# West v. Kind

> District Court, E.D. Wisconsin · June 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10720081

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** June 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10720081

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RUFUS WEST,

Plaintiff,
v. Case No. 17-cv-482-pp

JOHN KIND, WARDEN SCOTT ECKSTEIN,
BRAD HOMPE, CINDY O’DONNELL
and ISAAC BUHLE,

Defendants.
______________________________________________________________________________

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS (DKT. NO. 104), GRANTING IN PART DEFENDANTS’ MOTION
TO DISMISS INJUNCTIVE RELIEF CLAIMS (DKT. NO. 117) AND
DISMISSING CASE
______________________________________________________________________________

The Court of Appeals for the Seventh Circuit remanded this case,
concluding that the plaintiff could proceed on his Fourth Amendment claim
based on allegations that he was subjected to a strip search by a member of
the opposite sex, a female (transgender male) officer. West v Radtke, 48 F.4th
836, 853 (7th Cir. 2022). At screening, this court had not allowed the plaintiff
to proceed on that claim, based on the ruling in King v. McCarty, 781 F.3d 889,
900 (7th Cir. 2015), which held that an incarcerated individual has no Fourth
Amendment privacy interest against visual inspections of his body. See West,
48 F.4th at 852. After this court dismissed the case, the Seventh Circuit
overruled King and held that “the Fourth Amendment protects a right to bodily
privacy for convicted prisoners, albeit in a significantly limited way, including
during visual inspections.” West, 48 F.4th at 852 (quoting Henry v. Hulett, 969
F.3d 769, 774, 779 (7th Cir. 2020) (en banc)). The Court of Appeals remanded
the case and this court recruited counsel for the plaintiff; the defendants then
filed a responsive pleading to the plaintiff’s amended complaint. Dkt. Nos. 80,
81, 88. The defendants have filed a motion for judgment on the pleadings. Dkt.

No. 104. This order grants the defendants’ motion regarding the plaintiff’s
claim for damages under the Fourth Amendment. It also grants the defendants’
motion to dismiss the plaintiff’s claim for injunctive relief as it pertains to his
Fourth Amendment claim.
I. Amended Complaint’s Allegations (Dkt. No. 15)
In the amended complaint, the plaintiff alleges that on July 2, 2016, after
a visit with an outside friend, he went to be strip searched in accordance with
the rule that requires all incarcerated individuals to be strip searched after

contact visits with outside visitors. Dkt. No. 15 at ¶19. When it was his turn, a
“female officer named Buhle” approached to strip search the plaintiff. Id. at
¶20. The plaintiff alleges that he never had been strip searched by a female
over the three-plus decades of his incarceration. Id. at ¶16. The plaintiff asked
Buhle how Buhle was able to strip search him, and Buhle responded, “I’m a
dude.” Id. at ¶20. The plaintiff claims that he panicked and asked the male
officers nearby to strip search him. Id. One of the male officers obliged and

performed the strip search. Id. The plaintiff claims that Officer Buhle “looked
on and observed.” Id. The plaintiff states that he later learned that Buhle “is a
female claiming to be a male and therefore is afforded all of the duties that the
male officers perform without discrimination.” Id. at ¶21.
The plaintiff alleges that after the strip search, he requested an
exemption from cross-sex searches moving forward. Id. at ¶23. Defendant
Eckstein allegedly denied the plaintiff’s request, reasoning that Buhle “is a
male and is qualified to complete these duties.” Id. at ¶24. Eckstein also said,

“If in the future you are directed to submit to a strip search by this individual
or any other male staff member it is my expectation that you will comply.” Id.
Defendant Kind allegedly denied the plaintiff’s request for an exemption and
said, “This person is a male and any further issues will result in discipline for
you.” Id. at ¶25. The plaintiff states that he filed an administrative complaint
about the incident and that in response, defendants Hompe and O’Donnell
approved the strip search and failed to intervene on the plaintiff’s behalf. Id. at
¶¶26-27.

For relief, the plaintiff sought injunctive relief “prohibiting the
Defendants from allowing female staff to strip search him.” Id. at 6. He also
sought $1,000,000 from each defendant. Id.
II. The Defendants’ Motion for Judgment on the Pleadings
(Dkt. No. 104)

A. The Parties’ Arguments
The defendants contend that the court should dismiss the plaintiff’s
Fourth Amendment claim because they are entitled to qualified immunity from
damages and because his request for injunctive relief is moot. Dkt. No. 105 at
4. According to the defendants, the plaintiff cannot show that they violated a
constitutional right that was clearly established at the time of the alleged
violation because the Seventh Circuit did not establish a Fourth Amendment
right to privacy during visual searches for incarcerated individuals until 2020.
Id. at 7.
The plaintiff responds that even if his claim on remand is “a
straightforward fourth amendment claim,” the “law was ‘robust’ enough in

