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West v. Kind

United States District Court, E.D. Wisconsin

April 3, 2018

RUFUS WEST, Plaintiff,
v.
JOHN KIND, SCOTT ECKSTEIN, PETE ERICKSEN, BRIAN FOSTER, SARAH COOPER, BRAD HOMPE, CINDY O'DONNELL, and JOHN AND JANE DOES, Defendants.

         ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 6), SCREENING COMPLAINT UNDER 28 U.S.C. §1915A, DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 10) AND DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT IF HE WANTS TO PROCEED

          PAMELA PEPPER United States District Judge

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a motion for leave to proceed without prepayment of the filing fee, dkt. no. 6. The plaintiff also has filed a motion to appoint counsel, dkt. no. 10, and a supplemental complaint, dkt. no 11. This order resolves the motions and screens the complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee (Dkt. No. 6)

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed the complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On April 19, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $29.97. Dkt. No. 9. The plaintiff paid that fee on May 2, 2017. Accordingly, the court will grant the plaintiff's motion. The court will require the plaintiff to pay the remainder of the filing fee over time as set forth at the end of this decision.

         II. Screening the Plaintiff's Complaint (Dkt. No. 1)

         The PLRA requires the court to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint if the plaintiff raises 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. 28 U.S.C. §1915A(b).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.(citing Twombly, 550 U.S. at 556).

         To state a claim under 42 U.S.C. §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 defendant was 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 gives a pro se plaintiff's 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)).

         A. The Plaintiff's Allegations

         The plaintiff is incarcerated at the Green Bay Correctional Institution (GBCI). Dkt. No. 1 at 1. The defendants are GBCI Security Director John Kind, GBCI Warden Scott Eckstein, former GBCI Security Director Pete Ericksen, former GBCI Warden Brian Foster, GBCI Deputy Warden Sarah Cooper, Corrections Complaint Examiner Brad Hompe, Cindy O'Donnell (who represents the Secretary of the Wisconsin Department of Corrections (DOC)), John Doe and Jane Doe. Id. at 1-2.

         The plaintiff, who has been incarcerated since 1994, embraced Islam in 1995. Id. at 2-3. Islamic law requires Muslims to demonstrate modesty by “not exposing [their] nakedness when alone, except when there's a need to undress, or to anyone except [a man's ] wife.” Id. at 2. Islamic law prohibits Muslims from exposing their nakedness to members of the opposite sex, unless that person is a spouse. Id. The plaintiff challenges two strip searches, one that took place on July 29, 2014, and the other on July 2, 2016. Id. at 3, 4.

         1. July 29, 2014 Strip Search

          On July 29, 2014, a security staff member ordered the plaintiff to go to the Rotunda for a random urine analysis test. Id. at 3. The plaintiff has had these tests in the past and was never subjected to a strip search beforehand. Id. When the plaintiff arrived in the Rotunda, defendant John Doe, acting on the orders of defendants Ericksen, Foster, Cooper and John Doe, ordered the plaintiff to go to the visiting area for a strip search. Id. The plaintiff told defendant John Doe that he shouldn't have a strip search for a random urine analysis test. Id. Defendant John Doe, acting on the orders of defendants Ericksen, Foster, Cooper and John Doe, threatened that if the plaintiff didn't comply, he would be placed in punitive segregation. Id.

         A prisoner who doesn't comply with a strip search is forcibly strip searched, which involves restraining the prisoner, cutting off his clothes and examining his naked body by touching him everywhere and exposing private parts of his body. Id. “Under the threat of being abused and humiliated by GBCI staff's actions” in conducting a forcible search, the plaintiff “complied with the strip search ...


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