United States District Court, N.D. Indiana, South Bend Division
ANASTAISA RENEE, also known as Elmer D. Charles, Jr., Plaintiff,
RON NEAL, et al., Defendants.
OPINION AND ORDER
L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT
Renee, also known as Elmer D. Charles, Jr., a prisoner
without a lawyer, filed a complaint against Ron Neal and
Robert Carter. “A document filed pro se is to
be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers . .
.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nevertheless, under 28 U.S.C. § 1915A, this court must
review the complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim, or seeks
monetary relief against a defendant who is immune from such
relief. “In order to state a claim under [42 U.S.C.]
§ 1983 a plaintiff must allege: (1) that defendants
deprived him of a federal constitutional right; and (2) that
the defendants acted under color of state law.”
Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
complaint, Ms. Renee alleges that she is an individual who
identifies as a woman and is incarcerated at the Indiana
State Prison. She complains that the defendants have allowed
male correctional officers to conduct strip searches of her.
In a similar case, the Seventh Circuit found that strip
searches conducted by members of the opposite sex generally
do not violate the Constitution based on the following
[F]emale guards are . . . bound to see the male prisoners in
states of undress. Frequently. Deliberately. Otherwise they
are not doing their jobs ..... [F]emale guards are entitled
to participate in the normal activities of guarding,
including pat-down searches of male inmates.
Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995).
This reasoning applies with equal force to male correctional
officers with respect to Ms. Renee. Though conducting strip
searches for an improper purpose might violate the Eighth
Amendment, Calhoun v. DeTella, 319 F.3d 936, 939
(7th Cir. 2003), Ms. Renee alleges that the purpose of the
strip searches was to prevent contraband from moving through
the kitchen, where she was formerly employed. Ms. Renee's
strip search allegations do not describe a constitutional
Renee further alleges that correctional officers refuse to
refer to her by her chosen name or by female pronouns. Even
assuming that the correctional officers are aware of her
preferences, the failure to honor them is, at most, simple
verbal harassment, which doesn't rise to the level of a
constitutional violation. See DeWalt v. Carter, 224
F.3d 607, 612 (7th Cir. 2000).
Renee also complains that she isn't allowed to purchase
feminine clothing, feminine hygiene products, and make-up
from the commissary. The Eighth Amendment prohibits
conditions of confinement that deny inmates “the
minimal civilized measure of life's necessities.”
Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir.
2008). To establish an Eighth Amendment claim, a plaintiff
must show that the alleged deprivation or condition of
confinement is “sufficiently serious” such that
“a prison official's act results in the denial of
the minimal civilized measure of life's
necessities.” Farmer v. Brennan, 511 U.S. 825,
832 (1994). “[T]he Constitution does not
mandate comfortable prisons, ” Rhodes v.
Chapman, 452 U.S. 337, 349 (1981), but inmates are
entitled to adequate food, clothing, shelter, medical care,
bedding, hygiene materials, and sanitation. Knight v.
Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Gillis
v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006). Ms.
Renee doesn't explain how not having access to feminine
clothing or feminine hygiene products is tantamount to a
denial of necessities or why the clothing and hygiene
products provided are constitutionally inadequate. These
allegations don't describe a constitutional violation.
Renee vaguely complains that she has been denied sex
reassignment surgery. Under the Eighth Amendment, inmates are
entitled to adequate medical care. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). To establish liability,
a prisoner must satisfy both an objective and subjective
component by showing: (1) her medical need was objectively
serious; and (2) the defendant acted with deliberate
indifference to that medical need. Farmer v.
Brennan, 511 U.S. 825, 834 (1994). A medical need is
“serious” if it is one that a physician has
diagnosed as mandating treatment, or one that is so obvious
that even a lay person would easily recognize the necessity
for a doctor's attention. Greeno v. Daley, 414
F.3d 645, 653 (7th Cir. 2005). Deliberate indifference means
that the defendant “acted in an intentional or
criminally reckless manner, i.e., the defendant must have
known that the plaintiff was at serious risk of being harmed
and decided not to do anything to prevent that harm from
occurring even though he could have easily done so.”
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).
