Belongie v. Kluenker et al

Filing 7

ORDER signed by Chief Judge Pamela Pepper on 2/17/2021. 2 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED; agency having custody of plaintiff to collect $339.34 balance of filing fee from plaintiff's pris on trust account under 28 USC §1915(b)(2). Defendant Manitowoc County DISMISSED. Plaintiff's complaint fails to state claim, plaintiff may file amended complaint by 4/5/2021, failure to file by deadline will result in dismissal and strike. (cc: all counsel and mailed to Manitowoc County Sheriff; Timothy Belongie at Manitowoc County Jail-with blank amended complaint for and "Answers to Prisoner Litigants' Common Questions")(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TIMOTHY M. BELONGIE,
Plaintiff,
v.

Case No. 20-cv-1742-pp

CO KLUENKER, JA BRIXSUS,
and MANITOWOC COUNTY JAIL,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING FILING FEE (DKT. NO. 2) AND SCREENING
COMPLAINT
______________________________________________________________________________
Timothy M. Belongie, an inmate at the Manitowoc County Jail who is
representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the
defendants inappropriately searched him and disregarded his PREA claims.
This decision resolves the plaintiff’s motion for leave to proceed without
prepaying the filing fee, dkt. no. 2, and screens his complaint, dkt. no. 1.
I.

Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 2)
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was a prisoner when he filed his complaint. See 28 U.S.C. §1915(h).
The PLRA allows the court to give a prisoner plaintiff the ability to proceed with
his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When
funds exist, the prisoner must pay an initial partial filing fee. 28 U.S.C.
§1915(b)(1). He then must pay the balance of the $350 filing fee over time,
through deductions from his prisoner account. Id.
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On November 23, 2020, the court ordered the plaintiff to pay an initial
partial filing fee of $5.33. Dkt. No. 5. The court received that fee on December
18, 2020. The court will grant the plaintiff’s motion for leave to proceed without
prepaying the filing fee and require him to pay the remainder of the filing fee
over time in the manner explained at the end of this order.
II.

Screening the Complaint
A.

Federal Screening Standard

Under the PLRA, the court must screen complaints brought by prisoners
seeking relief from 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 prisoner 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).
In determining whether the complaint states a claim, the court applies
the same standard that it applies when considering whether to dismiss a case
under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison,
668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts,
accepted as true, to “state a claim for relief 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
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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 for relief under 42 U.S.C. §1983, a plaintiff must allege
that someone deprived him of a right secured by the Constitution or the laws of
the United States, and that whoever deprived him of this right was acting
under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793,
798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints to a less
stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720
(citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
B.

The Plaintiff’s Allegations

The plaintiff asserts that “‘C.O. Kluenker’ violated [his] 5th 8th & 14th
Amendment rights in the Manitowoc County Jail on Sept. 13th, by cup[p]ing
[his] testicles individually with the both of his hands during a pat search.” Dkt.
No. 1 at 2. He asserts that “‘JA Brixsus’ violated [his] 5th & 14th Amendment
rights by disreguarding (sic) [his] prea [Prison Rape Elimination Act] claims
from Sept. 14th through Oct. 24th in the Manitowoc County Jail.” Id. The
plaintiff requests “punishments handed out to the violaters (sic) & financial
relief for the victums (sic).” Id. at 3.

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C.

Analysis

The plaintiff does not say whether he was a pretrial detainee or a
prisoner at the time of the incidents he complains of. He does not even identify
the year in which these events occurred. But the electronic docket of his
criminal case reveals that he has been a pretrial detainee at the Manitowoc
County Jail since at least July 13, 2020, and remains there awaiting trial,
currently scheduled for February 23, 2021. See https://wcca.wicourts.gov/
(Manitowoc County Case Number 2020CF000555). The court assumes that
these events occurred in September and October 2020, while the plaintiff was a
pretrial detainee at the Manitowoc County Jail.
The plaintiff’s claim that Kluenker inappropriately touched him during a
search is similar to a claim of excessive force. Because the plaintiff was a
pretrial detainee at the time of the alleged search, the court analyzes his claim
under the Fourteenth Amendment’s standard of objective reasonableness.
See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Under that standard,
the plaintiff must show that the defendant acted “with purposeful, knowing, or
reckless disregard of the consequences” of their actions. Miranda v. Cty. of
Lake, 900 F.3d 335, 354 (7th Cir. 2018). The plaintiff also must show that the
defendant’s actions were objectively unreasonable; that is, that they were not
“‘rationally related to a legitimate non-punitive governmental purpose’” or that
they were “‘excessive in relation to that purpose.’” Hardeman v. Curran, 933
F.3d 816, 822 (7th Cir. 2019) (citing Kingsley, 576 U.S. at 397).

