Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 1 of 17
ANP−PST,CASREF,CJRA_A,NOT SELECTED
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:18−cv−00550−NJR

Hampton v. Baldwin et al Assigned to: Chief Judge Nancy J. Rosenstengel Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 03/08/2018 Jury Demand: Both Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question

Deon Hampton M15934 DIXON CORRECTIONAL CENTER 2600 North Brinton Ave Dixon, IL 61021

represented by Vanessa del Valle Roderick and Solange MacArthur Justice Center − Chicago Northwestern Univ. Sch. of Law 375 E. Chicago Avenue Chicago, IL 60611 312−503−1271 Fax: 312−503−1272 Email: vanessa.delvalle@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan S. Mills Uptown People's Law Generally Admitted 4413 N. Sheridan Chicago, IL 60640 773−769−1411 Fax: 773−769−2224 Email: alan@uplcchicago.org ATTORNEY TO BE NOTICED

Elizabeth Mazur Uptown People's Law Center 4413 N. Sheridan Road Chicago, IL 60640 773−769−1411 Fax: 773−769−2224 Email: liz@uplcchicago.org ATTORNEY TO BE NOTICED

Sheila A Bedi Roderick and Solange MacArthur Justice Center − Chicago Northwestern Univ. Sch. of Law 375 E. Chicago Avenue Chicago, IL 60611 312−503−2492 Fax: 312−503−1272 Email: sheila.bedi@law.northwestern.edu ATTORNEY TO BE NOTICED

V.
Defendant
John Baldwin Illinois Department of Corrections Director, individual capacity TERMINATED: 04/16/2020

represented by Christine G. McClimans Attorney General's Office−Springfield, IL 500 S. Second St. Springfield, IL 62701 618−236−8621 Fax: 618−236−8620

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Email: cmcclimans@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson Illinois Attorney General's Office − Springfield 500 South Second Street Springfield, IL 62701 217−782−1841 Fax: 217−782−8767 Email: chiggerson@atg.state.il.us ATTORNEY TO BE NOTICED

Defendant
Kevin Kink Warden

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Karen Jaimet Warden TERMINATED: 05/15/2019

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant Officer Burley

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jeremy Givens TERMINATED: 05/15/2019

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Clark TERMINATED: 05/15/2019

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address)

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ATTORNEY TO BE NOTICED

Defendant
Nicholas Lanpley TERMINATED: 05/15/2019

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Doe 1−4 TERMINATED: 04/16/2020

Defendant
John Varga Warden, individual capacity

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant Taylor Gee

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant Arthur Manzano

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant Jacob Blackburn

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant Christopher Doering

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Defendant Susan Kunde

represented by Christine G. McClimans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher L. Higgerson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/08/2018 03/08/2018 03/08/2018 03/08/2018
03/08/2018
03/08/2018 03/08/2018 03/09/2018
03/09/2018

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0754−3500972.), filed by Deon Hampton. (Attachments: # 1 Civil Cover Sheet)(del Valle, Vanessa) (Entered: 03/08/2018)
2 NOTICE of Appearance by Vanessa del Valle on behalf of Deon Hampton (del Valle, Vanessa) (Entered: 03/08/2018)
3 NOTICE of Appearance by Sheila A Bedi on behalf of Deon Hampton (Bedi, Sheila) (Entered: 03/08/2018)
4 WITHDRAWN (per Order at Doc. 43) MOTION for Preliminary Injunction and Memorandum in Support by Deon Hampton. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(del Valle, Vanessa) Modified on 6/11/2018 (drb). (Entered: 03/08/2018)
5 MOTION for Hearing re 4 MOTION for Preliminary Injunction and Memorandum in Support for Expedited Hearing and Expedited Discovery by Deon Hampton. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(del Valle, Vanessa) (Entered: 03/08/2018)
6 NOTICE of Appearance by Alan S. Mills on behalf of Deon Hampton (Mills, Alan) (Entered: 03/08/2018)
7 Summons Requested. (del Valle, Vanessa) (Entered: 03/08/2018)
8 Notice of Judge Assignment. Judge Nancy J. Rosenstengel assigned. All future documents must bear case number 18−550−NJR. If the parties consent to Magistrate Judge assignment, the consent form with instruction is attached for your convenience. (kek) (Entered: 03/09/2018)
9 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Plaintiff is a prisoner in the custody of the Illinois Department of Corrections, who identifies as a transgender woman. She has consistently been incarcerated in all−male prisons within the IDOC system. Represented by counsel, she brings this civil rights action pursuant to 42 U.S.C. § 1983, requesting injunctive relief and damages, and has prepaid the $400 filing fee. Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the Complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable federal cause of action against Defendants for constitutional, statutory, and supplemental state law claims arising from the Defendants' alleged failure to protect her from harm at the hands of prison officials and fellow inmates, denial of mental health care, the infliction of physical and sexual abuse by certain Defendants, and related actions and omissions at the Lawrence Correctional Center (where she is currently housed), as well as at the Pinckneyville and Menard Correctional Centers. Accordingly, pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate Judge Donald G. Wilkerson for further pre−trial proceedings. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), Plaintiff's Motion for Preliminary Injunction (Doc. 4 ) and Motion for Hearing on Preliminary Injunction (Doc. 5 ) are hereby REFERRED to United States

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03/09/2018 03/09/2018 03/12/2018 03/12/2018
03/14/2018
03/19/2018

Magistrate Judge Wilkerson, who shall resolve the request for injunctive relief as soon as practicable, and issue a report and recommendation. Any motions filed after the date of this Order that relate to the request for injunctive relief or seek leave to amend the Complaint are also hereby REFERRED to Judge Wilkerson. Further, this entire matter shall be REFERRED to United States Magistrate Judge Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a referral. Counsel for Plaintiff may initiate service without further delay. Defendants are ORDERED to timely file an appropriate responsive pleading to the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Signed by Judge Nancy J. Rosenstengel on 3/9/2018. (tjk)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/09/2018)
10 Summons Issued as to John Baldwin, Officer Burley, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, and Officer Lanpley. Originals mailed to Attorney Vanessa del Valle. (kek) (Entered: 03/09/2018)
11 ORDER SETTING TELEPHONIC STATUS CONFERENCE: The Court sets this matter for a Telephonic Status Conference on 3/12/2018 at 10:00 AM in East St. Louis Courthouse before Judge Nancy J. Rosenstengel. Instructions for the conference call: (1) call toll−free, 877−336−1831; (2) when prompted, enter the seven−digit Access Code: 9139610; (3) when prompted, enter the four−digit Security Code: 9342. Signed by Judge Nancy J. Rosenstengel on 3/9/2018. (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/09/2018)
12 Summons Issued as to John Does 1−4 and original mailed to Attorney Vanessa del Valle. (kek) (Entered: 03/12/2018)
13 Minute Entry for proceedings held before Judge Nancy J. Rosenstengel: Vanessa del Valle, Alan Mills, and Sheila Bedi participated on behalf of plaintiff. Lisa Cook and Chris Higgerson participated at the Court's request on behalf of the Illinois Department of Corrections. Counsel for IDOC agreed to obtain the documents requested in Plaintiff's Expedited Request for Production (Doc. 5−5). The next status conference is set for March 19, 2018 at 10:00 a.m. Instructions for the conference calls: (1) call toll−free 877−336−1831; (2) when prompted, enter the seven−digit Access Code: 9139610; (3) when prompted, enter the four−digit Security Code: 9342.(Court Reporter Molly Clayton.) (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/12/2018)
14 Transcript of STATUS CONFERENCE held on 3/12/2018, before Judge Nancy J. Rosenstengel. Court Reporter Molly Clayton, Telephone number 618.482.9226.
NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf
Transcript may be viewed at the public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/4/2018. Redacted Transcript Deadline set for 4/16/2018. Release of Transcript Restriction set for 6/12/2018. (mnc) (Entered: 03/14/2018)
15 Minute Entry for proceedings held before Judge Nancy J. Rosenstengel: Telephonic Status Conference held on 3/19/2018. Counsel participating were Vanessa del Valle, Sheila Bedi, Alan Mills, and Chris Higgerson. The parties updated the Court as to the status of this case, including the status of service and the requested expedited discovery. The parties agree to participate in a settlement conference and are instructed to contact Magistrate Judge Reona J. Daly to schedule a date for the conference. The parties shall e−mail the Court (NJRpd@ilsd.uscourts.gov) by end of business today (3/19/2018) with an update as to the status of discovery and the settlement conference date. (Court Reporter Molly Clayton.) (drb)THIS TEXT ENTRY IS AN ORDER OF

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03/19/2018
03/19/2018 03/19/2018 03/19/2018 03/20/2018 03/21/2018
03/22/2018 03/22/2018 03/23/2018

THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/19/2018)
16 ORDER REASSIGNING MAGISTRATE JUDGE: This lawsuit is closely related to another case in this Court that was recently settled, Case No. 17−cv−00936−DRH−RJD. In order to preserve judicial economy and to avoid inconsistent rulings, the Court REASSIGNS this case to Magistrate Judge Reona J. Daly, pursuant to Smith v. Check−n−Go of Illinois, 200 F.3d 511, 513 (7th Cir. 1999), for such duties as are routinely carried out by the magistrate. All future pleadings should bear case number 18−cv−550−NJR−RJD. Signed by Judge Nancy J. Rosenstengel on 3/19/2018. (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/19/2018)
17 SUMMONS Returned Executed by Deon Hampton. John Baldwin served on 3/12/2018, answer due 4/2/2018; Officer Burley served on 3/13/2018, answer due 4/3/2018; Officer Clark served on 3/13/2018, answer due 4/3/2018; John Doe served on 3/13/2018, answer due 4/3/2018; Lieutenant Givens served on 3/13/2018, answer due 4/3/2018; Karen Jaimet served on 3/13/2018, answer due 4/3/2018; Kevin Kink served on 3/13/2018, answer due 4/3/2018; Officer Lanpley served on 3/13/2018, answer due 4/3/2018. (del Valle, Vanessa) (Entered: 03/19/2018)
18 ORDER FOR SETTLEMENT CONFERENCE: Settlement Conference set for 3/23/2018 at 9:30 AM in Benton Courthouse before Magistrate Judge Reona J. Daly. Settlement Statements to be submitted on or before 3/22/2018. The Clerk is directed to issue a writ to obtain plaintiff's presence via video conference. Signed by Magistrate Judge Reona J. Daly on 3/19/2018. (jlm) (Entered: 03/19/2018)
19 VIDEO WRIT ISSUED pursuant to 18 . (jlm) (Entered: 03/19/2018)
20 WAIVER OF SERVICE Returned Executed by Deon Hampton. Karen Jaimet waiver sent on 3/9/2018, answer due 5/8/2018. (del Valle, Vanessa) (Entered: 03/20/2018)
21 Transcript of STATUS CONFERENCE held on 03/19/2018, before Judge Nancy J. Rosenstengel. Court Reporter Molly Clayton, Telephone number 618.482.9226.
NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf
Transcript may be viewed at the public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/11/2018. Redacted Transcript Deadline set for 4/23/2018. Release of Transcript Restriction set for 6/19/2018. (mnc) (Entered: 03/21/2018)
22 ORDER. Settlement Conference set for 3/23/2018 is CANCELED upon notification from the parties that the settlement conference would not be productive. Signed by Magistrate Judge Reona J. Daly on 3/22/2018. (jlm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/22/2018)
23 NOTICE of Hearing: Evidentiary Hearing set for April 2 and 3, 2018 beginning each day at 9:00 AM in East St. Louis Courthouse before Judge Nancy J. Rosenstengel. (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/22/2018)
24 NOTICE AND ORDER: IDOC and the Warden of Dixon Correctional Center shall arrange to have Deon Hampton #M15934 present on April 2, 2018 at 8:30 AM, and from day−to day thereafter until concluded, in East St. Louis Courthouse before Judge Nancy J. Rosenstengel. Signed by Judge Nancy J. Rosenstengel on 3/23/2018. (drb) (Entered: 03/23/2018)

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03/23/2018 03/23/2018 03/26/2018 03/26/2018
03/28/2018 04/05/2018 04/06/2018 04/10/2018 04/16/2018
04/16/2018 04/20/2018

25 Writ of Habeas Corpus ad Testificandum Issued as to Deon Hampton #M15934 for April 2, 2018 and each day thereafter until said hearing is concluded. (drb) (Entered: 03/23/2018)
26 NOTICE of Appearance by Christine G. McClimans on behalf of John Baldwin, Karen Jaimet (McClimans, Christine) (Entered: 03/23/2018)
27 NOTICE of Appearance by Christine G. McClimans on behalf of Officer Clark, Lieutenant Givens, Kevin Kink, Officer Lanpley (McClimans, Christine) (Entered: 03/26/2018)
28 ORDER: The Evidentiary Hearing set for April 2, 2018, as well as the Order and Writ (Docs. 24 and 25) are CANCELED. This matter is now set for a telephonic status conference on April 16, 2018 at 1:30 PM before Judge Nancy J. Rosenstengel. Instructions for the conference calls: (1) call toll−free 877−336−1831; (2) when prompted, enter the seven−digit Access Code: 9139610; (3) when prompted, enter the four−digit Security Code: 9342. Signed by Judge Nancy J. Rosenstengel on 3/26/2018. (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/26/2018)
29 WAIVER OF SERVICE Returned Executed by Deon Hampton. Officer Clark waiver sent on 3/9/2018, answer due 5/8/2018; Lieutenant Givens waiver sent on 3/9/2018, answer due 5/8/2018; Kevin Kink waiver sent on 3/9/2018, answer due 5/8/2018; Officer Lanpley waiver sent on 3/9/2018, answer due 5/8/2018. (del Valle, Vanessa) (Entered: 03/28/2018)
30 MOTION to Compel the Defendants to Produce Certain Witnesses for Deposition by Deon Hampton. (Attachments: # 1 Exhibit 1)(del Valle, Vanessa) (Entered: 04/05/2018)
31 ORDER: Defendants are ORDERED to respond to Plaintiff's Motion to Compel by April 13, 2018. The Court plans to address the motion at the status conference on April 16, 2018. (Action due by 4/13/2018.) Signed by Judge Nancy J. Rosenstengel on 4/6/2018. (mlp) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/06/2018)
32 RESPONSE to Motion re 30 MOTION to Compel the Defendants to Produce Certain Witnesses for Deposition filed by John Baldwin, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley. (McClimans, Christine) (Entered: 04/10/2018)
33 Minute Entry for proceedings held before Judge Nancy J. Rosenstengel: Counsel participating: Vanessa del Valle, Sheila Bedi, and Christine McClimans. The parties updated the Court as to the status of this case. Plaintiffs counsel shall prepare and send to defense counsel a list of the documents still needed by the end of today, April 16, 2018. Defendants shall produce those documents by April 23, 2018. Plaintiffs Motion to Compel (Doc. 30) is GRANTED. Depositions shall be concluded by April 30, 2018. Defendant is granted leave to file a brief on the issue of exhaustion of administrative remedies by April 20, 2018. (Court Reporter Molly Clayton.) (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/16/2018)
34 WAIVER OF SERVICE Returned Executed by Deon Hampton. Officer Burley waiver sent on 3/9/2018, answer due 5/8/2018. (del Valle, Vanessa) (Entered: 04/16/2018)
35 Transcript of STATUS CONFERENCE held on 04/16/2018, before Judge Nancy J. Rosenstengel. Court Reporter Molly Clayton, Telephone number 618.482.9226.

NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf

Transcript may be viewed at the public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/11/2018. Redacted

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 8 of 17

04/20/2018 04/20/2018
04/24/2018 05/08/2018 05/24/2018
05/24/2018 06/08/2018 06/11/2018
06/11/2018 07/17/2018 07/17/2018 07/17/2018 07/17/2018 07/18/2018

Transcript Deadline set for 5/21/2018. Release of Transcript Restriction set for 7/19/2018. (mnc) (Entered: 04/20/2018)
36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies by John Baldwin, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley. Responses due by 5/24/2018 (McClimans, Christine) (Entered: 04/20/2018)
37 MEMORANDUM in Support re 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by John Baldwin, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(McClimans, Christine) (Entered: 04/20/2018)
38 NOTICE of Appearance by Christine G. McClimans on behalf of Officer Burley (McClimans, Christine) (Entered: 04/24/2018)
39 ANSWER to 1 Complaint by John Baldwin, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley.(McClimans, Christine) (Entered: 05/08/2018)
40 ORDER: The parties have requested that this Court set this matter for an evidentiary hearing. Due to the Court's current docket, the Evidentiary Hearing is set for June 13, 2018 at 9:30 AM in East St. Louis Courthouse before Judge Nancy J. Rosenstengel. The parties are reminded that should this date not be agreeable to the parties, they may contact Magistrate Judge Daly, who may be able to accommodate a joint hearing date. Signed by Judge Nancy J. Rosenstengel on 5/24/2018. (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/24/2018)
41 RESPONSE in Opposition re 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Deon Hampton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(del Valle, Vanessa) (Entered: 05/24/2018)
42 MOTION to Withdraw Motion for Preliminary Injunction Without Prejudice by Deon Hampton. (Bedi, Sheila) (Entered: 06/08/2018)
43 ORDER GRANTING 42 Motion to Withdraw Motion for Preliminary Injunction. Plaintiff has indicated that circumstances have changed and emergency relief is no longer warranted. Thus, the Motion to Withdraw is GRANTED and the Motion for Preliminary Injunction (Doc. 4) is WITHDRAWN without prejudice. The evidentiary hearing set for June 13, 2018 is CANCELED. Signed by Judge Nancy J. Rosenstengel on 6/11/2018. (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/11/2018)
44 RESPONSE to Motion re 42 MOTION to Withdraw Motion for Preliminary Injunction Without Prejudice filed by John Baldwin, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley. (McClimans, Christine) (Entered: 06/11/2018)
45 STRICKEN (By Order at Document 50) − AMENDED COMPLAINT against All Defendants, filed by Deon Hampton.(del Valle, Vanessa) Modified on 7/24/2018 (kek). (Entered: 07/17/2018)
46 MOTION for Preliminary Injunction and Memorandum in Support by Deon Hampton. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(del Valle, Vanessa) (Entered: 07/17/2018)
47 Summons Requested. (del Valle, Vanessa) (Entered: 07/17/2018)
48 NOTICE of Appearance by Elizabeth Mazur on behalf of Deon Hampton (Mazur, Elizabeth) (Entered: 07/17/2018)
49 ORDER: Defendants are ORDERED to respond to Plaintiff's 46 Motion for Preliminary Injunction by August 1, 2018. Plaintiff may file a reply by August 8, 2018. An Evidentiary Hearing is set for Monday, August 27, 2018 at 9:30 AM in the East St. Louis Courthouse before Judge Nancy J. Rosenstengel. Signed by Judge Nancy J. Rosenstengel on 7/18/2018. (drb)THIS TEXT ENTRY IS AN ORDER OF

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07/23/2018
07/23/2018
07/23/2018 07/27/2018 07/30/2018 08/01/2018 08/02/2018 08/02/2018 08/03/2018
08/08/2018 08/08/2018 08/13/2018 08/13/2018

THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/18/2018)
50 ORDER STRIKING 45 Amended Complaint filed by Deon Hampton. As Defendants Baldwin, Clark, Givens, Jaimet, Kink, and Lanpley filed their answer to Plaintiff's complaint on May 8, 2018, Plaintiff is not entitled to file an amended pleading without leave of court under Rule 15(a). Accordingly, Plaintiff's First Amended Complaint is STRICKEN. Plaintiff is DIRECTED to file a motion seeking leave to file an amended complaint. Plaintiff is ADVISED to review Local Rule 15.1, which requires all new material in an amended pleading to be underlined. Signed by Magistrate Judge Reona J. Daly on 7/23/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/23/2018)
51 ORDER: Motion Hearing set for 8/15/2018 at 1:00 PM in the Benton Courthouse before Magistrate Judge Reona J. Daly as to 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies. The Clerk of Court is directed to issue a writ for Plaintiff to appear via video conference. Signed by Magistrate Judge Reona J. Daly on 7/23/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/23/2018)
52 QUASHED − VIDEO WRIT ISSUED pursuant to 51 . (jlm) Modified on 8/14/2018 (jlm). (Entered: 07/23/2018)
53 MOTION for Leave to File First Amended Complaint by Deon Hampton. (Attachments: # 1 Exhibit 1)(del Valle, Vanessa) (Entered: 07/27/2018)
54 MOTION for Discovery Expedited by Deon Hampton. (Attachments: # 1 Exhibit 1)(del Valle, Vanessa) (Entered: 07/30/2018)
55 RESPONSE to Motion re 46 MOTION for Preliminary Injunction and Memorandum in Support filed by John Baldwin, Officer Burley, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley. (McClimans, Christine) (Entered: 08/01/2018)
56 EXHIBIT by John Baldwin, Officer Burley, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley. Exhibit to 55 Response to Motion . (Attachments: # 1 Exhibit B, # 2 Exhibit C)(McClimans, Christine) (Entered: 08/02/2018)
57 MOTION To Allow Testimony Via Telephone and Out of Time at Preliminary Injunction Hearing by Deon Hampton. (del Valle, Vanessa) (Entered: 08/02/2018)
58 NOTICE of Hearing: Telephonic Status Conference set for 8/8/2018 at 1:30 PM CST to discuss plaintiff's 54 Motion for Expedited Discovery and 56 Motion to Allow Testimony before Judge Nancy J. Rosenstengel presiding in East St. Louis. Instructions for the conference call are as follows: (1) call toll−free, 877−336−1831; (2) when prompted, enter the seven−digit Access Code: 9139610; (3) when prompted, enter the four−digit Security Code: 9342.(drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/03/2018)
59 REPLY to Response to Motion re 46 MOTION for Preliminary Injunction and Memorandum in Support filed by Deon Hampton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(del Valle, Vanessa) (Entered: 08/08/2018)
60 Minute Entry for proceedings held before Judge Nancy J. Rosenstengel: Status Conference held on 8/8/2018. The 8/27/2018 hearing before Judge Rosenstengel is CANCELED and will be reset by separate notice. (Court Reporter Molly Clayton.) (drb) (Entered: 08/09/2018)
61 MOTION to Quash Subpoenas by John Baldwin, Kevin Kink. (McClimans, Christine) (Entered: 08/13/2018)
62 RESPONSE in Opposition re 61 MOTION to Quash Subpoenas filed by Deon Hampton. (Mazur, Elizabeth) (Entered: 08/13/2018)

