Smith v. Clarke et al

Filing 8

ORDER signed by Judge Pamela Pepper on 6/13/2018. 5 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED; agency having custody of plaintiff to collect $332.83 balance of filing fee from plaintiff's pr ison trust account under 28 USC §1915(b)(2). Defendant David Clarke DISMISSED. Defendants to file responsive pleading within 60 days. Parties may not begin discovery until the court issues scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Antonio Smith and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANTONIO MARQUES SMITH,
Plaintiff,
v.

Case No. 17-cv-668-pp

DAVID CLARKE, LT. TURNER,
D. SMITH, DEPUTY SOLCUM,
DEPUTY CARR, AND DEPUTY ZETTING,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 5) AND
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a motion for leave to
proceed without prepayment of the filing fee, dkt. no. 5. This order resolves the
motion and screens the complaint.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as he meets certain
conditions. One of those conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b).
On May 15, 2017, the court ordered the plaintiff to pay an initial partial
filing fee of $17.17. Dkt. No. 4. The plaintiff paid that fee on June 5, 2017.
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Accordingly, the court will grant the plaintiff’s motion. The court will require
the plaintiff to pay the remainder of the filing fee over time as set forth at the
end of this decision.
II.

Screening the Plaintiff’s Complaint
The law requires the court to screen complaints brought by prisoners

seeking relief against a governmental entity or officer or employee of a
governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint
if the plaintiff raises claims that are legally “frivolous or malicious,” that fail to
state a claim upon which relief may be granted, or that seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C. §1915A(b).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.(citing Twombly, 550 U.S. at 556).
To state a claim under 42 U.S.C. §1983, a plaintiff must allege that: 1) he
was deprived of a right secured by the Constitution or laws of the United
States; and 2) the defendant was acting under color of state law. BuchananMoore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court gives a pro se plaintiff’s
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v.
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Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
A.

The Plaintiff’s Allegations

The plaintiff was confined at the Milwaukee County Jail at all times
relevant to his complaint allegations. Dkt. No. 1 at 1. He has sued former
Milwaukee County Sheriff David Clarke, Lieutenant Turner and Deputies D.
Smith, Solcum, Carr and Zetting. Id.
The plaintiff alleges that on January 18, 2016, Lieutenant Turner and
several deputies came to his jail cell to search it. Id. at 3-4. He says he initially
refused to allow them to search the cell, but then complied. Id. at 4. The
plaintiff says that he “was placed in handcuffs and then a bull strap, and that
he was restrained to the door; he says that Deputy Zetting and several other
deputies were present when he was taken from the cell. Id. at 4. The plaintiff
indicates that Zetting took hold of his arm, while Deputy Seel (who is not a
defendant) conducted a pat-search of the plaintiff; Deputy Seel alleged that he
felt a foreign object concealed in the plaintiff’s genital area. Id. The plaintiff
denied that there were any foreign objects inside of his underwear. Id.
Lieutenant Turner radioed for additional deputies to respond to the area,
and defendants Solcum, D. Smith and Carr responded to the pod. Id. When
they arrived, Deputy Solcum took the plaintiff’s right arm, Deputy D. Smith
stood behind the plaintiff, and Deputy Zetting still had him by the left arm. Id.
Deputy D. Smith performed another pat search of the plaintiff and during the
search he grabbed the plaintiff’s testicles very roughly, squeezing them hard.
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Id. The plaintiff told Smith that “he could not be squeezing” the plaintiff’s
testicles and that it hurt. Id. at 5.
Deputy Smith told Lieutenant Turner that Smith couldn’t feel anything,
and speculated that he thought the plaintiff was holding the foreign object in
his hands. Id. Deputy Solcum grabbed the plaintiff’s fingers and roughly bent
them backward, causing the plaintiff to yell out in pain. Id. He asked Solcum
not to bend his fingers back so far, stating that it felt like Solcum was breaking
his fingers. Id. Solcom told Smith, “go again, I have his fingers pulled back.” Id.
Smith conducted another pat search, roughly grabbing and squeezing the
plaintiff’s testicles and causing the plaintiff to flinch. Id. Again, the plaintiff
yelled at Smith to release him, which caused Smith to yank harder before
releasing the plaintiff. Id. Smith then stood up and smashed the plaintiff’s face
into the window, holding it there, saying, “I still couldn’t feel it, but he has
something.” Id. Deputy Solcum then stuck his hand down the front of the
plaintiff’s underwear and touched the plaintiff’s penis. Id. The plaintiff tried to
get him to stop by bending his knees and telling Smith to stop. Id.
Lieutenant Turner then told the deputies to stop what they were doing,
and that they had to follow a procedure to retrieve contraband from an
inmate’s underwear. Id. She left the area to call her supervisor. Id. at 6.
Once Lieutenant Turner left, Solcum said, “We can do this shit
ourselves.” Id. Deputy Carr then snatched the plaintiff’s legs from underneath
him, which caused him to be suspended in the air (because he was restrained
to the door by the handcuffs and bullstrap). Id. Deputy D. Smith made another
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grab at the plaintiff’s genital area. Id. The plaintiff alleges that Turner “not only
heard the commotion, but observed it happening through the big picture
window.” Id. Turner came running back, demanding to know what was going
on; Carr told Turner to grab the plaintiff’s leg. Turner initially complied, but
within about a minute, said, “Stop!” Id. After instructing the others to stop, and
to put the plaintiff on his feet, Turner reiterated that there was a protocol the
deputies had to follow, and that she needed to hear from her supervisor. Id.
She left the area again. The plaintiff alleges that once Turner was out of
earshot, Solcum again reiterated that the deputies could do this on their own,
but Smith responded that Turner had told them they needed to follow the
policy. Id. at 7. When Turner returned, Solcum asked to speak to her outside
the door; the plaintiff says that he heard Solcum ask Turner “if they could just
go into [the plaintiff’s] pants and get out whatever it is he’s hiding.” Id. at 7.
Turner responded, “No, we have gone too far all ready [sic].” Id.
The plaintiff says that on the same day, a different deputy came and took
photos of his injuries, and that the incident was captured on the institution
security video. Id. at 8. An investigator also took down his statements; the
plaintiff allowed the investigator access to his medical files. Id.
The plaintiff says that he suffered injuries to his wrist, face and testicles
due to the force the defendants used against him. Id. at 8. He claims that the
defendants used excessive force against him and that they violated his right to
equal protection. Id. at 8-9. For relief, the plaintiff seeks monetary damages.

