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Hardeman v. Smith

United States District Court, E.D. Oklahoma

March 28, 2018

JOHNNY L. HARDEMAN, a.k.a. Lo´re Pink,[1] Plaintiff,
JESSICA SMITH, et al., Defendants.



         This action is before the Court on Defendants' motion to dismiss or for summary judgment. The Court has before it for consideration Plaintiff's complaint (Dkt. 1), Defendants' motion (Dkt. 55), Plaintiff's response to the motion (Dkt. 58), and a special report prepared by the Oklahoma Department of Corrections (“DOC”) at the direction of the Court, in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (Dkt. 54).

         Plaintiff, a pro se prisoner in the custody of the DOC who is incarcerated at Oklahoma State Penitentiary (“OSP”) in McAlester, Oklahoma, brings this action under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations during incarceration at OSP. The defendants are Jessica Smith, PREA Monitor/OSP Assistant Warden; Jerry Perry, OSP Unit Manager; Heather Diaz, OSP Psych Services; Patricia Sorrells, OSP Medical Administrator; Mark Knutson, Director's Designee; David Parker, DOC Regional Director; and OSP Warden Jerry Chrisman.

         Plaintiff states the following with regard to the nature of the case:

I am a transgender woman incarcerated in a male prison facility. I am being openly discriminated [against] in several ways solely because I am transgender. I am not recieving [sic] “any” medical treatment for my gender non-conforimg [sic] disorder. I am placed involuntary [sic] on a harsh segregation unit aganist [sic] my will and not allowed any hearings to show I don't need to be on this eatreme [sic] isolation unit. I am being denied a transfer to a lower security though I fit all the criteria solely because employess [sic] are mad that I file griveances [sic] and complaints. I am being denied: Jobs, Programs, and Parole. Have been assualted [sic] by staff while on this segregated unit. Defendants freeze frame [illegible] policy on not transferring transgender inmates from single cell status is discriminatory.

(Dkt. 1 at 2). Plaintiff has set forth the following grounds for relief:

         Count I: Defendant Patricia Sorrells, OSP Medical Administrator, abruptly stopped medication Plaintiff had taken for 15 years, solely because Plaintiff was filing grievances and complaints.

         Count II: Defendant Jerry Perry, OSP Unit Manager, refused to give Plaintiff a hearing to explain the reason for Plaintiff's solitary confinement and single-cell status. Perry also allegedly denied Plaintiff a job, program, and parole investigation. Plaintiff's placement in isolated conditions resulted in denied access to care.

         Count III: On February 9, 2016, Plaintiff filed an appeal to Defendant Mark Knutson, Director's Designee of the Administrative Review Authority (“ARA”). The ARA responded on February 17, 2016, eight days later. Although DOC policy states an inmate has 15 days to file an appeal, Knutson stated Plaintiff's appeal was untimely. Plaintiff alleges Knutson's actions were intended to delay and deny access to treatment and care.

         Count IV: On or around September 2015, Plaintiff was introduced to Defendant Heather Diaz by Psych Services Employee Mr. Garvin. Garvin explained to Diaz that Plaintiff had been struggling with gender identity while at the supermax facility. Diaz immediately began using the terms “her, ” “girl, ” and “woman, ” when speaking with Plaintiff. Diaz then instructed Plaintiff to submit a Request to Staff (“RTS”) with all of Plaintiff's “gender identity needs” to Diaz and Dr. Stem. Plaintiff followed Diaz's instructions but received no response to the RTS. After waiting months, Plaintiff asked Diaz why there had been no response to the RTS. Plaintiff alleges having experienced symptoms from being in solitary confinement, such as mood swings, migraines for months, dizziness, and chest and stomach pains. Diaz's only response consisted of denials, delays, and deceit. Plaintiff asked to see a transgender specialist and was attacked by staff for self-presentation according to Plaintiff's gender feelings. Plaintiff did not have a one-on-one meeting with Diaz.

