Diggins v. Coe et al
Filing
11
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 4/6/2016. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAQUILLE DIGGINS, #M18372,
Plaintiff,
vs.
JOHN COE, C/O OCHE, and
C/O GILREATH,
Defendants.
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Case No. 16-cv-00242-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Shaquille Diggins, an inmate currently incarcerated at Lawrence Correctional
Center (“Lawrence”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
asserts that Defendants violated his rights when they subjected him to a painful and humiliating
anal cavity search.
Merits Review Under 28 U.S.C. § 1915A
The complaint is now before the Court for a preliminary review pursuant to 28 U.S.C.
§ 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints to filter
out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion
of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may
be granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
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face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to
relief must cross “the line between possibility and plausibility.” Id. at 557. Conversely, a
complaint is plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Complaint
On November 23, 2015, officers from the Orange Crush tactical team entered Plaintiff’s
cell and ordered him to submit to a visual strip search. (Doc. 1, p. 5). Plaintiff complied. He
removed all of his clothing, opened his mouth for visual inspection, and lifted his feet and
genitalia. Plaintiff also turned around, bent over, and spread his buttocks apart as he was ordered
to do. Id. After finding nothing in or on Plaintiff’s body, officers ordered Plaintiff to get dressed
and then handcuffed him behind his back. Id.
As Plaintiff was being escorted out of his housing unit and taken to the gym with the
other inmates, he was pulled out of line by Defendants Oche and Gilreath, officers with the
Orange Crush tactical team, and taken to the healthcare unit. Id. at 6. When Plaintiff asked
Defendants Oche and Gilreath why he was being taken to the healthcare unit, he was told that
they wanted to conduct an anal cavity search on him. Id. Plaintiff protested. He told Oche and
Gilreath that there was nothing in his buttocks and that he would not let Defendant Coe, the
medical doctor who was to perform the search, violate him like that. Defendants Oche and
Gilreath then used excessive force to hold Plaintiff down so that Defendant Coe could perform a
digital anal cavity search on Plaintiff. Id. Nothing was found as a result of the search. Id. Plaintiff
describes the experience as akin to being raped, battered, and sexually assaulted. Id.
As they were leaving the healthcare unit, Plaintiff asked Defendants Oche and Gilreath
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why they had subjected Plaintiff to the search. Defendant Gilreath responded that he knew
Plaintiff liked it. This response caused other officers standing in the healthcare unit to laugh at
Plaintiff. Id. at 7. When Plaintiff asked to see a warden or a supervisor, Defendants Oche and
Gilreath told him to shut up and that no one was going to help him. Id. Defendants Oche and
Gilreath then proceeded to tell other correctional officers in the gym that Plaintiff had just been
“finger fucked” and that it might hurt for him to sit down. Id. Attached to the complaint are
affidavits from two inmates who were in the gym and heard Defendants Oche and Gilreath
laughing about what had happened to Plaintiff and telling others that Plaintiff had “fingers stuck
in his ass and liked it.” Id. at 11-12. When Plaintiff protested and continued to ask for a warden,
several unnamed Orange Crush officers grabbed him and took him to segregation. Id. at 7, 11-12.
Analysis
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
finds it appropriate to organize the claims in Plaintiff’s pro se complaint, as shown below. The
parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion as to their merit.
Count 1:
Defendants Oche and Gilreath violated Plaintiff’s rights under the
Eighth Amendment when they used excessive force in the process of
forcing Plaintiff to submit to an anal cavity search.
The intentional use of excessive force by prison guards against an inmate without
penological justification constitutes cruel and unusual punishment in violation of the Eighth
Amendment and is actionable under § 1983. See Wilkins v. Gaddy, 559 U.S. 34 (2010). An
inmate must show that an assault occurred, and that “it was carried out ‘maliciously and
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sadistically’ rather than as part of ‘a good-faith effort to maintain or restore discipline.’” Wilkins,
559 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). Several factors are relevant to
this determination, including the need for force, the amount applied, the threat a guard
reasonably perceived, the effort made to temper the severity of the force used, and the extent of
the injury caused to the prisoner. Hudson v. McMillian, 503 U.S. 1, 7 (1992); Fillmore v. Page,
358 F.3d 496, 504 (7th Cir.2004).
Plaintiff alleges that Defendants Oche and Gilreath used excessive force against him in
the process of forcing him to submit to an anal cavity search. Accepting Plaintiff’s allegations as
true, as the Court must do at this preliminary stage, the Court finds that Plaintiff has articulated a
colorable excessive force claim and he may proceed on this claim against Defendants Oche and
Gilreath.