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 10 of 17

08/14/2018
08/14/2018 08/14/2018
08/14/2018 08/14/2018 08/16/2018 08/21/2018 08/21/2018 08/21/2018 08/21/2018

63 ORDER GRANTING 53 Motion for Leave to File. Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that leave to amend should be freely given "when justice so requires." The Seventh Circuit maintains a liberal attitude toward the amendment of pleadings "so that cases may be decided on the merits and not on the basis of technicalities." Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977). The Circuit has recognized that "the complaint merely serves to put the defendant on notice and is to be freely amended or constructively amended as the case develops, as long as amendments do not unfairly surprise or prejudice the defendant." Toth v. USX Corp., 883 F.2d 1297, 1298 (7th Cir. 1989); see also Winger v. Winger, 82 F.3d 140, 144 (7th Cir. 1996) (quoting Duckworth v. Franzen, 780 F.2d 645, 649 (7th Cir. 1985)) ("The Federal Rules of Civil Procedure create [a system] in which the complaint does not fix the plaintiff's rights but may be amended at any time to conform to the evidence."). A court may also deny a party leave to amend if there is undue delay, dilatory motive or futility. Guise v. BMW Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004). Finding that Plaintiff's proposed first amended complaint is neither unduly delayed nor futile or brought with dilatory motive and noting that Defendants do not object to the filing of such, Plaintiff's Motion is GRANTED. Plaintiff is ORDERED to file her proposed first amended complaint as the First Amended Complaint by August 16, 2018. Signed by Magistrate Judge Reona J. Daly on 8/14/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/14/2018)
64 AMENDED COMPLAINT against All Defendants, filed by Deon Hampton.(del Valle, Vanessa) (Entered: 08/14/2018)
65 ORDER: In light of the recent order allowing Plaintiff to file a First Amended Complaint and add new defendants to this action, the hearing on the issue of exhaustion of administrative remedies set for August 15, 2018 is CANCELLED. The hearing will be reset by separate notice once the newly named defendants have been served, answered the First Amended Complaint, and been provided an opportunity to supplement the pending motion for summary judgment on the issue of exhaustion. The video writ issued for Plaintiff Hampton is hereby quashed. Signed by Magistrate Judge Reona J. Daly on 8/14/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/14/2018)
66 Summons Requested. (del Valle, Vanessa) (Entered: 08/14/2018)
67 Summonses Issued as to John Varga, Officer Gee, Officer Manzano, Officer Blackburn, Lieutenant Doering, Sergeant Kunde and originals mailed to Attorney del Valle. (kek) (Entered: 08/14/2018)
68 NOTICE of Hearing: Evidentiary Hearing is RESET to begin September 12, 2018 at 9:00 AM in East St. Louis Courthouse before Judge Nancy J. Rosenstengel. The Court has also reserved September 13 and 14 in which to complete this hearing. (drb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/16/2018)
69 NOTICE of Appearance by Christine G. McClimans on behalf of Officer Blackburn, Lieutenant Doering, Officer Gee, Sergeant Kunde, Officer Manzano, John Varga (McClimans, Christine) (Entered: 08/21/2018)
70 NOTICE AND ORDER: IDOC and the Warden of Dixon Correctional Center shall arrange to have Deon Hampton #M15934 present on September 12, 2018 at 8:30 AM and from day to day thereafter until concluded in East St. Louis Courthouse before Judge Nancy J. Rosenstengel. Signed by Judge Nancy J. Rosenstengel on 8/21/2018. (drb) (Entered: 08/21/2018)
71 Writ of Habeas Corpus ad Testificandum Issued as to Deon Hampton #M15934 for September 12, 2018 and each day thereafter until hearing is concluded. (drb) (Entered: 08/21/2018)
72 NOTICE of Appearance by Christopher L. Higgerson on behalf of Officer Blackburn, Lieutenant Doering, Officer Gee, Sergeant Kunde, Officer Manzano, John Varga (Higgerson, Christopher) (Entered: 08/21/2018)

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 11 of 17

08/22/2018 08/22/2018
08/22/2018 08/22/2018 08/22/2018 08/23/2018
08/23/2018
08/23/2018 08/24/2018 08/24/2018 08/28/2018 08/29/2018
08/29/2018 08/30/2018

73 NOTICE of Appearance by Christopher L. Higgerson on behalf of John Baldwin, Officer Burley, Officer Clark, Lieutenant Givens, Karen Jaimet, Kevin Kink, Officer Lanpley (Higgerson, Christopher) (Entered: 08/22/2018)
74 NOTICE AND ORDER: IDOC and the Warden of Dixon Correctional Center shall arrange to have Brandon James #R71786 (9/12/18 at 3:00 PM CST); Scott Ranft #R16439 (9/12/18 at 3:30 PM CST); and Roger Johnson #B30336 (9/13/18 at 9:00 AM CST) present via video conference before Judge Nancy J. Rosenstengel presiding in East St. Louis. Signed by Judge Nancy J. Rosenstengel on 8/22/2018. (drb) (Entered: 08/22/2018)
75 VIDEO WRIT ISSUED as to Brandon James #R71786 (9/12/18 at 3:00 PM CST); Scott Ranft #R16439 (9/12/18 at 3:30 PM CST); and Roger Johnson #B30336 (9/13/18 at 9:00 AM) before Judge Nancy J. Rosenstengel presiding in East St. Louis. (drb) (Entered: 08/22/2018)
76 MOTION for Protective Order by Deon Hampton. (Attachments: # 1 Exhibit 1)(del Valle, Vanessa) (Entered: 08/22/2018)
77 MOTION for Discovery Expedited by Deon Hampton. (Attachments: # 1 Exhibit 1)(del Valle, Vanessa) (Entered: 08/22/2018)
78 ORDER: In light of the upcoming preliminary injunction hearing set before District Judge Nancy J. Rosenstengel on September 12, 2018, any response to 76 MOTION for Protective Order must be filed by 8/29/2018. Signed by Magistrate Judge Reona J. Daly on 8/23/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/23/2018)
79 NOTICE OF MODIFICATION re 76 Motion for Protective Order filed by Deon Hampton. A proposed order is attached to the main document. Proposed orders are not to be filed, rather should be submitted via e−mail to the assigned Judge. (See CM/ECF User's Manual at pages 2.6−2.7) Proposed order will be deleted in accordance with this Court's practices and should be sent via e−mail accordingly. (kek)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/23/2018)
80 ORDER: Defendants are ORDERED to respond to Plaintiff's Motion for Expedited Discovery by Tuesday, August 28, 2018. Signed by Judge Nancy J. Rosenstengel on 8/23/2018. (mlp) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/23/2018)
Set Deadlines as to 77 MOTION for Discovery Expedited. Response due by 8/28/2018. (kek) (Entered: 08/24/2018)
81 RESPONSE to Plaintiff's Motion for Protective Order filed by John Baldwin, Officer Blackburn, Officer Burley, Officer Clark, Lieutenant Doering, Officer Gee, Lieutenant Givens, Karen Jaimet, Kevin Kink, Sergeant Kunde, Officer Lanpley, Officer Manzano, John Varga. (McClimans, Christine) (Entered: 08/24/2018)
82 RESPONSE to 77 Motion for Discovery Expedited filed by John Baldwin, Officer Blackburn, Officer Burley, Officer Clark, Lieutenant Doering, Officer Gee, Lieutenant Givens, Karen Jaimet, Kevin Kink, Sergeant Kunde, Officer Lanpley, Officer Manzano, John Varga. (McClimans, Christine) (Entered: 08/28/2018)
83 ORDER: Plaintiff shall file her reply in support of the Motion for Expedited Discovery (Doc. 77 ), if any, by 5 p.m. on Friday, August 31, 2018. (Action due by 8/31/2018.) Signed by Judge Nancy J. Rosenstengel on 8/29/2018. (mlp) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/29/2018)
Set Deadlines as to 77 MOTION for Discovery Expedited. Reply, if any, due by 5:00 P.M. on 8/31/2018. (kek) (Entered: 08/29/2018)
84 AMENDED NOTICE AND ORDER: IDOC and the Warden of Dixon CC shall arrange to have Brandon James #R71786 (9/12/2018 at 2:30 PM) and Scott Ranft #R16439 (9/12/2018 at 3:30 PM) present via video conference before Judge Nancy J. Rosenstengel presiding in East St. Louis. Signed by Judge Nancy J. Rosenstengel on 8/30/2018. (drb) (Entered: 08/30/2018)

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 12 of 17

08/30/2018 08/30/2018
08/31/2018 09/04/2018 09/06/2018 09/06/2018 09/12/2018 09/13/2018 09/14/2018 09/17/2018 09/19/2018
09/23/2018

85 AMENDED VIDEO WRIT ISSUED as to Brandon James #R71786 and Scott Ranft #R16439 to be held September 12, 2018 at the East St. Louis Courthouse by Judge Nancy J. Rosenstengel. (drb) (Entered: 08/30/2018)
86 MEMORANDUM in Support re 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by John Baldwin, Officer Blackburn, Officer Clark, Lieutenant Doering, Officer Gee, Lieutenant Givens, Karen Jaimet, Kevin Kink, Sergeant Kunde, Officer Lanpley, Officer Manzano, John Varga. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(McClimans, Christine) (Entered: 08/30/2018)
87 REPLY to Response to Motion re 77 MOTION for Discovery Expedited filed by Deon Hampton. (del Valle, Vanessa) (Entered: 08/31/2018)
88 MOTION for an Order Allowing Plaintiff to Appear in Civilian Clothes by Deon Hampton. (Mazur, Elizabeth) (Entered: 09/04/2018)
89 ORDER: Plaintiff's Motion for Expedited Discovery (Doc. 77 ) is GRANTED. Defendants are ORDERED to produce the requested data by noon on September 11, 2018. The Motion for an Order Allowing Plaintiff to Appear in Civilian Clothes (Doc. 88 ) is DENIED. Signed by Judge Nancy J. Rosenstengel on 9/6/2018. (mlp) (Entered: 09/06/2018)
90 ORDER GRANTING IN PART 76 Motion for Protective Order. Signed by Magistrate Judge Reona J. Daly on 9/6/2018. (nmf) (Entered: 09/06/2018)
91 Minute Entry for proceedings held before Judge Nancy J. Rosenstengel: Day 1 of Evidentiary Hearing held on 9/12/2018. Day 2 of hearing is set for 9/13/2018 at 9:00 AM. (Court Reporter Molly Clayton/Stephanie Rennegarbe.) (drb) (Entered: 09/12/2018)
92 Minute Entry for proceedings held before Judge Nancy J. Rosenstengel: Day 2 of Evidentiary Hearing held on 9/13/2018. Day 3 of Evidentiary Hearing set for September 14, 2018 at 9:00 AM. (Court Reporter Molly Clayton/Stephanie Rennegarbe.) (drb) (Entered: 09/13/2018)
93 Minute Entry for proceedings held before Judge Nancy J. Rosenstengel: Day 3 of Evidentiary Hearing held on 9/14/2018. Motion taken under advisement. Order to issue. (Court Reporter Molly Clayton.) (Attachments: # 1 Exhibit Joint Exhibit List) (drb) (Entered: 09/14/2018)
94 MOTION for Extension of Time to File Answer re 64 Amended Complaint by John Baldwin, Officer Blackburn, Officer Burley, Officer Clark, Lieutenant Doering, Officer Gee, Lieutenant Givens, Karen Jaimet, Kevin Kink, Sergeant Kunde, Officer Lanpley, Officer Manzano, John Varga. (McClimans, Christine) (Entered: 09/17/2018)
95 ORDER GRANTING 94 MOTION for Extension of Time to File Answer re 64 Amended Complaint filed by Kevin Kink, Sergeant Kunde, Officer Lanpley, Officer Burley, Karen Jaimet, John Baldwin, Officer Gee, John Varga, Lieutenant Givens, Officer Clark, Officer Manzano, Lieutenant Doering, Officer Blackburn. Defendants are GRANTED an extension of time, up to and including 10/1/2018, to file their answers or otherwise respond to Plaintiff's amended complaint. Signed by Magistrate Judge Reona J. Daly on 9/19/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/19/2018)
96 Transcript of Proceedings, Evidentiary Hrg Day 1 − a.m. session (pp. 1−77) held on 09/12/2018, before Judge Nancy J. Rosenstengel. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 13 of 17

09/23/2018

Transcript may be viewed at the public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2018. Redacted Transcript Deadline set for 10/24/2018. Release of Transcript Restriction set for 12/26/2018. (mnc) (Entered: 09/23/2018)
97 Transcript of Evidentiary Hearing, Day 1 − P.M. Session (pp. 78−199), held on 09−12−2018, before Judge Nancy J. Rosenstengel. Court Reporter Stephanie Rennegarbe, Telephone number 618−439−7735.

NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf

09/23/2018

Transcript may be viewed at the public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2018. Redacted Transcript Deadline set for 10/24/2018. Release of Transcript Restriction set for 12/26/2018. (skr) (Entered: 09/23/2018)
98 Transcript of Proceedings, Evidentiary Hrg Day 2 − a.m. session (pp. 200−292) held on 09/13/2018, before Judge Nancy J. Rosenstengel. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf

09/23/2018

Transcript may be viewed at the public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2018. Redacted Transcript Deadline set for 10/24/2018. Release of Transcript Restriction set for 12/26/2018. (mnc) (Entered: 09/23/2018)
99 Transcript of Evidentiary Hearing, Day 2 − P.M. Session (pp. 293−414), held on 09−13−2018, before Judge Nancy J. Rosenstengel. Court Reporter Stephanie Rennegarbe, Telephone number 618−439−7735.

NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf

09/23/2018

Transcript may be viewed at the public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2018. Redacted Transcript Deadline set for 10/24/2018. Release of Transcript Restriction set for 12/26/2018. (skr) (Entered: 09/23/2018)
100 Transcript of Proceedings, Evidentiary Hrg Day 3 − ALL sessions (pp.415−507) held on 09/14/2018, before Judge Nancy J. Rosenstengel. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days.

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 14 of 17

See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf

09/28/2018 10/01/2018 10/30/2018
10/31/2018 11/07/2018 11/08/2018
11/08/2018 11/16/2018
11/16/2018 11/16/2018 11/19/2018 11/19/2018

Transcript may be viewed at the public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/15/2018. Redacted Transcript Deadline set for 10/24/2018. Release of Transcript Restriction set for 12/26/2018. (mnc) (Entered: 09/23/2018)
101 RESPONSE in Opposition re 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Deon Hampton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(del Valle, Vanessa) (Entered: 09/28/2018)
102 ANSWER to 64 Amended Complaint by John Baldwin, Officer Blackburn, Officer Burley, Officer Clark, Lieutenant Doering, Officer Gee, Lieutenant Givens, Karen Jaimet, Kevin Kink, Sergeant Kunde, Officer Lanpley, Officer Manzano, John Varga.(McClimans, Christine) (Entered: 10/01/2018)
103 ORDER: Motion Hearing set for 12/5/2018 at 1:00 PM in the Benton Courthouse before Magistrate Judge Reona J. Daly as to 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies. The Clerk of Court is directed to issue a writ for Plaintiff to appear via video−conference. Signed by Magistrate Judge Reona J. Daly on 10/30/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/30/2018)
104 QUASHED − VIDEO WRIT ISSUED pursuant to 103 . (jlm) Modified on 11/8/2018 (jlm). (Entered: 10/31/2018)
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) (Entered: 11/07/2018)
106 ORDER: Plaintiff's counsel has informed the Court that there is a conflict with the current motion hearing set for December 5, 2018. Accordingly, said hearing is VACATED and the motion hearing as to 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies is RESET for November 19, 2018 at 1:00 PM in the Benton Courthouse before Magistrate Judge Reona J. Daly. The video writ at Doc. 104 is hereby QUASHED. The Clerk of Court is directed to issue a writ for Plaintiff to appear via video−conference at the November 19, 2018 hearing. Signed by Magistrate Judge Reona J. Daly on 11/8/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/08/2018)
107 VIDEO WRIT ISSUED pursuant to 106 . (jlm) (Entered: 11/08/2018)
108 ORDER FINDING AS MOOT 61 Motion to Quash. In light of the cancellation of the August 15, 2018 motion hearing, Defendants' motion to quash the subpoenas issued to Baldwin, Kink, and McCarty for said hearing is MOOT. Signed by Magistrate Judge Reona J. Daly on 11/16/2018. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/16/2018)
109 MOTION to Quash Subpoenas by John Baldwin, Kevin Kink. (Attachments: # 1 Exhibit A)(McClimans, Christine) (Entered: 11/16/2018)
Contract Court Reporter Northcutt Reporting scheduled for hearing set for 11/19/2018 at 1:00 p.m.. (lmt) (Entered: 11/16/2018)
110 Minute Entry for proceedings held before Magistrate Judge Reona J. Daly: Motion Hearing held on 11/19/2018 re 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies. Report and Recommendation to enter. (Court Reporter Stephanie Rennegarbe.) (jlm) (Entered: 11/19/2018)
111 STIPULATIONS REGARDING EXHAUSTION. (jlm) (Entered: 11/19/2018)

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 15 of 17

11/21/2018 11/30/2018 12/21/2018 12/26/2018
01/07/2019 04/29/2019
05/06/2019 05/15/2019
05/16/2019 05/20/2019

112 NOTICE by John Baldwin re 105 Order, Terminate Motions (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McClimans, Christine) (Entered: 11/21/2018)
113 RESPONSE to 112 Notice (Other) filed by Deon Hampton. (Mazur, Elizabeth) (Entered: 11/30/2018)
114 SUPPLEMENT to 101 Response in Opposition re 36 MOTION for Summary Judgment and 86 Memorandum in Support of Motion, by Deon Hampton . (Attachments: # 1 Exhibit A)(Mazur, Elizabeth) Modified on 12/26/2018 (kek). (Entered: 12/21/2018)
115 NOTICE OF MODIFICATION re 114 Notice (Other) filed by Deon Hampton. Document attached is Supplemental Authority in response to Defendant's Motion for Summary Judgment. In an effort to keep the docket clear, docket text has been modified as follows: SUPPLEMENT to 101 Response in Opposition re 36 MOTION for Summary Judgment and 86 Memorandum in Support of Motion, by Deon Hampton. No further action is required by the filer in relation to this notification. (kek)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/26/2018)
116 RESPONSE to 114 Notice (Other) Of Supplemental Authority filed by John Baldwin, Officer Blackburn, Officer Clark, Lieutenant Doering, Officer Gee, Lieutenant Givens, Karen Jaimet, Kevin Kink, Sergeant Kunde, Officer Lanpley, Officer Manzano, John Varga. (McClimans, Christine) (Entered: 01/07/2019)
117 REPORT AND RECOMMENDATIONS re 36 MOTION for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Kevin Kink, Officer Lanpley, Lieutenant Givens, Karen Jaimet, Officer Clark, John Baldwin. Objections to R&R due by 5/13/2019. Signed by Magistrate Judge Reona J. Daly on 4/29/2019. (Attachments: # 1 Notice)(nmf) (Entered: 04/29/2019)
118 ORDER FOR TRANSCRIPT. Signed by Magistrate Judge Reona J. Daly on 5/6/2019. (nmf) (Entered: 05/06/2019)
119 ORDER ADOPTING 117 REPORT AND RECOMMENDATION and GRANTING in part and DENYING in part 36 Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies. Defendants Givens, Clark, Lanpley, and Jaimet are DISMISSED without prejudice. The Clerk of Court is DIRECTED to correct Defendants' names on the docket as reflected in footnote 1. Signed by Chief Judge Nancy J. Rosenstengel on 5/15/2019. (mlp) (Entered: 05/15/2019)
120 SCHEDULING ORDER: Discovery due by 3/20/2020. Dispositive Motions due by 4/17/2020. Signed by Magistrate Judge Reona J. Daly on 5/16/2019. (nmf) (Entered: 05/16/2019)
121 Transcript of Motion Hearing held on 11−19−2018, before Judge Reona J. Daly. Court Reporter Stephanie Rennegarbe, Telephone number 618−439−7735.

