United States District Court, E.D. Wisconsin
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
PEPPER United States District Judge
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.
Motion for Leave to Proceed without Prepayment of the Filing
Fee (Dkt. No. 6)
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
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.
Screening the Plaintiff's Complaint (Dkt. No. 1)
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.
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).
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,
The Plaintiff's Allegations
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.
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,
July 29, 2014 Strip Search
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.
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 ...