Monroe et al v. Rauner et al

Filing 252

ORDER, Denying 238 MOTION for Summary Judgment, filed by Rob Jeffreys, Melvin Hinton, Steve Meeks, denying 236 MOTION to Bar Some Expected Opinions of Plaintiff's Expert James Aiken, filed by Rob Jeffreys, Melvin Hinton, Steve Meeks. A telephonic status conference will be set by separate order for the purpose of selecting a firm trial date. Signed by Chief Judge Nancy J. Rosenstengel on 2/4/2021. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JANIAH MONROE,
MARILYN MELENDEZ,
LYDIA HELÉNA VISION,
SORA KUYKENDALL, and
SASHA REED, individually and on
behalf of a class of similarly situated
individuals,
Plaintiffs,
Case No. 3:18-CV-00156-NJR

v.
ROB JEFFREYS,
STEVE MEEKS, 1 and
MELVIN HINTON,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on Defendants’ Motion to Bar Some Expected
Opinions of Plaintiffs’ Expert James E. Aiken (Doc. 236) and Defendants’ Motion for
Summary Judgment. (Doc. 238). Plaintiffs filed a response to each motion. (Docs. 243,
248). Defendants filed a reply brief on January 29, 2021. (Doc. 249).
BACKGROUND
Plaintiffs are transgender women currently incarcerated in Illinois Department of
Corrections (“IDOC”) facilities. They brought this civil action pursuant to 42 U.S.C. § 1983

Defendants’ most recent pleadings (Docs. 237, 238, 249) name Steven Bowman as a defendant in
place of the official capacity claims against Defendant Steve Meeks; however, Defendants have
not filed a motion to substitute party.
1

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alleging violations of their constitutional rights, specifically, the IDOC’s failure to provide
constitutionally adequate medical treatment for inmates seeking evaluation and
treatment for gender dysphoria, 2 in violation of the Eighth Amendment. (Doc. 1, p. 3).
Plaintiffs request declaratory and permanent injunctive relief to compel Defendants to
develop and implement a plan to eliminate the substantial risk of serious harm that
Plaintiffs suffer due to Defendants’ inadequate evaluation and treatment of gender
dysphoria. (Doc. 1, p. 37). Defendants include the IDOC Director, Chief of Health
Services, and Mental Health Supervisor, each sued in his official capacity.
On December 19, 2019, after a two-day evidentiary hearing, the Court ordered
preliminary injunctive relief. (Docs. 186, 187; modified in Doc. 212 on March 4, 2020). The
preliminary injunction included orders for Defendants to develop policies to ensure that
treatment decisions for inmates with gender dysphoria are made by qualified medical
professionals; to provide timely hormone therapy when medically necessary including
monitoring and dosage adjustments; to stop depriving gender dysphoric prisoners
medically necessary social transition and to develop a policy to allow such transition
(including individualized placement decisions, avoidance of cross-gender strip searches,
and access to gender-affirming clothing and grooming items); to develop policies
allowing transgender inmates access to competent clinicians; to allow inmates to obtain
evaluations for gender dysphoria; and to advise the Court regarding steps taken to train
correctional staff on transgender issues. (Doc. 212).

Gender dysphoria is a medical condition in which a person experiences clinically significant
distress stemming from incongruence between one’s experienced or expressed gender and one’s
assigned gender. (Doc. 157, p. 95; Doc. 158, p. 14).
2

