Stover v. Corrections Corporation of America et al
Filing
147
MEMORANDUM DECISION AND ORDER granting in part and denying in part 123 CCA Defendants Motion for Summary Judgment; granting 124 Corizons Motion for Summary Judgment; granting in part and denying in part 126 IDOC Defendants Motion for Summary Ju dgment; granting in part and denying in part 143 IDOC Defendants Motion to Strike. All claims against Defendant Cardona that arose while Cardona was employed by CCA are DISMISSED with prejudice. All claims against Defendant Corizon are DISMISSED wi th prejudice. All claims againstDefendants Allen, Magon, Romreill, Siegert, as well as all claims againstDefendant Cardona that arose while Cardona was employed by the IDOC, are DISMISSED with prejudice. Plaintiffs First Amendment claimsas well as he r RLUIPA claims regarding the smudging ceremonyagainst Defendants Wamble-Fisher and Kirkman are DISMISSED with prejudice. If Plaintiff and any remaining Defendant (ICC, CCA, Kerr, Wengler, Kirkman, or Wamble-Fisher) are interested in participating in the Courts Alternative Dispute Resolution (ADR) program, they shall file a joint stipulation for referral to a settlement conference within 14 days after entry of this Order. If no stipulation is received, the case will be set for trial. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JESSIKA ELLEN STOVER, aka
JESSIE E. STOVER,
Plaintiff,
Case No. 1:12-cv-00393-EJL
MEMORANDUM DECISION AND
ORDER
v.
CORRECTIONS CORPORATION OF
AMERICA; IDAHO CORRECTIONAL
CENTER; MICHAEL KERR;
TIMOTHY WENGLER; CORIZON,
LLC, f/k/a CORIZON, INC.; RYAN
ALLEN; SHANNON MAGON; SHELL
WAMBLE-FISHER; JEFF KIRKMAN;
WALTER ROMREILL; RONA
SEIGERT; and JOSEPH CARDONA,
Defendants.
Plaintiff, a prisoner in the custody of the Idaho Department of Correction
(“IDOC”), is proceeding pro se in this civil rights action. At all times relevant to
Plaintiff’s claims, Plaintiff was incarcerated either at the Idaho Correctional Center (from
MEMORANDUM DECISION AND ORDER - 1
July 21, 2009, to December 29, 2010), or the Idaho State Correctional Institution (from
December 30, 2010, to the present).
Now pending before the Court are three motions for summary judgment filed by
(1) Defendants Idaho Correctional Center, Corrections Corporation of America, Michael
Kerr, Timothy Wengler, and Joseph Cardona (collectively, the “CCA Defendants”) (Dkt.
123); (2) Defendant Corizon, LLC (“Corizon”) (Dkt. 124); and (3) Defendants Ryan
Allen, Shannon Magon, Shell Wamble-Fisher, Jeff Kirkman, Walter Romreill, Rona
Siegert, and Joseph Cardona1 (collectively, the “IDOC Defendants”) (Dkt. 126). Also
pending is the IDOC Defendants’ Motion to Strike. (Dkt. 143.)
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record and that oral argument is
unnecessary. See D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the following
Order (1) granting in part and denying in part the CCA Defendants’ Motion for Summary
Judgment, (2) granting in full Corizon’s Motion for Summary Judgment, and (3) granting
in part and denying in part the IDOC Defendants’ Motion for Summary Judgment.
All claims against Defendants Corizon, Allen, Magon, Romreill, Siegert, and
Cardona will be dismissed with prejudice. As set forth below, upon entry of this
Memorandum Decision and Order, the only claims remaining in this action will be (1)
1
Defendant Cardona was employed by CCA as a Health Services Administrator at ICC
until July 31, 2010, and is now employed by the IDOC. (Cardona Aff., Dkt. 123-6, ¶ 2.) Counsel
for the CCA Defendants and counsel for the IDOC Defendants both state that they represent
Defendant Cardona. (Dkt. 123 & 126.) All claims against Defendant Cardona involve Plaintiff’s
medical treatment while incarcerated at ICC or ISCI.
MEMORANDUM DECISION AND ORDER - 2
Plaintiff’s Eighth Amendment failure-to-protect claims against Defendants ICC, CCA,
Kerr, and Wengler; and (2) Plaintiff’s RLUIPA claims for injunctive relief, with respect
to Plaintiff’s desire to participate in a religious sweating ceremony, against Defendants
Kirkman and Wamble-Fisher.
INTRODUCTION
Plaintiff is a Native American male-to-female transgender prisoner. She has been
diagnosed with Gender Identity Disorder (“GID”).2 Although Plaintiff receives female
hormone therapy and has developed feminine characteristics such as breasts, she is
incarcerated in a men’s prison because she remains anatomically male—she has not had
sex reassignment surgery. Plaintiff is incarcerated at Idaho State Correctional Institution
(“ISCI”), though some of her current claims arose while she was incarcerated at a prison
then-known as Idaho Correctional Center (“ICC”), which was formerly operated by
CCA, a private prison company, under contract with the IDOC.3
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute, as well as
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc et seq. She sues various individual prison officials as well as CCA and ICC. She
2
The Court refers to Plaintiff with feminine pronouns because she self-identifies as a
female.
3
Idaho Correctional Center is now known as Idaho State Correctional Center and is
operated by the IDOC.
MEMORANDUM DECISION AND ORDER - 3
also sues Corizon, the private entity providing medical care to Idaho inmates under
contract with the IDOC.4
In its Initial Review Order, the Court reviewed Plaintiff’s Amended Complaint
pursuant to 28 U.S.C. §§ 1915 and 1915A and allowed Plaintiff to proceed on the
following four groups of claims against the following Defendants:
(1)
Eighth Amendment failure-to-protect claims against Defendants ICC, CCA,
Kerr, and Wengler with respect to Plaintiff being sexually assaulted by
other inmates in the summer and fall of 2010;
(2)
Eighth Amendment sexual abuse and sexual harassment claims against
Defendants Allen and Magon with respect to an incident where Defendant
Allen ordered Plaintiff to show him and Magon her breasts;
(3)
Eighth Amendment medical treatment claims against Defendants Corizon,
Cardona, and Siegert with respect to Plaintiff’s alleged need for specific,
medically necessary bras and underwear; and
(4)
First Amendment and RLUIPA claims against Defendants Romreill,
Kirkman, and Wamble-Fisher with respect to Plaintiff’s desire to perform a
smudging ritual and to use the sweat lodge at ISCI.
(Initial Review Order, Dkt. 16.)
4
At the time of the events giving rise to Plaintiff’s claims, Corizon did not provide medical
treatment to inmates at ICC. Rather, CCA was responsible for providing medical care to inmates
at that prison. Therefore, while Plaintiff was incarcerated at ICC, her medical treatment was
provided by CCA; while she was incarcerated at ISCI, it was provided by Corizon.
MEMORANDUM DECISION AND ORDER - 4
THE IDOC DEFENDANTS’ MOTION TO STRIKE
The IDOC Defendants move to strike some of Plaintiff’s evidentiary submissions
as inadmissible. In the summary judgment context, a motion to strike is unnecessary, but
not necessarily improper. Fed. R. Civ. P. 56(c)(2) (“A party may object that the material
cited to support or dispute a fact cannot be presented in a form that would be admissible
in evidence.”); Advisory Cmte. Notes, 2010 Amendments to Rule 56 (“The [Rule
56(c)(2)] objection functions much as an objection at trial, adjusted for the pretrial
setting. The burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated. There is no need to make a
separate motion to strike.” (emphasis added)).
The IDOC Defendants ask the Court to strike, inter alia, the affidavits of all
witnesses whom Plaintiff did not identify in her initial disclosures, her supplemental
disclosures, or her responses to Defendants’ discovery requests. Rule 37(c) prohibits a
party from using undisclosed information “to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is harmless.”
Plaintiff has submitted affidavits from the following individuals: Adree Edmo,
Erinn Wright, Amber Renee Brune, David Paul-Whitestorm Hochstetler, Kyle Merrill,
David Thieme, and Jeremy Meyer. Plaintiff does not dispute that she did not initially
disclose the identities of these individuals, nor did she supplement her disclosures to
identify them. Plaintiff has not attempted to justify her failure to disclose this
information, or to establish that the failure to disclose was harmless. Therefore, the Court
MEMORANDUM DECISION AND ORDER - 5
will grant in part the IDOC Defendants’ Motion and will strike the affidavits of these
individuals. The Motion will be denied in all other respects.
THE CCA DEFENDANTS’ OBJECTION
TO PLAINTIFF’S OPPOSITION MATERIALS
In its Reply in Support of its Motion for Summary Judgment, the CCA Defendants
ask the Court to disregard Plaintiff’s opposition materials in their entirety. See Fed. R.
Civ. P. 56(c)(2). The Court shall address each of the CCA Defendants’ arguments in turn.
First, the CCA Defendants imply that Plaintiff’s opposition brief does not comply
with the Court’s page limitations. (Dkt. 145 at 3.) Memoranda in support of or in
opposition to a motion for summary judgment may, in general, be no longer than 20
pages. (Dkt. 125; D. Idaho Loc. Civ. R. 7.1.) However, the Court allowed Plaintiff to file
a consolidated response to the three pending motions for summary judgment and stated
that any such consolidated response must be no longer than 60 pages. (Dkt. 133 at 2.)
Plaintiff’s 59-page brief obviously complies with that limitation. The CCA Defendants’
argument on this issue is meritless.
Second, the CCA Defendants state that the font of Plaintiff’s opposition brief is
too small. Although the CCA Defendants are correct in this regard—the font in Plaintiff’s
brief is clearly smaller than the minimum 12-point font (see Loc. Civ. R. 5.2)—the Court
will excuse Plaintiff’s non-compliance on this one occasion and has considered her
opposition brief.
Third, the CCA Defendants correctly point out that the “bankers box full of
unorganized, unlabeled, often double-sided, miscellaneous documents,” which Plaintiff
MEMORANDUM DECISION AND ORDER - 6
submitted in opposition to Defendants’ motions, does not consistently “direct [the
Court’s] attention to specific triable facts.” So. Ca. Gas Co. v. City of Santa Ana, 336
F.3d 885, 889 (9th Cir. 2003). Instead, Plaintiff simply submitted hundreds of pages of
documents without making an attempt to assemble them in an organized way, other than
numbering various exhibits. Because Plaintiff is a pro se litigant, the Court will not
disregard her materials in their entirety, but has considered these materials to the extent
that Plaintiff has clearly identified them in her opposition brief. See Fed. R. Civ. P.
56(c)(3) (stating that when deciding a motion for summary judgment, the Court “need
consider only the cited materials”).
Finally, the CCA Defendants argue that many of the documents submitted by
Plaintiff have not been properly authenticated. However, the materials considered by the
court at summary judgment need only be capable of being presented in a form that would
be admissible in evidence. Fed. R. Civ. P. 56(c)(2). Therefore, the Court assumes that
Plaintiff could lay the proper foundation for her evidence and could authenticate any of
her submitted documents at trial. Defendants may, of course, challenge the admissibility
of any of Plaintiff’s evidence at trial. See Advisory Cmte. Notes, 2010 Amendments to
Fed. R. Civ. P. 56.
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
This Memorandum Decision and Order includes facts that are undisputed and
material to the resolution of the issues in this case. Where material facts are in dispute,
the Court has included Plaintiff’s version of facts, insofar as that version is not
MEMORANDUM DECISION AND ORDER - 7
contradicted by clear documentary evidence in the record. See Scott v. Harris, 550 U.S.
372, 380 (2007) (“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.”)
1.
