United States District Court, N.D. Indiana, South Bend Division
DORRIS W. MERRIWEATHER, III, Plaintiff,
PAYNE, et al., Defendants.
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
W. Merriweather, III, a prisoner without a lawyer, filed a
complaint about how and where he was strip searched while
being housed at the Indiana State Prison. A filing by an
unrepresented party “is to be liberally construed, and
a pro se complaint, however in artfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quotation marks and citations omitted). Nevertheless,
pursuant to 28 U.S.C. § 1915A, the court must review the
merits of a prisoner complaint and dismiss it if the action
is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief.
Merriweather alleges that on August 17, 2018, Officer T.
Windmiller strip searched him in a filthy bathroom at the
direction of Deputy Warden Payne, Major Nowatzke and Sgt.
Everett. The floor was covered in urine. During the search,
Merriweather's clothes were placed on a piece of dirty
cardboard on the floor. The door did not lock, and the
restroom was next to the dining hall, where other inmates
were eating. Officer Windmiller told Merriweather that, if he
did not submit to the search, he would be fired from his job
in the P.D.R. He submitted, but while he was naked, an inmate
opened the door. Furthermore, Officer Windmiller wore the
same gloves for his search of Merriweather that he had used
for an earlier strip search of another inmate. Merriweather
feared that he would contract a disease due to the unsanitary
conditions, and he felt humiliated by the experience.
Although Merriweather has described only one encounter, he
alleges that these searches will also occur in this filthy
restroom without a locking door each time he leaves work. He
has sued Deputy Warden Payne, Major Nowatzke, Sgt. Everett,
and Officer T. Windmiller for both monetary damages and
does not take issue with the decision to perform a strip
search but the way it was performed. Even if the strip search
was unjustified, the Fourth Amendment does not apply because
a “prisoner's expectation of privacy always yield
to what must be considered the paramount interest in
institutional security [because] that loss of freedom of
choice and privacy are inherent incidents of
confinement.” Hudson v. Palmer, 468 U.S. 517,
527 (1983) (citations, quotation marks, and brackets
omitted). Nevertheless, “[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
pain.” Id. Merriweather alleges that Officer
Windmiller strip searched him in a filthy, unlocked restroom
where anyone in the dining hall could enter, and that someone
did enter and see him naked. It can be inferred that Officer
Windmiller knew the door was not secured and that someone
could enter at any time. He alleges that the floor was
covered in urine, and it can therefore be inferred that he
was forced to stand in the urine in his bare feet during the
search. And, it can be inferred that the place on the
cardboard where Officer Windmiller placed Merriweather's
clothes during the search was also filthy - perhaps even
covered in urine like the floor. Merriweather does not
describe the way the search itself was performed, but it can
be inferred that Officer Windmiller, who wore gloves used to
strip search another inmate, touched both the other inmate
and Merriweather with those gloves. And, it is reasonable to
infer that a search performed in this manner was designed to
humiliate Merriweather. Giving Merriweather the benefit of
the inferences to which he is entitled at this stage, this
states a claim against Officer Windmiller.
alleges that the search was performed in this particular
restroom at the direction of Deputy Warden Payne, Major
Nowatzke, and Sgt. Everett. A lawsuit against an individual
pursuant to § 1983 requires “personal involvement
in the alleged constitutional deprivation to support a viable
claim.” Palmer v. Marion Cty., 327 F.3d 588,
594 (7th Cir. 2003). None of these individuals directly
participated in the search itself. Merriweather does not
allege that Deputy Warden Payne, Major Nowatzke, or Sgt.
Everett were aware of the condition of the restroom at the
time of the search. He does not allege that they knew that
the door could not be secured, or that they instructed
Officer Windmiller to perform the search without first
securing the door. He does not allege that they instructed
Officer Windmiller to place his clothes on a filthy piece of
cardboard during the search. And, he does not allege that
they instructed Officer Windmiller not to change his gloves
between searches. Merriweather has not alleged facts from
which it can be plausibly inferred that Deputy Warden Payne,
Major Nowatzke, and Sgt. Everett ordered that the search be
performed in the restroom near the dining hall for the
purpose of humiliating him. Accordingly, Merriweather has not
stated a claim against them and they will be dismissed.
provides affidavits from other inmates describing similar
searches. To the extent that these searches might also
violate the Eighth Amendment, such a claim would have to be
raised by the other inmate. Merriweather can represent
himself, but he cannot represent others. See Malone v.
Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Navin v.
Park Ridge Sch. Dist., 270 F.3d 1147, 1149 (7th Cir.
2001); and Nowicki v. Ullsvik, 69 F.3d 1320, 1325
(7th Cir. 1995).
was denied leave to proceed in forma pauerpis in this case.
Accordingly, he is not entitled to have service performed on
his behalf free of charge pursuant to 28 U.S.C. §
1915(d). However, as a courtesy, the United States
Marshal's Service will serve the defendant if
Merriweather pays the costs of service. The United States
Marshal's Service has advised that the cost of serving
Merriweather's complaint, the summons, and this order is
$24.00. If he desires the assistance of the United States
Marshal's Service, Merriweather may mail this sum to
United States Marshal's Service, 204 S. Main Street.,
South Bend, Indiana 46601. Merriweather may also make his own
arrangement for service of process, if he so chooses.
these reasons, the court:
(1) GRANTS Dorris W. Merriweather, III leave to proceed on an
Eighth Amendment claim for compensatory damages against
Officer Windmiller in his individual capacity for conducting
a strip search of Dorris W. Merriweather, III, on August 17,
2018, in a manner designed to humiliate him;
(3) DISMISSES all other claims;
(4) DISMISS Deputy Warden Payne, Major Nowatzke, and Sgt.
(4) DIRECTS Merriweather to either send $24.00 to the United
States Marshal's Service, 204 S. Main Street., South
Bend, Indiana 46601, or to make other arrangements to serve
Officer Windmiller; and
(5) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Officer
Windmiller to respond, as provided for in the Federal Rules
of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the
claim for which the plaintiff has been ...