Strickland v. Van Lanen et al

Filing 28

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 3/3/2015 GRANTING 20 Defendants' MOTION for Summary Judgment. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MELVIN STRICKLAND,
Plaintiff,
-vs-

Case No.

13-CV-1127

LT. VAN LANEN, CO MEJIA,
CO ELLERS, CO SCHULTZ,
SGT. STEVENS, and JOHN AND JANE DOES,
Defendants.

DECISION AND ORDER

The plaintiff, Melvin Strickland (“Strickland”), who is a Wisconsin state
prisoner, filed this civil rights action pursuant to 42 U.S.C. § 1983 and was granted leave to
proceed in forma pauperis. The plaintiff alleges that the defendants subjected him to an
unconstitutional strip search at Green Bay Correctional Institution on July 17, 2013. The
defendants have filed a motion for summary judgment. For the reasons set forth herein, the
Court will grant the motion.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A.,

Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable
substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.
A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: “(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
FACTS 1
Strickland was confined at the Green Bay Correctional Institution (“GBCI”)
all times material to this action. GBCI is a maximum security institution located at Green
Bay, Wisconsin. The defendants, who are all employed at GBCI, are Lieutenant Jay A.
VanLanen, Correctional Officer Alejandra Mejia, Correctional Officer Ashlianne Ehlers,

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Facts are taken from the Defendants’ Proposed Findings of Fact, which are undisputed.

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Correctional Officer Kelly Schultz, and Correctional Sergeant Darci Stevens.
Strip Searches
Pursuant to Wis. Admin. Code DOC 306.17(2), a “strip search,” means a
search in which the person is required to remove all clothes, and includes examination of the
inmate’s clothing and body as well as visual inspection of body cavities. Staff conduct a strip
search in a clean and private place. Any staff member may conduct a visual inspection of
body cavities. A strip search is conducted by two staff, one of which must be of the same sex
as the inmate unless an emergency situation exists.
Inmate searches are critical to the security of an institution. They are a means
to identify and confiscate contraband possessed by inmates, prevent contraband from being
moved from one location to another, prevent the introduction of contraband from outside the
institution, and to identify any evidence of an assault, self-inflicted injury, or disfigurement
on the part of inmates.
Contraband can be any item, including: 1) any item which inmates may not
possess under the Wis. Admin. Code §§ DOC 303.42-303.47, such as money, intoxicants,
drug paraphernalia, and weapons; 2) any item which is not state property and is on the
institution grounds, but not in the possession of any person; 3) any item which is in the
possession of an inmate, if knowing possession of it would violate the Wis. Admin. Code
§ DOC 303.47; 4) any item which an inmate may possess but which comes into his or her
possession through unauthorized channels or which is not on the inmate’s property list and

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is required to be; and 5) stolen property. Contraband is a direct threat to the safety of staff,
inmates, and the institution as a whole. Weapons can be used to threaten, injure, or kill staff
or inmates and they may be an inducement to cause a disturbance which threatens everyone
in the institution. Similarly, drugs can be used by inmates for self-harm or to induce or
coerce other inmates. Furthermore, drugs can alter the behavior of inmates creating a safety
risk for staff. Inmates often hide contraband, including drugs and weapons, on their bodies
in areas that are not visible over their clothing and/or can be missed with a routine pat-down
search. There have been occasions of inmates hiding drugs inside their anal cavity and groin,
inside socks, shoes, and underwear, and inside holes in their clothing, all of which would be
detectable only through a strip search.
Staff may conduct strip searches under the following circumstances: 1) before
an inmate enters or leaves the security enclosures of a maximum or medium security
institution or the grounds of a minimum-security institution; 2) before an inmate enters or
leaves a segregation unit or changes status within a segregation unit; 3) before or after visits,
or during a visit; 4) as part of a periodic search and lockdown of all or part of the institution’s
premises; and 5) at the direction of a supervisor. Before a search is conducted, staff inform
the inmate that a search is about to occur, the nature of the search, and the place where the
search is to occur.
A proper strip search is performed as follows: the correctional staff directs the
inmate to remove all clothing and hand it over to the searching staff member. Once received,

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the staff member will place the clothing in a clean and secure area, away from inmate
contact. Once the inmate is completely unclothed, the staff member will visually inspect the
entire body, including hair, ears, mouth, nose, hands, armpits, groin area, between the toes,
bottoms of feet, inner portions of the legs, and rectum.

