DIAMOND v. OWENS et al
Filing
69
ORDER DENYING 35 Motion to Dismiss for Failure to State a Claim and DENYING 38 Motion to Dismiss for Failure to State a Claim. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/14/2015. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ASHLEY A. DIAMOND,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BRIAN OWENS, et al.,
Defendants.
CIVIL ACTION NO. 5:15-CV-50 (MTT)
ORDER
Plaintiff Ashley Diamond alleges she1 is a transgender woman with gender
dysphoria. She alleges the Defendants, in various ways, violated her constitutional
rights while she was an inmate in various Georgia prisons by failing to provide her with
medical treatment and by failing to protect her from sexual assault. Some of the
Defendants have moved to dismiss some of Diamond’s claims. (Docs. 35; 38). For the
reasons discussed in detail below, the motions are DENIED.
I.
INTRODUCTION
When she filed her complaint, Ashley Diamond was a “nonviolent” Georgia prison
inmate who had been incarcerated after violating probation imposed after a theft
conviction. (Doc. 3, ¶¶ 8, 16). In her 163 paragraph, 38 page verified complaint,
Diamond alleges that officials in four different prisons repeatedly violated her
constitutional rights by failing to provide her with medical treatment for her gender
dysphoria and by failing to protect her from sexual assaults. As a result, she alleges
1
All parties refer to Diamond with feminine pronouns. Consequently, the Court does the same. This
should suggest nothing other than consistency.
that on many different occasions she attempted suicide, attempted to castrate herself,
was raped, and was otherwise sexually assaulted by inmates at the maximum security
prisons in which she was housed. Her complaint attacks in particular the Georgia
Department of Corrections’ Standard Operating Procedure on the Management of
Transsexuals (the “Transgender SOP”). Diamond claimed that although the
Transgender SOP recognized that gender dysphoria is a serious medical need requiring
special medical evaluations and appropriate treatment, the Transgender SOP
nevertheless limited treatment to specific inmates, specifically those inmates who had
been identified as transgender during their intake screenings, and even then treatment
was limited to “‘maintenance.’” (Doc. 3, ¶¶ 47-49). She calls this type of policy a
“freeze-frame policy.” (Doc. 3, ¶ 142).
Shortly after Diamond filed her complaint, the Department of Justice filed a
Statement of Interest of the United States. (Doc. 29). “[T]o assist the Court in
evaluating” Diamond’s motion to enjoin the enforcement of the Transgender SOP, the
United States argued that “proscriptive freeze-frame policies are facially unconstitutional
under the Eighth Amendment because they do not provide for individualized
assessment and treatment.” (Id. at 2). Shortly after that, during a hearing on
Diamond’s motion for a temporary restraining order, defense counsel announced, to the
surprise of Plaintiff’s counsel and the Court, that the freeze-frame policy had been
“rescinded, I want to say, two days ago.” (Doc. 40 at 33). The Court has heard nothing
further from the United States so it assumes that the rescission of the policy has
satisfied the United States “interests.” It did not, however, resolve Diamond’s claims for
injunctive and declaratory relief unrelated to the freeze-frame policy. Then, on August
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31, 2015, the Georgia Department of Corrections released Diamond from custody. That
resolved Diamond’s remaining claims for injunctive and declaratory relief. (Docs. 67;
68). The Court now turns to the Defendants’ remaining issues raised by the motions to
dismiss.
II.
BACKGROUND2
A. Gender Dysphoria
Ashley Diamond suffers from gender dysphoria. Gender dysphoria “is a medical
condition in which an individual’s gender identity and … identification differ from the
gender assigned at birth.” (Doc. 3, ¶ 25). Diamond alleges medical professionals agree
that gender dysphoria is a serious medical condition requiring treatment conforming to
the “Standards of Care.”3 (Doc. 3, ¶¶ 27-28). These standards provide that
transgender persons should be assessed individually and given appropriate treatment,
which may consist of outward expression of “one’s internal sense of gender identity,”
hormone therapy, and/or sex reassignment surgery, but not psychotropic drugs or
counseling alone. (Doc. 3, ¶¶ 31-34). If left untreated or if treatment is discontinued,
there is a “severe risk” the individual will experience “suicidality[,] the impulse to engage
in self-castration and self-harm, … clinically significant depression, anxiety, and mental
impairment.” (Doc. 3, ¶¶ 27, 32, 34).
2
The facts are taken from the allegations in the complaint (Doc. 3) and accepted as true for purposes of
the motions.
3
The Standards of Care are published by the World Professional Association of Transgender Health and
recognized as “the authoritative and clinically accepted treatment … by the American Psychiatric
Association, the American Medical Association, courts that have considered the issue, and members of
the medical community at large.” (Doc. 3, ¶¶ 28-29).
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B. GDOC’s Policies on Transgender Inmates
GDOC’s now rescinded “Transgender SOP” recognized gender dysphoria as a
serious medical condition and “discusse[d] the treatment regimen described in the
Standards of Care.” (Doc. 3, ¶¶ 46-47). However, only inmates identified as
transgender at intake were eligible for treatment. (Doc. 3, ¶ 48). Even if an inmate was
classified at intake as transgender, the Transgender SOP limited treatment to
“‘maintenance’ of existing treatments—preventing healthcare personnel from initiating
medical treatment that in their judgment is medically required for an inmate based on
the Standards of Care.” (Doc. 3, ¶ 49). Pursuant to the Transgender SOP, “inmates
who [were] diagnosed with gender dysphoria after their initial diagnostic screening[ ] or
who cannot show a history of treatment” were ineligible for treatments. (Doc. 3, ¶ 50).
This policy, described as a “freeze-frame policy,” prevented medical professionals from
initiating treatment for gender dysphoria. (Doc. 3, ¶¶ 48-49, 142).
The Transgender SOP also discussed “securing proper placements for
transgender inmates” and outlined procedures to reduce the risk of harm. (Doc. 3, ¶
52). The SOP obligated the Statewide Medical Director, Defendant Sharon Lewis, to
address housing placements for transgender inmates, particularly when safety issues
arose. (Doc. 3, ¶¶ 52-53). The Prison Rape Elimination Act (“PREA”) and GDOC’s
policies on PREA and sexual assault (the “Sexual Assault SOPs”) also provide
guidelines to ensure transgender inmates’ safety from sexual assault.4 (Doc. 3, ¶ 54).
Pursuant to the Sexual Assault SOPs, personnel must immediately notify wardens,
Sexual Assault Response Team (“SART”) personnel, and Defendant Lewis when sexual
4
Diamond alleges that the Transgender SOP, PREA, and GDOC’s Sexual Assault SOPs are provided to
all GDOC personnel, and thus the Defendants were familiar with them. (Doc. 3, ¶¶ 46, 54).
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abuse allegations are reported. (Doc. 3, ¶ 60). Finally, the Sexual Assault SOPs
impose on wardens and SART personnel the “responsibility to arrange for medical and
mental health examinations of suspected sexual assault victims[ ] and revised housing
placements.” (Doc. 3, ¶ 61).
C. Diamond’s Background and Incarceration
Since childhood, Diamond has “strongly identified” as female rather than her
“assigned [male] gender.” (Doc. 3, ¶ 36). After attempting suicide at the age of 15,
Diamond was diagnosed with gender dysphoria. (Doc. 3, ¶¶ 38-39). Since then, she
has lived and expressed herself as female. (Doc. 3, ¶ 39). At 17, she began hormone
treatments, and that treatment continued for over 17 years. (Doc. 3, ¶¶ 40, 42). As a
result, she has developed female secondary sex characteristics, including “full breasts,
a feminine shape, soft skin, and … a reduction in male attributes.” (Doc. 3, ¶ 40).
On March 27, 2012, Diamond’s hormone therapy and “female expression”5 were
terminated after she was placed in GDOC’s custody for a non-violent offense. (Doc. 3,
¶¶ 42, 45). At intake, despite her female characteristics and GDOC’s knowledge that
she was a transgender woman on hormone therapy, “Diamond was not evaluated for
gender dysphoria, referred for treatment, or given a reasonably safe or appropriate
housing placement.” (Doc. 3, ¶ 64). Despite her non-violent offender status, GDOC
housed Diamond at Macon State Prison—a “closed-security facility for adult male
felons” with frequent gang activity and assaults.6 (Doc. 3, ¶¶ 64-66). Within a month,
Diamond was “brutally sexually assaulted” by six gang members. (Doc. 3, ¶ 69).
5
Female expression means just what it suggests—dressing and otherwise presenting oneself as a
woman.
6
A closed-security facility is what GDOC calls its maximum security facilities. (Doc. 3, ¶ 65).
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GDOC then transferred her to Baldwin State Prison, which is also a closed-security
facility. (Doc. 3, ¶ 70). There, inmates again sexually assaulted Diamond. (Doc. 3, ¶
71). Diamond reported these assaults, but personnel were slow to respond, lost her
complaints and physical evidence of the assaults, failed to investigate, and told her she
“brought her assaults upon herself” because she was transgender. (Doc. 3, ¶ 71).
Pursuant to GDOC policies, Lewis was notified after each assault but “took no action.”7
(Doc. 3, ¶¶ 60, 71).
GDOC mental health professionals diagnosed Diamond with post-traumatic
stress disorder (“PTSD”) and recommended a transfer to a medium-security facility
because her transgender status made her more vulnerable to sexual assaults at a
closed-security facility.8 (Doc. 3, ¶ 72). They also diagnosed Diamond with gender
dysphoria, noted her history of treatment and self-harm attempts, and recommended
ongoing treatment. (Doc. 3, ¶ 73). No treatment was provided. (Doc. 3, ¶ 73).
Diamond attempted suicide on February 28, 2013. (Doc. 3, ¶ 73). Two months later,
GDOC healthcare providers reconfirmed Diamond’s gender dysphoria and PTSD.
(Doc. 3, ¶ 74). GDOC psychologist Stephen Sloan also performed an individualized
assessment of Diamond pursuant to the Standards of Care. (Doc. 3, ¶ 75). He
7
Several of Diamond’s allegations are prefaced by “upon information and belief.” The Defendants do not
specifically contend these allegations are conclusory because they are based “upon information and
belief.” Rather, they consistently argue Diamond’s allegations are generally conclusory. Allegations
based on information and belief can be problematic if they are merely conclusory. But Diamond’s
information and belief allegations are buttressed by specific facts and otherwise supported by inferences
derived from other well-pled allegations, which make the “upon information and belief” allegations
plausible. See Sneed v. SEI/Aaron’s, Inc., 2013 WL 6669276, at *2 (N.D. Ga.). For example, Diamond
alleges that, upon information and belief, Lewis was notified after each incident of sexual assault pursuant
to GDOC policy. (Doc. 3, ¶¶ 69, 71). This allegation is buttressed by Diamond’s specific allegation that
GDOC’s sexual assault policies require personnel to immediately notify Lewis about sexual assault
allegations. (Doc. 3, ¶ 60).
8
Diamond alleges that sexual assaults against transgender inmates are infrequent at medium-security
facilities, which house non-violent offenders. (Doc. 3, ¶¶ 68, 77).
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concluded Diamond “stood a substantial risk of self-harm and suicide” without treatment
and recommended Diamond receive hormone therapy and be permitted female gender
expression. (Doc. 3, ¶ 75). Lewis “refused to authorize treatment,” and Diamond’s
visits with Dr. Sloan were discontinued. (Doc. 3, ¶ 76).
D. Rutledge State Prison
On October 1, 2013, Diamond was transferred to Rutledge State Prison, a
medium-security facility for non-violent inmates. (Doc. 3, ¶ 77). Upon Diamond’s
arrival, Defendants Warden Shay Hatcher, Deputy Warden of Care and Treatment
Ruthie Shelton, and John Thompson and Donna Silver, healthcare providers at
Rutledge, received her records of “sexual assaults, gender dysphoria diagnosis, history
of hormone treatment, past attempts at self-harm, and requests for ongoing care.”
(Doc. 3, ¶ 78).
Diamond informed Thompson and Silver about her prior hormone therapy, Dr.
Sloan’s assessment, and her “muscle spasms, chronic pain, and compulsion to engage
in self-castration” from lack of treatment. (Doc. 3, ¶¶ 79-80). They denied her request
for hormone treatments. (Doc. 3, ¶¶ 81, 84). In November 2013, Diamond contacted
Shelton about the availability of treatment for gender dysphoria. (Doc. 3, ¶ 82). Shelton
replied that “the Department does not offer therapy for this at this time” and also advised
personnel that GDOC’s policy permits counseling but not the initiation of hormone
therapy. (Doc. 3, ¶ 83). Diamond then contacted Warden Hatcher and requested
treatment. (Doc. 3, ¶ 85). Shelton, on Hatcher’s behalf, wrote a letter acknowledging
Diamond “was suffering from the denial of medical care” but only advised her “to
develop better coping mechanisms.” (Doc. 3, ¶ 86).
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After Diamond filed a grievance about the denial of treatment, Hatcher placed her
in solitary confinement twice: once for “pretending to be a woman” and then again after
attorneys visited her. (Doc. 3, ¶¶ 88-89). Hatcher visited Diamond in solitary in
December 2013, and Diamond told him she was suicidal from lack of treatment. (Doc.
