Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maus v. Baenen

United States District Court, E.D. Wisconsin

July 16, 2018

BRIAN A. MAUS, Plaintiff,
v.
MICHAEL BAENEN, PETE ERICKSON, LESATZ, CAPTAIN STEVENS, LADE, MICHAEL MOHR, KATHY FRANCOIS, WELCOME ROSE, CHARLES FACKTOR, CHARLES COLE, CINDY O'DONNELL, and SCOTT WALKER, Defendants.

          DECISION AND ORDER SCREENING THE PLAINTIFF'S, SECOND AMENDED COMPLAINT (DKT., 9) AND DENYING THE PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DKT. NO. 10)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff filed a complaint under 42 U.S.C. § 1983, alleging that the defendants violated his constitutional rights. Dkt. No. 1. He filed an amended complaint on December 18, 2017, which replaced his original complaint. Dkt. No. 7. The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. The PLRA requires courts to screen a prisoner-plaintiff's complaint before allowing the case to proceed to ensure the complaint states a claim and that it is neither legally frivolous nor malicious. 28 U.S.C. §1915A(a).

         On March 16, 2018, the court screened the plaintiff's amended complaint. Dkt. No. 8. The court found that the amended complaint did not comply with Federal Rules of Civil Procedure 8, 18 and 20, so it gave him the opportunity to file a second amended complaint. The court received that second amended complaint on April 17, 2018. Dkt. No. 9. That same day, the plaintiff also filed a motion for a preliminary injunction, which he supplemented a little more than a week later. Dkt. Nos. 10, 12. This order screens the plaintiff's second amended complaint and resolves the motion.

         I. Screening the Plaintiff's Second Amended Complaint

         A. The Federal Pleading Standard

         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. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. 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)).

         B. The Plaintiff's Allegations

         The plaintiff alleges that, on multiple occasions from May 2011 through August 2011, defendant Lade “sexually assaulted” him by grabbing his penis and touching him around his groin area when he performed pat-down searches of the plaintiff. Dkt. No. 9 at 3-6. The plaintiff asserts that, on at least two occasions (May 28 and 29, 2011), defendant Lesatz was present when Lade inappropriately touched him. Id. at 3. The plaintiff alleges that when he told Lesatz about Lade's alleged misconduct, Lesatz told him “he shouldn't of came to prison.” Id. The plaintiff states that, when he told them he was going to file an inmate complaint, “Lade stated he doesn't give a fuck, it ain't going to stop” and “Lesatz stated that he will make sure the plaintiff is searched every day he comes out of his cell . . . .” Id.

         The plaintiff filed multiple inmate complaints about Lade's alleged misconduct over the course of several months. Id. at 3-6. He also wrote a letter to Governor Scott Walker and filed a “criminal John Doe complaint” with the Brown County District Attorney's Office. Id. at 5-6. According to the plaintiff, despite telling Lade that the plaintiff was making these complaints, Lade continued to sexually assault him every time he performed a pat-down search of the plaintiff. Id. at 3-6.

         The plaintiff also alleges that defendants Michael Mohr, Michael Baenen, Pete Erickson, Welcome Rose, Charles Cole, Charles Facktor, Kathy Francois and Captain Stevens all conspired at various times and in various combinations when they evaluated the plaintiff's inmate complaints. Id. at 3-6. The plaintiff also alleges that Mohr, Baenen, Erickson and Stevens failed to investigate his claims against Lade and that Walker failed to respond to his letter. Id. at 4-5.

         C. The Court's Analysis

         Although the plaintiff frequently refers to a “conspiracy” throughout his second amended complaint, he has failed to state a conspiracy claim. Conspiracy is not an independent basis for liability under §1983. Lewis v. Washington, 183 Fed. App'x 553, 554 (7th Cir. 2006). “Section 1983 does not . . . punish conspiracy.” Id. (citing Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982)). In order for a defendant to be liable under §1983, that defendant must actually have denied the plaintiff's constitutional rights, not just conspired to do so. Goldschmidt, 686 F.2d at 585 (citations omitted). The court will not allow the plaintiff to proceed on a conspiracy claim against any of the defendants.

         With regard to the plaintiff's allegations against Lade, “[a] prison guard carrying out a prison security measure can violate the Eight[h] 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 Fed. App'x 502, 505 (7th Cir. 2014) (internal citations and quotations omitted). The plaintiff has alleged sufficient facts to allow him to proceed on an Eighth Amendment claim against Lade, based on his allegations that Lade touched his penis and groin numerous times during pat-down searches. The plaintiff also has alleged sufficient facts to allow him to proceed against Lesatz, based on his allegations that Lesatz, who was present during some of the alleged sexual contacts, failed to intervene to stop Lade's alleged misconduct after the plaintiff complained to him. See Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (holding that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.