It may be necessary for an

uncircumcised male to roll back the foreskin of his penis for inspection. All clothing and
personal articles are inspected and then returned to the inmate. The entire strip search
process takes approximately two minutes. Of that time, an inmate is without his underwear
for about a minute. This is because the inmate’s underwear is the last thing handed over to
the officers during a strip search and the first thing handed back.
While conducting a strip search, correctional staff explains to the inmate in a
casual tone what they are doing during the search. Staff strives to preserve the dignity of
inmates in all searches conducted.
July 17, 2013 Search of the Segregation Unit
The July 17, 2013 unit-wide search of the GBCI Segregation Building was a
planned search. The search was ordered by the Warden and planned by Security Director Pete
Ericksen. It included conducting a search of: 1) all segregation inmates and their cells, and
2) all common areas to the Segregation Building. The point of the search was to reduce the
amount of contraband on the unit. A unit-wide search is typically conducted every few years,
or sooner if a need arises. One of the motivating factors behind the unit wide search of
segregation on July 17, 2013, was to reduce the amount of contraband prescription drugs in

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the unit and thereby reduce the amount of attempted drug overdoses.
Prior to July 17, 2013, the segregation unit had experienced numerous incidents
of inmates misusing prescription medication. Many inmates in segregation are prescribed
medication.

Problems with prescription medications occur when an inmate hoards

medication. This occurs when an inmate “mouths” or “cheeks” the medication, spits it out,
or drops the medication by the cell door without the correctional officer seeing him do it.
When inmates hoard medication, they can “fish” the medication out of their cells to other
inmates or build up a supply of the medication. Prior to July 17, 2013, the segregation unit
had several incidents where inmates ingested what appeared to be large amounts of
prescription medication in front of staff. When inmates do this, they typically have to be
taken to a local hospital for evaluation and treatment. These incidents pose a serious risk to
the safety of the inmate and staff and cause a major disruption to the operation of the
institution.
The Segregation Captain knew of the unit-wide search approximately two to
three weeks before it was conducted. Line correctional staff members did not know about
the search until they arrived at work on July 17, 2013. Additional correctional staff members
were assigned to the segregation unit on July 17, 2013, to help facilitate the search.
Segregation was staffed with approximately three times the amount of staff as a normal day.
The plan for conducting the unit wide search was to remove inmates from their cells, take
them to be strip searched, place them in a holding area while their normal cell was searched,

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and then return them to their original cell. As part of this unit-wide search, staff also
searched the cells for needed repairs.
During the unit-wide search, the Segregation Building was on lockdown,
meaning that all operations were suspended, including health services appointments and
other programs. Staff was assigned to one of four strike teams, with each strike team being
assigned a specific task for the duration of their shift. The teams were assigned to: 1) escort
inmates, 2) conduct strip searches, 3) conduct cell searches, and 4) respond to any incidents
where inmates refused staff directives to comply with the search. No female officers were
assigned to conduct strip searches. To the knowledge of Lieutenant William Swiekatowski,
one of the supervisors of the search, no female officer took part in a strip search on July 17,
2013.
There is one strip cell in the segregation unit that is used to conduct strip
searches during normal operations. The strip cell is equipped with a full body glass window
that allows staff to view the inmate’s entire body during the search. It is necessary to view
the inmate’s entire body to make sure the inmate does not drop contraband into areas that
could not be seen with a smaller window. The strip searches on July 17, 2013, were
originally planned to take place in the strip cell and the four observation cells on the
segregation unit. The four observation cells are equipped with two sliding doors: one door
to the hallway that enters a 3’ x 6’ space, and a second door to the cell itself. The vestibule
is the 3’ x 6’ area between the hallway door and the cell door. The observation cell doors

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are also equipped with full body windows on both doors that allow staff to look in and fully
see both the vestibule area and the cell itself. The observation cells are normally used to
house inmates who need to be closely monitored because they pose a short term risk to
themselves or staff. Because the vestibule doors have large windows that provide a full body
view, they are an ideal location to conduct strip searches in segregation. However, the
observation cells were occupied with inmates on July 17, 2013. This was problematic
because the inmates in those cells would be able to observe any strip search conducted in the
vestibule area due to the large window on the cell door. As a result, the Segregation Captain
determined that the observation cells could not be used for strip searches.
On July 17, 2013, there were 141 inmates in segregation. It was not feasible
to conduct all 141 strip searches in the one strip cell and complete the unit-wide search in the
time approved for the unit lockdown. Therefore, an alternative location had to be selected.
Strip searching inmates in their own cell was not a viable alternative because the window that
looks into normal segregation cells is 19” x 5”, which does not provide a full body view of
the inmate during the search. If an inmate was strip searched in his own cell he could easily
drop contraband without staff detection and pick it up at the conclusion of the search.
On the day of the search, the Segregation Captain determined that the strip
searches would be conducted in the strip cell and the twelve outdoor recreation cells.
Defendants VanLanen, Mejia, Ehlers, Schultz, and Stevens were not involved in the decision
to conduct strip searches in the outdoor recreation cells on July 17, 2013. As subordinate

