Beard v. Falkenrath

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

SEASE BEARD, )

)

Plaintiff, )

)

v. ) Case No. 21-CV-04211-SRB

)

DORIS FALKENRATH, et al., )

)

Defendants. )

ORDER

Before the Court is Defendants Doris Falkenrath, Nathan Falter, Carignan, Jeremy Epps,

Matherly, Graff, Jacki Petri, Todd Matthew, Jason Lewis, Mauler, Sonne, Dobbins, Bade, and

Scott Kitner’s (collectively, “Defendants”) Partial Motion to Dismiss.1 (Doc. #41.) For the

reasons stated below, the motion is DENIED.

I. BACKGROUND

Plaintiff Sease Beard (“Plaintiff”) is a transgender woman currently incarcerated at

Jefferson City Correctional Center (“JCCC”) operated by the Missouri Department of

Corrections. Defendant Doris Falkenrath (“Falkenrath”) is the Warden of JCCC. Defendant

Jason Lewis (“Lewis”) is the Deputy Division Director of the Missouri Department of

Corrections’ Division of Adult Institutions. Defendant Todd Matthew (“Matthew”) is a JCCC

Function Unit Manager. Defendants Nathan Falter (“Falter”), Jeremy Epps (“Epps”), Carignan,

Matherly, Graff, Mauler, Sonne, Dobbins, and Bade are JCCC correctional officers. Defendants

Jacki Petri (“Petri”) and Scott Kitner (“Kitner”) are JCCC caseworkers. Plaintiff also names

1 The First Amended Complaint fails to provide a first name for Defendants Carignan, Matherly, Graff, Sonne,

Dobbins, or Bade. Further, Defendants refer to Mauler as “Austin Mauller,” Todd Matthew as “Todd,” Scott Kitner

as “Kintner,” and Sonne as “Sanni” in the instant motion. The Court will refer to Defendants as they are named in the

First Amended Complaint.

“John Does 1-5,” who are unnamed correctional officers, “Jane/John Doe 6,” Assistant Warden

of JCCC, and “Jane Doe 7,” a medical professional at JCCC. Each defendant is sued in his or

her official and individual capacities. A summary of the facts taken from Plaintiff’s First

Amended Complaint (“FAC”) are below.

In 2017, during Plaintiff’s incarceration in the Missouri Department of Corrections

system, Plaintiff was diagnosed with gender dysphoria and began hormone replacement therapy

in approximately December 2018. In December 2020, Plaintiff was transferred to JCCC, where

she is currently located. She continues to be treated for gender dysphoria and receive hormone

therapy.

A. The March 2021 Incident

On either March 29 or March 30, 2021, Epps approached Plaintiff while she was locked

in her cell. Epps informed Plaintiff that he was taking her to see an investigator regarding a

Prison Rape Elimination Act (“PREA”) violation, which Plaintiff had previously reported against

a JCCC official. Complying with Epps’s instructions, Plaintiff stepped outside of her cell so she

could be restrained. When Epps started to apply leg restraints, he noticed Plaintiff was wearing a

miniskirt and her hair was styled in “pigtails.” (Doc. #19, ¶ 35.) Epps berated Plaintiff and

called her offensive names. (Doc. #19, ¶ 36.) Plaintiff calmly informed Epps that she is a

transgender woman who deserves the same respect as every male and female inmate.

Epps told Plaintiff he would not take her to see the investigator unless she changed her

clothes. Plaintiff refused, explaining to Epps that she is allowed to express her gender through

her appearance and that she wanted to speak to one of Epps’s superior officers. In response,

Epps grabbed Plaintiff by a “leash” connected to the back of her restraints and slammed her on

the ground. (Doc. #19, ¶ 40.) Nearby, Carignan and Falter rushed over to assist Epps. Epps

stuck his knee into Plaintiff’s back while Carignan finished applying the leg restraints. While

Plaintiff was subdued on the ground, Falter pepper sprayed Plaintiff. The pepper spray caused

Plaintiff to cough violently and suffer a burning sensation on her eyes and skin. Plaintiff was

never given an eye solution to wash out the pepper spray and the burning lasted for two to three

days.

Matherly and John Does 1-5 then joined Epps, Falter, Carignan, and Matherly to help

carry Plaintiff back inside her cell. The all-male correctional officers then proceeded to cut

Plaintiff’s clothes off her body. Plaintiff protested and repeatedly screamed that she is a

transgender woman and does not feel comfortable being forcibly stripped naked by, or in front

of, male correctional officers.