3, ¶ 89). When Hatcher left her in solitary, Diamond attempted suicide and selfcastration, and she was “hospitalized on an emergency basis.” (Doc. 3, ¶ 90).
Diamond alleges Hatcher and Lewis were told of her suicide and castration attempts.
(Doc. 3, ¶ 90). Lewis subsequently informed Diamond that GDOC personnel “had
handled matters appropriately” and instructed personnel “to continue their blanket policy
of refusing to initiate gender dysphoria treatment[ ] and offering counseling in lieu of
medically necessary treatment called for by the Standards of Care.” (Doc. 3, ¶ 91).
E. Valdosta State Prison
On December 31, 2013, Diamond was transferred to Valdosta State Prison, a
closed-security facility. (Doc. 3, ¶ 92). Upon her arrival, Defendants Warden Marty
Allen and David McCracken, the Director of Mental Health Services and PREA
coordinator at the prison, received records “detailing her history of sexual assaults,
gender dysphoria diagnosis, history of hormone treatment, past attempts at self-harm,
and requests for ongoing care.” (Doc. 3, ¶¶ 20, 92).
In January and February 2014, Drs. Moody and Harrison, medical personnel at
Valdosta State Prison, concluded Diamond “stood a high risk for suicide and self-harm”
if she did not receive hormone therapy. (Doc. 3, ¶¶ 95-96). Dr. Moody advised Lewis of
their conclusions and “sought to initiate treatment.” (Doc. 3, ¶ 97). But, adhering to the
Transgender SOP, Lewis only permitted counseling. (Doc. 3, ¶ 97). Diamond was
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hospitalized in March 2014 after again attempting suicide and self-castration. (Doc. 3, ¶
104). Diamond then contacted GDOC Commissioner Brian Owens,9 Allen, and
McCracken regarding her lack of treatment. Diamond explained to the Commissioner
her medical history and GDOC’s repeated denial of treatment, but he refused to
authorize treatment and continued to enforce GDOC’s policy. (Doc. 3, ¶¶ 107, 109,
135). Allen responded with ridicule, disciplined her for her female expression, and
“encouraged his staff to ridicule” her. (Doc. 3, ¶ 111). McCracken “deferred and
delayed any action.” (Doc. 3, ¶ 103).
In addition, GDOC personnel at Valdosta State Prison failed to provide Diamond
with “safety accommodations.” (Doc. 3, ¶ 93). Rather, she was simply told at intake
that the prison “lacked the means to safely house transgender persons” and that she
should “guard [her] booty” because she “stood a high likelihood of being sexually
assaulted based on the inmate population, which included many gang members.” (Doc.
3, ¶ 93).
The day after her transfer to Valdosta State Prison, Diamond was sexually
assaulted by her cellmate. (Doc. 3, ¶ 94). Still, no action was taken, and she remained
housed with the perpetrator who continued to sexually harass and coerce her. (Doc. 3,
¶ 94). Diamond was sexually assaulted again on February 9, 2014, and she was twice
sexually assaulted in April 2014. (Doc. 3, ¶¶ 99, 106).
Lewis, Allen, and McCracken were notified after each report of sexual assault
pursuant to GDOC’s policy, but they did not adjust Diamond’s placement or take other
9
Homer Bryson replaced Brian Owens as Commissioner after Diamond filed her complaint. Because
Owens was sued only in his official capacity, Bryson was automatically substituted for Owens. In this
Order, Owens is referred to as the Commissioner. The Commissioner has been dismissed from this
action. (Doc. 68).
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safeguarding measures. (Doc. 3, ¶¶ 60, 94, 99). Specifically, Dr. Harrison told Allen
and McCracken that Diamond should be transferred because she stood a high risk of
sexual assault given Valdosta’s inmate population. (Doc. 3, ¶ 98). Diamond also
personally contacted Allen and McCracken about her safety. In April 2014, Diamond
told Allen of the assaults, but he “refused to act.” (Doc. 3, ¶ 105). In February, May,
and June of 2014, Diamond told McCracken about the assaults and requested a
transfer. (Doc. 3, ¶¶ 102-103, 114). But McCracken “deferred and delayed any action,”
resulting in further “sexual harassment and coercion.” (Doc. 3, ¶¶ 103, 114-15).
Diamond also contacted the Commissioner twice about her repeated sexual assaults at
closed-security prisons and requested a transfer to a medium-security facility, but
Diamond remained at Valdosta State Prison. (Doc. 3, ¶¶ 101, 107). After filing a pro se
lawsuit against Allen and McCracken, Diamond was transferred back to Baldwin, where
she had previously been sexually assaulted. (Doc. 3, ¶¶ 119-20).
III.
DISCUSSION
Diamond asserts four claims in her complaint. (Doc. 3). She alleges (1) all
defendants were deliberately indifferent to her serious medical needs by denying her
medically necessary treatment for her gender dysphoria; (2) Lewis violated her Eighth
Amendment rights by enacting and enforcing an unconstitutional “freeze-frame policy”
regarding gender dysphoria treatment; (3) Lewis, Allen, and McCracken failed to protect
her from a substantial risk of sexual assault; and (4) Lewis failed to train GDOC
personnel regarding transgender inmates’ health and safety. Hatcher, Allen, and
McCracken argue Diamond failed to exhaust her administrative remedies with respect
to Count 1. Allen and McCracken argue Diamond failed to exhaust her administrative
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remedies with respect to Count 3. Allen, Shelton, McCracken, Thompson, and Silver
move to dismiss Count 1 for failure to state a claim, and Allen, Shelton, Lewis, and
Hatcher argue they are entitled to qualified immunity. Lewis and McCracken move to
dismiss Count 3 for failure to state a claim, and Lewis argues she is entitled to qualified
immunity. Lewis moves to dismiss Count 4 for failure to state a claim and asserts
qualified immunity.
A. Failure to Exhaust Administrative Remedies
42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title ... by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available
are exhausted.” “[W]hen a state provides a grievance procedure for its prisoners, as
Georgia does here, an inmate alleging harm suffered from prison conditions must file a
grievance and exhaust the remedies available under that procedure before pursuing a
§ 1983 lawsuit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (internal
quotation marks and citation omitted). Grievances should provide prison officials with
fair notice of a problem and thus an opportunity to address the problem before a lawsuit
is filed. Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004). In determining
whether a plaintiff has exhausted administrative remedies, the Court can resolve factual
disputes using evidence from outside the pleadings. Bryant v. Rich, 530 F.3d 1368,
1376 (11th Cir. 2008).
The resolution of a failure-to-exhaust administrative remedies defense typically
involves two steps. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). The
court first looks to the parties’ factual allegations. Id. If they conflict, the court takes the
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plaintiff's version of the facts as true. Id. “If, in that light, the defendant is entitled to
have the complaint dismissed for failure to exhaust administrative remedies, it must be
dismissed.” Id. If the complaint is not subject to dismissal under the plaintiff's version of
the facts, the court must proceed to the second step, making specific findings of fact to
resolve the disputed factual issues related to exhaustion. Id. At this step, the
Defendants have the burden to prove Diamond failed to exhaust her administrative
remedies. Id. Here, however, the Parties mostly do not dispute the facts relevant to
Diamond’s grievances. Rather, the Defendants contend these facts establish that
Diamond failed to exhaust. In the absence of factual disputes, the Court will simply
determine whether the allegations establish Diamond exhausted her administrative
remedies as to the specific claims against the Defendants. However, in some
instances, the Defendants disagree with Diamond’s interpretation of the facts, and,
where necessary, the Court will treat their disagreement as a factual dispute and
resolve that dispute as required by step two of the Turner analysis. See Toenninges v.
Ga. Dep’t of Corr., 600 F. App’x 645, 649 (11th Cir. 2015).
GDOC’s grievance procedure requires inmates to follow a two-step process to
exhaust their administrative remedies. They must (1) file an original grievance no later
than 10 days from the date of the incident giving rise to the grievance; and (2) if the
original grievance is rejected, file an appropriate appeal within seven days of receiving
the rejection. (Doc. 35-3, ¶¶ 6-17). The untimeliness of a grievance may be waived for
good cause. (Doc. 35-2 at 15). As discussed more fully below, when a grievance
alleges sexual assault, “the grievance process is terminated and the matter is forwarded
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to the Internal Investigation Unit and/or the PREA coordinator for review.” (Docs. 35-2
at 18; 35-3, ¶ 20).
1. Whether Diamond Exhausted Her Claims for Deliberate Indifference
to Medical Needs
Diamond contends Grievance #163506, which she filed at Rutledge State Prison
and which the Court will call the “Rutledge grievance,” exhausted her claims for
deliberate indifference to medical needs against Hatcher at Rutledge State Prison and
Allen and McCracken at Valdosta State Prison. Diamond also contends Grievance
#173610, which she filed at Valdosta State Prison, exhausted her claims for deliberate
indifference against Allen and McCracken. Diamond fully exhausted both grievances
pursuant to GDOC’s two-step grievance process. Hatcher, Allen, and McCracken,
however, contend those grievances did not exhaust Diamond’s administrative remedies
because they did not raise the same issues Diamond alleges against them in her
complaint.
Diamond’s deliberate indifference claims against Hatcher, Allen, and McCracken
are based on the following allegations. Diamond alleges that Hatcher, Allen, and
McCracken were aware from GDOC’s Transgender SOP that gender dysphoria is a
serious medical condition that can require hormone therapy and female gender
expression. (Doc. 3, ¶¶ 46-47). Upon Diamond’s transfer to Rutledge State Prison on
October 1, 2013, Hatcher received records detailing Diamond’s gender dysphoria
diagnosis, history of hormone treatment, and requests for ongoing care. (Id. at ¶¶ 7778). After being denied gender dysphoria treatment by medical professionals and being
told by them and by Defendant Shelton that she would receive no treatment for gender
dysphoria at Rutledge, Diamond wrote a letter to Hatcher explaining her gender
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dysphoria and her ongoing need for treatment. (Id. at ¶¶ 79-85). Shelton, on Hatcher’s
behalf, responded that they “acknowledged [she] was suffering from the denial of
medical care” and advised her “to develop better coping mechanisms” instead of
referring her for treatment. (Id. at ¶ 86). Thereafter, Diamond filed the Rutledge
grievance in which she grieved the “denial of treatment for her serious medical needs.”
(Docs. 3, ¶ 87; 49-4 at 9). “In response” to the grievance, Hatcher put Diamond in
solitary confinement for nearly a week for “‘pretending to be a woman.’” (Doc. 3, ¶ 88).
Hatcher again put Diamond in solitary confinement after she was visited by attorneys
who learned of her denial of treatment. (Id. at ¶ 89). During that period of confinement,
Diamond told Hatcher “she was not simply ‘pretending to be a woman,’ but had serious
medical needs requiring treatment.” (Id.). Diamond also told Hatcher she was suicidal
because she had been denied the care. (Id.). Still, Hatcher refused to refer Diamond
for treatment. (Id. at ¶ 90). Immediately after that, Diamond attempted suicide and tried
to sever her penis. (Id.).
Diamond was then transferred to Valdosta State Prison where Allen and
McCracken were provided with “a transfer summary detailing [Diamond’s] history of
sexual assaults, gender dysphoria diagnosis, history of hormone treatment, past
attempts at self-harm, and requests for ongoing care.” (Id. at ¶ 92). Mental health
professionals at Valdosta State Prison performed individualized assessments of
Diamond and concluded that she should receive treatment for her gender dysphoria and
that she was experiencing withdrawal because treatment had been denied. (Id. at
¶ 96). Further, they concluded the denial of medical care created a “high risk for suicide
and self-harm.” (Id.). However, she does not allege that Allen and McCracken were
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aware of these conclusions. She does allege that she told McCracken about her
gender dysphoria and that she needed medical care. (Id. at ¶ 102). She asked
McCracken to transfer her to a facility where she could receive gender dysphoria care.
(Id. at ¶ 103). In May 2014, Diamond “personally contacted Defendant Allen again
regarding her gender dysphoria and ongoing need for treatment, but, in response,
Defendant Allen began subjecting Ms. Diamond to harassment on account of her being
transgender.” (Id. at ¶ 110).10 Specifically, Allen ridiculed Diamond and encouraged
staff to ridicule her for her female gender expression. (Id. at ¶ 111). On May 15, 2014,
he disciplined her for her gender expression. (Id.). Diamond then alleges she
complained about “Allen’s conduct and her ongoing denial of medical care.” (Id. at ¶
112). This is an apparent reference to Grievance #173610. In May and June 2014,
Diamond continued to speak with McCracken about her need for care. (Id. at ¶ 114).
a. The Rutledge grievance
In the Rutledge grievance, Diamond stated:
I met with the [psychologist] Dr. Thomson and [psychiatrist] Dr. Silver in regards
to treatment for [gender dysphoria]. They told me that they weren[’]t going to
treat [gender dysphoria] at Rutledge. I am grieving the denial of treatment for my
serious medical needs. I also the same day received a letter from the Warden of
Care and [T]reatment saying the same.