Summary Judgment Standard of Law
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims or
defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not “a disfavored
procedural shortcut,” but is instead the “principal tool[] by which factually insufficient
claims or defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, there must be no genuine
dispute as to any material fact in order for a case to survive summary judgment. Material
facts are those “that might affect the outcome of the suit.” Id. at 248. “Disputes over
irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
MEMORANDUM DECISION AND ORDER - 8
The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a
party may cite to particular parts of materials in the record, or show that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)
& (B). The Court must consider “the cited materials,” but it may also consider “other
materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court is “not required to comb
through the record to find some reason to deny a motion for summary judgment.”
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)
(internal quotation marks omitted). Instead, as noted previously, the “party opposing
summary judgment must direct [the Court’s] attention to specific triable facts.” So. Ca.
Gas Co., 336 F.3d at 889.
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party’s position is
insufficient. Rather, “there must be evidence on which [a] jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at 252.
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or in opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
MEMORANDUM DECISION AND ORDER - 9
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). If a party “fails to
properly support an assertion of fact or fails to properly address another party’s assertion
of fact,” the Court may consider that fact to be undisputed. Fed. R. Civ. P. 56(e)(2). The
Court may grant summary judgment for the moving party “if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled
to it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. Although all reasonable inferences which can be drawn
from the evidence must be drawn in the light most favorable to the non-moving party,
T.W. Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable
inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).
2.
Standard of Law for Section 1983 Claims
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To succeed
on a claim under § 1983, a plaintiff must establish a violation of rights protected by the
Constitution or created by federal statute proximately caused by the conduct of a person
acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Prison officials are generally not liable for damages in their individual capacities under
§ 1983 unless they personally participated in the alleged constitutional violations. Taylor
v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Ashcroft v. Iqbal, 556 U.S. 662, 677
MEMORANDUM DECISION AND ORDER - 10
(2009) (“[E]ach Government official, his or her title notwithstanding, is only liable for
his or her own misconduct.”).
An individual defendant “may be held liable as a supervisor under § 1983 ‘if there
exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). This causal connection “can be
established by setting in motion a series of acts by others, or by knowingly refusing to
terminate a series of acts by others, which the supervisor knew or reasonably should have
known would cause others to inflict a constitutional injury.” Id. at 1207-08 (internal
quotation marks, citation, and alterations omitted).
To prevail on her § 1983 claims against ICC, CCA, and Corizon as entities,
Plaintiff must meet the test articulated in Monell v. Department of Social Services, 436
U.S. 658, 690-94 (1978); see Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir.
2012) (applying Monell to private entities). Under Monell, the requisite elements of a §
1983 claim against a municipality or private entity performing a state function are the
following: (1) the plaintiff was deprived of a constitutional right; (2) the municipality or
entity had a policy or custom; (3) the policy or custom amounted to deliberate
indifference to plaintiff’s constitutional right; and (4) the policy or custom was the
moving force behind the constitutional violation. Mabe v. San Bernardino Cnty., 237
F.3d 1101, 1110-11 (9th Cir. 2001).
MEMORANDUM DECISION AND ORDER - 11
An unwritten policy or custom must be so “persistent and widespread” that it
constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper
custom may not be predicated on isolated or sporadic incidents; it must be founded upon
practices of sufficient duration, frequency and consistency that the conduct has become a
traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996). Further, a municipality or private entity performing a state function “may be held
liable under § 1983 when the individual who committed the constitutional tort was an
official with final policy-making authority or such an official ratified a subordinate’s
unconstitutional decision or action and the basis for it.” Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1250 (9th Cir. 2010).
3.
Plaintiff’s Eighth Amendment Claims
The Eighth Amendment to the United States Constitution protects prisoners
against cruel and unusual punishment. To state a claim under the Eighth Amendment,
Plaintiff must show that she is (or was) “incarcerated under conditions posing a
substantial risk of serious harm,” or that she has been deprived of “the minimal civilized
measure of life’s necessities” as a result of Defendants’ actions. Farmer v. Brennan, 511
U.S. 825, 834 (1994) (internal quotation marks omitted). An Eighth Amendment claim
requires a plaintiff to satisfy “both an objective standard—that the deprivation was
serious enough to constitute cruel and unusual punishment—and a subjective standard—
deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
MEMORANDUM DECISION AND ORDER - 12
“[D]eliberate indifference entails something more than mere negligence, [but] is
satisfied by something less than acts or omissions for the very purpose of causing harm or
with knowledge that harm will result.” Id. at 835. To exhibit deliberate indifference, a
defendant “must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. If
a [prison official] should have been aware of the risk, but was not, then the [official] has
not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at
1188 (citation omitted). However, “whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence, . . . and a factfinder may conclude that
a prison official knew of a substantial risk from the very fact that the risk was obvious.”
Farmer, 511 U.S. at 842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir.
2003) (deliberate indifference to medical needs may be shown by circumstantial evidence
when the facts are sufficient to demonstrate that defendant actually knew of a risk of
harm).
A.
Defendants ICC, CCA, Kerr, and Wengler Are Not Entitled to Summary
Judgment on Plaintiff’s Failure-to-Protect Claims
i.
Factual Background
Plaintiff claims that Defendants failed to protect her against attacks from other
inmates. At all times relevant to the claims at issue here, Plaintiff was a participant in
ICC’s Sexual Offender Treatment Program (“SOTP”). The SOTP was “designed to
MEMORANDUM DECISION AND ORDER - 13
provide appropriate cognitive behavioral treatment” for sex offenders. (Decl. of John
Sevy, Dkt. 123-8, at ¶ 5.)
All of the SOTP participants, including Plaintiff and the inmates who attacked her,
were housed together on the same tier: R-Pod, in the West Wing of ICC. (Id. at ¶ 12.) RPod was “an open dormitory with 59 beds, similar to general population” except that
there were more property restrictions in R-Pod. (Id. at ¶¶ 12-13.) This housing
arrangement “allowed the inmates privacy and confidentiality while working on their
Individual Treatment Plans and to discuss treatment concepts openly with other tier
inmates.” (Id. at ¶ 12.) In order for an inmate to participate in the SOTP, they must be
housed in R-Pod.
Plaintiff was sexually assaulted by other inmates—each of whom was designated
as a member of the Security Threat Group (“STG”) at ICC—on four occasions in the
summer and fall of 2010. (Pl. Consol. Memo. at 32; CCA Memo. in Support, Dkt. 123-1,
at 13.) At some point between August and November of that year, Plaintiff wrote an
“anonymous letter” to then-Warden Wengler. This letter “detailed the specific names and
activities of STG members,” but Plaintiff concedes that she “made [the letter] sound like
someone else wrote it” because she was afraid that the gang members might find out
about the letter. (Pl. Consol. Memo. at 32.) The letter is not part of the record in this case,
but Plaintiff described it in her deposition as follows:
MEMORANDUM DECISION AND ORDER - 14
Q.
What was the content of this letter, if you recall?
A.
The content of the letter gave some information about
[STG] gang activities, about the assaults that were
going on and stuff, and about extortion.
...
Q.
Did you identify anyone by name?
A.
I identified all of the perpetrators, the gang members,
by as much information as I could give, their names. . .
...
Q.
So your name is not on [the letter]; correct?
A.
Correct.
Q.
And you explained, generally, to the warden, Warden
Wengler, that there were things going on, on the tier;
correct?
A.
Yes. I explained there were all kinds of stuff going on
there.
Q.
You talked about extortion in the letter?
A.
Extortion. Assaults, they were assaulting other
inmates. There was another inmate. . . who was
assaulted, sexually assaulted by [a gang member], the
week after I was or around the same time.
...
Q.
Did you include that in your letter?
A.
In what letter?
Q.
Your letter to Wengler?
A.
About [that other inmate]?
Q.
About that other assault? Or was this more of a general
letter.
MEMORANDUM DECISION AND ORDER - 15
A.
No. I did a general letter. Because some of the staff
over there would often take the kites—I witnessed this
myself—and go tell these gang members that inmates
were writing kites on them. So I made it . . . general to
make it sound like it came from someone other than
myself.
Q.
So you wouldn’t have said, “[Inmate X] assaulted me
on this date”?
A.
No, I did not. I made it generalized that they were—I
gave them enough information to where they could do
something to get rid of these guys.
(Stover Depo. [Ex. A to Tyler Williams Decl., Dkt. 123-4] at 56-61.)
Shortly after Plaintiff wrote the letter to Wengler (and as early as the next day),
staff members took aside the inmates identified in the letter and questioned them. (Id. at
57, 61.) Plaintiff states that when the inmates came back to the tier, they said, “Yeah,
they bought everything we said pretty much, and said we can—they’re letting us run this
tier.” (Id. at 58.)
At some point during this period of summer and fall, Plaintiff met with Defendant
correctional officer Michael Kerr on two occasions. During one of these meetings, in
early August, Plaintiff asked Kerr to move her bunk “towards up front where the camera
could see [her].” (Id. at 64.) Plaintiff told Kerr that she “didn’t feel comfortable” around
the other inmates. (Id. at 67.) Plaintiff did not provide any specific details to Kerr because
she thought it was “obvious. Why would someone ask to be moved next to a camera? I
didn’t want to—these guys made shanks.” (Id. at 72.) Although Plaintiff’s bunk was not
moved, at some point prison workers did move the security camera so that it pointed
MEMORANDUM DECISION AND ORDER - 16
toward Plaintiff’s area. (Id. at 68.) Although the precise timing of the camera change is
unclear, Plaintiff testified, “I think what they were trying to do is keep an eye on these
guys.” (Id. at 70.)
When Plaintiff spoke with Defendant Kerr the second time, she again asked to be
moved to a different area because “these people were assaulting people.” (Id. at 74.)
Q.
And what did you specifically say to [Kerr]? Did you
name—did you identify [your attacker] by name, or
did you just say, “individuals”?
A.
I said—I can’t remember if I said “individuals” or
named them. But I think I said, those—“that group
back there.”
Q.
And kind of pointing towards the area where—
A.
The group where I met the gang members. And I
referred to them as gang members, that little clique.
...
Q.
Did you say anything about sexual assaults, or was
it—
A.
I didn’t say anything about sexual assaults at that
point. I was too scared to. I was still being mostly
generalized, because I didn’t want them going in there
and saying, “Blah, blah, blah,” and the next thing I
know I’m getting stabbed.
Q.
You don’t remember specifically if you identified
them by name, but you at least generally said, “those
people back where I live”?
A.
Yes.
MEMORANDUM DECISION AND ORDER - 17
(Id. at 76-77.) Kerr questioned Plaintiff about specifics, trying “to get more information
out” of Plaintiff, but Plaintiff did not elaborate. (Id. at 78.)
Plaintiff acknowledges that she did not report being sexually assaulted until
November 21, 2010. On that date, Inmate Rubin Parks informed prison staff that Plaintiff
was in danger, saying, “You need to get Stover out of there. They’re going to get Stover.”
(Id. at 82.) Plaintiff was then called to Unit Manager Brian Johnson’s office, where she
“broke down” and “started spilling everything.” (Id. at 80.) At that point, prison staff took
Plaintiff to the medical unit, asked her to write incident reports about the assaults, and
placed her in protective custody. (Id. at 84.)
ii.
Standard of Law and Discussion
Prison officials who act with deliberate indifference “to the threat of serious harm
or injury” by one prisoner against another are subject to liability under § 1983. Berg v.
Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). “Having incarcerated persons with
demonstrated proclivities for antisocial criminal, and often violent, conduct, having
stripped them of virtually every means of self-protection and foreclosed their access to
outside aid, the government and its officials are not free to let the state of nature take its
course.” Farmer, 511 U.S. at 833 (internal quotation marks, citation, and alterations
omitted). Because there is no doubt that Plaintiff did face a substantial risk of serious
harm by other inmates—she was assaulted four separate times—the question becomes
whether Defendants ICC, CCA, Wengler, and Kerr were actually aware of that risk yet
deliberately disregarded it. Although even an obvious danger does not result in liability if
MEMORANDUM DECISION AND ORDER - 18
the official is not subjectively aware of it, a prison official cannot “escape liability for
deliberate indifference by showing that, while he was aware of an obvious, substantial
risk to inmate safety, he did not know that the complainant was especially likely to be
assaulted by the specific prisoner who eventually committed the assault.” Id. at 843.
a.