NOTICE: Attorneys and unrepresented parties have 7 calendar days to file a Notice of Intent to Request Redaction of this transcript and 21 calendar days to file a Redaction Request. If redactions are not requested, the transcript will be made remotely available to the public without redaction after 90 calendar days. See the full Transcript Policy on the website at http://www.ilsd.uscourts.gov/forms/TransPolicy.pdf

07/25/2019 07/26/2019

Transcript may be viewed at the public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/10/2019. Redacted Transcript Deadline set for 6/20/2019. Release of Transcript Restriction set for 8/19/2019. (skr) (Entered: 05/20/2019)
122 MOTION to Dismiss Claims For Injunctive and Declaratory Relief by John Baldwin, John Varga. Responses due by 8/29/2019 (McClimans, Christine) (Entered: 07/25/2019)
123 MOTION for Extension of Time by John Baldwin, Jacob Blackburn, Officer Burley, Christopher Doering, Taylor Gee, Kevin Kink, Susan Kunde, Arthur Manzano, John Varga. (McClimans, Christine) (Entered: 07/26/2019)

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 16 of 17

07/29/2019
12/04/2019
02/06/2020 02/06/2020
02/07/2020 02/07/2020 02/07/2020 02/25/2020 02/26/2020
03/11/2020 03/18/2020 03/23/2020

124 ORDER GRANTING 123 MOTION for Extension of Time filed by Kevin Kink, Taylor Gee, Officer Burley, Arthur Manzano, John Baldwin, John Varga, Jacob Blackburn, Christopher Doering, Susan Kunde. The Court notes Defendants' representation that Plaintiff does not agree to Defendants' proposed extension. However, the Court finds good cause and GRANTS Defendants an extension of time, up to and including August 26, 2019, to respond to Plaintiff's second request for production of documents. Signed by Magistrate Judge Reona J. Daly on 7/29/2019. (nmf)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/29/2019)
125 ORDER: Pursuant to Administrative Order 257, effective immediately, this case will no longer be referred to a Magistrate Judge for pretrial proceedings. All future documents must bear case number 18−550−NJR. Signed by Chief Judge Nancy J. Rosenstengel on 12/4/2019. (kdw)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/04/2019)
126 ORDER granting 122 Motion to Dismiss. Official capacity claims against John Baldwin and John Varga DISMISSED. Both Defendants will remain in the case in their individual capacities. See Order for specifics. Signed by Chief Judge Nancy J. Rosenstengel on 2/6/2020. (anp) (Entered: 02/06/2020)
127 ORDER TO SHOW CAUSE as to why John Doe Defendants should not be dismissed. Plaintiff had until August 9, 2019 to amend her Complaint, to include the addition of any parties (Doc. 120, p. 2). That deadline has long since passed and Plaintiff has not amended her Complaint to identify the John Does or asked for additional time to amend. Show Cause Response due by 2/27/2020. Signed by Chief Judge Nancy J. Rosenstengel on 2/6/2020. (anp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/06/2020)
128 MOTION for Writ of Habeas Corpus ad testificandum by John Baldwin, Jacob Blackburn, Officer Burley, Christopher Doering, Taylor Gee, Kevin Kink, Susan Kunde, Arthur Manzano, John Varga. (McClimans, Christine) (Entered: 02/07/2020)
129 ORDER granting 128 Motion for Writ of Habeas Corpus ad testificandum. Signed by Chief Judge Nancy J. Rosenstengel on 2/7/2020. (anp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/07/2020)
130 Writ of Habeas Corpus ad Testificandum Issued as to Deon Hampton for 2/19/2020. (anp) (Entered: 02/07/2020)
131 MOTION to Amend/Correct Complaint and RESPONSE to Order to Show Cause filed by Deon Hampton. (Attachments: # 1 Exhibit 1)(del Valle, Vanessa) Modified on 2/26/2020 (kek). (Entered: 02/25/2020)
132 NOTICE OF MODIFICATION re 131 Response filed by Deon Hampton. Document includes a motion which would have been more appropriately filed as a separate pleading using the event "Motion to Amend/Correct." Docket entry has been modified accordingly. In addition, document contains a proposed pleading which should not have been filed, rather should be sent via email to the assigned Judge's proposed documents email address. (kek)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/26/2020)
133 RESPONSE in Opposition re 131 MOTION to Amend/Correct and Response to Plaintiff's Response to order to Show Cause filed by Jacob Blackburn, Officer Burley, Christopher Doering, Taylor Gee, Kevin Kink, Susan Kunde, Arthur Manzano, John Varga. (McClimans, Christine) (Entered: 03/11/2020)
134 REPLY to Response to Motion re 131 MOTION to Amend/Correct filed by Deon Hampton. (del Valle, Vanessa) (Entered: 03/18/2020)
135 Joint MOTION to Amend/Correct Scheduling Order by Deon Hampton. (del Valle, Vanessa) (Entered: 03/23/2020)

Case: 3:18-cv-550 As of: 05/21/2020 07:38 PM CDT 17 of 17

03/24/2020
03/24/2020 04/16/2020 04/16/2020 04/30/2020

136 ORDER granting 135 Motion to Amend/Correct. The Court adopts the scheduling order set forth in the motion. Discovery is now due 6/29/2020 as the parties' proposed date falls on a weekend. Dispositive motions due 10/28/2020. Signed by Chief Judge Nancy J. Rosenstengel on 3/24/2020. (anp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/24/2020)
Set/Reset Deadlines: Discovery due by 6/29/2020. Dispositive Motions due by 10/28/2020. (anp) (Entered: 03/24/2020)
137 ORDER granting 131 Motion to Amend/Correct. Plaintiff to file Second Amended Complaint by 4/24/2020. John Does 1−4 DISMISSED without prejudice. Signed by Chief Judge Nancy J. Rosenstengel on 4/16/2020. (anp) (Entered: 04/16/2020)
138 AMENDED COMPLAINT (SECOND) against Jacob Blackburn, Officer Burley, Christopher Doering, Taylor Gee, Kevin Kink, Susan Kunde, Arthur Manzano, John Varga, filed by Deon Hampton.(del Valle, Vanessa) (Entered: 04/16/2020)
139 ANSWER to 138 Amended Complaint by Jacob Blackburn, Officer Burley, Christopher Doering, Taylor Gee, Kevin Kink, Susan Kunde, Arthur Manzano, John Varga.(McClimans, Christine) (Entered: 04/30/2020)

 Case 3:18-cv-00550-NJR-RJD Document 64 Filed 08/14/18 Page 1 of 32 Page ID #1316

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEON HAMPTON (M15934),

)

)

Plaintiff,

)

)

v.

)

)

ILLINOIS DEPARTMENT OF

)

CORRECTIONS DIRECTOR JOHN

)

BALDWIN, WARDEN KEVIN KINK,

)

WARDEN KAREN JAIMET, WARDEN

)

JOHN VARGA, OFFICER BURLEY,

)

LIEUTENANT GIVENS, OFFICER CLARK, )

OFFICER LANPLEY, OFFICER GEE,

)

INTERNAL AFFAIRS OFFICER

)

MANZANO, INTERNAL AFFAIRS

)

OFFICER BLACKBURN, LIEUTENANT )

DOERING, SERGEANT KUNDE, and

)

JOHN DOES 1-4,

)

)

Defendants.

)

Case No. 18-cv-550 Judge Nancy J. Rosenstengel
JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT Plaintiff Deon “Strawberry” Hampton, by her undersigned attorneys, for her complaint against Illinois Department of Corrections Director John Baldwin, Warden Kevin Kink, Warden Karen Jaimet, Warden John Varga, Officer Burley, Lieutenant Givens, Officer Clark, Officer Lanpley, Officer Gee, Internal Affairs Officer Manzano, Internal Affairs Officer Blackburn, Lieutenant Doering, Sergeant Kunde, and John Does 1-4, alleges as follows:
INTRODUCTION 1. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation under color of law of Plaintiff’s rights as secured by the Eighth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act, and the Illinois Hate Crimes