(49-4 at 9). For relief, she requested “[t]reatment for my Disorder by transferring me to
a facility that has [doctors qualified] to treat me.” (Id.). During the grievance
investigation, Defendant Shelton characterized Diamond’s allegations as follows:
“Inmate alleges that he is not receiving proper treatment for his serious medical needs.
He says he met with [Dr. Silver] and Dr. Thompson in regards to receiving treatment for
10
Despite Diamond’s suggestion that she again asked Allen about the denial of medical care, there is no
evidence of an earlier communication with Allen about medical care. She does allege she contacted
Allen about safety concerns. (Id. at ¶ 105).
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[gender dysphoria] and he was told that that type of treatment is not done here.” (Id. at
5). The grievance coordinator similarly characterized Diamond’s grievance: “Inmate
alleges that he is not receiving proper treatment for his medical needs. He says that he
met with Dr. Silver and Dr. Thompson in regards to receiving treatment for [gender
dysphoria] and was told that this treatment is not done at this facility.” (Id. at 4).
Hatcher denied the grievance, and Lewis denied Diamond’s appeal. (Id. at 2-3).
Seizing on a single paragraph in Diamond’s complaint, Hatcher and Allen argue
that the deliberate-indifference-to-medical-needs claim against them is based on their
alleged punishment of Diamond for “expressing her female gender, a medical
necessary form of treatment.” (Doc. 3, ¶ 130). Based on this interpretation of
Diamond’s claim, they argue the Rutledge grievance does not involve “the exact same
issue,” and thus the grievance could not have exhausted her claim for their conduct
subsequent to the filing of the Rutledge grievance. (Doc. 56 at 3). McCracken claims
that the Rutledge grievance did not exhaust the claim against him because it concerned
treatment by other medical providers at another prison. (Doc. 57 at 5). Citing Parzyck
v. Prison Health Services, Inc., 627 F.3d 1215 (11th Cir. 2010), Diamond contends that
the Rutledge grievance exhausted her deliberate indifference claims against all three.
In Parzyck, the plaintiff grieved that he was being denied consultations for severe
back pain. 541 F.3d at 1218. During the pendency of his grievance appeal, a new
doctor assumed responsibility for the plaintiff’s care. Id. The plaintiff requested a
consultation with the new doctor, but he denied the request just as the previous doctor
had done. Id. After the denial of his appeal, the plaintiff sued. Id. The Eleventh Circuit
reversed the district court’s conclusion that the plaintiff failed to exhaust any claim
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based on the second doctor’s denial of treatment. Id. at 1218-19. The Eleventh Circuit
reasoned the first grievance accomplished the exhaustion requirement’s purpose to
alert prison officials to a problem because the issue raised in the first grievance was the
“exact same issue” the plaintiff alleged against the second doctor. Id. at 1219 (“Parzyck
was not required to initiate another round of the administrative grievance process on the
exact same issue each time another request for an orthopedic consultation was
denied.”). The court further noted that “[n]othing in the [agency’s] grievance procedures
requires inmates to file new grievances addressing every subsequent act by a prison
official that contributes to the continuation of a problem already raised in an earlier
grievance.” Id.
As in Parzyck, nothing in GDOC’s grievance procedures “requires inmates to file
new grievances addressing every subsequent act by a prison official that contributes to
the continuation of a problem already raised in an earlier grievance.” Id. Further,
GDOC’s grievance procedure does not require a particular level of factual specificity for
inmates’ grievances or that each defendant implicated by the grievance be named. “[A]
grievance suffices if it alerts the prison to the nature of the wrong for which redress is
sought” and gives prison officials an opportunity to resolve it. Doe v. Wooten, 2010 WL
2821795, at *2 (N.D. Ga.); see also Parzyck, 627 F.3d at 1218-19; Chandler, 379 F.3d
at 1287; Brown v. Sikes, 212 F.3d 1205, 1210 (11th Cir. 2000). Therefore, if a
grievance alerts a prison official to an issue, the prisoner need not again grieve the
“exact same issue.” Parzyck, 627 F.3d at 1218-19.
However, and directly contrary to Hatcher’s assertion, Diamond’s claim against
him is not based only on his disciplining of her after she filed the Rutledge grievance.
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Before she filed the grievance, she wrote Hatcher regarding her ongoing request for
treatment. (Doc. 3, ¶¶ 79-85). Shelton, on Hatcher’s behalf, acknowledged Diamond’s
letter, but prison officials at Rutledge still refused to refer her for treatment. (Id. at ¶ 86).
Thus, Diamond alleges that Hatcher was directly involved in the conduct she complains
about in the Rutledge grievance. He was not, as in Parzyck, an actor who only entered
the picture after Diamond filed the Rutledge grievance. Thus, it is not necessary to turn
to Parzyck to find that the grievance alerted prison officials at Rutledge State Prison,
including Hatcher, to her deliberate indifference claims.
That Diamond alleges that Hatcher, while the grievance process was ongoing,
placed her in solitary for “pretending to be a woman” and personally told her she would
receive no treatment even though she was suicidal (Id. at ¶ 89) certainly buttresses
Diamond’s claim against Hatcher. But those allegations do not raise a new claim
raising an issue different than the issue she raised in the Rutledge grievance.11 Indeed,
it was Hatcher himself who denied Diamond’s grievance shortly after he visited her in
solitary. (Doc. 49-4 at 3). Hatcher’s alleged conduct during the grievance process that
contributed to the ongoing denial of gender dysphoria treatment constitutes subsequent
“harmful incident[s] in a string of related occurrences.” See Toenninges, 600 F. App’x at
11
The Eleventh Circuit in Parzyck relied on the Fifth Circuit’s decision in Johnson v. Johnson, 385 F.3d
503 (5th Cir. 2004). In discussing whether inmates are obligated to file subsequent grievances regarding
the same issue, the Fifth Circuit cites to authority recognizing that “[r]igid ‘issue exhaustion’” is
“inappropriate when the fundamental issue is one of medical care from the same injury.” Sulton v. Wright,
265 F. Supp. 2d 292, 298 (S.D.N.Y. 2003), abrogated on other grounds by Scott v. Gardner, 287 F. Supp.
2d 477 (S.D.N.Y. 2003). Other persuasive authority addressing the same have also refused to break
down allegations involving different “aspects” of the defendant’s conduct that serve as the basis of a
single deliberate indifference claim against him. See Gomez v. Wilson, 177 F. Supp. 2d 977, 982 (N.D.
Cal. 2001) (refusing to divide allegations of inadequate treatment into distinct claims requiring separate
grievances where the allegations are aspects of the single claim); Torrence v. Pelkey, 164 F. Supp. 2d
264, 277-78 (D. Conn. 2001) (“[T]he failure to disclose, monitor[,] or treat plaintiff’s HCV status was part of
the same conduct and temporally congruent with his other deliberate indifference claims against Dr.
Stein, and fairly encompassed in the pro se allegation [in his grievance] that ‘medical neglect … has
caused damage to my … liver.’” (citation omitted)).
- 18 -
649. Thus, the Court easily finds that the Rutledge grievance exhausted Diamond’s
claim against Hatcher for deliberate indifference to her serious medical needs.
Diamond’s deliberate indifference claims against Allen and McCracken, however,
are based on events at Valdosta State Prison. Obviously, the Rutledge grievance
complained only of the denial of treatment at Rutledge, and prison officials who
investigated the grievance characterized the issue as the denial of treatment at
Rutledge. Relying on Parzyck, Diamond argues the Rutledge grievance covered all
staff indifference to Diamond’s medical needs at subsequent prisons. The Court
disagrees. Parzyck cannot reasonably be extended to allow an inmate to use a single
grievance, complaining of a condition of confinement at a specific prison, as an
“umbrella grievance” to cover all similar conditions of confinement at any subsequent
prison the inmate is housed during the duration of his confinement within GDOC
facilities.
Indeed, cases from the Tenth and Fifth Circuits on which the Eleventh Circuit
relied in Parzyck limit their holdings to continuing violations of the same issue raised in
an earlier grievance where the inmate remained in the same situation or where the
subsequent conduct at the same prison occurred within a short duration after the
grievance was filed. See Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008)
(holding a grievance exhausted continuing violations of the issue occurring within the
inmate’s housing wing up until he was transferred out of the prison, but when he was
transferred back to the prison to a different housing wing, the earlier grievance did not
exhaust continuing violations within the different wing); Johnson, 385 F.3d at 521 n.13
(“We pause to observe that we do not here hold that a grievance filed in response to
- 19 -
one particular incident automatically exhausts claims that arise from future incidents of
the same general type.”); see also Pinson v. St. John, 2013 WL 765639, at *1 (N.D.
Ala.) (“Since one of the purposes of the grievance process is to place the prison
administration on notice of the problem and to give the administration the opportunity to
resolve the issue without the need for litigation, it is axiomatic that the plaintiff cannot
now claim exhaustion by referring to a grievance process that occurred at a wholly
different location and involved individuals other than those named as defendants in the
complaint herein.”).
While the Fifth Circuit in Johnson v. Johnson acknowledged the notice-purpose
of exhaustion, the court stated that “at the same time, the grievance must provide
administrators with a fair opportunity under the circumstances to address the problem
that will later form the basis of the suit, and for many types of problems this will often
require, as a practical matter, that the prisoner's grievance identify individuals who are
connected with the problem.” 385 F.3d at 522. Here, although conduct of the same
general type also occurred at Valdosta State Prison, the Rutledge grievance did not
provide facts connecting prison officials at Valdosta State Prison with the problem or
otherwise put prison officials on notice of an internal problem at Valdosta State Prison.
See Goebert v. Lee Cty., 510 F.3d 1312, 1324 (11th Cir. 2007) ( “[T]he exhaustion
requirement in the PLRA seeks to afford corrections officials time and opportunity to
address complaints internally before allowing the initiation of a federal case” (internal
quotation marks and citation omitted)). Thus, the Rutledge grievance did not provide
prison officials with a fair opportunity to address the problem that later formed the basis
of the claims against Allen and McCracken. Accordingly, the Court finds the Rutledge
- 20 -
grievance did not exhaust Diamond’s administrative remedies with respect to the
deliberate indifference claims against Allen and McCracken.
b. Grievance #173610
Diamond also contends Grievance #173610 exhausted her administrative
remedies with respect to her deliberate indifference claims against Allen and
McCracken. In this grievance, she complained that on May 15, 2014, she was told by
the warden, presumably Allen, “that he didn’t like my eyebrows and we aren[’]t going to
do that[.] ‘This is a man’s facility.’” (Doc. 49-5 at 4). Citing her “well-documented”
transgender status, Diamond asked for a transfer to a facility “that can house ‘my kind’
efficiently and safely.” (Id.). She noted that she had requested transfer for safety and
medical reasons numerous times. (Id.). She contended gender dysphoria is a serious
condition and that she “deserve[d] fair impartial treatment [and] respect.” (Id.). She
specifically requested transfer to a facility better equipped to handle transgender
inmates, claiming that she was entitled “to have GDC staff respect trans[gender]
community by [referring] to them as proper pronoun and treating [their] disorder.” (Id.).
When the “Warden/Superintendent” rejected the grievance, Diamond appealed claiming
“there is a medical reason for my eyebrow adornment[.] It is called Gender Identity
Disorder. (Id. at 3). Valdosta State Prison is providing me [with] no treatment.” (Id.).
Allen and McCracken contend that Grievance #173610 raises only the issue of a
purportedly offensive comment by Allen about Diamond’s eyebrows. (Docs. 35-1 at 7-8
n.5; 38-1 at 7-8). This is not a fair reading of Grievance #173610. While the grievance
addressed gender expression, Diamond claimed that she was entitled to treatment for
her disorder. In her appeal, she explained “[t]here is a medical reason for my eyebrow
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adornment. It is called Gender Identity Disorder. Valdosta State Prison is providing me
[with] no treatment ….” (Doc. 49-5 at 3). In response to her grievance, either Allen or
the superintendent12 (1) quoted the policy that facial adornments are prohibited unless
medically indicated and attached the policy with the response; (2) stated Diamond had
no medical need for her facial adornments; and (3) told Diamond she was male and had
to follow the rules. (Id. at 5). In her appeal, Diamond further explains that her medical
condition is the reason for her feminine eyebrows. (Id. at 3). The response to
Diamond’s appeal acknowledged the policy permitting facial adornments when
medically necessary but denied the appeal. (Id. at 2).
The Court finds Grievance #173610 alerted prison officials to the fact that (1)
Diamond is an inmate with gender dysphoria requesting treatment for her disorder; (2)
Valdosta State Prison allegedly cannot adequately treat this disorder; and (3) Allen
prohibits female gender expression, which Diamond alleges is a treatment for gender
dysphoria, because “we aren’t going to do that[.] ‘This is a man’s facility.’” (Id. at 4).
Diamond alleges the same in her complaint. Specifically, Diamond alleges she is a
transgender inmate who requires gender dysphoria treatment including hormone
therapy and the expression of her female gender. (Doc. 3, ¶¶ 2-3). But Allen and
McCracken refused to provide gender dysphoria treatment, and Allen ridiculed and
disciplined her for her gender expression. (Id. at ¶¶ 97, 102, 110-14). Given that
Grievance #173610 alerted prison officials to the same issues that underlie the
deliberate indifference claims against Allen and McCracken, the Court finds Grievance
#173610 exhausted Diamond’s deliberate indifference claims against them.