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On March 4, 2020, the Court certified the Plaintiff class, which includes “all
prisoners in the custody of IDOC who have requested evaluation or treatment for gender
dysphoria.” (Doc. 213).
RELEVANT FACTS
Plaintiff Janiah Monroe has been incarcerated since 2008. (Doc. 186, pp. 17-18). She
had taken hormones before entering prison. Her requests for gender-affirming surgery,
hormone therapy, and electrolysis were denied by IDOC earlier in her incarceration. She
engaged in self harm and suicide attempts following the denial of these treatments. IDOC
did not diagnose Monroe with gender dysphoria until 2012. She was transferred to a
female facility in 2019 where she has access to female clothing and personal products.
(Doc. 238, pp. 7-8). She is receiving hormone therapy with dosage monitoring. She has
been informed that her request for gender-affirming surgery was approved but was then
stopped by an IDOC official. (Doc. 248, p. 18).
Marilyn Melendez entered IDOC custody in 2012 and has been housed in male
facilities since then. (Doc 186, pp. 19-22). She has been in a single cell since late 2018 after
her cellmate attempted to sexually assault her; nonetheless, IDOC staff have tried to place
another inmate with her. (Doc. 238, pp. 8-9; Doc. 248, p. 10). She took hormones in her
youth but had to discontinue the treatment because of cost. Her requests for evaluation
for gender dysphoria were rebuffed by IDOC officials until 2015; she began hormone
therapy in July or August 2015, approximately 4-5 months after her diagnosis. Medical
consultation on the adequacy of her hormone dosage has been delayed. (Doc. 238, p. 8).
Her requests for gender-affirming surgery have been denied. After delays, she has
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obtained some female clothing and grooming products but has requested additional
items not yet made available. Since the preliminary injunction was entered, she has
continued to be subjected to strip searches by male officers. (Doc. 248, p. 12). She is still
misgendered (referred to by male pronouns rather than by female pronouns in
accordance with her identified gender) by most correctional staff. She has attempted
suicide five times, most recently in August 2020. (Doc. 238, p. 8; Doc. 248, p. 19).
Sasha Reed has been an IDOC inmate since 2013 and is housed in a male facility.
(Doc. 186, pp. 22-23; Doc. 238, p. 10). After initial refusals of her requests for treatment
and a suicide attempt, she was diagnosed with gender dysphoria in 2015. Her hormone
therapy was initially denied by the Transgender Committee; she was allowed to begin
this treatment in March 2017. Her medication was adjusted in September 2020. She has
been denied a transfer to a female facility and access to female grooming items. (Doc. 186,
p. 23). In 2017, she was permitted to have a bra, and in June 2020, she got a medical permit
for women’s undergarments. She has requested gender-affirming surgery since 2016
without success.
Sora Kuykendall came to the IDOC in 2014 and is housed in a male facility. She
sought hormone therapy and evaluation for gender dysphoria but was not evaluated
until she attempted self-castration in 2015. (Doc. 186, pp. 25-26). She began hormone
therapy in 2015 but her hormone levels were not monitored for four years. She developed
breasts but was denied a bra until six months after requesting one. Her requests for
feminine products, transfer to a female institution, and gender-affirming surgery have
been denied. (Doc. 238, p. 10; Doc. 248, pp. 9-10, 17-18). She has been repeatedly stripPage 4 of 20