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Act. 2. Plaintiff is a 27-year-old transgender woman who is currently housed at Dixon
Correctional Center (“Dixon”), a medium security men’s prison. Plaintiff began living as a girl when she was five years old and has continued to live as a young woman throughout her incarceration.
3. Throughout her incarceration, Plaintiff has been improperly housed in men’s prisons; as a result, she has been subjected to grave physical, mental, and emotional danger.
4. Plaintiff has endured violent sexual and physical attacks and emotional abuse at the hands of both staff and prisoners at four different men’s prisons in the last year and a half.
5. Plaintiff was at Pinckneyville Correctional Center (“Pinckneyville”) for about ten months before being transferred to Menard Correctional Center (“Menard”) in retaliation for filing complaints against officers at Pinckneyville who sexually assaulted her and forced her to have sex with her cellmate for their entertainment.
6. For nearly five months while she was housed at Menard, officers constantly verbally harassed Plaintiff and sexually and physically abused her—and had other detainees beat her—both because of her gender and in retaliation for complaints she filed against officers at Pinckneyville. While at Menard, Plaintiff filed a lawsuit against IDOC officials over this abuse. Rather than defend the lawsuit, IDOC officials agreed to transfer Plaintiff from Menard to Lawrence Correctional Center (“Lawrence”), a medium security men’s prison, on January 10, 2018. Plaintiff agreed to this settlement because she feared for her life at Menard.
7. However, Plaintiff did not escape sexual harassment and physical abuse at Lawrence. Officers, mental health staff, and other prisoners subjected her to constant sexual harassment, including the use of derogatory names, as well as other verbal abuse and threats to
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her physical safety. Officers at Lawrence beat her, and made it clear that they would not protect her from other prisoners who wished to harm her. On one occasion, officers failed to protect Plaintiff from a prisoner on the yard who exposed his genitals to Plaintiff and threatened to rape her.
8. Plaintiff has been designated as Seriously Mentally Ill (“SMI”) by the Illinois Department of Corrections (“IDOC”) mental health staff. Her mental health has rapidly deteriorated as a result of the abuse she has suffered in IDOC custody.
9. Due to the accumulation of false disciplinary tickets filed against her by the very officers who abused her at Pinckneyville, Menard, and Lawrence, Plaintiff spent approximately one year in segregation, where she was denied adequate mental health care. Placement in segregation and the lack of mental health care caused Plaintiff’s mental health to further deteriorate. At Lawrence, Plaintiff attempted suicide in her segregation cell multiple times.
10. While still at Lawrence, Plaintiff filed the instant lawsuit and sought emergency relief from this Court, in the form of a preliminary injunction. After filing the lawsuit, Plaintiff was transferred to Dixon on March 16, 2018, and immediately placed in segregation.
11. At Dixon, Plaintiff began receiving adequate mental health treatment while in segregation. Once she was released from segregation, Plaintiff believed the changed circumstances required that she withdraw her Motion for a Preliminary Injunction without prejudice on June 8, 2018.
12. As soon as Plaintiff withdrew her motion, Dixon staff escalated their verbal harassment and began to consistently call her “fag,” “it,” “he-she,” and more. They made it clear that they would not protect her from other prisoners at Dixon, and that they would do what they
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could to get her transferred to a different men’s facility. Officers failed to protect Plaintiff from two different prisoners who sexually assaulted her and threatened to rape her.
13. On June 26, 2018, Plaintiff received three retaliatory tickets from Dixon officers, placing her back in segregation only one month after getting out. Plaintiff, tired of fighting the system that degrades her and refuses to treat her as a woman, immediately attempted suicide when placed back in segregation.
14. Plaintiff’s physical and emotional well-being are in jeopardy at Dixon, and will be in any men’s facility. As a transgender woman with mental health needs, Plaintiff is particularly vulnerable in a men’s prison. Her vulnerability is exacerbated by the fact that her mental health has deteriorated significantly during her time in segregation while officers at these various men’s prisons are purposefully failing in their duty to protect her from harm and in fact are often initiating the abuse because of their hatred and animus towards transgender women. Without court action, IDOC will continue to shuffle Plaintiff from men’s facility to men’s facility where she will continue to be in grave danger.
JURISDICTION AND VENUE 15. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. 16. Venue is proper in this district under 28 U.S.C. § 1391(b) because the events giving rise to the claims asserted in this complaint occurred in this judicial district.
PARTIES 17. Plaintiff is, and has been at all relevant times, an Illinois Department of Corrections prisoner. She is currently confined at Dixon Correctional Center in Dixon, Illinois. 18. Defendant John Baldwin is the Director of the Illinois Department of Corrections (“IDOC”). As such, he was acting under color of law. At all relevant times to the events at issue
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in this case, Defendant Baldwin maintained administrative and supervisory authority over the operations of all prisons in Illinois, including Lawrence and Dixon. At all relevant times, Defendant Baldwin promulgated rules, regulations, policies, and procedures of the IDOC. Defendant Baldwin is sued in his official capacity.
19. Defendant Kevin Kink is the Warden of Lawrence Correctional Center. At all times relevant to the events at issue in this case, Defendant Kink was employed by the Illinois Department of Corrections. As such, he was acting under color of law. At all times relevant to the events at issue in this case, Defendant Kink promulgated rules, regulations, policies, and procedures at Lawrence. Defendant Kink is responsible for supervising all staff and managing all operations at Lawrence. He is sued in his individual capacity.
20. Defendant Karen Jaimet is the Warden of Pinckneyville Correctional Center. At all times relevant to the events at issue in this case, Defendant Jaimet was employed by the Illinois Department of Corrections. As such, she was acting under color of law. At all times relevant to the events at issue in this case, Defendant Jaimet promulgated rules, regulations, policies, and procedures at Pinckneyville. Defendant Jaimet is responsible for supervising all staff and managing all operations at Pinckneyville. She is sued in her individual capacity.
21. Defendant John Varga is the Warden of Dixon Correctional Center. At all times relevant to the events at issue in this case, Defendant Varga was employed by the Illinois Department of Corrections. As such, he was acting under color of law. At all times relevant to the events at issue in this case, Defendant Varga promulgated rules, regulations, policies, and procedures at Dixon. Defendant Varga is responsible for supervising all staff and managing all operations at Dixon. He is sued in his individual and official capacity.
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22. Defendants Officer Burley, Lieutenant Givens, Officer Clark, Officer Lanpley, and John Does 1-4 are officers at Lawrence Correctional Center. At all times relevant to the events at issue in this case, these defendants were acting under color of law and within the scope of their employment with the Illinois Department of Corrections. These defendants are sued in their individual capacities.
23. Defendants Officer Gee, Internal Affairs Officer Manzano, Internal Affairs Officer Blackburn, Lieutenant Doering, and Sergeant Kunde are officers at Dixon Correctional Center. At all times relevant to the events at issue in this case, these defendants were acting under color of law and within the scope of their employment with the Illinois Department of Corrections. These defendants are sued in their individual capacities.
FACTUAL ALLEGATIONS Plaintiff is a Transgender Woman who has Suffered Persistent, Brutal Abuse in Men’s
Prisons 24. Since the young age of five, Plaintiff has identified as a female. Her family and her community also began treating her as a female at a young age. 25. In 2012, Plaintiff was diagnosed with gender dysphoria by an IDOC psychiatrist. 26. Throughout the years, Plaintiff took hormones intermittently to transition her body from male to female. Plaintiff consistently began cross-sex hormone treatment in IDOC custody in July 2016 while housed at Lawrence Correctional Center. 27. From December 2016 to July 2017, Plaintiff’s lab levels showed that her testosterone levels were dropping and her estrogen levels were increasing. By March 2017, Plaintiff was no longer in the male range for testosterone levels and she was in the female range for estrogen levels.
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28. Plaintiff’s recent lab results from January 2018 show that her testosterone levels are currently at <3/ng/dL. The normal reference range for testosterone levels in males is 3001080 ng/dL. This means that Plaintiff can no longer obtain an erection and is therefore chemically castrate and possibly permanently infertile.
29. Plaintiff is and has always been sexually attracted exclusively to men. 30. Plaintiff first entered IDOC custody on her current sentence in April 2015. Despite being a transgender woman, Plaintiff was placed in a men’s prison, Hill Correctional Center, without receiving a formal, in-person review to determine whether she could be appropriately placed in a women’s prison. 31. Since entering IDOC custody, Plaintiff has exclusively been housed in men’s prisons and has experienced persistent harassment and abuse by IDOC staff and prisoners because of her transgender status and because she has been inappropriately housed in men’s prisons. 32. Plaintiff was housed in Pinckneyville from October 2016 to August 23, 2017. While there, correctional officers sexually assaulted her on multiple occasions. For months, officers forced Plaintiff to have sex with her cellmate for their entertainment. When she reported this abuse, the officers retaliated by beating her and threatening to “bury her in segregation.” The officers followed through on this threat by filing false disciplinary charges against her that resulted in a prolonged sentence of segregation—she was placed in segregation on May 24, 2017, and remained in segregation until May 25, 2018. She was also transferred to Menard, a high security men’s prison, as a result of these false charges. 33. Plaintiff was housed in Menard from August 23, 2017, to January 10, 2018. The abuse began immediately when Menard officers attacked her on the bus ride over to Menard.
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While at Menard, officers beat her at least three more times. And on at least one occasion, officers stood by and allowed another prisoner to beat Plaintiff in a holding cell in the infirmary. The officers told her that the abuse and harassment was retaliation for the complaint she filed against the officers at Pinckneyville.
34. The officers at Menard also subjected Plaintiff to constant verbal sexual harassment because of her gender identity, and for weeks, forced her to perform sexually in her cell for their entertainment—they forced her to expose her genitalia and breasts, touch herself sexually, stick her finger in her anus, and move her body in sexually suggestive ways all while they stood outside her cell door and watched.
35. The officers at Menard, like those at Pinckneyville, attempted to cover up their actions by giving Plaintiff false disciplinary tickets, which kept adding to her segregation time.
36. While at Menard, Plaintiff filed a lawsuit against the IDOC and officers who were abusing her. Pursuant to a settlement agreement reached in the lawsuit, Plaintiff was transferred out of Menard to Lawrence on January 10, 2018, where she was immediately placed in segregation.
Plaintiff Has Experienced and Continues to Experience Sexual and Physical Abuse at Lawrence and Dixon
37. Plaintiff was housed at Lawrence from January 10, 2018, to March 16, 2018. While there, Plaintiff was subjected to sexual harassment and threats from both other prisoners and correctional officers.
38. Plaintiff was verbally harassed by officers at Lawrence, including the Defendant Officers as well as Lieutenant Buchanan. The officers called her “gay,” “fag,” “thing,” and “it.” Lieutenant Buchanan told her that she “is in a male facility” and is “still a man no matter what you or media say.”
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39. On or around January 23, 2018, John Does 1-4 escorted Plaintiff to the yard for her recreation time. While at the yard, another prisoner exposed his genitals to Plaintiff and masturbated, all while threatening to rape her. John Does 1-4 did nothing to protect Plaintiff from this prisoner. Plaintiff was terrified that this prisoner would follow through with this threat and so she reported his behavior and filed a PREA complaint. When she told officers about the incident, some officers blamed Plaintiff, telling her that if she were not gay, none of this would have happened.
40. Prison officials eventually informed Plaintiff that video captured the prisoner exposing himself to Plaintiff and therefore her PREA complaint was substantiated. However, the prisoner received no punishment for this incident. IDOC officials then placed the assaultive prisoner in a segregation cell close to Plaintiff’s. He told Plaintiff that he was only in segregation for having contraband, and that Lieutenant Carry and the Adjustment Committee dropped his disciplinary ticket and did not punish him for what he did to her because the staff at Lawrence does not like her and does not want to protect her. Lieutenant Carry was overheard talking about Plaintiff saying, “if she likes dick, why would she call PREA?”
41. This prisoner continued to threaten Plaintiff with harm while she was at Lawrence. Plaintiff lived in fear every day at Lawrence that this prisoner, or another prisoner, would sexually and/or physically assault her because officers at Lawrence made it clear that they would not punish prisoners for hurting Plaintiff.
42. On or around February 18, 2018, Defendant Officer Burley came to Plaintiff’s cell in Lawrence and asked her, “do you want to go to yard, fag?” Plaintiff asked Defendant Officer Burley to stop speaking to her so disrespectfully and told him that she wanted to go to yard.
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43. Defendant Officer Burley cuffed Plaintiff and he, along with Defendants Lieutenant Givens, Officer Clark, and Officer Lanpley led Plaintiff and a few other prisoners outside to the yard.
44. Once they were at the yard, Plaintiff asked if she could do her recreation time in one of the cages so that she could be protected from other prisoners. As she was walking to the cage, Defendant Officer Burley yanked her handcuffs and repeatedly slammed her face into the bars of the cage, while kneeing her in the back.
45. Defendants Lieutenant Givens, Officer Clark, and Officer Lanpley stood by and watched while Defendant Officer Burley assaulted Plaintiff; they did not do anything to stop Defendant Officer Burley.
46. As a result of this assault, Plaintiff suffered many injuries, including a black eye, a swollen face, and skin abrasions. She was treated by medical staff and kept overnight in the medical unit because the medical staff believed it was not safe for her to go back to segregation. Security staff took pictures of Plaintiff’s injuries.
47. To cover up his actions, Defendant Officer Burley filed a disciplinary ticket against Plaintiff for allegedly kicking him during the assault. Plaintiff did not kick Defendant Officer Burley.
48. Internal Affairs Officer Molenhour was responsible for investigating this use of force incident. The day after the incident, IA Molenhour asked Plaintiff if she gave herself the black eye and other injuries. He threatened to extend her out date if she did not give up her complaint regarding this incident; he told her that if she gave up her complaint, he would give her some good time back. IA Molenhour had told Plaintiff in the past that he would not investigate any of her PREA complaints and that he would not interview any of her witnesses.
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Plaintiff received one month additional segregation time and one month “C grade” privilege restriction as a result of this incident.
49. On or around February 21, 2018, after making a PREA complaint regarding the harassment she had been experiencing at Lawrence, Officer Rue wrote Plaintiff a disciplinary ticket charging Plaintiff with sexual misconduct for allegedly playing with her breasts. Plaintiff did not engage in any type of sexual misconduct.
50. At her hearing on this ticket, Lieutenant Carry denied Plaintiff the opportunity to contest the allegations and found her guilty of the charge. Plaintiff received three additional months in segregation and three months of “C grade” privilege restriction as a result.
51. Plaintiff feared for her life at Lawrence and faced serious physical and emotional injury there.
52. Plaintiff filed a number of grievances—including emergency grievances— regarding the denial of access to mental health services in segregation and the physical and sexual abuse she endured at Lawrence. Plaintiff sent her emergency grievances to Director John Baldwin and to Warden Kevin Kink. On February 26, 2018, Plaintiff received a letter from Director Baldwin’s office, stating that her grievance was improperly filed with the Director. On February 27, 2018, Warden Kink returned her grievances, rejecting them as emergency grievances and stating that she needed to file the grievances using the normal procedures.
53. On March 8, 2018, Plaintiff filed the instant lawsuit and a Motion for a Preliminary Injunction, seeking emergency relief from conditions arising out of her placement in Lawrence, namely physical and sexual violence, unlawful discrimination, denial of mental health care, and unlawful placement in segregation.
54. On March 16, 2018, Plaintiff was transferred to Dixon and immediately placed in
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segregation. 55. On June 8, 2018, Plaintiff withdrew her Motion for a Preliminary Injunction after
beginning to receive adequate mental health treatment at Dixon and being released from segregation.
56. Since arriving at Dixon, and particularly after withdrawing her Motion for Preliminary Injunction, Plaintiff has been subject to assaults, harassment, and threats from both other prisoners and correctional officers. Staff at Dixon have continuously failed to protect her from other prisoners.
57. Shortly after arriving at Dixon, one prisoner began sexually harassing Plaintiff. While Plaintiff and other prisoners were on the yard, this prisoner sexually assaulted Plaintiff by groping her breasts and exposing himself. Despite this, staff at Dixon did not do anything proactive to protect Plaintiff. This prisoner was never disciplined for this incident and told Plaintiff that the reason he received no punishment was because “IA does not like her.”
58. For weeks from late May to early June, another prisoner sexually harassed and assaulted Plaintiff by kissing her and groping her breasts and buttocks. He also repeatedly threatened to rape her, stab her, and cause her physical harm. Upon information and belief, despite Plaintiff filing complaints about his behavior, this prisoner was never disciplined for his actions toward Plaintiff.
59. Plaintiff lives every day in fear that these prisoners and others with sexually and/or physically assault her because Dixon staff have made it clear that they will not protect her.
60. Dixon correctional and medical staff constantly call Plaintiff derogatory names such as “faggot,” “it,” “he-she,” and more. A female officer told Plaintiff: “You’re not a real
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woman like me . . . I don’t need surgery.” The verbal harassment escalated after Plaintiff withdrew her Motion for a Preliminary Injunction.
61. Plaintiff has filed multiple grievances (including emergency grievances) and PREA complaints about the officers who are verbally sexually harassing her and about the prisoners who sexually assaulted her and threatened her. In late June, when Plaintiff tried to talk to Assistant Warden Nicholas about filing another PREA complaint, Assistant Warden Nicholas told her she was filing too many PREA complaints and refused to help.
62. Staff have told Plaintiff that they do not appreciate that she writes complaints and “makes work” for them and that they want her transferred out of Dixon. A mental health worker told Plaintiff that Dixon staff was mistreating her and trying to ship her out because of her “lifestyle.”
63. On Friday, June 22, 2018, Plaintiff made another PREA complaint against officers who were verbally sexually harassing her.
64. On Tuesday, June 26, 2018, officers escorted Plaintiff to the Internal Affairs Office where she met with Defendants Officer Gee, IA Officer Manzano, and IA Officer Blackburn. IA Officer Manzano informed Plaintiff that she was being written up for an inmate assault and was going to segregation. When Plaintiff asked for an investigation into the inmate assault, IA Officer Manzano responded that he was tired of her constantly filing complaints and that he was going to do whatever he could “to try to ship [her] out of this joint.” The officers also threatened to give her segregation for a year and take away more of her good-time credits.
65. When Plaintiff begged the officers not to take her back to segregation and refused to cooperate with the officers, Defendants Lieutenant Doering and Sergeant Kunde maced her in the face repeatedly, while Officer Gee, IA Officer Manzano, and IA Officer Blackburn stood by
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and watched. While the officers were macing Plaintiff, she rolled up into a ball on the floor and covered her face, struggling to breathe—she suffered a flashback to her prior abuse at Pinckneyville and feared for her life, cried, and begged for help. IA Manzano responded to her cries for help by saying, “no, this is what you get for filing complaints.” Plaintiff received a second disciplinary ticket for allegedly assaulting staff while they maced her—this is a complete fabrication. She received a third disciplinary ticket for refusing to cooperate with the officers.
66. Based on one or all of these tickets, Plaintiff was placed back in segregation on Tuesday, June 26, 2018. Plaintiff was given four months segregation time as a result of these retaliatory tickets.
Plaintiff’s Mental Health Has Deteriorated in Segregation 67. Plaintiff has spent over one year in segregation. When Plaintiff was first placed in segregation back in May 2017, she was not properly classified as SMI—even though she met IDOC’s criteria for SMI—and therefore no consideration was given to the impact segregation would have on her mental health. 68. On July 14, 2017, an IDOC psychiatrist diagnosed Plaintiff with Bipolar Disorder and prescribed her Lithium. He also labeled her as SMI. 69. While at Pinckneyville in August 2017, Plaintiff was served two disciplinary reports that extended her segregation time. After each incident, mental health staff was consulted and stated that placement in segregation would negatively impact Plaintiff’s mental health. Yet the medical opinions of the mental health professionals were ignored and IDOC security staff continued to leave Plaintiff in segregation. 70. Despite being designated as SMI, Plaintiff’s mental health treatment plan was not updated for months while she was in segregation at Pinckneyville and Menard. Her treatment
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plan was finally updated in January 2018 when she was moved to Lawrence. 71. Before being placed in segregation, Plaintiff participated in psychosocial support
groups to help her deal with issues facing people with Gender Dysphoria, which she requires and are necessary to treat Gender Dysphoria. However, while she was in segregation, Plaintiff was denied these transgender support groups. IDOC staff at Dixon have informed her that she will continue to be denied these transgender support groups for as long as she remains in segregation.
72. Plaintiff did not receive appropriate mental health services while she was in segregation at Pinckneyville, Menard, and Lawrence. Instead of receiving the required and necessary enhanced mental health treatment to ameliorate the distress caused by being in segregation, Plaintiff received less treatment.
73. When Plaintiff first arrived at Lawrence, she attended mental health group counseling. However, during a group session when she expressed her frustration with the constant sexual harassment she experiences as a woman in a men’s prison, she was reprimanded by the mental health counselors. After that session, the counselors prohibited her from going to group for approximately one month. When she was finally allowed to go to group again, the counselors continued to reprimand and verbally abuse her. The counselors called her derogatory names and threatened her with harm—including more segregation time if she did not stop filing PREA complaints.
74. Mental Health Counselor Basnett at Lawrence repeatedly called Plaintiff a “fag,” and told Plaintiff that she would “never be a real woman.” Counselor Basnett warned Plaintiff that if she kept filing PREA complaints, she would “burry her in seg.” Counselor Basnett wrote Plaintiff a ticket on February 7, 2018, falsely claiming that Plaintiff threatened her.
75. Medical and security staff at Lawrence and Dixon constantly use male pronouns
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instead of female pronouns when referring to and talking to Plaintiff. The pervasive and continual misgendering of Plaintiff is harmful to her mental health.
76. While in segregation at Lawrence, Plaintiff was unable to have any contact with her family, including her mother and siblings. She was not able to call her family members or send mail out to her family. When her mother and brother attempted to visit her on her birthday on February 16, 2018, the facility asserted that Plaintiff’s unit was on lock-down, and did not allow the visit to proceed.
77. For the most part while in segregation at Lawrence, Plaintiff was locked alone in her cell for 24 hours a day—she was occasionally let out to shower. She was not allowed to go the yard at Lawrence from February 18, 2018, until she was transferred, despite Department rules requiring that all SMI prisoners in segregation be permitted at least six hours of yard per week.
78. As a result of her isolation, the verbal abuse, and lack of adequate mental health treatment in segregation, Plaintiff’s mental health substantially deteriorated. She began experiencing difficulty sleeping and had reoccurring panic attacks. She still suffers from flashbacks to her sexual assault experiences at Pinckneyville, Menard, and Lawrence. She has high anxiety and severe depression.
79. Plaintiff began to experience periods of high blood pressure after her arrival at Lawrence. Her high blood pressure is due to her anxiety arising out of her mistreatment at the men’s prisons.
80. Plaintiff also began to experience suicidal ideations as a result of her isolation and untreated mental health needs. In early February 2018, while at Lawrence, Plaintiff attempted suicide on at least four occasions by tying a sheet around her neck. One officer who found her
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with a sheet around her neck told her to “stop being a cry baby diva.” After each suicide attempt at Lawrence, IDOC staff placed Plaintiff on crisis watch for one day and then returned her to her segregation cell. But she received no counseling or any other mental health interventions.
81. While Plaintiff was naked in the crisis cell at Lawrence, she was subjected to extreme cold temperatures. The officers ignored her complaints about the cold temperatures and kept the air conditioning on. As a result, Plaintiff became ill and developed a high fever, but officers denied her access to medical treatment.
82. Plaintiff repeatedly told the mental health counselors and security staff at Lawrence that she was in emotional distress because of her placement in segregation, but they refuse to provide her any treatment. Mental Health Counselor Gay told Plaintiff to “just tell her lawyer.”
83. Plaintiff saw a psychiatrist in the middle of February 2018, and she told him everything that she had been experiencing and that she was having suicidal ideations. The psychiatrist told her that he would follow up with the mental health staff to determine why she was not receiving adequate care. She did not hear back from the mental health staff or the psychiatrist regarding this issue.
84. Plaintiff was in segregation for approximately one year between May 24, 2017, and May 25, 2018. Plaintiff was then released from segregation at Dixon for approximately one month, and then placed back in segregation on June 26, 2018.
85. On June 26, 2018, after being placed back in segregation at Dixon, Plaintiff attempted suicide by hanging. She twisted a sheet to make a rope, tied one end around her neck, and the other around part of her bed to hang herself. Staff found her unconscious and dragged her out of her cell, placing her under restraint until mental health staff arrived. She was put on
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crisis watch. 86. While on crisis watch, Plaintiff was housed in a cell with mold and blood on the
walls. Upon information and belief, Plaintiff did not see or speak to the mental health counselors that have been working with her since she arrived at Dixon, Jamie Weigand and Kim Hvarre, while she was on crisis watch.
87. On Friday, June 29, 2018, Plaintiff left crisis watch, but immediately thereafter had a panic attack and was found trying to hang herself again. She was put back on crisis watch until on or about July 2, 2018, when she was returned to segregation.
88. In segregation, Plaintiff again will not have access to transgender support group. 89. Plaintiff continues to feel unstable and experience suicidal ideations. 90. The warden at every institution is responsible for approving placements in segregation and has the authority to override any disciplinary sanction. Defendants Warden Jaimet at Pinckneyville, Warden Kink at Lawrence, and Warden Varga at Dixon all approved Plaintiff’s placement in segregation at their respective institutions. Despite being aware of Plaintiff’s denial of access to adequate mental health services in segregation and her deteriorating mental state in segregation, these Defendants refused to override her retaliatory disciplinary infractions and remove her from segregation. 91. On June 29, 2018, Plaintiff sent an emergency grievance to Warden Varga, Director John Baldwin, and the Administrative Review Board, regarding her improper placement in a men’s facility, the harassment and abuse she has endured at Dixon, the retaliatory discipline she has received, and her deteriorating mental state in segregation. On July 16, 2018, Warden Varga responded to Plaintiff’s emergency grievance and refused to provide her with any of the relief she requested.
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Policy and Practice Allegations 92. The pattern of abuse demonstrates that Plaintiff will endure cruel and unusual at any IDOC men’s prison. Plaintiff believes that the only way she will be safe is if she is transferred to a women’s prison. Plaintiff has repeatedly requested such transfer. The IDOC’s Gender Identity Disorder Committee recently reviewed Plaintiff’s placement in a men’s prison on April 10, 2018, and concluded that her placement is appropriate. 93. According to the 2016 Prison Rape Elimination Act (“PREA”) reports of IDOC facilities, there were no transgender prisoners in the two female prisons (Logan Correctional Center and Decatur Correctional Center), and 28 transgender women housed throughout the 24 male prisons. 94. Upon information and belief, there are still no transgender prisoners in the two female prisons. All transgender prisoners are currently housed in male prisons where they are at risk of being subjected to sexual and physical abuse. 95. According to the National PREA Resource Center, “Being transgender is a known risk factor for being sexually victimized in confinement settings. The [PREA] standard, therefore, requires that facility, housing, and programming assignments be made ‘on a case-bycase basis.’ Any written policy or actual practice that assigns transgender or intersex inmates to gender-specific facilities, housing units, or programs based solely on their external genital anatomy violates the standard. A PREA-compliant policy must require an individualized assessment. A policy must give ‘serious consideration’ to transgender or intersex inmates’ own views with respect to safety. The assessment, therefore, must consider the transgender or intersex inmate’s gender identity – that is, if the inmate self-identifies as either male or female. A policy may also consider an inmate’s security threat level, criminal and disciplinary
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history, current gender expression, medical and mental health information, vulnerability to sexual victimization, and likelihood of perpetrating abuse. The policy will likely consider facility-specific factors as well, including inmate populations, staffing patterns, and physical layouts. The policy must allow for housing by gender identity when appropriate.” National PREA Resource Center (available at https://www.prearesourcecenter.org/node/3927).
96. The IDOC has a de facto policy of housing transgender prisoners according to their genitalia rather than making an individualized assessment as the PREA regulations require.
97. According to a 2014 report issued by U.S. Department of Justice’s Bureau of Justice Statics, almost 40% of transgender prisoners reported sexual victimization in state and federal prisons—a rate that is ten times higher than for prisoners in general. U.S. Dep’t of Justice, Bureau of Justice Statics, Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12, Supplemental Tables: Prevalence of Sexual Victimization Among Transgender Adult Inmates, December 2014 (available at https//www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf).
98. “Transgender inmates who are assaulted or harassed are often placed in solitary confinement, which, though intended for their protection, is in fact a severe punishment. Isolation takes an enormous psychological toll on inmates, and can put them at increased risk of assault by guards. It deprives them of access to group therapy and educational programs that could improve employment prospects upon release.” Prisons and Jails Put Transgender Inmates at Risk, The Editorial Board, The New York Times, Nov. 9, 2015 (available at https://www.nytimes.com/2015/11/09/opinion/prisons-and-jails-put-transgender-inmates-atrisk.html).
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COUNT I – VIOLATION OF THE EQUAL PROTECTION CLAUSE (Fourteenth Amendment Claim for Declaratory and Injunctive Relief under 42 U.S.C §
1983) 99. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count. 100. Count I is alleged against Defendant John Baldwin in his official capacity. 101. Despite being a transgender woman, Plaintiff was immediately placed in a men’s prison when she entered IDOC custody without any type of formal review on whether placement in a women’s prison would be appropriate. 102. The Gender Identity Disorder Committee has recently reviewed Plaintiff’s placement and has concluded that she is appropriately placed in a men’s prison. IDOC staff has refused to transfer Plaintiff to a women’s prison. 103. By refusing to place Plaintiff in a woman’s prison, IDOC is discriminating against Plaintiff on the basis of her gender identify in violation of the Equal Protection Clause of the Fourteenth Amendment. 104. Plaintiff seeks injunctive and declaratory relief against Defendant John Baldwin in his official capacity to prevent the continued violation of her constitutional rights.
COUNT II – VIOLATION OF THE EQUAL PROTECTION CLAUSE (Fourteenth Amendment Claim for Declaratory and Injunctive Relief under 42 U.S.C §
1983) 105. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count. 106. Count II is alleged against Defendants Director Baldwin and Warden Varga in their official capacities. 107. Since arriving at Dixon, staff have continually subjected Plaintiff to verbal sexual
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harassment due to her gender identity. The verbal harassment is so pervasive and ongoing that it constitutes intentional discrimination on the basis of her gender identity. Plaintiff is subjected to constant insults, threats, intimidation, and humiliation that male prisoners do not endure.
108. Plaintiff seeks injunctive and declaratory relief against Defendants Director Baldwin and Warden Varga in their official capacities to prevent the continued violation of her constitutional rights.
COUNT III – FAILURE TO PROTECT (Eighth Amendment Claim for Damages and Declaratory and Injunctive Relief under 42
U.S.C. § 1983) 109. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count. 110. Count III is alleged against Defendants John Does 1-4, Officer Burley, Lieutenant Givens, Officer Clark, Officer Lanpley, Officer Gee, IA Officer Manzano, and IA Officer Blackburn, as well as Defendants Director Baldwin and Warden Varga in their official capacities. 111. Under settled United States Supreme Court authority, and in accordance with the Eighth Amendment, Plaintiff is entitled to be free from a known and substantial risk of serious harm while in the custody of the State. 112. The Defendants have been and continue to be deliberately indifferent to the substantial risk of harm Plaintiff faces from both prison staff and other prisoners as a transgender women in a men’s prison. 113. Officers at Lawrence and Dixon are aware that other prisoners wish to harm Plaintiff due to her gender identity, yet they disregard the substantial risk that Plaintiff will be harmed by other prisoners by failing to take any measures to abate the risk, in violation of
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Plaintiff’s Eighth Amendment rights. 114. John Does 1-4, knowing that Plaintiff was vulnerable to abuse and sexual assault,
escorted Plaintiff throughout Lawrence without ensuring her safety and protection from other prisoners. These officers allowed Plaintiff to be subjected to harm by the prisoner on the yard who exposed his genitals to Plaintiff and threatened to rape her. Additionally, prison officials refused to punish that prisoner for causing Plaintiff harm.
115. Through their actions and inactions, the Defendants have made it clear to Plaintiff and to other prisoners that they will not protect Plaintiff from harm.
116. Officers at Lawrence were also aware that some correctional officers wished to harm Plaintiff due to her gender identity, yet they disregarded the substantial risk that Plaintiff would be harmed by officers by failing to take any measures to abate the risk, in violation of Plaintiff’s Eighth Amendment rights.
117. Defendant Officer Burley used excessive force against Plaintiff while Defendants Lieutenant Givens, Officer Clark, and Officer Lanpley stood by and watched without intervening.
118. Officers at Dixon, knowing that Plaintiff is vulnerable to abuse and sexual assault, escort Plaintiff throughout Dixon without ensuring her safety and protection from other prisoners. Officers at Dixon failed to protect Plaintiff from two prisoners: one who sexually assaulted Plaintiff on the yard and exposed himself; another who, over the course of weeks, repeatedly sexually assaulted Plaintiff and threatened her with rape and physical harm.
119. Officers at Dixon, including Defendants Officer Gee, IA Officer Manzano, and IA Officer Blackburn, further failed to protect Plaintiff by retaliating against her and threatening her for making complaints, thereby effectively denying and restricting her ability to grieve the harm
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she is enduring. 120. The actions of the individual Defendants were the direct and proximate cause of
the violations of Plaintiff’s constitutional rights and of the damages suffered by Plaintiff, including bodily injury, pain, suffering, emotional distress, anguish, and humiliation.
121. The individual Defendants’ above-described actions and omissions were undertaken with malice and/or reckless disregard for Plaintiff’s clearly established constitutional rights.
122. Additionally, Plaintiff seeks injunctive and declaratory relief against Defendants Director Baldwin and Warden Varga in their official capacities to prevent the continued violation of her constitutional rights.
COUNT IV – CRUEL AND UNUSUAL PUNISHMENT (Eighth Amendment Claim for Damages and Declaratory and Injunctive Relief under 42
U.S.C. § 1983) 123. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count. 124. Count IV is alleged against Defendants Warden Varga, Warden Kink, and Warden Jaimet in their individual capacities, as well as Defendants Director Baldwin and Warden Varga in their official capacities. 125. Plaintiff has a right to be free from cruel and unusual punishment under the Eighth Amendment. 126. By housing Plaintiff in segregation, IDOC staff have imposed conditions on Plaintiff that have exacerbated her serious mental health problems, leading to her suicide attempts. Plaintiff’s placement in segregation constitutes cruel and unusual punishment. 127. By placing and planning to keep Plaintiff in segregation for approximately one
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year, despite her deteriorating mental health, IDOC staff inflicted unnecessary and wanton pain on Plaintiff without any legitimate penological purpose, in violation of Plaintiff’s Eight Amendment rights.
128. By approving Plaintiff’s placement in segregation and refusing to release her from segregation, Warden Varga, Warden Kink, and Warden Jaimet knew of and disregarded a substantial risk of serious harm to Plaintiff’s physical and mental health.
129. The Defendants’ above-described actions and omissions were undertaken with malice and/or reckless disregard for Plaintiff’s clearly established constitutional rights.
130. The actions of the Defendants were the direct and proximate cause of the violations of Plaintiff’s constitutional rights and of the damages suffered by Plaintiff, including bodily injury, pain, suffering, emotional distress, anguish, and humiliation.
131. Additionally, Plaintiff seeks injunctive and declaratory relief against Defendants Director Baldwin and Warden Varga in their official capacities to prevent the continued violation of her constitutional rights.
COUNT V – EXCESSIVE FORCE (Eighth Amendment Claim for Damages under 42 U.S.C. § 1983) 132. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count. 133. Count V is against Defendants Officer Burley, Lieutenant Doering, and Sergeant Kunde. 134. The actions of Defendant Officer Burley described above on February 18, 2018, constituted unreasonable and excessive force, without legal cause, in violation of Plaintiff’s Eighth Amendment rights. 135. The actions of Defendants Lieutenant Doering and Sergeant Kunde described
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above on June 26, 2018, constituted unreasonable and excessive force, without legal cause, in violation of Plaintiff’s Eighth Amendment rights.
136. The misconduct described in this Count was objectively unreasonable and was undertaken intentionally, with malice and knowing disregard for Plaintiff’s clearly established constitutional rights, and not for any legitimate penological purpose.
137. The actions of Defendant Officer Burley were the direct and proximate cause of the violations of Plaintiff’s constitutional rights and of the damages suffered by Plaintiff, including bodily injury, pain, suffering, emotional distress, anguish, and humiliation.
COUNT VI – AMERICANS WITH DISABILITIES ACT (“ADA”) (ADA claim for Declaratory and Injunctive Relief)
138. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count.
139. Count VI is alleged against Defendants Director Baldwin and Warden Varga in their official capacities.
140. As described more fully in the proceeding paragraphs, Plaintiff is a qualified person with a mental disability under the Americans with Disabilities Act and her disability is known to the Defendants. IDOC staff has designated Plaintiff as SMI and has diagnosed her with Gender Dysphoria and Bipolar Disorder.
141. Defendants violated the ADA by discriminating against Plaintiff on the basis of her Gender Dysphoria disability, as described more fully above.
142. Defendants violated the ADA by failing to provide Plaintiff with reasonable accommodations for her Gender Dysphoria disability. The Defendants have denied Plaintiff the reasonable accommodation of a transfer to a woman’s prison.
143. The Defendants violated the ADA by failing to provide Plaintiff with reasonable
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accommodations for her mental disability. The conditions in segregation are worsening her mental disability. Thus, the Defendants must accommodate Plaintiff’s mental disability by finding alternate ways to punish Plaintiff that do not involve segregation and that do not adversely affect her mental disability.
144. Plaintiff seeks injunctive and declaratory relief against Defendants Director Baldwin and Warden Varga in their official capacities to prevent the continued violation of her rights under the ADA.
COUNT VII – UNLAWFUL POLICY AND PRATICE (Monell Claim for Declaratory and Injunctive Relief under 42 U.S.C. § 1983) 145. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count. 146. Count VII is alleged against Defendants Director Baldwin and Warden Varga in their official capacities. 147. The actions of the individual Defendants were undertaken pursuant to policies, practices, and customs of the Illinois Department of Corrections, described above and below, which were ratified by policymakers for the Illinois Department of Corrections with final policymaking authority. 148. At all times material to this complaint, the Illinois Department of Corrections has interrelated de facto policies, practices, and customs related to transgender prisoners which included, inter alia:
(a) improperly housing transgender women prisoners in male prisons instead of the female prisons;
(b) failing to properly train IDOC employees on how to care for and interact with transgender prisoners;
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(c) condoning a culture of harassment and abuse of transgender prisoners in IDOC prisons;
(d) failing to adequately investigate complaints by transgender prisoners related to allegations concerning PREA and other wrongdoing on the part of correctional officers.
149. According to the 2016 PREA reports of IDOC facilities, there were no transgender prisoners in the two female prisons (Logan Correctional Center and Decatur Correctional Center), and 28 transgender women housed throughout the 24 male prisons.
150. Upon information and belief, there are still no transgender prisoners in the two female prisons. All transgender prisoners are currently housed in male prisons where they are at risk of being subjected to sexual and physical abuse.
151. The interrelated policies, practices, and customs alleged above were well known within the Illinois Department of Corrections. During the relevant time period, Defendants Director Baldwin and Warden Varga had notice of these widespread practices by employees at the IDOC, and in particular at Lawrence.
152. The widespread practices were allowed to flourish—and become so well settled as to constitute de facto policy of the IDOC—because governmental policymakers and authority over the same, namely, Defendants Baldwin and Varga, exhibited deliberate indifference to the problem, thereby effectively ratifying it.
153. The interrelated policies, practices, and customs alleged above were the direct and proximate cause of the unconstitutional acts committed by the Defendants and the injuries suffered by Plaintiff.
154. Plaintiff seeks injunctive and declaratory relief against Defendants Baldwin and
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Varga in their official capacities to prevent the continued violation of her constitutional rights and the rights of other transgender women in IDOC custody.
COUNT VIII – ILLINOIS HATE CRIMES ACT (State law claim for Damages and Injunctive Relief) 155. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count. 156. Count VIII is alleged against Defendant Officer Burley, as well as Defendants Director Baldwin and Warden Varga in their official capacities. 157. The Illinois Hate Crimes Act states, in relevant part, that “[i]ndependent of any criminal prosecution” victims of hate crimes “may bring a civil action for damages, injunction or other appropriate relief.” 720 ILCS 5/12-7.1(c). 158. A person commits a hate crime when “by reason of the actual or perceived . . . gender [or] sexual orientation . . . regardless of the existence of any other motivating factor or factors,” he or she commits various offenses, including, inter alia, assault, battery, mob action, and disorderly conduct. 720 ILCS 5/12-7.1(a). 159. Defendant Officer Burley committed a hate crime against Plaintiff by physically assaulting her due to her gender and sexual orientation. 160. As a result of Defendant Officer Burley’s actions, Plaintiff suffered damages, including bodily injury, pain, suffering, emotional distress, anguish, and humiliation. 161. Additionally, Plaintiff seeks injunctive and declaratory relief against Defendants Director Baldwin and Warden Varga in their official capacities to prevent the continued violation of her rights under the Illinois Hate Crimes Act. COUNT IX – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(State law claim for Damages)
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162. Plaintiff repeats and realleges the preceding paragraphs as if fully set forth in this Count.
163. Count IX is alleged against all the individual Defendants. 164. The individual Defendants’ conduct described above was extreme and outrageous. The Defendants’ actions were rooted in an abuse of power and authority, and were undertaken with the intent to cause, or were in reckless disregard of the probability that their conduct would cause, severe emotional distress to Plaintiff. 165. As a direct and proximate result of the Defendants’ actions, Plaintiff suffered and continues to suffer severe emotional distress.
REQUEST FOR RELIEF WHEREFORE, Plaintiff Deon “Strawberry” Hampton requests that this Court enter judgment in her favor against the Defendants in the following manner: 1. Adjudge and declare that the policies, practices, and conduct described in this Complaint are in violation of the rights of Plaintiff under the First, Eighth, and Fourteenth Amendments to the United States Constitution, as well as her rights under the Illinois Hate Crimes Act. 2. Enjoin the Defendants from subjecting Plaintiff to the unlawful policies, practices, and conduct described in this Complaint. 3. Order that Plaintiff be transferred out of Dixon Correctional Center to Logan Correctional Center, the female prison, and placed in general population. 4. Order further injunctive relief necessary to address the ongoing violations suffered by Plaintiff.
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5. Retain jurisdiction of this case until such time as the Defendants have fully complied with all orders of the Court, and there is reasonable assurance that the Defendants will continue to comply in the future with these orders.
6. Award Plaintiff compensatory and punitive damages. 7. Award Plaintiff reasonable attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988. 8. Award Plaintiff such other and further relief as this Court may deem appropriate and just.
JURY DEMAND Plaintiff demands trial by jury.
Dated: August 14, 2018 Respectfully submitted,
DEON “STRAWBERRY” HAMPTON By: /s/ Vanessa del Valle
One of her attorneys Sheila A. Bedi Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-1271 sheila.bedi@law.northwestern.edu vanessa.delvalle@law.northwestern.edu Alan Mills Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411
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Case 3:18-cv-00550-NJR-RJD Document 64 Filed 08/14/18 Page 32 of 32 Page ID #1347 alan@uplcchicago.org CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that she served the foregoing document upon all persons who have filed appearances in this case via the Court’s CM/ECF system on August 14, 2018. /s/ Vanessa del Valle
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 Case 3:18-cv-00550-NJR-RJD Document 105 Filed 11/07/18 Page 1 of 36 Page ID #2095

