United States District Court, E.D. Wisconsin
DENYING AS MOOT PLAINTIFF'S MOTION TO COMPEL (DKT. NO.
24), DENYING PLAINTIFF'S MOTION FOR SANCTIONS (DKT. NO.
46), DENYING PLAINTIFF'S MOTION FOR COSTS AND FEES (DKT.
NO. 47), DENYING PLAINTIFF'S MOTION TO STRIKE
DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 53), DENYING PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT (DKT. NO. 54), AND DENYING
PLAINTIFF'S MOTION FOR CEASE AND DESIST HARASSMENT ORDER
(DKT. NO. 65)
PAMELA PEPPER United States District Judge.
Rufus West is a prisoner who is representing himself. On July
31, 2018, the court screened his amended complaint and
allowed him to proceed on a claim that defendants Buhle, Kind
and Eckstein violated his right to freely exercise his
religion by subjecting him to pressure to violate his beliefs
by submitting to a strip-search in front of, or by, an
allegedly female officer. Dkt. No. 16 at 7. The court also
permitted the plaintiff to proceed on a claim under the
Religious Land Use and Institutionalized Persons Act based on
allegations that Buhle, Kind and Eckstein imposed a
substantial burden on his First Amendment free exercise
rights and that there was no compelling interest in having
Buhle search him or observe the search. Id. Finally,
the court allowed the plaintiff to proceed on claims against
defendants Hompe and O'Donnell for allegedly failing to
intervene in the violation of the plaintiff's rights.
Id. at 10-11.
plaintiff has filed a motion to compel (dkt. no. 24), a
motion for summary judgment (dkt. no. 42), a motion for
sanctions (dkt. no. 46), a motion for costs and fees (dkt.
no. 47), a motion to strike defendants' response to his
motion for summary judgment (dkt. no. 53), a motion for
default judgment (dkt. no. 54) and a motion for a cease and
desist harassment order (dkt. no. 65). The defendants have
filed a motion for summary judgment (dkt. no. 28). This order
addresses the plaintiff's non-dispositive motions; the
court will address the parties' motions for summary
judgment in a subsequent order.
Plaintiff's Motion to Compel (Dkt. No. 24)
motion to compel discovery, the plaintiff states that he
asked defendant Buhle for answers to five questions and for
documents that would clearly prove that Buhle is a female.
Dkt. No. 24 at 1, 2. The plaintiff asked defendant Buhle to
provide: his full birth name; his gender designated at birth;
whether he was born with a penis or a vagina; any documents
identifying him as a female; any medications, surgeries,
therapy, and other procedures that are hormone related; a
birth certificate; any birth certificate that shows a change
of birth name; any document identifying Buhle as a female;
the earliest document identifying Buhle as a male; and his
driver's license. Dkt. No. 24-1 at 3-7. The plaintiff
attached to his motion the defendants' objections to the
plaintiff's interrogatories and to his requests for
production of documents, both dated January 14, 2019.
Id. at 3-5, 6-8. The defendants objected to these
requests as irrelevant or confidential. Id. The
plaintiff asks the court to compel the defendants to provide
him with the requested information. Dkt. No. 24 at 2.
their February 20, 2019 response to the plaintiff's
motion, the defendants contend that the information the
plaintiff seeks is irrelevant to the plaintiff's request
for injunctive relief because the plaintiff is no longer
incarcerated at Green Bay Correctional Institution, where
Buhle works. Dkt. No. 25 at 2. According to the defendants,
the plaintiff transferred to Redgranite Correctional
Institution on February 15, 2019 and will not be subject to
future strip searches by Buhle. Id. The defendants
contend that this transfer moots the plaintiff's request
for injunctive relief, at least to the extent that he wants
to avoid future searches by Buhle. Id. The
defendants argue that to the extent that the plaintiff wants
an order prohibiting the defendants from allowing female
staff to strip search him, Buhle's personal history has
no bearing on this aspect of the plaintiff's claim now
that he is at Redgranite. Id. at 3.
