Turner v. Ralkey

• Court: District Court, W.D. Washington
• Decided: January 25, 2023
• Docket: 3:20-cv-05472
• Status: Unknown

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10 11 VICTOR JULIAN TURNER, CASE NO. 3:20-cv-05472-TL-DWC 12 Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION 13 TORI RALKEY, et al., 14 Defendants. 15 16 17 This matter comes before the Court on the Report and Recommendation of the Honorable 18 Judge David W. Christel, United States Magistrate Judge, on cross-motions for summary judgment (Dkt. No. 94), pro se Plaintiff Mikailah Kay Sweetgrass-Turner’s1 objections to the 19 Report and Recommendation (Dkt. No. 95), and Defendants’ response to the objections (Dkt. 20 No. 96). Plaintiff’s claims arise out of her treatment as a transgender prisoner. Judge Christel 21 recommends granting summary judgment in favor of Defendants and denying Plaintiff’s motion. 22

23 1 Mikailah Kay Sweetgrass-Turner is Plaintiff’s legal name. Dkt. No. 75-1 at 387. The case caption reflects Plaintiff’s commitment name because that is the name to which all of her correspondence must be directed while she 24 is incarcerated. Dkt. No. 10 at 1. 1 Dkt. No. 94 at 36. Having reviewed the Report and Recommendation, Plaintiff’s objections, 2 Defendants’ response to the objections, and the remaining record, the Court ADOPTS the Report 3 and Recommendation and OVERRULES the objections. 4 I. LEGAL STANDARDS 5 A. Review of a Report and Recommendation 6 A district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. 7 § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (the Court “must determine de novo any part of the 8 magistrate judge’s disposition that has been properly objected to.”). “De novo review means that 9 the reviewing court does not defer to the lower court’s ruling but freely considers the matter 10 anew, as if no decision had been rendered below.” Dawson v. Marshall, 561 F.3d 930, 933 (9th 11 Cir. 2009) (citation and quotation omitted). “The district judge may accept, reject, or modify the 12 recommended disposition; receive further evidence; or return the matter to the magistrate judge 13 with instructions.” Fed. R. Civ. P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). A party properly objects when the party files “specific written objections” to the report and recommendation as 14 required under Federal Rule of Civil Procedure 72(b)(2). 15 B. Summary Judgment 16 Summary judgment is appropriate where “the movant shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 18 Civ. P. 56(a). At this stage, the Court does not make credibility determinations, nor does it weigh 19 the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); accord Munden v. 20 Stewart Title Guar. Co., 8 F.4th 1040, 1044 (9th Cir. 2021). The inquiry turns on “whether the 21 evidence presents a sufficient disagreement to require submission to a jury or whether it is so 22 one-sided that one party must prevail as a matter of law.” Id. at 251–52. A genuine triable issue 23 of material fact exists where “the evidence is such that a reasonable jury could return a verdict 24 1 for the nonmoving party.” Id. at 248; see also McSherry v. City of Long Beach, 584 F.3d 1129, 2 1135 (9th Cir. 2009) (explaining that this is the inquiry at the summary judgment stage, 3 “[s]tripped to its core”). Additionally, “all justifiable inferences” must be drawn in the non- 4 movant's favor (id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970))),

5 “only in the sense that, where the facts specifically averred by [the non-moving] party contradict 6 facts specifically averred by the movant, the [summary judgment] motion must be denied.” 7 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). 8 To establish that a fact cannot be genuinely disputed, the movant can either cite the 9 record or show “that the materials cited do not establish the ... presence of a genuine dispute, or 10 that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. 11 P. 56(c)(1). Once the movant has made such a showing, “its opponent must do more than simply 12 show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 13 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted); see also Liberty 14 Lobby, 477 U.S. at 252 (specifying that the non-movant “must show more than the mere

15 existence of a scintilla of evidence”); accord In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 16 (9th Cir. 2010). The non-movant “bears the burden of production under [FRCP] 56 to ‘designate 17 specific facts showing that there is a genuine issue for trial.’ ” Ricci v. DeStefano, 557 U.S. 557, 18 586 (2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The Court will enter 19 summary judgment “against a party who fails to make a showing sufficient to establish the 20 existence of an element essential to that party's case, and on which that party will bear the burden 21 of proof at trial.” Celotex, 477 U.S. at 322 (1986); see also Parth v. Pomona Valley Hosp. Med. 22 Ctr., 630 F.3d 794, 798, 805 (9th Cir. 2010), cert. denied, 563 U.S. 1008, (affirming grant of 23 summary judgment against appellant who had “failed to adduce any evidence or authority to

24 support her claim”). 1 II. BACKGROUND 2 The background of this case is detailed in the Report and Recommendation. See Dkt. 3 No. 94 at 2–9. In brief: Plaintiff is a transgender woman imprisoned at the Stafford Creek 4 Corrections Center (SCCC), under the custody of the Washington State Department of

