United States District Court, N.D. Indiana, South Bend Division
ALFRED W. COMER, JR., Plaintiff,
DEPUTY WARDEN PAYNE, et al., Defendants.
OPINION AND ORDER
P. SIMON JUDGE.
W. Comer, Jr., a prisoner without a lawyer, filed a
complaint. “A document filed pro se is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers . . .”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nevertheless, pursuant to 28 U.S.C. § 1915A, I must
review the complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim, or seeks
monetary relief against a defendant who is immune from such
relief. “In order to state a claim under [42 U.S.C.]
§ 1983 a plaintiff must allege: (1) that defendants
deprived him of a federal constitutional right; and (2) that
the defendants acted under color of state law.”
Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
complaint, Comer alleges that, on April 18, 2018, he
attempted to leave the dining hall, where he works, to attend
a class. Sergeant Nelson ordered him to go into a small
bathroom in the dining hall for a strip search. The bathroom
was unsanitary with urine on the toilet, a dirty floor, and
trash in the sink and on the floor. Sergeant Nelson ordered
Comer to strip. He took Comer's clothes with unclean
gloves, placed them onto a dirty chair, and then ordered
Comer to bend over. Before Comer could clothe himself,
Sergeant Nelson opened the door to leave, which allowed other
inmates who were waiting to eat to see Comer. Three hours
later, at the end of Comer's shift, Sergeant Nelson
ordered him to go to same bathroom for another strip search,
which he conducted without using gloves. Sergeant Nelson
informed that he was conducting the strip searches in
accordance with a memorandum issued by Deputy Warden Payne.
4, 2018, Major Nowatzke informed Comer that he authorized the
use of the bathroom for strip searches. Comer told Major
Nowatzke his concerns, including the risk of contracting
hepatitis B and staph infection, the presence of other
inmates waiting to eat, and the use of unclean gloves. Major
Nowatzke stated he would look into it, but Comer continued to
be subjected to strip searches in the dining hall bathroom.
Comer requests money damages and to enjoin correctional staff
from using the dining hall bathroom for strip searches.
alleges an Eighth Amendment claim against all defendants for
subjecting him to health risks posed by an unsanitary
bathroom. The Eighth Amendment imposes a duty on prison
officials “to take reasonable measures to guarantee the
safety of inmates.” Farmer v. Brennan, 511
U.S. 825, 832 (1994). “[I]n order to state a section
1983 claim against prison officials for failure to protect,
[a plaintiff] must establish: (1) that he was incarcerated
under conditions posing a substantial risk of serious harm
and (2) that the defendants acted with deliberate
indifference to his health or safety. Santiago v.
Walls, 599 F.3d 749, 756 (7th Cir. 2010). For money
damages, plaintiff must also establish a legally cognizable
harm. Doe v. Welborn, 110 F.3d 520, 523 (7th Cir.
also alleges an Eighth Amendment claim against all defendants
on the basis that the strip searches subjected him to
humiliation. “A prisoner states a claim under the
Eighth Amendment when he plausibly alleges that the
strip-search in question was motivated by a desire to harass
or humiliate rather than by a legitimate justification, such
as the need for order and security in prisons.”
King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015).
“Even where prison authorities are able to identify a
valid correctional justification for the search, it may still
violate the Eighth Amendment if conducted in a harassing
manner intended to humiliate and cause psychological
Comer the inferences to which he is entitled at this stage,
he plausibly alleges that the manner in which he was strip
searched subjected him to health risks and humiliation in
violation of the Eighth Amendment. Therefore, the complaint
adequately states an Eighth Amendment claim against Deputy
Warden Payne, Major Nowatzke, and Sergeant Nelson.
these reasons, the court:
(1) GRANTS Alfred W. Comer, Jr., leave to proceed against
Deputy Warden Payne, Major Nowatzke, and Sergeant Nelson for
money damages for subjecting him to humiliating and hazardous
strip searches in the dining hall bathroom in violation of
the Eighth Amendment;
(2) GRANTS Alfred W. Comer, Jr., leave to proceed on a claim
for injunctive relief to prohibit correctional staff from
conducting strip searches in violation of the Eighth
(3) DISMISSES all other claims;
(4) DIRECTS the clerk and the United States Marshals Services
to issue and serve process on Deputy Warden Payne, Major
Nowatzke, and Sergeant Nelson at the Indiana Department of
Correction with a copy of this order and the complaint (ECF
2) as required by 28 U.S.C. § 1915(d); and
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Deputy
Warden Payne, Major Nowatzke, and Sergeant Nelson to respond,
as provided by the Federal Rules of Civil Procedure and N.D.
Ind. L. R. 10.1, only to the claims for which Alfred W.