Hampton v. Baldwin et al

Filing 105

ORDER GRANTING in part and DENYING in part 46 Motion for Preliminary Injunction filed by Plaintiff Deon Hampton. Signed by Judge Nancy J. Rosenstengel on 11/7/2018. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEON HAMPTON,
Plaintiff,
vs.
JOHN BALDWIN, KEVIN KINK,
KAREN JAIMET, JOHN VARGA,
OFFICER BURLEY, LIEUTENANT
GIVENS, OFFICER CLARK, OFFICER
LANPLEY, OFFICER GEE, OFFICER
MANZANO, OFFICER BLACKBURN,
LIEUTENANT DOERING, SERGEANT
KUNDE, and JOHN DOES 1-4,
Defendants.

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Case No. 3:18-CV-550-NJR-RJD

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on the Renewed Motion for Preliminary Injunction
filed by Plaintiff Deon Hampton, an inmate in the Illinois Department of Corrections (IDOC)
(Doc. 46). Hampton is a 27-year-old, transgender woman housed in Dixon Correctional
Center, a men’s prison. Hampton asks the Court to order Defendants John Baldwin, Director
of the IDOC, and John Varga, Warden of Dixon, to transfer her to Logan Correctional Center,
a female facility, because correctional staff and other inmates at Dixon have physically,
verbally, and sexually harassed and assaulted her. She also seeks an order directing
Defendants to remove her from segregation because she has been denied appropriate mental
health services and her mental health is deteriorating. The Court held a three-day evidentiary
hearing in September 2018. For the reasons set forth below, the Court grants the motion in
part and denies it in part.

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BACKGROUND
Hampton, who was anatomically born a male, has identified as a female since age five
and has dressed as a female since she was eleven years old (Doc. 46-1, p. 7). At that point, her
family and community treated her as a girl and referred to her by her preferred name:
“Strawberry.” (Id.) Hampton lived exclusively as a female for years prior to her incarceration
and is attracted exclusively to men (Id.; Doc. 96, pp. 52, 62). In 2012, she was diagnosed by an
IDOC psychiatrist with gender dysphoria, a significant mismatch between a person’s
experienced gender identity and sex assignment at birth (Doc. 98, p. 12). People with gender
dysphoria often want to change their body to match their internal gender identity and to be
rid of the sexual characteristics associated with their birth sex (Id.). Hampton also suffers from
bipolar disorder (Doc. 100, p. 24).
In 2015, Hampton told mental health professionals at Hill Correctional Center that she
was not transgender (Doc. 46-1, p. 7). In May 2016, however, she clarified to a mental health
professional that she simply considers herself female rather than “transgender.” (Id.) Two
months later, while still in IDOC custody, Hampton began hormone treatment to physically
transition to female (Doc. 96, p. 5). The hormones have feminized her looks while shrinking
her muscles and male anatomy (Id., p. 6). She has breasts and can no longer get an erection
(Id., pp. 5). Her strength also has diminished, and she can no longer lift heavy objects (Id., p.
6). By January 30, 2018, Hampton’s estradiol level was 397 and her testosterone was less than
3 (Doc. 46-2, p. 2). That level of testosterone is considered “castrate,” in that Hampton has
virtually no circulating testosterone—similar to males who have been surgically castrated
(Id.).
At the evidentiary hearing, Hampton presented the expert testimony of Dr. George

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Brown, the Associate Chairman for Veterans Affairs and Professor of Psychiatry at East
Tennessee State University and a consultant nationally for the United States Department of
Veterans Affairs on transgender health care issues (Doc. 98, pp. 5-8). According Dr. Brown,
Hampton’s high estrogen and low testosterone levels make it “exceedingly unlikely” that she
could get an erection, let alone produce semen and be fertile (Doc. 98, pp. 28-31). He explained
that chemical castration is most likely irreversible with continued treatment, and that
Hampton has been 100 percent compliant with taking her hormones (Id., p. 32). In his opinion,
there is “no ambivalence in her transgender identity” and, thus, no indication she would stop
taking estrogen (Id., p. 32).
Over the past two years, Hampton has been housed at four IDOC male correctional
centers: Pinckneyville, Menard, Lawrence, and Dixon (Doc. 96, p. 6). Hampton describes her
experiences at these male prisons as feeling like a sex slave (Id., p. 13). At Pinckneyville, she
was called a “fag,” “it,” “he-she,” “thing,” “dick sucker,” and “dick eater” on a daily basis
(Id., pp. 9-10). One officer pulled down her shorts and asked what genitalia she had (Id., p.
10). Other officers forced her to engage in sexual acts with her cellmate for the officers’
entertainment (Id., p. 11). On one occasion, she and her cellmate were taken out of their cell,
forced to dance, and then told to perform oral sex while the officers watched (Id., p. 12). She
also was forced to have phone sex with a lieutenant (Id.). After the incident, Hampton and
her cellmate were warned to stay quiet, otherwise the officers would “make their bodies
disappear” (Id.). Hampton did report the incident, but no action was taken to protect her from
further abuse (Id., pp. 13-16). Instead, she asserts, she was beaten and not allowed to shower,
while the officers wrote allegedly false disciplinary tickets against her (Id., p. 17).
Hampton eventually was transferred to Menard, a maximum-security prison, where

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she was called the same derogatory names (Id., p. 19). She again experienced physical assaults
and feared for her life and safety (Id., p. 22). She was forced to stick deodorant bottles up her
anus, to masturbate, and to dance in her cell (Id., p. 24). She testified she feared that if she told
the officers no, they would have tried to kill her (Id.). After she filed a grievance about the
officers’ conduct, no action was taken to protect her (Id., p. 23). Instead, the officers continued
to work around her and “gay bash” her (Id.).
Hampton filed a lawsuit related to the conduct at Menard, which resulted in a
settlement whereby she was transferred to Lawrence Correctional Center (Id.). But the
situation was no different there. In January 2018, during yard, an inmate at Lawrence exposed
his penis, masturbated, and threatened to rape Hampton (Id., p. 25). When Hampton
complained to staff, they blew her off because she is attracted to men (Id.) At that point,
Hampton called the Prison Rape Elimination Act (PREA) hotline (Id., pp. 25-26). After an
investigation, Hampton’s complaint was deemed substantiated (Id., pp. 26-28; Ex. 9). Yet,
Hampton asserts nothing was done to protect her. Instead, the inmate who committed these
acts was placed near her in segregation, where he continued to threaten to rape her (Id., pp.
28-29). Hampton made a second PREA call in February 2018, which again was substantiated
(Id., p. 29-30; Ex. 9). The inmate then was transferred from Lawrence, a medium to highmedium security prison to Pontiac Correctional Center, a maximum-security prison (Doc. 97,
pp. 66-67; Ex. 9).
Hampton also was targeted by the staff at Lawrence. She described sexual misconduct
by a lieutenant and an Internal Affairs officer, with whom she was forced to have sex on a
regular basis (Doc. 96, p. 30). She claims these individuals threatened to reach her family if
she said anything (Id.). Staff also called her names and misgendered her by using male