         Plaintiff followed the new prison policy for gender non-conforming offenders, OP-140147, and gave Diaz a gender referral request regarding clothing, housing, needs, etc. Diaz, however, allegedly did not scan the referral, and Plaintiff was denied treatments that were freely given to other inmates.

         Count V: Defendant Jessica Smith, the facility Prison Rape Elimination Act (“PREA”) monitor and assistant warden, assigned Plaintiff to a security housing unit (“SHU”) without explaining why the placement was made. Plaintiff had been double-celled, but when the transfer to the SHU occurred, the assignment was for an extremely isolated single cell. Plaintiff asserts the SHU placement did not result from a disciplinary matter and claims the assignment was solely because Plaintiff is a gender non-conforming offender. Plaintiff has been on the SHU for over a year and claims to have never received a hearing about the placement or a date for release. Plaintiff alleges this placement violates OP-030601 and OP-140147, which state that the LGBTQ community shall not be placed in dedicated units, except for limited periods of time and with consideration of alternatives. Plaintiff complains that other inmates have transferred to a lower security level, and although Plaintiff meets the criteria, no such transfer has been allowed for Plaintiff, worsening Plaintiff's gender identity. Plaintiff further claims that Smith will not allow a transfer because of Plaintiff's grievances and complaints against Smith and other staff.

         Count VI: Warden Jerry Chrisman allegedly is aware of and is sanctioning Plaintiff's placement in a single cell without prior notice or hearing and without any disciplinary reason. Plaintiff alleges this solitary confinement violates Plaintiff's rights and privileges, as well as prison policies. Chrisman allegedly has failed to correct the illegal actions and conduct of Defendants Diaz, Perry, and Sorrells related to intentional delays and denials of medical care needed by Plaintiff. Defendant Chrisman also allegedly encourages the continuation of this misconduct. Plaintiff asserts that on or about December 22, 2015, Chrisman told Plaintiff that “as long as you are transgender, I will never take you serious, and will leave your ass on lock-up and single celled!” Chrisman also allegedly encouraged the ban on transgender inmates receiving transfers from single-cell status to justify Plaintiff's being on 24-hour lockup with no release date. Other inmates, however, allegedly were transferred from single cells.

         Count VII: Plaintiff allegedly wrote to Defendant DOC Regional Director David Parker on several occasions, begging for assistance with the “torture” inflicted by the defendants. Parker refused to intervene and forced Plaintiff to seek help from the individuals who were causing the problems. Parker's actions or failure to act allegedly contributed to the denial of needed medical care for Plaintiff. Parker has known for decades that Plaintiff walks, talks, and looks like a woman and that Plaintiff has a gender identity disorder. In addition, Plaintiff claims Parker has colluded with the other defendants to deny Plaintiff needed medical care, resulting in Plaintiff's pain and suffering.

         Standard of Review

         Defendants have filed a motion for summary judgment (Dkt. 55). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. In making this determination, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. A party opposing a motion for summary judgment may not simply allege there are disputed issues of fact; rather, the party must support its assertions by citing to the record or by showing the moving party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c). Thus, the inquiry for this Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         Exhaustion of Administrative Remedies

         Defendants allege, among other things, that Plaintiff has failed to exhaust the administrative remedies for any of the claims set forth in the complaint. “No 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). Inmates are required to exhaust available administrative remedies, and suits filed before the exhaustion requirement is met must be dismissed. Booth v. Churner, 532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (citation omitted). Substantial compliance is not sufficient. Id.

         “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Futility is not an exception to the exhaustion requirement. Jernigan, 304 F.3d at 1032. Failure to exhaust is excused only if prison officials impede the prisoner's attempts. Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010).