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officers, they did not have the authority to override the directives from the Segregation
Captain on where the strip searches were to occur.
The recreation cells are in an outdoor area connected to the segregation
building. There are twelve recreation cells that are divided into two rows of six cells. The
roof and front of each cell is chain-linked fence. This allows light and fresh air into the cell.
The remaining walls, including the side and the back walls, are concrete. The chain link cell
fronts of the two rows of cells face in opposite directions. As a result of the concrete walls
and opposite facing cell fronts, inmates cannot see into any of the other recreation cells from
the inside of the cell. Recreation cells are regularly swept clean and are power washed if
needed. Prior to using the recreation cells for strip searches, staff inspected them to ensure
that they were clean and no contraband was present.
The procedure for searching the inmates’ cells and strip searching each inmate
was as follows. Two officers escorted the inmate from his cell to either the outdoor
recreation area or the strip cell. Once the inmate arrived at his destination, he was handed
off to a different strike team that conducted the strip search. After the strip search was
concluded, the inmate remained in the area where the strip search occurred until a search of
his cell was completed.
Inmates in segregation are in full restraints while they are out of their cell so
two officers are present for every escort. Inmates are required to face forward at all times
during an escort for security reasons. A thorough search was conducted of each inmate’s cell

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which included scanning the inmate’s mattress and pillow with a metal detector. Staff also
checked each cell for any needed repairs.
Inmates were in the recreation cells anywhere from ten to thirty minutes
depending on the length of time it took to search their cell. Once the cell search was
complete, the inmate was escorted back to his cell. As soon as an inmate was escorted back,
freeing up a recreation cell or the strip cell, a new inmate was brought out to fill that cell and
continue the process. From the time an inmate left an outdoor recreation cell or the strip cell
it took approximately three to five minutes to get another inmate in that cell to conduct
another strip search. Because inmates were being brought out to the outdoor recreation cells
as they became open, it is possible that an inmate was inadvertently escorted past other
inmates being strip searched. However, based on the logistics of the unit-wide search, it is
unlikely that this occurred frequently or that an inmate would have gotten a good view of
another inmate’s naked body.
The unit-wide search of the segregation unit began on first shift, at
approximately 7:30 am. The searches continued on through second shift and into the third
shift which starts at 10:00 pm. During the unit-wide search, every cell in the segregation
unit was searched and every inmate on the unit was strip searched. Numerous contraband
items were found during the unit wide search including contraband prescription medications.
A unit wide search typically results in numerous penological benefits including reducing the
amount of contraband, discouraging inmates from accumulating contraband in the future, and

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identifying needed repairs to the building. Additionally, Security Director Ericksen has
noticed that after a shakedown the climate of the unit often settles down for awhile, meaning
there are fewer incidents with the inmates.
Strip Search of Strickland on July 17, 2013
Strickland does not remember what time officers came to his cell to take him
to be strip searched on July 17, 2013, but believes that it was sometime between 10:30 am
and 3:30 pm. Strickland believes he walked past two or three outdoor recreation cells while
being escorted outside to be strip searched. He believes he was placed in the third cell out
of a row of six. The only staff members present when Strickland was strip searched on July
17, 2013 were two unidentified male officers. The unidentified male officers conducted a
standard strip search of Strickland. Strickland did not say anything to the unidentified
officers during the strip search and he does not remember the unidentified officers saying
anything to him. Strickland estimates that the strip search took two or three minutes.
After Strickland’s strip search was completed, staff gave him back his clothes,
he waited in the recreation cell for a few minutes, and then he was returned to his original
cell. Strickland estimates that he spent about fifteen minutes in the outdoor recreation cell.
Lt. Van Lanen was not present when Strickland was strip searched on July 17,
2013. Sgt. Stevens was not present when Strickland was strip searched on July 17, 2013.
Officer Ehlers was not present when Strickland was strip searched on July 17, 2013. Officer
Mejia was not present when Strickland was strip searched on July 17, 2013. Officer Schultz

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was not present when Strickland was strip searched on July 17, 2013.
Strickland’s Religious practices
Strickland describes himself as a practicing Muslim. He converted from
Baptist to Islam around 2007. Strickland’s practice of Islam consists of praying and reading
the Koran. He does not regularly attend chapel services at the institution or participate in
Ramadan fasting. Strickland does not yet have a full understanding of the religion of Islam.
He does not fully understand the Islamic practice of modesty. However, Strickland indicates
that he struggles with adhering to Islamic modesty principals.
ANALYSIS
Upon screening the complaint, the Court determined that Strickland could
proceed on a Fourth Amendment privacy claim based on allegations that two females officers
conducted the strip search as other staff and inmates walked by. The Court also identified
a First Amendment free exercise claim based on Strickland’s allegations that as a practicing
Muslim it was impermissible for him to expose his body. (Screening Order, ECF No. 8, at
3-4.)
In support of their motion for summary judgment, the defendants contend that
the Court should dismiss this lawsuit because, (1) they were not personally involved in the
strip search of Strickland; (2) the strip search did not violate the Eighth Amendment2 ; (3) the

2

The defendants contend that the strip search claim should be addressed under the Eighth Amendment
instead of the Fourth Amendment. (ECF No. 21 at 12) (citing Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697
(7th Cir. 1998)).

