Leiser v. Meisner et al

Filing 5

SCREENING ORDER signed by Magistrate Judge William E Duffin on 6/3/2021. The defendants Deputy Warden Eric Barber, C. Karschney, Staff Teachers, Staff Social Workers, and the John and Jane Does not named in the Eighth Amendment claims Leisner was all owed to proceed on are DISMISSED. Warden Michael Meisner shall remain as a defendant for the limited purpose of helping Leiser identify the remaining John and Jane Doe defendants' names. Warden Meisner does not have to respond to the complaint; however, he shall respond to discovery requests that Leiser serves in an effort to identify the Doe defendants' names. Leiser must identify the Doe defendants' names within sixty days of Warden Meisner's attorney filing an appearance in this case. (cc: all counsel and mailed to pro se party with pamphlet)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY D. LEISER,
Plaintiff,
v.

Case No. 21-CV-405

WARDEN MICHAEL MEISNER,
DEPUTY WARDEN ERIC BARBER,
C. KARSCHENY, JOHN DOE OFFICERS,
JANE DOE OFFICERS, STAFF TEACHERS,
STAFF SOCIAL ORDERS, and JOHN AND
JANE DOE CAPTAINS AND LIEUTENANTS,
Defendants.
ORDER
Plaintiff Jeffrey D. Leiser, who is incarcerated at Red Granite Correctional
Institution and representing himself, filed a complaint under 42 U.S.C. § 1983
alleging that the defendants violated his constitutional rights. (ECF No. 1.) This
order screens his complaint.
The court has jurisdiction to screen the complaint in light of Leiser’s consent
to the full jurisdiction of a magistrate judge and the Wisconsin Department of
Justice’s limited consent to the exercise of magistrate judge jurisdiction as set forth
in the Memorandum of Understanding between the Wisconsin Department of
Justice and this court.

1.

Screening of the Complaint
1.1

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 applies to dismissals 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
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
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United States, and that whoever deprived him of this right was acting under 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 pro se complaints liberally and holds them 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)).
1.2

Leiser’s Allegations

On July 16, 2019, between 12:30 p.m. and 1:30 p.m., staff at Red Granite
Correctional Institution announced that they were conducting an “Emergency
Count” and ordered all inmates to return to their cells. (ECF No. 1, ¶ 20.) Once all
inmates were in their cells, a staff member distributed a memo from defendant
Warden Michael Meisner that indicated that the housing unit, “E unit”, is on
“complete lockdown for the purpose of conducting a search of the building and
property.” (Id., ¶ 2.) This meant that inmates had to take all meals in their cell,
would only be allowed out to shower once a day, and could not move outside their
cell without an escort. (Id.) There was also a suspension of all administrative rules.
(Id.)
The lockdown lasted two-and-a-half days, and every time Leiser needed to
leave his cell to use the bathroom or shower he was strip-searched leaving his cell
and patted down upon coming back to his cell. (ECF No. 1, ¶ 5.) Leiser estimates
that he was strip searched between 30 and 50 times during that two-and-a-half day

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period, often in front of female staff members. (Id., ¶¶ 6, 23.) He states the strip
searches were “maliciously motivated” and conducted in a “harassing manner.” (Id.)
Leiser has a “neurogenic bladder, which causes extreme pain when he is
forced to hold his urine.” (ECF No. 1, ¶ 7.) Because of the strip search requirement,
Leiser on two occasions had to wait to urinate. (Id.) One time he had to wait an
hour and a half and on another occasion he had to wait three hours. (Id.) Leiser also
suffers from nerve impingement in his spine and being forced to remove his clothes
caused him pain. (Id., ¶ 7.) Leiser informed staff of his conditions, but he states they
did not care and told him to “deal with it.” (Id., ¶¶ 23-24.)
Also, during the two-and-a-half day lockdown, between July 16, 2019, and
July 19, 2019, the temperature was over 95 degrees with high humidity. (ECF No.
1, ¶ 26.) The cells became hot and stuffy and a Jane Doe Sergeant would not allow
Leiser to open his door to allow for cooler air to flow in. (Id.) Staff also did not turn
on “the air induction system,” which would have facilitated air flow. (Id., ¶ 27.) The
fans located in the housing unit’s day room were used to keep staff cool but not the
inmates. (Id., ¶ 28.) Leiser seeks $100,000 in damages from each defendant.
2.3