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pronouns, which makes her feel angry, disrespected, ashamed, and humiliated (Id., pp. 20,
25). Dr. Brown explained that misgendering transgender people can be degrading,
humiliating, invalidating, and mentally devastating (Doc. 98, p. 16). In Hampton’s records,
Dr. Brown saw hundreds of incidents of misgendering, not just by correctional officers but
by clinicians, nurses, and administrators (Id., pp. 16-17).
On March 16, 2018, Hampton was transferred to Dixon and again placed in
segregation. The recommendation to transfer Hampton to Dixon came from Dr. Shane
Reister, a licensed clinical psychologist who serves as the Southern Regional Psychologist
Administrator for the IDOC (Doc. 100, pp. 10, 26). In this position, Dr. Reister oversees the
mental health programming at the institutions in the IDOC’s southern region (Id., p. 10). Dr.
Reister met with Hampton in March 2018 because she is a “particularly challenging” inmate
with “very clear bipolar symptoms, as well as some dissociative problems when trauma
triggers occur” (Id., pp. 23-24). Dr. Reister found that Hampton’s manic symptoms, in
addition to her gender-related concerns, made it difficult for her to adapt to her environment
(Id., p. 25). Accordingly, Dr. Reister recommended that Hampton be transferred to Dixon,
which is a “mental health hub,” has a large transgender population, and a “very functional
transgender support group.” (Id., p. 27).
Since her transfer to Dixon, Hampton claims the name calling by IDOC staff has
continued (Id., p. 36). So has the sexual assault. For a week and a half in April 2018, a fellow
inmate grabbed her breasts and buttocks and exposed his penis (Id.). When Dixon staff
refused to do anything despite her complaints, she called the PREA hotline (Id.). An
investigation ensued, and the allegation was substantiated (Id.). The offender appeared
before the Adjustment Committee on April 27, 2018, and “was disciplined for his actions.”

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(Ex. 9.) He was then released from segregation on May 3, 2018 “for time served and the safety
of [Hampton] due to the fact of Hampton being in segregation.” (Id.)
Another inmate at Dixon grabbed her body, kissed her, and tried to force her to
perform oral sex (Id., p. 38). He also threatened physical harm and tried to come in while
Hampton was showering (Id., pp. 38-39). Hampton again called the PREA hotline and
reported the abuse to Dixon staff, including mental health professionals and the warden (Id.,
p. 39). Hampton asserts that staff sent the offending inmate to a minimum-security prison
and retaliated against her instead of taking any action to protect her (Id., p. 40).
Indeed, Justin Wilks, Assistant Warden of Operations at Dixon, could not testify to
anything done to protect Hampton after her PREA allegations were substantiated (Doc. 99,
p. 78). He also testified he was unaware of the claimed harassment and verbal discrimination
by other inmates and officers, unaware of any measures taken after Hampton filed grievances
complaining of harassment by officers, and unaware of any grievances she filed regarding
sexual harassment by other offenders (Id., pp. 79-81).
Because of the continued verbal and physical harassment and sexual assault by staff
and male offenders, Hampton has filed numerous grievances seeking to be transferred to a
female prison. To date, Hampton’s repeated requests to be transferred have been denied
internally by the IDOC’s Transgender Care Review Committee (“the Committee”),
previously known as the Gender Identity Committee and the Gender Dysphoria Disorder
Committee (Doc. 98, p. 41; Doc. 100, p. 60). The Committee, which is made up of mental health
providers, psychologists, medical doctors, and representatives from IDOC administration,
security, and the transfer coordinator’s office, is responsible for ensuring that the mental
health, security, and medical needs of offenders are met, specifically regarding transgender

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care (Doc. 100, pp. 14-15). It is also charged with ensuring trans people are housed
appropriately within the Department of Corrections (Doc. 99, p. 5).
Dr. Steven Meeks, Agency Medical Director of the IDOC, is the chairperson of the
Committee (Id., p. 4). Dr. Meeks admitted he is not an expert on providing care to trans people
(Doc. 99, p. 5), and he does not know the specific details of the PREA (Id., p. 7). While he
agrees that gender dysphoria is a real diagnosis that requires medical treatment, he also has
never recommended that a trans woman be moved from the men’s division to the women’s
division (Id., pp. 5, 9).
Dr. Meeks explained that the Committee issues a full report on a transgender inmate
when that individual transfers to a new facility, while periodic updates are done if there are
specific requests related to that individual’s care (Id., p. 13). On March 17, 2017, the
Committee issued an update on Hampton noting that she was housed in segregation,
showered separately and in private, and was taking feminizing hormones (Ex. 18). The report
further stated that since Hampton had been in segregation she had not had any individual or
group therapy specifically for transgender support, but she had been attending the mental
health group offered to inmates in segregation. Dr. Meeks admitted that to the extent
Hampton was not receiving psychosocial support for her gender dysphoria while in
segregation, her treatment violated professionally accepted standards (Doc. 99, pp. 10-11).
Nevertheless, the Committee recommended continuing those provisions.
The Committee next issued a report on Hampton on January 26, 2018, after her
transfer to Lawrence (see Ex. 18). At that time, the Committee recommended Hampton
continue showering separately and in private, be permitted to use a sports bra, be referred
for general support for living as a transgender in prison, be referred for individual and/or

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group treatment issues related to being transgender and other mental health issues, and that
all security searches be performed professionally and as least intrusive as possible—“in
accordance with facility policy based upon the gender of the facility.” (Ex. 18). Dr. Meeks
admitted there is no documentation of any discussion regarding Hampton’s PREA
complaints or her disciplinary history, but testified that they discussed her “placement,”
meaning a potential transfer to a women’s prison (Doc. 99, pp. 16-18).
The Committee issued another report on April 1, 2018, after Hampton’s transfer to
Dixon (Ex. 18). The report does not discuss Hampton’s sense of personal safety or her history
of sexual assault, and it leaves several sections blank (Id., p. 21). It also makes no
recommendations as to housing or showering (Id., p. 19). Dr. Meeks testified that part of the
reason the Committee decided not to transfer Hampton at that time was because she was
adjusting well to Dixon and because she needed to be healthy from a mental health
perspective before they would consider transferring her (Id., pp. 23-24). While Dr. Meeks
previously testified in his deposition that he would not be comfortable moving a prisoner
who still has testicles to a female prison, he testified at the evidentiary hearing that “having
testicles in and of itself” would not be a reason to keep Hampton out of the women’s division
(Id., p. 25). Instead, “it’s a more wholistic decision than that,” which takes into account the
inmate’s “mental health status and whether she would function well at the women’s facility.”
(Id.). Dr. Meeks admitted, however, that the Committee did not consider Hampton’s
substantiated PREA complaints, nor did they consider her disciplinary history or personal
sense of safety at Dixon (Id., pp. 24, 35). Additionally, no member of the Committee has ever
met with Hampton regarding her request to be transferred to a female prison, to discuss
whether she feels safe at a men’s prison, or to ask how the hormones she takes affect her body