12
It is unclear whose signature is on the “Warden’s/Superintendent’s Grievance Response” form. (Doc.
49-5 at 5).
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Accordingly, Hatcher, Allen, and McCracken’s motions to dismiss Count I for
failure to exhaust are DENIED.
2. Whether Diamond Exhausted Her Failure-to-Protect Claims against
Allen and McCracken
Diamond contends Grievance #180025, filed at Valdosta State Prison (“the
Valdosta failure-to-protect grievance”13), and Grievances #189277, #189275, and
#189273, filed at Baldwin State Prison (“the Baldwin grievances”), exhausted her
failure-to-protect claims against Allen and McCracken.14 Allen and McCracken argue
the Valdosta failure-to-protect grievance did not put prison officials on notice of the
problems underlying Diamond’s failure-to-protect claims against them. They argue the
Baldwin grievances were untimely.
Diamond first contends the Valdosta failure-to-protect grievance sufficiently put
prison officials on notice of the allegations underlying her failure-to-protect claims
arising from events at Valdosta State Prison. In support of that claim, Diamond alleges
that upon her transfer to Valdosta State Prison on December 31, 2013, Allen and
McCracken received records detailing her history of sexual assaults. (Doc. 3, ¶ 92).
The next day Diamond was sexually assaulted by her cellmate. (Id. at ¶ 94). She
reported the assault and alleges that Allen, as warden, and McCracken, as the leader of
the Sexual Assault Response Team (“SART”), were made aware of the assault. (Id.).
Nevertheless, she remained housed with the perpetrator “who subjected her to
continued sexual harassment and coercion.” (Id.). Medical personnel advised Allen
13
Of course, calling it this does not establish that the grievance was a proper failure to protect grievance.
This is simply a way to avoid confusing references to multiple grievances by six digit numbers.
14
Diamond also contends Grievance #173610 exhausted her failure-to-protect claims against Allen and
McCracken. As discussed below, the Valdosta failure-to-protect grievance and the Baldwin grievances
exhausted her failure-to-protect claims against these Defendants, and thus the Court does not address
Grievance #173610.
- 23 -
and McCracken of Diamond’s “ongoing safety issues and need for a transfer to a safer
facility, based on [the] conclusion that Ms. Diamond stood a substantial risk of continued
sexual assault at Valdosta based on the inmate composition.” (Id. at ¶ 98).
Nevertheless, Allen and McCracken “deferred and delayed” action on the
recommendations to revise Diamond’s placement. (Id. at ¶ 103).
Diamond was again assaulted on February 9, 2014, and she alleges that Allen
and McCracken were notified of the assault. (Id. at ¶ 99). They again refused to revise
Diamond’s placement. (Id.).
On February 26, 2014, “Diamond personally contacted Defendant McCracken
regarding her safety.” (Id. at ¶ 102). She told McCracken that she had been repeatedly
sexually assaulted and that she feared for her safety. (Id.). Diamond asked McCracken
to arrange for her transfer to a safer facility, but again McCracken “deferred and delayed
action.” (Id. at ¶ 103).
In April 2014 Diamond contacted Allen about her safety concerns. (Id. at ¶ 105).
She told Allen about the sexual assaults and her “ongoing fears for her safety” and
asked to be transferred to a safer facility. (Id.). Allen refused. (Id.). Also in April 2014,
Diamond was sexually assault two more times. (Id. at ¶ 106). These assaults were
also reported, and Allen and McCracken were notified of the assaults “pursuant to GDC
policy.” (Id.). They still took no action. (Id.)
In May and June 2014, Diamond again spoke with McCracken about the
repeated sexual assaults and the continued sexual harassment and coercion that she
was experiencing. (Id. at ¶ 114). She again asked McCracken to arrange for her
transfer, but he again “delayed and deferred any action.” (Id. at ¶ 115).
- 24 -
Diamond incorporates these allegations in her failure-to-protect claim against
Allen and McCracken and generally alleges that they along with certain other
defendants were aware of her many assaults and their obligations under PREA and
GDOC policy to take reasonable steps to protect her from such assaults. She
specifically alleges that Allen and McCracken were deliberately indifferent to her “safety
needs by, inter alia, disregarding their obligations under PREA and the Sexual Assault
SOPs to assess the needs of sexual assault victims and provide appropriate
placements; failing to take action after receiving notification of [Diamond’s] ongoing
sexual assaults; and unreasonably denying, delaying, or deferring [her] requests for
protection.” (Id. at ¶ 152).
a. The Valdosta failure-to-protect grievance
Diamond filed the Valdosta failure-to-protect grievance on August 20, 2014,15
after placing what she called “videos for help” on YouTube. (Doc. 49-6 at 6). According
to Diamond, the YouTube video series documented “her and other inmates’ pleas for
help regarding sexual abuse and sexual assault.” (Doc. 49 at 37-38). Her grievance
stated:
I am grieving my personal safety and mental health being housed at
Valdosta State Prison, “pending investigation but because of staff
involv[ement] w[ith] making videos to supposedly” help us[.] The safety of
me (all) is a big concern as well as retaliation for disclosing info[rmation]
about staff involvement in filming. There can be fatal consequences for all
involved unless Internal Affairs moves me and does a full investigation on
our pleas for help.
(Doc. 49-6 at 6). The grievance coordinator acknowledged that Diamond “is grieving his
personal safety while being housed at Valdosta SP and fears retaliation because of the
pending investigations of the video on you tube. Inmate stated there can be fatal
15
Allen and McCracken do not contend the grievance was untimely.
- 25 -
consequences for all involved unless [Internal Affairs] move him and do a full
investigation of their pleas for help.” (Id. at 8). In his response to the grievance, Allen
stated: “You are housed in Tier I at this time. [Y]ou have not provided the names of any
staff involved in the making of the YouTube videos. We would be happy to provide any
information you wish to give to Internal Affairs for their review and investigation.” (Id. at
7). In her appeal of the grievance denial, Diamond reiterated her safety concerns and
emphasized that “Internal Investigations should have been involved from the beginning”
and that “Valdosta State Prison failed to respond to any and all sexual abuse
allegations, and even returned grievances involving sexual abuse allegations.” (Id. at
5). She wrote that the grievance intake officer only asked her why she “got the inmates
in trouble.” (Id.).
The appeal was denied without any specific mention of Diamond’s sexual assault
allegations. (Id. at 2). Rather, the response suggested that Diamond’s safety concerns
were based upon her fear of “retaliation for disclosing information about staff
involvement in the making of the videos.” (Id.). Noting that the grievance intake officer
said Diamond did not provide information “about staff who allegedly aided in the videos
or any specific safety concerns,” the grievance was denied because there was no
evidence “that staff placed your safety and mental health at risk due to you allegedly
disclosing staff involvement in the making of videos that were placed on youtube.” (Id.)
Accusing Diamond of “plucking select phrases out of context,” Allen asserts that
the Valdosta failure-to-protect grievance did not complain about sexual assault but
rather “in Plaintiff’s own words, [expressed] a concern for her ‘personal safety and
mental health’ at Valdosta ‘because of staff involvement in making videos to supposedly
- 26 -
help us.’” (Doc. 56 at 4). In even more conclusory fashion, McCracken simply argues
that the Valdosta failure-to-protect grievance addressed only YouTube videos and
Diamond’s fear of retaliation for staff involvement in the videos. (Doc. 38-1 at 8).
It is apparent that it is Allen and McCracken who have plucked words out of
context. The Valdosta failure-to-protect grievance does not say that Diamond is
grieving her personal safety because of staff involvement with the YouTube videos.
While Diamond acknowledged that she had been placed in isolation “pending
investigation for phone activity,” she grieved “my personal safety and mental health
being housed at Valdosta State Prison, “pending investigation but because of staff
involv[ement] w[ith] making videos to supposedly ‘help us.’” (Doc. 49-6 at 6). She says
her safety is “a big concern, as well as retaliation for disclosing info about staff
involvement in filming.” (Id.). The grievance coordinator read Diamond’s grievance to
grieve her personal safety and fear of retaliation because of investigations of the
YouTube videos. He understood Diamond to be asking for an Internal Affairs
investigation of “their pleas for help.” (Id. at 8). The reference to Internal Affairs by
Diamond and the grievance coordinator is significant because grievances involving
sexual assault “are automatically forwarded … to Internal Investigation Unit.” (Doc. 352 at 18).
Based on these facts, the Court concludes that the Valdosta failure-to-protect
grievance was sufficient to put prison officials on notice of Diamond’s allegations that
the prison officials at Valdosta State Prison failed to protect her from sexual assault.
That prison officials for some reason ultimately decided to treat the grievance as one for
- 27 -
fear of retaliation does not establish that Diamond did not complain in her grievance
about sexual assaults. That, after all, was the entire point of the YouTube videos.
The only facts offered by Allen and McCracken to counter Diamond’s allegations
regarding the Valdosta failure-to-protect grievance is an affidavit from the warden of
care and treatment at Valdosta State Prison who testifies that Diamond never filed a
grievance regarding incidents of sexual assault. (Doc. 35-3, p. 10 at ¶ 30). With regard
to the Valdosta failure-to-protect grievance specifically, the warden simply says that
Diamond “complained that he was concerned for his health and safety and feared
retaliation in connection with his disclosure of information about staff involvement in
inmate Diamond’s making of videos posted on YouTube.” (Doc. 35-3, p. 8 at ¶ 25).
The affidavit provides no new facts but rather, like Allen and McCracken, argues that
the grievance did not raise sexual assault allegations. Nevertheless, treating these
arguments as facts, the Court easily draws the factual conclusion that the grievance
raised Diamond’s concern for her safety as a result of “sexual abuse and sexual
assaults,” which Diamond maintains were “documented in the YouTube video series.”
(Doc. 49 at 38). While prison officials may have been more concerned about improper
phone use that apparently involved prison staff, the clear fact remains that Diamond
was complaining about sexual assaults.
Accordingly, the Valdosta failure-to-protect grievance placed prison officials on
notice of the safety and sexual assault problems underlying Diamond’s failure-to-protect
claims against Allen and McCracken.16
16
Based on their interpretation of the Valdosta failure-to-protect grievance – that it grieved a fear of
retaliation for phone activity – the Defendants argue that if the grievance is also read to grieve the failure
to protect from sexual assault, then the grievance raised multiple issues. As discussed, the Court agrees
the Valdosta failure-to-protect grievance raised Diamond’s fears for her safety and sexual assault at
- 28 -
b. The Baldwin grievances
After Diamond was transferred from Valdosta State Prison to Baldwin State
Prison, she filed the three Baldwin grievances alleging she was sexually assaulted at
Valdosta State Prison on multiple occasions. Allen and McCracken contend these
grievances were untimely and thus did not exhaust Diamond’s failure to protect claims
against them.17
Diamond argues that pursuant to PREA there is no time limit to file grievances for
sexual assault and, she says, GDOC officials conceded this point in their testimony
during a hearing on her motion for a preliminary injunction. (Doc. 49-11 at 100:5-10,
105:19-106:2). Further, Diamond argues the grievance coordinator waived any time bar
by accepting and reviewing the grievances on the merits. (Doc. 39 at 30-31). Treating
these arguments as allegations that the Court must take as true for the purpose of the
Turner analysis, Allen and McCracken are not entitled to the dismissal of Diamond’s
failure to protect claims in step one of the Turner analysis.
Valdosta State Prison which she maintains she “documented” in the YouTube video. An appeal that
further explains her fears for safety cannot be said to include a “new” issue. However, even if the
grievance raised multiple issues, prison officials nevertheless reviewed the grievance on its merits,
denied it on its merits, and then again on appeal. (Doc. 49-6). Diamond’s grievance and appeal were not
denied because of a procedural deficiency, and the Defendants have produced no evidence to the
contrary. See Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (“When prison officials decline
to enforce their own procedural requirements and opt to consider otherwise-defaulted claims on the
merits, so as a general rule will we.”). Accordingly, the Court remains unpersuaded the grievance failed
to exhaust the failure to protect claims.
17
The Defendants also argue these grievances failed to put the prison officials on notice of Diamond’s
safety issues at Valdosta State Prison that serve as the basis for her failure-to-protect claims against
Allen and McCracken. The Court is unpersuaded by this argument. These grievances specifically
referenced multiple incidents of sexual assault at Valdosta State Prison, and Diamond’s claims center
around the Defendants’ failure to protect her from sexual assault. Further, because the time limit may be
waived, a transfer to another prison does not prevent an inmate from grieving an incident that occurred at
a prison where the inmate was previously housed. See Bryant, 530 F.3d at 1373 (“We recognize that a
grievance filed after Priester’s transfer to GSP would have been untimely. But the relevant grievance
procedures provide inmates with the opportunity to request consideration of untimely grievances for good
cause. Thus, Priester could have exhausted his administrative remedies by filing a grievance at GSP and
then by showing good cause for its tardiness.”).
