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Campbell v. Bruce

United States District Court, W.D. Wisconsin

September 30, 2019



          JAMES D. PETERSON District Judge

         Pro se 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.

         Campbell 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 the case.[1]


         The following facts are undisputed, except where noted.

         Campbell 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.

         Campbell 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.

         A. 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.

         The best way to get a sense of plaintiffs’ concerns is through photographs of the showers in question.

         1. Kenosha West Unit showers

          The 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:

(Image Omitted)

Dkt. 45-2, at 2, 3.

         In February 2018, the Kenosha showers were modified to provide more coverage. After modification they look like this:

(Image Omitted)

Dkt. 45-6, at 5, 1.

         2. 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 showers:

(Image Omitted)

Dkt. 45-1, at 2, 5.[2]

         Plaintiffs 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.

         B. RCI’s policies regarding shower privacy for transgender inmates

          To 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.

         Sometime 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 schedules.

         According 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.

         C. 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.

         1. Campbell’s correspondence

          When 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.

         On 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 extreme danger.

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 ...

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