United States District Court, E.D. Oklahoma
JOHNNY L. HARDEMAN, a.k.a. Lo´re Pink, Plaintiff,
JESSICA SMITH, et al., Defendants.
OPINION AND ORDER
A. WHITE UNITED STATES DISTRICT JUDGE
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).
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
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
I: Defendant Patricia Sorrells, OSP Medical Administrator,
abruptly stopped medication Plaintiff had taken for 15 years,
solely because Plaintiff was filing grievances and
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.
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.
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.
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.
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.
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.
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
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.
of Administrative Remedies
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.
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.
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
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).
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.
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
Rape Elimination Act (“PREA”) RTS
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.
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.
16-04 and 16-07
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.
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 ...