United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT UNITED STATES DISTRICT JUDGE
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).
is a transgender individual 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).
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).
fully considering the allegations in Plaintiff's First
Amended Complaint, the Court concludes that some of the
claims survive review under § 1915A.
First Amended Complaint (Doc. 9)
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).
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 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.
organizes the statement of claim according to the incidents
and actions/omissions involving each Defendant, starting with
Dr. Kruse, the Greenville physician.
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.
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). Plaintiff requested to be given
Finasteride, which was safer and had worked in the past, but
Dr. Kruse refused.
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.
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.
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.
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), which Dr. Kruse ignored.
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).
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.
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).
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.
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).
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,
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.
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.
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,
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.
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).
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).
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).
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.
relief, Plaintiff seeks to have her good conduct time
restored, and requests punitive and actual damages. (Doc. 9,
Review Pursuant to 28 U.S.C. § 1915A
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 ...