2016 to put officials on notice that [the plaintiff] did have a limited right to
privacy for intrusions of his unclothed body.” Dkt. No. 115 at 4. According to
the plaintiff, as the Henry court noted, every other circuit had recognized a
Fourth Amendment right to privacy for incarcerated individuals in a limited
way, and he asserts that “[t]he right seems relatively robust at least in the
remainder of the geographic regions of the Country outside this Circuit.” Id. at
6. The plaintiff contends that given this authority, his strip search, “which
included an observer who was considered female by [the plaintiff] and his

religion, the Defendants should have understood that they were likely or could
well be infringing on [the plaintiff’s] limited constitutional protection under the
Fourth Amendment.” Id. at 6-7. The plaintiff concludes that the defendants’
qualified immunity defense should not be upheld. Id. at 7. The plaintiff also
argues that his amended complaint contains a constitutional claim for violation
of free exercise and that “it would seem there is still work to be done” on that
claim and on the plaintiff’s failure to intervene claim. Id. The plaintiff states

that the court should address these claims on remand. Id.
B. Legal Standard
A party may move for a judgment on the pleadings after the pleadings are
closed. Federal Rule of Civil Procedure 12(c). Under Rule 12(c), a motion for
judgment on the pleadings is governed by the same standards as a motion to
dismiss for failure to state a claim under Rule 12(b)(6). Adams v. City of
Indianapolis, 742 F.3d 720, 728–29 (7th Cir. 2014). “To survive a motion to
dismiss under Rule 12(b)(6), a complaint must ‘state a claim to relief that is

plausible on its face.’ . . . Factual allegations are accepted as true at the
pleading stage, but ‘allegations in the form of legal conclusions are insufficient
to survive a Rule 12(b)(6) motion.’” Id. at 729 (citations omitted).
As the name “motion for judgment on the pleadings” implies, “Rule 12(c)
permits a judgment based on the pleadings alone.” N. Ind. Gun & Outdoors
Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998) (citations
omitted). “The pleadings include the complaint, the answer, and any written
instruments attached as exhibits.” Id. (citing, e.g., Fed. R. Civ. P. 10(c)). In

considering a motion for judgment on the pleadings, this court may consider
only the plaintiff’s complaint, the defendants’ answer and any documents
either party attached to those to pleadings.
C. Analysis
The defendants have argued that they are entitled to qualified immunity.
Qualified immunity “‘protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”
Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted)).
Qualified immunity is an affirmative defense. To defeat the defendants’
assertion of qualified immunity, the plaintiff must show that 1) the defendants
violated his constitutional right and 2) the right at issue was clearly established
at the time of the violation. Pearson, 555 U.S. at 232. If the plaintiff fails to
satisfy either inquiry, the defendants are entitled to qualified immunity. See

Muhammad v. Pearson, 900 F.3d 898, 904 (7th Cir. 2018) (citing Gibbs v.
Lomas, 755 F.3d 529, 537 (7th Cir. 2014)).
Qualified immunity generally is addressed at summary judgment rather
than on the pleadings. Doe v. Purdue Univ., 928 F.3d 652, 665-66 (7th Cir.
2019), holding modified by Doe v. Samford Univ., 29 F.4th 675 (11th Cir. 2022)
(citing Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (“[A] complaint is
generally not dismissed under Rule 12(b)(6) on qualified immunity grounds.”);
see also Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000) (“[T]he

dismissal of a § 1983 suit under Rule 12(b)(6) is a delicate matter.”)). “There is
no hard-and-fast rule, however, against resolving qualified immunity on the
pleadings.” Doe, 928 F.3d at 665. Where the existence of qualified immunity is
not dependent on factual development, or where it is clear on the face of the
complaint that the constitutional right invoked was not clearly articulated in
the case law, “the existence of qualified immunity is a ‘purely legal question’
that the court can address on a motion to dismiss.” Id. (quoting Jacobs, 215

F.3d at 765 n.3).
Most of the time, the reason for dismissal of a complaint on qualified
immunity grounds is the lack of a clearly established constitutional right. See
Jacobs, 215 F.3d at 765 n.3 (“[A] complaint may be dismissed under Rule
12(b)(6) on qualified immunity grounds where the plaintiff asserts the violation
of a broad constitutional right that had not been articulated at the time the
violation is alleged to have occurred.”); Doe, 928 F.3d at 665 (“That said, the
existence of qualified immunity is not always dependent on factual

development—it is sometimes clear on the face of the complaint that the
constitutional right invoked was not clearly articulated in the case law.”).
“Ultimately, dismissal under Rule 12(b)(6) is appropriate based on qualified
immunity only when the plaintiffs’ well-pleaded allegations, taken as true, do
not ‘state a claim of violation of clearly established law.’” See Hanson v. LeVan,
967 F.3d 584, 590 (7th Cir. 2020) (quoting Behrens v. Pelletier, 516 U.S. 299,
306 (1996)).
To determine whether a right was clearly established, the court asks