Failure-to-Protect Claims Against ICC and CCA
As noted previously, to be entitled to summary judgment on Plaintiff’s failure-toprotect claims against ICC and CCA, those Defendants must show that there is no
genuine dispute as to whether CCA had a deliberately indifferent custom or policy that
was the moving force behind a violation of Plaintiff’s constitutional rights. Mabe, 237
F.3d at 1110-11; Monell, 436 U.S. at 690-94. For ICC or CCA to be liable under § 1983,
it “must have (1) had a policy that posed a substantial risk of serious harm to [Plaintiff];
and (2) known that its policy posed this risk.” Gibson, 290 F.3d at 1188.
Defendants ICC and CCA have not carried their initial burden of showing a lack
of a genuine dispute of material fact as to Plaintiff’s failure-to-protect claims. CCA
undisputedly had a custom or policy of requiring all sex offenders participating in the
SOTP to be housed together in the same unit—a unit with a particular physical layout.
(Decl. of John Sevy, Dkt. 123-8, at ¶¶ 12-13.) Therefore, the question becomes whether a
jury could conclude that this housing policy amounted to deliberate indifference and was
the moving force behind Plaintiff’s injuries.
The area in which Plaintiff was housed at the times relevant to her claims—a tier
made up entirely of sex offenders—was an open dorm with 59 beds, without individual
MEMORANDUM DECISION AND ORDER - 19
cells. Plaintiff is a transgender prisoner with feminine characteristics. These undisputed
facts lead the Court to conclude that a genuine dispute exists as to whether CCA’s policy
of housing a male-to-female transgender prisoner with as many as 58 other male sex
offenders in an open dorm setting creates such an obvious risk of sexual assault that the
policy amounts to deliberate indifference to the safety of the transgender prisoner. See
Farmer, 511 U.S. at 842; Monell, 436 U.S. at 690-94. A jury could also conclude that the
housing policy was the moving force behind the violation of Plaintiff’s constitutional
rights.
b.
Failure-to-Protect Claims Against Wengler and Kerr
Defendants Wengler and Kerr have submitted evidence that until November 21,
2010, Plaintiff reported only generalized information about assaults by gang members
and their activities. Plaintiff purposefully composed her letter to Wengler to make it
appear that someone else wrote it, thereby remaining silent as to her own experiences and
fears about the inmates on the tier. Similarly, Plaintiff concedes that she did not inform
Kerr of any specific fears or threats during either of their two meetings. Further, after
Plaintiff wrote the anonymous letter to Wengler, prison staff questioned the inmates
whom she had identified in the letter as extorting or assaulting other inmates, and at one
point the camera was moved toward Plaintiff’s area so that, in Plaintiff’s words, prison
officials could “keep an eye on these guys.” (Stover Depo. at 70.) Finally, when Plaintiff
did report the attacks against her, she was immediately taken to the medical unit and then
housed in protective custody. These facts might tend to show that Defendants Wengler
MEMORANDUM DECISION AND ORDER - 20
and Kerr—“rather than being deliberately indifferent—[were] unquestionably trying to
help” ensure Plaintiff’s safety. Patterson v. Hudson Area Schools, 551 F.3d 438, 454 (6th
Cir. 2009).
However, the evidence also establishes that Wengler and Kerr, though perhaps not
aware of a specific and immediate threat to Plaintiff’s safety, were evidently aware that
Plaintiff is a transgender prisoner and that she was housed in an open dorm with up to 58
other male sex offenders—individuals who, as evidenced by their history of sex offenses,
might very well seek to exploit or assault Plaintiff, who has feminine characteristics as a
result of her hormone therapy. Given these facts, a jury could reasonably conclude that
Defendants Wengler and Kerr subjectively drew the inference that Plaintiff faced a
substantial risk of serious harm at the hands of the other sex offenders, yet deliberately
disregarded that risk. As the Supreme Court made clear in Farmer, “it does not matter
whether the risk comes from a single source or multiple sources, any more than it matters
whether a prisoner faces an excessive risk of attack for reasons personal to him or
because all prisoners in his situation face such a risk.” 511 U.S. at 843.
For the foregoing reasons, the CCA Defendants’ Motion will be denied as to
Plaintiff’s failure-to-protect claims against ICC, CCA, Wengler, and Kerr.
B.
Defendants Allen and Magon Are Entitled to Summary Judgment on
Plaintiff’s Sexual Abuse and Harassment Claims
Plaintiff claims that she was subjected to sexual abuse and sexual harassment by
Defendants Allen and Magon.
MEMORANDUM DECISION AND ORDER - 21
i.
Factual Background
According to Plaintiff, on May 13, 2012, she was in the recreation yard and
noticed Defendant Allen and another correctional officer staring at her. (Plaintiff’s
Consol. Memo., Dkt. 141-1, at 9.) As she was walking with another prisoner, Kevin
Young, near the ball field, she “was summoned by the Tower Guard at Tower #7, to
report to the gym Security Office.” (Id.; Kevin Young Decl. at ¶ 10.)
When Plaintiff arrived at the security office, Defendant Allen and five other
guards, including Defendant Magon, were staring at her. Allen asked Plaintiff if she
stuffed her bra, and Plaintiff responded that she did not. (Pl.’s Consol. Memo. at 10;
Stover Depo. at 176.) Defendant Allen then allegedly told Plaintiff—falsely—that he had
permission to conduct a strip search. Plaintiff protested, stating that she needed a female
officer or medical staff to conduct the search. (Stover Depo. at 176.)
Allen then gave Stover a direct order to show the officers her bra and breasts. (Id.
at 177.) Plaintiff reluctantly complied, displaying “her breasts and underside of bra to all
male correctional officers in the room.” (Consol. Memo. At 10.) Plaintiff later learned
from correctional officers Lieutenant Baird and Sergeant Greenland that Allen had not
asked permission to conduct this search and that the search was inappropriate. (Stover
Depo. At 177-78.) Plaintiff also learned from other inmates that, prior to the search in the
security office, correctional officers were “making jokes and placing bets with one
another as to whether [Plaintiff’s] breasts were real or stuffed.” (Id. at 178; see also Aff.
MEMORANDUM DECISION AND ORDER - 22
of Irwin Adams at ¶ 3; Aff. of Johnny Manning at ¶ 3; Aff. of Christopher Morgan at ¶ 3;
Aff. of James Hebert at ¶¶ 2-3.)
According to Plaintiff, her breast area is usually searched by female correctional
officers pursuant to an IDOC policy. (Pl.’s Consol. Memo. At 12-14.)
ii.
Standard of Law and Discussion
Plaintiff claims that Defendants Allen and Magon violated the Eighth Amendment
and IDOC policy by conducting the May 13, 2012 search of Plaintiff’s breast area, joking
about Plaintiff, and falsely stating that they had permission to view Plaintiff’s breasts.
Prisoners have an Eighth Amendment right to be free from sexual abuse. Schwenk
v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Sexual abuse by a prison guard is
“inconsistent with contemporary standards of decency and repugnant to the conscience of
mankind.” Whitley v. Albers, 475 U.S. 312, 327 (1986) (internal quotation marks
omitted). Although threats and verbal abuse are generally insufficient to state a civil
rights violation, sexual harassment can constitute “calculated harassment unrelated to
prison needs,” which violates the Eighth Amendment. Hudson v. Palmer, 468 U.S. 517,
530 (1984).
However, an isolated incident of sexual abuse or harassment does not rise to the
level of a constitutional violation unless it is severe. See Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012) (no Eighth Amendment violation where officer “approached
[an inmate] while [the inmate] was still on the toilet, rubbed his thigh against [the
inmate’s] thigh, began smiling in a sexual [context], and left the cell laughing.”); Somers
MEMORANDUM DECISION AND ORDER - 23
v. Thurman, 109 F.3d 614, 616, 623-24 (9th Cir. 1997) (no Eighth Amendment violation
where female officers conducted visual body cavity searches of male inmates and
watched the inmates shower, all while pointing at the inmates, gawking, and joking
among themselves).
If Plaintiff’s allegations are true, Defendants Allen and Magon joked and placed
bets about whether Plaintiff stuffed her bra and required Plaintiff to show them her
breasts in a non-intrusive way, on one occasion, without a legitimate security reason. This
alleged conduct—though “despicable and . . . potentially . . . the basis of state tort
[liability],”—does not constitute “a harm of federal constitutional proportions.” Boddie v.
Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). Rather, Defendants Allen’s and Magon’s
actions were isolated incidents that did not involve any touching of Plaintiff’s body. As
such, Defendants’ conduct did not violate the Eighth Amendment.
Further, that the search of Plaintiff—or the failure of the officers to submit an
incident report of the search—might have violated IDOC policy does not give rise to a
constitutional violation. (See Pl. Consol. Memo. at 14-15.) So long as prison officials’
conduct does not violate the Constitution, a prison need not comply with its “own, more
generous procedures” in order to avoid liability under § 1983. Walker v. Sumner, 14 F.3d
1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Conner, 515 U.S.
472 (1995).
For the foregoing reasons, Defendants Allen and Magon are entitled to summary
judgment.
MEMORANDUM DECISION AND ORDER - 24
C.
Defendants Corizon, Cardona, and Siegert Are Entitled to Summary
Judgment on Plaintiff’s Medical Treatment Claims
Plaintiff claims that Corizon, Cardona, and Siegert violated her Eighth
Amendment right to adequate medical treatment by not providing Plaintiff with specific,
medically necessary bras and underwear to accommodate her growing breasts and to treat
her testicular pain.
i.
Factual Background
a.
Underwear Issue
During an altercation with a prison employee in 2000—an incident unrelated to
Plaintiff’s current claims—Plaintiff’s right testicle was injured. According to Plaintiff,
she continues to suffer testicular pain as a result of that injury. Plaintiff states that the
seams of the ordinary, prison-issued underwear tug and pull on her testicle, causing
substantial pain. (Pl. Consol. Memo. at 41.) In 2003, urologist Dr. Tullio Celano
prescribed anti-inflammatories for Plaintiff’s pain, concluding that Plaintiff might have
had a “necrotic appendix epididymis” that “had not grown to significant size”;
alternatively, the urologist believed Plaintiff might have had a cyst. (Ex. A. to Valley
Aff., ICC Stover 348, Dkt. 124-13 at 16.) From 2004 to 2009, while incarcerated at other
prison facilities, Plaintiff tried various types of underwear and found that seamless
underwear “seemed to work the best” and caused her less pain than the ordinary, seamed
MEMORANDUM DECISION AND ORDER - 25
underwear.5 (Stover Depo. at 32-33.) Plaintiff was transferred back to ICC in July 2009.
(Id. at 33.)
On January 20, 2010, while she was incarcerated at ICC, Plaintiff was evaluated
by P.A. Daniel Lambert for testicular pain. (Ex. 1 to Joseph Valley Aff., Dkt. 124-13 at 3,
ICC Stover 221.) Lambert ordered Plaintiff three pairs of men’s “speedo type briefs –
seamless,” with a refill to be ordered in 6 months. (Id.) A week later, Plaintiff received
three pairs of seamless briefs in accordance with Lambert’s order, and when they wore
out she was given two more pairs of seamless briefs. (Pl. Consol. Memo. at 41; Stover
Depo. at 21.)
Plaintiff acknowledges that she had “the special seamless underwear for about a
year”—the entire time she remained at ICC. (Id. at 21-22.) However, Plaintiff claims that
these newer pairs of seamless underwear also wore out and became loose during that oneyear period. Therefore, on July 17, 2010, Plaintiff met with Defendant Cardona, the
Health Services Administrator, to discuss Plaintiff’s request for more replacement briefs.