Strip Search Claims
Count 2:
Defendants Oche, Gilreath, and Coe violated Plaintiff’s right to be free
from unreasonable searches under the Fourth Amendment when they
subjected him to a humiliating anal cavity search.
Count 3:
Defendant Oche, Gilreath, and Coe violated Plaintiff’s rights under the
Eighth Amendment to be free from cruel and unusual punishment
when they subjected him to a painful and humiliating anal cavity
search.
Courts have long recognized that strip searches and body-cavity searches represent one of
the most serious invasions of personal rights. See Bell v. Wolfish, 441 U.S. 520, 576–77
(Marshall, J., dissenting) (“the body cavity searches of MCC inmates represent one of the most
grievous offenses against personal dignity and common decency”); see also Mary Beth G. v. City
of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (“we can think of few exercises of authority by
the state that intrude on the citizen's privacy and dignity as severely as the visual anal and genital
searches practiced here.”) At the same time, the United States Supreme Court has recognized that
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the “‘[l]oss of freedom of choice and privacy are inherent incidents of confinement.’” Hudson v.
Palmer, 468 U.S. 517, 528 (1984) (quoting Bell, 441 U.S. at 537 (1979)).
Body cavity searches may implicate an inmate’s rights under the Fourth and Eighth
Amendments. Under the Fourth Amendment, the question is whether the search was reasonable:
The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the
need for the particular search against the invasion of personal rights that the
search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place in
which it is conducted.
Bell, 441 U.S. at 559. Under the Eighth Amendment, an inmate states a claim “when he plausibly
alleges that the strip search in question was motivated by a desire to harass or humiliate rather
than by a legitimate justification, such as the need for order and security in prisons.” King v.
McCarty, 781 F.3d 889, 897 (7th Cir. 2015).
As an initial matter, the Court finds it important to note that the search at issue in this
case did not entail simply a visual inspection of Plaintiff’s genitals. Although even visual strip
searches have given courts “pause,” such searches have typically been found to be less
objectionable than searches that involve touching an inmate or probing into his or her body
cavities. See e.g., Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S. Ct. 1510,
1523 (2012) (holding that routine visual strip-searches of pretrial detainees, without
individualized suspicion that a detainee was concealing contraband, were reasonable under the
Fourth Amendment but noting that there “may be legitimate concerns about the invasiveness of
searches that involve the touching of detainees.”); see also King, 781 F.3d at 900 (rejecting claim
that a prolonged visual inspection might amount to a violation under the Fourth Amendment on
the basis that it did not involve “any intrusion into his body.”)
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In this case, Plaintiff asserts that there was no reason for correctional officers to believe
that he was hiding something in his anal cavity, and in fact, the search produced nothing. Of
course, just because Defendants did not find anything does not prove that the search was
unreasonable, but it does lend weight to Plaintiff’s assertion, at least at this stage, that it was not
justified. Moreover, even “where prison authorities are able to identify a valid correctional
justification for the search, it may still violate the Eighth Amendment if ‘conducted in a
harassing manner intended to humiliate and cause psychological pain.’” King, 781 F.3d at 897
(quoting Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009). Here, it is alleged that
Defendants Oche and Gilreath viciously mocked Plaintiff in front of other inmates and officers.
This suggests that the search may, in fact, have been “driven by a desire to humiliate or harass.”
Id. at 898. For these reasons, the Court finds that Plaintiff has articulated actionable Fourth and
Eighth Amendment claims against Defendants Oche, Gilreath, and Coe, and he may proceed on
each of these claims.
Supplemental State Law Claims
In addition to Counts 1-3 discussed above, Plaintiff asserts the Illinois state law claim of
battery. Where a district court has original jurisdiction over a civil action such as a § 1983 claim,
it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C.
§ 1367(a), so long as the state claims “derive from a common nucleus of operative fact” with the
original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A
loose factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th
Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
Plaintiff’s state law claim arises out of the same events that gave rise to his federal claim. As
such, the Court will exercise supplemental jurisdiction over this additional state law claim.
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Plaintiff may proceed against Defendants Oche, Gilreath, and Coe on his Illinois state law
battery claim (Count 4).
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) remains PENDING and shall be
referred to United States Magistrate Judge Wilkerson for a decision. Because Plaintiff has been
granted IFP status, his motion for service of process at government expense (Doc. 4) is
unnecessary and DENIED as moot.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed on COUNTS 1-4 against
Defendants OCHE, GILREATH, and COE.
The Clerk of Court shall prepare for Defendants OCHE, GILREATH, and COE:
(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
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
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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 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
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,
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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: April 6, 2016
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
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