Lebich v. Conard et al

Filing 27

ORDER signed by Judge J.P. Stadtmueller on 9/7/2018: GRANTING 19 Defendants' Motion for Summary Judgment; DENYING 26 Plaintiff's Motion to Voluntarily Dismiss; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Travis James Lebich at Kettle Moraine Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TRAVIS JAMES LEBICH,
Plaintiff,
v.

Case No. 17-CV-1490-JPS

MATTHEW CONARD and ALLISON
NEITZEL,

ORDER

Defendants.
1.

INTRODUCTION
On December 5, 2017, the Court screened Plaintiff’s complaint.

(Docket #7). The complaint alleged that Defendants violated the Eighth
Amendment’s proscription against cruel and unusual punishment when
they strip searched Plaintiff in view of other inmates and a female guard.
Id. at 3-4. On July 31, 2018, Defendants moved for summary judgment.
(Docket #19). Plaintiff’s response to the motion was due on or before August
30, 2018. Civ. L. R. 7(b). That deadline has passed and no response has been
received. The Court could summarily grant Defendants’ motion in light of
Plaintiff’s non-opposition. Civ. L. R. 7(d). However, as explained below,
Defendants also present valid bases for dismissing Plaintiff’s claim. For
both of these reasons, Defendants’ motion must be granted.
2.

PLAINTIFF’S MOTION TO DISMISS
Before discussing the merits of Defendants’ motion, the Court will

address Plaintiff’s only submission since the motion was filed. On August
20, 2018, Plaintiff filed a motion for voluntary dismissal of this action.
(Docket #26). Plaintiff claims that he lacks the funds to continue prosecuting

this case. Id. He requests that the Court dismiss this action without
prejudice, to be re-filed when he has sufficient financial resources. Id.
Once a defendant has submitted an answer or a motion for summary
judgment (both have been filed in this case), a plaintiff must seek court
approval to voluntarily dismiss his lawsuit. Fed. R. Civ. P. 41(a)(2). The
terms of such a dismissal are left to the court’s discretion. Id.; see Tolle v.
Carroll Touch, Inc., 23 F.3d 174, 177 (7th Cir. 1994). Rule 41(a)(2) “requires
the plaintiff to persuade the district court and to establish that voluntary
dismissal is warranted.” Tolle, 23 F.3d at 177. In addition, the court should
consider whether dismissal would result in “plain legal prejudice” to the
defendant. See Kovalic v. DEC Int’l, Inc., 855 F.2d 471, 474 (7th Cir. 1988).
Factors considered include the defendant’s effort and expense of
preparation for trial, insufficient explanation for the need to take a
dismissal, excessive delay and lack of diligence on the plaintiff’s part, and
the fact that a motion for summary judgment has been filed. See Fed. Deposit
Ins. Corp. v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992).
The Court concludes that Plaintiff’s motion for dismissal without
prejudice must be denied. Plaintiff knew that he had limited financial
resources prior to filing this action. See (Docket #5) (Plaintiff’s prison trust
account statement showing an average monthly balance of under $7.00).
Rather than wait for his finances to improve, Plaintiff rushed to submit his
lawsuit right away; the events of this case occurred on July 20, 2017, and
Plaintiff filed the case on October 30, 2017. See (Docket #1). This was not
necessary, of course, as the applicable statute of limitations is six years.
Plaintiff has forced Defendants to defend this action and file a motion for
summary judgment. Plaintiff cannot now complain that his decision to sue
so quickly may have been improvident. Finally, Plaintiff suggests that
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prison officials are to blame for his financial constraints because they have
denied him a legal loan. (Docket #26). The Court is unsympathetic. Plaintiff
alone is responsible for prosecuting this action and cannot avoid this
burden by relying entirely on discretionary loans from the state. With the
denial of Plaintiff’s motion, the Court now turns to Defendants’ motion for
summary judgment.
3.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
4.

FACTUAL BACKGROUND
The relevant facts are undisputed because Plaintiff failed to dispute

them. He filed nothing in response to Defendants’ motion, though he was
repeatedly instructed that this was essential. See (Docket #11 at 2–3; Docket
#19 at 3–12). Without any responsive materials from Plaintiff, the Court
must treat Defendants’ proposed findings of fact as undisputed. See Fed. R.
Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th
Cir. 2006) (noting that district courts have discretion to enforce procedural
rules against pro se litigants).
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In light of this determination, the material facts are as follows. At the
relevant time, Plaintiff was housed at Kettle Moraine Correctional
Institution. Defendants Matthew Conard (“Conard”) and Allison Neitzel
(“Neitzel”) were employed there as correctional officers. On July 20, 2017,
Conard was ordered to perform a urinalysis on Plaintiff because drug
paraphernalia was found in his cell. The same test was also performed on
his cellmate.
Conard took Plaintiff to the bathroom to perform a strip search prior
to obtaining the urine sample, which is standard prison practice. Neitzel
was present within sight of the bathroom, but was positioned at the officers’
station in such a way that she could not see Plaintiff himself. Additionally,
no other inmates entered the bathroom during the search. The search was
completed in two minutes and without complaint from Plaintiff. Plaintiff
then produced the urine sample. The sample tested negative for narcotics,
so Plaintiff was allowed to return to his cell.
Plaintiff’s complaint alleged that the strip search and urinalysis were
retaliatory, done at the request of an Officer Lamb (“Lamb”) because of an
altercation between Lamb and Plaintiff the day before. (Docket #7 at 3).
Neither Conard nor Neitzel had any knowledge of the altercation. Their
conduct was motivated solely by the discovery of drug paraphernalia (and
orders from their superior), and not any issue between Plaintiff and Lamb.
5.

ANALYSIS
As noted above, Plaintiff was allowed to proceed on a claim of cruel

and unusual punishment under the Eighth Amendment. As the Seventh
Circuit explains, “the Eighth Amendment prohibits unnecessary and
wanton infliction of pain, thus forbidding punishment that is ‘so totally
without penological justification that it results in the gratuitous infliction of
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suffering.’” Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Strip searches can violate this rule
by producing psychological, rather than physical, pain. Id. While “[t]here is
no question that strip searches may be unpleasant, humiliating, and
embarrassing to prisoners,” strip searches are not per se improper. Id. Even
a “strip search of a male prisoner in front of female officers, if conducted
for a legitimate penological purpose, would fail to rise to the level of an
Eighth Amendment violation.” Id. However, “[e]ven 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[.]” King v. McCarty, 781 F.3d 889,
897 (7th Cir. 2015) (quotation omitted).
Though Plaintiff’s allegations supported his claim, the undisputed
facts presented in Defendants’ motion do not. Defendants did not act with
a retaliatory motive. Their search was justified by the discovery of drug
paraphernalia in Plaintiff’s cell, thus leading to a legitimate penological
concern: whether Plaintiff was using secretly using illegal drugs. The
inference of retaliation is also defeated by the fact that Plaintiff’s cellmate
was subjected to the same search and urinalysis. Finally, the search and
urine sampling were conducted quickly and by Conard alone, out of view
of Neitzel or anyone else. In sum, there is no evidence that Defendants’
conduct was animated by a desire to harass or humiliate Plaintiff, and the
search and sampling were both done in a professional and reasonable
manner.
6.

CONCLUSION
On the undisputed facts presented, summary judgment is

appropriate in Defendants’ favor on Plaintiff’s claim against them. The
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Court must, therefore, grant Defendants’ motion and dismiss this action
with prejudice.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #19) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for voluntary
dismissal (Docket #26) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 7th day of September, 2018.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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