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B.

Analysis

A pretrial detainee who believes he has been subjected to successive
force in violation of the Fourteenth Amendment must show that the defendant
(a) purposefully or knowingly used force against him, and (b) that that force
was objectively unreasonable. Kingsley v. Hendrickson, ___ U.S. ___, 135 S. Ct.
2466, 2472-73 (2015). The court finds that the plaintiff has alleged sufficient
facts to allow him to proceed on a Fourteenth Amendment claim that D. Smith,
Solcum, Carr and Zetting knowingly used force against him, and that that force
was objectively unreasonable. The Fourteenth Amendment also protects
pretrial detainees from cruel and unusual punishment. Smith v. Dart, 803
F.3d 304, 309 (7th Cir. 2015) (citing Kingsley, 135 S.Ct. at 2475). This means
that jail staff may not “unnecessarily and wantonly inflict[] pain on inmates.”
Rivera v. Drake, 497 Fed. App’x 635, 637 (7th Cir. 2012). “In the context of
searches of prisoners, only searches that are maliciously motivated, unrelated
to institutional security, and lack a legitimate penological justification violate”
the cruel and unusual punishment prohibition. Id. (citation omitted). The court
finds that the plaintiff has alleged sufficient facts to allow him to proceed on a
cruel and unusual punishment claim against Smith and Solcum, based on the
manner in which they allegedly grabbed his testicles and touched his penis,
respectively.
He may also proceed on a failure to intervene claim against Lieutenant
Turner. See Fillmore v. Page, 358 F.3d 496, 505-06 (7th Cir. 2004). With regard
to Turner, the law states that an official commits a constitutional violation if
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she “acts or fails to act with a deliberate or reckless disregard of the plaintiff’s
constitutional rights.” Fillmore v. Page, 358 F.3d 496, 506 (7th Cir. 2004)
(quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982)). The plaintiff has
alleged sufficient facts to allow him to proceed on a claim that Turner was
aware that the other defendants were violating the plaintiff’s constitutional
rights, but did not take sufficient action to stop them.
The plaintiff alleges that the defendants denied him equal protection of
the law. Dkt. No. 1 at 9. The court will not allow him to proceed on an equal
protection claim, because the plaintiff has not stated facts to show that the
defendants discriminated against him based on his membership in a protected
class. See Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005). He has not
alleged that the defendants treated him this way because of his race, or his
gender, or his age, or his ethnic background, or his religious practices. Without
such allegations, the plaintiff may not proceed on an equal protection claim.
Finally, the court has not yet addressed the first defendant the plaintiff
named—former Sheriff David Clarke. The court will not allow the plaintiff to
proceed against Clarke, because he doesn’t allege that Sheriff Clarke had any
personal involvement in the incident. See Burks v. Raemisch, 555 F.3d 592,
595-96 (7th Cir. 2009) (“public employees are responsible for their own
misdeeds but not for anyone else’s”). The court will dismiss Clarke as a
defendant.
Finally, the court notes that the plaintiff has enquired about why the
court took so long to screen his complaint. The court has no excuse—only an
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explanation. The court’s docket is heavy, and the district is short one judge,
which has caused this particular judge to fall behind on her case load. The
court hopes this order will help move the plaintiff’s case forward.
III.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 5.
The court DISMISSES defendant David Clarke.
The court ORDERS that under the informal service agreement between
Milwaukee County and this court, copies of plaintiff’s complaint and this order
are being electronically sent to Milwaukee County for service on the Milwaukee
County defendants, and the defendants shall file a responsive pleading to the
complaint within sixty days of receiving electronic notice of this order.
The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $332.83 balance of the filing fee
by collecting monthly payments from the plaintiff’s prison trust account in an
amount equal to 20% of the preceding month’s income credited to the
prisoner’s trust account and forwarding payments to the Clerk of Court each
time the amount in the account exceeds $10 in accordance with 28 U.S.C.
§1915(b)(2). The agency shall clearly identify the payments by the case name
and number assigned. If the plaintiff is transferred to another institution—
county, state or federal—the transferring institution shall forward a copy of this
order, along with plaintiff’s remaining balance, to the receiving institution.

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The court will send a copy of this order to the warden of Green Bay
Correctional Institution.
The court ORDERS that the parties shall not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
who will scan and e-mail documents to the court. If the plaintiff is no longer
incarcerated at a Prisoner E-Filing institution, the court will require him to
submit all correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
The court advises the plaintiff that if he does not file documents by the
deadlines that the court sets, the court may dismiss his case for failure to
prosecute.
The parties shall notify the Clerk of Court of any change of address.
Failure to do so could result in orders or other information not being timely
delivered, which could affect the legal rights of the parties.
Dated in Milwaukee, Wisconsin this 13th day of June, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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