defendants also assert that the discovery is not relevant to
the plaintiff's request for damages because they are
entitled to qualified immunity. Id. According to the
defendants, no case has clearly established that male inmates
have a First Amendment right to avoid strip searches by
transgender male officers. Id. at 5. They state that
even if the plaintiff could prove Buhle is a transgender
male, he cannot show he had a clearly established First
Amendment right not to be strip searched by Buhle or in
Buhle's presence. Id. The defendants say that
the plaintiff did not state a claim under the Eighth
Amendment, which is how most modern strip search claims in
this circuit are analyzed, and that these cases do not
clearly establish that a male inmate has a First Amendment
free exercise right to avoid strip searches by transgender
males. Id. at 7.
defendants also maintain that a policy allowing transgender
male officers to strip search male inmates does not target
the plaintiff's religion. Id. According to the
defendants, they also are entitled to qualified immunity
because it is not clearly established that an inmate can
state a First Amendment claim against a neutral policy.
Id. at 7-8.
defendants go on to argue that a policy allowing transgender
male officers to strip search male inmates is reasonably
related to legitimate penological interest. Id. at
8. They state that if the neutrality of the policy does not
end the inquiry, the court would have to consider whether
being strip searched by a transgender male officer (or in his
presence) substantially burdened the plaintiff's practice
of Islam and whether the policy was, nevertheless, reasonably
related to legitimate penological needs. Id. The
defendants assert that, for the purposes of this motion, they
do not challenge whether the plaintiff's practice of
Islam was burdened. Id. They contend, however, that
the plaintiff cannot meet his burden to show it is clearly
established that allowing a transgender male to strip search
male inmates is not reasonably related to legitimate
penological needs. Id. The defendants state that
they are unaware of any case which has considered this issue.
Id. The defendants also assert that releasing the
requested information could pose a security risk.
Id. at 10.
plaintiff replied on March 20, 2019, asserting that the fact
that he is no longer a prisoner at Green Bay does not mean
that he will never be imprisoned there in the near or distant
future, or that Buhle will not be transferred to work in a
prison where the plaintiff is imprisoned. Dkt. No. 26 at 1.
He also states that his claim is broadly addressed to the DOC
as a whole as a result of the remaining defendants failing to
intervene on the plaintiff's behalf, by asserting that
the plaintiff's failure to submit to a strip search
“by this individual or any other male staff member it
is my expectation that you will comply.” Id.
According to the plaintiff, this assertion by the defendants
includes not only Buhle, but other staff members like Buhle,
wherever the plaintiff is within the DOC, and that failure to
comply will result in the plaintiff being
“disciplined.” Id. He states that this
is a decision that affects the DOC state-wide because the DOC
secretary is the final decision-maker under Administrative
Code §DOC 310.14. Id. at 1-2.
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case[.]” Fed.R.Civ.P.
26(b)(1). When determining whether discovery is appropriate,
the court considers “the importance of the issues at
stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.”
question of whether Buhle is a transgender male is relevant
to the plaintiff's claim that being searched by or in the
presence of a transgender male constitutes a violation of his
First Amendment rights. But there is no need for the court to
require the defendants to provide the detailed information
the plaintiff has requested in discovery. On May 6, 2019, the
defendants filed a declaration from Buhle in support of the
defendants' motion for summary judgment. Dkt. No. 35. In
that declaration, Buhle states that he was assigned a female
at birth, but now identifies as a man, and that he identified
himself as a man when he was hired at Green Bay. Id.
at ¶¶ 6-7. Because Buhle has confirmed that he was
born a female, the plaintiff's motion to compel is moot,
and the court will deny it.
the plaintiff's motion was not moot, the court would have
denied it as to most of his requests, because many were
highly personal and appear to have been designed to embarrass
Buhle. Some of the requests also sought information that ...