Renee v. Neal

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANASTAISA RENEE also known as

ELMER D. CHARLES, JR.,

Plaintiff,

v. CAUSE NO.: 3:18-CV-592-RLM-MGG

RON NEAL, et al.,

Defendants.

OPINION AND ORDER

Anastaisa Renee, also known as Elmer D. Charles, Jr., a prisoner without

a lawyer, brings this action under 42 U.S.C. § 1983. Ms. Renee was born a male

but identifies as a female.1 She is proceeding on First and Eighth Amendments

claims against Ron Neal, the Warden of Indiana State Prison and Robert Carter,

Jr., the Commissioner of the Indiana Department of Correction. The court

granted her leave to proceed on three claims: (1) a claim against both defendants

for subjecting her to unduly harassing strip searches in violation of the Eighth

Amendment; (2) a claim against both defendants for violating her First

Amendment right to free expression by refusing to let her purchase makeup and

other commissary items that are available at women’s correctional facilities; and

(3) a claim against both defendants for refusing to approve her for gender

1 Ms. Renee attests that she was granted a gender marker change in state court in

September 2019, after this lawsuit was filed. (ECF 80 at 2.) Out of respect, the court uses her

preferred female name and female pronouns throughout this opinion.

reassignment surgery in violation of the Eighth Amendment. She seeks monetary

damages and injunctive relief.

The defendants now move for partial summary judgment in their favor.2

(ECF 72.) Commissioner Carter moves for summary judgment on Ms. Renee’s

strip search claim against him for monetary damages, arguing that he wasn’t

personally involved in the events underlying that claim. Both defendants move

for summary judgment on Ms. Renee’s First Amendment claim related to the

commissary items and her Eighth Amendment claim related to her need for

gender reassignment surgery. They argue that Commissioner Carter wasn’t

personally involved in the events underlying these claims and, even if he was,

both defendants are entitled to qualified immunity on these claims. (Id. at 6-11.)

Ms. Renee filed a response and supporting documents in opposition to

summary judgment.3 The defendants filed a reply, and Ms. Renee filed a sur-

reply. The defendants separately moved to strike two affidavits Ms. Renee

submitted in opposition to summary judgment. These matters are now ripe for

adjudication.

Before turning to the facts, the court addresses the motion to strike. Ms.

Renee submitted two affidavits in opposition to summary judgment: a form

2 The defendants served Ms. Renee with the notice required by N.D. Ind. L.R. 56-l(f).

3 The defendants read certain statements in Ms. Renee’s response as indicating that she

is improperly moving for summary judgment in her favor without complying with court-

imposed deadlines, the Federal Rules of Civil Procedure, or the Local Rules of this court. (ECF

82.) As this court reads her filing, she is asking for a ruling in her favor on Defendants’ motion

for summary judgment—in other words, that the motion be denied. She clarifies in her sur-

reply that this is what she intended.

affidavit included in her “Designation of Evidence,” and a separately filed,

handwritten affidavit. The defendants move to strike both documents.

Why Ms. Renee submitted two separate affidavits is unclear. The form

affidavit is quite brief and consists mainly of boilerplate. As for the language she

wrote in, she attests simply that “all statement in civil rights complaint is true,”

that “all sexual abuse did happen,” and “that Ron Neal was contacted on all

offenses and that after gender change Ron Neal forced Plaintiff as a male when

she’s a female.” As the defendants point out, this document wasn’t signed under

penalty of perjury as required by 28 U.S.C. § 1746; indeed, the document isn’t

signed at all. Given that the affidavit is unsigned and appears incomplete, the

court will strike this document.

The defendants argue that the other affidavit contains statements that are

not based on personal knowledge, pertain to matters on which Ms. Renee isn’t

competent to testify, and consists of legal conclusions rather than specific facts

that would be admissible in evidence. The court agrees that paragraphs 1, 2, 3,

6, 7, 8, and 9 contain legal conclusions, personal opinions rather than facts, and

matters on which Ms. Renee would not be competent to testify as a lay person.

See FED. R. CIV. P. 56(c)(4); Greene v. Westfield Ins. Co., 963 F.3d 619, 627 (7th

Cir. 2020) (observing that “affidavits are for stating facts, not legal conclusions”).