searched by male officers and in the presence of other males, and she is sexually harassed
by male prisoners and officers. (Doc. 248, pp. 11-12; 17). She was recently placed on crisis
watch for suicidal ideation, which resulted in denial of her hormone therapy. (Doc. 248,
p. 19).
Lydia Heléna Vision has been in IDOC custody in male institutions since 2004. She
was diagnosed with gender dysphoria in 2016 but was denied hormone therapy until late
2018. (Doc. 186, pp. 27-28). Her requests for female clothing and grooming items were
likewise denied; she was allowed a bra in 2017, but no other items. She is currently single
celled, and while she showers alone, the shower has only limited privacy. (Doc. 238,
p. 11). IDOC has approved her for transfer to a female prison, but Defendants state the
move has been delayed due to COVID-19-related restrictions. Since 2016, she has made
multiple requests for gender-affirming surgery but received no response. (Doc. 248,
p. 17).
When the preliminary injunction was granted, IDOC had in place Administrative
Directive 04.03.104 for “Evaluations of Transgender Offenders.” (Doc. 238, pp. 4-5;
Doc. 238-1, eff. July 1, 2019). It established a “Transgender Care Review Committee”
(“TCRC”) to review placements, security concerns and overall health-related treatment
plans, and gender related accommodations for transgender prisoners and those
diagnosed with gender dysphoria. Id. at 2. It provided for screening of incoming
prisoners, and evaluation and recommendation for housing and accommodations such
as hormone therapy, gender specific clothing, showers, and searches. Id. at 2-5. After the
injunction order, Defendants began making changes to the TCRC so that medical
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decisions and security-related accommodations will be handled by separate committees.
(Doc. 238, p. 5; Doc. 238-2, p. 9). IDOC has contracted with consultants to replace the
Administrative Directive referenced above and states it desires to maintain WPATH
Standards of Care. 3 Changes have recently been made to give transgender female
prisoners in all institutions access to commissary items such as bras, panties, makeup,
facial hair remover, and scrunchies. (Doc. 238, p. 5; Doc. 238-3). A two-hour training has
been provided to all IDOC staff to educate them on the need to avoid misgendering
prisoners. Part one of the WPATH training for medical and mental health providers was
completed in September 2020. (Doc. 238, p. 6).
Plaintiffs point out that IDOC’s planned policy changes have not been put into
effect and assert that practices which subject Plaintiffs to serious harm have not changed.
(Doc. 248, pp. 23-26).
Two of Plaintiffs’ experts (endocrinologist Dr. Vin Tangpricha and psychologist
Dr. Randi Ettner) testified at the preliminary injunction hearing. (Doc. 186, pp. 12-16, 2932; Doc. 238, pp. 11-14). Plaintiffs’ expert James E. Aiken prepared a written report and
was deposed by Defendants; his expected trial testimony is the subject of the instant
Motion to Bar Some Expected Opinions. (Doc. 236; Doc. 236-1). Aiken has a professional
background in several correctional settings and extensive consulting experience.

WPATH is the World Professional Association for Transgender Health, a professional
association dedicated to understanding and treating gender dysphoria. This Court previously
found its medically accepted Standards of Care to be the “appropriate benchmark” for treating
gender dysphoria. (Doc. 186, p. 31). Treatment options include social role transition, cross-sex
hormone therapy, psychotherapy, and surgery. (Doc. 158, p. 14; Doc. 186, pp. 3-7).
3

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LEGAL STANDARDS
I.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment.

“Summary judgment is appropriate only ‘if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.’” Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012) (quoting FED. R. CIV. P. 56(a)).
Accord Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014). The moving
party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion
for summary judgment is filed, the adverse party “must set forth specific facts showing
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Accord Estate
of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017).
In assessing a summary judgment motion, the Court views the facts in the light
most favorable to, and draws all reasonable inferences in favor of, the nonmoving party.
Donahoe, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the
Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by
examining the evidence in the light reasonably most favorable to the non-moving party,
giving her the benefit of reasonable, favorable inferences and resolving conflicts in the
evidence in her favor.” Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).

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II.

Eighth Amendment Deliberate Indifference
The Eighth Amendment prohibits cruel and unusual punishment and “imposes a

