Strack v. Rekau et al

Filing 3

ORDER signed by Judge Pamela Pepper on 1/25/2018. Defendants Finke, Iacucci, Maaug, McDermott, Nyden, Schaub, Tarr, Dierks, John and Jane Roe, and John and Jane Doe DISMISSED. Plaintiff may proceed on 8th Amendment claim against defendant Rekau. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
LARA STRACK,
Plaintiff,
v.

Case No. 17-cv-834-pp

KATHERINE M. REKAU,
DEANNA SCHAUB,
JENNIFER MCDERMOTT,
DAVID TARR,
CAPTAIN FINKE,
SERGEANT SARAH NYDEN,
CAPTAIN DIERKS,
CAPATIN IACUCCI,
CAPATAIN MAAUG,
JOHN AND JANE DOE, and
JOHN AND JANE ROE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER SCREENING THE PLAINTIFF’S COMPLAINT
______________________________________________________________________________
The plaintiff, who is represented by counsel, filed a complaint under 42
U.S.C. §1983 alleging that the defendants violated her constitutional rights.
Dkt. No. 1. The case is before the court for an initial review of the complaint, as
required by the Prison Litigation Reform Act, 28 U.S.C. §1915A(a).
I.

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
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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 sufficient
facts to demonstrate that: 1) she 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. Buchanan-Moore v. County of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640
(1980).
The plaintiff has sued corrections officer Katherine M. Rekau, as well as
a number of defendants (identified by name, or identified as Doe/Roe
defendants) employed at two facilities: Robert E. Ellsworth Correctional Center
and Taycheedah Correctional Institution. She names Deanna Schaub and
Jennifer McDermott, the warden and deputy warden of Ellsworth, as well as
David Tarr, the safety director there. Dkt. No. 1 at ¶4. She names Captain
Finke, Sarah Nyden, Captain Dierks, Captain Iacucci and Captain Malaug, and
identifies them as “employees of the [Wisconsin Department of Corrections] at
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[Ellsworth] and [Taycheedah],” and asserts that they “had direct involvement
with the Plaintiff and the Defendant, Rekau.” Id. at ¶5. She names various Doe
defendants as corrections officers and supervisors “with direct and indirect
involvement with the Plaintiff and Defendant, Katherine M. Rekau.” Id. at ¶6.
She also names various Doe and Roe defendants whom she asserts were
“employees of the [Wisconsin Department of Corrections] at [Ellsworth] and
[Taycheedah],” who had the responsibility to provide “mental health support
and services to inmates, including the Plaintiff, . . . at [Ellsworth] and
[Taycheedah].” Id.
A.

The Plaintiff’s Allegations

During the time of the events alleged in the complaint, the plaintiff was
incarcerated either at Ellsworth or Taycheedah. Dkt. No. 1 at ¶¶2, 9. She
alleges that during 2016, while at Ellsworth, corrections officer Katherine
Rekau made “overtly sexual statements to her,” asked her “about her sexual
preferences,” made “sexually suggestive comments to her,” and “sexually
assault[ed] her . . . at various locations within [Ellsworth].” Id. at ¶11, 13.
The plaintiff explains that Rekau used threats of segregation and loss of
privileges to intimidate the plaintiff so that she would not report Rekau’s
alleged misconduct. Id. at ¶14. According to the plaintiff, Rekau also professed
her love for the plaintiff and told the plaintiff that Rekau “would be
incarcerated if the truth were known.” Id.
The plaintiff asserts that, as a result of Rekau’s alleged misconduct, the
plaintiff suffered mental and emotional trauma, developed Post Traumatic
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Stress Disorder and other mental and emotional problems, and developed
severe anxiety and physical ailments. Id. at ¶15-16.
The plaintiff alleges that all of the defendants, with the exception of
Rekau, “failed and neglected to perform their duties and responsibilities in that
they failed to employ reasonable and adequate screening procedures, failed to
properly supervise [Rekau], and failed to enforce reasonable rules and
regulations to protect inmates including the Plaintiff.” Id. at ¶17. The plaintiff
states that these defendants knew that there was a substantial risk that
corrections staff would sexually abuse and assault inmates. Id. at ¶18.
The plaintiff is suing Rekau in her individual capacity; she is suing the
remaining defendants in their individual and official capacities. See id. at ¶2022.
B.