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(Doc. 96, p. 45).
On July 16, 2018, the Committee met specifically to discuss Hampton’s potential
transfer to a women’s prison (Id., p. 30). IDOC Chief Attorney Camille Lindsay was present
for this meeting (Id.). The Committee did not issue a formal update; instead, Dr. Meeks’s
assistant distributed a bullet-point list of topics discussed (Id.; see Ex. 18). Those issues
included whether Hampton is fertile or capable of an erection, her behavioral and mental
health, her assault on a staff member and another offender, her aggression level and strength
as opposed to the women in Logan Correctional Center, her refusal to take Lithium for her
bipolar disorder, and the potential impact on Logan should she be transferred (Ex. 18). The
Committee did not recommend transferring Hampton at that time but agreed to review her
situation again in November 2018 (Ex. 18).
Dr. Meeks testified that the Committee decided not to transfer Hampton because she
had assaulted a staff member and an offender at Dixon, and there was some concern she was
not psychologically stable enough to transfer her to Logan (Doc. 99, p. 32). Dr. Meeks did not
recall discussing Hampton’s own personal sense of safety at Dixon and admitted that not all
women at Logan are “mentally stable.” (Id., pp. 33, 35-36).
Sandra Funk, the Chief of Operations for IDOC and a member of the Committee, also
testified regarding the Committee’s July 16, 2018 meeting. Funk stated that from a security
perspective, the primary concern when considering whether to transfer a transgender
prisoner is sexual potency, i.e., the ability to become erect (Id., p. 47). While Hampton cannot
obtain an erection, Funk noted that is only because she is taking medication (Id.). She also
implied that even if Hampton sexually prefers men, that does not mean she would never try
sex with a woman (Id.). Funk did agree, however, that whether an inmate is a predator or

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vulnerable should be considered when determining placement, and that someone who has
been raped in prison and had multiple substantiated PREA complaints would be considered
vulnerable (Id., p. 48). Yet, according to Funk, there was no discussion as to Hampton’s
person safety or her fear of sexual assault while in a men’s prison (Id., pp. 55-56). In fact, the
Committee did not discuss any reasons why it would be in the interest of Hampton’s mental
health to transfer her to Logan (Id., p. 57). And while IDOC policy does not allow housing
decisions to be made solely on a prisoner’s sex at birth, currently all prisoners in the IDOC
are housed based on their genitalia (Id.).
At the hearing, Hampton presented the expert testimony of Dan Pacholke, an
independent consultant and former head of corrections for the Washington State Department
of Corrections (Doc. 97. p. 5). Pacholke worked with the Washington State Department of
Corrections for more than 33 years in a number of positions ranging from correctional officer
to warden (Doc. 97, p. 5-6). According to Pacholke, under the PREA, housing decisions
should not be made exclusively based on external genital anatomy (Doc. 97, p. 13). Instead,
the prison must consider the individual’s own sense of security when determining placement
(Id.). And while the IDOC’s policy states that it will consider the offender’s perception to
ensure appropriate facility placement, it does not provide any objective criteria for being
placed in a women’s facility (Id., p. 14). Those objective standards should include the inmate’s
age, physical build, sexual preference, criminal history (including whether the inmate has
committed sex crimes or is violent), and the inmate’s own perception of vulnerability (Doc.
97, p. 79).
Pacholke was critical of the Committee’s updates and reports for lacking detail as to
those objective standards, as well as Hampton’s history of mental health issues and sexual

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assault (Doc. 97, p. 18). Pacholke testified that the Committee should have received and
reviewed Hampton’s substantiated PREA reports so that they could have considered the
abuses occurring to her, the mental health counseling needed, and how to keep her safe (Id.,
p. 25). Indeed, based on the omissions in several of the reports, Pacholke concluded that the
Committee did no meaningful review of Hampton’s housing placement (Doc. 97, p. 21).
In addition to seeking a transfer to a women’s prison, Hampton also has made
repeated requests to be removed from segregation. Hampton asserts she has spent much of
the last two years in segregation, which causes her panic attacks, exacerbates her depression,
and makes her want to kill herself (Doc. 96, pp. 8-9). Before entering segregation, Hampton
participated in psychosocial support groups to help deal with her gender dysphoria. While
in segregation, however, Hampton has been denied access to the transgender support group
(Doc. 98, p. 9). Instead of group therapy, Hampton participates in weekly, one-hour,
individual sessions with Jamie Weigand, a mental health professional, to discuss her
transgender issues (Doc. 56-2, p. 4).
Weigand testified in her deposition that at almost every session Hampton has been
fixated on her placement in segregation and repeatedly reported feeling depressed (Id., pp.
8, 11-12). Yet, Weigand said she has not personally observed any negative effects or
decompensation from Hampton being in segregation (Id., p. 8). She did admit, however, that
Hampton’s “depression may be increased because of that extended period of time locked in
her cell.” (Id., p. 12). Hampton has attempted suicide multiple times—at least twice since
being transferred to Dixon (Doc. 99, p. 82). Assistant Warden Wilks testified that he believed
Hampton was doing well at Dixon, but acknowledged he was unaware Hampton had tried
to commit suicide twice (Doc. 99, p. 82). He agreed that someone who has attempted suicide

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is not adjusting well (Id., p. 83).
According to Dr. Brown, while she is in segregation, Hampton is not receiving the
medical services necessary to support her transition, including the transgender support
group, which he considers inadequate care of her gender dysphoria (Doc. 98, p. 9). Dr. Brown
testified that continued placement in segregation is exacerbating Hampton’s symptoms and
placing her at risk of suicide or auto-castration and subsequent death by exsanguination, i.e.,
bleeding to death (Id., pp. 10-11). Dr. Brown also noted that Hampton has lost 75 pounds in
prolonged segregation not due to any efforts to lose weight (Id., p. 42). He explained that
weight loss is a nonspecific symptom often associated with depression or decompensation
(Id.). Based on his interview with Hampton, as well as a review of her medical records, Dr.
Brown concluded that there is no medical justification whatsoever for housing her in a men’s
prison and that her continued placement at Dixon places her at risk both mentally and
physically (Id., p. 9).
With regard to the Committee’s concern that she is a violent offender, Hampton
acknowledges she has received numerous disciplinary tickets throughout her incarceration,
but asserts they were issued as a result of defending herself or in retaliation for filing
complaints. For example, while housed at Hill Correctional Center, Hampton received a
disciplinary ticket related to an incident where a large man ran into her cell and began
attacking her while she was on the toilet (Doc. 96, p. 47). Hampton fought back in self-defense
but was charged with assaulting the other inmate (Id.). On another occasion in July 2017,
Hampton received a disciplinary ticket for hugging and kissing her cellmate even though she
told Internal Affairs that IDOC staff made them do it (Id., p. 48). As a result, she was
sentenced, among other things, with two months of segregation.

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According to Pacholke, many of Hampton’s tickets were issued for low-level
violations that “support [Hampton’s] own view of her gender identity” like calling an officer
“hey girl,” destroying state property by modifying her clothing, and making and wearing
thong underwear (Doc. 97, p. 34).
Other tickets were for more serious violations. On February 18, 2018, Hampton
received a ticket for kicking an officer multiple times (Doc. 97, p. 35). The officer was taking
Hampton to the segregation yard when Hampton began to pull away stating that she wanted
to go to her “special cage.” (Id.) The officer attempted to regain control of Hampton and
explain where she was going, but Hampton mule-kicked him in the leg (Id.). Pacholke
testified that it was significant that Hampton wanted to go to her “special cage,” because
perhaps all she was trying to say was “This yard is safer for me.” (Doc. 97, pp. 35-36). Yet, he
acknowledged that striking the officer was inappropriate (Id.). He also testified that he would
have considered Hampton’s substantiated PREA complaint from just a few weeks prior when
deciding what discipline to impose.
Hampton received another ticket on June 25, 2018, for possession of a “gaff,” which,
as explained by Dr. Brown, is a thong used by trans women to compress their genitals against
their bodies to create a smoother appearance and keep the genitals from moving around (Doc.
98, p. 18). Dr. Brown stated that it is “unfortunate” that Hampton has been acknowledged as
transgender, diagnosed with gender dysphoria, has received hormones for more than two
years, and has breasts, but yet is not allowed to have female underwear (Id., p. 19). Then when
she modifies her underwear because of her gender dysphoria, the IDOC views it as
destruction of government property (Id.). He testified it is very common for transgender
inmates with gender dysphoria to do whatever is necessary to develop their own underwear

