Maus v. Lade

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

BRIAN A. MAUS,

Plaintiff,

Case No. 17-cv-65-pp

v.

MARK LESATZ,

and ROBERT LADE,

Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT (DKT. NO. 33), DENYING

PLAINTIFF’S MOTION TO STRIKE PARTS OF DEFENDANTS’

DECLARATIONS (DKT. NO. 59) AND DENYING PLAINTIFF’S MOTION TO

AMEND HIS COMPLAINT (DKT. NO. 60)

The plaintiff, who is representing himself, filed this lawsuit under 42

U.S.C. §1983. He alleges that defendant Robert Lade improperly pat-searched

him six times between May and August 2011, and that defendant Mark Lesatz

turned a blind eye to those improper searches. Dkt. Nos. 9, 13. He also alleges

that the defendants retaliated against him after he filed inmate complaints

about the improper pat searches. Id. On March 22, 2019, the defendants

moved for summary judgment. Dkt. No. 33. The court will deny in part and

grant in part the defendants’ motion.

I. RELEVANT FACTS

During the time of the events described in the complaint, the plaintiff

was an inmate at Green Bay Correctional Institution. Dkt. No. 58 at ¶1.

Defendant Robert Lade was a correctional officer who worked in the rotunda,

through which inmates pass when traveling between their housing unit and

most activities in the institution, including meals, doctor appointments and

school. Id. at ¶ 2. Defendant Mark Lesatz was a captain at Green Bay. Id. at ¶3.

As a rotunda officer, Lade conducted pat searches on inmates passing

through the rotunda as a way of detecting contraband that inmates may be

concealing and transporting.1 Id. at ¶12. Contraband includes stolen property,

weapons and drugs and poses a threat to institution staff and to inmates. Dkt.

No. 35 at ¶¶5-6. (The plaintiff asserts that not all contraband poses a risk, and

that he has never been caught in possession of weapons or drugs. Dkt. No. 48

at ¶6.) The defendants explain that inmate searches are critical to the security

of the institution—they allow staff to identify and confiscate contraband, and to

identify evidence of assault or injury to inmates. Dkt. No. 35 at ¶4. The

defendants say that the security director at Green Bay expects each

correctional officer to conduct a minimum of six pat searches per shift. Id. at

¶10. The inmate handbook informs inmates that “[p]ersonal (pat-down)

searches may be made of any inmate at any time, in any location.” Id. at ¶11.

1 The defendants—Lade, particularly—say that passing through the rotunda is

“when and where contraband that inmates are looking to pass could be

concealed and transported.” Dkt. No. 35 at ¶12. The plaintiff says inmates

could conceal and transport contraband anywhere, any time. Dkt. No. 58 at

¶12.

A. Pat Search Policies at Green Bay

According to the defendants, if a group of fewer than ten inmates was

passing through the rotunda, all inmates in the group were searched.2 Id. at

¶13. The defendants say that during mass movements (such as at mealtime,

school and recreation), officers in the rotunda would pick a number between

seven and fifteen, and inmates would be selected for pat searches at that

interval. Id. at ¶14. For example, if officers picked seven, every seventh inmate

would be pat searched. Id. Officers also would pat search inmates who figured

out the search pattern and appeared to be evading a pat search by changing

their position in line. Id. at ¶15. Finally, officers searched all kitchen workers

going to and from work to stop them from passing items during meals or

stealing items from the kitchen. Id. at ¶16.

During rotunda searches, at least two officers are present, which allows

for more efficient searches of a large number of inmates; a supervisor also is

present to act as a witness for both the inmate and the officer conducting the

search. Id. at ¶18. Each time a pat search is performed, it is recorded on the

Green Bay Pat Search Report. Id. at ¶19. The report generally includes the date

and time of the search, the inmate’s name and number, whether the metal

detector was used, whether the officer found contraband, and the initials of the

officers present during the search (it does not necessarily indicate which officer

performed the search). Id. at ¶¶19, 21.

2 The plaintiff asserts that he has seen anywhere from one to fifty inmates

stopped at a time and searched. Dkt. No. 58 at ¶13.

There are a few exceptions regarding the information recorded about each

search. For example, a group of workers going to the kitchen would be listed as

“kitchen” with the number of inmates searched, rather than each inmate’s

name and inmate number. Id. at ¶19. The report does not explain why an

inmate was searched—it could be because he was part of a group of fewer than

ten, because he was randomly selected during mass movement or because he

appeared to be evading search during mass movement. Id. at ¶20.

