Appeal from the United States District Court for the District of North Dakota.
The opinion of the court was delivered by: Hansen, Circuit Judge.
Submitted: November 13, 2008
Before MURPHY, HANSEN, and RILEY, Circuit Judges.
Two North Dakota prison inmates, Julie Roubideaux and Shelly Grossman, representing a certified class of female inmates (collectively "the Female Inmates"), brought this sex discrimination suit pursuant to 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972, see 20 U.S.C. § 1681(a), alleging, among other things, that from 1997 to the present, the North Dakota prison system has provided them with unequal programs and facilities as compared to the male inmates. The district court granted summary judgment in favor of the defendants. See Roubideaux v. N. D. Dep't of Corr. & Rehab., 523 F. Supp. 2d 952 (D.N.D. 2007). We affirm.
The undisputed facts indicate that since 1997, female inmates in the custody of the North Dakota Department of Corrections and Rehabilitation ("DOCR") have been housed in four separate prison facilities: the North Dakota State Penitentiary ("NDSP"); the Missouri River Correctional Center ("Missouri River CC"), also known as the farm; the James River Correctional Center ("James River CC"); and the Dakota Women's Correction and Rehabilitation Center ("Dakota Women's CRC"), a facility operated by the Southwest-Multi-County Correctional Center ("SWMCCC") under contract with the DOCR.*fn1 Prior to June 1998, the Female Inmates were all housed with the male inmates either at the NDSP, which has approximately 550 beds, 60 of which were occupied by women, or at the smaller Missouri River CC, which has approximately 150 beds and housed 14 women. These facilities are both located in North Dakota's capital city of Bismarck. In June 1998, the James River CC opened in Jamestown, North Dakota, and all of the female inmates who had been housed at the NDSP were transferred there. The James River CC houses around 374 inmates.
In 2003, the DOCR contracted with SWMCCC to house all of the female inmates together. SWMCCC is a partnership of six counties created pursuant to a joint powers agreement. SWMCCC established and operates two correctional facilities. It renovated a Catholic boarding school in New England, North Dakota (population 527), into the Dakota Women's CRC, a 110-bed women-only correctional facility. SWMCCC also operates a separate facility, the Dickinson jail. The Dakota Women's CRC operates pursuant to SWMCCC's contract with the DOCR. Transfer of all women inmates to the Dakota Women's CRC began in 2003 and was completed by August of 2004.
The Female Inmates filed this lawsuit in 2003 against the DOCR, Elaine Little, Prison Director Timothy Schuetzle, and James River CC Warden Don Redmann (collectively "the State Defendants"), as well as SWMCCC, alleging discriminatory conditions in the facilities and programs offered to women inmates in DOCR institutions in violation of the Equal Protection Clause and Title IX. At that time, the Female Inmates were still housed at the Missouri River CC and the James River CC with the male inmates, but their transfer to the Dakota Women's CRC was imminent.
The complaint alleged that the Female Inmates suffered discrimination on the basis of sex because the State Defendants provided unequal and inferior programs, education, and services in comparison with those offered to the male inmates, and that, "unless enjoined, defendants will transfer female inmates to county jails providing unequal and inferior facilities and programs in comparison to male inmates." (J.A. at 24.) The complaint listed two gender-based North Dakota statutes that the Female Inmates asserted authorized the DOCR to house female inmates in county facilities for more than one year. See N.D.C.C. § 12-47-38 (Supp. 2007); N.D.C.C. § 12-44.1-06.2 (2003) (expired).*fn2 The district court certified the class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, finding that the plaintiffs requested primarily injunctive and declaratory relief.
After all of the women had been transferred to the Dakota Women's CRC, the State Defendants and SWMCCC sought summary judgment on the ground that the Female Inmates could no longer demonstrate that they were similarly situated to the male inmates, a necessary element of the equal protection analysis. See Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996) (concluding male and female inmates at different institutions in Missouri were not similarly situated based upon a comparison of a number of factors that made such a comparison unworkable); Klinger v. Dep't of Corr., 31 F.3d 727, 733 & n.4 (8th Cir. 1994) (Klinger I) (same in Nebraska), cert. denied, 513 U.S. 1185 (1995). They also argued that the Female Inmates were not entitled to relief under Title IX because they failed to show discrimination in a program or activity within the meaning of Title IX.
In response, the Female Inmates asserted that they were not attempting to compare the programming decisions made at different institutions within the system, as did the inmates in Klinger I and Keevan. Instead, they claimed to be challenging the gender-based "policy, based on statute, of removing female inmates from the custody of the [DOCR] . . . and sending them to the custody of local county jails where they are unable to take advantage of the programs and services offered by the [DOCR]." (J.A. at 203.) Thus, they transformed the issue into a facial statutory challenge, alleging that the gender-based classification in the statute resulted in a discriminatory decisionmaking process. They also continued to assert that inequalities in the prison industries program and vocational education programs offered to them violated Title IX.
The district court permitted the Female Inmates to shift the focus of their equal protection claim to the challenged statutes but granted summary judgment to the State Defendants and SWMCCC. The district court concluded that the Female Inmates lacked standing to challenge statutes that did not apply to them and that they had expressly abandoned all equal protection claims aside from the statutory challenge. Alternatively, the district court concluded that the Female Inmates had failed to demonstrate an intent to discriminate on the basis of gender. As to the Title IX claims, the district court concluded that the prison industries program is not an ...