She also includes matters outside the scope of this lawsuit, including her desire

to be transferred to a women’s prison and issues related to her underlying

conviction. Nevertheless, because Ms. Renee is proceeding without counsel, the

court must liberally construe all of her filings. Erickson v. Pardus, 551 U.S. 89,

94 (2007). Given her pro se status, the court declines to strike the affidavit and

will instead simply disregard the inappropriate material it contains. See Pfeil v.

Rogers, 757 F.2d 850, 862 (7th Cir. 1985) (noting that “legal argument in an

affidavit may be disregarded”). The court has also disregarded general assertions

in her affidavit that conflict with specific testimony she gave during her sworn

deposition. See Cook v. O’Neill, 803 F.3d 296, 298 (7th Cir. 2015); Pourghoraishi

v. Flying J, Inc., 449 F.3d 751, 759 (7th Cir. 2006).

I. FACTS

Ms. Renee has been diagnosed with gender dysphoria,4 for which she has

received estrogen therapy at Indiana State Prison since 2014. She also receives

mental health counseling. None of her prison medical providers have

recommended gender reassignment surgery.5 She has filed multiple grievances

requesting gender reassignment surgery, which were all denied.

On October 26, 2017, Ms. Renee wrote Commissioner Carter a letter

complaining about strip searches of prisoners working in the kitchen at ISP,

where she worked from October 2017 to January 2018. She said in the letter

that she is “intersex” and has “female breasts,” and that due to the strip

4 Gender dysphoria is “an acute form of mental distress stemming from strong feelings

of incongruity between one’s anatomy and one’s gender identity.” Campbell v. Kallas, 936 F.3d

536, 538 (7th Cir. 2019).

5 No outside doctor has recommended such treatment either. Ms. Renee testified that

approximately 20 years ago, prior to her incarceration, she consulted a doctor about gender

reassignment surgery, and he told her “[o]nce you go on hormones for two years, we will

consider it.” (ECF 73-2 at 45.) He retired before she could pursue the matter further. (Id.)

searches, she was “forced to expose [her] breast to 1-2 males everyday,” which

she deemed “sexual harassment.” (ECF 73-3 at 2.) She suggested that if the

prison was looking for drugs, “why not bring the dog?” (Id.) She further stated

that she thought the searches presented a “no-win situation,” because if the

kitchen workers didn’t traffic drugs, others in the facility would still do so. She

further complained that when “male officers pat search me they keep touching

my breast and the superintendent isn’t doing nothing about it.” (Id. at 3.) She

asked that only female correctional officers be allowed to search her. On

November 14, 2017, the Department of Correction’s Regional Executive Director,

Michael Osburn, responded to Ms. Renee’s letter, stating that there was a policy

that “all [kitchen] workers be strip searched as a step toward lowering the ability

to traffic,” and that “[p]art of a pat down includes the Officer patting down the

breast area.” (ECF 73-3 at 1.) He said that, based on her letter, he didn’t think

anything improper had occurred.

Beginning in April 2016, Ms. Renee submitted multiple grievances

complaining that she was being denied “the ability to purchase all items allowed

to women,” including makeup, female hygiene products, and female underwear.

(ECF 73-4; ECF 81 at 3-23.) The grievances were denied because Warden Neal

decided in December 2015 to allow Ms. Renee to wear a bra, but not to possess

additional items like makeup and female underwear. Ms. Renee had no direct

contact with Commissioner Carter about being denied female commissary

items.6

II. ANALYSIS

A 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). A genuine dispute of material fact exists

if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018) (citation

omitted). In deciding whether a genuine dispute of fact exists, the court must

“consider all of the evidence in the record in the light most favorable to the non-

moving party, and . . . draw all reasonable inferences from that evidence in favor

of the party opposing summary judgment.” Dunn v. Menard, Inc., 880 F.3d 899,

905 (7th Cir. 2018) (citation omitted).

At the summary judgment stage, the court cannot “weigh conflicting

evidence” or “make credibility determinations,” as both of these functions “are

the province of the jury.” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d

697, 704-05 (7th Cir. 2011) (citations omitted). Instead, the court’s only task is

“to determine whether there is a genuine issue for trial.” Tolan v. Cotton, 572

U.S. 650, 657 (2014) (citation omitted).

6 Ms. Renee acknowledges in her sur-reply that she “did not contact the Commissioner

Robert Carter on any issue except the strip searches.” (ECF 84 at 1.)