- 29 -
Pointing to GDOC’s general requirement that grievances must be filed within ten
days the inmate “knew, or should have known, of the facts giving rise to the grievance,”
Allen and McCracken argue the Court should find as a matter of fact that the Baldwin
grievances were untimely. But, as noted, GDOC officials testified there is no time limit
for filing grievances for sexual assault. Allen and McCracken do not object to this
testimony on the grounds that it constitutes a legal conclusion, or any other ground for
that matter, and the Court does not take the testimony as a legal interpretation of
PREA’s requirements. Rather, the GDOC officials testified, as a matter of fact and
without any contradiction by the Defendants, that GDOC’s grievance procedures do not
impose a deadline for filing grievances alleging sexual assaults. Consequently, Allen
and McCracken have not carried their burden to establish that the Baldwin grievances
were untimely.
Moreover, the evidence Allen and McCracken offer in support of their timeliness
argument establishes that GDOC waived any deadline that may have existed. When
Diamond filed the Baldwin grievances, she acknowledged they were not filed within ten
days of the assaults. (Docs. 49-8 at 4; 49-9 at 4; 49-10 at 4). She explained that she
suffered from post-traumatic stress disorder and argued that there was no time limit to
file sexual assault grievances. (Id.). Instead of denying the grievances as untimely, the
grievance coordinator determined that each grievance involved an alleged incident of
sexual assault and thus forwarded the grievances to internal affairs. This was pursuant
to GDOC’s procedures.18 (Docs. 35-2; 49-8; 49-9; 49-10). Referring the grievances to
18
Pursuant to GDOC procedure,
[a]t any time before the Warden’s Grievance decision is delivered to the offender, the
Warden may refer the matter to the Internal Investigations Unit. If an offender files a
grievance involving sexual assault … [,] such actions automatically end the grievance
- 30 -
internal affairs was the “final action … taken on the [g]rievance[s] and terminate[d] the
grievance procedure.” (Doc. 35-2 at 18). In other words, the grievance coordinator
accepted and reviewed the grievances on the merits.19 Given these facts, GDOC
waived any deadline for filing the Baldwin grievances.20
Accordingly, Allen’s and McCracken’s motions to dismiss Count III for failure to
exhaust is DENIED.
B. Failure to State a Claim and Qualified Immunity
1. Motion to Dismiss Standard
To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most favorable
to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)
(internal quotation marks and citation omitted). However, “where the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
process. These grievances are automatically forwarded … to the Internal Investigations
Unit and/or the PREA Coordinator for review and whatever action is deemed appropriate.
(Doc. 35-2 at 18).
19
Pursuant to GDOC procedure, the grievance coordinator’s actions ended the grievance process,
relieving Diamond of the obligation to take further action. (Doc. 35-2). Further, GDOC procedure does
not require the grievance coordinator to explicitly state that untimeliness has been waived.
20
The grievance coordinator’s handling of the Baldwin grievances is entirely consistent with the testimony
of GDOC officials that there is no time limit for filing sexual assault grievances. It is also consistent with
Diamond’s argument that PREA bars prisons from imposing such a deadline. See 28 CFR § 115.52(b)(1).
GDOC’s grievance procedure incorporates PREA’s guidelines that inmates do not have a time limit to
submit a grievance regarding sexual assault. “If an offender files a grievance involving sexual assault …[,]
such actions automatically end the grievance process. These grievances are automatically forwarded … to
Internal Investigation Unit and/or the PREA Coordinator for review.” (Doc. 35-2 at 18). This is what
happened in Diamond’s case, and this closed the grievance process.
- 31 -
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[C]onclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will not
prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.
2002). The complaint must “give the defendant fair notice of what the ... claim is and
the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks
and citation omitted). Where there are dispositive issues of law, a court may dismiss a
claim regardless of the alleged facts. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
2. Qualified Immunity Standard
“Qualified immunity offers complete protection for individual public officials
performing discretionary functions ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “‘Once discretionary authority is established, the
burden then shifts to the plaintiff to show that qualified immunity should not apply.’”21
Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Lewis v. City of W.
Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). To meet this burden, a plaintiff
must establish that “the officer’s conduct amounted to a constitutional violation” and “the
right violated was ‘clearly established’ at the time of the violation.” Lewis, 561 F.3d at
21
For each assertion of qualified immunity, there is no dispute the Defendants were acting within their
discretionary authority. Accordingly, the Court assumes for each assertion of qualified immunity that the
Defendants have established they were acting within their discretionary authority.
- 32 -
1291. This two-step analysis may be done in whatever order is deemed most
appropriate for the case. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
The clearly established law22 must provide a defendant with “fair warning” that
her conduct deprived the plaintiff of a constitutional right. Hope v. Pelzer, 536 U.S. 730,
739-41 (2002). A plaintiff “can demonstrate that the contours of the right were clearly
established in several ways.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012).
First, a plaintiff can show that “a materially similar case has already been decided.” Id.
(internal quotation marks and citations omitted). Second, a plaintiff can point to a
“broader, clearly established principle [that] should control the novel facts [of the]
situation.” Id. (internal quotation marks and citation omitted). “Finally, the conduct
involved in the case may ‘so obviously violate[ ] th[e] constitution that prior case law is
unnecessary.’” Id. (citation omitted). “Exact factual identity with a previously decided
case is not required, but the unlawfulness of the conduct must be apparent from preexisting law.” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011).
3. Deliberate Indifference to a Serious Medical Need
Diamond alleges that all Defendants were deliberately indifferent to her serious
medical needs by refusing to provide or refer her for gender dysphoria treatment they
knew was medically necessary. Allen, Shelton, McCracken, Thompson, and Silver
argue that Diamond failed to sufficiently allege they violated her Eighth Amendment
rights. Allen and Shelton further maintain they are entitled to qualified immunity. Lewis
22
Clearly established law in this circuit means decisions of the United States Supreme Court, the
Eleventh Circuit, and the highest court of the pertinent state. McClish v. Nugent, 483 F.3d 1231, 1237
(11th Cir. 2007).
- 33 -
and Hatcher do not contend Diamond failed to state a claim against them but argue they
are entitled to qualified immunity.23
a. Whether Diamond Has Alleged a Constitutional Violation
Allen, Shelton, McCracken, Thompson, and Silver argue Diamond’s deliberate
indifference claims against them fail because she has not sufficiently alleged they had
subjective knowledge of a substantial risk of serious harm. (Docs. 35-1 at 11; 38-1 at
11-12, 14). “‘[D]eliberate indifference to [the] serious medical needs of [a] prisoner[ ]
constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth
Amendment.’” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). “[A] prisoner must shoulder three burdens” to bring
a claim for deliberate indifference. Goebert, 510 F.3d at 1326. First, the prisoner must
satisfy an objective component by alleging there was a serious medical need. Id. (citing
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)). Second, he must satisfy the
subjective component by alleging that the prison official was deliberately indifferent to
23
A comment about Lewis, Allen, Hatcher and Shelton’s joint brief is appropriate. (Doc. 35-1). They
jointly filed a one paragraph motion to dismiss in which they argue Diamond’s complaint should be
dismissed “on the basis of failure to state a claim, qualified immunity, and other grounds as set forth in the
brief filed herewith.” (Doc. 35). In their joint brief, Lewis and Hatcher do not argue that Count 1 fails to
state a claim for deliberate indifference against them. Allen does not argue that Count 3 fails to state a
failure-to-protect claim against him, nor does he argue that he is entitled to qualified immunity for that
claim. Naturally enough, this led Diamond, when summarizing the motions in her brief, to acknowledge
that Lewis and Hatcher did not contend Count 1 failed to state a claim and that Allen did not contend that
Count 3 failed to state a claim or that he was entitled to qualified immunity for that claim. (Doc. 49 at 8-9).
Lewis, Hatcher and Allen have never challenged this characterization. The Court does not think for a
moment that counsel have attempted to “sandbag” Diamond or the Court. Still, the Court notes that the
joint brief states that Diamond’s allegations establish that the Defendants were acting in their
discretionary authority and that the “burden thus shifts to the Plaintiff to show that Defendants are not
entitled to qualified immunity.” (Doc. 35-1 at 25). It would not be plausible for Lewis, Hatcher, and Allen
to now argue that this assertion should have alerted Diamond that she had to address the two prongs of
qualified immunity as to Lewis, Hatcher, and Allen that they never raised. Nevertheless, the Court notes
that the allegations against Lewis and Hatcher in Count 1, as summarized in footnotes 26 and 27, are
clearly sufficient to state a claim. Further, the allegations against Allen in Count 3, as summarized in
Section III.A.2, are clearly sufficient to state a claim against him. Additionally, as discussed in Section
III.B.4.b., clearly established law provided Allen, like Lewis, with fair warning his conduct violated
Diamond’s Eighth Amendment right to be protected from assaults by other inmates.
- 34 -
the serious medical need. Id. (citing Bozeman, 422 F.3d at 1272). Third, the prisoner
must allege that the defendant’s wrongful conduct caused the injury. Id. (citing Hale v.
Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995)).
GDOC medical professionals diagnosed Diamond with gender dysphoria while
incarcerated, and the Defendants do not deny that gender dysphoria constitutes a
serious medical need.24 (Doc. 3, ¶¶ 74-75). Accordingly, Diamond’s allegations satisfy
the objective inquiry. See Farrow, 320 F.3d at 1243. To satisfy the subjective inquiry,
Diamond must sufficiently allege three elements: “‘(1) subjective knowledge of a risk of
serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross]
negligence.’” Bozeman, 422 F.3d at 1272 (quoting Brown v. Johnson, 387 F.3d 1344,
1351 (11th Cir. 2004)). Ultimately, “[t]he facts alleged must do more than contend
medical malpractice, misdiagnosis, accidents, and poor exercise of medical judgment.”
Simpson v. Holder, 200 F. App’x. 836, 839 (11th Cir. 2006) (citing Estelle, 429 U.S. at
104–07). Subjective knowledge requires that a defendant “was ‘both [ ] aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and [ ] must also [have] draw[n] the inference.’” Burnette v. Taylor, 533 F.3d 1325,
1330 (11th Cir. 2008) (alteration added by Eleventh Circuit) (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)). A defendant cannot be held liable for a constitutional
violation for failing to alleviate a significant risk that he should have perceived but did
not. Id. at 1331 (citing Farmer, 511 U.S. at 837). However, a factfinder may infer from
circumstantial evidence or from “‘the very fact that the risk was obvious’” that the
24
While Allen and Shelton do not deny that gender dysphoria constitutes a serious medical need in their
discussion of the elements of a claim for deliberate indifference to medical needs, in a footnote in their
qualified immunity argument, they say they are unaware of any binding authority establishing that
“transsexualism or GID is a serious medical need.” (Doc. 35-1 at 26 n.10). That, of course, is a different
issue than whether Diamond has sufficiently alleged gender dysphoria is a serious medical need, which,
again, the Defendants do not dispute.
- 35 -
defendant had subjective knowledge. Goebert, 510 F.3d at 1327 (quoting Farmer, 511
U.S. at 842).
Here, Diamond alleges: (1) all Defendants were aware of the medically accepted
and recognized treatment for gender dysphoria pursuant to the Standards of Care,
which includes hormone therapy and gender expression; (2) all Defendants knew
psychotropic drugs and counseling alone were medically inadequate pursuant to the
Standards of Care; (3) Allen, Shelton, McCracken, Thompson, and Silver received
Diamond’s records detailing her gender dysphoria diagnosis, history of hormone
treatment, and requests for ongoing care; (4) Diamond personally contacted Allen about
the denial of treatment, and he responded with discipline and ridicule for her female
expression; (5) Shelton recognized Diamond “suffer[ed] from the denial of medical care”
but refused to provide gender dysphoria treatment; (6) Diamond explained her lack of
treatment to McCracken who “deferred or delayed any action”; (7) Diamond told
Thompson and Silver about her prior history, Dr. Sloan’s assessment, and her physical
and psychological harm, but they denied her treatment or a referral for an evaluation;
and (8) all Defendants were aware of her repeated attempts to commit suicide and selfcastration while she was without treatment. (Doc. 3, ¶¶ 33-34, 46-47, 78-81, 83, 86, 92,
103, 111).
In their own conclusory fashion, the Defendants argue Diamond’s allegations are
merely conclusory. However, her allegations, taken as true, sufficiently show the
Defendants were subjectively aware of a substantial risk of serious harm should
Diamond remain without medically adequate treatment. Indeed, in Kothmann v.
Rosario, the Eleventh Circuit held similar allegations to be sufficient to state a claim for
- 36 -
deliberate indifference to the medical needs of a transgender inmate. 558 F. App’x 907
(11th Cir. 2014). There, the inmate alleged (1) “the medically-accepted and appropriate
treatment” for gender dysphoria included hormone treatment, gender expression, and
sex reassignment surgery; (2) the defendant was “aware of the medically necessary
treatment”; (3) the defendant knew about the inmate’s hormone treatment history and
the symptoms he suffered from lack of treatment; but (4) the defendant denied him
hormone treatment or a referral to staff who could prescribe treatment. Id. at 908. The
Eleventh Circuit held these allegations were sufficient to satisfy the subjective inquiry.
