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Joseph L. Brown, #07942-025 v. Brenner and Unknown Parties

September 7, 2011

JOSEPH L. BROWN, #07942-025, PLAINTIFF,
v.
BRENNER AND UNKNOWN PARTIES, DEFENDANTS.



The opinion of the court was delivered by: Gilbert, District Judge:

MEMORANDUM AND ORDER

Plaintiff Joseph L. Brown, an inmate in USP-Hazelton, Bruceton Mills, West Virginia, brings this action for deprivations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff is serving a 78 month sentence for conspiracy and intimidation. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Upon careful review of the complaint, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

The Complaint

Prior to his incarceration in USP-Hazelton and during his pretrial detention, Petitioner was in the custody of the United States Marshal Service and was held by the Alton, Illinois, Police Department. During this time (Petitioner does not give the date) Defendant Brenner (an Alton Police Officer), along with Defendant Unknown Party Police Officer and Defendant Unknown Party Correctional Officer,*fn1 entered Plaintiff's cell and ordered him to strip naked. Plaintiff claims he was not being searched or placed on suicide watch. Plaintiff was the only occupant of his cell.

One of the Defendants held a taser pointed at Plaintiff. While Plaintiff was removing his shirt, Defendant Brenner placed his hands on Plaintiff's buttocks and pulled down Plaintiff's pants and underwear. The Defendants then left Plaintiff's cell.

Some time later, a Defendant Unknown Party Officer "re-entered" Plaintiff's cell. It appears from the complaint that this "re-entry" happened the same day as the strip search, but this is not clear. It is also not clear from the complaint whether Plaintiff was still naked or had put his clothes back on at that point. Plaintiff was on the floor, and this Defendant Unknown Party Officer began touching Plaintiff's pubic/pelvic area with his fingers or with another object. The complaint does not state clearly whether this Defendant Unknown Party Officer was one of the two aforementioned Unknown Parties (either the Police Officer or the Correctional Officer) who participated in the strip search, or some other individual. Plaintiff was later told this Defendant Unknown Party Officer's name could be Morelly, Morales, or Ludwig.

Plaintiff also claims he was verbally harassed by the Defendant Unknown Party Correctional Officer, who told Plaintiff to "suck his penis" and called Plaintiff a child molester (Doc. 1, p. 5). This Defendant also threatened Plaintiff's life and said he would "fuck [Plaintiff] up" if Plaintiff left his cell to use the bathroom (there was no toilet in Plaintiff's cell) (Doc. 1, p. 5). Finally, Plaintiff alleges the Defendant Unknown Party Correctional Officer refused to give Plaintiff a food tray on multiple occasions.

Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into three (3) counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

Count 1 - Strip Search and Sexual Abuse

Although Plaintiff does not specify the date on which the alleged strip search and unwanted sexual touching occurred, it appears that he was a pretrial detainee at the time. Plaintiff was not sentenced by this Court until March 11, 2010, in his criminal case, and may have been in custody in Alton since April 28, 2008. (See ...


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