The correctional officers carried Plaintiff out of her cell in full view of male inmates.

Plaintiff requested a shirt or bra to cover her breasts, but the correctional officers ignored her.

Plaintiff was carried to the “Rubber Room” – a holding area for inmates on suicide watch.

(Doc. #19, ¶ 57.) Graff and Sergeant Ashley, another correctional officer not named in this

lawsuit, met Plaintiff and the other correctional officers in the Rubber Room. Jane Doe 7 then

arrived and assessed Plaintiff’s health. Despite Plaintiff’s request, Jane Doe 7 did not take

pictures of Plaintiff’s injuries, including the bruising and swelling on her face. Plaintiff

continued to request something to cover herself with, but that request was ignored. The

defendants in the room also repeatedly disregarded Plaintiff’s request to file a PREA report

against the correctional officers who stripped her.

The correctional officers then secured Plaintiff to a highly restrictive and physically

uncomfortable restraining device referred to as “the Wrap.” (Doc. #19, ¶ 62.) Plaintiff was left

secured to the Wrap with her breasts exposed. While restrained in the Rubber Room, several

male correctional officers entered the room and observed her exposed body. After some time,

Epps, Falter, Carignan, Graff, Matherly, and John Does 1-5 wheeled Plaintiff out of the Rubber

Room and to a cell next to hers. Sergeant Ashley eventually gave Plaintiff a shirt to cover her

chest.

At the cell, Epps, Falter, Carignan, Graff, Matherly, and John Does 1-5 took Plaintiff out

of the Wrap, placed her face-down on the floor and proceeded to remove her handcuffs and leg

restraints. One of the defendants threatened that if she moved, they would do something worse

next time. Plaintiff did not move or speak until the correctional officers left her cell. During the

incident, Epps, Falter, Carignan, Graff, Matherly, and John Does 1-5 repeatedly referred to

Plaintiff as “he/him/his,” despite Plaintiff informing them of her preferred pronouns of

“she/her/hers.” (Doc. #19, ¶ 72.)

Under JCCC’s policies and procedures, if a correctional officer must perform a strip-

search of an inmate, that search is normally conducted in a “dress out cell.” (Doc. #19, ¶ 49.)

Transgender inmates are typically allowed to keep their underwear on during these searches.

Absent exigent circumstances, strip searches are conducted by officers of the same gender as the

inmate. Searches are done without touching. Transgender inmates, upon request, are provided

privacy from other inmates during strip-searches. Defendants did not follow these policies and

procedures, despite Plaintiff’s repeated requests to do so.

Plaintiff filed two PREA violation reports related to the March 2021 incident, but never

heard back from a PREA investigator. Plaintiff attempted to address the incident through

JCCC’s administrative grievance process. She first submitted an Informal Resolution Request

(“IRR”). Petri, Matthew, and Jane/John Doe 6, who is the Assistant Warden, denied the IRR.

Plaintiff then filed an Offender Grievance to appeal that denial. The Offender Grievance was

denied by a Warden’s Response on the grounds that Plaintiff had received a violation after the

March 2021 incident. The Warden’s Response otherwise failed to address the substance of

Plaintiff’s grievance. Plaintiff filed another Offender Grievance, which Lewis reviewed and

summarily denied based on a finding that the use of force was necessary. During the grievance

process, Petri, Matthew, Jane/John Doe 6, Falkenrath, and Lewis failed to address or otherwise

take corrective actions. Plaintiff then filed this lawsuit on November 3, 2021.

B. Subsequent Retaliatory Conduct

During the grievance process and this litigation, Plaintiff alleges that Defendants have

engaged in retaliatory conduct against her. For example, JCCC housing placement is reviewed

by a three-member review panel. Plaintiff was scheduled for a review hearing to determine

whether she would be promoted out of Administrative Segregation to a more favorable housing

assignment. Plaintiff’s review panel consisted of Falter and Kitner, despite them being named in

Plaintiff’s grievance and as defendants in this lawsuit. Prior to her hearing, Falter told Plaintiff

that he would ensure she would stay in Administrative Segregation. Plaintiff alleges she was

eligible for a housing promotion, but the review panel ruled that Plaintiff would remain in

Administrative Segregation for an additional ninety days.