A. Strip Searches

Ms. Renee first asserts that both defendants subjected her to unduly

harassing strip searches in violation of the Eighth Amendment. Commissioner

Carter moves for summary judgment on the part of the claim seeking monetary

damages against him, arguing that he wasn’t personally involved in the events

underlying the claim.

A violation of the Eighth Amendment consists of two elements: (1) the

injury must be objectively serious enough to have deprived the inmate of the

minimal civilized measure of life’s necessities, and (2) the prison official must

have acted with deliberate indifference to the inmate’s health or safety. Farmer

v. Brennan, 511 U.S. 825, 834 (1994). “There is no question that strip searches

may be unpleasant, humiliating, and embarrassing to prisoners, but not every

psychological discomfort a prisoner endures amounts to a constitutional

violation.” Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003). Strip searches

are generally permissible in the prison context if conducted for a legitimate

penological reason. See Florence v. Bd. of Chosen Freeholders of Cty. of

Burlington, 566 U.S. 318, 330 (2012); Calhoun v. DeTella, 319 F.3d at 939.

However, a strip search will violate the Eighth Amendment if it is “totally without

penological justification” or “conducted in a harassing manner intended to

humiliate and inflict psychological pain.” Calhoun v. DeTella, 319 F.3d at 939.

For a defendant to be held liable under section 1983, he must have been

personally involved in the violation of the plaintiff’s constitutional rights. Mitchell

v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018). A high-ranking prison official can’t

be held liable under 42 U.S.C. § 1983 simply because he oversees operations

within the prison or supervises other correctional staff. Burks v. Raemisch, 555

F.3d 592, 596 (7th Cir. 2009). A defendant will be deemed to have sufficient

personal responsibility for a constitutional violation if the violation occurred “at

a defendant’s direction” or with his “knowledge or consent.” Mitchell v. Kallas,

895 F.3d at 498.

It’s not entirely clear who first ordered the strip searches,7 but the

uncontradicted evidence in the record shows that the policy was adopted to

combat drug trafficking at the state prison and that it applied to all kitchen

employees. There was nothing improper about a general strip search policy, nor

is there any indication that Commissioner Carter directed correctional staff to

conduct the searches in an unduly harassing manner. Indeed, Ms. Renee

testified at her deposition that the policy was “not the problem.” (ECF 73-2 at

19.) In her view, “[t]he problem is the way the officers acted inside the bathroom”

when they were conducting the searches.8 (Id.) The conduct Ms. Renee attributes

to the individual officers conducting the searches was unprofessional, but

Commissioner Carter cannot be held liable for their misdeeds simply because he

oversees operations within the IDOC. Burks v. Raemisch, 555 F.3d at 596.

7 Ms. Renee’s deposition testimony suggests that it was Deputy Warden Payne, a non-

party, who first ordered the strip searches, rather than either of the defendants.

8 Ms. Renee testified at her deposition that the officers would ”laugh,” “joke,” or

“giggle” when deciding who would conduct the searches and during the searches themselves,

and would sometimes leave the door open or push another officer into the bathroom when the

search was being conducted, which she deemed “unprofessional.” (ECF 73-2 at 21, 24.)

Ms. Renee’s deposition testimony reflects that her only direct contact with

Commissioner Carter about this issue was the single letter she sent him, which

complained about the strip searches of kitchen staff generally. Ms. Renee

acknowledged at her deposition that the letter was “simply complaining about

the strip searches, not in detail because . . . they usually read the stuff that goes

out if it’s not legal, . . . so I just wrote it brief.” (ECF 73-2 at 28.) The primary

complaint she identified in the letter was that the searches were unnecessary

because no drugs had been found among ISP’s kitchen staff. Although she said

that officers were touching her breast area during pat-down searches, there is

nothing inherently improper about such conduct in the prison setting. See

United States v. Waldman, 835 F.3d 751, 756 (7th Cir. 2016); Washington v.

Hively, 695 F.3d 641, 643 (7th Cir. 2012). Critically, the letter didn’t alert

Commissioner Carter that the officers were conducting the pat-down searches

in a manner that was unduly harassing or unrelated to legitimate penological

concerns. Based on the record, Commissioner Carter is entitled to summary

judgment on this claim.

B. Commissary Items

Ms. Renee next alleges that both defendants violated her First Amendment

right to free expression by denying her items that were available at the

commissary in women’s prisons. At her deposition, Ms. Renee clarified that she

wanted to have feminine “deodorant, body washes, . . . cosmetics, face masks, .