To perform a pat search, the trained officer first speaks to an inmate and

checks his mouth. Id. at ¶22. The officer then performs the rest of the pat

search from behind the inmate. Id. The officer directs the inmate to stand with

his arms extended, fingers separated and feet twelve to eighteen inches apart.

Id. The officer visually assesses the inmate’s hair and ears. Id. at ¶23. Then,

with both hands, the officer checks the collar of a collared shirt or the top of

the shoulders. Id. With palms down, the officer moves across the top of the

extended arms to the end of the clothing. Id. Then, with the backs of his hands,

the officer searches the underside of the arms from the end of the clothing to

the armpits. Id. With palms facing the inmate’s body, the officer searches down

the inmate’s sides to the beltline. Id.

The officer next checks the inmate’s chest with the thumb/wrist area of a

bladed hand. Id. at ¶24. A bladed hand is used so the officer is unable to grab

or touch the inmate inappropriately while looking for contraband. Id. The

officer then checks the inmate’s back with the back of his hands (fingertips

pointing toward each other), from the shoulders to the waistline. Id.

The officer then tells the inmate he will check his waistband. Id. at ¶25.

To do that, the officer (who is still behind the inmate) runs the waistband

between his thumb and forefinger from the front to the back, pulling the

waistband slightly away from the inmate’s body so that the officer is not

touching the inmate and so that any contraband can fall out of the waistband.

Id.

The search then proceeds to the inmate’s legs. Id. at ¶26. Depending on

what the inmate is wearing, the officer either pats or slides his hands down

each leg using both hands at the same time, beginning well up in the groin,

continuing down to the ankle and finishing by checking the cuffs and socks. Id.

at ¶26. While checking the legs, the officer touches the inmate only with his

thumb and forefinger, with his palms facing down. Id. According to the

defendants, any contact with the groin area is incidental to the search and is

done to make sure there is no concealed contraband. Id. at ¶27. The

defendants assert that a proper pat search takes less than a minute. Id. at ¶29.

B. Lade’s Pat Searches of the Plaintiff

The defendants state that the plaintiff passed through the rotunda

“several times a day every day and he was only searched seven times in three

months.” Id. at ¶36. They allege, and the plaintiff does not dispute, that

between January 1, 2011 and June 30, 2012, the plaintiff was singled out for

pat searches in the rotunda nineteen times; they say that Lade was present for,

or conducted, the searches nine of those nineteen times. Id. at ¶31. Lade

asserts that the searches he performed were done pursuant to policy and for

the security of the institution; he states that the searches were not performed

to harass the plaintiff. Dkt. No. 35 at ¶¶39, 42, 43, 58, 66, 74, 78, 81.

The plaintiff asserts that Lade “grabbed, touched and felt all on the

plaintiff’s pen[is], groin and nuts” during six of those searches: on May 27, May

28, May 29, June 14, August 2 and August 25, 2011.3 Id. at ¶32; Dkt. No. 64

at ¶¶5, 7, 9, 11, 13, 14. The plaintiff states that “[a]ll the time [he] has been

imprisoned and have went [sic] through hundreds of pat searches [he has]

never had a staff member go deep into [his] groin area or grab, feel or touch on

[his] pen[is], groin or nuts.” Dkt. No. 64 at ¶19. Contact with the plaintiff’s

groin was over his clothes and lasted four to seven seconds. Dkt. No. 58 at ¶33.

Lade did not say anything inappropriate to the plaintiff during the searches. Id.

at ¶34.

Lesatz was not present for Lade’s searches of the plaintiff on May 29,

June 14, July 27, August 2 or August 25. Dkt. Nos. 35, 58 at ¶¶48, 59 and

71. The only pat search performed by Lade of the plaintiff for which Lesatz was

present was the search on May 28, 2011. Dkt. No. 35 at ¶44. Lesatz asserts

that he did not actually witness the pat search. Dkt. No. 35 at ¶45. He states

3 In his complaint, the plaintiff alleged that the two August searches occurred

on August 12 and 20. The plaintiff explains that was an error; the correct dates

are August 2 and 25. Dkt. No. 58 at ¶32. The plaintiff filed a motion to amend

his amended complaint to reflect the correct dates. Dkt. No. 60. The court will

deny that motion as unnecessary. The purpose of a complaint is to put the

defendants on notice of the claims against them. Development of the record

has revealed that some of the details in the plaintiff’s complaint were

inaccurate, but because those details were not material to the court’s

determination that the plaintiff stated a claim and because the defendants

address the searches on these dates in their motion, it is unnecessary for the

plaintiff to amend his amended complaint to correct the dates.

