Knell v. Brown
MERIT REVIEW ORDER entered by Judge Michael M. Mihm on 10/13/2020. IT IS THEREFORE ORDERED: 1) Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will be given 30 days in which to file an amended complaint. The amended complaint must stand complete on its own, without reference to a prior pleading and is to address the concerns identified by the Court. The failure to file an amended complaint will result in the dismissal of this case without prejudice. 2) Plaintiff's motion for recruitment of pro bono counsel 5 is DENIED with leave to reassert if he files an amended complaint. Plaintiff's motion for status 8 is rendered MOOT by this order. SEE FULL WRITTEN ORDER.(SAG, ilcd)
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Tuesday, 13 October, 2020 03:28:05 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MERIT REVIEW ORDER
Plaintiff, a pretrial detainee, proceeding pro se, pursues a § 1983 claim alleging an
unconstitutional search by a Bloomington Police Department detective. The case is before the
Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint, the Court
accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v.
Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a claim for relief that is plausible on its
face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(citation and internal
quotation marks omitted). While the pleading standard does not require “detailed factual
allegations”, it requires “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Plaintiff alleges that on October 23, 2018, he was a detainee in the custody of the
Bloomington City Police Department. On that date, Defendant Detective Brown subjected
Plaintiff to a visual body cavity search during a custodial interrogation. Plaintiff provides no
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detail as to the search, but alleges, in conclusory fashion, that the search was “demeaning,
dehumanizing, undignified, humiliating, terrifying, unpleasant and embarrassing.”
A pretrial detainee’s protection against an unconstitutional search arises from the Due
Process Clause of the Fourteenth Amendment and is reviewed under the same Eighth
Amendment cruel and unusual punishment standard as that for convicted prisoners.1 Streeter v.
Sheriff of Cook County, 576 F.Supp.2d 913, 917 (N.D. Ill. 2008); Forrest v. Prine, 620 F.3d 739,
744 (7th Cir. 2010). If a pretrial detainee if subjected to a particular condition or restriction
which is not reasonably related to a legitimate governmental objective, it may constitute an
impermissible punishment under the Due Process Clause. Streeter, 576 F.Supp.2d 917.
Prison officials are permitted to touch, pat down and search a prisoner in order to
determine whether the prisoner is hiding anything dangerous in his person but may not do so “in
a harassing manner intended to humiliate and inflict psychological pain.” Turner v. Huibregtse,
421 F.Supp. 2d 1149, 1151 (W.D. Wis. March 22, 2006). It is recognized that “strip searches
may be unpleasant, humiliating, and embarrassing to prisoners, but not every psychological
discomfort a prisoner endures amounts to a constitutional violation.” Calhoun v. DeTella, 319
F.3d 936, 939 (7th Cir. 2003).
In determining whether a bodily search violates the constitution, a court must balance the
detainee's constitutional rights against the security concerns of the institution, the scope of the
intrusion, the manner in which the search is conducted, the justification for the search, and the
(“Between the status of free citizen and convicted prisoner lies the ‘pretrial detainee,’ protected by the due process
clause of the Fourteenth Amendment.”). Forrest v. Prine, 620 F.3d 739, 744 (7th Cir. 2010).
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place at which the search is conducted. Bell v. Wolfish, 441 U.S. 520, 559 (1979). Here,
Plaintiff does not give sufficient detail to plead that Defendant’s actions were done to degrade or
humiliate him, rather than in furtherance of legitimate penological interests. As a result,
Plaintiff’s complaint will be dismissed with leave to replead.
The Court notes that Plaintiff has indicated that, although there was a grievance
procedure at the facility, he admittedly did not file a related grievance. Plaintiff asserts that a
grievance was not necessary as “[c]onstitutional deprivation is separate issue, unrelated to
penological conditions.” Plaintiff’s claim in this regard is incorrect as he is a prisoner and
therefore subject to the provisions of the Prisoner Litigation Reform Act which require an inmate
to exhaust all available administrative remedies prior to filing suit. 42 U.S.C.§ 1997(e)(a). See
Kincaid v. Sangamon County, 435 Fed. Appx. 533, 536–537, 2011 WL 2036441 at *3 (7th Cir.
2011) (recognizing that the § 1997e(a) exhaustion requirement applies to jail as well as prison
grievance procedures). If a prisoner fails to follow all of the necessary grievance procedures, the
claim will not be exhausted, and will be barred, even if there are no remaining administrative
remedies available. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
It is recognized that the failure to exhaust is “an affirmative defense that ordinarily should
be raised—and must be proven—by the defendant. A district court may dismiss a complaint
where ‘the existence of a valid affirmative defense, such as the failure to exhaust, is so plain from
the face of the complaint that the suit can be regarded as frivolous…But the defense must be
unmistakable…’” Boyce v. Illinois Dept. of Corrections, 661 Fed.Appx. 441, 443 (7th Cir. 2016)
(internal citations omitted). Plaintiff is hereby placed on notice that , if he failed to exhaust
prison grievance procedures which were available to him, his complaint must be dismissed. In an
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abundance of caution, Plaintiff will be given an opportunity to address this issue in the event he
files an amended complaint.
IT IS THEREFORE ORDERED:
Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will be given 30 days in which to file an
amended complaint. The amended complaint must stand complete on its own, without reference
to a prior pleading and is to address the concerns identified by the Court. The failure to file an
amended complaint will result in the dismissal of this case without prejudice.
Plaintiff’s motion for recruitment of pro bono counsel  is DENIED with leave
to reassert if he files an amended complaint. Plaintiff’s motion for status  is rendered MOOT
by this order.
s/Michael M. Mihm_______
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE
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