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when it is not being provided by the prison (Id.). Dr. Brown concluded that Hampton’s
actions indicate she has inadequately treated gender dysphoria and is attempting to treat
herself (Id., p. 23).
On June 26, 2018, Hampton was charged with assault of another offender (Id., p. 41).
The Adjustment Committee later found her guilty based on witness statements that she
slapped the offender on the face, threw four or five punches at him, then began choking him,
telling him to say, “I’m sorry.” (Id.). After the offender said he was sorry, Hampton let him
go (Id., pp. 41-42). The informants stated that Hampton was the aggressor and the other
offender did not fight back (Id.). Hampton testified at the evidentiary hearing that this
incident occurred after the other inmate touched her buttocks and got upset when she said
she was not interested in him sexually (Doc. 96, p. 49). He later tried to sweet talk her and
reached to grab her buttocks again, but Hampton smacked his hand away (Id.). She claimed
the other inmate then punched her in the face, and the ticket she received was for defending
herself (Id., p. 50).
Hampton received yet another disciplinary ticket on June 26, 2018, for assault and
disobeying a direct order for refusing to cuff up (Doc. 97, pp. 43-44). A lieutenant had to
pepper spray Hampton to get her to comply with the order to cuff up and move to
segregation (Id., p. 44). Hampton then jumped up on a chair and began to throw closed-fist
punches at a staff member and the lieutenant (Id., p. 45). She was given four months of
segregation for this incident. Pacholke admitted this is a serious misconduct report but
opined that it should be viewed in context of her overall experience in the system (Id.).
In August 2018, Hampton was disciplined for sexual misconduct and damage or
misuse of property when she danced in a sexually provocative way in the yard (Doc. 97, p.

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29). Approximately 53 minutes of video surveillance was recorded of the incident, which
shows Hampton flirting with other offenders, suggestively dancing, flashing them, kissing
and hugging them, and modifying her clothing (Id., p. 31). Pacholke criticized the IDOC for
using the video to build a case against Hampton to keep her in segregation rather than
intervening and acknowledging that this is inappropriate and unsafe conduct (Id.). In
Pacholke’s opinion, what the video shows is a woman on a male yard (Id., p. 32). Pacholke
opined that the IDOC has not considered that Hampton’s placement—in a men’s prison, in
segregation, and in close range to those who have assaulted her—might be driving her
behavior and misbehavior (Id., p. 39). In fact, he stated, these violations reinforce his opinion
that she should be housed in a women’s facility (Id., pp. 32, 46). Pacholke noted that the IDOC
has given Hampton hormones and feminizing clothing, including a sports bra, but then does
everything in its power to place her anywhere but a female facility, as if Hampton “needs to
earn her way into the proper gender placement.” (Id.)
Dr. Reister disagreed with the idea that transgender inmates must “earn their way”
into a certain facility but did agree that Hampton’s aggression toward peers and staff is the
result of her reacting to people misgendering and mistreating her (Doc. 100, pp. 28, 38). He
noted that Hampton turns to self-protection when she feels threatened to gain a sense of
control over her environment (Id., p. 49). Dr. Reister, who has created a four-hour training on
transgender mental health care for the IDOC mental health staff, suggested that it would be
beneficial for correctional officers and other staff to be trained on being trauma informed (Id.,
p. 52).

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DISCUSSION
I.

Exhaustion of Administrative Remedies
Before addressing the merits of Hampton’s motion for preliminary injunction, the

Court must determine whether she has exhausted her administrative remedies with regard
to the injunctive relief she seeks.
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be
brought with respect to prison conditions under Section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is
a precondition to bringing suit, and the Seventh Circuit requires strict adherence to the
PLRA’s requirements. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Failure to exhaust
administrative remedies is an affirmative defense; defendants bear the burden of proving a
failure to exhaust. See Jones v. Bock, 549 U.S. 199, 216 (2007).
Under the PLRA, an inmate must take all steps required by the prison’s grievance
system to properly exhaust his or her administrative remedies. Ford v. Johnson, 362 F.3d 395,
397 (7th Cir. 2004); Pozo v. McCaughtry, 286 F.3d 1022, 1023–24 (7th Cir. 2002). The purpose of
exhaustion is to give prison officials an opportunity to address the inmate’s claims internally,
prior to federal litigation. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). When officials have
been afforded this opportunity, the prisoner has properly exhausted all available remedies.
Id.
An emergency does not exempt an inmate from exhausting his administrative
remedies. Maxey v. Cross, No. 14-CV-01263-JPG-SCW, 2015 WL 507213, at *4 (S.D. Ill. Feb. 5,
2015). Instead, Illinois has an emergency grievance procedure for prisoners who claim to be

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in urgent need of attention. Fletcher v. Menard Correctional Center, 623 F.3d 1171, 1174 (7th Cir.
2010) (citing 20 ILL. ADMIN. CODE. § 504.840). Under that procedure, am emergency grievance
is forwarded directly to the warden, who determines whether “there is a substantial risk of
imminent personal injury or other serious or irreparable harm” to the inmate. Id. (citing §
504.840(a)). If there is such a risk, the grievance is handled on an emergency basis, and the
warden is required to tell the inmate what action, if any, will be taken in response to the
alleged danger. Id. (citing § 504.840(b)).
When prison officials fail to respond to inmate grievances, the Seventh Circuit has
held that administrative remedies are “unavailable” to the prisoner. Lewis v. Washington, 300
F.3d 829, 833 (7th Cir. 2002). At that point, the inmate is deemed to have exhausted his claims.
See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (a remedy can be unavailable to a
prisoner if the prison does not respond to the grievance or uses misconduct to prevent a
prisoner from exhausting his resources); Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir. 2000)
(an inmate is not required to appeal his grievance if he submits the grievance to the proper
authorities but never receives a response).
How long a prisoner must wait to file suit after submitting his or her emergency
grievance, however, has not definitively been decided by the Seventh Circuit. In Fletcher, the
inmate waited only two days after filing his emergency grievance before filing his lawsuit,
which the Court of Appeals found to be insufficient under the circumstances of that case.
Fletcher, 623 F.3d at 1174-75. On the other hand, in Muhammad v. McAdory, the Seventh Circuit
found that a genuine issue of material fact existed concerning whether prison officials
thwarted the plaintiff’s efforts to exhaust his administrative remedies when they did not
respond to his emergency grievance 51 days after he filed it. Muhammad v. McAdory, 214 F.

