McNary v. Penning et al

Filing 5

OPINION AND ORDER re 1 Pro Se Complaint, plaintiff Darrell McNary is GRANTED leave to proceed against Sgt. Penning in his individual capacity for monetary damages for retaliating against him in violation of the First Amendment for invoking the P REA by conducting an unnecessary strip search on October 16, 2016; all other claims are DISMISSED; the clerk and the United States Marshals Service are DIRECTED to issue and serve process on Sgt. Penning with a copy of this order and the complaint; Sgt. Penning is Ordered to respond, only to the claim for which the plaintiff has been granted leave to proceed in this screening order. Signed by Judge Philip P Simon on 11/6/2017. (Copy mailed as directed in Order)(lpw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DARRELL MCNARY,
Plaintiff,
vs.
STEVEN PENNING, et. al.,
Defendants.

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CAUSE NO. 3:17CV660-PPS

OPINION AND ORDER
Plaintiff, Darrell McNary, a pro se prisoner, filed a complaint under 42 U.S.C. §
1983 against four Westville Correctional Facility officers arising out of an October 16,
2016, strip search. Pursuant to 28 U.S.C. § 1915A, I must review a prisoner complaint
and dismiss it if the action is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a defendant who is immune
from such relief. Under federal pleadings standards, the plaintiff “must do better than
putting a few words on paper that, in the hands of an imaginative reader, might suggest
that something has happened to [him] that might be redressed by the law.” Swanson v.
Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original). Instead, the
plaintiff must provide sufficient factual matter to state a claim that is plausible on its
face. Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011).
On October 16, 2016, McNary, along with other offenders at Westville, were
searched following their shift working in the kitchen. Sgt. Talbot ordered all the
offenders to strip, which prompted McNary to say, “I could file PREA,” referring to an

administrative complaint under the Prison Rape Elimination Act. Talbot became angry
and told Sgt. Flakes that McNary was claiming a PREA violation against him. McNary
clarified that he was not claiming a PREA violation, but could. Talbot then went on to
search McNary and confiscated his grey shorts, claiming they were altered, and issued a
conduct report against McNary for unauthorized possession of altered property. Talbot
then ordered McNary into a holding cell.
Sgt. Penning and Officer Frazier then entered the room and were told that
McNary threatened to claim a PREA violation against Talbot. Penning began shouting
at McNary and ordered him to strip naked and place his hands on the wall. McNary
asked why he was being strip searched for a second time. In response, Penning said,
“you claimed PREA against my sergeant and now you can claim PREA against me too.”
ECF 1 at 4. Penning proceeded to conduct a strip search of McNary. McNary sues the
four officers that were present during his strip searches -- Sgt. Penning, Sgt. Geoffrey
Talbot, Sgt. Flakes, and Officer Tristan Frazier -- for money damages.1
While McNary’s complaint details many events that took place on October 16,
2016, the pleading is a bit vague as to what, exactly, he is suing about in this lawsuit.2
He may very well be complaining about the first strip search conducted by Talbot. To
the extent that he is, there is nothing impermissible about that search. Prison guards
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Although McNary names Flakes and Frazier as defendants, there are no allegations in the body
of the complaint that either engaged in any wrongdoing. “[P]ublic employees are responsible for their
own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009).
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It is worthy to note that McNary attached his prison grievance to the complaint. In it, he only
complained about Penning’s alleged retaliatory strip search. ECF 1-2 at 6.

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have the authority to see McNary fully naked and to conduct searches for the security
of the jail. Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995). That is seemingly what
happened during the first search. Therefore, the allegations about the first strip search
do not state a claim upon which relief may be granted.
Next, McNary complains that Talbot lied when he told Flakes that “McNary was
claiming PREA against him,” when McNary only said that he could “file PREA.”
However, even if Talbot lied about what McNary told him, this is not actionable as a
federal constitutional tort. Paul v. Davis, 424 U.S. 693, 712 (1976). Talbot’s words are not
a deprivation of liberty within the meaning of the due process clause. Patton v.
Przybylski, 822 F.2d 697, 700 (7th Cir. 1987). Therefore, this allegation also fails to state a
plausible federal claim for which relief could be granted.
Finally, McNary complains that Penning conducted a second, retaliatory strip
search of him. McNary alleges that he was previously strip searched by Talbot and that
there was no reason for prison officials to conduct another strip search. Nevertheless,
Penning conducted one in retaliation for him invoking the PREA. “To prevail on his
First Amendment retaliation claim, [Mr. McNary] must 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) (quotation marks
and citations omitted).
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Even so, “[t]here is, of course, a de minimis level of imposition with which the
Constitution is not concerned.” Ingraham v. Wright, 430 U.S. 651, 674 (1977).
Only retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional
rights constitutes an adverse action for a claim of retaliation. Otherwise,
the retaliatory act is simply de minimis and therefore outside the ambit of
constitutional protection. This objective inquiry is not static across
contexts, but rather must be tailored to the different circumstances in
which retaliation claims arise. Prisoners may be required to tolerate more
than public employees, who may be required to tolerate more than
average citizens, before a retaliatory action taken against them is
considered adverse.
Dawes v. Walker, 239 F.3d 489, 493 (2nd Cir. 2001) (citations and quotation marks
omitted); see also Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
While prison officials are permitted to conduct strip searches for many
permissible purposes, they are not allowed to do so in retaliation for inmates invoking
their rights to file a complaint or grievance. Mays v. Springborn, 719 F.3d 631, 633 (7th
Cir. 2013) (citing Dobbey v. Illinois Dep’t of Corrections, 574 F.3d 443, 446-7 (7th Cir. 2009)).
Here, taking McNary’s allegations as true, as I must at this stage in the proceedings, it is
plausible that Penning was motivated to strip search McNary because he engaged in
protected First Amendment activity and that the strip search amounted to more than a
de minimis level of imposition. Thus McNary will be granted leave to proceed on this
claim against Penning.
ACCORDINGLY:

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(1) plaintiff Darrell McNary is GRANTED leave to proceed against Sgt. Penning
in his individual capacity for monetary damages for retaliating against him in violation
of the First Amendment for invoking the PREA, by conducting an unnecessary strip
search on October 16, 2016;
(2) all other claims are DISMISSED;
(3) the clerk and the United States Marshals Service are DIRECTED to issue and
serve process on Sgt. Penning with a copy of this order and the complaint (ECF 1) as
required by 28 U.S.C. § 1915(d); and
(4) Sgt. Penning is ORDERED to respond, as provided for in the FEDERAL RULES
OF CIVIL PROCEDURE and

N.D. IND. L.R. 10.1, only to the claim for which the pro se

plaintiff has been granted leave to proceed in this screening order.

ENTERED: November 6, 2017

/s/ Philip P. Simon
United States District Court Judge

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