Key v. Scullion et al

Filing 9

SCREENING ORDER signed by Judge Brett Ludwig on 2/17/21 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Key must submit payment for the remainder of the filing fee ($339.12) as he is able. Pursuant to an informal service agreement between the Wisconsin Department of Justice and this Court, copies of Keys complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on the defendants. Defendants shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. (cc: all counsel and mailed to pro se party)(MP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
D’ANGELO KEY,
Plaintiff,
v.

Case No. 20-cv-1821-bhl

MATTHEW SCULLION, et al.,
Defendants.

SCREENING ORDER
D’Angelo Key, who is currently serving a state prison sentence at the Wisconsin Secure
Program Facility and representing himself, filed a complaint under 42 U.S.C. §1983, alleging that
the defendants violated his civil rights. This matter comes before the Court on Key’s motion for
leave to proceed without prepaying the full filing fee and for screening of the complaint.
MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE
Key has requested leave to proceed without prepaying the full filing fee (in forma
pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of
the $350.00 filing fee over time. See 28 U.S.C. §1915(b)(1). Key has filed a certified copy of his
prison trust account statement for the six-month period immediately preceding the filing of his
complaint, as required under 28 U.S.C. §1915(a)(2), and has been assessed and paid an initial
partial filing fee of $10.88. Key motion for leave to proceed without prepaying the filing fee will
be granted.
SCREENING THE COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity, and dismiss any complaint
or portion thereof if the prisoner has raised any 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 screening a complaint, the
Court must determine whether the complaint complies with the Federal Rules of Civil Procedure

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and states at least plausible claims for which relief may be granted. To state a cognizable claim
under the federal notice pleading system, a 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 must be at least sufficient
to provide notice to each defendant of what he or she is accused of doing, as well as when and where
the alleged actions or inactions occurred, and the nature and extent of any damage or injury the actions
or inactions caused.

“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
ALLEGATIONS
Key was an inmate at Wisconsin Secure Program Facility (WSPF). Dkt. No. 1, ¶2.
Defendants Matthew Scullion, Ryan Meyers, Eagleberger, Mesmer, and Collins are correctional
officers at WSPF. Id., ¶¶3-5.
On February 28, 2020, WSPF conducted a mass shakedown of the institution. Id., ¶¶7-8.
Scullion went to Key’s cell and told him to come out of the cell so staff could search it. Id., ¶9.
Key refused because he did not feel safe—Keys allegedly had a “situation” with Scullion in the
past. Id., ¶¶10-11. Scullion “disregarded” Key’s concern about his safety and came back with a
“use of force team” to force Key to leave his cell and go to the strip-search cell. Id., ¶¶12-14, 16.
On the way to the strip-search cell, Scullion told Key that he had forfeited his right to a
“visual” strip-search; he would instead have to comply with a “staff-assisted” strip search, which
involves a correctional officer using his hands to inspect the penis, scrotum, armpits, hair, mouth,
ears, and anal cavity. Id., ¶¶15-16, 19. Keys stated several times that he would comply with a
“visual” strip-search but Scullion responded that he had “lost the right.” Id., ¶¶17-18, 20.
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Keys complied with a staff-assisted strip search, and at the end of the search, Key tried to
get onto his feet. Id., ¶22. Scullion then instructed Meyers to conduct another anal cavity search.
Id. Key asked why he had to submit to a second anal cavity search, but Scullion simply directed
staff to forcefully bend him over. Id., ¶¶23-24. Meyers then “used his fingers to circle around the
inside of Keys anus.” Id., ¶¶25-26. At some point during the second anal cavity search, Scullion
instructed Meyers to stop the search but Meyers “continued to fondle [his] anus.” Id. Keys states
that Meyers and Scullion were trying to sexually degrade him and humiliate him because the
second search was completely unnecessary given that he had just submitted to one a few moments
earlier; Key describes the incident as an “assault.” Id., ¶27. Eagleberger, Mesmer, and Collins
were standing there during the incident and could have intervened to prevent the “assault” but
failed to do so. Id., ¶¶27-29. For relief, Key seeks monetary damages.
ANALYSIS
“To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that he or she
was deprived of a right secured by the Constitution or the laws of the United States, and that this
deprivation occurred at the hands of a person or persons 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)).
Key asks to proceed with the following claims: (1) a First Amendment retaliation claim
against Scullion and Meyers; (2) an Eighth Amendment deliberate indifference claim against
Scullion, Meyers, Eagleberger, Mesmer, and Collins; and (3) an Eighth Amendment excessive
force claim against Scullion, Meyers, Eagleberger, Mesmer, and Collins. Dkt. No. 1 at 4-5.
Key does not explain the basis of his First Amendment “retaliation” claim or his Eighth
Amendment “deliberate indifference” claim. It’s unclear how the facts alleged in the complaint
give rise to either of those claims. Key therefore cannot procced with either of those claims.
To state an Eighth Amendment excessive force claim, Key must allege that the defendants
applied force maliciously and sadistically to cause harm rather than in a good faith attempt to
maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Rice ex rel. Rice v.
Corr. Med. Servs., 675 F.3d 650, 668 (7th Cir. 2012). Factors relevant to a defendant’s mental
state include the need for force, the amount of force used, the threat reasonably perceived by
officers, efforts made to temper the severity of the force, and the extent of injuries caused by the
force. Whitley v. Albers, 475 U.S. 312, 321 (1986); Rice, 675 F.3d at 668. A “prisoner need not
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show a ‘significant injury’ in order to have a good claim under the [E]ighth [A]mendment, if a
guard inflicted pain maliciously or sadistically.” Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir.
2012) (citing Hudson, 503 U.S. at 7).
Key states that Scullion and Meyers conducted an unnecessary and forceful second anal
cavity search for the purpose of sexually degrading him and humiliating him. He states that they
“fondled” his genitals for no reason. Key further states that this use of force was completely
unnecessary because he had just submitted to anal cavity search. Key states that Eagleberger,
Mesmer, and Collins saw the “assault” and could have intervened to prevent it but failed to do so.
It may be that there was a legitimate penological reason for the second anal cavity search, but at
this early stage of the litigation, Key’s allegation that the defendants were trying to degrade him
and humiliate him is enough to state an Eighth Amendment excessive force claim against Scullion
and Meyers and a failure to intervene claim against Eagleberger, Mesmer, and Collins.
CONCLUSION
The Court finds that that Key may proceed with an Eighth Amendment claim that Scullion
and Meyers used excessive force during a staff-assisted strip search on February 28, 2020; and that
Eagleberger, Mesmer, and Collins failed to intervene to prevent the unjustified use of force.
IT IS ORDERED that Key’s motion for leave to proceed without prepayment of the filing
fee (Dkt. No. 2) is GRANTED. Key must submit payment for the remainder of the filing fee
($339.12) as he is able.
IT IS FURTHER ORDERED that, pursuant to an informal service agreement between
the Wisconsin Department of Justice and this Court, copies of Key’s complaint and this order are
being electronically sent today to the Wisconsin Department of Justice for service on the
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 days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the parties may not begin discovery until after the
Court enters a scheduling order setting deadlines for discovery and dispositive motions.
IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing
Program institutions must submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. The Prisoner E-Filing Program is mandatory for all
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inmates of Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution,
and Oshkosh Correctional Institution. All other plaintiffs 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Key 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 17th day of February, 2021.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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