         Defendants allege that two different versions of DOC's grievance policy were in place during the relevant time periods of Plaintiff's allegations: OP-090125 (effective November 20, 2014) (Dkt. 54-5), and OP-090124 (effective July 19, 2016) (Dkt. 54-4). Defendants have set forth the process as follows:

         “A grievance may be used to address issues regarding conditions of confinement, [and] actions of staff . . . .” (Dkt. 54-4 at 4; Dkt. 54-5 at 6). The first step of the informal resolution begins with talking to appropriate staff within three days of the incident. (Dkt. 54-4 at 7; Dkt. 54-5 at 9). If not resolved, a Request to Staff must be submitted. Id. If, after these steps, the issue is not resolved informally, then an offender grievance must be submitted to the reviewing authority. (Dkt. 54-4 at 9; Dkt. 54-5 at 11. The offender grievance must be submitted by the offender within 15 calendar days from the date of the response to the RTS. Id. Only one issue or incident is allowed per grievance. (Dkt. 54-4 at 10; Dkt. 54-5 at 11). After the reviewing authority answers, an appeal may be made of the reviewing authority's response. (Dkt. 54-4 at 13; Dkt. 54-5 at 14). A final appeal may be made to the Administrative Review Authority (“ARA”). (Dkt. 54-4 at 13; Dkt. 54-5 at 15). A final ruling from the ARA is required to properly exhaust administrative remedies. (Dkt. 54-4 at 15; Dkt. 54-5 at 17).

         Defendants allege Plaintiff attempted to follow the DOC procedures for filing grievances, but the administrative remedies were not properly and fully exhausted in compliance with the PLRA, as evidenced by the documentation attached to the complaint. To properly exhaust administrative remedies, a final ruling from the ARA is mandatory.

         Grievance 2015-33

         On September 2, 2015, Plaintiff filed a “sensitive grievance, ” complaining there had been no response to the various medical requests and RTSs submitted to staff regarding a request for hormone treatment. (Dkt. 54-7 at 2). The grievance, however, did not include the required documentation of an RTS, so it was returned. Id. at 3. On September 22, 2015, Plaintiff appealed to the Medical Services Administration. Id. at 4. The appeal was returned unanswered, because the grievance issue was not of a sensitive nature and the standard grievance process was required. Id. at 5. No. further action was taken by Plaintiff.

         Prison Rape Elimination Act (“PREA”) RTS

         On November 11, 2015, Plaintiff submitted an RTS to the agency PREA coordinator, requesting gender-conforming items. (Doc. 54-8 at 2). The November 21, 2015, response stated that the “requests should be handled through the facility & the warden . . . in accordance with the agency grievance process . . . and the management of gender non-conforming offenders policy . . . .” Id.

         Offender Request

         On December 29, 2015, Plaintiff submitted a Request to the Medical Services Administration, asking Dr. Morgan to check on documents submitted at OSP regarding hormone therapy. (Doc. 54-9 at 2). The request was returned unanswered on January 28, 2016, advising that the incorrect form was submitted and informing Plaintiff of the proper method to seek the desired assistance. Id. at 3. No. further action was taken by Plaintiff regarding this request.

         Grievances 16-04 and 16-07

         On January 13, 2016, Plaintiff submitted an RTS to Defendant Patricia Sorrells, OSP Medical Administrator, regarding the initiation of review by the Personal Identity Administrative Review Authority (“PIARA”) for “gender conforming products and needs.” (Dkt. 54-10 at 2). In response, Plaintiff again was advised to file a grievance to initiate the review and that everything Plaintiff had submitted had been forwarded for review. Id. Plaintiff submitted Grievance 16-04 on January 26, 2016, seeking hormone treatment, female clothing and toiletries, medical counseling, and removal from single-cell status. Id. at 3. On January 28, 2016, the grievance was returned unanswered, because the request for relief in the grievance was different from the request for relief in the RTS. Id. at 4. Plaintiff was given 10 days to correct the error. Id.

         Plaintiff next submitted Grievance 16-07 on February 3, 2016, requesting to have a referral for gender products scanned to PIARA. Id. at 7. The response stated the grievance was procedurally ...

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