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Implementing the Prison Rape Elimination Act: Progress in Maryland for Transgender Inmates

Posted on: September 29th, 2015 by Art Leonard No Comments

Stephen T. Moyer, the Secretary of the Maryland Division of Public Safety and Correction Services, has accepted most of the recommendations by Administrative Law Judge Denise Oakes Shaffer, requiring the Division to implement key elements of the Prison Rape Elimination Act, a federal statute whose regulations address important issues concerning appropriate treatment for transgender inmates.  Moyer’s August 17 action, responding to Judge Shaffer’s April 1, 2015, decision on the grievance filed by inmate Neon Brown, has been described in some media accounts as the first legal victory by a transgender inmate under the PREA.

The PREA was enacted with bipartisan support in both houses of Congress in 2003, following hearings and studies documenting the epidemic of sexual assault in the nation’s prisons.  It was intended to establish common-sense policies and procedures to reduce the incidence of such violence.  Congress did not, however, specifically authorize inmates to bring lawsuits to enforce their rights, leaving big questions about how this important legislation would actually affect the experience “on the ground” of prisoners.  Regulations adopted to effectuate the PREA provide that correctional institutions should adopt policies directly addressing the issues raised by transgender inmates in terms of their day-to-day treatment by corrections staff, housing, access to recreational activities, and protection against physical and sexual assault.

Neon Brown’s grievance made clear, however, that the good intentions of PREA cannot be accomplished unless corrections staff are forced to effectuate them.  In this case, corrections staff responsible for making and enforcing policies at Patuxent Institution, where Brown was incarcerated for purposes of a mental health assessment from February 4 through April 11, 2014, professed ignorance about the PREA and the specific regulations concerning transgender inmates.  The institution had no specific policies as required by the regulations, and the staff received no particular training on how to relate to transgender inmates.  For example, in trying to decide how to conduct a strip search of a transgender inmate, Orlando Johnson, the Chief of Security, testified that it was a “make it up as you go” event.

When Brown was delivered to Patuxent on February 4, she was immediately separated from the other inmates and taken to the medical unit.  All incoming inmates are strip-searched for the purpose of detecting and confiscating contraband,  but it was clear from Johnson’s testimony that Brown was strip-searched also to see “if the inmate made the transition from female to male,” which sounds ridiculous because Brown was presented as female.  The strip search was conducted by two corrections officers in the presence of medical unit staff.  A female corrections officer, Sgt. Dawn Halsey, searched the top half of Brown’s body.  Then Brown was allowed to put on a top garment, and a male officer searched the lower half of her body.  There was no formal policy.  This was improvised on the spot, and the corrections officers had no relevant training.

Since Brown had been receiving hormone therapy, she has developed breasts, but she also has male genitals, and Chief Johnson decided to put her into administrative segregation — isolation — having judged that as a transgender inmate she posed a “possible threat to the security of the institution.”  Neither Johnson nor anyone else made an individualized risk assessment of Brown’s vulnerability at that time.  Indeed, before she arrived, advance word came to Patuxent officials that they were receiving a transgender inmate and they determined in advance without any individualized assessment to put her in administration segregation.

Normally a mental health assessment at Patuxent by the psychiatric team takes 30-35 days and the inmate is then returned to a regular correctional institution.  But although the psych team finished their assessment of Brown by February 20, she was kept in Patuxent’s administration segregation unit for another fifty days, and was only given access to recreational facilities once in that entire time.  Patuxent had no formal policy about housing transgender inmates, but made a reflexive, categorical decision to isolate Brown just because of her gender identity.

Brown claimed that she was deprived of showers, but Judge Shaffer found that she actually was allowed to shower.  Unfortunately, however, the showers did not pass without incident, as “on at least one occasion, unidentified correctional officers pulled a curtain back to stare at [Brown] while she showered,” and this was “not done for security purposes.”

