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Johnson v. Kruse

United States District Court, S.D. Illinois

September 5, 2017

ANTHONY JOHNSON, # 38654-044, Plaintiff,
v.
DOUGLAS KRUSE, ZELLDA BELL, S. MICKELSON, M. WARREN, JAMES CROSS, OFFICER MILES, J. ASHMORE, S. WHITE, and Mr. S. ALBERT, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT UNITED STATES DISTRICT JUDGE

         This matter is before the Court for a merits review of Plaintiff's First Amended Complaint (Doc. 9), filed May 24, 2017, at the direction of the Court. On May 10, 2017, the Court dismissed the original Complaint for failure to state a claim upon which relief may be granted, and ordered Plaintiff to submit an amended pleading if she wished to further pursue her claims. (Doc. 7).

         Plaintiff is a transgender individual[1] who was incarcerated at the FCI-Greenville when she brought this action for alleged violations of her constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Since bringing this action, Plaintiff was transferred to the FCI-Terre Haute, Indiana, (Doc. 4), and transferred again to the FCI-Beckley in West Virginia, where she indicates she is now housed in protective custody. (Doc. 10).

         Under 28 U.S.C. § 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). This requirement applies equally to amended pleadings filed during the pendency of an action. The Court must dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

         After fully considering the allegations in Plaintiff's First Amended Complaint, the Court concludes that some of the claims survive review under § 1915A.

         The First Amended Complaint (Doc. 9)

         Plaintiff has been diagnosed with gender dysphoria (“GD”) which she characterizes as “severe, ” and requires regular medication including hormone treatment in connection with her transition from male to female. (Doc. 9, pp. 7-8, 13). She has been on hormone therapy since the age of 18. (Doc. 9, p. 13). She has silicone breast implants as well as implants in other parts of her body. (Doc. 9, p. 8).

         Plaintiff has a previously-filed action now pending in this Court, Johnson v. Robinson, et al., Case No. 15-cv-298-JPG-RJD. That case involves allegations that Plaintiff was put at risk of harm by several cell placements, in violation of the Eighth Amendment; and was denied equal protection in her cell assignments, in violation of the Fifth Amendment. The Defendants in that action are Greenville officials Rosalind Robinson and Waleska Lirios. Neither of these individuals is named as a Defendant in the case at bar. Plaintiff refers to Robinson and Lirios[2] several times in the First Amended Complaint, and accuses several Defendants herein of taking adverse actions against her in coordination with Robinson and/or Lirios.

         Plaintiff organizes the statement of claim according to the incidents and actions/omissions involving each Defendant, starting with Dr. Kruse, the Greenville physician.

         Plaintiff arrived at Greenville in July 2012, and went through medical and mental health screening. In mid-August, Plaintiff had a medical visit with Dr. Kruse, in which she explained the prescribed hormone treatment that she had been receiving while in federal custody in Tennessee. (Doc. 9, p. 8). Dr. Kruse interrupted to say that the BOP will not pay for Plaintiff's surgeries. Plaintiff indicated she was not seeking surgery while in prison. Dr. Kruse stated he would have to cut Plaintiff's hormone therapy until he checked with the regional medical doctor. As a result, Plaintiff received no medication until September. Plaintiff sought help from the head psychologist at Greenville (Dr. Hernandez), who contacted Dr. Kruse. In about a week, Plaintiff was put back on her hormones, but was not given her Spironolactone.

         In December 2012, Plaintiff again saw Dr. Kruse, and explained that the Spironolactone was to block the hair growth on her face, to help with breast growth, and to help her implants stay fluid so they would cause less pain. (Doc. 9, p. 8). Dr. Kruse said that the BOP would not make men into women on taxpayers' money. He was taking Plaintiff off the Spironolactone due to high level serum potassium (hyperkalemia).[3] Plaintiff requested to be given Finasteride, which was safer and had worked in the past, but Dr. Kruse refused.

         Plaintiff had multiple bathroom issues because of her medications, including anti-viral drugs that her body was adjusting to. She frequently needed to go in the middle of the night, but was not always able to make it from her top bunk to the toilet in time to avoid having an accident and soiling the lower bunk where another inmate was sleeping. Plaintiff's cellmates had slapped and choked her when this happened. Often when she woke in the night, her lower legs had no feeling, impairing her movement. Plaintiff asked Dr. Kruse for a bottom bunk pass due to these problems, but he refused.

         One night in September 2012, Plaintiff had to get up to use the toilet, but had no feeling in her legs. She jumped down from the top bunk, and when she landed, she damaged the silicone in her left and right hips. This happened on 2 other occasions. As a result, silicone started slipping down her hip and leg area. Plaintiff showed the damage to a physician assistant, who sent Plaintiff to Dr. Kruse. Plaintiff asked Dr. Kruse again for a bottom bunk permit, but he refused. Dr. Kruse gave Plaintiff a prescription for painkillers and told her she “would get use[d] to it.” (Doc. 9, p. 10).

