United States District Court, W.D. Wisconsin
MARK A. CAMPBELL, also known as NICOLE ROSE CAMPBELL, and STEVEN MILLER, Plaintiffs,
SERGEANT BRUCE, ROBERT KRUEGER, JASON ALDANA, STEVEN JOHNSON, ROBIN DIEBOLD, PAUL KEMPER, CATHY JESS, and CINDY O’DONNELL, Defendants.
OPINION AND ORDER
D. PETERSON District Judge
plaintiffs Nicole Rose Campbell (whose legal name is Mark)
and Steven Miller are transgender women incarcerated at
Racine Correctional Institution (RCI), a men’s
correctional facility. Campbell and Miller allege that
defendants-eight Department of Corrections officials-have
refused to provide them with adequately private shower
facilities, which they say subjects them to a substantial
risk of sexual assault and harassment by inmates and prison
staff. Both sides have moved for summary judgment. Dkt. 29
and Dkt. 42.
and Miller say that defendants violate the Eighth Amendment
by failing to ensure that they can shower out of view of
guards and male inmates, and that they violate the Equal
Protection Clause of the Fourteenth Amendment by failing to
afford them the same degree of privacy that other inmates
enjoy. But the evidence shows that RCI offered plaintiffs the
opportunity to shower at a different time from general
population inmates, and that except for two requests made to
defendant Robert Krueger (an RCI unit manager), Campbell and
Miller have not asked for separate shower times. Instead,
plaintiffs ask for shower doors tall enough to shield their
heads from view, but that would pose a risk to inmate safety
and security. So I will deny plaintiffs’ motion for
summary judgment, grant defendants’ motion, and dismiss
following facts are undisputed, except where noted.
and Miller are transgender women, meaning they were born with
male genitals but they identify as women. Both have been
taking hormones for years and have developed female breasts.
As transgender prisoners, Campbell and Miller face challenges
and risks that their cisgender counterparts don’t.
Transgender prisoners face heightened risk of sexual
assault-a fact defendants don’t dispute for purposes of
summary judgment. Dkt. 53, ¶ 94. Campbell and Miller do
not allege that they have suffered sexual assault or
bias-motivated violence, but they contend that they face an
increased risk of sexual assault and harassment because of
RCI’s shower facilities.
and Miller both arrived at RCI, a medium-security
correctional facility located in Sturtevant, Wisconsin, in
September 2016. Two of RCI’s several housing units are
relevant to this case: the Milwaukee Unit and the Kenosha
West Unit. Campbell spent several weeks in the Milwaukee Unit
before she was transferred to the Kenosha West Unit in
November 2016. Miller was housed in the Kenosha West Unit
before being transferred to the Milwaukee Unit in February
2017. Campbell and Miller contend that the shower facilities
in both units are insufficiently private and thus put them at
risk of harassment and assault. Defendants contend that each
unit’s shower facilities afford adequate privacy.
RCI’s shower facilities
Plaintiffs’ primary complaint about RCI’s showers
is that the front shower stall doors do not afford full
coverage of their bodies. A showering inmate’s head
remains visible over the door’s opaque privacy shield,
which plaintiffs say allows “any male inmate [to]
easily see over the shower stall doors . . . and see the
breasts of the transgender women while they are
showering.” Dkt. 53, ¶ 55.
best way to get a sense of plaintiffs’ concerns is
through photographs of the showers in question.
Kenosha West Unit showers
Kenosha West shower facilities consist of partitioned stalls
separated by opaque floor-to-ceiling panels. The shower doors
are made of chain-link fencing. Each door is fitted with an
opaque Plexiglas shield positioned to cover the showering
inmate’s midsection. Before February 2018, the Kenosha
showers looked like this:
Dkt. 45-2, at 2, 3.
February 2018, the Kenosha showers were modified to provide
more coverage. After modification they look like this:
Dkt. 45-6, at 5, 1.
