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.

West v. Kind

United States District Court, E.D. Wisconsin

September 17, 2019

RUFUS WEST, Plaintiff,
v.
JOHN KIND, WARDEN SCOTT ECKSTEIN, BRAD HOMPE, CINDY O'DONNELL, and ISAAC BUHLE, Defendants.

         ORDER 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)

          HON. PAMELA PEPPER United States District Judge.

         Plaintiff 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.

         The 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.

         A. Plaintiff's Motion to Compel (Dkt. No. 24)

         In his 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.[1] 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.

         In 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.

         The 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.

         The 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.

         The 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.

         The 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.

         “Parties 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.” Id.

         The 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.

         Even if 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 ...


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.