Brown testified that throughout the time she was at Patuxent she “was taunted and harassed by Patuxent employees,” particularly Sgt. Halsey, “who repeatedly referred to the Grievant as an ‘it,'” found the judge.  “Sergeant Halsey told the Grievant that she was not a real woman and should kill herself.  These statements left the Grievant feeling belittled and contemplating suicide.”  The judge also found, based on testimony by another inmate in an adjoining cell as well as Brown, that correctional officers would stare into Brown’s cell, “not for the required purpose of determining whether she was alive, but to gawk and ‘giggle’ at her.”  These officers “would threaten the Grievant and call her names,” leaving her in tears at times.  Patuxent had no formal policy “mandating zero tolerance towards sexual abuse or harassment of transgender inmates,” provided no instruction to staff about how to relate to them, and when Brown complained to the chief psychiatrist,  her complaints were not investigated.

When Brown was sent back to a regular corrections facility she was housed in general population.  She pursued several grievances, alleging that the conduct to which she was subjected at Patuxent violated the PREA.   Lawyers for Patuxent from the Attorney General’s office argued that the PREA did not apply and that the Office of Administrative Hearings, to which the grievance was directed, had no authority to “grant relief” for Brown’s grievances.  This, as Judge Shaffer pointed out, misunderstood the administrative process.  Her role was to undertake fact-finding and submit a recommended decision to the Secretary of the Division, who would then have the authority to decide whether to accept her recommendations and implement them.

Judge Shaffer found that the improvised strip-search procedure did not itself violate the PREA, but that aspects of the intake process did.  For one thing, strip searches of new inmates to detect contraband are a fact of life in prisons, but strip searches to determine the physical sex of an inmate are not, and that was not a legitimate reason for subjecting Brown to a search.  Judge Shaffer found that questions about the genital status of an incoming transgender inmate could be addressed through interviewing without the need for a physical examination, and that the facility should adopt a formal policy governing these issues and instruct the staff about them.

Turning to the decision to place Brown in administrative segregation, Judge Shaffer quoted from the regulations, which state that “inmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers.”  The regulation also says that if an assessment can’t be made immediately, the inmate should not be held in involuntary segregated housing for more than 24 hours.  Furthermore, such inmates should not be deprived of access to “programs, privileges, education, and work opportunities to the extent possible,” unless the facility documents, among other things, the reason for any limitations it places on the inmate.  And the regulation says that an assignment to segregated housing while an institution finds a way to separate such an inmate from “likely abusers” should not normally extent more than 30 days.

Clearly, Patuxent violated these regulations.  Brown was sent directly to administrative segregation and held there the entire duration of her stay in Patuxent, more than two months.  She was virtually deprived of recreational activities available to other inmates.  Although she was allowed to make phone calls, her access to showers was limited, and she was subjected to verbal harassment and disrespect from corrections officers, Sgt. Halsey being the best-documented harasser.  The facility had no formal policies concerning transgender inmates, and did not comply with a regulatory requirement to have a PREA coordinator to ensure compliance with the statute.  There was no relevant training of staff, as several corrections officers testified.

Judge Shaffer credited Brown’s testimony.  “The officers, they just treat me like crap,” she said.  “They talk — they call me all types of fags, and how — why do I want to get breasts, what makes me think that I’m a woman.”  “Based on the Grievant’s testimony,” wrote Shaffer, “I am persuaded that this type of disparaging behavior began almost immediately and continued through the Grievant’s stay at Patuxent.” Brown was told that she was “disgusting” and was made to feel like “some type of animal… like I was just less than a human being.”

In addition to finding that the facility was out of compliance with PREA, Shaffer found that Brown’s treatment by the staff was hostile environment sexual harassment.  Although she was not physically abused, she was mentally abused, and although Shaffer found that Brown had not documented her claim for $75,000 damages for mental anguish, she did recommend a payment of $5,000 in damages.  She recommended that the Secretary determine “what, if any, disciplinary action should be taken against Sergeant Halsey,” and recommended that Patuxent adopt comprehensive policies and institute mandatory training.  These policies should include guidance on strip search procedures, housing determinations, and appropriate interaction between correctional officers and transgender inmates.  She also recommended that Brown be awarded “diminution credits” under Maryland’s system of calculating time off for good behavior based on participation in various constructive activities.