duty upon states to provide adequate medical care to incarcerated individuals.” Boyce v.
Moore, 314 F.3d 884, 888-89 (7th Cir. 2002). Deliberate indifference to the “serious medical
needs of a prisoner constitutes the unnecessary and wanton infliction of pain forbidden
by the Constitution.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir.
2009) (citation omitted).
In order to prevail on a claim of deliberate indifference, a prisoner who brings an
Eighth Amendment challenge of constitutionally deficient medical care must satisfy a
two-part test. Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). The first consideration is
whether the prisoner has an “objectively serious medical condition.” Id. Accord Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005). “A medical condition is objectively serious if a
physician has diagnosed it as requiring treatment, or the need for treatment would be
obvious to a layperson.” Hammond v. Rector, 123 F. Supp. 3d 1076, 1084 (S.D. Ill. 2015)
(quoting Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)).
The second element requires a prisoner to show that a prison official has subjective
knowledge of—and then disregards—an excessive risk to inmate health. Greeno, 414 F.3d
at 653. A plaintiff need not show the official “literally ignored” his complaint, but that the
official was aware of the condition and either knowingly or recklessly disregarded it.
Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008). “Something more than negligence or
even malpractice is required” to prove deliberate indifference. Pyles, 771 F.3d at 409.
Deliberate indifference involves “intentional or reckless conduct, not mere negligence.”
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Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (citing Gayton, 593 F.3d at 620).
In this case, Plaintiffs challenge the delivery of medically necessary care and
treatment on a systemic, statewide level in IDOC correctional institutions. See, e.g.,
Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983); Cleveland–Perdue v. Brutsche, 881 F.2d
427, 430–31 (7th Cir. 1989) (recognizing claims of systemic health care deficiencies as a
distinct category of deliberate indifference claims, as opposed to one based on “isolated
instances of indifference to a particular inmate’s medical needs”). Where systemic
deficiencies are alleged, deliberate indifference can be demonstrated by “proving there
are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures
that the inmate population is effectively denied access to adequate medical care[,]” or by
showing “repeated examples of negligent acts which disclose a pattern of conduct by the
prison medical staff” which result in an excessive risk of serious harm. Wellman, 715 F.2d
at 272; see also Phillips v. Sheriff of Cook Cnty., 828 F.3d 541, 554 (7th Cir. 2016); Rasho v.
Walker, 376 F. Supp. 3d 888, 906-07, 914-15 (C.D. Ill. 2019).
III.

Admissibility of Expert Testimony
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579

(1993), govern the admissibility of expert testimony. Krik v. Exxon Mobil Corp., 870 F.3d
669, 673-74 (7th Cir. 2017). The Daubert standard applies to all expert testimony, whether
based on scientific competence or other specialized or technical expertise. Smith v. Ford
Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Kumho Tire Co., Ltd. v. Carmichael, 526
U.S.137, 141 (1999)). Rule 702, as amended after Daubert, provides:
A witness who is qualified as an expert by knowledge, skill, experience,
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training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the testimony
is the product of reliable principles and methods; and (d) the expert has
reliably applied the principles and methods to the facts of the case.
FED. R. EVID. 702. Simply stated, “Rule 702 requires that expert testimony be relevant,
reliable, and have a factual basis—requirements that must be met before the jury is
allowed to hear and perhaps be persuaded by the expert testimony.” Lapsley v. Xtek, Inc.,
689 F.3d 802, 809 (7th Cir. 2012).
The trial judge acts as the gatekeeper for expert testimony, and “the key to the gate
is not the ultimate correctness of the expert’s conclusions,” rather, it is “the soundness
and care with which the expert arrived at her opinion.” Schultz v. Akzo Nobel Paints, LLC,
721 F.3d 426, 431 (7th Cir. 2013). The Court’s inquiry focuses “solely on principles and
methodologies, not on the conclusions they generate.” Id. (quoting Daubert, 509 U.S. at
595). Evaluating reliability requires a flexible inquiry. The relevant consideration is
whether the testimony falls outside the range where experts might reasonably differ.
Kumho, 526 U.S. at 153-54. With respect to an expert proffered for his experience, “[i]t is
critical under Rule 702 that there be a link between the facts or data the expert has worked
with and the conclusion the expert’s testimony is intended to support.” United States v.
Mamah, 332 F.3d 475, 478 (7th Cir. 2003) (citing Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997)).
Notably, “[a] Daubert inquiry is not designed to have the district judge take the
place of the jury to decide ultimate issues of credibility and accuracy.” Lapsley, 689 F.3d
at 805. “If the proposed expert testimony meets the Daubert threshold of relevance and