Analysis

Leiser clams that the defendants violated his Eighth Amendment rights
when they subjected him to several strip searches, made him wait to urinate, and
kept his cell at unreasonably high temperatures. Regarding his claim concerning
the strip searches, prison officials “violate the Eighth Amendment when they treat
inmates in a way that is ‘motivated by a desire to harass or humiliate’ or ‘intended
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to humiliate and cause psychological pain.’” Chatman v. Ill. Dept. of Corr., 685 Fed.
A’ppx 487, 489 (7th Cir. 2017) (quoting “King v. McCarty, 781 F.3d 889, 897 (7th
Cir. 2015)). “There is no question that strip searches may be unpleasant,
humiliating, and embarrassing to prisoners, but not every psychological discomfort
a prisoner endures amounts to a constitutional violation.” Calhoun v. DeTella, 319
F.3d 936, 939 (7th Cir. 2003). “[T]o state an Eighth Amendment claim [a plaintiff]
must show that the strip search in question was not merely a legitimate search . . .
but instead a search conducted in a harassing manner.” Id.
While Leiser states that the searches were conducted solely for malicious
purposes and to harass inmates, he does not offer any allegations that demonstrate
that the searches were intended to harass. Instead, his allegations suggest that the
strip searches were conducted for a legitimate penological purpose. The strip
searches were part of a lockdown designed to facilitate a search of the building and
property. Clearly, the RGCI officials were looking to uncover contraband. Leiser
states that the strip searches were harassing because they were conducted in front
of female staff members; because they were conducted every time an inmate needed
to leave his cell; and because they caused him pain.
None of these allegations are sufficient to state a claim under the Eighth
Amendment. A strip search of a male prisoner in front of female prison officers “if
conducted for a legitimate penological purpose, would fail to rise to the level of an
Eighth Amendment violation.” Calhoun, 319 F. 3d at 939. Also, conducting a strip
search every time an inmate needed to leave his cell served a legitimate penological
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purpose given that the purpose of the lockdown was to uncover and prevent
destruction of contraband. Without the searches, an inmate harboring contraband
may have been able to smuggle it out. While it is unfortunate that having to
undress several times a day aggravated Leiser’s impinged nerve, Leiser does not
allege that the officers made him strip solely to inflict that pain upon him. As such,
Leiser may not proceed on an Eighth Amendment claim for the strip searches.
However, he may proceed on an Eighth Amendment claim against the John
and Jane Doe prison officers who made him wait to urinate. Leiser alleges two
specific occasions where the officers knew he had a neurogenic bladder and that it
would cause him extreme pain to wait to urinate. But they made him wait anyway.
At this stage, these allegations sufficiently suggest “conditions that cause ‘the
wanton and unnecessary infliction of pain.’” Pyles v. Fahim, 771 F.3d 403, 408 (7th
Cir. 2014) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Additionally, Leiser may proceed on an Eighth Amendment conditions of
confinement claim for the high temperatures and poor ventilation that Sergeant
Jane Doe and John and Jane Doe officers subjected him to. See White v. Monohan,
326 Fed. A’ppx 385, 387-88 (7th Cir. 2009) (holding that a plaintiff states a claim
when he alleges extreme cell temperatures resulting from poor ventilation).
Leiser may not proceed on claims against of the defendants he named—
Warden Meisner, Deputy Warden Eric Barber, and C. Karschney. He does not state
any allegations against them. As such, he does not state a claim against them. At
most, for Warden Meisner Leiser’s allegations could imply a claim under a theory of
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supervisor liability. However, supervisors can be held liable for constitutional
violations caused by their employees only where the violation happens at the
supervisor’s direction or with the supervisor’s knowledge and consent. Hildebrant v.
Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1039 (7th Cir. 2003). In other words, the
supervisor “must know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye.” Id. At most, Leiser alleges that Warden Meisner knew about the
lockdown because he imposed it, but he does not allege that Meisner knew he was
being forced to wait to urinate or that the cell temperatures were extremely warm.
Thus, Leiser may proceed on claims against three sets of John and Jane Doe
defendants: 1) the John and Jane Doe officers that made him wait three hours to
urinate; 2) the John and Jane Doe officers that made him wait an hour and a half to
urinate; and 3) the Jane Doe Sergeant and the John and Jane Doe officers who
subjected him to high temperatures in the cell by either not turning on the
ventilation system or failing to take other measures to keep temperatures
reasonable. All other John and Jane Doe defendants are dismissed because Leiser
does not state a claim against them. Deputy Warden Eric Barber, and C. Karschney
are similarly dismissed.
Because the only remaining defendants are John and Jane Doe defendants,
the court does not dismiss Warden Meisner but will keep him as a defendant for the
limited purpose of helping Leiser identify the names of the Doe defendants. See
Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 556 (7th Cir. 1996). Meisner
does not have to respond to the complaint. After Meisner’s attorney files an
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appearance in this case, Leiser may serve discovery upon Meisner (by mailing it to
his attorney at the address in his notice of appearance) to get information that will
help him identify the names of the Doe defendants.
For example, Leiser may serve interrogatories (written questions) under Fed.
R. Civ. P. 33 or document requests under Fed. R. Civ. P. 34. Because Leiser does not
state a claim against Meisner, Leiser’s discovery requests must be limited to
information or documents that will help him learn the real names of the Doe
defendants he is suing. Leiser may not ask Meisner about any other topic, and
Meisner is under no obligation to respond to requests about any other topic.
After Leiser learns the names of the people he alleges violated his
constitutional rights, he must file a motion to identify their names to replace the
John and Jane Doe placeholders. The court will dismiss Meisner as a defendant
once Leiser identifies the defendants’ real names. After the defendants have an
opportunity to respond to Leiser’s complaint, the court will set a deadline for
discovery. At that point, Leiser may use discovery to get the information he believes
he needs to prove his claims.
Leiser must identify the names of the Doe defendants within sixty days of
Meisner’s attorney appearing. If he does not, or does not explain to the court why he
is unable to do so, the court may dismiss his case based on his failure to follow its
order.