On December 30, 2021, Plaintiff was placed on suicide watch. As part of standard

practice, Plaintiff’s personal belongings were taken from her. On January 3, 2022, Plaintiff was

removed from suicide watch, but many of her items were not returned to her. Plaintiff alleges

that Mauler, Sonne, and Dobbins were responsible for taking and returning Plaintiff’s property.

Plaintiff also alleges that Bade and Dobbins have refused to provide Plaintiff with necessary

mental health treatment, and Falter and Epps have denied Plaintiff access to showers.

On January 18, 2022, Plaintiff met with her counsel about this case. During that meeting,

Plaintiff’s cell was ransacked and vandalized by JCCC officials. All of Plaintiff’s mail was

opened or destroyed, including confidential communications between her and her counsel. On

February 1, 2022, Plaintiff was again put on suicide watch for no reason. When approached by

JCCC officials to remove her from her cell, she refused. She was then pepper sprayed twice.

Five men wearing motorcycle helmets, including Graff, removed her from her cell and placed

Plaintiff in the Rubber Room. Plaintiff started yelling to get the attention of an official. An

official entered the room and again pepper sprayed her. Plaintiff was left in the Rubber Room

with pepper spray residue on her for two and a half days.

Plaintiff made repeated attempts to utilize JCCC’s administrative process to address these

retaliatory actions. However, her caseworkers, Kitner and Petri, failed to provide her with IRR

forms and PREA violation forms.

On February 7, 2022, Plaintiff filed her FAC in this lawsuit. Plaintiff asserts the

following causes of action under 42 U.S.C. § 1983: Eight Amendment Violation against Epps,

Falter, Carignan, Graff, Matherly, John Does 1-5, Bade, Dobbins, Petri, Matthew, Jane/John Doe

6, Falkenrath, and Lewis (Count I); Fourth Amendment Violation against Epps, Falter, Carignan,

Graff, Matherly, John Does 1-5, Petri, Matthew, Jane/John Doe 6, Falkenrath, and Lewis (Count

II); Fourteenth Amendment Equal Protection Violation against Epps, Falter, Carignan, Graff,

Matherly, John Does 1-5, Petri, Matthew, Jane/John Doe 6, Falkenrath, and Lewis (Count III);

First Amendment Violation against Epps, Petri, Matthew, Jane/John Doe 6, Falkenrath, and

Lewis (Count IV); First Amendment Violation against Kitner and Petri (Count V); and First

Amendment Retaliation against Epps, Falter, Dobbins, Sonne, Bade, Mauler,2 John Doe’s 1-5,

2 As explained below, while Mauler is not mentioned in the Count VI caption, the Court construes Count VI as being

asserted against Mauler.

Petri, Matthew, Jane/John Doe 6, Falkenrath, and Lewis (Count VI). Plaintiff also asserts under

Missouri state law an assault and battery cause of action against Epps, Falter, Carignan, John

Does 1-5, Petri, Matthew, Jane/John Doe 6, Falkenrath, and Lewis (Count VII).

Defendants now move for partial dismissal of this case under Federal Rule of Civil

Procedure 12(b)(6). Plaintiff opposes the motion. The parties’ arguments are addressed below.

II. LEGAL STANDARD

Rule 12(b)(6) provides that a defendant may move to dismiss for “failure to state a claim

upon which relief can be granted.” “To survive a motion to dismiss [for failure to state a claim],

a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and

citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ash v. Anderson Merchs., LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556

U.S. at 678). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

III. DISCUSSION

Defendants argue that the Court should dismiss (1) all claims against Mauler because

Plaintiff fails to assert a claim against him; (2) Count V against Petri and Kitner; (3) Count I

against Bade and Dobbins; (4) Counts I, II, III, IV, and VII against Lewis, Falkenrath, Petri, and

Matthew; (5) Count II, III, IV, and VI entirely. The arguments are addressed in the order

presented.

A. Claims Against Mauler

Defendants argues that Plaintiff has failed to assert a claim against Mauler because

Mauler is not mentioned in any introductory headers preceding the count-specific allegations.

Defendants also argue that the FAC does not provide factual allegations to support a

constitutional violation by Mauler. The Court agrees with Plaintiff that the FAC adequately

asserts Count VI (First Amendment Retaliation) against Mauler.

