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Hansen v. Badure

United States District Court, D. South Dakota, Southern Division

October 16, 2019

JASON/JENNA HANSEN, Plaintiff,
v.
SAM BADURE, KEN VANMEVEREN, JUSTIN HAWK, CATHY WYNIA, RICK LESLIE, TROY ELLIS, DEREK EKEREN, DARIN YOUNG, DEB EILERS, NANCY CHRISTENSEN, ROBERT DOOLEY, BRENT FLUKE, DENNIS KAEMINGK, MIKE LEIDHOLT, HEATHER BOWERS, CORY NELSON, CHRIS TURBAK, KAYLEN THELEN, JENNY ENGLAND and TIFFANY WOLFGANG, in their official and individual capacities, Defendants.

          ORDER GRANTING MOTION TO AMEND AND 1915A SCREENING

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiff, Jason/Jenna Hansen filed a pro se civil rights complaint under 42 U.S.C. § 1983. Docket 1. This court granted Hansen leave to proceed in forma pauperis. Docket 5. Hansen filed a motion to amend his complaint Docket 11. Hansen's motion to amend (Docket 11) is granted and the 1915A screening will focus on Hansen's amended complaint (Docket 11-1).

         FACTUAL BACKGROUND

         The facts as alleged in the amended complaint are: Hansen was born male and was named Jason Hansen. Docket 11-1 ¶ 26. “[S]ince early childhood, she has believed she is a female named Jenna, confined in a man's body.” Id. She has “suffered from symptoms of Gender Identity Disorder (GID) or Gender Dysphoria since she can remember[.]” Id. ¶ 28. Hansen believes her GID was caused from her being sexually abused as a child and from being raped by her boss in 1996. Id.

         Hansen was first incarcerated in 1998. Id. ¶ 27. She has been requesting relief orally, by kites, and by the prison's grievance process since 2000. Id. ¶ 39. She attempted suicide in 2009 and attempted castration in 2014 and 2016. Id. ¶¶ 40, 41. In 2018, Hansen inflicted self-harm in hopes that it would be a release from her depression. Id. ¶ 55.

         In 2017, Cory Nelson, the Clinical Supervisor of the Correctional Behavioral Health (BH), issued a report that diagnosed Hansen with gender dysphoria. Id. ¶ 43. The report shows that she met the criteria defining GID. Id. Nelson knew about her requests to “ ‘wear makeup, have hormones, and . . . talk to someone regarding gender reassignment surgery.' ” Id. Further, Nelson sent his report to the “ ‘Department of Social Services (DSS), Asst. Director Correctional Behavioral Health; DSS Behavioral Health Division Director; Warden [of MDSP]; and Association Warden (AW) [of MDSP].' ” Id. (alterations in original).

         Cynthia Osborne, Psychotherapist and Assistant Professor in the Department of Psychiatry and Behavioral Sciences at John Hopkins University evaluated her on October 29-30, 2018. Id. ¶ 56. On June 12, 2019, Hansen received a letter from Jenny England, Assistant Director of BH, that stated “ ‘[t]hrough the evaluation you participated in with the gender dysphoria consultant it was determined that you met clinical criteria for gender dysphoria.' ” Id. ¶ 75 (alteration in original). Behavioral staff members Chris Turbak, Kayla Tinker, and England denied Hansen access to the report that was prepared by Osborne. Id. ¶ 56.

         The Department of Corrections (DOC) policy creates a “Gender Non-Conforming Committee” (GNC), which determines how the inmate is to be defined and how he/she will be treated. Id. ¶ 34. The members of the committee are

PREA [Prison Rape Elimination Act (PREA)] Compliance Manager, Sam Badure; Director of Classification, Rick Leslie; Warden, Robert Dooley/ Brent Fluke and Darin Young; PREA Coordinator, Ken VanMeveren; Behavorial Health, Cory Nelson, Chris Turbak, Kayla Thelen, Jenny England, and/or Tiffany Wolfgang; Health Services, Heather Bowers; Facility PREA Investigator, Justin Hawk or Cathy Wynia; Unit Manager, Nancy Christensen and Troy Ellis; and Security, Justin Hawk or Cathy Wynia.

Id. ¶ 35. The GNC is required to meet when an inmate identifies as transgender or “when she ‘has submitted a request concerning any issue which the [GNC] has authority to take action on' . . . . which include: medical screening, analysis of behavioral health, refer to a consultant, separate showers . . . separate searches, and other requested issues/complaints.” Id. ¶ 36 (alteration in original). Hansen has requested relief from the unit, BH staff at MDSP, and from staff at SDSP through kites, oral requests, and the grievance process. Id. ¶ 39.

         Hansen did not receive responses to her 2018 requests for sports bras, testosterone blockers, boxer briefs, and estrogen pills. Id. ¶¶ 49-54. In February of 2019, Hansen was “denied private showers, private searches, and the use of an electric razor, after having identified herself as transgender and therefore entitled because she would otherwise suffer psychological harm.” Id. ¶ 57. Hansen's request for permanent body hair removal was also rejected. Id. ¶ 58.

         In March of 2019, Hansen's requests for private searches, medication for hair growth, an electric razor, and private showers were rejected by Derek Ekeren because she did not submit the proper paperwork. Id. ¶ 59. Hansen then complied with the proper form, but the requests were still rejected because they exceeded the ten-day time limit. Id. Hansen argues that requests for PREA investigations are not subject to the same time restrictions as the normal grievance process under the DOC policy. Id. Hansen received a disciplinary report from correctional officer, Derrick Godby, on April 9, 2019, because she had a “ ‘home made (sic) tank top [and] 2 pairs of home made (sic) underwear.' ” Id. ¶ 61.

         On or about April 18, 2019, Hansen met with Turbak from the BH offices and requested the ability to possess the same items as female prisoners. Id. ¶ 62. Turbak told Hansen that there was no reference to Hansen's diagnosis of gender dysphoria and it was not in her examination report by Osborne. Id. Turbak told Hansen that England said that Hansen was not allowed to access her mental health records. Id.

         Hansen repeatedly submitted kites and oral requests to Eilers, Christensen, and Nelson to be allowed to wear makeup. Id. ¶ 45. She received a response from Christensen that was endorsed by Warden Robert Dooley, that stated there was no BH order allowing Hansen to wear makeup. Id. Hansen has been written-up multiple times for wearing makeup. Id. ¶¶ 42, 46, 47. When Hansen darkened her eyebrows, correctional officer Kelly Tjeersdsma sanctioned her with a violation of V-16 and at the hearing for the violation, unit coordinator Eilers sanctioned Hansen with a fine. Id. ¶ 47. Rule V-16 states that an inmate's “[c]onduct which disrupts or interferes with the security or good order of the institution; interfering with a staff member in the performance of his/her duties” is considered a prison violation. Docket 11-2 at 28.

         On May 18, 2018, Hansen requested a sports bra. Docket 11-1 ¶ 54. She claims her informal resolution request (IRR) was rejected by Eilers, and Christensen received the administrative remedy request (ARR) a few days later. Id. Hansen's requests for estrogen pills and boxer briefs were allegedly responded to by Eilers and Christensen. Id. ¶¶ 52, 53. On April 30, 2019, Hansen attended sick call and requested

(1) estrogen meds; (2) testosterone blocker meds; (3) sports bras; (4) boxer briefs; (5) makeup from [female] commissary; (6) ‘GNC shower' in SHU; (7) single strip searches; (8) body hair removal; (9) head hair regrowth hormones; ...

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