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Evans v. Hitchison

United States District Court, C.D. Illinois

July 31, 2019

DAVID EVANS, Plaintiff,
v.
HITCHISON, et al., Defendants.

          MERIT REVIEW - AMENDED COMPLAINT

          MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE

         Plaintiff, proceeding pro se, files an amended complaint alleging that his First and Eighth Amendment rights were violated through strip searches conducted at the Pontiac Correctional Center (“Pontiac”). The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to “state a claim for relief that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(citation and internal quotation marks omitted). While the pleading standard does not require “detailed factual allegations”, it requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Plaintiff, who was housed at the Menard Correctional Center (“Menard”), alleges that from August 2015 onward, he was routinely transferred to the Pontiac on writs for court appearances. Plaintiff alleges that during two of these transfers, Defendants Hitchison, Punke and Keller subjected him to strip searches in circumstances which violated his religion. Plaintiff pleads that on November 2, 2016, he was received at Pontiac with a group of approximately 15 other inmates. The inmates were separated into two transparent bullpens within sight of three female nurses. Plaintiff alleges that Defendant Officers Keller and Hitchison ordered them to strip in sight of the females and homosexual and transsexual inmates in the group.

         Plaintiff told Defendants that he was Muslim and being nude in front of women and homosexuals was against his religion. Defendant Keller informed Plaintiff that the orders were not subject to religious debate and Defendant Keller ordered him to comply or be taken to segregation. Plaintiff removed his clothing and was ordered to turn, bend over and spread his buttocks within five feet of the nurses. Plaintiff claims that Nurse Jade looked at his manhood and covered her mouth, either in an expression of surprise or mockery. After the strip search, Plaintiff was allowed to dress and then directed to a bullpen where three nurses conducted cursory examinations.

         On August 30, 2017, Plaintiff again returned to Pontiac where he and other inmates were ordered by Defendant Punke to remove their clothing. Plaintiff argued that the search was “bogus as hell” as there were three nurses present and a transsexual inmate in a nearby bullpen who would see him nude. The search was nonetheless conducted with Plaintiff complaining that the three nurses “boldly gazed upon me.” He complains, also, that a transsexual inmate in an adjacent bullpen called out “Evans I hope they make us cellmates.” Plaintiff was thereafter allowed to dress and was taken to the bullpen where the group underwent cursory examination by the three nurses.

         Plaintiff makes the further claim that these searches violated Illinois Department of Corrections (“IDOC”) policies, not otherwise identified. He names Lieutenants Hitchison and Punke as well as Officer Keller, requesting compensatory and punitive damages but not injunctive relief.

         Plaintiff asserts that Defendants violated his First Amendment rights to the free exercise of his religion when they caused him to be nude in front of female staff and other inmates whom he identifies as homosexual and transsexual, without identifying the support for these beliefs. While the First Amendment safeguards Plaintiff's religious practice, “[a] prisoner's right to freely exercise his religious beliefs does not depend upon his ability to pursue each and every aspect of the practice of his religion. Canedy v. Boardman, 91 F.3d 30, 33 (7th Cir. 1996) (internal citations omitted). Prison officials may restrict a particular religious tenet in furtherance of sound penological interest, even “if those interests outweigh the prisoner's religious interests, the restriction does not violate the First Amendment.” See Id. at 33 (dismissing claims against defendants based on qualified immunity).

         There is not sufficient information at merit review, however, for the Court to determine whether Defendants had a sound penological interest at stake which would outweigh Plaintiff's First Amendment rights. Accordingly, this claim will proceed against Defendants Hitchison, Punke and Keller.

         Plaintiff's replead Eighth Amendment allegations, however, fails to state a claim of cruel and unusual punishment. This is so, as it is widely recognized that prisoners do not have the same expectation of privacy as members of the general public. “A prison shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room.... We strike the balance in favor of institutional security, which we have noted is central to all other corrections goals....” Burge v. Murtaugh, No. 07-0336PS, 2007 WL 4335461, at *2 (N.D. Ind. Dec. 7, 2007) quoting Hudson v. Palmer, 468 U.S. 517, 527-28 (1984).

         The strip search of a prisoner become unconstitutional only if maliciously motivated, unrelated to institutional security, and totally without penological justification. Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir.2004); Calhoun v. Detella, 319 F.3d 936, 939 (7th Cir.2003). Here, Plaintiff has not made any credible allegations here that the strip searches were performed in a humiliating or degrading manner. He pleads facts which establish that the officers were polite though plaintiff argued with them and initially refused to comply with their orders. Furthermore, it does not violate the Eighth Amendment for a prisoner to be seen nude by a member of the opposite gender as “[t]here are too many permutations to place guards and prisoners into multiple classes by sex, sexual orientation, and perhaps other criteria, allowing each group to be observed only by the corresponding groups that occasion the least unhappiness.” Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995). The Eighth Amendment claim against Defendants Hitchison, Punke and Keller is DISMISSED.

         Plaintiff also asserts Defendants' alleged violation of IDOC policies as a constitutional infringement. It is clear, however, that § 1983 “protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.” Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). A violation of a departmental policy, without more, does not amount to a constitutional violation. Estate of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir. 2017). This claim is DIMISSED.

         IT IS THEREFORE ORDERED:

         1. This case shall proceed on the First Amendment claim against Defendants Hitchison, Punke and Keller. Plaintiff's claims alleging Eighth Amendment and IDOC policy violations are DISMISSED for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915A. All other claims will not be included in the case, except in the Court's discretion upon motion by a party for good cause shown, or by leave of court pursuant to Federal Rule of Civil Procedure.

         2. The Clerk is directed to send to each Defendant pursuant to this District's internal procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; ...


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