Plaintiff alleges that Mauler, in part, was responsible for taking and returning property to

Plaintiff after she was unnecessarily placed on suicide watch. Some of Plaintiff’s property was

not returned to her in retaliation of Plaintiff exercising her right to utilize the prison grievance

process and file this lawsuit. These allegations were “incorporate[d] and re-allege[d]” in Count

VI. (Doc. #19, ¶ 199.) Plaintiff alleges the stolen property under Count VI is an example of

retaliation, and generally refers to “Defendants.” (Doc. #19, ¶ 202.) The Court finds these

allegations sufficient to put Mauler on notice that Count VI is asserted against him.

Defendants also argue that “[i]f [Plaintiff] meant to assert Count VI against Mauler . . .

the claim should be dismissed as argued in part VI.” (Doc. # 42, p. 6.)3 The Court finds

Defendants’ argument further supports the finding that the FAC “gives [Defendants] fair notice”

that Count VI asserts a claim against Defendant Mauler, and the Court will interpret the FAC

accordingly. Johnson v. Precythe, 954 F.3d 1098, 1101 (8th Cir. 2020) (citation and quotations

omitted). The Court will address the remainder of Defendants’ Count VI arguments, including

the sufficiency of Plaintiff’s allegations against Mauler, when addressing Count VI below.

3 Page numbers refer to pagination automatically generated by ECF.

B. Count V against Kitner and Petri

Count V asserts that Kitner and Petri violated Plaintiff’s First Amendment rights by

refusing to provide Plaintiff with IRR forms to address the retaliatory conduct she experienced

after filing this lawsuit. Defendants first argue Count V should be dismissed because Plaintiff

“does not allege that [Kitner] or Petri prohibited her filing a grievance altogether.” (Doc. #42,

p. 7.) The Court disagrees. The Eight Circuit has long “recognized the First Amendment right to

petition for redress of grievances includes redress under established prison grievance

procedures.” Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994). Plaintiff alleges that “Kitner

and Petri failed or refused to provide Ms. Beard with an IRR Form.” (Doc. #19, ¶ 128.) While

Plaintiff was able to file an IRR form after the March 2021 incident, Plaintiff alleges Kitner and

Petri prevented her from addressing subsequent retaliatory conduct through the prison grievance

process. Count V adequately states a claim.

Defendants also argue that Count V should be dismissed because Plaintiff experienced no

“actual injury” because she was able to file this lawsuit. (Doc. #42, p. 4.) Plaintiff disagrees,

arguing that she “has suffered actual injury . . . by [Kitner] and Petri as they have hindered her

efforts to pursue a legal claim.” (Doc. #53, p. 4.) The Court agrees with Plaintiff. When

conduct “strikes at the heart of an inmate’s constitutional right to seek redress of grievances, the

injury to this right inheres in the retaliatory conduct itself.” Dixon, 38 F.3d at 379.

Here, Plaintiff alleges that Kitner and Petri “prevented [Plaintiff] from addressing [the

retaliatory conduct] through JCCC’s administrative grievance process.” (Doc. #19, ¶ 129.) This

deprivation of Plaintiff’s First Amendment right to the grievance process is itself an actual

injury. The Court also agrees with Plaintiff that by “failing to provide forms for [Plaintiff] to

begin the administrative process certain hindrances arise, such as unavailability of witnesses,

evidence, documentation, and exhaustion of remedies that serve as the foundation of future

lawsuits.” (Doc. #53, p. 4.) In turn, Plaintiff adequately alleges an actual injury under Count V.

C. Count I against Bade and Dobbins

Plaintiff alleges in Count I that Defendants violated her Eighth Amendment rights,

including Bade and Dobbins refusing to take Plaintiff to her necessary mental health treatment.

Defendants argue that Count I against Bade and Dobbins should be dismissed because they are

entitled to qualified immunity.

“Qualified immunity shields state officials from both civil liability and the burdens of

litigation unless their conduct violates a clearly established right of which a reasonable person

would have known.” Patterson v. Kelley, 902 F.3d 845, 851 (8th Cir. 2018). “[D]efendants

seeking dismissal under Rule 12(b)(6) based on an assertion of qualified immunity must show

that they are entitled to qualified immunity on the face of the complaint.” Kulkay v. Roy, 847

F.3d 637, 642 (8th Cir. 2017) (citations and quotations omitted). “To determine whether a public

official is entitled to immunity, courts conduct a two-pronged analysis: whether the plaintiff has

stated a plausible claim for violation of a constitutional or statutory right and whether the right

was clearly established at the time of the alleged infraction.” Kulkay, 847 F.3d at 642.