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The complaint provides little detail about Kluenker’s search of the
plaintiff. The plaintiff alleges only that it was a “pat search” and that Kluenker
cupped the plaintiff’s testicles with his hands during the search. The plaintiff’s
allegations may be enough to proceed against Kluenker. See, e.g., Morehead v.
Milwaukee Cty. Police Dep’t, No. 17-CV-1320-PP, 2018 WL 1175356, at *2–*3
(E.D. Wis. Mar. 5, 2018) (permitting the plaintiff to proceed on a claim alleging
that a booking officer, for no reason, “‘gripped’ and ‘pulled’ his penis and
testicles when he searched the plaintiff”). But the plaintiff does not allege where
in the jail this occurred (In the plaintiff’s cell? In a private area? In front of
others?), the context or justification for the search (Was this a routine search?
Part of the booking process? Part of a lockdown?) or the extent of Kluenker’s
contact with the plaintiff. There may have been legitimate, penological interests
at stake, such as safety, that rendered the search and contact permissible. See
Gillis v. Pollard, 554 F. App’x 502, 506 (7th Cir. 2014) (affirming grant of
summary judgment for guards who made “brief contact with the genital area
over clothing during a pat-down” because contact was incidental to legitimate
search of inmate’s groin for weapons or contraband). Without more information
about this search, the court cannot tell whether Kluenker’s actions were a
reasonable part of a legitimate search or “excessive in relation to that purpose.”
Kingsley, 576 U.S. at 398.
As for Brixsus, the court infers that “JA” stands for Jail Administrator.
The plaintiff alleges that Brixsus disregarded the plaintiff’s PREA claims from
September through October 2020. The plaintiff does not explain whether he
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filed PREA complaints or simply told someone he had PREA claims, whether
Brixsus was aware of the plaintiff’s claims or complaints or how many claims
or complaints he filed, among other questions. It is possible Brixsus did not
hear about, read or see the plaintiff’s PREA claims and may have had nothing
to do with responding to them. To be liable under §1983, a defendant must be
personally involved in the alleged deprivation of the plaintiff’s rights. See Vance
v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). The plaintiff’s complaint does not
provide enough detail to show that Brixsus was personally involved in any
disregard of the plaintiff’s PREA claims.
The plaintiff also named as a defendant the Manitowoc County Jail. But
the jail is not a “person” that may be sued under §1983. The court could
construe this claim as if the plaintiff had sued Manitowoc County. But a local
government entity such as a county “cannot be held liable solely because it
employs a tortfeasor—or, in other words, a municipality cannot be held liable
under § 1983 on a respondeat superior theory.” Monell v. New York City Dep’t
of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in original). A municipality
may “be held liable under § 1983 only for its own violations of federal law.” Los
Angeles Cty. v. Humphries, 562 U.S. 29, 36 (2010) (citing Monell, 436 U.S. at
694). To show municipal liability, a plaintiff “must demonstrate that there was
an ‘official policy, widespread custom, or action by an official with policymaking authority [that] was the “moving force” behind his constitutional
injury.’” Estate of Perry v. Wenzel, 872 F.3d 439, 461 (7th Cir. 2017) (quoting
Daniel v. Cook Cty., 833 F.3d 728, 734 (7th Cir. 2016)). “[T]he touchstone of
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‘official policy’ is designed ‘to distinguish acts of the municipality from acts of
employees of the municipality, and thereby make clear that municipal liability
is limited to action for which the municipality is actually responsible.’” City of
St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 479–80 (1986) (emphasis in original)).
The plaintiff has not alleged that the defendants violated his rights as
part of an unconstitutional Manitowoc County policy or custom of cupping
inmates’ testicles during searches or a policy or custom of disregarding PREA
claims. He accuses individual jail employees of violating his rights, not the
county. The court will not allow the plaintiff to proceed against Manitowoc
County or the Manitowoc County Jail.
The court will dismiss the plaintiff’s complaint because it does not have
enough detail to state a claim against any proper defendant. Although the
court will not allow the plaintiff to proceed against the Manitowoc County Jail,
it is possible that he may be able to provide enough details to state a claim
against the other defendants. The court will give the plaintiff an opportunity to
amend his complaint to address the issues described in this order.
When writing his amended complaint, the plaintiff should provide the
court with enough facts to answer the following questions: 1) Who violated his
constitutional rights?; 2) What did each person do to violate his rights?;
3) Where did each person violate his rights?; and 4) When did each person
violate his rights? The plaintiff’s amended complaint does not need to be long
or contain legal language or citations to statutes or cases, but it does need to
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provide the court and each defendant with notice of what each defendant
allegedly did or did not do to violate his rights. The court advises the plaintiff to
provide enough detail for his claims against Kluenker and Brixsus to address
the court’s concerns and questions described in this order; he should provide
details such as where he was when Kluenker searched him, why Kluenker was
searching him, how long the search took, whether the plaintiff said anything to
Kluenker when Kluenker allegedly cupped his testicles. He should provide
details such as whether he filed any written PREA claims and when, whether
Brixsus knew about those written claims, how he knows Brixsus knew about
the claims and why he believes Brixsus ignored the claims. Stating only that
the defendants violated his rights, without explaining how the defendants
violated his rights, is not enough.
The court is enclosing a copy of its amended complaint form and
instructions. The plaintiff must list the case number for this case on the first
page. He must list all the defendants he wants to sue in the caption of the
amended complaint (remembering that he cannot list the jail or the county). He
should use the spaces on pages two and three to explain the key facts that give
rise to the claims he wishes to bring, and to describe which defendants he
believes committed the violations that relate to each claim. If there is not
enough space on those pages, the plaintiff may use up to five additional sheets
of paper, double-spaced so that the court can read them. The amended
complaint takes the place of the prior complaint and must be complete in itself;
the plaintiff may not refer the court back to his original complaint, rather than
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repeating in the amended complaint any of the facts from the original
complaint that are necessary to his claims.
III.