Id. at 911.
Similarly, Diamond has alleged the Defendants knew the medically accepted and
recognized gender dysphoria treatment pursuant to the Standards of Care; knew about
Diamond’s diagnosis, treatment history, and attempts to commit suicide and self-harm;
and communicated with her directly about her gender dysphoria. But they knowingly
and repeatedly refused her requested treatment, refused to refer her for treatment, and,
at most, prescribed or authorized treatment—psychotropic drugs and counseling—they
knew was medically inadequate. See McElligott v. Foley, 182 F.3d 1248, 1256 (11th
Cir. 1999) (holding that “knowingly provid[ing] grossly inadequate care, and at times no
care” while knowing of a substantial risk of harm constitutes deliberate indifference);
Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985) (“Deliberate
indifference … is shown when prison officials have prevented an inmate from receiving
recommended treatment or when an inmate is denied access to medical personnel
capable of evaluating the need for treatment.” (internal quotation marks and citation
omitted)).
- 37 -
Diamond alleges this repeated denial of treatment resulted in suicide ideation
and compulsion to castrate herself, multiple suicide and castration attempts, clinically
significant depression, anxiety, mental anguish, and a “regression of hormonallyinduced physical effects,” as well as “chest pain, muscle spasms, heart palpitations,
severe vomiting,” and other physical symptoms. (Doc. 3, ¶¶ 73, 90, 104, 121, 138-39).
Clearly, Diamond has sufficiently alleged Allen, Shelton, McCracken, Thompson, and
Silver were deliberately indifferent to Diamond’s serious medical needs by their
repeated refusal to provide, authorize, or refer her for treatment they knew was
medically necessary, thus causing and perpetuating psychological and physical harm.25
b. Whether the Constitutional Right was Clearly Established
Allen, Shelton, Lewis,26 and Hatcher27 contend they are entitled to qualified
immunity because no clearly established law gave them fair warning their conduct
25
Thompson, Silver, and McCracken also contend the deliberate indifference claims against them fail
because they were adhering to policy and had no “means to cure the alleged risk.” (Doc. 38-1 at 12-15).
The Court is not persuaded by this “simply following orders” defense. Following the Transgender SOP
does not insulate them from potential liability. Diamond alleges that despite their knowledge of her
medical condition and her compulsion to castrate and harm herself, they did not exercise any
independent medical judgment, inform any competent authorities about Diamond’s need for care, or
make a referral or recommendation for treatment, as other GDOC medical providers, such as Drs. Sloan,
Moody, and Harrison, had done. See Waldrop v. Evans, 871 F.2d 1030, 1036 (11th Cir. 1989) (holding
there was a genuine issue of fact whether a doctor who treated the plaintiff’s medical needs was
deliberately indifferent to the plaintiff’s psychiatric needs by failing to notify competent authorities about
such needs because “prison officials have an obligation to take action or to inform competent authorities
once the officials have knowledge of a prisoner’s need for medical or psychiatric care.”). The Court also
rejects Thompson and Silver’s argument that Diamond’s claim fails because they prescribed her
counseling and psychotropic drugs and thus did not disregard her medical needs. At this stage in the
litigation, Diamond has sufficiently alleged the Defendants knew psychotropic drugs and counseling alone
were inadequate treatments pursuant to the Standards of Care. (Doc. 3, ¶¶ 33-34, 46-47). See also
Kothmann, 558 F. App’x at 910-12 (rejecting the same argument at the motion to dismiss stage). It can
also reasonably be inferred they were aware that in Diamond’s specific case, drugs and counseling had
not alleviated her compulsion to commit self-harm. (Doc. 3, ¶¶ 78, 80).
26
Although Lewis does not contend Diamond failed to state a claim against her, the allegations pertaining
to her are relevant to whether Lewis violated a clearly established right. Diamond alleges Lewis: (1) knew
the medically accepted and recognized gender dysphoria treatment, as well as what medical care was
inadequate, pursuant to the Standards of Care; (2) “refused to authorize treatment” despite medical
professionals’ recommendations to provide Diamond with hormone treatment and permit her female
gender expression; (3) approved the conduct of GDOC personnel after Hatcher placed Diamond in
- 38 -
violated Diamond’s right to constitutionally adequate care for her serious medical needs.
The Eleventh Circuit has “consistently held that knowledge of the need for medical care
and an intentional refusal to provide that care constitutes deliberate indifference.”
Adams v. Poag, 61 F.3d 1537, 1543-44 (11th Cir. 1995) (citing Carswell v. Bay Cty.,
854 F.2d 454, 457 (11th Cir. 1988); see also H.C. by Hewett v. Jarrard, 786 F.2d 1080,
1086 (11th Cir. 1986) (“[T]he failure to provide diagnostic care and medical treatment
known to be necessary [i]s deliberate indifference.”); Ancata, 769 F.2d at 704. Put
another way, “[a] core principle of Eighth Amendment jurisprudence … is that prison
officials with knowledge of the need for [medical] care may not, by failing to provide
care, delaying care, or providing grossly inadequate care, cause a prisoner to
needlessly suffer the pain resulting from his or her illness.” McElligott, 182 F.3d at
1257. Diamond, citing the Eleventh Circuit’s unpublished opinion in Kothmann, argues
these clearly established “core” principles gave the Defendants fair warning that their
refusal to provide Diamond with treatment they knew was medically necessary for her
gender dysphoria violated her constitutional right to adequate medical care. See
Kothmann, 558 F. App’x at 912 (reasoning the same).
Although “mindful of Kothmann,” the Defendants argue the Eleventh Circuit
denied qualified immunity because of the case’s specific facts which they contend are
solitary where she continued to complain about the denial of treatment and her suicidal impulses and
actually attempted suicide and self-castration; and (4) continued to enforce the Transgender SOP despite
the recommendations of medical professionals and Diamond’s suicide attempts. (Doc. 3, ¶¶ 33-34, 4647, 76, 90-91, 97).
27
The allegations as to Hatcher, who also does not contend Diamond failed to state a claim against him,
are relevant to whether he violated a clearly established right. Diamond alleges Hatcher: (1) knew the
medically accepted and recognized gender dysphoria treatment, as well as what medical care was
inadequate, pursuant to the Standards of Care; (2) received Diamond’s records detailing her gender
dysphoria diagnosis, history of hormone treatment, and requests for ongoing care; (3) was contacted by
Diamond about her gender dysphoria and suicidal impulses; (4) refused to refer Diamond for treatment
after he visited Diamond in solitary where she explained her gender dysphoria and suicidal impulses
without treatment. (Doc. 3, ¶¶ 33-34, 46-47, 78, 85, 88-90).
- 39 -
distinguishable from Diamond’s, and at a minimum, “nothing in Kothmann, or in any
binding authority … suggests that ‘gender expression’ is a necessary treatment for
gender dysphoria.” (Doc. 35-1 at 27-28). This argument misconstrues the Eleventh
Circuit’s qualified immunity analysis. As discussed, Kothmann, like Diamond, alleged
the defendant (1) knew “hormone treatment was the recognized, accepted, and
medically necessary treatment” for gender dysphoria; (2) knew Kothmann’s hormone
treatment history and continued need for it; but (3) knowingly refused to provide this
treatment. Kothmann, 558 F. App’x at 911-12. The Eleventh Circuit held these
allegations sufficiently stated the violation of a clearly established constitutional right.
Id. Specifically, the court rejected the defendant’s argument that she did not violate a
clearly established right because no prior binding precedent had recognized that
transgender inmates have a right to hormone treatment. Id. Relying on binding
precedent,28 the Eleventh Circuit reasoned “the state of the law was sufficiently clear to
put [the defendant] on notice that refusing to provide [the transgender inmate] with what
she knew to be medically necessary hormone treatments was a violation of the Eighth
Amendment.” Id. at 912.
Here, for the same reasons, the law was sufficiently clear to give the Defendants
fair warning that their refusal to provide Diamond with treatment they knew was
medically necessary or to refer her for treatment violated Diamond’s Eighth Amendment
right to adequate medical care. And, as noted in Kothmann, binding precedent
establishing that transgender inmates have a right to receive the specific treatment at
issue—in this case, hormone therapy and female gender expression—is not required to
28
McElligot, 182 F.3d at 1255; Jarrard, 786 F.2d at 1086; Ancata, 769 F.2d at 704.
- 40 -
overcome the Defendants’ qualified immunity defense.29 Id. at 911-12. Accordingly,
Allen, Shelton, Lewis, and Hatcher are not entitled to qualified immunity from Diamond’s
deliberate-indifference-to-medical-needs claim.
4. Failure to Protect
Diamond alleges Lewis, Allen, and McCracken were deliberately indifferent to a
substantial risk of serious harm Diamond faced in closed-security facilities. Lewis and
McCracken argue Diamond failed to state a claim against them. Lewis also contends
she is entitled to qualified immunity.30
a. Whether Diamond Has Alleged a Constitutional Violation
Under the Eighth Amendment, prison officials have a duty to “take reasonable
measures to guarantee the safety of the inmates.” Caldwell v. Warden, FCI Talladega,
748 F.3d 1090, 1099 (11th Cir. 2014) (quoting Farmer, 511 U.S. at 832). More to the
point, they “have a duty to protect prisoners from violence at the hands of other
prisoners.” Id. (quoting Farmer, 511 U.S. at 833) (internal quotation marks omitted). Of
course, not every injury an inmate suffers at the hands of another inmate gives rise to
constitutional liability. “A prison official violates the Eighth Amendment ‘when a
substantial risk of serious harm, of which the official is subjectively aware, exists[,] the
official does not respond reasonably to the risk,’” and the official’s actions or inaction
causes the injury. Id. (quoting Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir.
29
As also noted in Kothmann, at this stage in the litigation, the Court need not decide whether “hormone
treatment [and gender expression] in fact [were] medically necessary to treat” Diamond’s gender
dysphoria or whether the Defendants “knew in fact” that these treatments were medically necessary for
Diamond. Id. at 911. Rather, the Court need only decide whether Diamond has sufficiently alleged a
plausible violation of a clearly established constitutional right, which she has. See id. at 911-12.
30
Allen does not contend Diamond failed to state a claim against him and does not assert qualified
immunity.
- 41 -
2003)); see also Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013) (internal
quotation marks omitted). The prison official must be both aware of the risk and draw
the inference. Farmer, 511 U.S. at 837; Caldwell, 748 F.3d at 1099-1100.
Here, Diamond alleges (1) she was sexually assaulted numerous times at three
closed-security facilities which housed violent offenders and had a history of frequent
assaults;31 (2) Lewis and McCracken were aware Diamond, as a non-violent,
transgender female inmate, faced a substantial risk of sexual assault at closed-security
facilities because the risk was obvious; (3) Lewis and McCracken were aware from
PREA and the Transgender SOP that “transgender inmates face a substantial
vulnerability to sexual assault”; (4) Lewis, as Statewide Medical Director, and
McCracken, as PREA Coordinator at Valdosta State Prison, were notified after each
sexual assault which obligated them to review Diamond’s housing placement pursuant
to the Transgender SOP, the Sexual Assault SOPs, and PREA; (5) Lewis was aware
from notifications and McCracken was aware from Diamond’s GDOC records that she
was repeatedly sexually assaulted at two other closed-security facilities before being
transferred to Valdosta State Prison; (6) Lewis and McCracken took no action after
Diamond was sexually assaulted by her cellmate the day after intake at Valdosta State
Prison, by gang members in February 2014, and twice in April 2014; (7) Dr. Harrison
specifically told McCracken that Diamond stood a high risk of sexual assault at Valdosta
State Prison given its population; and (8) in February, May, and June of 2014, Diamond
31
The Court notes that Diamond was not sexually assaulted at Rutledge State Prison, a medium-security
facility which houses non-violent inmates, before the filing of her complaint. (Doc. 3, ¶ 77). Diamond
alleges generally that sexual assaults against transgender inmates at medium-security facilities are
infrequent. (Doc. 3, ¶ 68).
- 42 -
told McCracken about her sexual assaults. (Doc. 3, ¶¶ 18, 20, 52-55, 60-61, 65-67, 69,
71, 92, 94, 98-99, 102-03, 106, 114-15, 146).
Lewis and McCracken contend these allegations are insufficient to demonstrate
they had the requisite “subjective knowledge required by the deliberate indifference
standard.”32 (Docs. 35-1 at 19; 38-1 at 15-16). Lewis specifically argues the allegations
that she failed to follow policy33 and that she was notified after each assault are
insufficient to establish subjective awareness.34 The Supreme Court in Farmer held that
circumstantial evidence and the obviousness of the substantial risk of harm, not just
32
The Defendants do not contend Diamond failed to allege a substantial risk of serious harm. Nor could
they. Diamond has alleged she is a transgender inmate who has been continually sexually harassed and
sexually assaulted at closed-security facilities. Diamond has easily satisfied the objective inquiry. See
Farmer, 511 U.S. at 833 (“[G]ratuitously allowing the beating or rape of one prisoner by another serves no
‘legitimate penological objectiv[e].’” (citation omitted) (alteration in original)).