Defendants first argue that the FAC does not sufficiently allege that Bade and Dobbins

were deliberately indifferent to a known, serious medical need of Plaintiff. “[D]eliberate

indifference to the serious medical needs of a prisoner constitutes cruel and unusual

punishment.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (citing Estelle v. Gamble, 429 U.S.

97, 102-03 (1976)). “A prison official exhibits deliberate indifference when the official actually

knows of and disregards a prisoner’s serious medical needs.” Id. (quotations marks and citations

omitted). Deliberate indifference may be demonstrated by “prison guards intentionally denying

or delaying access to medical care or intentionally interfering with the treatment once

prescribed.” Orr v. Larkins, 610 F.3d 1032, 1035 (8th Cir. 2010) (citation and quotations

omitted).

Plaintiff alleges that she was diagnosed with gender dysphoria while incarcerated in the

Missouri Department of Corrections and was actively undergoing prescribed medical treatment

at JCCC. Plaintiff also alleges that “each Defendant was aware of her diagnosis” and that “Bade

and Dobbins denied [Plaintiff] access to medical care when they refused to take her to her

necessary mental health treatment.” (Doc. #19, ¶¶ 144-45.) The Court thus finds that Plaintiff

adequately alleges that Bade and Dobbins acted deliberately indifferent to her known, serious

medical condition.

Defendants also argue that they are entitled to qualified immunity because Plaintiff

cannot show that her right was clearly established when Bade and Dobbins denied her mental

health treatment. The Court disagrees. As previously explained, the Eight Circuit has

established that prison staff cannot interfere with medical treatment once prescribed. Orr, 610

F.3d at 1035; see also White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988) (holding that gender

dysphoria “is a serious medical need”).

Finally, Defendants argue that Plaintiff “has not pleaded any facts to show a detrimental

effect of any delay” in her mental health treatment. (Doc. #42, p. 7.) However, Plaintiff alleges

Defendants’ actions caused Plaintiff “to suffer physical injury, pain and suffering, loss of

enjoyment of life, and severe emotional distress.” (Doc. #19, ¶ 153.) At this stage of the

litigation, Plaintiff has adequately alleged an injury under Count I and Defendants have failed to

establish that Bade and Dobbins are entitled to qualified immunity on the face of the complaint.

D. Counts I, II, III, IV, and VII against Lewis, Falkenrath, Petri, and Matthew

Counts I, II, III, and IV assert various § 1983 constitutional violations, and Count VII

asserts a Missouri state-law assault and battery claim against Defendants. Defendants argue

Lewis, Falkenrath, Petri, and Matthew should be dismissed from these claims because

(1) Plaintiff failed to plead that these defendants directly participated in the alleged

unconstitutional violations; (2) regarding the claims against Falkenrath, Plaintiff does not allege

specific factual allegations to state a claim; (3) regarding Count VII, Plaintiff fails to allege these

individuals used any force or made physical contact with Plaintiff.

As a threshold issue, the Court agrees with Defendants that Plaintiff must do more than

rely on respondeat superior or general supervisor liability to state a § 1983 claim against Lewis,

Falkenrath, Petri, and Matthew. “In a § 1983 case, an official ‘is only liable for his . . . own

misconduct’ and is not ‘accountable for the misdeeds of [his] agents’ under a theory such as

respondeat superior or supervisor liability.” Whitson v. Stone Cnty. Jail, 602 F.3d 920, 928 (8th

Cir. 2010) (quoting Iqbal, 556 U.S. at 677). “Further, a warden’s general responsibility for

supervising the operations of a prison is insufficient to establish personal involvement.” Ouzts v.

Cummings, 825 F.2d 1276, 1277 (8th Cir. 1987).

However, “[s]upervisors, in addition to being liable for their own actions, are liable when

their corrective inaction amounts to ‘deliberate indifference’ to or ‘tacit authorization’ of the

violative practices.” Howard v. Adkinson, 887 F.2d 134, 137 (8th Cir. 1989) (citation and

quotations omitted). “Proof of actual knowledge of constitutional violations is not . . . an

absolute prerequisite for imposing supervisory liability . . . reckless disregard on the part of a

supervisor will suffice to impose liability.” Id. at 138; see also Fruit v. Norris, 905 F.2d 1147,

1151 (8th Cir. 1990) (holding a warden’s “action in denying the administrative appeals of [the

inmates’] disciplinary actions . . . clearly is sufficient to hold him liable” under a theory that the

warden tacitly authorized the violative practices).