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App’x 610, 613 (7th Cir. 2007). The undersigned district judge has found that waiting sixteen
days after filing an emergency grievance may be sufficient to exhaust, particularly when the
inmate is in imminent danger of harm from a cellmate. Godfrey v. Harrington, 13-cv-0280-NJRDGW, 2015 WL 1228829, at *7 (S.D. Ill. Mar. 16, 2015).
In this case, it is undisputed that Hampton filed an emergency grievance dated
February 7, 2018, while housed at Lawrence Correctional Center (Doc. 37, p. 3). The
emergency grievance stated that Hampton was in danger as a woman placed in a man’s
prison and that, while in segregation, she had not received the mental health treatment
required by IDOC rules, the Rasho settlement agreement, 1 the Americans with Disabilities
Act, the Rehabilitation Act, and the Eighth Amendment (Doc. 37-1). Hampton requested
relief in the form of a transfer to a women’s prison and release from segregation, an updated
treatment plan, a review of her medication by a psychiatrist, and group and other therapy
required to treat her serious mental illnesses (Id.).
The grievance contains the notation “E91 RCVD 2/8/28.” (Id.) The grievance also
contains a stamp indicating it was received by the grievance office at Lawrence on February
14, 2018 (Id.). There is no response from any prison official on the grievance form. Defendants
state that “Plaintiff did not exhaust this grievance” but provide absolutely no argument or
evidence in support of that statement. 2 Defendants reiterate that same conclusory statement
in their supplemental memorandum of law in support of their motion for summary judgment
on the issue of exhaustion (Doc. 86). They further argue that no grievances have been
exhausted relating to Hampton’s claims that she has been subject to harassment, beatings,

See Rasho v. Walker, 1:07-cv-1298-MMM (C.D. Ill.).
Defendants also provide no explanation as to why the grievance apparently went to the grievance office rather
than to the warden despite being marked as an emergency.

1
2

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threats, segregation, or a failure to protect by the IDOC, and that no grievances have been
exhausted with regard to her rights to equal protection, mental health care, or
accommodations under the ADA (Id.).
As an initial matter, the Court finds that Hampton’s February 7, 2018 grievance more
than adequately grieves the denial of appropriate mental health treatment while in
segregation (see Doc. 37-1). Further, her statement that she is a woman and in danger because
she is improperly housed by the IDOC in a male prison is sufficient to grieve her claim that
she belongs in a female correctional center. As held by the Seventh Circuit in Strong v. David,
297 F.3d 646, 650 (7th Cir. 2002):
Illinois has not established any rule or regulation prescribing the contents of a
grievance or the necessary degree of factual particularity . . . When the
administrative rulebook is silent, a grievance suffices if it alerts the prison to
the nature of the wrong for which redress is sought. As in a notice-pleading
system, the grievant need not lay out the facts, articulate legal theories, or
demand particular relief. All the grievance need do is object intelligibly to some
asserted shortcoming.
There is no requirement that Hampton specifically grieve her right to equal protection or a
lack of ADA accommodations. It is enough that Hampton asserted the IDOC’s shortcomings
in the form of denying her adequate and appropriate mental health treatment and placing
her in a men’s prison despite being a female.
As for exhaustion of this emergency grievance, Hampton asserts—and Defendants do
not dispute—that she never received a response from the warden. The warden’s failure to
respond to Hampton’s allegations that she was in danger and was not receiving essential and
required mental health treatment, within 29 days of her filing the grievance, rendered the
administrative process unavailable to Hampton, and she is deemed to have exhausted her

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administrative remedies. 3 See Fletcher, 623 F.3d at 1174-75; Muhammad, 214 F. App’x at 613.
II.

Motion for Preliminary Injunction
A preliminary injunction is an “extraordinary and drastic remedy” for which there

must be a “clear showing” that a plaintiff is entitled to relief. Mazurek v. Armstrong, 520 U.S.
968, 972 (1997). The purpose of an injunction is “to minimize the hardship to the parties
pending the ultimate resolution of the lawsuit.” Faheem-El v. Klincar, 841 F.2d 712, 717 (7th
Cir. 1988). To be granted an injunction, a plaintiff has the burden of demonstrating a
reasonable likelihood of success on the merits, no adequate remedy at law, and irreparable
harm absent the injunction. Planned Parenthood v. Commissioner of Indiana State Dep’t Health,
699 F.3d 962, 972 (7th Cir. 2012).
As to the first element, the Court must determine whether the “plaintiff has any
likelihood of success—in other words, a greater than negligible chance of winning.” AM
General Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002). As to the second
element, the absence of an adequate remedy at law is a precondition to any form of equitable
relief. Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984). Finally, the
requirement of irreparable harm eliminates those cases where, although the ultimate relief
sought is equitable, the plaintiff can wait until the end of trial to get that relief. Id. Only if the
plaintiff will suffer irreparable harm in the interim—that is, before a final judgment—can he
or she obtain a preliminary injunction. Id.
Once Hampton has met her burden, the Court must weigh the balance of harm to the
parties if the injunction is granted or denied and evaluate the effect of an injunction on the

This determination is limited solely to Hampton’s requests in her motion for preliminary injunction to be
transferred to a women’s prison and to be released from segregation. Whether Hampton has exhausted her other
claims will be addressed separately by Magistrate Judge Reona J. Daly.
3

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public interest. Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). “This equitable balancing
proceeds on a sliding-scale analysis; the greater the likelihood of success of the merits, the
less heavily the balance of harms must tip in the moving party’s favor.” Id.
The Prison Litigation Reform Act provides that a preliminary injunction must be
“narrowly drawn, extend no further than necessary to correct the harm . . . ,” and “be the
least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). The Seventh
Circuit has described injunctions like the one sought here, requiring an affirmative act by the
defendant, as a mandatory preliminary injunction. Graham v. Med. Mut. of Ohio, 130 F.3d 293,
295 (7th Cir. 1997). Mandatory injunctions are “cautiously viewed and sparingly issued,”
because they require the court to command a defendant to take a particular action. Id. (citing
Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)).
A.

Success on the Merits

A party moving for preliminary injunctive relief need not demonstrate that she has a
likelihood of absolute success on the merits, but rather that her chances are “better than
negligible,” which is a “low threshold.” Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No.
1 Bd. of Educ., 858 F.3d 1034, 1046 (7th Cir. 2017). In this case, Hampton argues she has a
greater than negligible chance of winning on her claims because Defendants have: (1) violated
the Equal Protection Clause by housing her in a men’s prison; (2) violated the Equal
Protection Clause by constantly sexually harassing her; (3) violated the Eighth Amendment
by failing to protect her from sexual and physical assault; and (4) violated the Eighth
Amendment by subjecting her to cruel and unusual punishment.
i.

Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment directs that “all persons

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similarly situated should be treated alike,” thereby protecting against intentional
discrimination by way of classifications that reflect “a bare . . . desire to harm a politically
unpopular group.” Whitaker, 858 F.3d at 1050 (quoting City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)); Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (quoting
Cleburne, 473 U.S. at 446-47). “Generally, state action is presumed to be lawful and will be
upheld if the classification drawn by the statute is rationally related to a legitimate state
interest.” Id. The rational basis test does not apply, however, when discrimination is alleged
based on one’s membership in a protected class. Reget v. City of LaCrosse, 595 F.3d 691, 695
(7th Cir. 2010). In those situations, heightened scrutiny applies. See Whitaker, 858 F.3d at 1050.
Neither the Seventh Circuit nor the Supreme Court has determined whether
transgender individuals constitute a protected class. See id. at 1051 (“[T]his case does not
require us to reach the question of whether transgender status is per se entitled to heightened
scrutiny.”). Other district courts outside the Seventh Circuit, however, have recognized
transgender individuals as either a suspect or quasi-suspect class entitled to heightened
scrutiny. See, e.g., Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208
F. Supp. 3d 850, 872-74 (S.D. Ohio 2016) (concluding that heightened scrutiny applied to equal
protection claim arising from a transgender girl being denied access to the girls’ bathroom
because transgender individuals are a quasi-suspect class).
Even where trans people have not been found to constitute a protected class, the
Seventh Circuit has held that heightened or intermediate scrutiny applies when the
complaint is based on sex discrimination. See Whitaker, 858 F.3d at 1050 (a sex-based
classification is subject to heightened scrutiny, as sex “frequently bears no relation to the
ability to perform or contribute to society”). Under intermediate scrutiny, “classifications by

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gender must serve important governmental objectives and must be substantially related to
achievement of those objectives” in order to be upheld. Craig v. Boren, 429 U.S. 190, 197 (1976).
“When a sex-based classification is used, the burden rests with the state to demonstrate that
its proffered justification is exceedingly persuasive,” not just a hypothesized or post hoc
justification created in response to litigation. Whitaker, 858 F.3d at 1050.
a.

Discrimination by Housing Hampton in a Male Facility

Hampton first argues that the IDOC’s policy of housing cisgender women in women’s
prisons but forcing transgender women to be housed with men based on their assigned
gender at birth, is a classification based on sex that causes her to be treated differently from
similarly situated female inmates. Therefore, heightened scrutiny applies, and the State must
show the classification serves important, genuine governmental objectives and that the
discriminatory means employed (placing transgender females in male prisons) is
substantially related to the achievement of those objectives.
Defendants make no express argument that rational basis review applies rather than
heightened scrutiny, 4 although they do argue that an inmate’s placement is not uniformly
based on the inmate’s sex at birth (the implication being there is no sex-based classification).
While they acknowledge that IDOC inmates are initially housed according to their genitalia,
they assert that at least two transgender inmates have been transferred to female institutions
after a case-by-case determination by the Transgender Care Review Committee.
Furthermore, the Committee in this case considered numerous factors, including security,
Hampton’s aggression toward staff and other inmates, her adjustment, her mental health,

Defendants also make no argument that the category of “similarly situated” individuals should be other
transgender inmates or other inmates with gender dysphoria rather than other female inmates. Accordingly, the
Court considers that issue conceded.
4

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and her medical health. Defendants note that an offender who is denied transfer by the
Committee can be re-reviewed and follow-up meetings can be scheduled on an as-needed
basis.
While the Court understands that consideration is later given to an inmate’s desire to
be transferred to the prison of their gender identity, the fact remains that inmates are, by
default, placed in a facility based on their genitalia (see Doc. 59-1, p. 21-22). Therefore, a sexbased classification is used, and intermediate scrutiny must be applied. Under intermediate
scrutiny, the question becomes: is the IDOC’s policy of placing transgender inmates in the
prison of their assigned sex at birth substantially related to the achievement of prison
security?
The State has presented no evidence that transgender inmates generally pose a greater
security threat than cisgender inmates, and anyway, “generalized concerns for prison
security are insufficient to meet the ‘demanding’ burden placed on the State to justify sexbased classifications.” Doe v. Massachusetts Dep’t of Corr., No. CV 17-12255-RGS, 2018 WL
2994403, at *10 (D. Mass. June 14, 2018) (citing United States v. Virginia, 518 U.S. 515, 531
(1996)).
With regard to Hampton specifically, Defendants point to her history of disciplinary
problems as evidence that, in this case, placing her in a male prison is essential to maintain
prison security. Defendants argue that the Committee met several times to discuss
Hampton’s placement, but found she had been aggressive and violent toward staff and other
offenders.
The Court first notes that the Committee’s reports do not reflect any discussion of
Hampton’s aggression toward others until July 16, 2018—after Hampton’s motion for

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preliminary injunction had been filed—indicating it may be a forbidden post hoc justification
created in response to litigation. Moreover, as pointed out by Hampton, female inmates can
be equally aggressive and violent, perhaps more so than Hampton. Yet, no one would
suggest those women should be housed in the men’s division. Furthermore, the Committee
considered her assaults on prison staff and other inmates when reviewing her placement, but
it never reviewed her disciplinary reports, grievances, or substantiated PREA complaints to
have the full picture. And while the Committee considered the safety of female inmates at
Logan should Hampton be transferred, it never considered whether Hampton felt safe or
secure in a men’s prison. In fact, the Committee never even interviewed Hampton personally.
Based on these facts, the Court is not convinced that the IDOC’s policy of placing
transgender inmates in the facility of their assigned sex at birth is substantially related to the
achievement of prison security. Furthermore, there is some evidence that the concern about
Hampton’s aggressiveness could be a post hoc justification created in response to litigation.
Accordingly, the Court finds that Hampton has a greater than negligible chance of success
on the merits of her equal protection claim with regard to her placement in a male prison.
b.

Sexual Harassment

Hampton next argues Defendants have violated the Equal Protection Clause by
intentionally subjecting her to verbal and physical sexual harassment that male inmates do
not endure because she is transgender. In response, Defendants simply argue “there is no
proof of discrimination against Hampton by subjecting her to constant verbal sexual
harassment, insult, threat, and intimidation that males do not endure.” (Doc. 55, pp. 8-9).
To succeed on her sexual harassment claim under the Equal Protection Clause,
Hampton must establish (1) the harassment was intentional and based on sex and (2) the

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harassment was “sufficiently severe or pervasive.” Trautvetter v. Quick, 916 F.2d 1140, 1149
(7th Cir. 1990); see also Adair v. Hunter, 236 F. Supp. 3d 1034, 140 (E.D. Tenn. 2017) (while
isolated incidents of verbal harassment do not rise to the level of constitutional violations,
“where, as here, a plaintiff alleges ongoing harassment, the equal protection clause applies.”).
“[A] plaintiff wishing to sustain an equal protection claim of sexual harassment must show
both ‘sexual harassment’ and an ‘intent’ to harass based upon that plaintiff’s membership in
a particular class of citizens.” Id.
At the evidentiary hearing, Hampton testified to constant, severe harassment,
including being called a fag, it, he-she, dick sucker, dick eater, and other derogatory terms
based on her status as transgender. Defendants presented no evidence refuting that
testimony, except for Correctional Counselor Brandi Hendrix, who disavowed ever using the
term “fag” to refer to Hampton (Doc. 99, p. 112). Hampton also testified to multiple situations
where IDOC staff forced her to engage in sexual acts with other inmates or with the staff
themselves, and she complained of being groped and harassed daily by inmates.
While this Court is not blind to the fact that male inmates also face sexual and verbal
harassment from other inmates and staff, Defendants presented no evidence that such abuse
rises to the same level Hampton has experienced. They also make no real argument in
support of their position. Accordingly, the Court finds Hampton has a likelihood of success
on the merits of her equal protection claim with regard to verbal and physical sexual
harassment.
ii.

Eighth Amendment

Hampton also asserts she will succeed on the merits of her Eighth Amendment failure
to protect and deliberate indifference to conditions of confinement claims.

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a.

