Lebich v. Conard et al

Filing 7

SCREENING ORDER signed by Judge J.P. Stadtmueller on 12/5/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendants Robert Humphreys and Tom Pollard DISMISSED from action. Plaintiff PERMITTED to proceed on the following claim: cruel and unusual punishment, in violation of the Eighth Amendment, against Defendants C.O. Conard and C.O. Nietzel. Copies of Plaintiff's Complaint and this Order to be electronically SENT to DOJ for service on Defendants, who shall respond to the Complaint within 60 days. Agency having custody of Plaintiff to COLLECT balance of filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Travis James Lebich and Warden at Kettle Moraine Correctional Institution)(jm)

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

v.

C.O. CONARD, C.O. NIETZEL,
ROBERT HUMPHREYS, and TOM
POLLARD,

Case No. 17-CV-1490-JPS

ORDER

Defendants.
Plaintiff Travis James Lebich, who is incarcerated at Kettle Moraine
Correctional Institution (“KMCI”), proceeds in this matter pro se. He filed a
complaint alleging that the defendants violated his constitutional rights.
(Docket #1). This matter comes before the court on Plaintiff’s petition to
proceed without prepayment of the filing fee (in forma pauperis). (Docket
#2). Plaintiff has been assessed and paid an initial partial filing fee of $14.04.
See 28 U.S.C. § 1915(b)(1).
The court shall screen complaints brought by prisoners seeking relief
against a governmental entity or an officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion
thereof if the prisoner has raised 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.
Id. § 1915A(b).
A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,
490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900

(7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where
it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 110910 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system,
the plaintiff is required to provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his statement need only
“give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers mere “labels and conclusions” or a “formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must
contain sufficient factual matter, accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint’s allegations
“must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings
that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be
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supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. Section 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 deprivation was visited upon him
by a person or persons acting under color of state law. Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill.
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 court is obliged to give the plaintiff’s
pro se allegations, “however inartfully pleaded,” a liberal construction. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
Plaintiff alleges that on July 20, 2017, while incarcerated at KMCI,
correctional officers Conard and Nietzel woke him to perform a urine
analysis. (Docket #1 at 3). Prior to the analysis, Plaintiff was strip searched
in the bathroom. Id. Conard, who is presumably male, actually performed
the search in the shower area. Id. Nietzel, identified as female, could see
Plaintiff being searched from her place at the officer’s station. Id. The
officers also allowed other inmates in to use the bathroom while Plaintiff
was naked. Id. at 4. Plaintiff asked Conard to perform the search with the
shower curtain drawn, but Conard refused. Id. at 3. Plaintiff says the urine
analysis was done in retaliation for Plaintiff “sticking up for two fellow
inmates” the day before. Id. at 4. Apparently, an officer Lamb was upset by
Plaintiff’s actions and put in motion the events which led to the urine
analysis and strip search. Id. Plaintiff seeks money damages from each
defendant. Id. at 5. He also requests that policies be implemented at KMCI
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to exclude opposite-gender officers from participating in a strip search, and
requiring that such searches be conducted in a closed-off area. Id.
Plaintiff’s allegations, liberally construed, state a claim against
Conard and Nietzel for violating his Eighth Amendment right against cruel
and unusual punishment. 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 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. 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. To state a valid claim, the prisoner must allege “that the strip search in
question was not merely a legitimate search conducted in the presence of
female correctional officers, but instead a search conducted in a harassing
manner intended to humiliate and inflict psychological pain.” Id.
Plaintiff has done so. He alleges that the urine analysis, and the
resultant search, was merely retaliatory and not based on a legitimate
penological concern. Plaintiff’s claim extends not only to Nietzel’s presence
as a female officer, but also to the officer’s decision to allow other inmates
into the bathroom while Plaintiff was naked. See Chatman v. Ill. Dep’t of Corr.,
685 F. App’x 487, 489 (7th Cir. 2017). He cannot proceed against the officers
on his claims relating to strip search policies, however. The complaint offers

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no indication that the officers have the authority to change or enact prisonwide policies.
Plaintiff may not proceed against Robert Humphreys or Tom
Pollard. Their only mention in the complaint is that they worked at KMCI.
(Docket #1 at 2). There is no indication of what their role was in allegedly
violating Plaintiff’s constitutional rights. Assuming that they had a
supervisory role, they are not liable for Conard and Nietzel’s conduct
simply because of that fact. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001) (“The doctrine of respondeat superior does not apply to § 1983
actions; thus to be held individually liable, a defendant must be personally
responsible for the deprivation of a constitutional right.”) (quotation
omitted).
In sum, the court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): cruel and unusual punishment by
Defendants C.O. Conard and C.O. Nietzel, in violation of the Eighth
Amendment, for strip searching Plaintiff without penological justification
and intending to humiliate him.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to proceed
without prepayment of the filing fee (in forma pauperis) (Docket #2) be and
the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants Robert Humphreys
and Tom Pollard be and the same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this court,
copies of the plaintiff’s complaint and this order are being electronically

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sent today to the Wisconsin Department of Justice for service on the state
defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this court, the
defendants shall file a responsive pleading to the complaint within sixty
(60) days of receiving electronic notice of this order;
IT IS FURTHER ORDERED that the agency having custody of the
plaintiff shall collect from his institution trust account the 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 plaintiff’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 payments shall be clearly
identified by the case name and number assigned to this action. 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;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the plaintiff is confined; and
IT IS FURTHER ORDERED that the plaintiff shall 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

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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter. As each filing
will be electronically scanned and entered on the docket upon receipt by
the clerk, the plaintiff need not mail copies to the defendants. All
defendants will be served electronically through the court’s electronic case
filing system. The plaintiff should also retain a personal copy of each
document filed with the court.
The plaintiff is further advised that failure to make a timely
submission may result in the dismissal of this action for failure to prosecute.
In addition, the parties must 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, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 5th day of December, 2017.
BY THE COURT:

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

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