Though Ms. Renee has Klinefelter syndrome,  she doesn't
explain why sex reassignment surgery is medically necessary
and instead implies that she is not yet ready to undergo the
procedure. ECF 1 at 30. Moreover, she doesn't describe
the circumstances under which she was denied sex reassignment
surgery or how the denial amounted to deliberate
indifference. This allegation doesn't state a claim of
deliberate indifference to a serious medical need.
Renee alleges that the failure to transfer her to a
women's correctional facility constitutes a violation of
the Double Jeopardy Clause and the Equal Protection Clause.
“The Double Jeopardy Clause protects . . . against
multiple punishments for the same offense.” Brown
v. Ohio, 432 U.S. 161, 165 (1977). The complaint
describes only a single punishment -- incarceration at the
Indiana State Prison under the custody of the Indiana
Department of Correction. To prevail on an equal protection
claim, a plaintiff “must demonstrate intentional or
purposeful discrimination.” Shango v. Jurich,
681 F.2d 1091, 1104 (7th Cir. 1982). She must show “the
decisionmaker singled out a particular group for disparate
treatment and selected his course of action at least in part
for the purpose of causing its adverse effects on the
identifiable group.” Id. Though the particular
group to which Ms. Renee refers is unclear, the complaint
doesn't allege facts showing specific actions taken by
the defendants for the purpose of causing harm to any
plausible identifiable group, including transgender inmates,
intersex inmates, inmates who present as women, or inmates
with Kleinfelter syndrome. Therefore, the complaint
doesn't allege a claim under the Double Jeopardy Clause
or the Equal Protection Clause.
Ms. Renee alleges that she should be transferred due to her
fears about rape and sexual abuse from correctional officers
and inmates. Under the Eighth Amendment, correctional
officials have a duty to protect inmates from violence.
Farmer v. Brennan, 511 U.S. 825, 833 (1994).
“[I]n order to state a section 1983 claim against
prison officials for failure to protect, [a plaintiff] must
establish: (1) that [she] was incarcerated under conditions
posing a substantial risk of serious harm and (2) that the
defendants acted with deliberate indifference to [her] health
or safety.” Santiago v. Walls, 599 F.3d 749,
756 (7th Cir. 2010). The plaintiff must establish “the
defendant had actual knowledge of an impending harm easily
preventable, so that a conscious, culpable refusal to prevent
the harm can be inferred from the defendant's failure to
prevent it.” Id. In failure to protect cases,
substantial risks are ones “so great that they are
almost certain to materialize if nothing is done.”
Brown v. Budz, 398 F.3d 904, 911 (7th Cir. 2005). In
such cases, “a prisoner normally proves actual
knowledge of impending harm by showing that he complained to
prison officials about a specific threat to his
safety.” Pope v. Shafer, 86 F.3d 90, 92 (7th
Cir. 1996). However, “a deliberate indifference claim
cannot be predicated merely on knowledge of general risks of
violence in prison.” Weiss v. Cooley, 230 F.3d
1027, 1032 (7th Cir. 2000).
allegations of rape and sexual abuse are serious, but Ms.
Renee doesn't include enough detail to determine whether
the specific risk of rape or sexual abuse to which she is
exposed is substantial. Further, she does not indicate
whether she informed the defendants of this risk or how they
responded or otherwise explain how they were deliberately
indifferent. These allegations, without more, do not state a
claim upon which relief can be granted.
the complaint doesn't state a claim, Ms. Renee may file
an amended complaint. See Luevano v. Wal-Mart, 722
F.3d 1014 (7th Cir. 2013). A copy of this court's
approved form - Prisoner Complaint (INND Rev. 8/16) - is
available upon request from the prison law library. Merely
because she is permitted to file an amended complaint
isn't a reason for her to do so. Ms. Renee should file an
amended complaint only if she believes that she can address
the deficiencies identified in this order. If she chooses to
file an amended complaint, she must put the cause number of
this case which is on the first page of this order.
these reasons, the court GRANTS Anastaisa Renee, until
September 14, 2018, to file an amended complaint. If
Ms. Renee doesn't (1) respond by that deadline, this case
will be dismissed without further notice pursuant to 28