Cardona told Plaintiff that the briefs would not be reordered, despite P.A. Lambert’s
order for a refill in six months. (Stover Depo. at 25-26.) On July 26, 2010, Plaintiff
5
Plaintiff alleged in her Amended Complaint that she was promised seamless underwear
as part of a court order or settlement of the altercation in 2000 (Dkt. 10 at ¶ 262), but she has not
pointed the Court to any such order or settlement agreement in the record. Although there was a
lawsuit regarding the altercation, which was settled in 2005 (Dkt. 123-2 at 3 n.3), the record does
not contain any evidence that seamless underwear was an issue in that settlement. Thus, there is
no evidence to support Plaintiff’s implication that she is specifically entitled to seamless
underwear as part of a legally enforceable document (as opposed to simply medically-necessary
underwear). Rather, as Plaintiff stated in her deposition, the settlement agreement was that CCA
would bear the cost of any medical treatment related to Plaintiff’s testicular injury. (Stover Depo.
at 113.)
MEMORANDUM DECISION AND ORDER - 26
renewed her request, this time to P.A. Lambert, for five new pairs of seamless underwear.
(Ex. A to Valley Aff., ICC Stover 229, Dkt. 124-13 at 6.) Lambert examined Plaintiff and
noted that she had a “very small . . . hydrocele” in her right testicle. (Id.) Lambert’s notes
state that he could “acquire 1 pk of briefs” for Plaintiff, but asked Plaintiff for the name
of her original urologist so that Lambert could consider whether Plaintiff’s requests were
consistent with her medical needs. (Id.)
Although Plaintiff states that Lambert told her that she would receive this new
underwear in a few days (Pl. Consol. Memo. at 41), it does not appear that the extra pair
of briefs was ordered or that Lambert was able to speak with Plaintiff’s previous urologist
about her potential need for seamless underwear. Plaintiff claims that she was informed
by P.A. Lambert that Defendant Cardona had cancelled Lambert’s order for seamless
underwear. (Stover Depo. at 21.) Plaintiff has not submitted a declaration from Lambert
supporting this allegation. On July 31, 2010, Defendant Cardona left his employment
with CCA.
Plaintiff filed a grievance on the underwear issue on August 9, 2010. (Ex. 2 to
Stover Depo. and Ex. A. to Williams Decl., ICC Stover 5, Dkt. 123-5 at 30.) Although
Defendant Cardona’s name was apparently automatically generated and was listed as the
“Level 1 Responder” on the grievance, it is clear from the response that Acel K.
Thacker—the new Health Services Administrator—was the person who actually
responded. (Id.) Cardona was no longer working at ICC when the grievance was filed.
MEMORANDUM DECISION AND ORDER - 27
Thacker denied the grievance, stating that Plaintiff did “not have a medical
condition that requires the use of a specific brand or kind of brief,” that Lambert’s request
for the name of Plaintiff’s urologist was “completely legitimate,” and that Plaintiff would
be “provided with the kinds and types of underwear allowed by the institution as well as
. . . the necessary medications and treatments that are customarily provided in the
community for your medical condition.” (Id.)
Plaintiff was examined by Dr. Stander on September 29, 2010. Dr. Stander noted
that the hydrocele in Plaintiff’s right testicle was small: “[Plaintiff] says it has enlarged
but it still feels small to me.” (Ex. A to Valley Aff., ICC Stover 228, Dkt. 124-13 at 5.)
Plaintiff again requested new underwear, but it does not appear that Dr. Stander agreed to
Plaintiff’s request.
On December 30, 2010, Plaintiff was transferred from ICC to ISCI, and she took
three pairs of seamless underwear (which Plaintiff claimed were worn out) with her.
Stover Depo. at 106-07.) Upon Plaintiff’s transfer to ISCI, Defendant Corizon took over
her medical treatment.
On January 17, 2011, Plaintiff filled out a refill request for three pair of “Mens
Bikini underware [sic] size S/CH Style ‘Life’ 100% cotton[,] Styled by Jockey.” (Stover
Depo. Ex. 5, Dkt. 123-5 at 34.) However, there is no staff signature on the request
acknowledging receipt; therefore, it is unclear whether this request was received by
medical staff or, if it was received, who received it.
MEMORANDUM DECISION AND ORDER - 28
Other than this refill request—which might or might not have been received by
medical staff—Plaintiff did not notify any medical staff member about an underwear
issue, nor did she submit a Health Services Request with respect to underwear or
otherwise complain of testicular pain, for the first two-and-a-half months after her
transfer to ISCI, even though Plaintiff met with medical or mental health providers at
least five different times during that period. (Ex. A. to Valley Aff., Stover 318-19, 33639, 379-83, 938-52.
The first time Plaintiff complained of testicular pain while at ISCI was on March
12, 2011, when she was examined by Dr. Scott Lossmann. Plaintiff told Lossmann that
she was entitled to special underwear pursuant to a court order (which, as stated above in
note 5, is not supported by the record), that she had tried several types of underwear, and
that she wanted “bikini briefs.” (Ex. A to Valley Aff., Stover 520, Dkt. 124-6 at 27.)
Lossmann informed Plaintiff that Lossmann would need to check with the warden
because “the request for special underwear pursuant to an order was extremely unusual.”
(Id.) Lossmann assessed Plaintiff again on March 31, 2011, and told Plaintiff that he was
still looking into Plaintiff’s request with the warden. (Id., Stover 519, Dkt. 124-6 at 26.)
Dr. Lossmann reevaluated Plaintiff on April 19, 2011, noting that he had sent an
email to the deputy warden regarding the underwear issue but had not heard back.
(Lossmann Aff., Dkt. 124-3, at ¶ 8.) Just over a week later, a different medical
provider—Dr. Myung Song—issued an order and an Offender Medical Status Report for
five pairs of “Chick Life Jockey Underwear” to be provided to Plaintiff. (Ex. A. to Valley
MEMORANDUM DECISION AND ORDER - 29
Aff., Stover 264, Dkt. 124-5 at 20; Stover 967, Dkt. 124-9 at 12.) Plaintiff received five
pairs of Fruit of the Loom women’s bikini briefs before the end of April. (Stover Depo. at
116-117.) Plaintiff does not contend that the difference in the brand between Dr. Song’s
order (Jockey) and the underwear Plaintiff received in April (Fruit of the Loom) is
relevant to her medical claims.
On August 4, 2011, Plaintiff requested a refill of the briefs ordered by Dr. Song.
(Stover Depo. Ex. 5, Dkt. 123-5 at 34.) Five days later, Plaintiff met with non-defendant
Rich Cartney and Defendant Siegert to discuss the underwear issue. (Stover Depo. at
121-30.) At this meeting, Plaintiff agreed to try a different type of underwear, made of
orange netting. (Id. at 124-25.) Plaintiff did so, but decided that this new type of
underwear stretched out too much and “didn’t work.” (Id. at 125, 130-31.)
On September 2, 2011, less than a month after the August 4 meeting, Plaintiff was
present at a meeting with the members of her Multi-Disciplinary Treatment Team
(“MDTT”), which included Judd Roth, Sergeant Winter, Rich Cartney, treating physician
Dr. Lossmann, and Defendant Rona Siegert. (Stover Depo. at 131-35; Stover Depo. Ex.
9, Dkt. 123-5 at 40.) As the name implies, MDTT members represent multiple
disciplines, and the purpose of forming an MDTT is “to help address and resolve an
offender’s concerns.” (Lossmann Aff., Dkt. 124-3, ¶ 12.) Plaintiff reported her dislike of
the underwear with orange netting to the MDTT members, and “shortly thereafter” prison
staff provided Plaintiff with the IDOC-issued underwear used at the women’s prison.
MEMORANDUM DECISION AND ORDER - 30
(Stover Depo. at 26, 131-136.) These are the underwear Plaintiff currently uses, and she
has no complaints about them.6
b.
Bra Issue
In addition to Plaintiff’s claims regarding the underwear provided to her by CCA
at ICC and by Corizon at ISCI, she also asserts that Defendant Corizon and Defendant
Siegert—the Health Services Director for the IDOC—violated the Eighth Amendment by
failing to ensure that Plaintiff was provided with medically necessary training bras while
she was incarcerated at ISCI. (Pl. Consol. Memo. at 42-44.) She claims that the bras
initially provided at ISCI restricted her breast growth, caused rashes and bleeding, and
were generally very uncomfortable.
As noted previously, Plaintiff has been diagnosed with GID. On April 19, 2011,
Dr. Lossmann determined that Plaintiff should begin female hormone therapy and
prescribed estrogen treatment for her. Although the hormone treatment would ultimately
result in breast growth, Dr. Lossmann has testified that “it was not medically necessary to
make an order for a bra on [April 19, 2011] as it takes some time for the hormones to take
effect and breasts to be formed.” (Lossmann Aff., Dkt. 124-3, at ¶ 9.)
Dr. Lossmann next evaluated Plaintiff on June 20, 2011, after Plaintiff was caught
wearing a makeshift bra in violation of prison policy. (Id. at ¶ 10.) Dr. Lossmann’s notes
reflect that Plaintiff’s “right breast had started to bud and demonstrated a two centimeter
round diameter and that the left side showed only minimal budding.” (Id.; see also Ex. A.
6
Plaintiff was also able to obtain five pairs of underwear from the commissary in
November and December 2011. (Kevin Burnett Aff., Dkt. 126-6 at ¶ 6.) Plaintiff does not argue
that these briefs were medically inadequate.
MEMORANDUM DECISION AND ORDER - 31
to Valley Aff., Stover 970, Dkt. 124-9 at 15.) At that time, Lossmann mistakenly believed
that Corizon medical staff had to order female undergarments for prisoners with GID
who are housed in a men’s prison;7 therefore, Lossman noted that he would issue a
memorandum for a “support-training” bra for Plaintiff. (Lossmann Aff. at ¶ 10; Ex. A. to
Valley Aff., Stover 970, Dkt. 124-9 at 15.) An Offender Medical Status Report issued by
Lossmann stated that Plaintiff would be provided a “training bra.” (Ex. A. to Valley Aff.,
Stover 262, Dkt. 124-5 at 18.)
Plaintiff received the bra ordered by Dr. Lossmann one month later, on July 20,
2011. (Stover Depo. Ex. 11, Stover 261, Dkt. 123-5 at 42.) Plaintiff was unhappy with the
bra because it was a “sports bra,” rather than a “training bra.”(Stover Depo. at 144.)
Plaintiff believes there is a difference between the two—that a training bra allows for
breast growth but a sports bra does not. But according to Dr. Lossmann, there is no
medical difference between a sports bra, a training bra, and a training-support bra.”
(Lossmann Aff. at ¶ 11.) In Dr. Lossmann’s medical opinion, “none of these bra types
would inhibit breast growth.” (Id.) Plaintiff has acknowledged that she is not an expert in
which types of bras, if any, inhibit or restrict breast growth. (Stover Depo. at 148-49.)
Plaintiff also believed she should have been issued more than one bra on July 20, 2011,
and that the bra she did receive was “real loose.” (Stover Depo. at 144.) (Id.)
Approximately two weeks after receiving the sports bra, Plaintiff submitted a refill
request for five “training bras,” size 32, “as Dr. ordered.” (Stover Depo. Ex. 5, Dkt. 123-5
7
In actuality, the IDOC was—and is—able to provide such undergarments directly
through the women’s prison. (Lossmann Aff. at ¶ 10; Ex. A. to Valley Aff., Stover 970, Dkt.
124-9 at 15.)
MEMORANDUM DECISION AND ORDER - 32
at 34.) Plaintiff also filed a grievance regarding the sports bra that she was provided on
July 20. On August 9, 2011, Defendant Siegert and Rich Cartney met with Plaintiff to
discuss her medical issues. (Rona Siegert Aff., Dkt. 126-12, at ¶ 9.) Plaintiff was
informed that she could obtain IDOC-issued female undergarments, including bras, and
Plaintiff agreed that she would try them. (Id.)