that after Lade completed his search, the plaintiff turned around and told

Lesatz that the searches were “a game of harassment.” Id. at ¶44. Lesatz says

he told the plaintiff that he had the right to file an inmate complaint if he

believed his rights were being violated. Id.

The plaintiff remembers this interaction differently. He asserts that he

told Lesatz that Lade had “just grabbed, felt and touched on [his] pen[is], groin

and nuts.” Dkt. No. 58 at ¶44. According to the plaintiff, Lesatz “made the

smart remark to [the plaintiff] that he shouldn’t of came [sic] to prison.” Id. The

plaintiff asserts that the plaintiff told Lesatz that he was going to file a lawsuit

if Lade kept sexually assaulting him during pat searches. Id. at ¶53. The

plaintiff says that Lesatz told him “that he [would] make sure the plaintiff is pat

searched every time he comes out of his cell.” Dkt. No. 64 at ¶8.

C. The Plaintiff’s Complaints about the Pat Searches

On May 31, 2011, the plaintiff filed an inmate complaint about the pat

searches performed on May 27, 28 and 29, 2011. Dkt. No. 35 at ¶49; Dkt. No.

39-3 at 10-12. The plaintiff did not describe any inappropriate touching or

sexual conduct by Lade (or any other officer). Dkt. No. 35 at ¶50. The

defendants assert that the plaintiff stated that pat searches were illegal and

done to harass the plaintiff “for writing to Scott Walker.” Id. In fact, the

complaint itself shows that the plaintiff stated that there was a conspiracy to

harass him, and he threatened to file a lawsuit and write to Scott Walker, not

that he claimed the harassment was because he’d written to Scott Walker. Dkt.

No. 39-3 at 12. The complaint also alleged that in response to the plaintiff

telling Lesatz the plaintiff would be filing a lawsuit, Lesatz told the plaintiff that

he’d make sure the plaintiff was pat searched every night. Id. at ¶54.

Lade was not mentioned in the inmate complaint, and he asserts that no

one contacted him about the complaint. Id. at ¶51. The inmate complaint

examiner, however, contacted Lesatz as part of the investigation into the

complaint’s allegations. Id. at ¶52. Lesatz asserts that he described the

exchange between him and the plaintiff, reporting that the plaintiff complained

about being pat searched and stated that he might file a lawsuit. Id. at ¶53.

Lesatz said he told the plaintiff that the plaintiff could file a lawsuit but it

wouldn’t stop them from searching inmates for security reasons. Id. at ¶53.

Lade asserts that he never directed or instructed any officer to single out the

plaintiff for pat searches, and that the pat search report reflects that the

plaintiff was only periodically singled out for a pat search. Id. at ¶55. See also

Dkt. No. 37-2 (rotunda pat search report).

The plaintiff filed a second inmate complaint about the pat search Lade

performed on June 14, 2011. Id. at ¶60; Dkt. No. 39-4. The defendants assert

that in this second complaint, the plaintiff claimed that Lade had illegally pat

searched him to harass him for writing to Scott Walker about the misconduct

at the institution. Dkt. No. 35 at ¶ 60. The plaintiff also alleged that he believed

this was sexual misconduct. Id. Lade and Lesatz state that neither of them was

contacted about this inmate complaint. Id. at ¶61.

The plaintiff filed a third inmate complaint on August 3, 2011, alleging

that Lade had inappropriately touched him during searches on July 27 and

August 2, 2011. Id. at ¶67; Dkt. No. 39-5 at 12. The complaint triggered a

Prison Rape Elimination Act (PREA) investigation. Dkt. No. 35 at ¶68. On

August 8, 2011, investigators interviewed Lade as part of their investigation. Id.

Lade asserts that this was the first time he learned that the plaintiff had filed

an inmate complaint about him. Id. at ¶69. Lesatz was not contacted about

this inmate complaint or interviewed as part of the PREA investigation. Id. at

¶72.