The only one of Shaffer’s recommendations that Moyer rejected was the last, since, as he observed, there is a statutory system for awarding diminution credits and it was “entirely speculative” that Brown would have earned the credits at Patuxent, in light of the limited range of activities available in this diagnostic facility.  Otherwise, the recommendations were adopted in full.  Although this case applies only to the Patuxent Institute, one expects that the ruling will ripple throughout the Division, as all Maryland correctional facilities are now on notice of the requirements of the PREA and regulations.

Brown was represented in this process by two attorneys, Rebecca Simpson and Jer Welter.  Judge Shaffer conducted the hearings by teleconference and allowed the parties to submit post-hearing written arguments.  Assistant Attorneys General did not get involved until after the first hearing, when Judge Shaffer granted a motion to provide thirty days for Brown’s attorneys to obtain affidavits from witnesses to support her case.

Publicity for this decision is important because many states have been dragging their feet as to compliance with PREA.  Disciplinary consequences for corrections staff and damage awards to harassed and mistreated inmates may make the PREA appear more concrete to corrections officials.


9th Circuit Revives Transgender Inmate’s Suit for Sex Reassignment Surgery

Posted on: June 29th, 2015 by Art Leonard No Comments

The U.S. Supreme Court’s same-sex marriage decision was not the only case of consequence for LGBT rights decided on June 26, 2015.  On the opposite coast, a three-judge panel of the U.S. Court of Appeals for the 9th Circui, in San Francisco unanimously revived a California inmate’s lawsuit seeking sex reassignment surgery, which had been dismissed at the screening stage by Chief Judge Ralph R. Beistline of the U.S. District Court for the Eastern District of California.  Rosati v. Igbinoso, 2015 WL 3916977.

Philip Walker Rosati (now known, according to the court, as Mia Rosati), is a California prison inmate who identifies as a transgender woman but has not been formally diagnosed with gender dysphoria.  Her attempts to secure appropriate medical treatment have gone for naught, as prison officials have refused even to allow her to be examined by a doctor who is qualified to diagnose gender dysphoria, which would be a prerequisite to receiving such treatment.  According to her allegations, despite knowing about her symptoms (“including repeated efforts at self-castration”) prison officials “recklessly disregarded an excessive risk to her health by denying [sex reassignment surgery] solely on the recommendation of a physician’s assistant with no experience in transgender medicine.”  Furthermore, Rosati alleged and the state acknowledged in response to this appeal, California has never provided such surgery to a state inmate, and as was developed in the recent Norsworthy case before another district court, the state Department of Corrections appears to maintain a blanket policy against providing such surgery for inmates.

Rosati filed her federal complaint pro se (representing herself).  Under the Prison Litigation Reform Act, such claims are subjected to a “screening” process by the federal court and routinely dismissed if the court concludes that the claims are not plausible on their face.  Judge Beistline reached that conclusion and dismissed the case permanently, not even affording Rosati the opportunity to respond with an amended complaint.  She subsequently obtain legal representation from Lambda Legal’s West Coast Office in Los Angeles and the Prison Law Office in Berkeley, who filed this appeal on her behalf.

Federal courts have ruled that prison inmates whose serious medical conditions are met by deliberate indifference from prison officials have a claim under the 8th Amendment, which forbids cruel and unusual punishment.  The rationale is that inmates are totally dependent on prison officials for health care, and that at a minimum prison officials should be required to attend to serious medical conditions with at least adequate treatment.   The battle for transgender inmates has been to establish that gender dysphoria is a serious medical condition and that, depending upon the degree of dysphoria, various medical treatments, including sex reassignment surgery, may qualify as medically necessary.  There is an emerging consensus among most federal courts that have addressed the issue that psychological counseling and hormone therapy, and various modifications of an inmate’s living conditions involving dress and grooming, may qualify as medically necessary, but the courts are still at early stages in accepting the proposition that state prison systems should be required to provide sex reassignment surgery and so far no state inmate has received such surgery as a result of a federal court order.