Failure to Protect Against Sexual and Physical Abuse

Prison officials have a duty under the Eighth Amendment “to protect prisoners from
violence at the hands of other prisoners,” Farmer v. Brennan, 511 U.S. 825, 833 (1994), and, by
extension, correctional officers. “Omissions can violate civil rights, and ‘under certain
circumstances a state actor’s failure to intervene renders him or her culpable under § 1983.’”
Chavez v. Illinois State Police, 251 F.3d 612, 952-3 (7th Cir. 2001) (quoting Yang v. Hardin, 37
F.3d 282, 285 (7th Cir. 1994)).
To succeed on such a claim, an inmate must first demonstrate she is “incarcerated
under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Second,
the inmate must show prison officials acted with deliberate indifference to that risk, which
requires a subjective inquiry into a prison official’s state of mind. Farmer, 511 U.S. at 838-39.
“[T]he official must both be aware of facts from which the inference could be drawn that a
substantial risk or serious harm exists, and he must also draw the inference.” Id. at 837.
A prisoner may demonstrate that prison officials were aware of a specific, impending,
and substantial threat to her safety “by showing that [s]he complained to prison officials
about a specific threat to [her] safety.” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (quoting
McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991)). The prison official may be held liable
only if he knows an inmate faces a substantial risk of serious harm and “disregards that risk
by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. A plaintiff also
“can establish exposure to a significantly serious risk of harm by showing that [s]he belongs
to an identifiable group of prisoners who are frequently singled out for violent attack by other
inmates.” Id. at 843 (quotation omitted).
Hampton argues Defendants know she is transgender, is vulnerable, and faces a

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substantial risk of serious harm from other prisoners and staff. They also are aware that she
has been sexually and physically abused at other men’s prisons by way of her other lawsuits,
her grievances and PREA complaints, and prior Internal Affairs investigations. Yet,
Defendants disregarded that risk when they failed to protect her from other prisoners who
have sexually assaulted her.
In response, Defendants argue they are aware of only one alleged sexual issue with
another inmate, and that inmate was separated from Hampton immediately. The only other
incident of which they are aware is the incident where Hampton assaulted another inmate,
which Hampton testified occurred when that inmate continually hit her on the buttocks and
grabbed her breasts.
Again, the Court finds Hampton has more than a negligible chance of success on the
merits of this claim. Hampton has filed numerous grievances and several PREA complaints
that were ultimately found substantiated. She testified that nothing was done after those
substantiated PREA complaints to protect her from further verbal and sexual harassment and
abuse. When Hampton told Dixon staff about the inmate that was grabbing her for a week
and a half, they did nothing. Instead, she had to call the PREA hotline. Defendants presented
no evidence to the contrary. Indeed, the Assistant Warden of Operations at Dixon could not
testify to any actions taken to protect Hampton after her PREA allegations were deemed
substantiated (Doc. 99, p. 78). Based on this evidence, the Court finds Hampton has a
likelihood of success on her failure to protect claim.
b.

Deliberate Indifference to Conditions of Confinement

Hampton next argues she will prevail on her Eighth Amendment conditions of
confinement claim related to her prolonged stay in segregation. She asserts Defendants

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housed her in conditions constituting cruel and unusual punishment when those conditions
are worsening her mental illness and causing her extreme emotional pain and suffering—to
the point she has attempted suicide multiple times.
In a case involving conditions of confinement in a prison, two elements are required
to establish violations of the Eighth Amendment’s cruel and unusual punishment clause.
McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1993). First, the prisoner must show that, objectively,
the conditions deny the inmate “the minimal civilized measure of life’s necessities,” creating
an excessive risk to the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). Not all prison conditions trigger Eighth
Amendment scrutiny—only deprivations of basic human needs like food, medical care,
sanitation, and physical safety. Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Second, from a
subjective point of view, the inmate must demonstrate that the defendants acted with a
sufficiently culpable state of mind, namely, deliberate indifference. McNeil, 16 F.3d at 124.
Deliberate indifference exists only where an official “knows of and disregards an excessive
risk to inmate health or safety.” Farmer, 511 U.S. at 837-38. “’Deliberate indifference’ means
recklessness in a criminal, subjective sense: disregarding a risk of danger so substantial that
knowledge of the danger can be inferred.” James v. Milwaukee Cty., 956 F.2d 696, 700 (7th Cir.
1992). Negligence, even gross negligence, does not constitute deliberate indifference. Garvin
v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001).
Defendants rely on the affidavit of Jamie Weigand, a mental health professional who
met with Hampton in segregation for one-hour, weekly, individual sessions to discuss her
transgender issues and concerns as well as to devise a treatment plan (Doc. 56-2, p. 4). Ms.
Weigand testified she has not personally observed any negative effects or decompensation

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from Hampton being in segregation and explained that Hampton is social, upbeat, and
smiling when she sees her (Id., p. 8). Hampton also participates in group therapy for longterm segregation inmates once per week, she showers and takes care of her hygiene, she is
out of her cell three to four hours per day, and she gets two hours of yard time per day.
Defendants also presented evidence that a mental health professional was consulted
each time Hampton received disciplinary violations (Doc. 98, pp. 79-82). Those professionals
often concluded that Hampton’s behavior was not the result of her mental health issues (Id.).
The mental health professionals also evaluated whether placement in segregation would
present a risk of harm to Hampton, and they determined that it would not (Id.). Defendants
then acted in accordance with the recommendations of the mental health professionals
regarding discipline, often imposing less segregation time than recommended or no
segregation time at all (Id.). Defendants argue they are entitled to rely on the
recommendations of mental health professionals, even if there are others who would
disagree with those conclusions.
The Court agrees that Defendants are entitled to rely on the recommendations of the
mental health professionals who found that placement in segregation would not be a risk to
Hampton’s mental health. See Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (nonmedical
administrators are entitled to defer to the judgment of jail health professionals). Thus,
Hampton has not shown Defendants acted with the requisite deliberate difference.
Furthermore, there is no evidence that Hampton has been deprived of any life’s basic
necessities, as required to meet the objective prong of the test. She appears to be receiving
adequate medical care, has one-on-one sessions with Weigand to address her transgender
issues, attends group therapy for long-term segregation inmates several times per week, is

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receiving treatment for her bipolar disorder (although she refuses to take her medication),
has access to showers and proper hygiene care, and spends two hours a day at yard. The only
program Hampton does not have access to is the transgender support group, which is not
one of life’s necessities, despite its importance to Hampton’s mental health.
Accordingly, the Court finds—at this point—that Hampton has not shown a
likelihood of success on the merits of this claim. See Marion v. Columbia Corr. Inst., 559 F.3d
693, 697–98 (7th Cir. 2009) (“a liberty interest may arise if the length of segregated confinement
is substantial and the record reveals that the conditions of confinement are unusually harsh”).
Additionally, the Court is mindful of the Rasho settlement agreement, of which Hampton is
a plaintiff class member, and the recent order granting permanent injunctive relief in that
case. See Rasho v. Walker, 1:07-cv-1298-MMM (C.D. Ill. Oct. 30, 2018). The Court is optimistic
that Hampton’s mental health issues in segregation will be addressed by the permanent
injunction and the IDOC’s proposed actions to address the constitutional deficiencies
addressed by the Rasho court.
B.

Adequate Remedy at Law

Hampton argues she has no adequate remedy at law because money will not make
her whole or protect her from the physical and emotional abuse she is currently suffering.
Defendants make no argument in opposition. Therefore, the Court considers this element
conceded by Defendants.
C.