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2.

Conclusion
NOW, THEREFORE, IT IS HEREBY ORDERED that Deputy Warden

Eric Barber, C. Karschney, Staff Teachers, Staff Social Workers, and the John and
Jane Does not named in the Eighth Amendment claims Leisner was allowed to
proceed on are DISMISSED.
IT IS FURTHER ORDERED that Warden Michael Meisner shall remain as
a defendant for the limited purpose of helping Leiser identify the remaining John
and Jane Doe defendants’ names.
Under an informal service agreement between the Wisconsin Department of
Justice and this court, a copy of the complaint and this order have been
electronically transmitted to the Wisconsin Department of Justice for service on
Warden Michael Meisner.
IT IS FURTHER ORDERED that Warden Meisner does not have to
respond to the complaint; however, he shall respond to discovery requests that
Leiser serves in an effort to identify the Doe defendants’ names. Warden Meisner
does not have to respond to discovery requests about any other topic.
IT IS FURTHER ORDERED that Leiser must identify the Doe defendants’
names within sixty days of Warden Meisner’s attorney filing an appearance in this
case. If Leiser does not identify the Doe defendants’ names by the deadline or advise
the court why he is unable to do so, the court may dismiss this case based on his
failure to follow the court’s order.

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IT IS FURTHER ORDERED 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS.
It will only delay the processing of the matter.
Leiser is further advised that failure to make a timely submission may result
in the dismissal of this case for failure to diligently pursue it. In addition, the
parties must notify the Clerk of Court of any change of address. Leiser is reminded
that it is his responsibility to promptly notify the court if he is released from
custody or transferred to a different institution. Leiser’s failure to keep the court
advised of his whereabouts may result in the dismissal of this case without further
notice.
Enclosed is a guide prepared by court staff to address common questions that
arise in cases filed by prisoners. Entitled “Answers to Prisoner Litigants’ Common
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.
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1

Questions,” this guide contains information that Leiser may find useful in
prosecuting his case.

Dated at Milwaukee, Wisconsin this 3rd day of June, 2021.
BY THE COURT

WILLIAM E. DUFFIN
United States Magistrate Judge

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