Lindell v. Pollard

558 F.Supp.3d 734

Nate A. LINDELL, Plaintiff,

v.William POLLARD, Steve Schueler, John Kind, Jay Van Lanen, Drew Weycker, Kyle Peotter, Joshua Gomm, Jesse Ault, Michael Neveu, and Alex Bonis, Defendants.

Case No. 19-C-255

United States District Court, E.D. Wisconsin.

Signed September 3, 2021

Nate A. Lindell, Portage, WI, Pro Se.

Eliot M. Held, Timothy M. Barber, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, United States District Judge

Plaintiff Nate A. Lindell, a state prisoner who is representing himself, brings claims under 42 U.S.C. § 1983 relating to a strip search and his subsequent placement in an allegedly feces-contaminated cell. Before me now are the parties’ cross motions for summary judgment.

I. BACKGROUND

On October 9, 2018, the plaintiff transferred from the Wisconsin Secure Program Facility to the Green Bay Correctional Institution, where he was housed in the Restrictive Housing Unit ("RHU"), also known as solitary confinement. Captain Jay Van Lanen supervised the RHU when the plaintiff arrived there. The day the plaintiff arrived, Captain Daniel Cushing (who not a defendant) emailed Green Bay's security supervisors regarding his transfer there, stating:

This inmate is big into filing litigation. This inmate also writes Between the Bars and they post his writing to a blog on the internet. Anything you say to him or that he is witness to will end up on the internet. Just an FYI.

Pl. Proposed Findings of Fact ("PFOF"), ECF No. 148 ¶ 2.

The plaintiff authored articles about abuses and suicides in Green Bay's RHU. On November 14, 2018, a Green Bay crisis-intervention worker emailed Captain Van Lanen about a recent internet post from the plaintiff that included a drawing of the inside of a cell, mentioned Van Lanen by name, and referenced an inmate suicide as well as the "daily happenings of inmates in seg." Pl. PFOF ¶ 7.

On several occasions prior to November 29, 2018, Lindell wrote to the institution's psychologist, Todd Hamilton, and told him that staff members were mistreating a suicidal prisoner, Travant Schmidt, who was housed in the cell next to Lindell's. Pl. PFOF ¶ 15. Lindell also noted how other prisoners in the RHU were exhibiting symptoms that he believed were symptoms of mental illness caused by segregated confinement. Id.

On November 29, 2018, Captain Van Lanen had a conversation with Hamilton. The parties dispute the content of the conversation. According to the plaintiff, he and another prisoner heard Hamilton tell Van Lanen about the plaintiff's correspondence to Hamilton, and Van Lanen replied, "We need to get Lindell away from Schmidt." Pl. PFOF ¶¶ 15-16. According to the defendants, Van Lanen's conversation was about why Schmidt was on observation status and what could be done to remove him from observation status and did not include any mention of needing to move Schmidt away from the plaintiff. Def. Resp. to Pl. PFOF ¶ 16.

A. Strip Search

On November 30, 2018, the plaintiff was removed from his cell and taken to see a psychiatrist. While the plaintiff was away, one or more staff members of the RHU conducted a random search of his cell. The parties do not identify the staff member or members who performed the search, but the plaintiff does not contend that any of the defendants performed the search.¹ After the search, defendant Van Lanen was notified that screws were missing from the plaintiff's cell and that contraband consisting of "hoarded food and broken containers, pen inserts, and excessive linens" had been found. Van Lanen Decl. ¶ 11. Based on this information, Van Lanen ordered Lindell to be strip searched and moved to a different cell. Id. ¶ 12. Van Lanen states that he gave this order "because it was suspected that screws were missing from [the plaintiff's] cell, he was misusing linens, and may have possession of other contraband." Id. The plaintiff denies that he had any contraband in his cell at the time of the search. Lindell Decl. ¶ 28, ECF No. 50.

Defendant Joshua Gomm is the correctional officer who performed the strip search. According to the plaintiff, Gomm approached him after his psychiatric appointment and told him that Van Lanen had ordered a strip search because screws were missing from "other cells on [the plaintiff's] wing." Lindell Decl. ¶ 17, ECF No. 150. To perform the strip search, Gomm placed the plaintiff in a cell and had him remove his clothes. Gomm observed the plaintiff from outside the cell, and another correctional officer, Officer Ault, recorded Gomm with his body camera. (Ault did not record the plaintiff while he was naked to protect his privacy.) A third officer, defendant Drew Weycker, was also present during the search, and Van Lanen was nearby.