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.

) ) ) ) ) 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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Case 3:18-cv-00550-NJR-RJD Document 105 Filed 11/07/18 Page 5 of 36 Page ID #2099
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,
1 See Rasho v. Walker, 1:07-cv-1298-MMM (C.D. Ill.). 2 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.
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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
3 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.
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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,
4 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.
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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 history5 in the context of her substantiated PREA complaints and grievances may lead the Committee itself to conclude that Hampton
5 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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Case 3:18-cv-00550-NJR-RJD Document 105 Filed 11/07/18 Page 36 of 36 Page ID #2130 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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 Case 3:18-cv-00550-NJR-RJD Document 46 Filed 07/17/18 Page 1 of 21 Page ID #658

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEON HAMPTON (M15934),
Plaintiff,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS DIRECTOR JOHN BALDWIN, et al.,
Defendants.

)

)

)

)

Case No. 18-cv-550

)

)

Judge Nancy J. Rosenstengel

)

)

)

)

)

PLAINTIFF’S RENEWED MOTION AND MEMORANDUM IN SUPPORT OF A PRELIMINARY INJUNCTION
Plaintiff is a transgender woman currently housed in segregation in Dixon Correctional Center, a medium security men’s prison. Plaintiff has identified as a female since the young age of five. In 2012, she was diagnosed with Gender Dysphoria by an IDOC psychiatrist and began receiving cross-sex hormone treatment while in IDOC custody in July 2016—as a result of the treatment, her testosterone level is virtually nil and she is chemically castrated. Despite being a transgender woman, Plaintiff has exclusively been placed in men’s prisons since entering IDOC custody. Prior to being housed in Dixon, Plaintiff was at Lawrence Correctional Center, Menard Correctional Center, and Pinckneyville Correctional Center; she was constantly sexually and physically abused by officers and other prisoners at all these institutions. When she reported this abuse, the officers at these institutions retaliated by filing false disciplinary charges against her that resulted in Plaintiff’s placement in segregation for approximately one year. Although Plaintiff was released from segregation at the end of May, Dixon staff placed her back in segregation one month later based on two false and retaliatory disciplinary tickets; Plaintiff does not know when she will be released from segregation.

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Plaintiff was transferred from Lawrence to Dixon on March 16, 2018, after she filed the instant lawsuit and her first Motion for a Preliminary Injunction seeking emergency relief from conditions arising out of her placement in Lawrence, namely unconstitutional physical and sexual violence, unlawful discrimination, denial of mental health care, and unlawful placement in segregation. When the Defendants’ initially transferred Plaintiff to Dixon, they began providing her some mental health treatment in segregation. Then, on May 25, 2018, the Defendants released Plaintiff from segregation, housed her in general population, and added group therapy to her mental health treatment plan. Because Plaintiff was no longer experiencing a mental health crisis, she withdrew her Motion for a Preliminary Injunction without prejudice on June 8, 2018.
Immediately upon withdrawing her Motion for Preliminary Injunction, staff at Dixon began treating Plaintiff much worse, placing her in danger and causing the rapid deterioration of her mental health. Dixon staff escalated their verbal harassment based on her gender identity, continuously calling her “faggot,” “fag,” “it,” and “he-she,” among other derogatory terms. Dixon staff have made it clear that they will not protect Plaintiff from other prisoners who wish to harm her due to her gender identity. Staff failed to protect Plaintiff from one prisoner who sexually assaulted Plaintiff by groping her breasts and exposing himself. They also failed to protect Plaintiff from another prison who for weeks sexually harassed and assaulted her by kissing her and groping her private parts; this prison also threatened to rape her and cause her physical harm. When Plaintiff has attempted to speak up about the mistreatment she is enduring at the hands of staff and other prisoners, Dixon staff have chastised her for filing too many complaints.
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On June 26, 2018, Plaintiff received two false, retaliatory disciplinary tickets after officers repeatedly maced her in the face, resulting in her placement back in segregation. At that point, Plaintiff lost all hope and attempted suicide by hanging that same day. Staff found her unconscious and placed her on crisis watch. When she tried to come off crisis watch, she had a panic attack and was found trying to hang herself again. She was put back on crisis watch until July 2, 2018, when she was returned to segregation. Plaintiff continues to feel unstable and experience suicidal ideations. She fears that in segregation, she will try to hurt herself again, and that in general population, she will be hurt by other prisoners and staff. Plaintiff has already faced serious physical and emotional injury since arriving at Dixon and will continue to face a grave risk of serious injury if she remains there.
For these reasons, and pursuant to Federal Rule of Civil Procedure 65, Plaintiff seeks a preliminary injunction ordering Defendants Director John Baldwin and Warden John Vargas in their official capacities to: 1) transfer Plaintiff to Logan Correctional Center, a women’s prison; and 2) remove Plaintiff from segregation.
Preliminary injunctions are granted in extraordinary situations where there is a clear showing of need. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Cooper v. Salazar, 196 F.3d 809 (7th Cir. 1999). The need here could not be more obvious or more immediate. Plaintiff’s situation satisfies each requirement for a preliminary injunction: (1) she will succeed on the merits because Defendants have so clearly violated (i) her rights under the Equal Protection Clause of the Fourteenth Amendment by discriminating against her on the basis of her gender identity and housing her in a men’s prison, and (ii) her rights under the Eighth Amendment by failing to protect her from sexual and physical assault and subjecting her to cruel and unusual punishment; (2) in the absence of intervention by this Court, Plaintiff will suffer irreparable
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harm—namely substantial likelihood that she will continue to be subjected to serious threats to her physical safety and emotional well-being, and she will continue to decompensate in segregation; (3) there is no adequate remedy at law—only an injunction will ensure that Plaintiff is transferred to a women’s prison and removed from segregation; and (4) ensuring that Defendants appropriately house Plaintiff in general population of a women’s facility and protect her from harm will further the public interest and will not harm Defendants in any way. See AM Gen. Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 803-804 (7th Cir. 2002). Thus, this Court must act in order to ensure that Plaintiff’s constitutional rights are not continually violated and that she is appropriately housed.1

I.

Plaintiff’s claims that Defendants violated her constitutional rights under the

Fourteenth Amendment and Eighth Amendment will likely succeed on the

merits.

In order to demonstrate a substantial likelihood of success on the merits, a plaintiff must

demonstrate “a plausible claim on the merits.” Hoosier Energy Rural Elec. Co-op., Inc. v. John

Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009). Courts should not “improperly

equat[e] ‘likelihood of success’ with ‘success.’” Michigan v. U.S. Army Corps of Eng’rs, 667

F.3d 765, 782 (7th Cir. 2011) (quoting University of Texas v. Camenisch, 451 U.S. 390, 394

(1981)). “[T]he threshold for establishing likelihood of success is low.” Id. A plaintiff need

“only to present a claim plausible enough that (if the other preliminary injunction factors cut in

their favor) the entry of a preliminary injunction would be an appropriate step.” Id. at 783. To

determine whether a plaintiff’s legal argument has a likelihood of succeeding, courts use