         Dr. Kruse further refused to allow Plaintiff to have hair removal products, forcing Plaintiff to use a razor to shave her face. The hormone treatment softened Plaintiff's skin, and the razor use has caused permanent facial scarring.

         Plaintiff complained to Warden Cross in writing and in person about Dr. Kruse's refusal to address her medical needs, to no avail. Plaintiff notes that the BOP has an established policy regarding medical treatment for transgender inmates (P 6031.04[4]), which Dr. Kruse ignored.

         As a result of Dr. Kruse's deliberate indifference, Plaintiff suffers from muscle spasms, severe mood changes, suicide contemplation, and inability to concentrate, as well as the facial scars. The damaged silicone causes pain, and may need to be surgically removed. (Doc. 9, p. 10).

         Plaintiff brought in person to Warden Cross a number of complaints regarding her cell assignment, assaults on her, and inadequate medical care by Dr. Kruse. (Doc. 9, p. 11). In September 2012, when Plaintiff spoke about these concerns to Cross for about the 5th time, Cross stopped Plaintiff in mid-sentence to say he was a “God-Fearing Man and he will not entertain the transgender bull crap.” (Doc. 9, p. 11). Later, after Plaintiff was moved to the Reentry unit in October 2012, Plaintiff filed for an administrative remedy over actions of her unit manager and counselor. Plaintiff asserts that this angered Warden Cross, and soon after this, officers and counselors targeted Plaintiff with cell searches and rude remarks.

         In March 2014, Warden Cross, along with Unit Manager Robinson and Counselor Lirios, searched Plaintiff's cell as part of a security shakedown of the area. Cross instructed the unit manager and another officer to take all feminine or female items from Plaintiff's cell, including undergarments, bras, and makeup. (Doc. 9 p. 12-13). The loss of these items was traumatic to Plaintiff, and she also claims that she was unfairly singled out for disciplinary action. Torn mattress(es) amounting to hundreds of dollars, and food service items were found in another cell, but no ticket was issued to the occupant(s). Plaintiff lost good time as a result of the disciplinary proceeding. She filed for a remedy with Warden Cross, but he denied it, and Cross “tried to silence” Plaintiff. (Doc. 9, p. 13).

         In October 2012, Plaintiff moved to the Re-entry program, where Zellda Bell was the Reentry Counselor in charge of programming, bed assignment, and other matters. In late November 2012, Bell told Plaintiff that her boss (Unit Manager Robinson) was complaining about Plaintiff's makeup and hair length. Plaintiff told Bell that she is transgender and does not apologize for her situation. Bell said she did not care about “the Transgender Bull-crap” which has no part in the “Christian value system” under which she runs the Re-entry program. (Doc. 9, p. 14). Bell told Plaintiff she was “getting harsh warnings” to deal with Plaintiff's manner of female presentment. Bell personally searched Plaintiff's cell and took all her female items.

         On another occasion, Plaintiff reported to Bell that Plaintiff had been sexually assaulted, to which Bell responded that it was Plaintiff's fault, and told Plaintiff, “welcome to being a female.” (Doc. 9, p. 14). Plaintiff complained about this response to the unit manager and to Warden Cross. When Bell learned of the complaint, she told Plaintiff she hated a snitch and Bell would make it her business to get Plaintiff out of the Re-entry Program. (Doc. 9, p. 15).

         On November 21, 2013, Plaintiff went to Secretary Warren to request indigent supplies of soap and toothpaste, as per procedure. Case Manager Mickelson was present in Warren's office. Bell interrupted Plaintiff's request to yell at her, “What the hell you want?” (Doc. 9, p. 15). Plaintiff told Warren she would be back later; Bell mimicked pushing the panic button and shouted at Plaintiff to “get the hell out.” Id. Ten minutes later, Mickelson sent Plaintiff to see Lt. Spence (of SIS). Plaintiff, in tears, explained the incident to Lt. Spence. Spence informed Bell and the unit manager that Plaintiff was not lying and would not go to the SHU. However, after Spence left for the evening, Bell got a unit manager to sign off on sending Plaintiff to the SHU, and Bell wrote Plaintiff up for insolence. The secretary (Warren) and Mickelson wrote supporting statements for Bell. (Doc. 9, p. 16). Plaintiff lost good conduct time as a result of this incident. (Doc. 9, p. 18).

         When Plaintiff later got out of the SHU, Bell had her housed back on unit H2-A, where Plaintiff had been assaulted before going to the Re-entry unit. Bell also secured the agreement of H2-A Counselor Lirious to take away all of Plaintiff's privileges (phone, e-mail, commissary, and visits). (Doc. 9, p. 16). When Plaintiff asked Bell why she was being penalized, Bell stated that Plaintiff “could suck c**k for soap and toothpaste as far as she cared, ” and she would keep Plaintiff on restriction until her retirement. (Doc. 9, p. 16). Plaintiff claims that Bell caused her “pain, rapes, and suffering.” Id.