Defendants contend that Plaintiff only alleges that these defendants “rubberstamp[ed] the

conduct” of the other individual defendants, which is insufficient to demonstrate their personal

involvement in Counts I, II, III, and IV. (Doc. #42, p. 12.) Plaintiffs argue that Lewis,

Falkenrath, Petri, and Matthew each denied Plaintiff’s grievances and failed to take corrective

action upon notice of constitutional violations against Plaintiff, all which constitute their

personal involvement. The Court agrees with Plaintiff.

Plaintiff alleges that she attempted to aggrieve the March 2021 incident first by filing an

IRR, which detailed constitutional violations. Petri and Matthew summarily denied the IRR.

Plaintiff then filed an Offender Grievance, which was denied by a Warden’s Response that failed

to address the substance of Plaintiff’s grievance. Plaintiff then filed another Offender Grievance,

which was denied by Lewis, who found that Defendants’ use of force on March 2021 was

necessary. Plaintiff alleges that the denial of Plaintiff’s grievances “failed to address the incident

and complaints at issue, provided no accountability and, essentially, rubberstamped the

aforementioned Defendants’ treatment of [Plaintiff].” (Doc. #19, ¶ 88.) Plaintiff alleges under

Count I, II, III, and IV that Lewis, Falkenrath, Petri, and Matthew’s choice to ignore the

constitutional violations amounted to “deliberate indifference to [Plaintiff’s] vulnerability as a

transgender woman and placed her in harm’s way when they failed to take protective measures”

and approved the other defendants’ conduct. (Doc. #22, ¶ 148.) Like the warden in Fruit, who

tacitly authorized the other prison official’s conduct by denying the inmate’s grievances and

otherwise failed to take corrective actions, Plaintiff here adequately alleges these defendants

tactically authorized the other defendants’ actions in the March 2021 incident.4

Second, Defendants argue that Plaintiff cannot rely on a theory that Falkenrath failed to

train or supervise the other defendants because Plaintiff failed to allege that Falkenrath “was

directly involved in making, implementing, or enforcing” a policy decision that led to the

constitutional violations. (Doc. #42, p. 12.)

When a supervising official who had no direct participation in an alleged

constitutional violation is sued for failure to train or supervise the offending actor,

the supervisor is entitled to qualified immunity unless plaintiff proves that the

supervisor (1) received notice of a pattern of unconstitutional acts committed by a

subordinate, and (2) was deliberately indifferent to or authorized those acts.

S.M. v. Krigbaun, 808 F.3d 335, 340 (8th Cir. 2015) (citing Livers v. Schenck, 700 F.3d 340, 355

(8th Cir. 2012)). As previously discussed, Plaintiff alleges that Falkenrath, through Plaintiff’s

use of the grievance process after the March 2021 incident, had notice of unconstitutional

conduct against Plaintiff, and Falkenrath was deliberately indifferent by failing to take corrective

action. The Court finds these allegations are sufficient to state a claim against Falkenrath under

Counts I, II, III, and IV.

Finally, regarding Count VII, Defendants argue that the state-law assault and battery

claim should be dismissed because Plaintiff “relies on the same rubberstamping allegations[.]”

(Doc. #42, p. 13.) The Court rejects this argument for the same reasons it rejects this argument

regarding Counts I, II, III, and IV. In turn, the Court finds Count VII states a claim against

Lewis, Falkenrath, Petri, and Matthew.

4 Defendant summarily argues that Plaintiff cannot demonstrate a clearly established right was violated. The Court

finds that a supervisor’s deliberate indifference towards, or tacit authorization of another prison official’s

unconstitutional conduct may hold a supervisor liable under § 1983 was clearly established at the time of the alleged

misconduct. The Court thus rejects Defendants’ argument.

