United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
a prisoner proceeding pro se, filed a complaint
under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). This matter comes before the
Court on Plaintiff's petition to proceed without
prepayment of the filing fee, or in forma pauperis.
(Docket #2). Plaintiff has been assessed and has paid an
initial partial filing fee of $18.00. See 28 U.S.C.
Court must screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised 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. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327; Gladney, 302 F.3d at 774. “Malicious,
” although sometimes treated as a synonym for
“frivolous, ” “is more usefully construed
as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)); see Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
(citation omitted); Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief 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 deprivation was visited upon him by a person or
persons 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 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 is obliged
to give the plaintiff's pro se 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,
alleges that on October 23, 2018 at 3:00 p.m. in dorm L-6 of
the Milwaukee County House of Correction, officers entered
the dorm and announced that the dorm and the inmates therein
would be searched. (Docket #1 at 2). Sergeant Gonzalez
(“Gonzalez”) said the inmate search would be
“very uncomfortable, ” but that the officers
would do it properly in accordance with how they had been
trained. Id. Plaintiff was instructed to go into the
hall, where he saw the officers who would perform the
searches. He stood second in line, aligned with the second
officer. Id. at 3. Plaintiff does not know the
officer's name, so we will call him John Doe. This
officer instructed Plaintiff to face the wall and spread his
legs. Id. The officer then performed a body search,
running his hands all along Plaintiff's body.
Id. When the officer's hands came near
Plaintiff's genitals, the officer “turn[ed] his
left hand flat palm upward [and] cupped and massaged my
entire scrotum and penis.” Id. Plaintiff felt
violated by this conduct.
informed CO Grashan (“Grashan”) about what
happened and asked to call to make a complaint under the
Prison Rape Elimination Act (“PREA”).
Id. at 4. Grashan responded that PREA complaints can
only be lodged against other inmates, not staff. Id.
Grashan told Plaintiff that if he felt he had been violated,
he should file a grievance. Id. Plaintiff did just
that. Id. Two other inmates also complained to
Grashan about being sexually assaulted, describing the same
offending officer. Id.
next day, Plaintiff asked a different officer, CO Brushells
(“Brushells”), whether he could file a PREA
complaint against a staff member, and Brushells told
Plaintiff he could. Id. Also that day, Plaintiff was
seen by a mental health provider named Melissa who also
confirmed that Plaintiff could file a PREA complaint against
a staff member. Id. at 5. Plaintiff then spoke to
another officer, CO Troutman (“Troutman”), who
gave Plaintiff a complaint form to fill out. Id.
Plaintiff filed a complaint, and appealed it when it was
denied. Id. at 5-6.
after Plaintiff filed his complaint, Troutman called
Plaintiff to his desk to inform Plaintiff that Captain Bacan
(“Bacan”) had said “[Plaintiff] told
everyone [he] needed to tell and if [Bacan] [hears] of it
again, he will put [Plaintiff] in seg.” Id. at
allegations are sufficient to state an Eighth Amendment claim
against the John Doe officer who allegedly groped
Plaintiff's genitals during a search. The Eighth
Amendment prohibition on cruel and unusual punishment bars
prison authorities from unnecessarily and wantonly inflicting
pain on inmates. See Hope v. Pelzer, 536 U.S. 730,
737 (2002); Whitman v. Nesic, 368 F.3d 931, 934 (7th
Cir. 2004). In the context of searches of prisoners, only
searches that are maliciously motivated, unrelated to
institutional security, and lack a legitimate penological
justification violate the Eighth Amendment. Id. The
infliction of pain on prisoners without any legitimate
penological justification “always violates contemporary
standards of decency and need not produce serious injury in
order to violate the Eighth Amendment.” Calhoun v.
DeTella, 319 F.3d 936, 939 (7th Cir.2003) (citing
Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
Therefore, “infliction of pain that is totally without
penological justification is per se malicious.”
Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004)
(internal quotation marks omitted). To prove his claim
against John Doe, Plaintiff will ultimately have to show that
the search in question was not a legitimate, penologically
justified, search, but was instead “a search conducted
in a harassing manner intended to humiliate and inflict
psychological pain.” Calhoun v. DeTella, 319
F.3d 936, 939 (7th Cir. 2003).
allegations meet the low bar at screening to state an Eighth
Amendment claim against John Doe under this standard.
Massaging an inmate's penis and scrotum is not part of
the standard pat-down procedure. See Wis. Admin.
Code § DOC 306.17(1). Whether Plaintiff can actually
prove that the John Doe officer touched him in the way he
alleges, and that the officer did so for the purpose of
humiliating and inflicting emotional pain on Plaintiff, are
factual matters to be resolved in a later stage of the case.
will also be permitted to proceed against Bacan on a claim of
retaliation in violation of his First Amendment right to use
the prison grievance system. To prevail on this claim,
Plaintiff must ultimately show that “(1) he engaged in
activity protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity
in the future; and (3) the First Amendment activity was
‘at least a motivating factor' in the
Defendants' decision to take the retaliatory
action.” Gomez v. Randle, 680 F.3d 859, 866
(7th Cir. 2012). The filing of a complaint, grievance, or
lawsuit by a prisoner is activity protected under the First
Amendment. Id. Plaintiff has alleged that Bacan