis and strip search. Id. Plaintiff seeks money
damages from each defendant. Id. at 5. He also
requests that policies be implemented at KMCI to exclude
opposite-gender officers from participating in a strip
search, and requiring that such searches be conducted in a
closed-off area. Id.
allegations, liberally construed, state a claim against
Conard and Nietzel for violating his Eighth Amendment right
against cruel and unusual punishment. As the Seventh Circuit
explains, “the Eighth Amendment prohibits unnecessary
and wanton infliction of pain, thus forbidding punishment
that is ‘so totally without penological justification
that it results in the gratuitous infliction of
suffering.'” Calhoun v. DeTella, 319 F.3d
936, 939 (7th Cir. 2003) (quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976)). Strip searches can violate this
rule by producing psychological, rather than physical, pain.
Id. While “[t]here is no question that strip
searches may be unpleasant, humiliating, and embarrassing to
prisoners, ” strip searches are not per se
improper. Even a “strip search of a male prisoner in
front of female officers, if conducted for a legitimate
penological purpose, would fail to rise to the level of an
Eighth Amendment violation.” Id. To state a
valid claim, the prisoner must allege “that the strip
search in question was not merely a legitimate search
conducted in the presence of female correctional officers,
but instead a search conducted in a harassing manner intended
to humiliate and inflict psychological pain.”
has done so. He alleges that the urine analysis, and the
resultant search, was merely retaliatory and not based on a
legitimate penological concern. Plaintiff's claim extends
not only to Nietzel's presence as a female officer, but
also to the officer's decision to allow other inmates
into the bathroom while Plaintiff was naked. See Chatman
v. Ill. Dep't of Corr., 685 Fed.Appx. 487, 489 (7th
Cir. 2017). He cannot proceed against the officers on his
claims relating to strip search policies, however. The
complaint offers no indication that the officers have the
authority to change or enact prison-wide policies.
may not proceed against Robert Humphreys or Tom Pollard.
Their only mention in the complaint is that they worked at
KMCI. (Docket #1 at 2). There is no indication of what their
role was in allegedly violating Plaintiff's
constitutional rights. Assuming that they had a supervisory
role, they are not liable for Conard and Nietzel's
conduct simply because of that fact. Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)
(“The doctrine of respondeat superior does not
apply to § 1983 actions; thus to be held individually
liable, a defendant must be personally responsible for the
deprivation of a constitutional right.”) (quotation
the court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): cruel and
unusual punishment by Defendants C.O. Conard and C.O.
Nietzel, in violation of the Eighth Amendment, for strip
searching Plaintiff without penological justification and
intending to humiliate him.
IT IS ORDERED that the plaintiff's
motion for leave to proceed without prepayment of the filing
fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IS FURTHER ORDERED that Defendants Robert Humphreys
and Tom Pollard be and the same are ...