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

prepaying the filing fee. Dkt. No. 2.
The court ORDERS that defendant Manitowoc County Jail is
DISMISSED.
The court CONCLUDES that the plaintiff’s complaint fails to state a
claim. Dkt. No. 1.
The court ORDERS that the plaintiff may file an amended complaint that
complies with the instructions in this order. If the plaintiff chooses to file an
amended complaint, he must do so in time for the court to receive it by the end
of the day on April 5, 2021. If the plaintiff files an amended complaint in time
for the court to receive it by the end of the day on April 5, 2021, the court will
screen the amended complaint as required by 28 U.S.C. §1915A. If the plaintiff
does not file an amended complaint by the deadline, the court will dismiss this
case based on the plaintiff’s failure to state a claim in his original complaint
and will issue him a strike as required by 28 U.S.C. §1915(g).
The court ORDERS that the agency that has custody of the plaintiff must
collect from his institution trust account the $339.34 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
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amount in the account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2).
The agency must clearly identify the payments by the case name and number.
If the plaintiff transfers to another county, state or federal institution, the
transferring institution must forward a copy of this order, along with the
plaintiff’s remaining balance, to the receiving institution.
The court will send a copy of this order to the Manitowoc County Sheriff.
The court ORDERS that plaintiffs who are inmates at Prisoner E-Filing
Program institutions1 must submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the court. Plaintiffs
who are inmates at all other prison facilities must submit the original
document for each filing to the court to the following address:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will
only delay the processing of the case.
The court advises the plaintiff that if he fails to file documents or take
other required actions by the deadlines the court sets, the court may dismiss
the case based on his failure to diligently pursue it. The parties must notify the
clerk of court of any change of address. The court also advises the plaintiff that
The Prisoner E-Filing Program is mandatory for all inmates of Green Bay
Correctional Institution, Waupun Correctional Institution, Dodge Correctional
Institution, Wisconsin Secure Program Facility, Columbia Correctional
Institution, and Oshkosh Correctional Institution.
1

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it is his responsibility to promptly notify the court if he is released from
custody or transferred to a different institution. The plaintiff’s failure to keep
the court advised of his address may result in the court dismissing this case
without further notice.
The court includes with this order a copy of the guide entitled, “Answers
to Prisoner Litigants’ Common Questions” and a blank prisoner complaint
form.
Dated in Milwaukee, Wisconsin, this 17th day of February, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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