Milwaukee Unit showers
RCI’s Milwaukee Unit also has partitioned shower
stalls, separated by opaque white panels that are
approximately six feet high. Plaintiffs agree that these side
partitions are tall enough that showering inmates can’t
peer into adjacent stalls. Dkt. 57, ¶ 8
(“Plaintiffs do not dispute that the individual shower
stalls are divided so inmates cannot see one another from the
next stall over.”). But the shower doors are shorter,
so the head and feet of a showering inmate remain visible to
onlookers. The following photograph shows the Milwaukee Unit
Dkt. 45-1, at 2, 5.
contend that in both units the top of the shower doors are
still too low. But defendants say that staff need to be able
to see an inmate’s head and feet while in the shower to
maintain the safety and security of the institution, so the
doors cannot safely be made any higher. Dkt. 57, ¶ 19.
RCI’s policies regarding shower privacy for transgender
enforce the Prison Rape Elimination Act (PREA), the United
States Department of Justice has issued regulations
instructing that prisons should afford transgender and
intersex inmates “the opportunity to shower separately
from other inmates.” 28 C.F.R. § 115.42(f). The
Wisconsin Department of Corrections’ Division of Adult
Institutions (DAI) has adopted policies consistent with these
regulations. Specifically, DAI Policy 500.70.27 provides that
“[i]nmates taking cross-gender hormones or with
secondary sex characteristics of the desired gender (e.g.,
biological males with breast development) shall be showered
separately from other inmates.” Dkt. 34-44, at 7 (DAI
Policy 500.70.27(VII)(D)). RCI also has a policy of requiring
any male staff member to announce his presence before
entering the shower area when transgender women prisoners are
showering. Dkt. 57, ¶ 27.
in 2016, defendant Jason Aldana (RCI’s security
director for much of the period at issue in this litigation)
met with RCI’s transgender inmates to discuss ways to
facilitate more private showers. Dkt. 57, ¶ 30.
(Defendants don’t say when in 2016 this meeting
occurred or whether Campbell and Miller were present at it.)
Aldana first offered to move all the transgender inmates to
the Green Unit, which had shower curtains. But the inmates
refused because the Green Unit is an intake unit and is thus
more restrictive than other housing units. Aldana then
proposed designating a separate shower time specifically for
transgender inmates. But the inmates rejected that option
because they wanted to be able to shower on their own
to defendant Paul Kemper, the RCI warden, Aldana’s
offer remains open: transgender inmates may shower at a
separate time from male inmates if they want to. Id.
¶ 24. He says that other inmates “are not allowed
to loiter on the tiers while inmates are in the shower, so it
is unlikely that a male inmate could view a transgender
inmate in the shower.” Id. ¶ 25. Campbell
and Miller dispute these facts. They assert that
“Campbell has requested a few times for a separate
shower time from male inmates and was denied by Krueger and
Aldana.” Id. ¶ 24. Furthermore, they
contend that that male inmates could circumvent the ban on
loitering by “walking very slowly on the tier, ”
and that inmates “do loiter anyway” despite not
being allowed to do so while inmates are in the shower.
Id. ¶ 25.
Plaintiffs’ shower-related correspondence
Campbell and Miller began submitting shower-related requests
and inmate complaints shortly after arriving at RCI. I
summarize these submissions and what prompted them below.
Campbell first arrived to RCI in September 2016, she wrote to
the Health Service Unit to request that she be allowed to
shower out of view of male staff and inmates. Health Service
Unit staff put a note in Campbell’s “Special
Handling Summary” saying that she “should be
allowed to shower alone and out of the sight of the general
population.” Dkt. 34-20, at 2–3.
October 12, 2016, Campbell sent a note (called an
“interview request”) to Aldana complaining about
the showers on the Milwaukee Unit. She wrote:
[O]n Milwaukee Unit the showers may have stalls and you may
consider them private, but they are not private at all. The
shower stalls all are low[, ] the men can easily look over
the stalls, can see into the shower stalls from the stairs. .
. . I just simply asked to shower during count as was done
many times before and you denied me that which puts me in
Dkt. 54-1, at 2–3. Aldana wrote a response on the
bottom of the interview request: “The shower issue will
be looked at, but inmates don’t ...