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strip search did not violate Strickland’s First Amendment free exercise rights; and (4) they
have qualified immunity.
Strickland contends that there are genuine issues of material fact the preclude
summary judgment for the defendants. According to Strickland, it has yet to be determined
whether GBCI staff were trained on how to conduct strip searches properly and it is also yet
unclear whether a lack of training caused prison staff to violate prison rules, regulations, and
procedures that are in place to ensure that prisoners’ constitutional rights are not violated.
He also asserts that it has yet to be determined who made the decision to have the strip search
conducted in the recreation cell in violation of the policy of conducting strip searches in Cell
621, and that whoever made the decision to conduct the strip search in the recreation cell
placed Strickland in the position of having his constitutional rights violated by choosing not
to use the designated strip search cell and having the search conducted by staff that lacked
adequate training on the appropriate rules, policies, and procedures for strip searches of
inmates. Strickland contends that given these issues, the defendants have not met their
burden to show that there is no question of material fact. He does not dispute the defendants’
contention that they were not personally involved in the search and he does not address the
defendants’ argument regarding the First Amendment free exercise claim.
Section 1983 makes public employees liable “for their own misdeeds but not
for anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009); see George v.
Smith, 507 F.3d 605, 609 (7th Cir. 2007). Only a defendant who is personally responsible

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for depriving the plaintiff of a constitutional right may be held liable under § 1983.
Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008). If someone else has committed
the act that resulted in the constitutional deprivation, then the defendant is personally
responsible, and thus liable under § 1983, only if he knows about the other person’s act, has
a realistic opportunity to prevent it, but deliberately or recklessly fails to do so. Lewis v.
Downey, 581 F.3d 467, 472 (7th Cir. 2009).
In this case, it is undisputed that the defendants had no personal involvement
in Strickland’s strip search. His claim is subject to dismissal on that basis. The defendants’
contention that a lack of proper training may be at issue is misplaced because Strickland is
not proceeding on a failure to train claim.
Even if the defendants were personally involved in the searches, the strip
search claim and any privacy claim would still be subject to dismissal. A strip search violates
the Eighth Amendment if it is “conducted in a harassing manner intended to humiliate and
cause psychological pain.” Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009); see
Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004); Calhoun v. DeTella, 319 F.3d 936, 939
(7th Cir. 2003). A factfinder can reasonably infer an intent to harass when prison officials
give no valid reason for a group strip search and guards demean prisoners during the search.
See Mays, 575 F.3d at 650; Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002)
(upholding denial of summary judgment when no justification was given for group strip
search).

In addition, sexual ridicule and female spectators during a strip search can

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reasonably lead to the conclusion that the search was intended to humiliate. See Calhoun,
319 F.3d at 940.
Here, the undisputed facts establish that a unit wide strip search was conducted
on July 17, 2013. The Segregation Captain decided to use the twelve recreation cells and one
strip cell for the strip searches based on the number of inmates to be searched (141), because
the cells provide a full view of the inmate which is necessary to conduct a proper search, and
because the four observation cells were occupied. Although the recreation cells were mostly
private because they have three brick walls, the cells did not provide full privacy in that it
was possible that inmates or guards walking by the front of the cell to see the search. There
is no indication that the plaintiff’s strip search was conducted in a harassing manner to
humiliate him or cause psychological pain. The plaintiff’s search was short – only two to
three minutes – and, as set forth in detail herein, it was justified by security reasons. Under
these circumstances, a reasonable factfinder could not conclude that the plaintiff’s
constitutional rights were violated. See Canedy v. Boardman, 16 F.3d 183, 185-87 (7th Cir.
1944); Mays, 575 F.3d at 649-50.
Finally, to the extent that Strickland claims that the search violated his First
Amendment right to religious freedom, that claim also fails because Strickland did not
address it in his summary judgment response brief. He has therefore abandoned the claim.
See Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir. 2003).

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ORDER
IT IS THEREFORE ORDERED that the defendants’ motion for summary
judgment (Docket # 20) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
dismissing this action.
Dated at Milwaukee, Wisconsin, this 3rd day of March, 2015.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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