E. Counts II, III, IV, and VI against Defendants

Defendants argue that Counts II (Fourth Amendment Violation), III (Fourteenth

Amendment Equal Protection Violation), IV (First Amendment Retaliation), and VI (First

Amendment Retaliation) should be dismissed in their entirety against all defendants because

(1) Plaintiff did not have a clearly established Fourth Amendment right under Count II; (2)

Plaintiff did not have clearly established equal protection rights under Count III; (3) Plaintiff has

not pled facts demonstrating that Defendants, including Mauler and Soone, took any retaliatory

action that violated her First Amendment rights.5

Regarding Count II, violation of Plaintiff’s Fourth Amendment rights, the Court finds

that Plaintiff did have a clearly established right. As explained above, qualified immunity

protects Defendants so long as they did not violate Plaintiff’s “clearly established” constitutional

rights. Kulkay, 847 F.3d at 642. The Eighth Circuit has clearly established that “prison inmates

are entitled to Fourth Amendment protection against unreasonable searches of their bodies[.]”

Story v. Foote, 782 F.3d 968, 970 (8th Cir. 2015) (citation and quotations admitted). Since at

least 2001, the Eighth Circuit has held that the law:

was clear that strip searches should be conducted in an area as removed from public

view as possible without compromising legitimate security concerns. . . . The law

was also clear that strip searches should be conducted by officials of the same sex

as the individual to be searched. . . . Finally, the law was clear that strip searches

should be performed in a hygienic fashion and not in a degrading, humiliating or

abusive fashion.

Richmond v. City of Brooklyn Ctr., 490 F.3d 1002, 1008 (8th Cir. 2007). Count II stems from

Defendants allegedly “unnecessary and offensive touching” during their strip search of Plaintiff,

5 Defendants summarily argue that the First Amendment rights in Count IV were not clearly established. However,

as previously discussed, the Eight Circuit has long “recognized the First Amendment right to petition for redress of

grievances includes redress under established prison grievance procedures.” Dixon v. Brown, 38 F.3d 379, 379 (8th

Cir. 1994). The Court finds this right applies to providing Plaintiff access to her PREA investigator.

which was performed in a “degrading, humiliating, and abusive manner,” that left “[Plaintiff’s]

breasts exposed while Defendants carried her through the prison in view of male inmates to the

Rubber Room” (Doc. #19, ¶¶ 158-59.) In turn, the Court finds that Count II adequately alleges

Defendants violated a clearly established constitutional right.

Regarding Count III, Defendants argue that Plaintiff did not have clearly established

Fourteenth Amendment rights. Count III arises out of Defendants preventing Plaintiff “from

wearing clothes that conform to her gender identity, refused to refer to her by her preferred

pronouns, subjected her to unnecessary force, stripped her clothes, and forced her to be displayed

topless in front of male inmates—all conduct that similarly situated inmates are not subjected

to.” (Doc. #19, ¶ 173.) Plaintiff alleges that the “Equal Protection Clause prohibits JCCC

officials from intentionally treating [Plaintiff] differently from similarly situated inmates without

a rational basis related to a legitimate penological purpose.” (Doc. #19, ¶ 171.) Taking

Plaintiff’s allegations as true at this stage of the litigation, the Court finds that Plaintiff has

sufficiently alleged that Defendants violated her clearly established Fourteenth Amendment

rights.

Finally, regarding Count IV, Defendants argue that Plaintiff does not demonstrate that

any specific defendant took any retaliatory action that violated her First Amendment. Count VI

is asserted against Epps, Falter, Dobbins, Bade, Petri, Matthew, Falkenrath, Lewis, and Mauler.

The Court finds Plaintiff does allege specific conduct for each of these defendants. For example,

Plaintiff alleges that Mauler, Sonne, and Dobbins took her personal belongings in retaliation for

filing a grievance against Defendants. Plaintiff also alleges that Bade and Dobbins refused to

provide Plaintiff with necessary mental health treatment, and Falter and Epps denied Plaintiff

access to showers. She alleges none of the Defendants permitted her to visit the PREA

investigator she was originally scheduled to visit prior to the March 2021 incident. As previously

discussed, Plaintiff adequately alleges that Lewis, Falkenrath, Petri, and Matthew were

deliberately indifferent to and tactically authorized Defendants’ First Amendment retaliatory

conduct.

In turn, the Court finds that each count adequately states a claim against Defendants, and

Defendants have not demonstrated they are entitled to qualified immunity on the face of the

complaint. The motion is thus denied.

IV. CONCLUSION

Accordingly, it is ORDERED that Defendants’ Partial Motion to Dismiss (Doc. #41) is

DENIED.

IT IS SO ORDERED.

/s/ Stephen R. Bough

STEPHEN R. BOUGH

UNITED STATES DISTRICT JUDGE

Dated: August 8, 2022