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reliability, the accuracy of the actual evidence is to be tested before the jury with the
familiar tools of ‘vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof’.” Id. (quoting Daubert, 509 U.S. at 596).
Courts in the Seventh Circuit conduct a three-step analysis under Daubert. Ervin v.
Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007); Gopalratnam v. Hewlett-Packard
Co., 877 F.3d 771, 779 (7th Cir. 2017). 4 First, the district court must determine whether the
person whose testimony is offered is in fact an expert, as codified in Rule 702 through
“knowledge, skill, experience, training or education.” Id. (citing FED. R. EVID. 702).
Second, the district court must determine that the expert’s reasoning or methodology is
reliable. Ervin, 492 F.3d at 904; see Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004)
(citing Kumho, 526 U.S. at 147). In assessing reliability, the court looks at a non-exhaustive
list of factors that include: “(1) whether the scientific theory can be or has been tested;
(2) whether the theory has been subjected to peer review and publication; (3) whether the
theory has been generally accepted in the scientific community.” Ervin, 492 F.3d 901, 904
(7th Cir. 2007) (citing Daubert, 509 U.S. at 593-94). “[T]he district court may apply these
factors flexibly as the case requires.” Gopalratnam, 877 F.3d at 780 (quoting Krik, 870 F.3d
at 674, and citing Kumho, 526 U.S. at 150). Finally, the “testimony must assist the trier of
fact to understand the evidence or to determine a fact at issue. Ervin, 492 F.3d at 904.

The Court notes the Seventh Circuit has also described the Daubert analysis as a two-step
process. See Chapman v. Maytag Corp., 297 F.3d 682, 686 (7th Cir. 2002). However, as Chapman
simply combines the first two steps described in Ervin as a single test of reliability, whether the
analysis is described as a three-step or two-step process does not substantively change the Court’s
analysis.
4

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Resolution of an expert’s credibility or the correctness of his or her theories under the
particular circumstances of a given case is a factual inquiry, left to the jury’s
determination after opposing counsel has cross-examined the expert at issue as to the
conclusions and facts underlying his or her opinion. Smith, 215 F.3d at 718 (citing Walker,
208 F.3d at 589-90).
ANALYSIS
I.

Motion for Summary Judgment
Defendants have conceded that Plaintiffs’ gender dysphoria is an objectively

serious medical condition. (Doc. 186, pp. 29-30). The parties’ dispute centers on whether
Defendants have been deliberately indifferent to Plaintiffs’ risk of serious harm from their
condition. As this Court stated when issuing the preliminary injunction in this case,
“Plaintiffs must show IDOC consciously disregarded a known and substantial risk of
harm associated with gender dysphoria.” (Doc. 186, p. 32) (citing Greeno, 414 F.3d at 653).
Defendants assert that Plaintiffs cannot show that IDOC is violating their Eighth
Amendment rights, cannot meet the necessary elements to obtain a permanent injunction,
and that the requested injunctive relief exceeds the limitations of the Eleventh
Amendment and the Prison Litigation Reform Act. (Doc. 238, pp. 2-3).
Initially, Defendants argue that Plaintiffs are unable to show they have suffered
“punishment or subjective cruelty” at the hands of Defendants and are instead pursuing
what amounts to medical malpractice claims. (Doc. 238, pp. 15-19). But there is much
evidence before the Court to support Plaintiffs’ claims of significant harm—including
self-mutilation, actual and contemplated suicide attempts, and clinically significant
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psychological distress—resulting from IDOC’s refusal to provide the most basic care for
transgender individuals, including timely evaluations for gender dysphoria, lengthy
delays in providing hormone therapy once a diagnosis of gender dysphoria is obtained,
and failure to provide necessary monitoring of hormone levels to many transgender
prisoners who are receiving hormones. 5 This Court found in December 2019 that “IDOC
is well-aware that transgender inmates are at a high risk of suffering from mental health
issues and resorting to self-harm.” (Doc, 186, p. 32). Evidence adduced since that time
indicates that Plaintiffs continue to suffer due to their inability to obtain necessary
medical treatment while in IDOC custody. 6 (Doc. 248, pp. 14-16, 17-19). The parties’
filings demonstrate that the question of whether Defendants actually knew of, yet
disregarded, a substantial risk of harm to Plaintiffs relating to medical care is a factual
issue that remains in dispute. See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (“[w]hether
a prison official had the requisite knowledge of a substantial risk is a question of fact”).
Defendants further argue that they are not constitutionally mandated to provide
treatment that aligns with the WPATH Standards of Care and that there are no set Eighth
Amendment standards for the care and treatment of gender dysphoria. (Doc. 238, pp. 1924). However, contemporary standards for medical care are relevant to a deliberate