II. DISCUSSION

A. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.

2011). “Material facts” are those under the applicable substantive law that

“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute

over a “material fact” is “genuine” if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.

A party asserting that a fact cannot be disputed or is genuinely disputed

must support the assertion by:

(A) citing to particular parts of materials in the record,

including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to

testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

B. The Court’s Analysis

As a preliminary matter, the court will deny the plaintiff’s motion to

strike parts of the defendants’ declarations. Dkt. No. 59. The plaintiff disagrees

with some of the assertions in the declarations. Id. He has a right to disagree,

but that is not a basis for the court to strike the declarations. Instead, a party

who doesn’t agree with assertions in a declaration may present his own

evidence to contradict or disprove the assertions. The court will treat the

plaintiff’s motion as a response to the defendants’ declarations.

To prevail on a claim that a pat search violated the Eighth Amendment, a

plaintiff must show that the search was “maliciously motivated, unrelated to

institutional security, and hence totally without penological justification.”

Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004) (internal quotation marks

and citations omitted). “In other words, the search must amount to calculated

harassment unrelated to prison needs, with the intent to humiliate and inflict

psychological pain.” Id. (internal quotation marks and citations omitted).

Lade asserts that his pat searches of the plaintiff were consistent with

the institution’s policy and training. He explains that, during the search of an

inmate’s leg, he would touch the inmate only with his thumb and finger, palms

facing down, meaning any contact with an inmate’s groin would be with the

backs of his hands. While a pat search of the leg begins in the groin area, Lade

asserts that any contact with the groin is merely incidental.

This isn’t consistent with how the plaintiff describes the six searches

about which he complains. The plaintiff says that he has been pat searched

hundreds of times during his incarceration and that these six pat searches

were different than others he has experienced. He asserts that Lade grabbed or

felt his genitals, implying contact was not limited to the backs of Lade’s hands.

He also states that Lade’s contact with his genitals lasted four to seven

seconds, which a jury could reasonably conclude is more than “incidental”

contact.

The plaintiff argues, and the court agrees, that it is not relevant that the

touching occurred over the plaintiff’s clothes, or that Lade did not make any

inappropriate comments. If ensuring institutional security did not require Lade

to “grab, touch and [feel] all on the plaintiff’s pen[is], groin and nuts” (and Lade

does not assert that it did), a jury who believed the plaintiff’s description of the

pat searches could reasonably conclude that Lade performed the searches with

the intent to humiliate or inflict psychological pain on the plaintiff. Given the

parties’ dispute over the extent and nature of Lade’s pat searches of the

plaintiff, Lade is not entitled to summary judgment on this claim.

Nor is Lade entitled to qualified immunity. The defendants argue that the

plaintiff had to show that it was “beyond debate” to someone in Lade’s position

that he would violate the plaintiff’s rights “by conducting pat searches on him,

pursuant to policy.” Dkt. No. 34 at 25. They argue that the plaintiff can’t make

such a showing. But Lade’s argument mischaracterizes the plaintiff’s claim.

The plaintiff’s claim is premised on his assertions that Lade did not pat search

him pursuant to policy and that Lade sexually assaulted him by grabbing and

touching his genitals while pat searching him. As discussed above, the

plaintiff’s right to be free from the misconduct he describes has long been

clearly established. See Dist. of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018)

(explaining that officers are not entitled to qualified immunity if the

unlawfulness of their conduct was clearly established at the time).

Lesatz, however, is entitled to summary judgment on the plaintiff’s claim

that he did not stop Lade from improperly pat searching the plaintiff. The only

time a supervisor will be held liable for a subordinate’s misconduct is if the

supervisor directs or consents to the misconduct. For example, the supervisor

“must know about the conduct and facilitate it, approve it, condone it, or turn

a blind eye” for fear of what they might see. Id. (quoting Jones v. City of Chi.,

856 F.2d 985, 992 (7th Cir.1988)). “[S]upervisors who are merely negligent in

failing to detect and prevent subordinates’ misconduct are not liable.” Jones,

856 F.2d at 992.

The parties agree that Lesatz was present during only one of the six

problematic pat searches. During that pat search, Lade was standing between

Lesatz and the plaintiff, and the plaintiff was facing away from both

defendants. Lesatz asserts that he did not actually see Lade pat search the

plaintiff. The plaintiff has offered no evidence to rebut this assertion. Because

the plaintiff had his back to Lade and Lesatz, he has no first-hand knowledge

about what Lesatz was looking at during the pat search. The fact that Lesatz

was present in the rotunda to observe pat searches does not prove that he

closely watched every aspect of every pat search that an officer performed.