A week later, Plaintiff was offered three size 32 sports bras. She refused to accept
them, however, because she believed that sports bras restricted breast growth. (Ex. A to
Valley Aff., Stover 260, Dkt. 124-5 at 16; Stover Depo. at 147-48.) Plaintiff thought the
sports bras “wouldn’t work” and asserts that they caused pain, rashes, and bleeding and
“were just plainly uncomfortable.” (Stover Depo. at 147-48.)
On August 16, 2011, Dr. Song changed the order for Plaintiff’s bras so that
Plaintiff would receive only IDOC-issued bras from the women’s prison. (Ex. A to
Valley Aff., Stover 259, Dkt. 124-5 at 15.) At the September 2, 2011 MDTT meeting, the
MDTT agreed to provide Plaintiff with multiple sizes of bras, and arranged for Plaintiff
to be measured for the IDOC-issued bras. Plaintiff received several bras from size 32 to
size 36, but later notified medical staff that she was not satisfied with them. (Stover
Depo. at 169-71.)
On September 21, 2011, Plaintiff was caught with a pair of makeshift “falsies”
that she has “manufactured out of an orange piece of material, two latex gloves and what
appeared to be mattress stuffing.” (Ex. A. to Burnett Aff., Stover 683, Dkt. 126-6, at 17.)
These falsies, as well as a makeshift bra, were confiscated by prison staff. (Id.)
MEMORANDUM DECISION AND ORDER - 33
On November 29, 2011, the MDTT met with Plaintiff again. The following
individuals were present: Defendant Siegert, Brian Farris, Luke Kormylo, Judd Roth,
Shell Wamble-Fisher, Nurse Sara Goff, Dr. Song, and Health Services Administrator
Karen Walker. (Id. at Stover 682.) At this meeting, it was confirmed that Plaintiff had
access to five IDOC-issued or commissary-issued bras. (Ex. A. to Valley Aff., Stover
976, Dkt. 124-10 at 3.) Plaintiff complained that the IDOC-issued bras were too wide and
caused itching and bleeding at her underarms. (Id.)
At a medical evaluation on December 5, 2011, Dr. Song noted that Plaintiff had
“scattered follicular excoriations” on her skin, but that these excoriations did not exhibit
any type of pattern from a bra. (Id. at Stover 988, Dkt. 124-10 at 14.) Dr. Song prescribed
hydrocortisone to treat this rash. (Id. at Stover 989, Dkt. 124-10 at 15.) Dr. Song also told
Plaintiff she needed a bra with more support on the bottom to “hold it down and keep it
from riding up.” (Id.) Dr. Song emphasized to Plaintiff, however, that she would have to
wear IDOC-issued bras, and that bras are, in general, not comfortable items of clothing.
(Id.)
Plaintiff currently continues to wear these IDOC-issued bras. She testified in her
deposition that these bras are sufficient, but that she personally believes they restrict her
breast growth. No medical provider has determined that Plaintiff’s belief is correct and
that any bra issued to Plaintiff restricted her breast growth. (Stover Depo. at 172-74.)
MEMORANDUM DECISION AND ORDER - 34
ii.
Standard of Law and Discussion
The protections of the Eighth Amendment include the right to minimally adequate
medical care in prison, and prison officials or prison medical providers can be held liable
if their “acts or omissions [were] sufficiently harmful to evidence deliberate indifference
to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Regarding the
objective standard for prisoners’ medical care claims, the Supreme Court of the United
States has explained that “[b]ecause society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to medical needs amounts to an
Eighth Amendment violation only if those needs are ‘serious.’” Hudson v. McMillian,
503 U.S. 1, 9 (1992). The Ninth Circuit has defined a “serious medical need” in the
following ways:
failure to treat a prisoner’s condition [that] could result in
further significant injury or the unnecessary and wanton
infliction of pain[;] . . . [t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain . . . .
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (internal citations omitted),
overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)
(en banc).
In the medical context, a conclusion that a defendant acted with deliberate
indifference, for purposes of the subjective prong of the Eighth Amendment standard,
requires that the plaintiff show both “a purposeful act or failure to respond to a prisoner’s
MEMORANDUM DECISION AND ORDER - 35
pain or possible medical need and . . . harm caused by the indifference.” Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006). Deliberate indifference can be “manifested by
prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with
the treatment once prescribed.” Estelle, 429 U.S. at 104-05 (footnotes omitted).
Non-medical prison personnel are generally entitled to rely on the opinions of
medical professionals with respect to the medical treatment of an inmate. However, if “a
reasonable person would likely determine [the medical treatment] to be inferior,” the fact
that an official is not medically trained will not shield that official from liability for
deliberate indifference. Snow, 681 F.3d at 986; see also McGee v. Adams, 721 F.3d 474,
483 (7th Cir. 2013) (stating that non-medical personnel may rely on medical opinions of
health care professionals unless “they have a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner”) (internal
quotation marks omitted).
Differences in judgment between an inmate and prison medical personnel
regarding appropriate medical diagnosis and treatment are not enough to establish a
deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o
prevail on a claim involving choices between alternative courses of treatment, a prisoner
must show that the chosen course of treatment ‘was medically unacceptable under the
circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’ to the
MEMORANDUM DECISION AND ORDER - 36
prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (alteration
omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (per curiam). A delay in treatment does not constitute a violation of the Eighth
Amendment unless the delay causes further harm. McGuckin, 974 F.2d at 1060. If
medical personnel have been “consistently responsive to [the inmate’s] medical needs,”
and there has been no showing that the medical personnel had “subjective knowledge and
conscious disregard of a substantial risk of serious injury,” summary judgment is
appropriate. Toguchi, 391 F.3d at 1061.
a.
Medical Care Claims against Cardona and Siegert
Plaintiff alleges that Defendant Cardona was deliberately indifferent to Plaintiff’s
medical need for seamless underwear. However, the evidence in the record establishes
very little contact between Plaintiff and Cardona with respect to Plaintiff’s medical
treatment claims.
Plaintiff met with Cardona in person on July 17, 2010, but the only information in
the record about this meeting is Plaintiff’s statement that Cardona informed her she
would not be receiving any new pairs of seamless underwear. (Stover Depo. at 25-26.)
MEMORANDUM DECISION AND ORDER - 37
Cardona made this decision even though P.A. Lambert had ordered a refill of underwear
for Plaintiff in six months.8
However, there is nothing in the record to support a reasonable conclusion that not
having brand new underwear after only six months, even if the current underwear were
loose and caused some discomfort, meets any recognized definition of cruel and unusual
punishment under the Eighth Amendment. There is no evidence that the “loose”
underwear were no longer functional. The Eighth Amendment is concerned with prison
conditions that pose a substantial risk of serious harm and with deprivations of an
inmate’s minimal civilized measure of life’s necessities. Farmer, 511 U.S. at 834 (1994).
It is not concerned with the routine discomforts of prison life.
Further, even if Plaintiff was able to establish the objective prong of the Eighth
Amendment analysis, there is nothing in the record supporting an inference that Cardona
was subjectively aware of a substantial risk of serious harm to Plaintiff if she did not
receive new pairs of underwear in July 2010. Rather, the record shows that Cardona
either disagreed with P.A. Lambert’s order for new underwear or that he did not share
Plaintiff’s belief that her current briefs were too loose. Plaintiff cannot establish that
Cardona deliberately disregarded a substantial risk to a serious medical need in
determining that Plaintiff did not require new pairs of a specific type of underwear after
only six months.
8
Plaintiff recognized in her deposition that she did, indeed, receive two pairs of
replacement briefs prior to July 2010. It appears that these “refills” were simply provided to her
sometime earlier than P.A. Lambert had ordered.
MEMORANDUM DECISION AND ORDER - 38
Plaintiff also claims that she corresponded with Defendant Cardona on three
occasions. (Pl. Consol. Memo. at 42.) First, on July 19, 2010, Plaintiff purportedly sent a
letter to Cardona regarding her medical care. (July 19, 2010 Letter, Ex. 12 to Stover
Decl., Dkt. 141.) However, this letter discussed Plaintiff’s dizzy spells and vomiting, not
Plaintiff’s request for seamless briefs. (Id.) Second, Plaintiff purportedly sent another
letter on August 1, 2010, complaining about her need for replacement briefs. (August 1,
2010 Letter, Ex. 12 to Stover Decl., Dkt. 141.) Third, on August 23, 2010, Plaintiff
purportedly sent a letter that was virtually identical to the August 1 letter. (August 23,
2010 Letter, Ex. 12 to Stover Decl., Dkt. 141.) Though Plaintiff states that she sent these
letters to Cardona, the second and third of these letters were addressed to the “Health
Service Administrator” for the “ICC Medical Department”—not specifically to Cardona.
Cardona himself would not have received these letters, as he was no longer working at
ICC as of July 31, 2010. (Dkt. 123-6.) None of these letters creates a reasonable inference
that Defendant Cardona was aware of, yet deliberately disregarded, a substantial risk to
Plaintiff’s health with respect to testicular pain.
Plaintiff also states that non-defendant Acel Thacker denied her grievance on the
underwear issue on behalf of Defendant Cardona. (Stover Depo. at 24-25; Pl. Consol.
Memo. at 42.) But simply because Defendant Cardona’s name was printed on the
grievance response, which was electronically generated, does not mean that Thacker was
acting on Cardona’s behalf when he denied the grievance—particularly in light of the fact
that Cardona was no longer working at ICC when the grievance was filed.
MEMORANDUM DECISION AND ORDER - 39
Further, the explanation for the denial of Plaintiff’s grievance was that Plaintiff
did not have a medical condition that required the seamless underwear. Plaintiff simply
disagrees with this conclusion, which is insufficient to prevail on an Eighth Amendment
claim. Sanchez, 891 F.2d at 242. P.A. Lambert ordered three pairs of seamless underwear
for Plaintiff in January 2010, with one refill. (Ex. 1 to Joseph Valley Aff., ICC Stover
221, Dkt. 124-13 at 3.) And Plaintiff received precisely that—three pairs of briefs in
January, and later two more pairs, although these replacements were provided prior to the
six-month period Lambert had outlined in his orders. (Pl. Consol. Memo. at 41; Stover
Depo. at 21.) When Plaintiff requested yet more briefs in July 2010, Lambert decided that
he should consult with a urologist before ordering any more replacement briefs and asked
Plaintiff for her urologist’s name. (Ex. A to Valley Aff., ICC Stover 229, Dkt. 124-13 at
6.) That Lambert might not have consulted with the urologist does not mean that
Cardona acted with deliberate indifference.
Moreover, Plaintiff recognizes that she was in possession of seamless underwear
from January 2010—only a week after she complained of testicular pain—until she was
transferred from ICC to ISCI in December 2010. (Stover Depo. at 21-22.) That Plaintiff
believes the briefs were so loose that she needed replacement underwear does not
establish that Cardona violated the Eighth Amendment in deciding otherwise. There is
simply nothing in the record tending to show that Cardona’s decision not to allow further
replacement briefs “was medically unacceptable under the circumstances” or was made
MEMORANDUM DECISION AND ORDER - 40
“in conscious disregard of an excessive risk” to Plaintiff’s medical needs. Toguchi, 391
F.3d at 1058 (internal quotation marks omitted).
Plaintiff does not have a constitutional right to a specific treatment. Indeed, under
the Eighth Amendment, Plaintiff “is not entitled to the best care possible. She is entitled
to reasonable measures to meet a substantial risk of serious harm to her.” Forbes v.
Edgar, 112 F.3d 262, 267 (7th Cir. 1997). It is clear from the record that Plaintiff
received such reasonable measures with respect to the underwear issue.