1 Prior to filing the amended complaint and this motion, undersigned counsel attempted to negotiate a resolution of Plaintiff’s claims with counsel for IDOC and Dixon Correctional Center. Undersigned counsel first initiated contact with counsel for IDOC and Dixon by sending an emergency grievance on Plaintiff’s behalf on June 29, 2018. Since that time, efforts to resolve Plaintiff’s claims have been unsuccessful, thus necessitating the request for emergency relief.
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whatever existing test would be employed to decide the merits of the case. See S./Sw. Ass’n of Realtors v. Evergreen Park, IL, 109 F.Supp.2d 926, 927 (N.D. Ill. 2000).
In this case, Plaintiff has a high chance of success on the merits of all her claims, but below will focus on the claims particularly relevant to the emergency relief she seeks—her Fourteenth Amendment and Eighth Amendment claims.
A. Plaintiff will prevail on her claim that Defendants violated her rights under the Equal Protection Clause by housing her in a men’s facility.
The IDOC houses all non-transgender women in women’s prisons, but forces Plaintiff, a transgender woman, to be housed with men, merely because of the sex stereotypes associated with her assigned birth. This is precisely the type of “intentional and arbitrary discrimination” the Equal Protection Clause of the Fourteenth Amendment forbids. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1050 (7th Cir. 2017). Transgender people can allege that their right to equal protection has been violated when a government entity treats people who fail to conform “to the sex-based stereotypes associated with their assigned sex at birth, differently.” Id. at 1051. To state an equal protection claim under Section 1983, Plaintiff must show that the Defendants “acted with a nefarious discriminatory purpose and discriminated against her based on her membership in a definable class.” D.S. v. East Porter Cty. Sch. Corp., 799 F.3d 793, 799 (7th Cir. 2015). Claims regarding discrimination on the basis of sex are subject to heightened scrutiny. Whitaker, 858 F.3d at 1050. This means that when a sex-based classification is used, the burden rests with the state to show that “the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objects.” Id. (quoting U.S. v. Virginia, 518 U.S. 515, 524 (1996)). Neither the Supreme Court nor the Seventh Circuit have decided whether transgender status is per se entitled to heightened scrutiny. However, the Seventh Circuit in Whitaker applied
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heightened scrutiny to a transgender boy’s equal protection claim against the School District, claiming that the plaintiff had experienced a form of sex-discrimination by being barred from using the boys’ bathroom. Id. at 1051. In that case, the Seventh Circuit found that the plaintiff demonstrated a likelihood of success on his equal protection claim and upheld the district court’s grant of a preliminary injunction enjoining the School District from denying the plaintiff access to the boys’ restroom. Id. at 1052.
Several courts in other districts have also applied heightened scrutiny to equal protection claims involving transgender individuals. See, e.g., Doe v. Massachusetts Dep’t of Correction, et al., No. 17-12255-RGS, 2018 WL 2994403, at *9 (D. Mass. June 14, 2018) (“The trend in recent cases is to apply heightened scrutiny to classifications based on transgender status.” (collecting cases)); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Edu., 208 F. Supp. 3d 850, 873-74 (S.D. Ohio 2016) (applying the Supreme Court’s four-factor test to determine whether a new classification requires heightened scrutiny and concluding that transgender individuals are a quasi-suspect class); Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015) (finding that transgender people are a quasi-suspect class and applying intermediate scrutiny to defendants’ treatment of plaintiff); Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119 (N.D. Cal. 2015) (“the Court concludes that discrimination based on transgender status independently qualifies as a suspect classification under the Equal Protection Clause because transgender persons meet the indicia of a “suspect” or “quasi-suspect classification” identified by the Supreme Court” (citing Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000)); Mitchell v. Price, No. 11-cv-260-wmc, 2014 WL 6982280, at *8 (W.D. Wis. Dec. 10, 2014) (“[a]lthough the issue has yet to be settled in this circuit, the parties agree that Mitchell’s Fourteenth
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Amendment equal protection claims based on her transgender status receive heightened scrutiny” (citing Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2012)).
Further, the Supreme Court has held that heightened scrutiny standard of review, rather than rational basis standard of review applied in certain prison cases, governs a prisoner’s claims of discrimination under the Equal Protection Clause. See Johnson v. California, 543 U.S. 499, 510-11 (2005) (finding that strict scrutiny applied to prisoner’s equal protection claim against corrections officials challenging the policy of racially segregating prisoners because the right not to be discriminated against “is not a right that need necessarily be compromised for the sake of proper prisoner administration”).
Adopting the reasoning in the above cited cases, Plaintiff’s equal protection claims should be analyzed under heightened scrutiny. Plaintiff has experienced sex discrimination analogous to the plaintiff in Whitaker—IDOC refuses to place Plaintiff in a women’s prison despite her status as a transgender woman simply because she was assigned male at birth. Defendants are well aware of Plaintiff’s status as a transgender woman and well aware that she is on cross-hormone treatment, which she began in IDOC custody. According to Dr. George Brown, a psychiatrist who is an expert in providing transgender health care, “there is no medical justification for continuing to house her in a men’s prison. To the contrary, continued housing in a men’s prison will seriously compromise [Plaintiff’s] mental health and prevent her from receiving adequate treatment for her gender dysphoria (GD).” Ex. 1, Dr. Brown 12/1/17 Decl. ¶ 3. Further, to the extent the Defendants rely on the fact that Plaintiff has not yet had sex reassignment surgery to justify her continued placement in a men’s prison, as Dr. Brown explains, “this position conflicts with all reliable medical literature,” and that given her hormone levels, Plaintiff “is functionally chemically castrated.” Id. ¶ 4. Additionally, Dan Pacholke, a
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corrections expert with more than thirty-five years of experience in the field of adult corrections, opines that there is nothing in Plaintiff’s record “that would indicate that she would be a security threat at a women’s correctional facility” and that “[p]lacing [her] at a women’s prison is appropriate.” Ex. 2, Pacholke Report at 6. Accordingly, the Defendants will likely not be able to establish that Plaintiff’s placement in a men’s prison is substantially related to an important government interest. See Massachusetts Dep’t of Correction, 2018 WL 2994403, at *9 (refusing to dismiss transgender woman prisoner’s equal protection claim because “[t]he court agrees with Doe that for present purposes the DOC has not met its burden of demonstrating that housing her and other similarly-situated transgender prisoners in facilities that correspond to their birth sex serves an important governmental interest”); Norsworthy, 87 F. Supp. 3d at 1120 (finding that transgender woman prisoner adequately stated equal protection claim against prison officials for denying her sex reassignment surgery); Mitchell, 2014 WL 6982280, at *11-12 (denying summary judgement on transgender woman prisoner’s equal protection claim against officer who transferred her back to a block where she encountered taunts and threats).
B. Plaintiff will prevail on her claim that Defendants violated her rights under the Equal Protection Clause by constantly sexually harassing her.
Defendants have also intentionally discriminated against Plaintiff by subjecting her to constant verbal sexual harassment, insults, threats, and intimidation that male prisoners do not endure due to her transgender status. It is well settled that sexual harassment is a form of gender discrimination proscribed by the Equal Protection Clause. See, e.g., Locke v. Haessig, 788 F.3d 662, 667 (7th Cir. 2015) (finding that it was clearly established that “sexual harassment by a state actor under color of state law violated the Equal Protection Clause and was actionable under § 1983”); Hickman v. Laskodi, 45 Fed. App’x 451, 455 (6th Cir. 2002) (“This court made clear long before [the date of the incident] that sexual harassment by government official violates the
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Case 3:18-cv-00550-NJR-RJD Document 46 Filed 07/17/18 Page 9 of 21 Page ID #666
Equal Protection Clause.”); Hayut v. State Univ. of N.Y., 352 F.3d 733, 743-49 (2d Cir. 2003) (denying summary judgement on student’s claim that professor violated her rights under the Equal Protection Clause by sexually harassing her). To succeed on a sexual harassment claim, Plaintiff must establish that (1) the harassment was intentional and based on sex and (2) the 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.”).
Plaintiff satisfies both prongs. Since arriving at Dixon and particularly after withdrawing her first Motion for a Preliminary Injunction, the Defendants have constantly harassed her based on her gender identity. On a daily basis, they call her derogatory names such as “fag,” “faggot,” “it,” “he-she,” and more. One female staff member told Plaintiff she is not a real woman. The sexual harassment is so severe and pervasive that it rises to the level of a constitutional violation. See Owens v. Ragland, 313 F. Supp. 2d 939, 944-47 (W.D. Wis. 2004) (denying summary judgement on plaintiff’s equal protection claim where city official made sexually explicit comments and proposals to plaintiff); Joyner v. Snyder, No. 06-3062, 2007 WL 401269, at *2 (C.D. Ill. Feb. 1, 2007) (finding that prisoner sufficiently stated an equal protection violation where prisoner alleged that he was harassed and discriminated against because of his sexual orientation).
C. Plaintiff will prevail on her claim that Defendants violated her rights under the Eighth Amendment by failing to protect her from sexual and physical abuse.
To succeed on a failure to protect claim, Plaintiff must show that (1) she was “incarcerated under conditions posing substantial risk of serious harm” and (2) “the defendants
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acted with ‘deliberate indifference’ to [her] health or safety.” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The sexual and physical abuse Plaintiff has suffered at Dixon constitute “serious harm.” See Farmer, 511 U.S. at 833-34 (treating sexual assault as serious harm); Brown v. Budz, 398 F.3d 904, 910-11 (7th Cir. 2005) (finding that a “beating suffered at the hands of a fellow detainee . . . clearly constitutes serious harm”).
To prove deliberate indifference, Plaintiff must establish that Defendants knew she faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it. See Farmer, 511 U.S. at 847. Plaintiff must show that Defendants had “actual knowledge of the risk.” Washington v. LaPorte Cty. Sheriff’s Dep’t, 306 F.3d 515, 518 (7th Cir. 2002). This “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, 511 U.S. at 842. “If ‘the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.’” Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001) (quoting Farmer, 511 U.S. at 842-43); see also Washington, 306 F.3d at 519 (“Under some circumstances, a risk might be so obvious that actual knowledge on the part of prison officials may be inferred.”). Furthermore, Plaintiff “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.” Farmer, 511 U.S. at 843 (quotation omitted).
First, Defendants have knowledge that Plaintiff faces a substantial risk of serious harm from both other prisoners and staff. Defendants know that Plaintiff is a transgender woman and
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is therefore particularly vulnerable in a men’s facility. See Perkins v. Martin, No. 3:14-cv00191-SMY-PMF, 2016 WL 3670564, at *3 (S.D. Ill. Jul. 11, 2016) (citing Farmer and listing “transgender prisoner with feminine characteristics in male prison” as a “situation where the prisoner plaintiff exhibits characteristics that make them more likely to be victimized”); Doe v. District of Columbia, 215 F. Supp. 3d 62, 77 (D.D.C. 2016) (finding that a jury could infer that prison officials “knew Doe faced a substantial risk of rape because of her status as a transgender woman.”); Zollicoffer v. Livingston, 169 F. Supp. 3d 687, 691 (S.D. Texas 2016) (citing 2011 data from the Bureau of Justice Statistics, which “reported that 34.6% of transgender inmates reported being the victim of sexual assault,” approximately 9 times the rate of other prisoners, and stating that “[t]he vulnerability of transgender prisoners to sexual abuse is no secret.”). Additionally, Defendants know that Plaintiff has already been sexually and physically abused at other men’s prisons—they have actual knowledge of the risk of harm by nature of their participation in Plaintiff’s prior lawsuit, Plaintiff’s grievances and PREA complaints, and prior Internal Affairs investigations.
Second, Defendants disregarded the risk by failing to take reasonable measures to protect Plaintiff from abuse at the hands of other prisoners. The Defendants failed to protect Plaintiff from two prisoners at Dixon: one who sexually assaulted Plaintiff on the yard and exposed himself; another who, over the course of weeks, repeatedly sexually assaulted Plaintiff and threatened her with rape and physical harm. Neither of these prisoners were punished for harming Plaintiff. See Farmer, 511 U.S. at 845 (“one does not have to await the consummation of threatened injury to obtain preventive relief” (citation omitted)); Zollicoffer, 169 F. Supp. 3d at 696 (finding that “Plaintiff sufficiently alleged facts to show that Defendant knew of, and was deliberately indifferent to, the high risk of sexual assault of gay and transgender inmates at the
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TDCJ facilities”); Hoskins v. Dilday, No. 16-CR-334-MJR-SCW, 2017 WL 951410, at *6 (S.D. Ill. Mar. 10, 2017) (finding a strong likelihood that Plaintiff will succeed on the merits of his Eighth Amendment claim where he alleged that he had been physically attacked by several defendants while other defendants did nothing to help him and that he had been threatened with future physical harm); Mitchell v. Baker, No. 13-cv-0860-MJR-SCW, 2015 WL 278852, at *5 (S.D. Ill. Jan. 21, 2015) (finding that Plaintiff has a substantial probability of success of the merits of his Eighth Amendment claim where he alleged that officers victimized him via frequent threats and physical abuse).
D. Plaintiff will prevail on her claim that Defendants violated her rights under the Eighth Amendment by housing her in conditions that constitute cruel and unusual punishment.
The Eighth Amendment prohibits punishments which “involve the unnecessary and wanton infliction of pain” that are “totally without penological justification.” Rhodes v. Chapman, 452 U.S. 337, 345 (1981). To prevail on an Eighth Amendment claim based on the conditions of confinement, Plaintiff must show that (1) the conditions were “‘sufficiently serious’ so that ‘a prison official’s act or omission results in the denial of the minimal civilized measure of life’s necessities’” and (2) the Defendants acted with deliberate indifference to the conditions in question. Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (quoting Farmer, 511 U.S. at 834). The objective prong the Eighth Amendment claim is “contextual and responsive to ‘contemporary standards of decency.’” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (citation omitted); see also Whitley v. Albers, 475 U.S. 312, 327 (1986) (explaining that the Eighth Amendment prohibits punishments that are “inconsistent with contemporary standards of decency” and “repugnant to the conscience of mankind”).
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Here, Plaintiff was subjected to segregation for one year, released for one month, and then placed back in segregation. The conditions in segregation are worsening her mental illness and causing her extreme emotional pain and suffering. The pain and suffering have escalated to the point where Plaintiff attempted suicide a total of six times (four times at Lawrence and two times at Dixon).
A number of courts have recognized that segregation can have drastic adverse effects on a prisoner’s mental state, even for prisoners without mental illness. See, e.g., Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 567-68 (3d Cir. 2017) (noting that both “psychological damage” and “[p]hysical harm” can result from solitary confinement, including “high rates of suicide and self-mutilation” as well as “more general physical deterioration”); Incumaa v. Stirling, 791 F.3d 517, 534 (4th Cir. 2015) (“Prolonged solitary confinement exacts a heavy psychological toll that often continues to plague an inmate’s mind even after he is resocialized.”); Westefer v. Snyder, 725 F. Supp. 2d 735, 769 (S.D. Ill. 2010) (“Tamms imposes drastic limitations on human contact, so much so as to inflict lasting psychological and emotional harm on inmates confined there for long periods.”); Morris v. Travisono, 499 F. Supp. 149, 160 (D.R.I. 1980) (“Even if a person is confined to an air conditioned suite at the Waldorf Astoria, denial of meaningful human contact for such an extended period may very well cause severe psychological injury.”); see also Davis v. Ayala, 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring) (“the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself”); Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting) (“it is well documented that . . . prolonged solitary confinement produces numerous deleterious harms” (citing Craig Haney, Mental Health Issues in Long- Term Solitary and “Supermax” Confinement, 49 Crime & Delinquency 124, 130 (2003); Stuart Grassian,
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Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Policy 325, 331 (2006))). The overwhelming weight of scientific literature backs these conclusions. Several articles have recognized that “[n]early every scientific inquiry into the effects of solitary confinement over the past 150 years has concluded that subjecting an individual to more than 10 days of involuntary segregation results in a distinct set of emotional, cognitive, social, and physical pathologies.” Kenneth Appelbaum, American Psychiatry Should Join the Call to Abolish Solitary Confinement, 43 J. Am. Acad. Psychiatry & L. 406, 410 (2015) (quoting David H. Cloud, et al., Public Health and Solitary Confinement in the United States, 105(1) Am. J. Pub. Health 18, 18-26 (2015)).
Courts have further held that the serious damage wrought by segregation is particularly pronounced for prisoners with mental illness. See, e.g., Scarver v. Litscher, 434 F.3d 972, 975 (7th Cir. 2006) (conditions of solitary confinement “aggravated the symptoms of [a prisoner’s] mental illness and by doing so inflicted severe physical and especially mental suffering”); Braggs v. Dunn, No. 2:14CV601-MHT(WO), 2017 WL 2773833, at *51 (M.D. Ala. June 27, 2017) (finding prison’s segregation practices “placed prisoners with serious mental-health needs at a substantial risk of continued pain and suffering, decompensation, self-injurious behavior, and even death”); Latson v. Clarke, No. 1:16CV00039, 2017 WL 1407570, at *3 (W.D. Va. Apr. 20, 2017) (“the impacts of solitary confinement can be similar to those of torture and can include a variety of negative physiological and psychological reactions,” effects that “are amplified in individuals with mental illness.”); Coleman v. Brown, 28 F. Supp. 3d 1068, 1095 (E.D. Cal. 2014) (finding that “placement of seriously mentally ill inmates in [segregation] can and does cause serious psychological harm, including decompensation, exacerbation of mental illness, inducement of psychosis, and increased risk of suicide”); Madrid v. Gomez, 889 F. Supp. 1146,
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1265 (N.D. Cal. 1995) (placing a mentally ill prisoner in solitary confinement “is the mental

equivalent of putting an asthmatic in a place with little air to breathe”). Thus Plaintiff has

established that conditions she has had to endure in segregation are sufficiently serious to satisfy

the objective prong.

Plaintiff also satisfies the subjective prong of this Eighth Amendment claim—she has

established that Defendants were and continue to be deliberately indifferent to the harm she is

suffering as a result of segregation. On two separate occasions IDOC mental health staff have

concluded that placement in segregation would negatively impact Plaintiff’s mental health, yet

their opinions were ignored by security staff who continued to prolong her segregation time.

Plaintiff has repeatedly told security and medical staff at Dixon that she is in emotional distress

because of her placement in segregation, and she has attempted suicide two times at Dixon; she

attempted suicide four times at Lawrence. Yet, IDOC continues to house her in segregation.

Further, Plaintiff has demonstrated that there is no penological justification for housing her in

segregation as her discipline is retaliatory.

II.

Plaintiff will suffer irreparable harm in the absence of a preliminary

injunction.

A preliminary injunction is necessary to avert three forms of irreparable harm to Plaintiff:

1) the ongoing violation of her constitutional rights, which in itself constitutes irreparable harm;

2) the continued, serious threats to her physical safety; and 3) the continued, serious threats to

her mental health.

First, the Defendant’s continual deprivation of Plaintiff’s Eighth and Fourteenth

Amendment rights, as previously described, is an irreparable harm sufficient to warrant a

preliminary injunction. See Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978) (“The

existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its

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Case 3:18-cv-00550-NJR-RJD Document 46 Filed 07/17/18 Page 16 of 21 Page ID #673
remedy certainly would serve the public interest.”) (affirming grant of preliminary injunction in prison conditions case); Planned Parenthood of Ind. and Ky., Inc. v. Commissioner, 194 F. Supp. 3d. 818, 835 (S.D. Ind. 2016) (finding that the “presumption of irreparable harm also applies to equal protection violations”).
Second, Plaintiff’s physical safety is at risk. The Defendants have made it clear that they will not protect Plaintiff from other prisoners who wish to harm her. The Defendants already allowed two prisoners to sexually assault and threaten her. See Hoskins, 2017 WL 951410, at *6 (finding that prisoner faced irreparable harm if he remained at Menard, where he “faces physical threats and is prevented from receiving needed medications and food trays at times”); Mitchell, 2015 WL 278852, at *5 (finding that irreparable harm was “undisputed” where plaintiff alleged that officers at Menard victimized him via frequent threats and physical abuse); White v. Jindal, No. 13-15073, 2014 WL 1608697, at *6 (E.D. Mich. 2014) (finding that prisoner would suffer irreparable harm absent a preliminary injunction ordering his transfer to another facility where prisoner claimed that he was beaten by other prisoners and “warned that he would be beaten further if he did not provide ‘protection money’”); Pocklington v. O’Leary, No. 86 C 2676, 1986 WL 5748, at *1 (N.D. Ill. May 6, 1986) (granting TRO and ordering warden not to return prisoner to general population status where plaintiff had been raped by other inmates, notified prison officers, and was ignored by them).
Third, Plaintiff’s mental health is at risk. She has been forced to endure constant sexual and physical abuse at various men’s facilities, including Dixon, which has taken a toll on her mental health. The abusive and restrictive conditions under which Plaintiff is housed are causing her to decompensate. According to Dr. Brown, Plaintiff’s “extended placement in segregation” has caused her to suffer “from a number of mental health crises.” Ex. 1, Dr. Brown 12/1/17
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Case 3:18-cv-00550-NJR-RJD Document 46 Filed 07/17/18 Page 17 of 21 Page ID #674

Decl. ¶ 14. Dr. Brown opines that Plaintiff “has shown clear signs of psychiatric deterioration, including a significant increase in gender dysphoria, anxiety and depression.” Id. Dr. Brown further opines that “her continued placement in segregation is exacerbating her symptoms and putting her at risk of suffering life-long adverse consequences, up to and including death by suicide or by a suicide attempt/gesture that becomes lethal.” Ex. 1, Dr. Brown 3/7/18 Decl. ¶ 2; see also Jones‘El v. Berge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis. 2001) (finding that plaintiffs would suffer irreparable harm absent a preliminary injunction where the conditions at Supermax posed a grave risk of harm to seriously mentally ill inmates). Plaintiff has already attempted suicide multiple times (including two times at Dixon) and there is a serious risk that she will continue to have suicidal ideations.

III.

Plaintiff lacks an adequate remedy at law for ongoing violations of

constitutional rights and risks to safety.

Money will not make Plaintiff whole or protect her from physical and emotional abuse.

Only an order from this Court will accomplish this. See Flower Cab Co. v. Petitte, 685 F.2d 192,

195 (7th Cir. 1982) (stating that in prison conditions cases, “the quantification of injury is

difficult and damages are therefore not an adequate remedy”); Foster v. Ghosh, 4 F. Supp. 3d

974, 983 (N.D. Ill. 2013) (granting preliminary injunction to prisoner requiring medical

attention; no adequate remedy at law exists because “the consequence of inaction at this stage

would be further deteriorated vision in both eyes”); Pocklington, 1986 WL 5748, at *1 (where

prisoner faces a risk of rape,“[d]amages are plainly not an adequate remedy for the kind of

further indignity with which [he] is threatened”).

IV.

Plaintiff will suffer greater harm if a preliminary injunction is denied than

Defendants will suffer if a preliminary injunction is granted and an

injunction is in the public interest.

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The balance of harms tips decidedly in Plaintiff’s favor. The injunction sought here merely requires that the Defendants do their job: protect Plaintiff from abusive staff and prisoners, and house her appropriately. Plaintiff requests transfer to Logan Correctional Center as the best way to protect her from further harm and removal from segregation. Such an injunction would ensure Plaintiff’s health and safety and end her physical and emotional suffering caused by the Defendants. Adhering to this injunction would cause the Defendants minimal harm as “transfers of inmates occur on a daily basis; movement of inmates is normal.” Jones ‘EL v. Berge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis. 2001) (finding that “[t]ransferring five prisoners would not burden the department logistically or financially” and therefore the balance of harms tips in plaintiff’s favor); see also Hoskins, 2017 WL 951410, at *6 (order transfer of inmate out of Menard to another facility because “the burden placed on Defendants by mandating Plaintiff’s transfer is not greater than the risk of irreparable harm to Plaintiff”). Furthermore, without this injunction, Defendants will likely continue to pass Plaintiff from male institution to male institution like a hot potato, exacting greater cost to both them and Plaintiff.
Further, to the extent the Defendants attempt to argue that transferring Plaintiff to a women’s prison would pose a harm to the other women prisoners, this position is unfounded. Dr. Brown explains that refusing to house Plaintiff in a women’s prison simply because she has not yet had sex reassignment surgery “conflicts with all reliable medical literature,” and that given her hormone levels, Plaintiff “is functionally chemically castrated.” Ex. 1, Dr. Brown 12/1/17 Decl. ¶ 4. In addition, Mr. Pacholke, explains that there is nothing in Plaintiff’s record “that would indicate that she would be a security threat at a women’s correctional facility.” Ex. 2, Pacholke Report at 6; see also Hoskins, 2017 WL 951410, at *6 (rejecting defendants’ argument that plaintiff might, in some unspecified way, endanger the public, staff, or other
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Case 3:18-cv-00550-NJR-RJD Document 46 Filed 07/17/18 Page 19 of 21 Page ID #676
inmates if he is transferred because “the risk of harm to Plaintiff outweighs that speculative concern”).
Additionally, removing Plaintiff from segregation pending a resolution on the merits of this case would not cause Defendants any significant harm. If the preliminary injunction is granted but Defendants ultimately prevail in the case, they can return Plaintiff to segregation. On the other hand, without provisional relief, Plaintiff will continue to deteriorate mentally and suffer from suicidal ideations.
Moreover, it is in the public interest to ensure that Plaintiff’s constitutional rights are not violated by correctional officers. See Hoskins, 2017 WL 951410, at *7 (“In this case the public interest is best served by ensuring that corrections officers obey the law.”); Jones ‘EL, 164 F. Supp. 2d at 1125 (“Respect for law, particularly by officials responsible for the administration of the State’s correctional system, is in itself a matter of the highest public interest.”).
V. The Court should waive bond. Under Federal Rule of Civil Procedure 65(c), district courts have discretion to determine
the amount of the bond accompanying a preliminary injunction, and this includes the authority to set a nominal bond. In this case, the Court should waive bond because Plaintiff is indigent, the requested preliminary injunction is in the public interest, and the injunction is necessary to vindicate constitutional rights. See Pocklington, 1986 WL 5748, at *2 (“[B]ecause of [a prisoner’s] indigent status, no bond under Rule 65(c) is required.”); Davis v. Mineta, 302 F.3d 1104, 1126 (10th Cir. 2002) (“minimal bond amount should be considered” in public interest case); Complete Angler, L.L.C. v. City of Clearwater, 607 F.Supp.2d 1326, 1335 (M.D. Fla.
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2009) (“Waiving the bond requirement is particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional right.”).2

CONCLUSION

For the foregoing reasons, the Court should order an evidentiary hearing on the motion

for a preliminary injunction at the earliest possible date and/or enter a preliminary injunction

enjoining Defendants to: 1) transfer Plaintiff to Logan Correctional Center, a women’s prison;

and 2) remove Plaintiff from segregation.

Respectfully submitted,

DEON “STRAWBERRY” HAMPTON

Sheila A. Bedi Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-1271 sheila.bedi@law.northwestern.edu vanessa.delvalle@law.northwestern.edu

By: /s/ Vanessa del Valle One of her attorneys

Alan Mills Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411 alan@uplcchicago.org

2 In addition to the general preliminary injunction requirements discussed above, the Prison Litigation Reform Act requires a court to make certain additional findings when granting a preliminary injunction “[i]n any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a)(2). Specifically, “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” Id. In this case, the requested provisional remedy—transferring Plaintiff to Logan and removing her from segregation—tracks the very constitutional violations that Plaintiff suffered, and therefore is narrowly tailored to remedy them.
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Case 3:18-cv-00550-NJR-RJD Document 46 Filed 07/17/18 Page 21 of 21 Page ID #678 CERTIFICATE OF SERVICE
The undersigned, an attorney, certifies that she served the foregoing document upon all persons who have filed appearances in this case via the Court’s CM/ECF system on July 17, 2018.
/s/ Vanessa del Valle
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 Case 3:18-cv-00550-NJR Document 126 Filed 02/06/20 Page 1 of 3 Page ID #2332

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEON HAMPTON,

Plaintiff,

v.

Case No. 18-cv-550-NJR

JOHN BALDWIN, et al.,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

This matter is before the Court on a motion to dismiss claims for injunctive and

declaratory relief filed by Defendants John Baldwin1 and Warden John Varga (Doc. 122).

Defendants argue that Plaintiff Hampton’s claims which seek only injunctive and

declaratory relief are now moot because she has been released from the Illinois

Department of Corrections (“IDOC”). Hampton had until August 29, 2019 to file a

response but failed to do so. The Court considers the failure to respond an admission of the facts of Defendants’ motion. SDIL Local Rule 7.1(c). See also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (a failure to

respond constitutes an admission that there are no undisputed material facts).

Hampton, a transgender inmate in the Illinois Department of Corrections

(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging Defendants violated her

constitutional rights while she was incarcerated at various correctional centers within

IDOC (Doc. 64). The Amended Complaint consists of nine counts alleging violation of the

1 The Court notes that any official capacity claims would be against the new IDOC Director, Rob Jeffreys.
Page 1 of 3

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Equal Protection Clause, the Eighth Amendment, the Americans with Disabilities Act, the Illinois Hate Crimes Act, and Illinois state law regarding intentional infliction of emotional distress. Hampton’s Fourteenth Amendment Equal Protection claims (Counts 1 and 2), Americans with Disabilities Act claim (Count 6), and her Monell claim (Count 7) were brought against Baldwin and Varga in their official capacities. Further, Hampton’s Eighth Amendment failure to protect claim (Count 3), Eighth Amendment cruel and unusual punishment claim (Count 4), and Illinois Hate Crimes Act claim (Count 8) were also brought against Baldwin and Varga in their official capacities, as well as other defendants in their individual capacities.
It is undisputed that Hampton was released from IDOC custody on July 8, 2019 (Doc. 122, p. 1). It is well established that when a prisoner is transferred or released from IDOC custody her claims for injunctive relief are moot unless she can demonstrate that she is likely to be retransferred. Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir.2012) (Once inmate is released from prison, his request for injunctive relief was rendered moot); Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996); Koger v. Bryan, 523 F.3d 789, 804 (7th Cir. 2008). Here, Hampton has been released from custody and she has not alleged that she is likely to be placed back in IDOC custody. Similarly, Hampton’s claims for declaratory relief against Baldwin and Varga in their official capacities are also now moot. Pearson v. Welborn, 471 F.3d 732, 743 (7th Cir. 2006) (citing Higgason, 83 F.3d at 811). Because Hampton is no longer an inmate at IDOC, the Court FINDS that her claims for injunctive and declaratory relief in Counts 1, 2, 3, 4, 6, 7, and 8 are moot.
Accordingly, the Court GRANTS the motion to dismiss and the claims against John Baldwin and John Varga, in their official capacities, are DISMISSED without
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prejudice. John Baldwin and John Varga remain in the case, in their individual capacities,

for purposes of Hampton’s intentional infliction of emotional distress claim (Count 9).