33
Lewis’s argument that she cannot be held liable simply because she disregarded her obligations under
PREA and GDOC policy is based on a misreading of Diamond’s allegations. She does not allege Lewis
is liable simply because she violated rules and policies, but rather alleges that these rules and policies
were among the many factors and facts upon which she bases her claims.
34
In her motion, Lewis also argues Diamond’s “apparent attempt to impose supervisory liability” based on
an alleged widespread pattern of abuse fails. (Doc. 35-1 at 20-21). In her reply brief, Lewis argues
Diamond waived any argument regarding Lewis’s contention that Diamond’s allegations are insufficient to
“state a supervisory claim against her.” (Doc. 56 at 10 n.5). In her response brief, Diamond states that
she is alleging Lewis had actual knowledge, not constructive knowledge. (Doc. 49 at 14). This response
does not amount to a waiver. It is true supervisors cannot be held liable under § 1983 “for the
unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.”
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (internal quotation marks and citation omitted). A
supervisor can only be held liable if the supervisor participated directly in the unconstitutional conduct or if
a causal connection exists between the supervisor’s actions and the alleged constitutional violations.
Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
[C]ausal connection can be established when a history of widespread abuse puts the
responsible supervisor on notice of the need to correct the alleged deprivation, and he
fails to do so. Alternatively, the causal connection may be established when a
supervisor’s custom or policy … result[s] in deliberate indifference to constitutional rights
or when facts support an inference that the supervisor directed the subordinates to act
unlawfully or knew that the subordinates would act unlawfully and failed to stop them
from doing so.
Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (quoting Cottone, 326 F.3d at 1360). The
Court interprets Diamond’s argument to be that sufficient facts support an inference Lewis knew
subordinates would act unlawfully and failed to stop them from doing so. To the extent Diamond has
alleged Lewis was aware Diamond faced a substantial risk of harm based on a widespread pattern of
abuse, that claim is subsumed by the failure-to-train claim against Lewis in her individual capacity and is
addressed below.
- 43 -
actual notification, may be used to establish subjective awareness. 511 U.S. at 842-44.
Further, allegations suggesting the substantial risk was “long-standing, pervasive, [or]
well-documented” and the defendants “had been exposed to information concerning the
risk and thus must have known about it … could be sufficient … to find that [the
defendants] had actual knowledge of the risk.” Id. at 842-43 (internal quotation marks
and citation omitted). When analyzing subjective awareness, courts have considered
the obviousness of the risk to inmate safety, the defendant’s knowledge about the
vulnerability of certain types of inmates to risk of harm, prison policies pertaining to such
inmates, and their housing placements. See Greene v. Bowles, 361 F.2d 290, 294 (6th
Cir. 2004); Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81-82 (6th Cir. 1995); Green v.
Hooks, 2013 WL 4647493, at *2-*3 (S.D. Ga.); Shaw v. District of Columbia, 944 F.
Supp. 2d 43, 59-60 (D.D.C. 2013) (“Plaintiff … points … to [reports, regulations, and
professional guidelines] … to provide factual grounding to support the inference that the
risk to transgender detainees was obvious, well-documented, and known to
[d]efendants.” (internal quotation marks and citation omitted)); Newsome v. Higham,
2010 WL 1258013, at *3-*4 (M.D. Ga.); Farmer v. Carlson, 685 F. Supp. 1335, 1342
(M.D. Penn. 1988) (“Clearly, placing plaintiff, a twenty-one year old transsexual, into the
general population at … a [high-]security institution, could pose a significant threat to
internal security in general and to plaintiff in particular.”).
In her complaint, Diamond has covered the waterfront with her allegations
tending to prove subjective awareness. She has alleged that a transgender inmate’s
vulnerability to assault at a closed-security male facility was obvious to Lewis and
McCracken and that PREA and GDOC policies made clear transgender inmates are
- 44 -
highly vulnerable to sexual assault. Further, she alleges Lewis and McCracken spoke
with her directly about her transgender status and were aware from notifications and
records35 she was repeatedly sexually assaulted at three different closed-security
facilities. Diamond met with McCracken at least three times about her sexual assaults,
and Dr. Harrison contacted him directly about Diamond’s vulnerability to assault at
Valdosta State Prison given its population of violent offenders.36
Diamond’s allegations paint a picture dramatically different than the typical
failure-to-protect claim asserted by inmates. The usual failure-to-protect claim involves
a single assault. Thus, the inmate must allege facts tending to establish the requisite
subjective awareness before that single assault occurred. As the cases cited by the
Defendants illustrate, this can be a difficult task. But here Diamond alleges a series of
assaults. While she does not concede that Lewis and McCracken did not have
subjective awareness of the risk of harm before the first assault that occurred on their
respective watches, she alleges that after they received notice of that assault, and then
the next, and the next, and so on, they clearly had subjective awareness of the risk of
harm she faced as a transgender inmate housed with violent offenders. Repeatedly,
she alleges, they continued to receive notice of her sexual assaults. Clearly, at this
stage of the litigation, these facts are sufficient to establish that Lewis and McCracken
were subjectively aware of the risk of harm Diamond faced. See Farmer, 511 U.S. at
842-43; Bugge v. Roberts, 430 F. App’x 753, 761 (11th Cir. 2011) (“[T]he pervasive and
35
Diamond alleges only McCracken received Diamond’s GDOC records detailing Diamond’s history of
sexual assault.
36
McCracken argues Diamond does not allege “Dr. McCracken was subjectively aware of this
particularized risk prior to the subject incident.” (Doc. 38-1 at 16). However, taking the allegations as
true, the Court disagrees. Indeed, Diamond alleges she was sexually assaulted at least two more times
in April 2014 after her February meeting with McCracken. (Doc. 3, ¶¶ 102, 106).
- 45 -
widespread nature of the conditions … suggest [the defendant] ‘had been exposed to
information concerning the risk and thus must have known about it.’” (quoting Farmer,
511 U.S. at 842-43)).
In sum, these allegations are not threadbare recitations of the subjective
awareness element. Rather, Diamond alleges the full gamut of facts Farmer
contemplated to show subjective awareness. Yet, despite being aware of the risk of
sexual assault and despite having the authority and obligation to take reasonable safety
measures after each incident, Lewis and McCracken, according to Diamond, failed to
take any action. As a result, the substantial risk of harm remained unabated, and
Diamond suffered further sexual assaults. Clearly, Diamond has sufficiently alleged a
plausible failure-to-protect claim against Lewis and McCracken.
b. Whether the Constitutional Right was Clearly Established
Lewis is not entitled to qualified immunity if clearly established law gave her fair
warning her conduct violated Diamond’s Eighth Amendment right to be protected from
assault by other inmates. “A prisoner has a right, secured by the eighth …
amendment[], to be reasonably protected from constant threat of violence and sexual
assault by his fellow inmates[.]” Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga.,
400 F.3d 1313, 1320 (11th Cir. 2005) (internal quotation marks and citation omitted);
see also Farmer, 511 U.S. at 833-34. Diamond argues Farmer gave Lewis fair warning
that her failure to take any action to protect Diamond from the substantial risk of sexual
assault she faced violated her Eighth Amendment right to be reasonably protected from
sexual assault. (Doc. 49 at 23 n.10). There, a transgender inmate, allegedly known to
be vulnerable to sexual assault, complained prison officials were deliberately indifferent
- 46 -
to a substantial risk of sexual assault by placing her in general population at a “higher
security facility” known for its violent environment and history of assaults. Farmer, 511
U.S. at 825. The Supreme Court emphasized the constitutional right of prisoners to be
reasonably protected from the violence of other inmates. Id. at 833 (“[G]ratuitously
allowing the beating or rape of one prisoner by another serves no ‘legitimate penological
objectiv[e].’” (citation omitted)). The Supreme Court ultimately held that “a prison official
may be held liable under the Eighth Amendment … if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Id. at 847.37
Again, Diamond alleges Lewis was aware Diamond was a transgender female,
knew she had been repeatedly sexually assaulted at closed-security male facilities, and
knew she continued to be repeatedly sexually assaulted at Valdosta State Prison. Still,
Lewis took no action. Therefore, Lewis, being aware of the substantial risk of sexual
assault, had fair warning that her failure to take reasonable measures to abate that risk
violated Diamond’s clearly established right to be protected from sexual assault. Id. at
833-34, 837. Accordingly, Lewis is not entitled to qualified immunity from Diamond’s
failure-to-protect claim.
37
In cases involving the protection of inmates (or pretrial detainees) from rape or sexual assault,
numerous courts have relied on Farmer when analyzing the second prong of qualified immunity. See,
e.g., Walton v. Dawson, 752 F.3d 1109, 1118 (8th Cir. 2014) (“There is no doubt the right at issue—a
pretrial detainee’s right to be protected from sexual assault by another inmate—is clearly established.”);
Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (“[T]he constitutional right to be free from deliberate
indifference to assault and sexual abuse was clearly established at the time of the alleged constitutional
violation.”); Howard, 534 F.3d at 1242 (“The Supreme Court [in Farmer] and the Tenth Circuit have
repeatedly and unequivocally established an inmate’s Eighth Amendment right to be protected from
substantial risks of sexual assault by fellow prisoners.”); Velez v. Johnson, 395 F.3d 732, 736 (7th Cir.
2005) (“Although Velez and Johnson disagree over how the constitutional right at issue here should be
characterized, we believe it is plainly the right to be free from deliberate indifference to rape and assault.
There can be no debate that this right was clearly established at the time.” (citing Farmer, 511 U.S. at
833)).
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5. Failure to Train
Diamond alleges Lewis failed to adequately train subordinates regarding the
medical treatment and safety of transgender inmates. Lewis contends Diamond failed
to sufficiently allege a failure-to-train claim, and she is entitled to qualified immunity.
a. Whether Diamond Has Alleged a Constitutional Violation
Diamond alleges Lewis, as GDOC’s Statewide Medical Director, was a final
policy- and decision-maker regarding the care and safety of transgender inmates and
responsible for implementing policies and providing training regarding the same. (Doc.
3, ¶18). “[U]nder § 1983, a supervisor can be held liable for failing to train his or her
employees only where the failure to train amounts to deliberate indifference to the rights
of persons with whom the officers come into contact.” Keith v. DeKalb Cty., Ga., 749
F.3d 1034, 1052 (11th Cir. 2014) (alteration, citation, and internal quotation marks
omitted). To sufficiently allege a supervisor violated a plaintiff’s constitutional rights for
failing to train subordinates, a plaintiff “must demonstrate that the supervisor had ‘actual
or constructive notice that a particular omission in their training program causes [his or
her] employees to violate citizens' constitutional rights,’ and that armed with that
knowledge the supervisor chose to retain that training program.” Id. (quoting Connick v.
Thompson, 131 S. Ct. 1350, 1360 (2011)). A plaintiff establishes a supervisor’s notice
when the need for more or different training is obvious—such as when there has been a
history of widespread abuse by subordinates that has put the supervisor on notice of the
need for corrective measures, or when the failure to train is likely to result in a
constitutional violation. See Williams v. Limestone Cty. Ala., 198 F. App’x 893, 896
(11th Cir. 2006); Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985).
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Diamond premises her failure-to-train claims against Lewis on two alleged
deficiencies in training. Diamond alleges Lewis: (1) inadequately trained subordinates
to provide constitutionally adequate gender dysphoria treatment to transgender inmates,
and (2) inadequately trained subordinates to reasonably protect and safely house
transgender inmates. Specifically, Diamond contends Lewis was aware of these
inadequacies from a widespread pattern of abuse by subordinates. Lewis argues that
Diamond’s allegations are formulaic recitation of the elements for a failure-to-train claim
and that case law requires more than Diamond’s own experiences to establish a
“pattern” or “widespread abuse.” (Docs. 35-1 at 23; 56 at 11).
The Court is unaware of any Supreme Court or Eleventh Circuit authority, and
Lewis cites none, requiring a plaintiff to establish a widespread pattern of abuse based
on prior incidents involving other inmates who suffered the same abuse. It is true that in
cases involving an inmate alleging a widespread pattern of abuse at a prison, the
Eleventh Circuit has looked to whether the plaintiff points to the experiences of other
inmates to determine whether the plaintiff’s experience was simply an isolated
occurrence. See, e.g., Goebert, 510 F.3d at 1332; Craig v. Floyd, 643 F.3d 1306, 131011 (11th Cir. 2011). These cases often involve a prisoner alleging a single isolated
incident at a specific prison or occasional, isolated occurrences within a single prison.
See, e.g., Harrison v. Culliver, 746 F.3d 1288, 1299-1300 (11th Cir. 2014); Goebert, 510
F.3d at 1332; Craig, 643 F.3d at 1310-11.
But Diamond’s complaint is different. Diamond’s allegations involve repeated
incidents alleging failure-to-protect from sexual assaults at multiple GDOC prison
facilities over a continued duration by specifically identified individuals. Regardless of
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whether the alleged pattern involves single or multiple inmates or single or multiple
facilities, the critical inquiry here is whether Diamond has sufficiently alleged a
widespread pattern of abuse by prison officials that put Lewis on notice. See, e.g.,
Belcher, 30 F.3d at 1397-98 (“Failure to train can amount to deliberate indifference …
when there exists a history of abuse by subordinates that has put the supervisor on
notice of the need for corrective measures.” (italics added)); Thornton v. El-Amin, 2012
WL 529998, at *13 (N.D. Ga.) (“Plaintiff has not submitted any evidence of a
widespread pattern of abuse by officers of the DeKalb County Police Department.”