Plaintiff’s claims against Defendant Siegert with respect to the bra issue fare no
better. According to Plaintiff, the sports bra provided at ISCI “caused her breast to
become deformed by growing out left and right rather than straight.” (Stover Decl. at
¶ 95.) She claims that a training bra would not have caused this deformity. Plaintiff also
asserts that, in addition to restricting her breast growth, the bras caused rashes and
bleeding. However, as Plaintiff acknowledged, she is not an expert in such matters.
(Stover Depo. at 148-49, 172.)
Dr. Lossmann has provided uncontroverted medical testimony that none of the
bras that Plaintiff was provided in prison would restrict her breast growth, and when
Plaintiff developed a rash, she was treated for it. (Lossmann Aff. at ¶ 11.) Moreover,
Plaintiff cannot establish that the bra actually caused the rash, as the rash did not fit the
pattern of the bra. There is simply nothing in the record to support Plaintiff’s personal
belief that the bras provided by Corizon employees or by the IDOC restricted her breast
MEMORANDUM DECISION AND ORDER - 41
growth or caused any deformity or other significant problem—other than the wholly
unremarkable fact that bras are not the most comfortable of undergarments.
In addition to there being no evidence that the bras actually restricted Plaintiff’s
breast growth or caused any deformity, there is similarly no evidence that Defendant
Siegert was aware of, yet disregarded, a substantial risk to Plaintiff’s health at any time
during Plaintiff’s medical treatment. Siegert met with Plaintiff on several occasions to
discuss both the underwear and bra issues. The entire MDTT consistently tried to work
with Plaintiff to find appropriate undergarments, and they eventually succeeded. That
Plaintiff was not entirely happy with the undergarments she previously received does not
mean that Defendant Siegert acted with deliberate indifference.
For these reasons, Defendants Cardona and Siegert are entitled to summary
judgment on Plaintiff’s medical treatment claims.
b.
Medical Care Policy Claims against Corizon
Plaintiff also claims that Corizon violated the Eighth Amendment with respect to
the underwear and bra issues. However, the only claim against Corizon upon which
Plaintiff was allowed to proceed was based on Plaintiff’s allegation that Defendant
Siegert was a Corizon employee. (Initial Review Order, Dkt. 16 at 16.) Because of that
allegation, Plaintiff’s Amended Complaint raised a plausible inference that Siegert was a
Corizon official “with final policy-making authority” for purposes of a Monell policy
claim. Clouthier, 591 F.3d at 1250. (See also Dkt. 16 at 16.) However, Corizon has met
their burden of showing that Siegert was not a Corizon employee; rather, she worked for
MEMORANDUM DECISION AND ORDER - 42
IDOC. Plaintiff has not raised a genuine dispute as to Siegert’s employment. Therefore,
Siegert’s decision to deny Plaintiff’s request for a specific type of bra or underwear
cannot be imputed to Corizon.
Plaintiff now attempts to assert another Monell claim: that Corizon had a policy or
custom of treating all transgendered inmates the same, rather than “independently on a
case by case basis.” (Stover Stmt. of Facts, Dkt. 141-2 at ¶ 28.) Plaintiff asserts that
Corizon’s individual medical providers “are not permitted by Corizon to provide
treatment that is not consistent with their ‘one treatment fits all’ policy.” (Id.)
Aside from the fact that Plaintiff did not include this claim in her Amended
Complaint, the evidence in the record plainly refutes Plaintiff’s allegations of a one-sizefits-all medical treatment policy for inmates with GID. Plaintiff had her own Multiple
Disciplinary Treatment Team, the sole purpose of which was to manage her medical and
mental health treatment. The team members met with Plaintiff several times, listened to
her concerns, and addressed them. Plaintiff has met with various medical and mental
health care providers on many occasions while incarcerated at ISCI. (See, e.g., Lossmann
Aff., Dkt. 124-3; Ex. A to Valley Aff.; Siegert Aff., Dkt. 126-12.) Corizon’s employees
consistently attempted to ensure that Plaintiff was provided with appropriate medical
treatment. These facts demonstrate unequivocally that there is no one-size-fits-all policy
with respect to inmates diagnosed with GID.
Therefore, Defendant Corizon is entitled to summary judgment on Plaintiff’s
medical treatment claims.
MEMORANDUM DECISION AND ORDER - 43
4.
Defendants Romreill, Kirkman, and Wamble-Fisher Are Entitled to
Summary Judgment on Plaintiff’s Free Exercise of Religion Claims, but
Defendants Kirkman and Wamble-Fisher Are Not Entitled to Summary
Judgment on Plaintiff’ RLUIPA Claims Regarding the Sweating Ceremony
Plaintiff claims that Defendants Romreill, Kirkman, and Wamble-Fisher violated
Plaintiff’s religious rights under the Constitution and federal statute by belatedly
providing her with a smudge stick so she could participate in a religious smudging
ceremony at ISCI. Plaintiff also claims that Defendants Kirkman and Wamble-Fisher
violated Plaintiff’s religious rights by not allowing her to use the ISCI sweat lodge to
participate in a religious sweating ceremony.
A.
Factual Background
Plaintiff follows Native American religious beliefs. In early 2011, shortly after
Plaintiff’s transfer to ISCI, Plaintiff informed Defendant Wamble-Fisher—who at that
time was the Deputy Warden of Operations—that Plaintiff would like to participate in
Native American religious practices. (Wamble-Fisher Aff., Dkt. 126-7, at ¶ 6.) Plaintiff
and Wamble-Fisher met to discuss the issue.
One of the ceremonies Plaintiff wished to practice was a sweating ceremony. This
ceremony takes place inside a sweat lodge and “involves an open fire in a fire pit located
outside of the building.” (Kirkman Aff. at ¶ 8.) The fire heats up rocks, which are then
taken into the lodge for water to be poured over them. This creates steam, which causes
the inmates to sweat. Portions of the sweating ceremony are performed by inmates inside
the lodge and out of view of prison staff. (Id.) ISCI, which is a men’s prison, has one
sweat lodge utilized by the male inmates wishing to practice the sweating ceremony.
MEMORANDUM DECISION AND ORDER - 44
According to Wamble-Fisher, Plaintiff understood that, as a result of Plaintiff’s
self-identification as a female, it would be unsafe for her to use the sweat lodge in the
company of the male inmates; Plaintiff agreed that smudging in her cell was a reasonable
alternative to sweating. (Wamble-Fisher Aff. at ¶ 6.) Plaintiff disputes this, stating that
Wamble-Fisher “never discussed any safety concerns related to the Plaintiff’s practicing
her religious ceremonies.” (Pl. Consol. Memo. at 21.) Plaintiff and Wamble-Fisher agree
that at this meeting, they discussed “options available to [Plaintiff] as a protective
custody inmate in ISCI’s Behavioral Health Unit.” (Wamble-Fisher Aff. at ¶ 6; Pl.
Consol. Memo. at 21.) Plaintiff does not dispute that she informed Wamble-Fisher at that
point in time that being allowed to smudge in her cell was a reasonable and acceptable
alternative to using the sweat lodge.
Smudging involves the burning of a smudge stick, which is a bundle of herbs
wrapped together. (Kirkman Aff., Dkt. 126-8, at ¶ 7.) Wamble-Fisher has testified that
she instructed Plaintiff to send a concern form regarding smudging to Defendant
Kirkman—the IDOC’s Volunteer and Religious Coordinator—as required by IDOC
policy. (Wamble-Fisher Aff. at ¶ 6.) Plaintiff states, however, that Wamble-Fisher told
Plaintiff that Wamble-Fisher would issue a memo so that Plaintiff could smudge in her
cell.
In February 2011, Plaintiff informed a psychiatric technician that she desired to
smudge. (Am. Compl. ¶¶ 424-25; Wamble-Fisher Aff., Dkt. 126-7, at ¶ 7.) Defendant
Wamble-Fisher was later notified of Plaintiff’s request. (Wamble-Fisher Aff. at ¶ 7.)
MEMORANDUM DECISION AND ORDER - 45
Plaintiff did not submit a written request to smudge as required by IDOC policy.9
Nonetheless, on March 21, 2011, Defendant Kirkman met with Plaintiff to discuss her
desire to smudge. (Kirkman Aff. at ¶¶ 3-5, 10.)
According to Kirkman, Plaintiff again agreed that being allowed to smudge in her
Unit or in the recreation yard was a reasonable alternative to sweating. (Id. at ¶ 11.)
Plaintiff told Kirkman that smudging once per week was acceptable, though she would
prefer to smudge twice per week, specifically on Tuesdays and Thursdays. Kirkman told
Plaintiff that she would be allowed to smudge at least once per week, but that she could
smudge more often if the staff in her unit agreed. (Id.)
Kirkman also informed Plaintiff that she would be responsible for the cost of her
smudge sticks. Kirkman avers that Plaintiff offered to contact her reservation in
Oklahoma to obtain a smudge stick, while Plaintiff states that she did so only after
Kirkman refused to provide one. (Id.; Pl. Consol. Memo. at 22.) However, Plaintiff does
not contend that the prison was required to furnish her with a smudge stick at the
government’s expense. In any event, the reservation in Oklahoma did not provide
Plaintiff with a smudge stick.
9
According to IDOC policy, an inmate wishes to practice a “new or unfamiliar religious
activity” was required to send a concern form to the Volunteer and Religious Coordinator.
(Kirkman Aff. at ¶ 4 and Ex. A.) Plaintiff claims that she was not required to submit a written
request to smudge because smudging is a well-known part of Native American religious
practices and is not new or unfamiliar to prison officials. (Pl. Consol. Memo. at 20-21.)
However, Plaintiff ignores the fact that, because she had not previously smudged at ISCI, her
practice of such a ceremony was indeed “new.” Thus, IDOC policy required her to submit a
written request.
MEMORANDUM DECISION AND ORDER - 46
Kirkman prepared a memo regarding Plaintiff’s smudging on April 27, 2011,
approximately five weeks after the March 21 meeting. The memo allowed Plaintiff to
smudge “at least on Tuesdays and Thursdays,” which was more often that Kirkman
initially agreed, “after soft count and while the offender is alone.” (Ex. B to Kirkman
Aff.) The memo also stated that Plaintiff was allowed to keep the smudge stick in her cell
as “personal religious property.” (Id.)
On April 29, 2011, Plaintiff asked Kirkman to provide her with a smudge stick
because she had not heard back from the reservation in Oklahoma. (Kirkman Aff. at
¶ 19.) Kirkman obtained a smudge stick on May 11, 2011, less than two weeks later.
Kirkman informed Plaintiff that he was in possession of the smudge stick but was
“working on the issue of how to light it.” (Id.) Kirkman met with the prison’s Religious
Activities Oversight Committee, which determined that matches would be used to light
the smudge stick. (Id. at ¶ 20.) The memo allowing Plaintiff to smudge, the smudge stick,
and the matches were provided to Plaintiff’s housing unit on or before May 24, 2011,
approximately two months after the March 21 meeting.
On May 26, 2011, Plaintiff approached Defendant Romreill and asked for the
smudge stick. Romreill has testified that, at that time, he was unsure whether Plaintiff
could keep the smudge stick with her. (Romreill Decl., Dkt. 126-11, at ¶ 6.) Plaintiff
informed Romreill, correctly, that there was a memo that allowed her to keep the smudge
stick with her as religious property. (Pl. Consol. Memo. at 22.) Plaintiff was frustrated
MEMORANDUM DECISION AND ORDER - 47
with Romreill’s statement that he would need to check with another official, so she
stormed off without waiting for him to do so. (Stover Depo. at 206.)
Plaintiff received the smudge stick two days later, but the matches would not work
to light it. (Romreill Decl. at ¶ 8; Stover Depo. at 206. Plaintiff claims, without citation to
any evidence in the record, that Kirkman “purposely sent matches that would not work
deliberately to delay Plaintiff’s ability to smudge.” (Pl. Consol. Memo. at 21-22.)