Ault's body-camera footage shows a search that lasted about fifty seconds. ECF No. 108-1, Ex. 1010. The video shows the plaintiff passing his clothes and shoes to Gomm, and Gomm is heard asking the plaintiff for his glasses. During the video, Gomm instructs the plaintiff to remove his clothes and expose areas of his body. Gomm tells the plaintiff to open his mouth and show under his tongue, Gomm says "armpit," then says "genitals," "turn around," and "thank you Lindell." Gomm then walks away from the cell and Ault turns off his camera. Gomm is not shown touching Lindell or making inappropriate comments.

According to the plaintiff, Gomm did more than what is shown in the footage from the body camera. The plaintiff says that, after the initial strip search, Weycker instructed Ault to turn off his body camera. Lindell Decl. ¶ 19. At that point, Gomm began "smiling insultingly" at the plaintiff while he was naked and told him that he would give him his clothes back only if he "stuck [his] finger in his butt and then showed it to [Gomm], then put it in [his] mouth." Id. According to the plaintiff, Gomm told him he would have to move his finger around in his mouth and said, "You like a shitty mouth, don't you?" Id. The plaintiff does not claim that he complied with these instructions, but he says he was shocked and offended by Gomm's comments. Id. He claims that, after Gomm made the comments, either Weycker or Ault "chuckled." Id. The plaintiff also claims that Gomm told him to "bust it open," which is slang for commanding a person to open their legs and expose their genitals. Pl. PFOF ¶ 23. Gomm denies making the comments, Gomm Supp. Decl. ¶ 3, and Weycker denies telling Ault to turn his camera off, Weycker Supp. Decl. ¶ 4. Van Lanen states that he observed the search and did not witness any inappropriate behavior by Gomm. Van Lanen Decl. ¶ 20.

The plaintiff contends that Gomm refused to return the plaintiff's clothing after the search. Gomm admits that he did not immediately return the plaintiff's clothing, but he contends that this was because he was unsure whether the plaintiff would be placed on a linen restriction. Gomm Supp. Decl. ¶ 4. Eventually, Van Lanen determined that the plaintiff would not be placed on a linen restriction and directed staff members to return the plaintiff's clothing. Supp. Van Lanen Decl. ¶ 8. Van Lanen does not recall how long the plaintiff was without his clothing, but he estimates it was 20–30 minutes. Id. ¶ 9. Van Lanen states that the plaintiff was offered a smock to wear before his clothing was returned, which he declined. Id. The plaintiff contends that he was without clothing for around an hour. Lindell Decl. ¶ 30.

It is undisputed that the strip search of the plaintiff did not uncover contraband. However, because the earlier search of the plaintiff's cell revealed hoarded food and broken containers, the plaintiff was placed on a property restriction and a restriction to bag meals from November 30, 2018 to December 9, 2018. See Weycker Decl. ¶ 5 & Exs. 1013 & 1014. Under the property restriction, the plaintiff was not allowed to possess property in a container, such as toothpaste, milk, shampoo, or deodorant. Weycker Decl. ¶ 6.

The plaintiff filed an inmate complaint about the strip search, which the institution labelled GBCI-2018-25475. See Exhibit 1012. The plaintiff described the issue he was complaining about as "C.O. Gomm strip searched me in sexually degrading and unnecessarily [sic]." Id. at 11. He provided the following details:

On 30 Nov., per Van Lanen's orders, I was moved to 220. At that time, after [another officer] saw me, Gomm [and another officer] told me that I was being strip searched b/c screws were missing from my wing. Gomm made me perform sexual acts, expose my genitals, anus and oral cavity. Then he told me I was going on clothing/linen restriction, that the strip was a ruse to get my clothes off.

If they were genuinely concerned about missing screws, they'd search the whole wing, not just me—no screws were missing from my cell.

Id. Because the plaintiff's complaint alleged sexual abuse, the institution processed it under its procedures for complying with the Prison Rape Elimination Act. Van Lanen was assigned to investigate the complaint. See Exhibit 1011 at 10. He interviewed Gomm, who denied any wrongdoing. Id. at 12–13. The plaintiff refused to be interviewed. Id. at 5. Based on this information, Van Lanen concluded that the complaint was unfounded. Id. at 1, 8.

In this suit, the plaintiff alleges that the strip search violated his constitutional rights in several ways. First, he contends that Van Lanen ordered the strip search to retaliate against him for engaging in activity he believes was protected by the First Amendment, such as writing internet posts about prison conditions and helping fellow inmates file complaints and intra-prison requests. Second, and perhaps relatedly, the plaintiff contends that the strip search was not justified by legitimate penological purposes but instead was performed unnecessarily, in violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. Finally, the plaintiff alleges that the manner of the search violated the Eight ...