Because Lesatz did not watch Lade search the plaintiff, he could not have

known that Lade was allegedly touching the plaintiff’s groin in an improper

manner. And the plaintiff concedes that he didn’t tell Lesatz that Lade had

improperly pat searched him until after Lade was done with the search. Lesatz

cannot be liable for failing to stop misconduct he did not know about until after

the misconduct happened.

As to the other five searches, the plaintiff offers no evidence from which a

jury could conclude that Lesatz knew Lade was continuing to improperly pat

search the plaintiff. An inmate complaint examiner contacted Lesatz about the

plaintiff’s May 31, 2011 inmate complaint, but the plaintiff did not make

allegations of sexual harassment in that complaint. He complained only about

Lesatz’s alleged threat to search the plaintiff every time he left his cell. The

plaintiff does not assert that after that initial search he ever talked to Lesatz

about Lade improperly searching him. There is no evidence to support a

conclusion that Lesatz knew that Lade’s alleged misconduct was a continuing

problem rather than a one-time event. Again, Lesatz cannot be liable for failing

to address misconduct that he did not know about. He is entitled to summary

judgment on this claim.

Finally, the defendants are entitled to summary judgment on the

plaintiff’s retaliation claim. “To prevail on his First Amendment retaliation

claim, [the plaintiff] must show that (1) he engaged in activity protected by the

First Amendment; (2) he suffered a deprivation that would likely deter First

Amendment activity in the future; and (3) the First Amendment activity was at

least a motivating factor in the [d]efendants’ decision to take the retaliatory

action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (internal quotation

marks and citations omitted). The court finds that the plaintiff’s statements

that Lade improperly pat searched him are sufficient for a jury to conclude that

he suffered a deprivation that would likely deter First Amendment activity in

the future.4 Accordingly, the court’s analysis will focus on prongs one and three

of the standard.

The plaintiff asserts that he engaged in activity protected by the First

Amendment when he told Lade on May 27, 2011, and Lade and Lesatz on May

28, 2011, that he was going to file an inmate complaint about the searches.

Dkt. No. 64 at ¶¶6, 7. The Seventh Circuit has stated that “it seems

implausible that a threat to file a grievance would itself constitute a First

Amendment-protected grievance.” Bridges v. Gilbert, 557 F.3d 541, 554 (7th

Cir. 2009) (emphasis in original); see Jackson v. Dix, No. 16-cv-1394-pp, 2018

WL 1370260 at *6 (E.D. Wis. Mar. 16, 2018) (acknowledging that, “[a]t this

4 The defendants argue that being pat searched, even excessively, is not a

deprivation that would deter First Amendment activity, but the plaintiff does

not assert only that he was pat searched; the plaintiff asserts that Lade

sexually assaulted him during pat searches.

point, the Seventh Circuit has not specifically found that threatening to file a

grievance is activity protected by the First Amendment.”) While it is well settled

that filing an inmate complaint is protected activity, the plaintiff did not

actually file an inmate complaint about the pat searches until May 31, 2011.

Dkt. No. 58 at ¶49.

As to Lesatz, the plaintiff asserts that Lesatz and Lade agreed that Lade

would improperly search the plaintiff on May 28 because the plaintiff had told

Lade the day before that he was going to file an inmate complaint. Lesatz

denies this; he asserts that he never instructed anyone to target the plaintiff for

a pat search. Dkt. No. 36 at ¶16. The plaintiff points to a PREA investigation

summary to dispute Lesatz’s assertion. In the summary, the investigator

states, “Lesatz told Lade to pat search [the plaintiff] whenever he comes

through the Rotunda, because in prison pat searches are done on a regular

basis.” Dkt. No. 39-2 at 4. It appears the plaintiff may misunderstand this

statement. The investigator appears to be paraphrasing the plaintiff’s

assertions about what he says Lesatz told Lade rather than paraphrasing what

Lade said Lesatz told him. In any event, the investigator’s notes about what

Lesatz said are hearsay, and therefore, are insufficient to overcome a motion

for summary judgment. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.

