Charles v. Holcomb

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ELMER D. CHARLES, JR., also known

as

ANASTAISA RENEE,

Plaintiff,

v. CAUSE NO. 3:20-cv-599-RLM-MGG

RON NEAL,

Defendant.

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 in this case “against Warden Neal under the

Eighth Amendment in his personal capacity for monetary damages for refusing to

recognize her as a female and denying her request to be transferred to a women’s

prison even though she identifies as a female, and in his official capacity for

permanent injunctive relief related to her need for these accommodations[.]” ECF 13

at 3-4. Ms. Renee alleged in her complaint that Warden Neal won’t recognize her as

a female, permit staff to use female pronouns when addressing her, or allow her to

transfer to a women’s prison. Ms. Renee filed a motion for summary judgment that is

briefed, as is Warden Neal’s cross-motion for summary judgment.

1 Ms. Renee was granted a gender marker change in state court in September 2019. ECF

30 at 19-20. Out of respect, the court uses her preferred female name and pronouns throughout

this opinion.

Summary judgment must be granted when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Federal

Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the

evidence is such that a reasonable [factfinder] could [find] for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a

genuine issue of material fact exists, the court must construe all facts in the light

most favorable to the non-moving party and draw all reasonable inferences in that

party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a

properly supported summary judgment motion can’t rely merely on allegations or

denials in its own pleading, but rather must “marshal and present the court with the

evidence she contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621

F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture

will not suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir.

2009).

Ms. Renee argues Warden Neal has violated her Eighth Amendment rights by

(1) failing to protect her from other offenders, and (2) acting with deliberate

indifference to her serious medical need.

Failure to Protect

The Eighth Amendment imposes a duty on prison officials “to take reasonable

measures to guarantee the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832

(1994). “[P]rison officials have a duty to protect prisoners from violence at the hands

of other prisoners.” Id. at 833. “[T] o state a section 1983 claim against prison officials

for failure to protect, [a plaintiff] must establish: (1) that he was incarcerated under

conditions posing a substantial risk of serious harm and (2) that the defendants acted

with deliberate indifference to his health or safety.” Santiago v. Walls, 599 F.3d 749,

756 (7th Cir. 2010) (quotation marks omitted). Deliberate indifference is “something

approaching a total unconcern for a prisoner’s welfare in the face of serious risks,” or

a “conscious, culpable refusal” to prevent harm. Duane v. Lane, 959 F.2d 673, 677

(7th Cir. 1992). The plaintiff must establish that the defendant “had actual

knowledge of an impending harm easily preventable, so that a conscious, culpable

refusal to prevent the harm can be inferred from the defendant’s failure to prevent

it.” Santiago v. Walls, 599 F.3d at 756.

In the context of failure to protect cases, “substantial risk” means “risks so

great that they are almost certain to materialize if nothing is done.” Brown v. Budz,

398 F.3d 904, 911 (7th Cir. 2005). In such cases, “a prisoner normally proves actual

knowledge of impending harm by showing that he complained to prison officials about

a specific threat to his safety.” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). “[T] hat

an inmate sought and was denied protective custody is not dispositive of the fact that

prison officials were therefore deliberately indifferent to his safety.” Lewis v.

Richards, 107 F.3d 549, 553 (7th Cir. 1997). “Exercising poor judgment . . . falls short

of meeting the standard of consciously disregarding a known risk to his safety.” Id.

at 554.

The undisputed facts show Warden Neal has made Ms. Renee several

accommodations at Indiana State Prison based on her gender identity but has

continuously denied her requests to transfer to a woman’s prison. Ms. Renee has

identified as a female before and throughout her incarceration at ISP. ECF 30 at 20;

ECF 38-12 at 5. In May 2017, ISP approved Ms. Renee’s request to shower separately

from other offenders. ECF 38-1. In September 2018, a Transgender/Intersex

Placement Review was conducted and determined Ms. Renee’s placement at ISP was

appropriate. ECF 38-2. In support of its decision, the committee cited Ms. Renee’s

conviction for sexually assaulting a female taxi driver and various past incidents in

which she allegedly made false allegations of sexual assault against other inmates,

all of which Ms. Renee disputes.2 Id.; ECF 51 at 14-20. The committee also noted Ms.