Irreparable Harm

As to the element of irreparable harm, Hampton first argues that the continuing
deprivation of her Eighth and Fourteenth Amendment rights constitutes irreparable harm
itself. Second, her physical safety is at risk because Defendants have refused to protect her

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from other prisoners. And third, her mental health is at risk when she has been forced to
endure constant sexual and physical abuse. Hampton notes that she has tried to commit
suicide several times already, and there is a serious risk she will continue to have suicidal
ideations.
Defendants, on the other hand, assert the evidence shows she is not suffering
irreparable harm, her current needs are being met, and she is in a safe environment. They
also claim her allegation that Defendants have said they will not protect her are “patently
false.” While she is currently in segregation, she is doing well, and she will be moved from
segregation when her time is served.
Contrary to Defendants’ argument, the evidence indicates Hampton is not in a safe
environment. The Court agrees with Hampton that her physical safety is at risk when she
continues to be sexually assaulted and prison officials refuse to do anything to protect her.
The Court also agrees that Hampton’s mental health is at risk of degrading further. Hampton
testified that the verbal harassment and discrimination she endures daily from prison staff
causes her to feel depressed, disrespected, and humiliated (Doc. 96, pp. 13, 20). Given these
circumstances, the Court finds that Hampton may suffer irreparable harm absent injunctive
relief prior to trial.
E.

Balance of Equities

Hampton met her burden of demonstrating a likelihood of success on the merits of
her Equal Protection and failure to protect claims, she has shown she has no adequate remedy
at law, and she has demonstrated irreparable harm. Accordingly, the Court must now weigh
the balance of harm to the parties if the injunction is granted or denied and also evaluate the
effect of an injunction on the public interest. Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013).

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The greater the likelihood of success of the merits, the less heavily the balance of harms must
tip in Hampton’s favor. See id.
Hampton argues that requiring Defendants to house her in a women’s facility and
protect her from harm will further the public interest and will not harm Defendants in any
way. She asserts that an injunction would ensure her health and safety and protect her from
abusive staff and prisoners, while causing Defendants minimal harm since transfers of
inmates occur daily. To the extent Defendants claim that transferring her to a women’s prison
would pose a risk to the other women prisoners, she claims this position is unfounded given
that she is chemically castrated. Moreover, it is in the public interest to ensure that Hampton’s
constitutional rights are not violated by correctional officers.
In response, Defendants argue that granting a preliminary injunction would endanger
the public interest by putting the Court in a position of directing where Hampton (and other
transgender inmates) should be housed, therefore interfering with the operations of the IDOC
“in a situation where Plaintiff is merely attempting to manipulate the system.” They again
argue she is safe, in a protected area at Dixon, showers separately, is celled separately, has
access to group and individual therapy, mental health counseling, library, yard, and
commissary. She is escorted when out of her cell. And while she complains of verbal and
sexual abuse, there is no proof of either.
Generally, “federal courts, while most reluctant to interfere with the internal
administration of state prisons . . . nevertheless will intervene to remedy unjustified
violations of those rights retained by prisoners.” Williams v. Lane, 851 F.2d 867, 871 (7th Cir.
1988); Bell v. Wolfish, 441 U.S. 520, 547 (1979) (courts generally do not interfere with prison
administrative matters in the absence of constitutional concerns). Thus, while courts usually

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hesitate to interfere with a routine transfer of an inmate from one prison to another, when an
inmate’s constitutional rights are at issue, a district court can intervene.
Still, the Court is not convinced at this point that ordering the IDOC to transfer
Hampton to Logan Correctional Center is in the best interest of the parties or the public.
Transferring Hampton to Logan would not cure everything; IDOC staff are just as likely to
harass Hampton at Logan, female prisoners could sexually assault Hampton, and other
unforeseen problems may arise. For now, the Court reserves ruling on the issue of whether
Hampton should be transferred to a women’s prison until after the constitutional issues are
resolved at trial. See 18 U.S.C. § 3626(a)(2) (a preliminary injunction must be “narrowly
drawn, extend no further than necessary to correct the harm . . . ,” and “be the least intrusive
means necessary to correct that harm”).
In the meantime, however, other action can and should be taken immediately to
address the institutional problems that surfaced during the evidentiary hearing—issues that
could be addressed by training prison staff on transgender issues. As explained by Dr.
Reister, Hampton is particularly reactive to people who misgender her and do not recognize
her as a woman. And when she feels threatened, she resorts to aggressive tactics that allow
her to gain a sense of control. At the same time, both Assistant Warden Wilks and
Correctional Counselor Hendrix testified they consider Hampton to be a man and repeatedly
used male pronouns when referring to her (see generally Doc. 99). Neither of these employees
were at all aware of the concept of misgendering or how it affects a trans individual’s mental
health (Id., p. 88). And while they have had training on how to physically search transgender
offenders, they have had no training on gender dysphoria or “dealing with transgender
inmates” (Id., pp. 92, 110-11).

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It seems that training IDOC staff on a few basic concepts (as defense counsel called it,
“sensitivity training”) would not only improve Hampton’s mental health but also reduce her
aggression—and potentially address her issue of constantly being placed in segregation. This
would come at little cost to the IDOC, as Dr. Reister has already developed a four-hour
training program on transgender mental health for the mental health staff (Doc. 100, p. 11)
and other programs are likely available. Dr. Reister indicated they are in the early stages of
planning training for other staff as well (Id.). Implementing this training and educating staff
on how to treat transgender inmates (and all inmates, for that matter) would benefit
Hampton while causing little harm to Defendants.
Another action that would cause little harm to Defendants but greatly benefit
Hampton is to allow her to attend the transgender support group even when she is in
segregation. The Court finds credence in Dr. Reister’s testimony that he recommended
Hampton go to Dixon because it is a mental health hub, it is staffed by people who have
experience working with manic inmates, it has a large transgender population, and it has an
active transgender support group (Doc. 11, p. 27). Unfortunately, Hampton has not had
access to the group while she is in segregation. That must change.
Finally, while the Court will not, at this point, order Hampton to be transferred to
Logan, it strongly suggests that the Committee fully consider all evidence for and against a
transfer when it meets this month, including interviewing Hampton herself. A review of
Hampton’s full mental health and disciplinary history 5 in the context of her substantiated
PREA complaints and grievances may lead the Committee itself to conclude that Hampton

This evaluation should include considering whether Hampton’s conduct leading to her discipline is a result of
misgendering and the staff’s general ignorance of transgender issues, such as (1) refusing to provide Hampton
with women’s underwear and then disciplining her for modifying her undergarments, and (2) calling her names
and then disciplining her for acting out in response to the harassment.

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is safest in a women’s prison. If not, the Court can revisit the issue after the constitutional
issues have been decided at trial.
CONCLUSION
For these reasons, the Court GRANTS in part Plaintiff’s Motion for Preliminary
Injunction and ORDERS Defendants to provide an update to the Court within 14 days as to
steps it will take to: (1) train all correctional staff on transgender issues; (2) allow Hampton
to attend the transgender support group while she is in segregation; and (3) ensure the
Transgender Care Review Committee considers all evidence for and against transferring
Hampton to a women’s facility. Plaintiff may file a response to Defendants’ filing on or before
November 30, 2018.
The Court DENIES the Motion for Preliminary Injunction to the extent Hampton asks
the Court to order Defendants to release her from segregation.
IT IS SO ORDERED.
DATED: November 7, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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