         Plaintiff's claim against Case Manager Mickelson is based on the Nov. 21, 2013, incident where Bell wrote an allegedly false disciplinary report on Plaintiff after Bell yelled at Plaintiff in Warren's office. According to Plaintiff, Mickelson “witness[ed] a[n] entire crime” of Bell falsely accusing Plaintiff in order to get her out of the Re-entry program. (Doc. 9, p. 17). Mickelson wrote a supporting statement about the incident, which was used to send Plaintiff to the SHU. Plaintiff reported the alleged false statements to Lt. Spence, and sought an administrative remedy that was denied.

         Similarly, Secretary Warren wrote a statement allegedly supporting Bell's version of the events on November 21, 2013. Plaintiff again characterizes the incident as “a crime” against her, and claims that because no staff member would tell the truth, Plaintiff was sent to the SHU and lost good conduct time. In the course of Plaintiff's attempt to seek an administrative remedy, she was told by Warden Cross that he denied Plaintiff's grievance because of the supporting statements of the staff members. (Doc. 9, p. 18).

         After Plaintiff was released from the SHU and placed back on unit H2-A, Robinson and Lirios instructed Officer J. Ashmore to watch Plaintiff. Plaintiff was told to report to the lieutenant's office, where Lt. Butler told her she was going to P.C. (protective custody). (Doc. 9, p. 19). Plaintiff objected and assured Butler she would stay in her cell. However, Ashmore stopped Plaintiff on the way back to her cell, to say that other inmates had already been moved into the cell. Ashmore sent Plaintiff back to Butler's office, where Butler told Plaintiff that Ashmore had found a knife under the sink in the common area of the cell. Plaintiff tried to explain that Ashmore planted the weapon because gang members wanted the cell. However, Plaintiff was disciplined and lost more good time.

         I.T.S. Supervisor Albert was one of the officers who searched Plaintiff's cell in March 2014, along with Robinson. On orders from Warden Cross, Albert took all Plaintiff's female undergarments and other items, which Plaintiff claims was an attempt to make her have a “meltdown” because of her gender dysphoria. (Doc. 9, p. 20). Albert also issued a disciplinary charge against Plaintiff for having in her locker some of her “medically infused implanted hair” that had fallen out earlier that day due to stress. Plaintiff lost good time as a result of the disciplinary action. After the shakedown, Albert and Robinson laughed at Plaintiff and pointed at her breast implants as she was not wearing a brassiere. Albert (as commissary supervisor) also denied Plaintiff hair removal products, without which Plaintiff's face became scarred from using a razor to shave. Plaintiff claims that these actions were “part of the payback game for notifying the courts.” (Doc. 9, p. 20).

         In August 2014, Plaintiff was in housing unit H3-A. At a time when Plaintiff was eating lunch at a table with a gay inmate, Bell loudly stated that she had a trained pit bull that was coming for Plaintiff. Plaintiff ignored Bell, as plaintiff was trying to stay away from Bell because of their past encounters. Plaintiff had been told that a new officer, S. White, who was close friends with Bell, was being assigned to unit H3-A, and to be careful. (Doc. 9, p. 21).

         In October 2014, White “watched [Plaintiff] very hard.” Id. While Plaintiff was away from the unit picking up her noon medications, White stripped Plaintiff's cell. Plaintiff returned to find her property thrown around, bagged up, and torn up. White took merchandise that inmates use to make pizza out of Plaintiff's cell, and wrote Plaintiff up on charges of stealing, possessing contraband, and other offenses. White also took Plaintiff's sport bra and support undergarments. Plaintiff lost more good time as a result, and her administrative complaint was disregarded by Warden Cross. (Doc. 9, p. 22).

         In January 2016, while Plaintiff was out of her cell for breakfast, Officer Miles took all of Plaintiff's undergarments and threw them in the middle of the inmates' common area. When Plaintiff returned, Miles ordered her to strip so he could take the rest of her undergarments. Plaintiff complied. Miles then stated that Plaintiff “was a homosexual man” and was “nasty.” (Doc. 9, p. 23). Miles trashed all Plaintiff's belongings. Plaintiff sought a state court injunction against Miles without success.

         As relief, Plaintiff seeks to have her good conduct time restored, and requests punitive and actual damages. (Doc. 9, p. 6).

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into the following counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit. Any other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice.

Count 1: Dr. Kruse and Warden Cross were deliberately indifferent to Plaintiff's serious medical/mental health needs, in violation of the Eighth Amendment, by discontinuing Plaintiff's prescription medication, refusing to provide alternative medication, denying a lower-bunk ...

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