Sprehe v. Gaetz et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, Defendants GAETZ, BROWN, DEEN, JOHNSON, and GODINEZ are DISMISSED from this action with prejudice. The Clerk of Court shall prepare for Defendants McGUIRE, McELYEA, SWALLERS, FLATT, and BELFORD: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge G. Patrick Murphy on 11/14/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RANDY SPREHE, # A-96174,
Plaintiff,
vs.
DONALD GAETZ, SGT. McGUIRE,
SGT. McELYEA, C/O SWALLERS,
C/O FLATT, C/O BELFORD,
STACY BROWN, K. DEEN,
SARAH JOHNSON, and S.A. GODINEZ,
Defendants.

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Case No. 13-cv-997-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”),
brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving an 80-year
sentence for murder.
Plaintiff claims that on four occasions in April 2012, Defendants McGuire, McElyea,
Swallers, Flatt, and Belford subjected him to humiliating strip searches (Doc. 1, p. 9; Doc. 1-1,
pp. 2, 4-5). Plaintiff, who had been assigned to dietary work, was taken to the gym along with
19 other inmate dietary workers who were on a “deadlock” work crew.1 All inmates in the group
were ordered to strip naked in front of each other and were searched together, in full view of
each other and of the security cameras. Each inmate was ordered to bend over and spread his
buttocks, then lift his genitals, and then to lift his upper and lower lips after touching his genitals.
Plaintiff was taunted by the Defendants while they conducted the search. One of the workers

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The prison was on lockdown at the time (Doc. 1-1, p. 18).
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being searched next to Plaintiff was an open homosexual. Plaintiff inquired about the cameras
and privacy, but was told if he did not comply, he would be put in segregation for disobeying a
direct order.
According to Plaintiff’s grievances, after the initial strip search on April 18, 2012, the
next three strip searches on April 20, 21, and 22, were conducted with partitions being placed
between the inmates (Doc. 1-1, pp. 3, 5). However, inmates were still in full view of the security
cameras. On the following day (April 23), Plaintiff heard the officers laughing and joking about
how they had been ordered to change the manner in which the strip searches were done (Doc. 11, pp. 4-5). Those new procedures (which Plaintiff does not describe) were followed starting on
April 23, 2012. Id.
Plaintiff filed two grievances over the searches, which were denied by Defendants Brown
(counselor), Deen (grievance officer), Gaetz (Pinckneyville Warden), Johnson (Administrative
Review Board), and Godinez (Director of the Illinois Department of Corrections) (Doc. 1-1, pp.
1, 3, 5-6). He seeks compensatory damages.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated a
colorable Eighth Amendment claim for having been subjected to unreasonable and demeaning
strip searches, against Defendants McGuire, McElyea, Swallers, Flatt, and Belford, that shall
receive further review. See Mays v. Springborn, 719 F.3d 631, 634, (7th Cir. 2013) (inmate
stated claim where he was strip searched along with a group of inmates, whose bodies were

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gratuitously exposed to one another, while guards uttered demeaning comments); Mays v.
Springborn, 575 F.3d 643, 649-50 (7th Cir. 2009); Calhoun v. DeTella, 319 F.3d 936, 939 (7th
Cir. 2003) (a strip search conducted in a harassing manner intended to humiliate and inflict
psychological pain could violate the Eighth Amendment).
However, the remaining Defendants shall be dismissed. Plaintiff does not allege that
Defendants Gaetz, Brown, Deen, Johnson, or Godinez were present or in any way personally
involved in the strip searches. In the complaint, he mentions only that he filed grievances which
were denied by Defendants Brown, Deen, and Johnson (Doc. 1, p. 8). His exhibits bear the
signatures of Defendants Gaetz and Godinez, demonstrating that they concurred in the denial of
Plaintiff’s grievances (Doc. 1-1, pp. 5-6). Therefore, the pleading indicates that the only role
these Defendants had in the matter was to review Plaintiff’s complaints about the conduct of the
strip searches by other officers.
The rejection or even the improper handling of inmate grievance complaints will not give
rise to a constitutional claim. The Seventh Circuit instructs that the alleged mishandling of
grievances “by persons who otherwise did not cause or participate in the underlying conduct
states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See also Grieveson v.
Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
Further, the doctrine of respondeat superior is not applicable to § 1983 actions. Sanville
v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Even though Defendants
Gaetz and Godinez had supervisory authority over the officers who conducted the searches, this
does not make them liable for those officers’ alleged misconduct.
To summarize, Plaintiff’s complaint does not indicate that Defendants Brown, Deen,

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Johnson, Gaetz or Godinez were “personally responsible for the deprivation of a constitutional
right.” Id. Plaintiff thus fails to state a constitutional claim against them, and these Defendants
shall be dismissed from this action.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
The motion for service of process at government expense (Doc. 4) shall be GRANTED
IN PART AND DENIED IN PART. Service shall be ordered below on those Defendants who
remain in the action. No service shall be made on the dismissed Defendants.
Disposition
Defendants GAETZ, BROWN, DEEN, JOHNSON, and GODINEZ are DISMISSED
from this action with prejudice.
The Clerk of Court shall prepare for Defendants McGUIRE, McELYEA, SWALLERS,
FLATT, and BELFORD: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a
Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail
these forms, a copy of the complaint, and this Memorandum and Order to each Defendant’s
place of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver
of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent,
the Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court
will require that Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if

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not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give

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security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to Plaintiff.
Local Rule 3.1(c)(1).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: November 14, 2013
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G. PATRICK MURPHY
United States District Judge

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