United States District Court, N.D. Indiana, South Bend Division
ELMER D. CHARLES, JR., also known as Anastaisa Renee, Plaintiff,
RON NEAL, et al., Defendants.
OPINION AND ORDER
L. MILLER, JR. JUDGE
Renee, a prisoner without a lawyer, filed a motion for a
preliminary injunction. She alleges that correctional staff
engaged in egregious sexual misconduct during strip searches
on three separate occasions in January and February 2019, and
she seeks a transfer to a women's correctional facility.
Ms. Renee, an inmate at the Indiana State Prison who
identifies as female, is proceeding on several claims,
alleging that prison officials failed to protect her from
sexual misconduct, and also seeks gender reassignment
purpose of preliminary injunctive relief is to minimize the
hardship to the parties pending the ultimate resolution of
the lawsuit.” Platinum Home Mortg. Corp. v.
Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th
Cir.1998). “In order to obtain a preliminary
injunction, the moving party must show that: (1) they are
reasonably likely to succeed on the merits; (2) no adequate
remedy at law exists; (3) they will suffer irreparable harm
which, absent injunctive relief, outweighs the irreparable
harm the respondent will suffer if the injunction is granted;
and (4) the injunction will not harm the public
interest.” Joelner v. Village of Washington Park,
Illinois, 378 F.3d 613, 619 (7th Cir. 2004).
motion now before the court (ECF 46), Ms. Renee alleges that,
on January 17, 2019, Lieutenant Wilson and another officer
came to her cell to conduct a strip search after an inmate
overdosed nearby. Ms. Renee told the officers that she was
entitled to have a female officer conduct the search, and
Lieutenant Wilson said, “I want to see those
titties.” Ms. Renee asked to see a captain, but
Lieutenant Wilson refused, applied pepper spray, and
threatened to use physical force if she didn't strip.
After Ms. Renee removed her clothes, the offices became
sexually aroused, fondled themselves, and forced Ms. Renee to
fondle her breasts and anus. The officers called three more
officers to the cell, and they watched Ms. Renee as inmates
passed by. She reported the incident to internal affairs. She
was told that the officers had acted inappropriately, but the
officers weren't punished. She also contacted Warden Ron
Neal, who told her that she was in a men's prison and
that she needed to deal with it.
to Ms. Renee, Lieutenant Wilson and another officer arrived
at her cell nine days later, and a similar incident ensued.
She reported the incident to internal affairs, who told her
that the surveillance footage didn't capture the incident
because of the camera's position. She also reported the
incident to Warden Neal, who told her that he was tired of
Ms. Renee “crying and being a tattle tale.” On
February 11, five officers, including Lieutenant Wilson,
arrived at her cell and told her to strip, stating that they
were following orders from the warden. She was also ordered
to dance as thirty male staff members looked on and jeered.
When Ms. Renee complained to the warden, he told her that she
was in a men's facility, “to suck it up and deal
with it, ” and that, if she didn't want to be
treated this way, she shouldn't have filed a lawsuit. She
says she has been subjected to sexual misconduct during strip
searches on 26 occasions since filing this lawsuit on August
Neal filed a response, including grievance records and
declarations from staff. ECF 48. On January 23, 2019, Ms.
Renee filed a grievance, stating that Lieutenant Wilson and
another officer arrived at her cell to conduct a strip search
and threatened to use pepper spray and other forms of
physical force if she didn't comply. ECF 48-2 at 4. When
she complied, Lieutenant Wilson and the other officer made
lewd comments about Ms. Renee's breasts and became
sexually aroused as other inmates walked by. On February 28,
2019, a grievance officer replied that the video recording
did not show other inmates walking by and that the officers
acted professionally and in accordance with policy.
Id. at 3. According to the grievance officer,
departmental policy didn't require female officers to
conduct strip searches on Ms. Renee, and Lieutenant Wilson
denied that he or other staff made any lewd comments.