The 9th Circuit panel found that Judge Beistline erred in screening out and dismissing this complaint.  Quoting a prior 9th Circuit decision, the court said, “A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'”  At the oral argument of this appeal, attorneys from the state conceded that the district judge should have provided Rosati with an opportunity to amend her complaint so reversal was virtually mandated.  But the court went further, stating that “even absent the concession, we conclude that the complaint, although not drafted with the skill and brevity expected of counsel, stated an Eighth Amendment claim upon which relief could be granted.”

In evaluating a complaint, the district court is supposed to determine whether the plaintiff has alleged facts that could plausibly support a legal claim.  In this case, Rosati alleged that she suffered from severe gender dysphoria for which sex reassignment surgery was necessary treatment.  She quoted at length from the Standards of Care that have been published by the World Professional Association for Transgender Health.  “Rosati plausibly alleges that prison officials were aware of her medical history and need for treatment, but denied the surgery because of a blanket policy against SRS,” and the state conceded at the oral argument that “no California prisoner has ever received SRS.”  In the past, the 9th Circuit has ruled that a “blanket, categorical denial of medically indicated surgery” is “the paradigm of deliberate indifference.”

The court also noted Rosati’s allegation that the treatment was denied on the basis of a recommendation from an unqualified physician’s assistant.  “Although Rosati lacks a medical opinion recommending SRS, she plausibly alleges that this is because the state has failed to provide her access to a physician competent to evaluate her.”  This, too, could be construed to be deliberate indifference.

Of course, at this point the court is dealing with Rosati’s factual allegations, not a trial record, and the purpose of this appeal was to get Rosati’s complaint past the screening process so she can obtain access to the court to prove her claim.  Thus, the appeals court was careful to say, “We express no opinion on whether SRS is medically necessary for Rosati or whether prison officials have other legitimate reasons for denying her that treatment.  But, like other courts that have considered similar actions, we hold that the allegations in Rosati’s complaint are sufficient to state a claim.”  The court cited decisions from the 1st, 4th and 7th Circuits to support this conclusion, although in none of those cited cases did a court ultimately order prison officials to provide sex reassignment surgery for an inmate.  The court cited as well the March 31 ruling in Norsworthy v. Beard by another California federal district court judge, who had ordered sex reassignment surgery to be undertaken immediately, only to have the order stayed by the 9th Circuit in response to an emergency motion by the state.  As such, the panel ruling on Rosati’s appeal may foreshadow how another panel of the court may deal with the state’s appeal of the Norsworthy order.

The court also commented, in send the case back to the district court, that the court should also consider Rosati’s claim that the state was violating her right to equal protection of the law guaranteed by the 14th Amendment.  The opinion does not describe any of Rosati’s factual allegations in support of that claim.  As a result of this decision, Rosati should be able to submit a new complaint — this time drafted by her attorney representatives — for a fresh consideration by the district court, bearing in mind the 9th Circuit’s statement that her original pro se complaint was sufficient to state an 8th Amendment claim.

If the 9th Circuit ultimately rules in favor of Kosilek or Norsworthy, the chances are excellent that the state could obtain review from the Supreme Court.  On May 4, 2015, the Supreme Court denied review in Kosilek v. Spencer, in which the full bench of the 1st Circuit rejected a three-judge panel and a trial judge ruling and allowed Massachusetts prison officials to deny sex reassignment surgery to Michelle Kosilek.  A 9th Circuit ruling on the merits in favor of Norsworthy or Rosati could create a split of circuit authority, setting up ideal circumstances for Supreme Court consideration of the issue.  The Supreme Court has never previously ruled on the questions of whether gender dysphoria is a serious medical condition and whether prison officials may be required to provide  for sex reassignment surgery if qualified medical personnel conclude that such treatment is necessary for an inmate.

Mia Rosati is represented on appeal by Jon W. Davidson and Peter C. Renn of Lambda Legal and Alison Hardy of the Prison Law Office.  Mr. Renn argued the appeal in the 9th Circuit.  The World Professional Association filed an amicus brief in support of the appeal, which was written by pro bono attorneys Cori A. Lable, Daniel V. McCaughey, Michael T. Packard and Kevin P. Budris from Ropes & Gray LLP in Boston.