Renee had been transferred to a single-person cell facility at ISP. ECF 38-2 at 2. In

September 2018, Warden Neal approved Ms. Renee to place a curtain up in her cell

while changing clothes or attending to personal hygiene. ECF 38-3. In January 2019,

Ms. Renee requested a transfer to a woman’s prison and was denied. ECF 30 at 25.

In June 2019, another Transgender/Intersex Placement Review was conducted and

determined that Ms. Renee’s placement at a male facility was appropriate. ECF 38-

5.

2 Ms. Renee is serving a lengthy sentence after pleading guilty to the rape of a

female taxi driver and was found in that case to be a repeat sexual offender. See Charles v.

State, 900 N.E.2d 82 (Ind. Ct. App. 2008). Ms. Renee will therefore be prevented in this

case from disputing she sexually assaulted a female taxi driver. See Heck v. Humphrey, 512

U.S. 477 (1994) (barring a plaintiff from collaterally attacking a criminal conviction through

the vehicle of a civil suit).

On September 16, 2019, an Indiana state court granted Ms. Renee’s petition

for a gender marker to legally change her birth certificate gender from male to female.

ECF 30 at 19-20. Ms. Renee then filed a grievance notifying ISP of the court order

and asking that her classification be changed to female. ECF 30 at 10. This grievance

was denied because Ms. Renee was “appropriately classified at this time.” ECF 30 at

10. In December 2019, a Sexual Violence Assessment was conducted and Ms. Renee

voiced no concerns of sexual abuse while incarcerated. ECF 38-8 at 3. In February

2020, Ms. Renee submitted an informal grievance requesting a transfer to a woman’s

prison, which was denied. ECF 30 at 21-22. In January 2021, another Sexual Violence

Assessment was conducted and Ms. Renee voiced no concerns of sexual abuse while

incarcerated. ECF 38-9 at 3. Another Sexual Violence Assessment was conducted in

May 2021, and Ms. Renee indicated she felt threatened by the shower arrangements

but otherwise felt no threat to her safety. ECF 38-10.

Warden Neal argues that Ms. Renee has offered no evidence he was aware of

a specific threat to her safety. Ms. Renee responds that Warden Neal violated her

Eighth Amendment rights by placing her in a violent cell house and denying her

transfer requests despite knowing she feared for her safety. Ms. Renee attests that

she wrote numerous letters to Warden Neal requesting a transfer because she feared

for her safety. This only shows Warden Neal was aware Ms. Renee had general fears

for her safety. Ms. Renee must provide evidence Warden Neal was aware of a specific

threat to her safety. See Pope v. Shafer, 86 F.3d at 92. Ms. Renee asserts she was

sexually abused and sexually assaulted several times but provides no evidence (apart

from her own statements) that these incidents occurred or that Warden Neal was

ever made aware of these incidents. Ms. Renee also asserts she was attacked “for

living as a female” in December 2020, but this incident occurred after Ms. Renee filed

this case and there is no evidence Warden Neal was aware of any specific threat to

Ms. Renee’s safety in regard to this incident.

Because the record shows that Warden Neal made Ms. Renee various

accommodations such as allowing her to live and shower separately from other

offenders, and Ms. Renee provides no evidence Warden Neal was ever aware she faced

a specific threat to her safety so great it would be almost certain to materialize if she

wasn’t transferred, no reasonable jury could conclude Warden Neal acted with “a total

unconcern for [Ms. Renee’s] welfare in the face of serious risks” by denying her

transfer requests. See Duane v. Lane, 959 F.2d at 677. Summary judgment is

warranted in favor of Warden Neal on this sub-claim.

Deliberate Indifference to Medical Need

Under the Eighth Amendment, inmates are entitled to adequate medical care.

Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish liability, a prisoner must

satisfy both an objective and subjective component by showing: (1) her medical need

was objectively serious; and (2) the defendant acted with deliberate indifference to

that medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 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). Warden Neal doesn’t dispute that Ms. Renee’s gender dysphoria

is a serious medical condition, so it only remains to be determined whether Warden

Neal was deliberately indifferent to Ms. Renee’s gender dysphoria. To make this

showing, Ms. Renee must establish Warden Neal “acted in an intentional or

criminally reckless manner, i.e., the defendant must have known that the plaintiff

was at serious risk of being harmed and decided not to do anything to prevent that

harm from occurring even though he could have easily done so.” Board v. Farnham,

394 F.3d 469, 478 (7th Cir. 2005) (internal quotation marks, brackets, and citations

omitted).

“The accepted standards of care [for gender dysphoria] dictate a gradual

approach to treatment beginning with psychotherapy and real life experience living

as the opposite gender.” Fields v. Smith, 653 F.3d 550, 553-554 (7th Cir. 2011). For a

number of patients, this treatment may be effective in controlling feelings of

dysphoria. Id. at 554. When the condition is more severe, hormone therapy may be

necessary. Id. “In the most severe cases, sexual reassignment surgery may be

appropriate.” Id. “[N]o case clearly establishes that denying treatment [for gender

dysphoria] beyond hormone therapy is unconstitutional[.]” Campbell v. Kallas, 936

F.3d at 549.

Warden Neal argues the undisputed evidence shows Ms. Renee has received

constitutionally adequate medical care for her gender dysphoria because she has

received female hormone therapy since 2014, resides in a single-person cell facility,

can use a curtain to get dressed and attend to personal hygiene, and showers

separately from the general population. Ms. Renee responds that Warden Neal has

been deliberately indifferent to her gender dysphoria by referring to her and allowing

prison staff to refer to her using masculine pronouns. Ms. Renee argues the World

Professional Associate for Transgender Health (“WPATH”) has dictated medically

accepted standards of care for treating gender dysphoria, which includes the use of

feminine pronouns and being referred to as a female, but she doesn’t point to any

evidence from WPATH or from any other medical source indicating the appropriate

standards of care for gender dysphoria. Moreover, Ms. Renee points to no evidence

Warden Neal was aware of and consciously violated these standards of care. There is

simply no evidence in the record by which a reasonable jury could conclude Warden

Neal knew Ms. Renee was at serious risk of being harmed by the use of masculine

pronouns. See Boardv. Farnham, 394 F.3d at 478. Because there is no evidence

Warden Neal acted in an intentional or criminally reckless manner, summary

judgment is warranted in his favor on this sub-claim.

Warden Neal alternatively argues he is entitled to qualified immunity because

there is no clearly established case law holding an inmate has a constitutional right

to the use of their preferred pronouns. “Qualified immunity protects government

officials from civil liability when performing discretionary functions so long as their

conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Alvarado v. Litscher, 267 F.3d 648, 652 (7th

Cir. 2001) (internal quotation marks and citation omitted). To overcome a qualified

immunity defense, “a plaintiff must show the deprivation of a constitutional right,

and must also show that the right was clearly established at the time of the violation.”

Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (citing Alvarado v. Litscher,

267 F.3d at 652). Because the court of appeals has held that “no case clearly

establishes that denying treatment [for gender dysphoria] beyond hormone therapy

is unconstitutional,” Warden Neal is entitled to qualified immunity on Ms. Renee’s

claim for money damages. See Campbell v. Kallas, 936 F.3d at 549; Volkman v. Ryker,

736 F.3d 1084, 1091 (7th Cir. 2013) (qualified immunity does not apply to claims for

injunctive relief). Thus, Warden Neal is entitled to summary judgment on this sub-

claim on the merits, and is alternatively entitled to qualified immunity on this sub-

claim to the extent Ms. Renee seeks monetary damages.

Summary judgment is warranted in favor of Warden Neal on both of Ms.

Renee’s claims. The court:

(1) DENIES Ms. Renee’s motion for summary judgment (ECF 31);

(2) GRANTS Warden Neal’s cross-motion for summary judgment (ECF 38);

and

(3) DIRECTS the clerk to enter judgment in favor of Warden Neal and against

Elmer D. Charles, Jr.

SO ORDERED on April 12, 2022

/s/ Robert L. Miller, Jr.

JUDGE

UNITED STATES DISTRICT COURT