Rodriguez of the Office of Investigations and Intelligence
attested that she also investigated Ms. Renee's complaint
about the January 17 strip search. ECF 48-3. She interviewed
Ms. Renee and the staff members allegedly involved but
didn't interview inmates because she didn't find that
any were present. Ms. Rodriguez hasn't yet finalized the
investigative report but has concluded that the complaint was
unfounded. She was further unable to find any complaints
regarding staff misconduct on January 26 or February 11 in
Ms. Renee's file.
Wilson attests that he worked in Ms. Renee's cellhouse in
January and February 2019 and has searched her cell. ECF
48-4. He denied using pepper spray on Ms. Renee, ordering Ms.
Renee to engage in sexual conduct, ordering any other
officers to engage in sexual misconduct with Ms. Renee,
calling other officers or inmates to see Ms. Renee unclothed,
or making the lewd statements attributed to him by Ms. Renee
in the instant motion.
Neal attests that neither he nor his assistant have been able
to find any correspondence to or from Ms. Renee. ECF 48-1 at
1-4. He has been unable to find any use of force reports
involving Ms. Renee since January 17, 2019. He says he
reviewed the shift reports from January 17, January 26, and
February 11, and found no corroboration for Ms. Renee's
isn't the first time Ms. Renee has filed a motion for a
preliminary injunction regarding the January 17 strip search.
On January 29, she filed a motion for a preliminary
injunction, alleging that Lieutenant Wilson ordered her to
undress for a strip search and used pepper spray on her and
threated further physical force when she didn't comply.
ECF 39. That earlier filing didn't include any specific
allegations of sexual misconduct or any other suggestion of
an improper motive, and the court found that Ms. Renee
wasn't reasonably likely to succeed on the merits because
Lieutenant Wilson appeared to have a legitimate basis for the
strip search. ECF 42. The court also observed that the strip
search appeared to be the first since she quit her job in
January 2018 and found that Ms. Renee was unlikely to suffer
irreparable harm because the strip search was an isolated
start, the court considers whether Ms. Renee has demonstrated
a reasonable likelihood of success on the merits. The Eighth
Amendment imposes a duty on prison officials “to take
reasonable measures to guarantee the safety of
inmates.” Farmer v. Brennan, 511 U.S. 825, 832
(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 his health or safety.” Santiago v.
Walls, 599 F.3d 749, 756 (7th Cir. 2010). In the context
of failure to protect cases, the Seventh Circuit has equated
“substantial risk” to “risks 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
Warden has submitted substantial evidence that prison
officials didn't act with deliberate indifference to Ms.
Renee's complaints of sexual misconduct. According to the
record, a grievance officer and an investigation officer each
investigated Ms. Renee's grievance on the January 17
strip search. They reviewed the video recording, interviewed
the parties involved, and concluded that Ms. Renee's
grievance was unfounded. The facility's records indicate
that Ms. Renee didn't submit a grievance or otherwise
report any January 29 and February 11 strip searches. While
Ms. Renee might have tried to contact the Warden about the
strip searches, he didn't receive or respond to these
Renee disputes the Warden's account of her communications
with the Warden and the investigations unit, but, unlike the
Warden, she provides no documentation to support her
allegations. Further, the evolving nature of Ms. Renee's
description of the January 17 strip search raises significant
concerns with her credibility. For instance, in the
grievance, Ms. Renee alleged that Lieutenant Wilson and
another officer threatened her with pepper spray and made
lewd comments as they conducted the strip search. In the
first motion for a preliminary injunction, Ms. Renee altered
the narrative, alleging that Lieutenant Wilson used pepper
spray on her in an effort to obtain compliance with his strip
search orders, but she omitted any specific allegations of
sexual misconduct. After this motion was denied, she changed
the narrative once again in the motion now before the court
to include a graphic description of sexual misconduct. She
also added that she had been subjected to similar sexual
misconduct on 26 occasions since August 2018.
evaluating the likelihood of success, then, the court finds
the prison's investigations and documentary file, and the
statements of three witnesses or investigators on one side,
and the statement and prior inconsistent statements of Ms.
Renee on the other. Ms. Renee might win the case at trial,
but the likelihood of her ...