Plaintiff sent a concern form regarding the defective matches, and Kirkman received the
form on June 3, 2011. (Kirkman Aff. at ¶ 22.) Kirkman determined that a lighter could be
used to light the smudge stick but that, for security reasons, a staff member would light
the smudge stick for Plaintiff, and Plaintiff would not be allowed to keep the lighter in
her cell. (Id.)
The lighter was delivered to unit staff, and Plaintiff was able to smudge no later
than the first week of June 2011—approximately five weeks after Plaintiff’s written
request to Kirkman for a smudge stick on April 29, 2011, and approximately ten weeks
after Plaintiff claims she verbally requested a smudge stick on March 21, 2011. (Id. at
¶ 23; Romreill Decl. at ¶ 8; Pl. Consol. Memo. at 22.)
Plaintiff considered this delay, as well as the incident with the defective matches,
to be unacceptable. Therefore, she informed Defendant Wamble-Fisher that Plaintiff
would no longer be satisfied with being allowed to smudge in her cell; instead, Plaintiff
stated that she was seeking the ability to practice “full ceremonial rights, including sweat,
smudging and Pipe ceremonial rites.” (Am. Compl. at ¶ 441.)
MEMORANDUM DECISION AND ORDER - 48
Defendant Kirkman denied Plaintiff’s request to sweat, citing safety and staffing
concerns. (Id. at ¶ 443; see also Stover Decl. at 3.) In June 2011, Plaintiff filed a
grievance challenging the denial of her request to sweat. On July 5, 2011, Kirkman
responded:
Offenders in general population have access to the
sweat lodge. There is no least restrictive alternative given the
restrictions of a federal court order regarding wood for the
fire and heating the rocks and time and staff limitations to
have one offender use the sweat lodge. You are allowed to
smudge in your unit and have been provided a smudge stick
and the means to light it along with a memo for staff outlining
the authorization and procedure.
(Ex. 38 to Stover Decl., Dkt. 141.) A deputy warden reviewed Kirkman’s response and
added that given Plaintiff’s “circumstances,” she “would not be safe to sweat with” the
general population inmates.” (Id.) The deputy warden continued, “Our staffing pattern
does not permit us to take you out to the lodge and sweat individually. You will have to
practice your religion in your cell or recreation area . . . .” (Id.)
Plaintiff states that at the time she requested the opportunity to sweat, a chaplain at
ISCI, Boyd Chikatula, “volunteered to escort [Plaintiff] to the sweat lodge, after the male
Native Americans were finished sweating.” (Stover Decl. at 3.) Plaintiff claims that this
plan would have allowed her to use the sweat lodge by herself, without placing additional
burdens on prison staff, but that the plan “was never implemented.” (Id.) 10
10
Plaintiff also claims that her religious rights are being violated because she “has not been
able to perform any of her religious ceremonies since August 13, 2013.” (Pl. Consol. Memo. at
22.) These allegations are much too vague to proceed, and, in any event, the instant lawsuit
involves claims that arose on or before October 2, 2012, the date Plaintiff signed her Amended
Complaint. (See Dkt. 10.) Although these allegations could potentially be the subject of a future
MEMORANDUM DECISION AND ORDER - 49
B.
Standard of Law and Discussion
i.
Plaintiff’s First Amendment Claims
The First Amendment Free Exercise Clause absolutely protects the right to believe
in a religion; it does not absolutely protect all conduct associated with a religion.
Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). Inmates retain their free exercise
of religion rights in prison. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). An
inmate who is an adherent of a minority religion must be afforded a “reasonable
opportunity of pursuing [her] faith comparable to the opportunity afforded fellow
prisoners who adhere to conventional religious precepts.” Cruz v. Beto, 405 U.S. 319,
322 (1972) (per curiam). A prison need not, however, provide “identical facilities or
personnel” for “every religious sect or group within a prison.” Further, a “special chapel
or place of worship need not be provided for every faith regardless of size; nor must a
chaplain, priest, or minister be provided without regard to the extent of the demand.” Id.
at 322 n.2.
To serve as a basis for a viable claim challenging a prison restriction under the
Free Exercise Clause, an inmate’s belief must be both sincerely held and rooted in
religious belief. Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008); Malik v. Brown, 16
F.3d 330, 333 (9th Cir. 1994). However, de minimis—or minor—burdens on the free
exercise of religion are not of a constitutional dimension, even if the belief upon which
the exercise is based is sincerely held and rooted in religious belief. See, e.g., Rapier v.
lawsuit, the parties are encouraged—when they meet in settlement conference with respect to
this action—to make every effort to discuss, resolve, and settle any similar future claims in order
to alleviate the necessity for a new lawsuit.
MEMORANDUM DECISION AND ORDER - 50
Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) (the unavailability of a non-pork tray for
inmate at 3 meals out of 810 does not constitute more than a de minimis burden on
inmate’s free exercise of religion). Similarly, a prison’s occasional failure to
accommodate a religious practice does not violate the Free Exercise Clause where there
is no evidence that the failures were caused by “anything other than institutional
shortage.” Id.
Challenges to prison restrictions that are alleged “to inhibit First Amendment
interests must be analyzed in terms of the legitimate policies and goals of the corrections
system, to whose custody and care the prisoner has been committed in accordance with
due process of law.” Jones v. N.C. Prisoners’ Union, 433 U.S. 119, 125 (1977) (citation
omitted). What constitutes a reasonable opportunity for religious exercise, therefore, must
be evaluated within the context of a prison’s need for security, among other legitimate
goals. O’Lone, 482 U.S. at 350-53 (1987) (holding that a prison’s policy of not allowing
Muslim inmates on work detail to return to the prison to attend Jumu’ah, a group worship
service, did not violate the Constitution).
As long as a restriction on an inmate’s religious practice “is reasonably related to
legitimate penological interests,” that restriction is valid. Turner v. Safley, 482 U.S. 78,
89 (1987). Factors to be considered in this reasonableness inquiry include (1) whether
there is a logical connection between the governmental interest and the particular policy
or decision at issue; (2) whether “alternative means of exercising the right remain open to
prison inmates”; (3) the impact that accommodating a prisoner’s religious practice would
MEMORANDUM DECISION AND ORDER - 51
have on “other inmates, on prison personnel, [or] on allocation of prison resources
generally,” O’Lone, 482 U.S. at 50-52 (internal quotation marks and alterations omitted);
and (4) whether there is an absence of ready alternatives, which constitutes “evidence of
the reasonableness of a prison regulation,” Turner, 582 U.S. at 90.
a.
Smudging Ceremony – First Amendment
Defendant Romreill has met his burden of showing that the two-day delay11
allegedly caused by Romreill when Plaintiff first asked him for the smudge stick in her
housing unit is nothing more than a de minimis burden on the exercise of Plaintiff’s
religious beliefs. Because Plaintiff has not pointed to any specific facts in the record that
would establish otherwise, Defendant Romreill is entitled to summary judgment.
Similarly, Defendants Kirkman and Wamble-Fisher have met their initial burden
of showing that the five- to ten-week delay in Plaintiff’s receiving a smudge stick and
working lighter was only a de minimis burden on the exercise of Plaintiff’s religious
beliefs and, therefore, did not violate the Free Exercise Clause of the First Amendment.
Plaintiff did not submit a written request for a smudge stick until April 29, 2011, and by
the first week of June she was able to smudge. This is certainly an understandable delay,
given that Defendants had to ensure Plaintiff had a safe way to light the smudge stick.
Even if Plaintiff’s version of the facts is correct and she asked for (and was refused) a
smudge stick on March 21, 2011, she does not claim that she offered to pay for the
smudge stick or that she was entitled to be given one at no cost to her.
11
Although Plaintiff could not light the smudge stick when she received it two days after
she requested it from Romreill, Plaintiff does not allege that Romreill had anything to do with
the defective matches.
MEMORANDUM DECISION AND ORDER - 52
Plaintiff has not come forward with any evidence that this brief delay was the
result of anything other than ordinary administrative or institutional delay. See Tapp v.
Stanley, 2008 WL 4934592, at *7 (W.D.N.Y. Nov. 17, 2008) (unpublished) (holding that
a 3-month delay in providing a prisoner with a religious meal did not substantially burden
the prisoner’s sincerely-held religious beliefs where the delay was “caused by ordinary
administrative delay”). That the matches initially provided to Plaintiff did not work is of
little moment, particularly when Plaintiff was provided with a working lighter to light the
smudge stick no more than a week later. There is nothing in the record that even remotely
supports Plaintiff’s assertion that Defendant Kirkman purposely provided her with
matches that did not work.
Plaintiff has not met her burden of raising a genuine dispute of material fact with
respect to her First Amendment smudging claims. Therefore, these claims will be
dismissed with prejudice.
b.
Sweating Ceremony – First Amendment
Defendants have established that denying Plaintiff’s request to use the sweat lodge
is reasonably related to the legitimate penological interest of ensuring Plaintiff’s safety.
ISCI has one sweat lodge, and the male inmates are allowed to attend sweating
ceremonies in groups. (Kirkman Aff. at ¶ 8.) Sweating involves the inmates removing
most of their clothing, and ISCI staff members are not able to observe what happens
inside the sweat lodge. (Id. at ¶ 29.) Plaintiff is a transgender prisoner with feminine
characteristics, and she has already been sexually assaulted several times. An attack in
MEMORANDUM DECISION AND ORDER - 53
the sweat lodge by other inmates is entirely possible, and Plaintiff could be severely
injured as a result.
Plaintiff has not raised a genuine dispute that keeping her safe is a legitimate
governmental interest or that prohibiting her from using the sweat lodge is reasonably
related to that interest. Prohibiting Plaintiff from using the sweat lodge is logically
connected to the goal of ensuring Plaintiff’s safety, because she is a vulnerable prisoner.
See Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987) (finding a “valid, rational,
connection between” legitimate security concerns and prohibiting inmates in disciplinary
segregation from using a sweat lodge). The First Amendment does not require prisons to
use the least restrictive means in accommodating prisoners’ religious requests. See Jones,
433 U.S. at 125. Therefore, the prison was not required to allow Plaintiff to use the sweat
lodge outside the presence of the male inmates in order to avoid violating the First
Amendment. Plaintiff was still allowed to smudge in her cell, which constitutes an
“alternative means of exercising” her religious beliefs. O’Lone, 482 U.S. at 351.
For all of these reasons, the Court concludes that Defendants Wamble-Fisher and
Kirkman are entitled to summary judgment on Plaintiff’s First Amendment sweating
ceremony claims, and those claims will be dismissed with prejudice.
ii.
Plaintiff’s RLUIPA Claims
The First Amendment is not the only source of religious protection within a
prison. The RLUIPA provides, “No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution . . . even if the
MEMORANDUM DECISION AND ORDER - 54
burden results from a rule of general applicability, unless the government demonstrates
that imposition of the burden on that person[] (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1(a). RLUIPA applies to entities receiving
federal financial assistance. Id. at (b)(1). By accepting federal funds, however, states do
not waive sovereign immunity to suits for money damages under RLUIPA. Sossamon v.
Texas, 131 S. Ct. 1651, 1655 (2011). Further, although the statute provides for injunctive
relief, RLUIPA does not allow for monetary damages against individuals. Wood v. Yordy,
753 F.3d 899, 902-04 (9th Cir. 2014).
Under RLUIPA, the inmate bears the initial burden of showing that the
governmental action constitutes a substantial burden on the exercise of the inmate’s
religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). For an
official’s action to constitute a substantial burden on an inmate’s religious exercise, it
“must impose a significantly great restriction or onus upon such exercise.” San Jose
Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). In
determining whether an inmate’s religious exercise is substantially burdened, a court may
not inquire “into whether a particular belief is ‘central’ to a prisoner’s religion.” Cutter v.
Wilkinson, 544 U.S. 709, 725 n.13 (2005) (quoting 42 U.S.C. § 2000cc-5(7)(A)).
However, “the Act does not preclude inquiry into the sincerity of a prisoner’s professed
religiosity.” Id.