2009).

Lesatz says he learned of the plaintiff’s complaints about Lade’s search

after Lade was done searching the plaintiff, when the plaintiff told Lesatz and

threatened to file an inmate complaint. The parties agree that Lesatz was not

present for any of the allegedly improper searches after May 28, and the

plaintiff has provided no admissible evidence to rebut Lesatz’s assertion that he

never directed anyone to target the plaintiff for pat searches. Further, and more

to the point, the plaintiff has offered no evidence to support a conclusion that

officers targeted the plaintiff as he says Lesatz threatened. The plaintiff passed

through the rotunda several times per day, yet over the course of months,

officers searched him only a handful of times. Accordingly, no jury could

reasonably conclude from the evidence that Lesatz had any involvement in

directing Lade or any other officer to search the plaintiff in retaliation for filing

inmate complaints. While the plaintiff’s allegation that Lesatz directed Lade to

search the plaintiff was sufficient to state a claim at the screening stage, mere

allegations are not sufficient to survive summary judgment. The plaintiff must

produce evidence to create a question of fact about whether Lesatz was

personally involved in the searches, and he hasn’t presented any. Lesatz is

entitled to summary judgment on this claim.

As to Lade, no jury could reasonably conclude that the plaintiff’s threats

to file an inmate complaint were what motivated Lade to continue improperly

pat searching the plaintiff. The plaintiff concedes that the first improper pat

search occurred before the plaintiff made any reference to filing an inmate

complaint. And, after the plaintiff told Lade that he was going to file an inmate

complaint, the plaintiff says Lade responded that “he doesn’t give a fuck” and

that the improper searches weren’t going to stop. Dkt. No. 64 at ¶9; Dkt. No. 57

at 3; Dkt. No. 9 at ¶3. The plaintiff’s own evidence shows that Lade began the

improper searches before the plaintiff threatened to file an inmate complaint

and that he was not affected by the plaintiff’s threat to file the complaint.

The only reasonable conclusion a jury could draw is that Lade persisted

in improperly pat searching the plaintiff in spite of the plaintiff’s threats to file

an inmate complaint, not because of the plaintiff’s threats to file an inmate

complaint. Because the plaintiff has presented no evidence from which a jury

could conclude that the plaintiff’s threat to file an inmate complaint was the

reason why Lade continued to improperly search the plaintiff, Lade is entitled

to summary judgment on the plaintiff’s retaliation claim.5 See Nieves v.

Bartlett, ___ U.S. ___, 139 S. Ct. 1715, 1722 (2019) (“It is not enough to show

that an official acted with a retaliatory motive and that the plaintiff was

injured—the motive must cause the injury. Specifically, it must be a but-for

cause, meaning that the adverse action against the plaintiff would not have

been taken absent the retaliatory motive.”)

III. CONCLUSION

The court GRANTS the defendants’ motion for summary judgment as to

Lesatz on the plaintiff’s First and Eighth Amendment claims. Dkt. No. 33.

The court ORDERS that defendant Lesatz is DISMISSED.

5 As noted, the Seventh Circuit has not determined whether threatening to file

an inmate complaint is activity protected by the First Amendment. In reaching

its decision that the defendants are entitled to summary judgment, the court

means only to acknowledge that, even if threats to file an inmate complaint are

protected activity, the plaintiff’s retaliation claim fails. The court is not deciding

that threatening to file an inmate complaint is protected activity.

The court GRANTS the defendants’ motion for summary judgment as to

Lade on the plaintiffs First Amendment claim. Dkt. No. 33.

The court DENIES the defendant’s motion for summary judgment as to

the plaintiffs Eighth Amendment claim against Lade. Dkt. No. 33.

The court DENIES the plaintiff's motion to strike parts of the defendants’

declarations. Dkt. No. 59.

The court DENIES as unnecessary the plaintiffs motion to amend his

complaint. Dkt. No. 60.

The court will attempt to recruit a lawyer to represent the plaintiff on his

surviving claim against Lade. The plaintiff need do nothing more at this time.

The court will notify the plaintiff once it finds a volunteer lawyer willing to

represent him.

Dated in Milwaukee, Wisconsin this 10th day of March, 2020.

BY THE COURT:

Chief United States District Judge

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