The case shall now proceed on the merits as to the following claims:

Count Three:

Eighth Amendment failure to protect claim against Defendants John Does 1-4, Officer Burley, Officer Gee, IA Officer Manzano, and IA Officer Blackburn in their individual capacities for failing to ensure Plaintiff’s safety at Dixon and Lawrence despite their knowledge that she is vulnerable to abuse and sexual assault.

Count Four:

Eighth Amendment cruel and unusual punishment claim against Defendants Warden Varga and Warden Kink, in their individual capacities, for placing Plaintiff in segregation, thereby exacerbating her serious mental health problems.

Count Five:

Eighth Amendment excessive force claim against Officer Burley, Lt. Doering, and Sgt. Kunde.

Count Eight:

Claim under the Illinois Hate Crimes Act against Officer Burley in his individual capacity for allegedly physically assaulting Plaintiff due to her gender and sexual orientation.

Count Nine:

Intentional infliction of emotional distress claim against Director Baldwin, Warden Varga, Warden Kink, Lt. Doering, Sgt. Kunde, and Officer Burley in their individual capacities.

IT IS SO ORDERED.

DATED: February 6, 2020

____________________________ NANCY J. ROSENSTENGEL Chief U.S. District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEON HAMPTON,

)

)

Plaintiff,

)

)

v.

)

)

JOHN BALDWIN, KEVIN KINK, KAREN )

JAIMET, OFFICER BURLEY, LT. GIVENS, )

OFFICER CLARK, OFFICER LANPLEY, )

JOHN DOE 1-4, JOHN VARGA, OFFICER )

GEE, OFFICER MANZANO, OFFICER )

BLACKBURN, LT. DOERING, and SGT. )

KUNDE,

)

)

Defendants.

)

Case No. 18-cv-550-NJR-RJD

REPORT AND RECOMMENDATION

DALY, Magistrate Judge:

The matter has been referred to United States Magistrate Judge Reona J. Daly by United

States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of

Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the question

of whether Plaintiff exhausted her administrative remedies prior to filing this lawsuit, as required

by the Prison Litigation Reform Act, 28 U.S.C. § 1997(e)(a). It is RECOMMENDED that the

District Court ADOPT the following findings of fact and conclusions of law, and GRANT IN

PART AND DENY IN PART the Motion for Summary Judgment on the Issue of Exhaustion of

Administrative Remedies filed by Defendants John Baldwin, Karen Jaimet, Kevin Kink, Nicholas

Lanpley, Michael Clark, Jeremy Givens, Jacob Blackburn, Christopher Doering, Taylor Gee,

Susan Kunde, Arthur Manzano, and John Varga (Docs. 36, 37 and 86).

Case 3:18-cv-00550-NJR Document 117 Filed 04/29/19 Page 2 of 27 Page ID #2200

FINDINGS OF FACT

Plaintiff Deon Hampton, an inmate in the custody of the Illinois Department of Corrections

(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging violations of her constitutional

rights. Plaintiff is a transgender woman currently housed in Logan Correctional Center

(“Logan”). At the time of filing, Plaintiff was housed in Lawrence Correctional Center

(“Lawrence”). This case is proceeding on Plaintiff’s First Amended Complaint filed on August

14, 2018 (Doc. 64). In her Amended Complaint, Plaintiff alleges violations of the Eighth and

Fourteenth Amendments, the Americans with Disabilities Act, and the Illinois Hate Crimes Act

related to her incarceration at various IDOC facilities. Plaintiff is proceeding in this action on

the following claims:

Count One: Fourteenth Amendment Equal Protection claim against John Baldwin, the Director of the IDOC, in his official capacity for refusing to place Plaintiff in a women’s prison.

Count Two:

Fourteenth Amendment Equal Protection claim against Director Baldwin and Dixon Warden John Varga in their official capacities related to Plaintiff’s subjection to continued verbal sexual harassment due to her gender identity.

Count Three: Eighth Amendment failure to protect claim against Defendants John Does 1-4, Officer Burley, Lt. Givens, Officer Clark, Officer Lanpley, Officer Gee, IA Officer Manzano, and IA Officer Blackburn in their individual capacities and Director Baldwin and Warden Varga in their official capacities for failing to ensure Plaintiff’s safety at Dixon and Lawrence despite their knowledge that she is vulnerable to abuse and sexual assault.

Count Four:

Eighth Amendment cruel and unusual punishment claim against Defendants Warden Varga, Warden Kink, and Warden Jaimet in their individual capacities, and Director Baldwin and Warden Varga in their official capacities for placing Plaintiff in segregation, thereby exacerbating her serious mental health problems.

Count Five: Eighth Amendment excessive force claim against Officer Burley, Lt.

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Doering, and Sgt. Kunde.

Count Six:

Claim under the Americans with Disabilities Act against Director Baldwin and Warden Varga in their official capacities for failing to provide Plaintiff with reasonable accommodations for her Gender Dysphoria disability.

Count Seven: Monell claim under 42 U.S.C. § 1983 against Director Baldwin and Warden Varga in their official capacities for ratifying and implementing unconstitutional policies related to transgender prisoners.

Count Eight:

Claim under the Illinois Hate Crimes Act against Officer Burley in his individual capacity for allegedly physically assaulting Plaintiff due to her gender and sexual orientation, and against Director Baldwin and Warden Varga in their official capacities to prevent the continued violation of Plaintiff’s rights under the Illinois Hate Crimes Act.

Count Nine: Intentional infliction of emotional distress claim against all individual defendants.

On April 20, 2018, all Defendants (except for Officer Burley) filed a motion for summary

judgment arguing Plaintiff failed to exhaust her administrative remedies prior to filing this lawsuit

(Doc. 36). Plaintiff filed her response on May 24, 2018 (Doc. 41). Following the filing of

Plaintiff’s First Amended Complaint, the Court allowed supplemental briefing on the motion to

address the newly added claims (Docs. 86 and 101). Pursuant to Pavey v. Conley, 544 F.3d 739

(7th Cir. 2008), the Court held a hearing on the issue of exhaustion on November 19, 2018. The

arguments and evidence mentioned in the parties’ briefing and proffered at the hearing is set forth

in the Court’s discussion of the relevant grievances in the record.

A. Grievances Submitted while Plaintiff was at Lawrence

1. February 7, 2018 Emergency Grievance (Doc. 37-1; Doc. 41-1)

Plaintiff filed this grievance with the assistance of counsel1 asserting she is in danger as a

1 Defendants generally argue that the PLRA requires offenders, rather than attorneys or other outside persons, to exhaust their administrative remedies. While the Court recognizes that the Illinois Administrative Code only
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woman placed in a man’s prison and explaining that she has not received the mental health treatment she requires under Department Rules, the Rasho settlement agreement2, the ADA, the Rehabilitation Act, and the Eighth Amendment. This grievance was received by the Lawrence Grievance Office on February 14, 2018. Plaintiff asserts she never received any response to this grievance. District Judge Rosenstengel considered this grievance in her Order on Plaintiff’s Motion for Preliminary Injunction and found that it was exhausted due to the delay in receiving any response, and sufficiently addressed Plaintiff’s requests for preliminary injunctive relief. No argument was heard concerning this grievance at the undersigned’s hearing on the issue of exhaustion.
2. February 8, February 13, and February 14, 2018 Emergency Grievances (see Doc. 412) Plaintiff asserts that the Lawrence Grievance Log demonstrates that the Grievance Office
received emergency grievances on February 8, February 13, and February 14, 2018. The Log indicates that the Warden returned the February 8, 2018 grievance on February 13, 2018. There is no indication that the Warden returned Plaintiff’s February 13 or February 14 grievances. Plaintiff asserts she never received any responses to these grievances and does not have a copy of the same. There is no record of the content of these grievances.
3. February 19, 2018 Emergency Grievance (Doc. 37-2 and Doc. 41-3) In this grievance, Plaintiff complains that she was assaulted by Defendant Burley on
contemplates offenders engaging in the administrative review process, there is nothing in the Code expressly prohibiting outside persons from assisting. Further, the grievances that were submitted with the assistance of counsel were considered at the facility level despite having been drafted by counsel. For these reasons, the Court will consider the grievances Plaintiff submitted with the assistance of counsel over Defendants’ objection. Additional discussion concerning this argument is set forth as it relates to Plaintiff’s grievance dated June 29, 2018. 2 See Rasho v. Walker, 1:07-cv-1298-MMM (C.D. Ill.).
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February 18, 2018. Plaintiff explains that Officer Burley grabbed Plaintiff by the back of her neck and slammed her face into the fence. Plaintiff writes that Officers Givens and Clark (both defendants) witnessed the assault, but did not take any action or intervene. Plaintiff asked Givens for medical attention, but he ignored her request. Plaintiff sent a copy of this grievance directly to Defendant Kink, Defendant Baldwin, and the Administrative Review Board (“ARB”) simultaneously. The ARB received this grievance on February 22, 2018 and returned it on February 28, 2018 without a decision on the merits. Plaintiff was directed to provide her original grievance with her counselor’s response, as well as a copy of the Grievance Officer’s and CAO’s responses. Director Baldwin acted to forward the grievance to Plaintiff’s facility and she was advised that grievances should begin at the facility level (see Doc. 41-3 at 12). Warden Kink received a copy of this grievance on February 23, 2018 and responded on the same date finding that an emergency was not substantiated. Plaintiff was directed to submit her grievance in the normal manner. Warden Kink also received two other grievances dated February 19, 2018 on February 23, 2018 that had been designated as emergencies by Plaintiff. In the first of these other grievances, Plaintiff again complains about the assault by Officer Burley and the issuance of a disciplinary ticket in retaliation for the incident. In the second of these grievances, Plaintiff explains that another inmate told her the adjustment committee dropped his ticket, but they would not drop hers because they do not like her. Warden Kink found these grievances were not of an emergency nature and directed Plaintiff to submit them in the normal manner. There is no indication in the record that Plaintiff pursued her February 19, 2018 grievances any further.
Defendants contend that this grievance was not exhausted and fails to exhaust any claims in this lawsuit as Plaintiff did not follow the proper procedure for exhaustion. Plaintiff asserts
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that denial of this grievance as an emergency by the Warden was a final decision and no further action was necessary. Plaintiff also testified at the hearing that she submitted a letter to the ARB after the warden’s denial. Plaintiff testified that the ARB responded, noting it concurred with the institution. There is no record of Plaintiff’s letter directed to the ARB or its response to the same.
4. February 20, 2018 Emergency Grievance (Doc. 41-4) In this grievance, Plaintiff complains that she has not been able to attend group therapy to
treat her mental illness or gender dysphoria. Plaintiff complains that the mental health counselors have harassed and threatened her. This grievance was received by Warden Kink on February 23, 2018, and he determined that an emergency was not substantiated. Plaintiff was directed to submit her grievance in the normal manner. There is no other documentation in the record concerning this grievance.
Plaintiff contends that this grievance was exhausted after the warden determined an emergency was not substantiated, as it has been found that Plaintiff was experiencing irreparable harm. Plaintiff points to District Judge Rosenstengel’s Order on Plaintiff’s Motion for Preliminary Injunction to support her position concerning irreparable harm (see Doc. 105). See Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“If a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming actual harm can’t be thought available.”). Defendants assert that this grievance was not fully exhausted as Plaintiff took no further action after receiving the warden’s decision on the emergency nature of the same. Defendants also argue that this grievance includes issues beyond what was considered in Judge Rosenstengel’s Order.
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5. February 22, 2018 Emergency Grievance (Doc. 37-3 and Doc. 41-5) This grievance, prepared with the assistance of Plaintiff’s counsel, complains that officials
have failed to protect Plaintiff from a serious risk of harm by placing Plaintiff in a male prison. Plaintiff explains that since arriving at Lawrence she has been subjected to assaults, harassment, and threats from prisoners and correctional officers. Plaintiff also recounts an assault by an unknown officer that occurred on February 19, 2018. More generally, Plaintiff asserts she is being improperly held in segregation and denied access to mental health services. Counsel for Plaintiff sent this grievance to Defendant Warden Kink and Defendant Director Baldwin via email and postal mail, and a copy was also sent to the ARB via postal mail. The CAO at Lawrence received this grievance on February 23, 2018 and indicated on the grievance form: “Emergency. Please expedite.” The Lawrence Grievance Office received this grievance on February 27, 2018 and the Grievance Officer responded on March 5, 2018. The Grievance Officer recommended that the grievance be partially upheld, noting that the PREA allegations and staff conduct have been or are being investigated by internal affairs and all mental health issues are currently being addressed. The CAO concurred with the Grievance Officer’s response on March 7, 2018. On March 12, 2018, Leslie McCarty with the ARB responded to Attorney Bedi’s submission of the grievance sent directly to the ARB and advised her of the dictates of § 504.850 of the Illinois Administrative Code. In particular, McCarty indicated that pursuant to § 504.850, an appeal must be received by the offender. Director Baldwin also responded to the submission of the grievance, explaining that it was forwarded to the CAO at Lawrence (who was already addressing the same).
At the hearing, Plaintiff asserted that because this grievance was treated as an emergency by the facility and was partially upheld, she was not required to appeal the decision to the ARB.
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Defendants contend that Plaintiff did not receive all the relief she was seeking and, as such, she was required to appeal the CAO’s decision to the ARB.
6. February 23, 2018 Emergency Grievances (Doc. 41-6) In these grievances, Plaintiff complains generally about staff misconduct and retaliation.
In particular, Plaintiff explains that she was wrongfully issued a disciplinary ticket by Officer Rue on February 21, 2018. These grievances were received by the CAO on February 28, 2018 and the CAO determined an emergency was not substantiated on the same date. Plaintiff was directed to submit these grievances in the normal manner. There is no other documentation concerning these grievances.
At the hearing, Plaintiff reiterated her argument set forth in regards to her February 20, 2018 grievance concerning the emergency nature of the grievance and Judge Rosenstengel’s Order finding irreparable harm. Defendants maintained that despite Judge Rosenstengel’s Order, Plaintiff should have continued with the administrative review process and submitted her grievance in the normal manner.
7. February 25, 2018 Emergency Grievance (Doc. 41-7) In this grievance, Plaintiff asserts she is being retaliated against for submitting PREA
reports about various officials, including Defendants Clark and Burley. Plaintiff asserts she is being denied segregation yard and transgender group therapy. The CAO determined an emergency was not substantiated on February 28, 2018 and directed Plaintiff to submit this grievance in the normal manner. There is no other documentation concerning this grievance.
Defendants contend that this grievance was not exhausted because Plaintiff failed to submit it in the normal manner as directed by the CAO. Plaintiff again asserts that Judge Rosenstengel’s
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finding of irreparable harm made the administrative review process unavailable and, as such, it was fully exhausted.
B. Grievances Submitted while Plaintiff was at Dixon 1. June 6, 2018 Emergency Grievance (Doc. 86-1)
In this grievance, Plaintiff complains about the adjustment committee’s handling of the incident that allegedly occurred at Lawrence involving Officer Burley. Plaintiff requests a new hearing and that the charges be dismissed or expunged. This grievance was reviewed by the CAO on June 13, 2018 and the CAO determined an emergency was not substantiated. Plaintiff was directed to submit this grievance in the normal manner. The Grievance Officer responded to this grievance on August 3, 2018 and recommended that the disciplinary report be remanded back to the adjustment committee for additional documentation, correction or clarification on offender witness statements. The CAO concurred on August 3, 2018 and Plaintiff appealed the decision to the ARB on August 7, 2018. There is no documentation from the ARB concerning this grievance.
Defendants contend that this grievance was not yet exhausted at the time Plaintiff filed her amended complaint and, in any event, assert that the content of this grievance has nothing to do with the allegations against Defendants who are employed by Dixon. Plaintiff asserts that she is not relying on this grievance to demonstrate exhaustion of her claims.
2. June 17, 2018 Emergency Grievance (Doc. 101-1) In this grievance, Plaintiff asserts she has been verbally abused and threatened by Officer
Blackburn and other male officers since May 25, 2018. Plaintiff requests that Blackburn be trained in how to deal with transgender prisoners and disciplined with a suspension without pay.
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The counselor received this grievance on June 20, 2018 and responded on August 24, 2018, indicating that the staff denies all allegations of misconduct. There is no other documentation concerning this grievance.
At the hearing, Plaintiff asserted that she is not relying on this grievance to demonstrate exhaustion of her claims.
3. June 23, 2018 Emergency Grievance, No. 18-7-53 (Doc. 86-2 and Doc. 101-2) In this grievance, Plaintiff complains that she is experiencing ongoing harassment and
discrimination from staff at Dixon. Plaintiff asserts she is being targeted because of the expression of her gender and referred to as “Mr. Hampton” or “sir.” She explains that employees have told her they do not care if she is raped and correctional officers stare at her to the point it has become harassment. Plaintiff’s counselor responded to this grievance on July 2, 2018, finding that the claims were not substantiated. The Grievance Officer responded on August 21, 2018, finding that the claims had no merit, and the CAO concurred on August 22, 2018. There is no other documentation in the record concerning this grievance.
At the hearing, Plaintiff asserted that she is not relying on this grievance to demonstrate exhaustion of her claims.
4. June 23, 2018 Grievance, No. 18-7-54 (Doc. 86-3 and Doc. 101-3) In this grievance, Plaintiff asserts that since arriving at Dixon she has been sexually
assaulted by two difference inmates. Plaintiff complains that she has made many PREA calls, but no one has interviewed her. She states that she does not feel the IDOC can protect her in a male prison and she is not allowed to express herself as a woman and shop the women’s commissary. Plaintiff’s counselor responded to this grievance on July 2, 2018, finding the grievance moot as
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the incidents complained of were under investigation by IA and noting Plaintiff was being seen by medical and mental health staff. The Grievance Officer responded to this grievance on August 21, 2018 (after Plaintiff’s amended complaint was filed), and the CAO concurred on August 22, 2018. There is no other documentation in the record concerning this grievance.
At the hearing, Plaintiff asserted that she is not relying on this grievance to demonstrate exhaustion of her claims.
5. June 23, 2018 Grievances, No. 18-7-55/56 (Doc. 86-4) In these grievances, Plaintiff complains that she has been denied access to school and job
assignments since entering IDOC custody. Plaintiff contends she has been denied the same because of her transgender status. Plaintiff’s counselor responded to these grievances on July 2, 2018 and June 29, 2018. The Grievance Officer responded on August 21, 2018 (after the amended complaint was filed), and the CAO concurred on August 24, 2018. There is no other documentation in the record concerning this grievance.
At the hearing, Plaintiff asserted that she is not relying on this grievance to demonstrate exhaustion of her claims.
6. June 23/24, 2018 Grievance, No. 18-7-52 (Doc. 86-5 and Doc. 101-4) In this grievance, Plaintiff complains about unknown staff calling her derogatory terms and
referring to her by male pronouns. Plaintiff asks to be transferred to a woman’s prison to ensure she will not be discriminated against and will be allowed to wear tight fitting clothes so she can identify as a woman. Plaintiff’s counselor denied this grievance on July 2, 2018, noting that transfers are not an administrative decision. The Grievance Officer responded on August 21, 2018, and the CAO concurred with the Grievance Officer’s response on August 24, 2018.
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At the hearing, Plaintiff asserted that she is not relying on this grievance to demonstrate exhaustion of her claims.
7. June 29, 2018 Emergency Grievance (Doc. 101-5) This grievance was prepared and submitted on behalf of Plaintiff by her counsel. Plaintiff
grieves the fact that she is in danger as a woman placed in a man’s prison and indicates that she is being sexually harassed by Dixon staff based on her status as a transgender woman. Plaintiff also asserts that Dixon staff members are failing to protect her and that she has been placed in segregation due to retaliatory disciplinary tickets. Plaintiff specifically grieves an incident that occurred with Defendant Officer Manzano, wherein he allegedly maced her in the face, threatened her for making complaints, and wrote her a retaliatory disciplinary ticket.
Plaintiff’s counsel sent this grievance to Defendant Warden Varga and Defendant Director Baldwin via email and postal mail, and to the ARB via postal mail. On July 9, 2018, the ARB sent a letter to Plaintiff’s counsel confirming receipt of the grievance and noting that the ARB would forward the grievance to the CAO at Dixon for handling, per proper procedure. Dixon Warden Varga responded on July 16, 2018 via letter. In Varga’s letter, he explains the grievance and transfer request procedures, references the Department’s policies for sexual abuse and sexual harassment, and describes the provision of mental health services. Varga also asserts that Plaintiff has been meeting with mental health therapists and attending transgender group meetings.
Defendants assert that this grievance was not exhausted as it was not submitted personally by Plaintiff, as required, and Plaintiff did not follow proper grievance procedures. Plaintiff contends that this grievance was exhausted as it was submitted as an emergency, but was not treated as an emergency, causing her administrative remedies to be “unavailable.”
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8. July 4, 2018 Emergency Grievance (Doc. 86-6) In this grievance, Plaintiff complains about staff conduct that occurred at Lawrence. This
grievance sets forth obscene incidents that allegedly occurred at Lawrence, but it is not clear if the incidents complained of were committed by staff or other inmates. This grievance was received by the ARB on July 10, 2018 and the ARB indicated it was being forwarded to Lawrence for an investigation. The ARB letter was dated July 16, 2018. There is no other documentation concerning this grievance.
9. August 1, 2018 Emergency Grievance (Doc. 101-6) In this grievance, Plaintiff complains about staff conduct and retaliation. Plaintiff details
how she was assaulted by another inmate on June 25, 2018. Plaintiff notified Officer Gee, IA Officer Manzano, and IA Officer Blackburn, but they told her she would be going to segregation. The CAO determined an emergency was not substantiated on August 3, 2018, and directed Plaintiff to submit the grievance in the normal manner. The grievance, however, was forwarded to the Grievance Officer to address the PREA concerns. The Grievance Officer found that Plaintiff’s claims were being addressed by Internal Affairs. The Grievance Officer issued his response on August 6, 2018, and the CAO concurred on August 10, 2018. There is no other documentation in the record concerning this grievance.
Plaintiff argues this grievance was exhausted after the CAO determined an emergency was not substantiated pursuant to Judge Rosenstengel’s Preliminary Injunction Order. Defendants conceded that although this grievance was ultimately exhausted, it was only exhausted after Plaintiff filed her Amended Complaint.
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Summary Judgment Standard Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). In considering a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted). Exhaustion Requirements
Pursuant to 42 U.S.C. § 1997e(a), prisoners are required to exhaust available administrative remedies prior to filing lawsuits in federal court. “[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies.” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). “[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment.” Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A]ll dismissals under § 1997e(a)
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should be without prejudice.” Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004). An inmate in the custody of the Illinois Department of Corrections must first submit a
written grievance within 60 days after the discovery of the incident, occurrence or problem, to his or her institutional counselor, unless certain discrete issues are being grieved. 20 ILL. ADMIN. CODE § 504.810(a). If the complaint is not resolved through a counselor, the grievance is considered by a Grievance Officer who must render a written recommendation to the Chief Administrative Officer — usually the Warden — within 2 months of receipt, “when reasonably feasible under the circumstances.” Id. §504.830(e). The CAO then advises the inmate of a decision on the grievance. Id.
An inmate may appeal the decision of the Chief Administrative Officer in writing within 30 days to the Administrative Review Board for a final decision. Id. §_504.850(a); see also Dole v. Chandler, 438 F.3d 804, 806–07 (7th Cir. 2006). The ARB will submit a written report of its findings and recommendations to the Director who shall review the same and make a final determination within 6 months of receipt of the appeal. 20 ILL. ADMIN. CODE § 504.850(d) and (e).
An inmate may request that a grievance be handled as an emergency by forwarding it directly to the Chief Administrative Officer. Id. § 504.840. If it is determined that there exists a substantial risk of imminent personal injury or other serious or irreparable harm, the grievance is handled on an emergency basis, which allows for expedited processing of the grievance by responding directly to the offender. Id. Inmates may further submit certain types of grievances directly to the Administrative Review Board, including grievances related to protective custody, psychotropic medication, and certain issues relating to facilities other than the inmate’s currently
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assigned facility. Id. at § 504.870. CONCLUSIONS OF LAW
The Court has considered each of the grievances detailed above and finds as follows. A. Grievances Submitted while Plaintiff was at Lawrence 1. February 7, 2018 Emergency Grievance (Doc. 37-1; Doc. 41-1)
The Court agrees with Judge Rosenstengel’s finding that this grievance was exhausted due to the institution’s failure to provide a timely response. However, the content of this grievance does not exhaust each of the claims in this lawsuit. Generally, Plaintiff grieves her placement in a man’s prison and complains about inadequate mental health treatment. Plaintiff seeks a transfer to a women’s prison, release from segregation, an updated treatment plan, and the provision of group and other required therapy. No particular individual is named in this grievance. Based on the issues set forth in this grievance, the Court finds it adequately grieved the allegations set forth in Count One and Count Four as against Defendant Baldwin (in his official capacity).
2. February 8, February 13, and February 14, 2018 Emergency Grievances (see Doc. 412) Based on a review of Lawrence’s Grievance Log, it appears the Grievance Office received
emergency grievances dated February 8, February 13, and February 14, 2018. However, there is no other documentation concerning these grievances. As Defendants have not met their burden in demonstrating that Plaintiff failed to exhaust her administrative remedies with respect to these grievances, the Court finds they were exhausted. However, as conceded by Plaintiff, she has no recollection of the content of these grievances and is not intending to rely on the content of the same to establish exhaustion of her claims. As such, these grievances are insufficient to exhaust
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the claims in this lawsuit. 3. February 19, 2018 Emergency Grievance (Doc. 37-2 and Doc. 41-3) The Court finds that Plaintiff failed to exhaust the available administrative remedy process
for her February 19, 2018 grievance. First, the Court considers Plaintiff’s argument that following the warden’s denial of her emergency grievance she was not required to take any further action. In support of this argument, Plaintiff cites Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005), in which the Seventh Circuit remarked that “[t]here is nothing in the current regulatory text … that requires an inmate to file a new grievance after learning only that it will not be considered on an emergency basis.” Notably, the Seventh Circuit left open the possibility that the inmate was required to appeal the non-emergency determination. Id. (“even if the non-emergency determination was a decision that should have been appealed …”). Moreover, since Thornton, the regulatory text of the Illinois Administrative Code has changed. The operative text is 20 ILCS § 504.840, which (in its current form) reads:
An offender may request a grievance be handled on an emergency basis by forwarding the grievance directly to the Chief Administrative Officer.
a) If there is a substantial risk of imminent personal injury or other serious or irreparable harm to the offender, the grievance shall be handled on an emergency basis.
[…] c) If the Chief Administrative Officer determines that the grievance should not be
handled on an emergency basis, the offender shall be notified in writing that he or she may resubmit the grievance as non-emergent, in accordance with the standard grievance process. Subsection (c) was included as an amendment to the regulation in April 2017. Because the facts
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of this case postdate the amendment, subsection (c) must be applied in the Court’s analysis. Subsection (c) and its implications for an inmate’s exhaustion requirements was recently examined in detail by District Judge J. Phil Gilbert in Smith v. Asselmeier, Case No. 3:17-cv-1237-JPGDGW, 2018 WL 3533346 (July 23, 2018 S.D. Ill.), aff’d, No. 18-2832, 2019 WL 1568111, -- F. App’x – (7th Cir. 2019). In Asselmeier, Judge Gilbert considered the language of the text, finding that the use of the word “may” is a mandate that requires a prisoner to resubmit his grievance through the non-emergency procedures. Id. at *2. In support of his conclusion, Judge Gilbert considered other provisions in the Illinois Administrative Code in which the Seventh Circuit has interpreted the word “may” as a mandatory requirement, such as 20 ILCS § 504.850(a). Id. at *3. Judge Gilbert also considered the context of the amendment, finding that if resubmission of the grievance were merely an option, it would render the inclusion of the same meaningless. Id. The Court is not only persuaded by Judge Gilbert’s consideration of the text and its context, but also of Judge Gilbert’s consideration of the logistical concerns if a prisoner could exhaust his administrative remedies solely by filing an emergency grievance instead of going through the standard protocols (if said grievance were deemed to not be of an emergency nature). Indeed, Judge Gilbert noted that if exhaustion could be satisfied solely by submitting an emergency grievance, “then the entire regulatory structure would collapse. Every prisoner would be able to fully exhaust his remedies by filing a frivolous emergency grievance, bypassing the standard procedures that are meant to address these issues on the merits.” Id. The Court agrees with Judge Gilbert’s analysis concerning 20 ILCS § 504.840 and finds that Plaintiff’s attempt to exhaust her February 19, 2018 grievance by submitting it to the warden, without any further action, was insufficient to exhaust her administrative remedies.
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Insofar as Plaintiff asserts that the warden’s denial of the grievance as an emergency was sufficient to exhaust based on Judge Rosenstengel’s Order finding Plaintiff was suffering from irreparable harm, the Court disagrees. The incident complained of in this grievance was not addressed by Judge Rosenstengel in her Order and it is not at all clear that her Order was founded upon a finding that the February 18, 2018 incident was causing or threatening irreparable, imminent harm.
The Court further finds that Plaintiff’s submission of this grievance directly to the ARB was insufficient to exhaust her remedies. The complaints set forth in this grievance do not meet the criteria for submission of a grievance for direct review by the ARB under § 504.870 of the Illinois Administrative Code. Finally, Plaintiff’s reliance on 730 ILCS § 5/3-8-8(c) is misplaced. Her submission of this grievance to Director Baldwin, although allowed under § 5/3-8-8(c), does not equate to satisfaction of her exhaustion requirements.
Based on the foregoing, the Court finds that Plaintiff failed to exhaust her February 19, 2018 grievance.
4. February 20, 2018 Emergency Grievance (Doc. 41-4) In this grievance, Plaintiff complains that she has been unable to attend her group therapies
in retaliation for filing lawsuits against the State. Plaintiff also complains about her placement in a male facility. These issues were addressed in Judge Rosenstengel’s Order on Plaintiff’s motion for preliminary injunction (see Doc. 105). In that Order, Judge Rosenstengel found that Plaintiff’s physical safety was at risk and that she faced irreparable harm absent injunctive relief. In light of this finding, Plaintiff argues the administrative remedy process was exhausted once the warden denied the grievance as an emergency. Insofar as Plaintiff relies on Thornton v. Snyder to support
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this contention, for the reasons set forth above, the Court disagrees. Submission of an emergency grievance to the warden, without any further action once the warden denies the emergency nature of the grievance, is insufficient to exhaust an inmate’s administrative remedies.
Insofar as Plaintiff relies on Fletcher v. Menard Correctional Ctr., 623 F.3d 1171 (7th Cir. 2010), her reliance is misplaced. First, the holding in Fletcher does not excuse a prisoner from exhausting remedies tailored to imminent dangers. Indeed, the Seventh Circuit found that the inmate-plaintiff in Fletcher, who availed himself of the emergency grievance procedure, was too hasty in filing his suit after waiting only two days for a response to his emergency grievance. Id. at 1175. The Court specifically found that the inmate-plaintiff had an available remedy and he had to wait more than two days to test its availability. Id. Here, there is no dispute that the warden responded to this grievance just three days after Plaintiff filed it. The warden denied the emergency nature of the grievance and directed Plaintiff to submit it in the normal manner. As set forth above, submission in the normal manner was not merely a suggestion, but a requirement for exhaustion. Fletcher does not change the procedure Plaintiff was obligated to follow. Notwithstanding Judge Rosenstengel’s subsequent finding of irreparable harm, Plaintiff was required to exhaust her remedies as directed by the institution, which, in this instance, was to submit her grievance in the normal manner. Plaintiff has not provided, and the Court is unaware, of any authority for the Court to determine, after-the-fact, whether the CAO correctly determined whether an emergency was substantiated and alter the grievance requirements after a lawsuit is filed. This outcome would clearly be in contravention of the purpose and letter of the PLRA.
5. February 22, 2018 Emergency Grievance (Doc. 37-3 and Doc. 41-5) Plaintiff invokes the reasoning set forth in Thornton v. Snyder, 428 F.3d 690 (7th Cir. 2005) Page 20 of 27