Plaintiffs link these harms not only to the delays/denials of medical evaluation and treatment,
but also to denials of social transition requests including cross-gender strip searches, persistent
misgendering, and denials of transfer requests.
6
Defendants’ objection to the consideration of Plaintiffs’ previously undisclosed statement of
Chonna Anderson and the supplementary opinion of Dr. Tangpricha based on Anderson’s
statement (Doc. 249, pp. 2-5) is well taken. The Court has not considered the Anderson
declaration, medical records, or the supplemental opinion (Docs. 248-11, 248-12, and 248-13) in
ruling on the motion for summary judgment.
5

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indifference inquiry, and this Court has determined that it “will continue to use the
WPATH Standards of Care as guidelines for constitutionally adequate care under the
Eighth Amendment” unless Defendants offer an alternative constitutionally adequate
standard. (Doc. 211, p. 7). Defendants’ motion does not set forth any alternative standard
of care. Indeed, their consultant, Dr. Erica Anderson, testified that the WPATH Standards
of Care are referenced “for transgender healthcare around the world[.]” (Doc. 248, p. 28,
n.7, quoting Anderson Dep. At 30:1-17). Defendants’ argument does not persuade the
Court that it should abandon the WPATH Standards of Care as a benchmark to evaluate
Plaintiffs’ Eighth Amendment claims. More to the point, their challenge to the use of the
WPATH Standards in the Eighth Amendment context, and Plaintiffs’ response,
emphasizes that a material factual dispute exists on this important matter.
Defendants further argue that they are entitled to summary judgment based in
part on the efforts that have been made to comply with the preliminary injunction
(Doc. 238, pp. 23-24). They are “working to replace the TCRC with a two-committee
structure; providing additional training … engaging consultants with correctional
expertise and gender-informed mental health expertise to update IDOC’s policies and
practices for gender dysphoric prisoners; and changing commissary restrictions” so that
transgender female prisoners may access female items. Id. Positive as these developments
may be, Plaintiffs point out that Defendants have not yet implemented the policy changes
they describe, and many practices which gave rise to this suit are still ongoing. (Doc. 248,
pp. 23-26). Defendants have not provided drafts of their new policies, and the changes
they describe are not yet completed. Plaintiffs assert that the 13-month delay in
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implementing a new administrative directive to replace the TCRC (which provides for
non-medical staff to participate in making medical decisions regarding gender
dysphoria) creates a factual dispute regarding the current and future risk of harm to
Plaintiffs. (Doc. 248, p. 23). Similarly, the parties dispute the adequacy of IDOC’s staff
and provider training on transgender issues, including misgendering, to prevent harm to
Plaintiffs. (Doc. 248, p. 25). Plaintiffs’ testimony that misgendering by correctional staff is
frequent, ongoing, and harmful casts doubt on the efficacy of training efforts to date.
While Defendants provided a list of commissary items that, as of November 2020, were
to be made available to transgender female prisoners (Doc. 238-3), Plaintiffs dispute the
actual availability of these items and note that the changes do not address the social
transition needs of transgender men, who are included in the Plaintiff class. (Doc. 248,
pp. 13-14, 26). Disputed factual issues remain that are material to the resolution of
Plaintiffs’ deliberate indifference claims, and the evidence set forth would allow a
reasonable jury to find for Plaintiffs.
Finally, the Court is not convinced at this juncture that Plaintiffs will be unable to
establish the requirements for the issuance of a permanent injunction. (Doc. 238, pp. 2430; Doc. 248, pp. 29-38). This Court found that Plaintiffs faced irreparable harm that
monetary damages could not remedy when the preliminary injunction was issued, and
the question of whether that harm is ongoing and likely to continue absent permanent
injunctive relief is an inquiry involving disputed material facts. For example, Plaintiffs
question Defendants’ assertion that potential transfers of transgender women to female
facilities, physician visits related to hormone and other treatment, and consideration of
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gender-affirming surgeries have been unavoidably delayed because of restrictions
related to the COVID-19 pandemic. Plaintiffs point out that other prisoner transfers and
physician visits have been accomplished even during the pandemic. (Doc. 238, p. 25;
Doc. 248, p. 33). Further, while not conceding the point in this case, Defendants
acknowledge that a risk of suicide or self-harm related to an unconstitutional policy may
suffice to show that no adequate remedy at law exists. (Doc. 238, p. 26). These are matters
that cannot be resolved at the summary judgment stage. As well, it is premature for the
Court to conclude that the harm to Defendants from a permanent injunction will
outweigh the harm to Plaintiffs if one is issued, that permanent injunctive relief would
not serve the public interest, or that such relief would necessarily violate the Eleventh
Amendment or the constraints of the Prison Litigation Reform Act. (Doc. 238, pp. 30-33;
Doc. 248, pp. 38-41).
To summarize, the Court finds that genuine issues of material fact exist as to
whether Defendants were and are deliberately indifferent to the serious risk of harm to
Plaintiffs associated with their gender dysphoria. Defendants thus are not entitled to
summary judgment.
II.