Analysis
1.

The Plaintiff’s Individual Capacity Claims Against All of the
Defendants Except Rekau

Section 1983 “creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional violation.” Vance v. Peters,
97 F.3d 987, 991 (7th Cir. 1996) (quoting Sheik-Abdi v. McClellan, 37 F.3d
1240, 1248 (7th Cir. 1994)). In other words, §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). There is no liability under §1983 using a
theory of respondeat superior, vicarious liability, or supervisory liability. See Id.

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With the exception of Rekau, the plaintiff makes no allegations from
which the court can reasonably infer that the defendants had actual knowledge
of the specific threat Rekau allegedly posed to the plaintiff (as opposed to
knowledge of a general threat to all inmates), or that they were personally
involved in violating the plaintiff’s constitutional rights. The only time the
plaintiff gets close is when she alleges, “[W]hen said Defendants became aware
that the Plaintiff had been sexually assaulted by [Rekau], they blamed the
Plaintiff by placing her in segregation, verbally abusing her, harassing her and
denying her mental health and other support services . . . .” Dkt. No. 1 at ¶32.
Even there, though, the plaintiff does not say which of the more than ten
defendants “became aware” of the alleged sexual assaults, when or how they
became aware, or what each particular defendant did or did not do to violate
the plaintiff’s rights.
It is unlikely that all of the defendants placed the plaintiff in segregation,
harassed her and denied her support services; even if they did, the plaintiff
needs to say that, and explain how. The pleading standard requires that the
plaintiff give each defendant notice of what he or she did to violate the
plaintiff’s rights, and §1983 requires the personal involvement of each
defendant. Lumping more than ten defendants together and making vague
allegations about their conduct is insufficient. The court will dismiss the
plaintiff’s individual capacity claims against all of the defendants except Rekau.

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2.

The Plaintiff’s Official Capacity Claims Against All of the
Defendants Except Rekau

The plaintiff also asserts official capacity claims against all of the
defendants except Rekau. Official capacity suits actually are suits against the
government entity (here, the State of Wisconsin), and §1983 does not authorize
claims seeking money damages against the state. Sanville v. McCaughtry, 266
F.3d 724, 732-33 (7th Cir. 2001). Although a “state official in his or her official
capacity, when sued for injunctive relief, would be a person under §1983
because official-capacity actions for prospective relief are not treated as actions
against the State,” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n. 10
(1989) (quotation omitted), the plaintiff has not requested injunctive relief. The
court will dismiss the plaintiff’s official capacity claims against all of the
defendants.
3.

The Plaintiff’s Claim Against Rekau

Prison officials violate the Eighth Amendment when they know of a
substantial risk of serious harm to inmate health or safety and they either act
or fail to act in disregard of that risk. Farmer v. Brennan, 511 U.S. 825, 832
(1994); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The plaintiff’s
allegations that Rekau sexually harassed and abused her while she was an
inmate at Ellsworth are sufficient for the plaintiff to proceed on a claim that
Rekau violated her rights under the Eighth Amendment.

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II.

Conclusion
The court DISMISSES Deanna Schaub, Jennifer McDermott, David Tarr,

Captain Finke, Sergeant Sarah Nyden, Captain Dierks, Captain Iacucci,
Captain Maaug, John and Jane Doe, and John and Jane Roe as defendants.
The court ALLOWS the plaintiff to proceed on an Eighth Amendment
claim against Katherine M. Rekau.
Dated in Milwaukee, Wisconsin this 25th day of January, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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