. . lady razors, Nair,” and similar items. (ECF 73-2 at 33-34.) She acknowledged

that Warden Neal let her to purchase bras, and that it was he who prevented her

from having the other items. She had no direct contact with Commissioner

Carter about this matter. There is nothing to suggest that Commissioner Carter

had any personal involvement in the events underlying this claim, and as already

explained, he can’t be held liable for damages just because he oversees

operations within the IDOC or supervises other correctional staff. Burks v.

Raemisch, 555 F.3d at 596. Commissioner Carter is entitled to summary

judgment on this claim.

Alternatively, both defendants argue that they are entitled to qualified

immunity on this claim. “Under the doctrine of qualified immunity, government

officials are liable for civil damages . . . only when their conduct violated clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Balsewicz v. Pawlyk, 963 F.3d 650, 656 (7th Cir. 2020) (citations

and internal quotation marks omitted). The doctrine “protects all but the plainly

incompetent or those who knowingly violate the law.” Campbell v. Kallas, 936

F.3d 536, 546 (7th Cir. 2019) (citation omitted). In evaluating a qualified

immunity defense at summary judgment, the court considers (1) whether the

facts, taken in the light most favorable to the plaintiff, show that the official

violated a clearly established right; and (2) whether the plaintiff has come

forward with sufficient evidence to create a genuine dispute of fact as to whether

the official in fact committed those acts. Balsewicz v. Pawlyk, 963 F.3d at 656.

“A right is clearly established when existing precedent has placed the

statutory or constitutional question beyond debate.” Howell v. Smith, 853 F.3d

892, 897 (7th Cir. 2017) (citation and internal quotation marks omitted). The

“focus is on whether the [defendant] had fair notice that his conduct was

unlawful.” Balsewicz v. Pawlyk, 963 F.3d at 656-57 (citation, internal quotations

marks, and alteration omitted). “Put another way, if applying the law at that time

to the facts would have left objectively reasonable officials in a state of

uncertainty, then immunity is appropriate.” Id. (citation and internal quotation

marks omitted); see also Campbell v. Kallas, 936 F.3d at 546 (observing that “a

right is clearly established only if every reasonable official would have

understood that what he is doing violates that right” (citation and internal

quotation marks omitted)). Thus, “clearly established law cannot be framed at a

high level of generality.” Balsewicz v. Pawlyk, 936 F.3d at 545 (citation omitted).

An inmate generally “retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate penological

objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).

By the same token, “[p]rison administrators . . . should be accorded wide-ranging

deference in the adoption and execution of policies and practices that in their

judgment are needed to preserve internal order and discipline and to maintain

institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). “[M]aintaining

institutional security and preserving internal order are essential goals that may

require limitation or retraction of the retained constitutional rights[.]” Id.

Little case law, either within the Seventh Circuit or outside it, addressing

the First Amendment rights of transgender inmates to wear makeup or female

clothing. The few courts to have considered the issue have held that transgender

inmates don’t have a First Amendment right to wear makeup or women’s

clothing. See Jones v. Warden of Stateville Corr. Ctr., 918 F. Supp. 1142, 1146

(N.D. Ill. 1995) (rejecting as frivolous transgender inmate’s First and Fourteenth

Amendment claims based on the denial of access to female underwear and

lipstick); Star v. Gramley, 815 F. Supp. 276, 278 (C.D. Ill. 1993); see also Hood

v. Dep't of Children & Families, No. 2:12-CV-637-FTM-29, 2015 WL 686922, at

*3 (M.D. Fla. Feb. 18, 2015) (“[T]he Court has no found authority indicating that

a transgender person has the right to choose the clothing worn while confined

or that the facility is constitutionally obligated to purchase all the clothing and

feminine products requested.”).

Some circuits, including ours, have analyzed this type of claim under the

Eighth Amendment, but have held that denying transgender inmates makeup

and similar items did not violate the Constitution. See Campbell v. Kallas, 936

F.3d at 549 (“As for Campbell’s requests for electrolysis and makeup, our cases

offer no indication that denying arguably nonmedical cosmetic accommodations

[to transgender inmates] violates the Eighth Amendment.”); see also Keohane v.

Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1275 (11th Cir. 2020) (denial of

transgender inmate’s request for “social-transitioning” items like makeup did not

show deliberate indifference); Murray v. U.S. Bureau of Prisons, 106 F.3d 401

(6th Cir. 1997) (rejecting transgender inmate’s Eighth Amendment claim based

on denial of makeup and female hygiene products, because “[c]osmetic products

are not among the minimal civilized measure of life’s necessities”). At least one

court has recognized the “serious security concerns” posed by requests like Ms.

Renee’s, namely, “that an inmate dressed and groomed as a female would

inevitably become a target for abuse in an all-male prison.”9 Keohane v. Florida

D.O.C., 952 F.3d at 1275. Because there is no case law that would have put

defendants on notice that Ms. Renee had a clearly established First Amendment

right to wear makeup and purchase female hygiene items, the defendants are

entitled to qualified immunity on this claim.

The court doesn’t intend to minimize the comfort such items might bright

to one with gender dysphoria who identifies as female. But the defendants are

correct that what Ms. Renee presents is not a clearly established federal

constitutional right.

C. Gender Reassignment Surgery

In her final claim, Ms. Renee asserts that both defendants violated her

Eighth Amendment rights by denying her requests for gender reassignment

surgery. As already recounted, Ms. Renee has been receiving hormone therapy

at ISP for several years, and also receives mental health counseling. She has

been permitted to wear a bra as an accommodation. None of her prison medical

providers have recommended gender reassignment surgery, nor has she named

any of her medical providers as defendants in this case. Instead, she sues two

high-ranking Department of Correction officials for denying her grievances

requesting gender reassignment surgery. They argue that they are entitled to

qualified immunity on this claim.

9 Ms. Renee argues in some of her filings that she should be transferred to a women’s prison now

that she has been granted a gender marker change by the state court, but such a claim falls outside the

scope of the screening order. Ms. Renee recently filed a new case, Renee v. Holcomb, 3:20-cv-599-DRL-

MGG, in which she challenges the IDOC’s denial of her formal request for a transfer to a women’s prison.

That case remains in the preliminary stages.

In 2019, after the events giving rise to this case, the court of appeals held

that “no case clearly establishes that denying treatment [for gender dysphoria]

beyond hormone therapy is unconstitutional[.]” Campbell v. Kallas, 936 F.3d at

549. Nor did the court recognize such a right in that case. Instead, the court held

that “prisons aren’t obligated to provide every requested treatment once medical

care begins.” Id. The question of deliberate indifference turns on the “discrete

treatment decisions” made in a given case. Id. Circuit precedent has long

established that “a total absence of treatment for the serious medical needs

created by gender dysphoria is unconstitutional,” Mitchell v. Kallas, 895 F.3d at

499, but Ms. Renee’s gender dysphoria hasn’t been left untreated. She is

receiving hormone therapy, counseling, and has been permitted certain non-

medical accommodations. None of her prison medical providers have

recommended gender reassignment surgery; indeed, prevailing medical

standards recognize that gender reassignment surgery “is the last and the most

considered step in the treatment process,” and “not all gender-dysphoric patients

are surgical candidates.” Campbell v. Kallas, 936 F.3d at 539 (citation omitted).

Denying a request for gender reassignment surgery “is not the same as deciding

to provide no treatment at all,” particularly because this “course of treatment

poses considerable challenges to prison administration.” Id. Based on the case

law and the record evidence, the defendants are entitled to qualified immunity

on this claim.

III. CONCLUSION

For these reasons, the defendants’ motion to strike (ECF 83) is GRANTED

in part and DENIED as stated herein. Defendants’ motion for partial summary

judgment (ECF 72) is GRANTED. Defendants are entitled to summary judgment

on Ms. Renee’s First Amendment claim and her Eighth Amendment claim

seeking gender reassignment surgery. Commissioner Carter is also entitled to

summary judgment on Ms. Renee’s Eighth Amendment claim against him for

money damages related to the strip searches. What remains of the case, then, is

Ms. Renee’s Eighth Amendment claim against Warden Neal for money damages

pertaining to the strip searches, and her official capacity claims against both

defendants seeking injunctive relief related to the searches. Neither party has

moved for summary judgment on these claims, and so they must be resolved at

trial.

SO ORDERED on September 2, 2020

s/ Robert L. Miller, Jr.

JUDGE

UNITED STATES DISTRICT COURT