Motion to Bar Some Expected Opinions of Expert Aiken
Defendants do not challenge James E. Aiken’s qualifications as an expert, which

include nearly fifty years of experience in correctional administration, facility operations
and management, with much focus on remediation of “program and security shortfalls
and staff misconduct” in prison systems. (Doc. 236-1, pp. 2, 21-33). Mr. Aiken served as
one of nine Commissioners of the National Prison Rape Elimination Commission, which
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was tasked with formulating standards to prevent, detect, and eliminate prison rape.
(Doc. 236-1, p. 3). The Commission’s work included consideration of “the appropriate
standard for the safe housing and placement of transgender inmates.” Id. The Court is
satisfied with Mr. Aiken’s qualifications as an expert in the corrections field.
Defendants seek to bar Mr. Aiken’s opinions that: (1) there is no security
justification for denying transgender prisoners medically necessary social transition,
particularly relating to misgendering; (2) there are no legitimate security reasons to deny
transgender prisoners medically-recommended housing placement; and (3) sound
correctional practice requires giving transgender prisoners the option of being searched
by correctional staff of the same gender. (Doc. 236, pp. 1-2).
Defendants do not challenge Mr. Aiken’s opinion that transgender inmates in male
prisons should have access to the same commissary items available to female prisoners
in facilities of the same security level. 7 (Doc. 236, pp. 3-4). They argue that Mr. Aiken’s
opinion that there is no security justification for allowing misgendering of transgender
prisoners should be barred as irrelevant, because he has not identified an IDOC policy
that allows misgendering based on a security justification, nor has he reviewed IDOC’s
training on the matter or identified any failure of IDOC Director Jeffreys to model
respectful behavior. (Doc. 236, pp. 4-5). Plaintiffs counter that Mr. Aiken’s testimony is
relevant to their claim that misgendering by corrections staff amounts to denial of
medically necessary social transition. They note that the evidence shows a widespread

Defendants assert they have implemented new commissary procedures to allow transgender
women in male facilities to purchase all of the same items available in female institutions.
(Doc. 236, p. 4 n.1).
7