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to support her exhaustion argument for her February 22, 2018 grievance. The Court agrees. In this grievance, Plaintiff (through her attorneys), set forth a litany of issues concerning her placement at Lawrence, including enduring harassment, assaults, and threats from prisoners and correctional officers, her improper placement in segregation and denial of access to mental health services. Plaintiff requested that she be: (1) transferred to a woman’s prison; (2) released from segregation; and (3) issued an updated treatment plan and receive the group and other therapy required to treat her serious mental illnesses. The Grievance Officer partially upheld the complaints set forth by Plaintiff, noting all PREA allegations/staff conduct were being investigated by internal affairs and that all mental health issues were currently being addressed (the Court also notes that it is not clear what complaints were not being upheld). The CAO concurred. Although Defendants contend that Plaintiff was required to appeal the CAO’s decision because Plaintiff did not receive all of the relief she was seeking, the Court disagrees. The Grievance Officer’s recommendation appears to indicate all issues were being addressed aside from the allegations that occurred at other facilities, but it is not clear how this impacted the relief Plaintiff was requesting. Although Plaintiff may not have been released from segregation or transferred to a women’s prison in response to her filing this grievance, the response she received appeared to indicate such matters were being considered. As noted by the Seventh Circuit in Thornton, not only is it counterintuitive to require Plaintiff to appeal to higher channels after receiving the relief requested, but it is not required by the PLRA. 428 F.3d at 697. Because the Grievance Officer’s response (and CAO’s subsequent concurrence), appeared to address the issues set forth in the grievance, the Court finds it was exhausted prior to the filing of this lawsuit.
Next, the Court must consider which claims were sufficiently exhausted. Based on the Page 21 of 27

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content of the grievance, the Court finds it exhausts the claims set forth in Count One, Count Two against Director Baldwin, Count Three against John Does 1-4 and Director Baldwin, Count Four against Warden Kink and Director Baldwin, Count Six against Director Baldwin, Count Seven against Director Baldwin, and Count Eight against Director Baldwin.
6. February 23, 2018 Emergency Grievances (Doc. 41-6) In this grievance, Plaintiff sets forth complaints concerning her interaction with Officer
Rue on February 21, 2018. Plaintiff also includes general concerns about staff misconduct and retaliation. Plaintiff argues that this grievance, like her February 20, 2018 grievance, was exhausted once the CAO determined an emergency was not substantiated based on Judge Rosenstengel’s finding that she faced imminent, irreparable harm. As discussed supra, the Court disagrees. The CAO responded to this grievance five days after submission. The warden denied the emergency nature of the grievance and directed Plaintiff to submit it in the normal manner. Notwithstanding Judge Rosenstengel’s subsequent finding of irreparable harm, Plaintiff remained bound to exhaust her remedies tailored to imminent dangers, which she did not do. Thus, the Court finds this grievance was not exhausted.
7. February 25, 2018 Emergency Grievance (Doc. 41-7) Plaintiff again grieves issues concerning staff harassment and retaliation at Lawrence.
The CAO determined an emergency was not substantiated three days after filing. The Court applies its discussion above and finds this grievance was not exhausted.
B. Grievances Submitted while Plaintiff was at Dixon 1. June 6, 2018 Emergency Grievance (Doc. 86-1); June 17, 2018 Emergency Grievance
(Doc. 101-1); June 23, 2018 Emergency Grievance, No. 18-7-53 (Doc. 86-2 and Doc. 101-2); June 23, 2018 Grievance, No. 18-7-54 (Doc. 86-3 and Doc. 101-3); June 23,
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2018 Grievances, No. 18-7-55/56 (Doc. 86-4); June 23/24, 2018 Grievance, No. 18-7-52 (Doc. 86-5 and Doc. 101-4) Plaintiff conceded at the hearing that these grievances were either not exhausted prior to filing her Amended Complaint or that she was not relying on them to demonstrate exhaustion of her administrative remedies. Based on Plaintiff’s concessions, the Court need not discuss these grievances further, but finds they are insufficient to exhaust any of the claims in this lawsuit. 2. June 29, 2018 Emergency Grievance (Doc. 101-5) The Court finds that Plaintiff’s June 29, 2018 Emergency Grievance, drafted and submitted on Plaintiff’s behalf by counsel, was sufficiently exhausted because the administrative review process was unavailable to Plaintiff. The crux of the issue here is whether it was procedurally proper for counsel to submit this emergency grievance on Plaintiff’s behalf and whether the institution provided a valid response. First, while the Court recognizes that the Illinois Administrative Code seems to contemplate that offenders themselves shall engage in the administrative review process, there is nothing in the Code that expressly prohibits outside persons from assisting. Moreover, the June 29, 2018 emergency grievance was accepted and considered at the facility level despite having been drafted by counsel and counsel made clear it was being submitted as an emergency grievance (“Pursuant to the procedures set forth in Illinois Administrative Code Title 20 Section 504.840, I am filing this grievance on an emergency basis …”). The Court finds that the question of whether Warden Varga provided a valid response must tip in favor of Plaintiff as it is Defendants’ burden to prove Plaintiff did not exhaust and Warden Varga’s response letter is ambiguous. Varga did not specifically indicate whether or how he was disposing of the grievance, he merely commented on the complaints set forth in the grievance.
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He gave no direction concerning whether an emergency was substantiated or whether Plaintiff’s grievance was being denied or upheld. In light of the ambiguous nature of Varga’s response, the Court must find that Varga failed to adequately respond to the same. Because the Illinois Administrative Code does not provide direction on how to exhaust administrative remedies in this instance, the Court finds that Plaintiff’s administrative remedies were exhausted.
The Court next considers the contents of this grievance and which claims were sufficiently addressed to achieve exhaustion. The Court finds this grievance exhausted the claims set forth in Count One, Count Two, Count Three against Officer Manzano, Officer Gee, Officer Blackburn, and Warden Varga, Count Four against Warden Varga in his official and individual capacity, Count Five against Lt. Doering and Sgt. Kunde, Count Six, Count Seven, and Count Eight against Warden Varga and Director Baldwin.
3. July 4, 2018 Emergency Grievance (Doc. 86-6) The Court finds that this grievance, complaining about staff conduct at Lawrence, was
addressed on the merits by the ARB on July 16, 2018. Although Defendants contend that the ARB’s response was not a decision on the merits, that is not clear based on a plain reading of the same. Thus, Plaintiff exhausted her administrative remedies for this grievance before filing suit. However, the contents of this grievance do not exhaust the claims set forth in Plaintiff’s Amended Complaint.
4. August 1, 2018 Emergency Grievance (Doc. 101-6) The Court finds this grievance was not exhausted prior to the filing of Plaintiff’s Amended
Complaint. The CAO initially determined an emergency was not substantiated and directed Plaintiff to submit it in the normal manner. Based on the reasoning discussed supra, Plaintiff was
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obligated to engage the administrative review process following this decision, but failed to do so. Further, notwithstanding the CAO’s decision as to the emergency nature of the grievance, it was referred to the Grievance Officer to address the PREA concerns cited by Plaintiff. The Grievance Officer found that the PREA claims were addressed by Internal Affairs and recommended no further action. The CAO concurred with this determination on August 10, 2018. Although the Grievance Officer and CAO addressed the merits of Plaintiff’s PREA allegations, her grievance was not upheld and she did not receive the relief she requested. Thus, Thornton v. Snyder, 428 F.3d 690 (7th Cir. 2005), is not applicable and the Court cannot find exhaustion on this basis.
C. Remaining Issues Based on the above discussion, the Court finds Plaintiff sufficiently exhausted her
administrative remedies for Count Nine against the following defendants named in their individual capacities: John Baldwin, John Varga, Warden Kink, Lt. Doering, and Sgt. Kunde.
Finally, the Court notes that because Officer Burley did not move for summary judgment on the issue of exhaustion, any claims against him shall proceed and it was not necessary for the Court to discuss how any of the grievances in the record pertain to Defendant Burley.
RECOMMENDATIONS Based on the foregoing, it is RECOMMENDED that the Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies filed by Defendants John Baldwin, Karen Jaimet, Kevin Kink, Nicholas Lanpley, Michael Clark, Jeremy Givens, Jacob Blackburn, Christopher Doering, Taylor Gee, Susan Kunde, Arthur Manzano, and John Varga (Docs. 36, 37 and 86) be GRANTED IN PART AND DENIED IN PART; that the Court FIND Plaintiff failed to exhaust her administrative remedies as to Count Three against Lt. Givens, Officer Clark, and
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Officer Lanpley, and Count Four against Warden Jaimet; that Defendants Givens, Clark, Lanpley,

and Jaimet be DISMISSED WITHOUT PREJUDICE, and that the Court adopt the foregoing

findings of fact and conclusions of law.

If this Report and Recommendation is adopted in its entirety, Plaintiff will be proceeding

in this action on the following claims:

Count One: Fourteenth Amendment Equal Protection claim against John Baldwin, the Director of the IDOC, in his official capacity for refusing to place Plaintiff in a women’s prison.

Count Two:

Fourteenth Amendment Equal Protection claim against Director Baldwin and Dixon Warden John Varga in their official capacities related to Plaintiff’s subjection to continued verbal sexual harassment due to her gender identity.

Count Three: Eighth Amendment failure to protect claim against Defendants John Does 1-4, Officer Burley, Officer Gee, IA Officer Manzano, and IA Officer Blackburn in their individual capacities and Director Baldwin and Warden Varga in their official capacities for failing to ensure Plaintiff’s safety at Dixon and Lawrence despite their knowledge that she is vulnerable to abuse and sexual assault.

Count Four:

Eighth Amendment cruel and unusual punishment claim against Defendants Warden Varga and Warden Kink, in their individual capacities, and Director Baldwin and Warden Varga in their official capacities for placing Plaintiff in segregation, thereby exacerbating her serious mental health problems.

Count Five: Eighth Amendment excessive force claim against Officer Burley, Lt. Doering, and Sgt. Kunde.

Count Six:

Claim under the Americans with Disabilities Act against Director Baldwin and Warden Varga in their official capacities for failing to provide Plaintiff with reasonable accommodations for her Gender Dysphoria disability.

Count Seven: Monell claim under 42 U.S.C. § 1983 against Director Baldwin and Warden Varga in their official capacities for ratifying and implementing unconstitutional policies related to transgender prisoners.

Count Eight: Claim under the Illinois Hate Crimes Act against Officer Burley in his

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individual capacity for allegedly physically assaulting Plaintiff due to her gender and sexual orientation, and against Director Baldwin and Warden Varga in their official capacities to prevent the continued violation of Plaintiff’s rights under the Illinois Hate Crimes Act.
Count Nine: Intentional infliction of emotional distress claim against all individual defendants.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have fourteen
(14) days after service of this Report and Recommendation to file written objection thereto. The
failure to file a timely objection may result in the waiver of the right to challenge this Report and
Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v.
Nolen, 380 F.3d 279, 284 (7th Cir. 2004).

DATED: April 29, 2019

s/ Reona J. Daly
Hon. Reona J. Daly United States Magistrate Judge

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Federal judge grants preliminary injunction against Illinois prison for mistreatment of transgender inmate (S.D. Ill.)