MEMORANDUM DECISION AND ORDER - 55
If the inmate establishes “the prima facie existence” of a substantial burden on the
exercise of the inmate’s religion, then the burden shifts to prison officials “to prove that
[the] substantial burden on [the inmate’s] exercise of his religious beliefs is both ‘in
furtherance of a compelling governmental interest’ and the ‘least restrictive means of
furthering that compelling governmental interest.’” Warsoldier, 418 F.3d at 995 (quoting
42 U.S.C. § 2000cc-1(a); § 2000cc-2(b)).
“The least-restrictive-means standard is exceptionally demanding, and it requires
the government to show that it lacks other means of achieving its desired goal without
imposing a substantial burden on the exercise of religion by the objecting party. If a less
restrictive means is available for the Government to achieve its goals, the Government
must use it.” Holt v. Hobbs, 135 S. Ct. 853, 864 (2015) (internal citations and quotation
marks omitted). Prison officials or a state department of correction “cannot meet its
burden to prove least restrictive means unless it demonstrates that it has actually
considered and rejected the efficacy of less restrictive measures before adopting the
challenged practice.” Warsoldier, 418 F.3d at 999.
Although RLUIPA is to be construed broadly in favor of protecting an inmate’s
religious rights, id., the statute does not “elevate accommodation of religious observances
over an institution’s need to maintain order and safety,” Cutter v. Wilkinson, 544 U.S.
709, 722 (2005). A prisoner’s requests for religious accommodation must not override
other significant interests within a prison setting. “Should inmate requests for religious
accommodations become excessive, impose unjustified burdens on other institutionalized
MEMORANDUM DECISION AND ORDER - 56
persons, or jeopardize the effective functioning of an institution, the facility would be
free to resist the imposition.” Cutter, 544 U.S. at 726. In the words of the Supreme Court,
“context matters.” Id. at 723 (quotation marks and alteration omitted).
a.
Smudging Ceremony – RLUIPA
Defendants Romreill, Kirkman, and Wamble-Fisher have met their burden of
showing that Plaintiff cannot establish that being denied a workable smudge stick for five
to ten weeks is a substantial burden on the exercise of Plaintiff’s religious beliefs for
purposes of an RLUIPA claim. See Tapp, 2008 WL 4934592, at *7 (“Plaintiff cannot
meet his burden of demonstrating that [the prison’s 3-month delay in providing Plaintiff a
kosher meal] substantially burdens his sincerely held religious beliefs. . . . [W]here a
delay in providing an inmate with a religious diet is brief and caused by ordinary
administrative delay, the inmate’s religious rights are not violated.”) (internal quotation
marks omitted); Garraway v. Lappin, 2012 WL 959422, at *13 (M.D. Pa. March 21,
2012) (unpublished) (holding that a three- to four-week delay in receiving religious mail,
while “undoubtedly a burden,” was not a “substantial burden” under the Religious
Freedom Restoration Act (emphasis added)). Indeed, the Court has already determined
that the delay in smudging constituted only a de minimis burden on the exercise of
Plaintiff’s religious beliefs. Therefore, Plaintiff’s RLUIPA claims regarding the
smudging ceremony will be dismissed with prejudice.
MEMORANDUM DECISION AND ORDER - 57
b.
Sweating Ceremony – RLUIPA
For purposes of summary judgment, the IDOC Defendants do not dispute that
prohibiting Plaintiff from engaging in a sweating ceremony is a substantial burden on
Plaintiff’s exercise of her Native American religious beliefs. (IDOC Def. Memo., Dkt.
126-1 at 13.) Therefore, to prevail on their Motion, Defendants Kirkman and WambleFisher must demonstrate that no genuine factual dispute exists that completely denying
Plaintiff the opportunity to sweat is in furtherance of a compelling governmental interest
and is the least restrictive means of achieving that interest.
The IDOC Defendants offer two explanations for their decision to prohibit
Plaintiff from using the sweat lodge to practice her religion. First, they argue that
prohibiting Plaintiff from using the lodge is necessary to ensure her safety. The Court
does not doubt that prohibiting Plaintiff from using the sweat lodge in the company of
male inmates is justified by the compelling governmental interest of keeping Plaintiff
safe from physical or sexual assault. As explained above, inmates are generally not fully
clothed in the sweat lodge, and prison staff cannot observe the inside of the lodge.
Plaintiff has already been a victim of several sexual assaults in prison. As a transgender
prisoner with feminine characteristics such as breasts, Plaintiff would be in serious and
immediate danger if she were to sweat with the male inmates in the sweat lodge at the
men’s prison in which she is confined. Ensuring a vulnerable prisoner’s safety is
obviously a compelling governmental interest.
MEMORANDUM DECISION AND ORDER - 58
However, the question remains whether never allowing Plaintiff to use the sweat
lodge—even by herself or in the presence of the chaplain who volunteered to escort her—
is the least restrictive means of keeping Plaintiff safe from attack by other inmates. The
IDOC Defendants do not adequately address Plaintiff’s allegation that a volunteer
chaplain was willing to escort her to and from the sweat lodge, which would presumably
not require any changes to ISCI’s staffing pattern. They do not offer evidence that
allowing Plaintiff to use the sweat lodge with the chaplain would so greatly burden prison
staff and other resources that completely denying her request to use the lodge can
reasonably be considered the least restrictive means of keeping Plaintiff safe; rather, it
appears that allowing Plaintiff’s alternative plan might well be less restrictive.
Additionally, Defendants Wamble-Fisher and Kirkman have provided no evidence that
they “actually considered and rejected the efficacy” of allowing Plaintiff to be escorted
by the chaplain before they denied Plaintiff the opportunity to use the sweat lodge outside
the presence of male inmates. Warsoldier, 418 F.3d at 999.
Instead, the IDOC Defendants point to their second asserted justification for their
decision to deny Plaintiff’s request to sweat. They argue that the religious beliefs of the
other inmates, who use the only sweat lodge at ISCI, would be violated by allowing
Plaintiff to enter the sweat lodge at any time, even by herself. Defendants Wamble-Fisher
and Kirkman both state, in general, that “some Native American tribes believe that
allowing a two-spirited person (an individual suffering from gender identify disorder or
gender dysphoria) to enter a sweat lodge utilized by single-spirited individuals would
MEMORANDUM DECISION AND ORDER - 59
desecrate the religious sanctity of the lodge.” (Wamble-Fisher Aff. at ¶ 8; see also
Kirkman Aff. at ¶ 8.) Therefore, they argue, their decision to prohibit Plaintiff from ever
using the sweat lodge—even by herself or in the company of the chaplain who
volunteered to escort her—was justified by the compelling penological interest of not
burdening the religious practices of other inmates who wish to use the sweat lodge.
After careful consideration, the Court concludes that Defendants have not
establish that burdening one individual’s religious practice in an attempt to avoid
burdening another’s religious practice is a compelling governmental interest under
RLUIPA. In Brown ex rel. Indigenous Inmates at N.D. State Prison v. Schuetzle, a group
of Native American prisoners challenged, under the First Amendment and RLUIPA, a
prison policy that allowed all inmates—no matter their race or ethnicity—to use the
sweat lodge for religious purposes. 368 F. Supp. 2d 1009, 1014-15 (D.N.D. 2005). The
court granted summary judgment to prison authorities, concluding that a policy
prohibiting non-Natives from attending the sweat lodge ceremony “would offend the
fundamental constitutional right to practice religion of one’s own choice whether Native
American or non-Native American.” Id. at 1024. The Court is persuaded that government
officials cannot avoid Plaintiff’s RLUIPA claim merely by citing other inmates’ religious
concerns, particularly where, as here, the asserted justification is based on mere
speculation as to what some other inmates might find religiously objectionable.
Based on the foregoing, Defendants Wamble-Fisher and Kirkman have failed to
meet their burden of showing that prohibiting Plaintiff from ever using the sweat lodge is
MEMORANDUM DECISION AND ORDER - 60
both justified by a compelling governmental interest and is the least restrictive means of
furthering that interest.12 Therefore, the Court will deny the IDOC Defendants’ Motion
for Summary Judgment on Plaintiff’s sweating ceremony claims under RLUIPA.13
CONCLUSION
For the foregoing reasons, summary judgment shall be granted to Defendants on
all of Plaintiff’s claims except the following:
1)
Plaintiff’s Eighth Amendment failure-to-protect claims against
Defendants ICC, CCA, Kerr, and Wengler; and
2)
Plaintiff’s RLUIPA claims for injunctive relief, with respect to
Plaintiff’s desire to participate in a religious sweating ceremony,
against Defendants Kirkman and Wamble-Fisher.
12
Because the RLUIPA does not allow for a damages award, Wood, 753 F.3d at 903-04,
only Plaintiff’s injunctive relief claims with respect to the sweating ceremony survive summary
judgment. Therefore, the Court need not address Defendants Wamble-Fisher’s and Kirkman’s
argument that they are entitled to qualified immunity on Plaintiff’s RLUIPA claims. See Brown
v. Or. Dep’t of Corrs., 751 F.3d 983, 990 (9th Cir. 2014) (“Qualified immunity is only an
immunity from a suit for money damages, and does not provide immunity from a suit seeking
declaratory or injunctive relief.” (internal quotation marks omitted)).
13
The IDOC Defendants also claim that Plaintiff did not exhaust her claims with respect to
her desire to sweat because she did not exhaust a specific request that the prison construct a
separate, two-spirited sweat lodge. (Dkt. 126-1 at 9.) However, Defendants do not cite, nor has
the Court found, any case standing for the proposition that in order to exhaust administrative
remedies a prisoner must separately exhaust a request for a specific remedy that she wishes
prison officials to implement, rather than simply notifying prison authorities of the problem—
here, Plaintiff being denied the opportunity to sweat. Therefore, the IDOC Defendants’
exhaustion argument fails.
MEMORANDUM DECISION AND ORDER - 61
ORDER
IT IS ORDERED:
1.
The IDOC Defendants’ Motion to Strike (Dkt. 143) is GRANTED IN
PART and DENIED IN PART. The following documents are STRICKEN
from the record: Affidavit of Adree Edmo; Affidavit of Erinn Wright;
Affidavit of Amber Renee Brune; Affidavit of David Paul-Whitestorm
Hochstetler; Affidavit of Kyle Merrill; Affidavit of David Thieme; and
Affidavit of Jeremy Meyer (all contained within Dkt. 141). The Court has
not considered any of these documents.
2.
The CCA Defendants’ Motion for Summary Judgment (Dkt. 123) is
GRANTED IN PART and DENIED IN PART. All claims against
Defendant Cardona that arose while Cardona was employed by CCA are
DISMISSED with prejudice.
3.
Corizon’s Motion for Summary Judgment (Dkt. 124) is GRANTED. All
claims against Defendant Corizon are DISMISSED with prejudice.
4.
The IDOC Defendants’ Motion for Summary Judgment (Dkt. 126) is
GRANTED IN PART and DENIED IN PART. All claims against
Defendants Allen, Magon, Romreill, Siegert, as well as all claims against
Defendant Cardona that arose while Cardona was employed by the IDOC,
are DISMISSED with prejudice. Further, Plaintiff’s First Amendment
claims—as well as her RLUIPA claims regarding the smudging
MEMORANDUM DECISION AND ORDER - 62
ceremony—against Defendants Wamble-Fisher and Kirkman are
DISMISSED with prejudice.
5.
If Plaintiff and any remaining Defendant (ICC, CCA, Kerr, Wengler,
Kirkman, or Wamble-Fisher) are interested in participating in the Court’s
Alternative Dispute Resolution (ADR) program, they shall file a joint
stipulation for referral to a settlement conference within 14 days after entry
of this Order. If no stipulation is received, the case will be set for trial.
DATED: February 27, 2015
_________________________
Edward J. Lodge
United States District Judge
MEMORANDUM DECISION AND ORDER - 63
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