whether the contours of the allegedly violated right were, at the time of the
strip search, “sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Hanson v. LeVan, 967
F.3d 584, 596 (7th Cir. 2020) (quoting Kemp v. Liebel, 877 F.3d 346, 351 (7th
Cir. 2017)). The court assumes that the plaintiff’s well-pled allegations are true
and asks whether, when defendant Buhle participated in the strip search of the
plaintiff, Buhle would have understood that the plaintiff’s Fourth Amendment

rights were being violated. Id.
“Qualified immunity is an affirmative defense, but once the defendant
raises it, ‘the burden shifts to the plaintiff to defeat it.’” Taylor v. City of Milford,
10 F.4th 800, 806 (7th Cir. 2021); Sebesta v. Davis, 878 F.3d 226, 233 (7th
Cir. 2017) (“Though it is an affirmative defense for pleading purposes, the
plaintiff carries the burden of showing that defendants are not immune.”);
Abbott v. Sangamon County, 705 F.3d 706, 723 (7th Cir. 2013) (“Once a
defendant raises the defense of qualified immunity, the plaintiff bears the

burden of defeating it.”). A plaintiff has the burden to defeat qualified immunity
“either by identifying a closely analogous case or by persuading the court that
the conduct is so egregious and unreasonable that, notwithstanding the lack of
an analogous decision, no reasonable officer could have thought he was acting
lawfully.” Abbott, 705 F.3d at 723–24. To satisfy the standard, “existing
precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Clearly established law
“must be ‘particularized’ to the facts of the case.” White v. Pauly, 580 U.S. 73,

79 (2017). The “dispositive question is ‘whether the violative nature of
particular conduct is clearly established.’” See Mullenix v. Luna, 577 U.S. 7, 12
(2015).
As an initial matter, the court rejects the plaintiff’s argument that it
should consider on remand claims other than his Fourth Amendment claim.
The court of appeals did not remand the plaintiff’s First Amendment free
exercise claim or a failure to intervene claim. The plaintiff’s contention that this

court should consider those claims is not supported by the record or legal
authority.
Regarding the plaintiff’s Fourth Amendment claim, in 2016 incarcerated
individuals in the Seventh Circuit did not have a Fourth Amendment privacy
interest against visual inspections of their bodies. See King v. McCarty, 781
F.3d 889, 900 (7th Cir. 2015). The opinion in King holds that claims brought
by incarcerated individuals for visual searches fail to state a claim upon which
relief could be granted. See id. (“King has not alleged any intrusion into his

body . . ., so even if we assume such treatment of a convicted prisoner is
subject to the Fourth Amendment, he has failed to state a viable claim.”). The
plaintiff cannot meet his burden of showing that at the time of his search in
2016, it was clearly established that Buhle’s observation of the plaintiff’s strip
search violated the plaintiff’s Fourth Amendment rights. The law changed in
2020 with Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (“[The Fourth
Amendment protects a right to bodily privacy for convicted prisoners, albeit in
a significantly limited way, including during visual inspections.”). But Henry

post-dates the plaintiff’s strip search, so it is not relevant to the court’s
qualified immunity analysis. The defendants are entitled to qualified immunity
on the plaintiff’s Fourth Amendment claim for damages.
That leaves the plaintiff’s claim for injunctive relief on his Fourth
Amendment claim. In the amended complaint, the plaintiff sought injunctive
relief prohibiting the defendants from allowing female staff to strip search him.
In their motion for judgment on the pleadings, the defendants contend that this

claim is moot because, in a separate order, the court has ordered injunctive
relief on the plaintiff’s Religious Land Use and Institutionalized Persons Act
(RLUIPA) claim. Dkt. No. 105 at 9-11. The court recently has learned that the
plaintiff has been released from prison. In West v. Kind, Case No. 23-3075,
2024 WL 2271843, at *3 (7th Cir. May 20, 2024), the court of appeals ordered
that the plaintiff's RLUIPA claim for injunctive relief was moot because he was
released from prison in January 2024. Id. (citing Grayson v. Schuler, 666 F.3d
450, 451 (7th Cir. 2012)). Because the plaintiff has been released from prison,
his request for injunctive relief is moot.!
III. Conclusion
The court GRANTS the defendants’ motion for judgment on the pleadings
related to the plaintiff's request for damages on his Fourth Amendment claim.
Dkt. No. 104.
The court GRANTS IN PART the defendants’ motion to dismiss
injunctive relief claims, as it relates to the plaintiffs Fourth Amendment claim
for injunctive relief. Dkt. No. 117.
The court ORDERS that this case is DISMISSED. The clerk will enter
judgment accordingly.
Dated in Milwaukee, Wisconsin this 12th day of June, 2024.
BY THE COURT:

HON. PAMELA PEPPER
Chief United States District Judge

1 On May 31, 2024, the defendants filed a motion to dismiss the plaintiffs
claims for injunctive relief as moot because he has been released from prison.
Dkt. No. 127. The court will grant the defendants’ motion as it relates to the
plaintiffs Fourth Amendment claim. The defendants’ motion also refers to the
plaintiffs request for injunctive relief related to his RLUIPA claim, but as noted,
the court addressed that request in a separate order.
10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10720081. Public record. Not legal advice.