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practice of misgendering of which IDOC is aware, and that Mr. Aiken is not required to
identify a policy permitting misgendering in order for his testimony to be relevant.
(Doc. 243, p. 5).
The Court finds that Mr. Aiken’s opinion that misgendering of transgender
prisoners increases their risk of abuse/assault by other prisoners, as well as the risk of
self-harm and suicide is relevant to security concerns within the prison system and to the
issue of whether Defendants have been deliberately indifferent to Plaintiffs’ medical
needs for social transition treatment. His opinions are based on his extensive experience
and specialized knowledge in the corrections field and his review of documents related
to this case. As such, his testimony on this matter is likely to advance the inquiry and aid
the trier of fact on these matters. The motion to bar will be denied on this issue.
Regarding housing placement of transgender prisoners, Defendants argue that
Mr. Aiken cannot identify a standard that requires prison officials to give top priority to
medical concerns, as opposed to security concerns, when making housing decisions, thus
his opinion that medical recommendations should take precedence should be excluded.
Defendants also claim that Mr. Aiken’s proffered opinion oversteps the boundary of his
expertise by interpreting the law applicable to prison officials’ duty to comply with
directions from medical providers. (Doc. 236, pp. 6-7). Finally, Defendants argue that Mr.
Aiken did not sufficiently review records relating to security issues that arose after
Plaintiff Monroe’s transfer to a female prison, thus his opinion that IDOC has no
legitimate security reasons to deny medically recommended placements to transgender
prisoners is not based on sufficient facts or data. Id. at 7.
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The Court does not find these to be sufficient reasons to bar Mr. Aiken’s testimony.
Defendants may offer their own expert testimony as to the interplay between medical
and security concerns when determining housing placements, and the trier of fact may
take into account the relevant standards (or lack thereof) in assessing whether Defendants
were deliberately indifferent to Plaintiffs’ medical needs in making housing decisions.
Cross examination is available to challenge Mr. Aiken’s familiarity with records and facts
relating to a particular Plaintiff’s placement and whether his opinion sufficiently
considered that information; exclusion of his expected testimony is not warranted on this
basis.
The Court does not view Mr. Aiken’s opinion that no legitimate security reason
exists to deny medically recommended housing placements for transgender inmates as
an improper legal conclusion. His report explains that his opinions are grounded in
guidance offered by the Prison Rape Elimination Commission, the goals and purposes of
the PREA Standards, and Department of Justice regulations, as well as his extensive
professional corrections experience. (Doc. 236-1, pp. 8-16). Cross examination, as well as
the Court’s understanding of the law and appropriate instructions to the jury, will ensure
that Mr. Aiken’s opinion testimony is not taken as an improper legal interpretation by a
non-lawyer.
Similarly, Mr. Aiken’s opinion that sound correctional practice requires giving
transgender prisoners the option of being searched by correctional staff of the same
gender is not an impermissible legal opinion, nor does it encroach on the role of the Court.
He states that the PREA Standards were promulgated to stop sexual assault and violence
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rather than to address transgender prisoners’ medical needs. (Doc. 236-1, p. 17). He
opines that these standards and sound correctional practices support same-gender
searches based on the prisoner’s gender identity, and notes that other states have
implemented this kind of policy. Defendants assert that the PREA regulations are
unclear, as noted by their expert. But this is a matter for the trier of fact to consider, as is
the weight to be given to those standards as they relate to IDOC’s policy on cross-gender
searches. Defendants’ arguments to bar Mr. Aiken’s opinions are not persuasive.
CONCLUSION
For the above reasons, Defendants’ Motion to Bar Some Expected Opinions of
Plaintiff’s Expert James E. Aiken (Doc. 236) and Defendants’ Motion for Summary
Judgment (Doc. 238) are DENIED.
A telephonic status conference will be set by separate order for the purpose of
selecting a firm trial date.
IT IS SO ORDERED.
DATED: February 4, 2021
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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