(italics added)). That the pattern of abuse involved only Diamond does not mean the
pattern was insufficient to put Lewis on notice of the problem.
“The deprivations that constitute widespread abuse sufficient to notify the
supervising official must be obvious, flagrant, rampant[,] and of continued duration,
rather than isolated occurrences.” West v. Tillman, 496 F.3d 1321, 1329 (11th Cir.
2007). For example, at the motion to dismiss stage, allegations of multiple incidents of
abuse may sufficiently demonstrate a pattern. See Buckley v. Barbour Cty., Ala., 624 F.
Supp. 2d 1335, 1344 (M.D. Ala. 2008). Also, where a plaintiff alleges a defendant was
aware of allegedly inadequate supervision from a prior incident, from complaints related
to the inadequate supervision, and from information the plaintiff faced a risk of harm
from the inadequacy, the Eleventh Circuit has held the plaintiff sufficiently alleged the
official “acted with deliberate indifference toward [the plaintiff’s] rights in failing to ensure
that competent officials took steps to protect [the plaintiff].” Greason v. Kemp, 891 F.2d
829, 837 & n.18, 838 (11th Cir. 1990). In contrast, where the need for training is not “so
obvious” and where the plaintiff bases her failure-to-train claim on a single incident,
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courts have held the plaintiff failed to sufficiently allege a widespread pattern of abuse.
See, e.g., Weiland, ___F.3d___, 2015 WL 4098270, at *10 (11th Cir.).
With this precedent in mind, the Court will address the allegedly inadequate
training regarding the medical treatment of transgender inmates and the reasonable
protection of transgender inmates in turn.
1) Inadequate training regarding the medical treatment for
transgender inmates
Diamond alleges Lewis was aware of inadequate training as a result of the
widespread pattern of abuse by prison officials who “repeatedly denied inmates with
gender dysphoria treatment of any kind” but took no corrective action. (Doc. 3, ¶¶ 15859). Contrary to Lewis’s assertion, Diamond’s allegations are not a formulaic recitation.
Rather, with factual specificity, she alleges “numerous instances of abuse …, separated
in time, involving distinct [GDOC] officials and personnel at four different [GDOC]
facilities, all based on her status as a transgender woman.” (Doc. 49 at 26).
Specifically, Diamond alleges the Standards of Care and GDOC’s own policies, all of
which GDOC personnel were aware, recognize that inmates with gender dysphoria
require treatment, which may include hormone therapy and female gender expression.
(Doc. 3, ¶¶ 31-32, 41, 43, 46-47). Despite this, GDOC personnel across four facilities
repeatedly denied Diamond adequate treatment. (Doc. 3, ¶¶ 64, 73-76, 81, 85-86, 97,
102, 107, 109-13, 116-17). Some, such as Defendants Hatcher and Allen, expressly
forbade female gender expression, and Allen did so by disciplining and ridiculing her.
(Doc. 3, ¶¶ 87-90, 110-113). Also, GDOC officials flatly ignored the recommendations
of multiple medical professionals at different facilities that Diamond needed treatment.
(Doc. 3, ¶¶ 73, 75-76, 96-97, 110-111, 116-17). Because of this inadequate training,
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Diamond alleges she went without treatment at each facility and experienced
intensifying suicide ideation and impulses to commit self-harm, among other physical
and psychological harm. (Doc. 3, ¶¶ 5, 73, 75, 90, 96, 104, 118, 121-22). See Am.
Fed’n of Labor & Cong. of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1189 (11th
Cir. 2011) (“[A] plaintiff must also demonstrate that constitutional violations were likely to
recur without training.”).
These allegations are not simply threadbare recitations there was a widespread
pattern of abuse that resulted in deliberate indifference or allegations based on a single
incident of abuse. Rather, Diamond has provided specific factual support to allege a
widespread pattern that GDOC personnel over a period of three years repeatedly
denied her gender dysphoria treatment based on her status as a transgender woman.
Thus, Diamond has sufficiently alleged Lewis was aware of the need “to remedy an
unconstitutional condition” but failed to do so. Cf. Marsh v. Butler Cty., Ala., 268 F.3d
1014, 1037 (11th Cir. 2001) (“Unless a policymaker knows of the need [to remedy an
unconstitutional condition], no liability can arise from failure [to do so].”), abrogated on
other grounds, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
Diamond has also sufficiently alleged Lewis deliberately chose not to remedy the
inadequate training or otherwise take institutive corrective measures. According to
Diamond, Lewis repeatedly directed subordinates to refuse treatment and only offer
counseling based on a blanket practice to deny gender dysphoria treatment to
transgender inmates, even if GDOC medical professionals have confirmed an inmate
suffers from gender dysphoria. (Doc. 3, ¶¶ 76, 91, 97, 117). See Valdes v. Crosby, 450
F.3d 1231, 1236 (11th Cir. 2006) (“Supervisory liability under 1983 occurs … when
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there is a causal connection between the actions of the supervising official and the
alleged constitutional deprivation. … A causal connection may be established when …
facts support an inference the supervisor directed subordinates to act unlawfully.”
(internal quotation marks and citations omitted)). Accordingly, at this stage in the
litigation, Diamond has sufficiently alleged a plausible claim that Lewis failed to train
subordinates to provide adequate medical treatment to transgender inmates and that
this failure led to the deliberate indifference to Diamond’s medical needs.
2) Inadequate training regarding the safety and placement of
transgender inmates
Diamond alleges that Lewis, as a final policy- and decision-maker, inadequately
trained subordinates regarding the safety and protection of transgender inmates.
Diamond argues a widespread pattern of abuse by prison officials put Lewis on notice of
the deficiency in training. Lewis contends Diamond’s allegations are a formulaic
recitation of the elements of a failure-to-train claim. But contrary to Lewis’s assertion,
Diamond alleges “numerous instances of abuse …, separated in time, involving distinct
[GDOC] officials and personnel at [three] different [GDOC] facilities, all based on her
status as a transgender woman.” (Doc. 49 at 26). Specifically, Diamond alleges Lewis
was aware from GDOC’s own policies that transgender inmates are highly vulnerable to
sexual assaults and that their housing placements are to be reviewed by personnel
when safety issues arise. (Doc. 3, ¶¶ 52-61). Despite these policies, Diamond alleges
she was placed at three closed-security facilities and was repeatedly sexually assaulted
at each one. (Doc. 3, ¶¶ 65-71). Diamond alleges at least six specific incidents of
sexual assault across three of GDOC’s facilities and persistent sexual harassment and
coercion over the duration of her confinement within these facilities.
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Diamond then alleges GDOC personnel repeatedly failed to reasonably respond
to the substantial risk of sexual assault: they failed to review her placement pursuant to
PREA and Sexual Assault SOP guidelines, delayed and deferred any action after the
incidents of assault, ignored her sexual assault complaints and requests to transfer, and
disregarded mental health professionals’ conclusions she “faced continued vulnerability
to sexual assault” at closed-security facilities. (Doc. 3, ¶¶ 70-72, 92-94, 98-103, 106107, 119-120). Indeed, Diamond alleges that intake personnel at Valdosta State Prison
directly told her the prison could not “safely house transgender persons” and that she
“stood a high likelihood of being sexually assaulted based on the inmate population.”
(Doc. 3, ¶ 93). In sum, these allegations are not simply threadbare recitations there
was a widespread pattern of abuse. Rather, Diamond has provided sufficient factual
support to show a widespread, flagrant, obvious pattern of a continued duration that
GDOC officials failed to reasonably respond to multiple incidents of sexual assaults or
to the substantial risk of assault Diamond faced at closed-security facilities.
Further, Diamond has sufficiently alleged Lewis deliberately chose not to remedy
this inadequate training despite her responsibility to review the placement of
transgender inmates and train subordinates regarding their safety. According to
Diamond, Lewis was notified pursuant to GDOC policy that Diamond had been
repeatedly sexually assaulted at each closed-security facility where she had been
housed. (Doc. 3, ¶¶ 60, 69, 71, 94, 100, 106, 149). But Diamond continued to be
transferred to closed-security facilities where she experienced sexual assault, and
Lewis otherwise failed to institute corrective measures to ensure that subordinates took
steps to protect Diamond from the risk of sexual assault. See Am. Fed’n of Labor &
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Cong. of Indus. Orgs., 637 F.3d at 1189 (“[A] plaintiff must also demonstrate that
constitutional violations were likely to recur without training.”).
Accordingly, at this stage in the litigation, Diamond has sufficiently alleged a
plausible claim that Lewis failed to train subordinates regarding the safety of
transgender inmates and that this failure resulted in deliberate indifference to Diamond’s
constitutional right to reasonable protection.
b. Whether the Constitutional Right was Clearly Established
Lewis is not entitled to qualified immunity if clearly established law gave her fair
warning her failure to train subordinates was unlawful. Lewis simply argues she is
“unaware of any clearly established law holding that [officials] such as … Lewis can be
held liable for a failure to train despite an absence of widespread abuse or repeated
violations of which [Lewis was] aware.” (Doc. 35-1 at 25). As discussed, Diamond has
sufficiently alleged a pattern of widespread abuse of which Lewis was aware. In
Valdes, the Eleventh Circuit held that it was clearly established that a supervisor
“charged with directing the governance, discipline, and policy of the prison and
enforcing its orders, rules, and regulations” could “face liability under § 1983 predicated
on his failure to take reasonable steps in the face of a history of widespread abuse or
his adoption of custom or policies which result in deliberate indifference.” 450 F.3d at
1244. Again, Diamond alleges Lewis, as Statewide Medical Director for GDOC, is the
final policy- and decision-maker regarding the care, treatment, and housing decisions
for transgender inmates and victims of sexual assault; has the authority to grant or deny
medical care to inmates with gender dysphoria; and is responsible for the
implementation of policies and the training of subordinates regarding the same. (Doc.
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3, ¶ 18). Thus, Lewis was responsible for “directing … the policy” and “enforcing [the]
orders, rules, and regulations” that apply to all facilities within GDOC. See Valdes, 450
F.3d at 1244.
With respect to the allegedly inadequate training regarding the medical treatment
of transgender inmates, it was clearly established Lewis’s failure to adequately train
subordinates or otherwise take reasonable institutive corrective measures “in the face of
a history of widespread abuse” was unlawful. See id. at 1244. As discussed, Diamond
has sufficiently alleged that Lewis was on notice from a widespread pattern of abuse
that GDOC personnel across multiple facilities were denying gender dysphoria
treatment in a deliberately indifferent manner. But despite her notice from this pattern
and despite her responsibilities as supervisor, Lewis failed to train subordinates or
otherwise take institutive corrective action. See Greason, 891 F.2d at 838-39 (holding
the supervisor liable where after staff abruptly terminated an inmate’s psychiatric care,
the supervisor took no corrective action despite notice of a prior incident where staff
similarly denied psychiatric care and being specifically put on notice of inadequacies
leading to this termination of care). Indeed, as discussed, Lewis repeatedly enforced
the blanket practice to deny gender dysphoria treatment. Accordingly, Lewis is not
entitled to qualified immunity from the failure-to-train claim regarding medical treatment.
Likewise, with respect to the allegedly inadequate training regarding the safety
and placement of transgender inmates, it was clearly established Lewis’s failure to take
reasonable institutive corrective procedures “in the face of a history of widespread
abuse” was unlawful. See Valdes, 450 F.3d at 1244. As discussed, Diamond has
sufficiently alleged that Lewis was on notice that GDOC personnel across multiple
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facilities repeatedly ignored the substantial risk of harm Diamond faced as a
transgender inmate at closed-security facilities with violent offenders, continued to place
her at such facilities, ignored her sexual assault reports, and otherwise delayed action
and review when safety issues arose. But despite her notice from this pattern and
despite her responsibilities as a supervisor, Lewis failed to train subordinates or enact
institutive corrective action. See LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir.
1993) (holding a supervisor’s conduct unlawful when he failed to take institutive
corrective measures after receiving numerous reports that inmates were subjected to a
continuous threat of violence, including sexual assault); see also Brown v. Smith, 2006
WL 1890192, at *7 (M.D. Ga.) (“After the Eleventh Circuit recognized in LaMarca that a
prison supervisor can be held liable for his failure to train and supervise his employees
to prevent inmate violence, any reasonable prison or jail supervisor would conclude that
his failure to implement training and supervisory measures to prevent sexual assaults
by his own employees could also subject him to supervisory liability under § 1983.”).
Accordingly, Lewis is not entitled to qualified immunity on the failure-to-train claim
regarding the safety and placement of transgender inmates.
IV.
CONCLUSION
For the reasons stated above, the Defendants’ motions to dismiss are DENIED.
(Docs. 35; 38).
SO ORDERED, this 14th day of September, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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