5 Corrections (DOC). Dkt. No. 56 ¶¶ 1, 4, 29 (verified complaint). She alleges, among other 6 things, that: she was forced to disclose her transgender identity to a mental health professional in 7 the prison when placed in a cell with a Muslim inmate, which caused her to fear for her safety 8 (Dkt. No. 56 ¶¶ 22–25); she had been informed that to remain housed in general population at 9 SCCC, she would need to submit a written statement indicating that she felt safe there, and she 10 submitted such a statement because she was “never informed of housing alternatives, such as a 11 policy allowing for the possibility of being housed at a female prison” (id. ¶ 28);2 and she is 12 classified as being at high risk of sexual victimization due to “extensive childhood sexual, 13 physical, and emotional abuse” yet was once assigned to be celled with a convicted sex-offender 14 (id. ¶ 32).

15 The crux of the complaint centers on Plaintiff’s housing assignments, but she alleges 16 other forms of mistreatment by prison officials such as: misgendering by Defendant SCCC 17 Correctional Officer Daniel Downing (id. ¶¶ 49–55), a refusal to collect an emergency grievance 18 by another officer who did not “care about tranny issues” (id. ¶¶ 59–60), and a denial of 19 “cleaning supplies, clean clothing, and showers” for nearly a week (id. ¶ 62). Plaintiff describes 20 filing numerous grievances about housing assignments or placement in administrative 21 segregation (see id. ¶¶ 33, 34, 43, 83, 97, 103) along with kites about related issues (see id. ¶¶ 82, 22 84, 87, 88, 91, 92, 93, 99, 100, 101, 105), and other requests for review or assistance, including 23 2 Plaintiff received hormone replacement therapy and female undergarments upon request and completed the gender 24 dysphoria protocol at SCCC. Dkt. No. 56 ¶¶ 27–29, 73; Dkt. No. 94 at 4. 1 emergency mental health interventions (id. ¶¶ 72, 77), letters to “the office of corrections 2 ombuds” (id. ¶¶ 78, 90), and a Prison Rape Elimination Act (“PREA”) complaint. Id. ¶ 53. She 3 describes withdrawing at least two of these grievances in good faith because a staff member 4 offered to resolve the issue but didn’t actually do so. See id. ¶¶ 34–35, 37–40. On October 25,

5 2019, Plaintiff made a request to be housed with a specific cellmate of her choice—a person with 6 whom she felt comfortable—but Defendant Tori Ralkey denied the request based on 7 “confidential PREA related information.” Id. ¶¶ 41–42. Plaintiff filed a grievance related to this 8 denial, which she appealed “to level 3” and then filed a public records request seeking 9 “confidential informant (CI) records and emails regarding [her] request for a cell move . . . that 10 was denied by staff Tori Ralkey due to PREA concerns.” Id. ¶¶ 43–47; Dkt. No. 75-1 at 404. 11 Plaintiff also alleges that while she was housed in administrative segregation for eighty-one days 12 (Dkt. No. 94 at 21–22 (citing Dkt. No. 79-1 at 30–38)), she was subjected to showering in view 13 of male prisoners (Dkt. No. 56 ¶ 99). 14 III. DISCUSSION

15 A. Objection 1: Application of the Summary Judgment Legal Standard 16 First, Plaintiff takes issue with how the Magistrate Judge assessed the parties’ cross motions for summary judgment, alleging that he drew “reasonable inferences” in Defendants’ 17 favor and omitted “material facts critical to the determination of genuine issues.” Dkt. No. 95 18 at 9–10. The Magistrate Judge provided cites to the record for each fact stated. See Dkt. No. 94 19 at 3–9. Plaintiff’s objection is deficient as she neither specifies any inferences that incorrectly 20 favored Defendants’ position nor provides any examples of material facts that were omitted or 21 not properly considered. 22 // 23 // 24 1 B. Objection 2: Eighth Amendment Claims against Defendants Ralkey and Thornhill 2 Second, Plaintiff objects to the Magistrate Judge’s characterization of her Eighth 3 Amendment claims against Defendants Ralkey and Thornhill regarding the cellmates with whom 4 she was housed. The Magistrate Judge summarized Plaintiff’s allegations as a failure “to protect 5 her from cellmates she considered unsafe and [a denial of] housing with a cellmate of her choice 6 with whom she felt comfortable.” Dkt. No. 94 at 15. Plaintiff explains that she was not claiming a constitutional right to housing of her choice. Rather, she alleges that “[T]ori Ralkey while 7 executing her official [d]uty abused her position as an operative of a state agency by fabricating 8 the existence of confidential information to arbitrarily prevent Plaintiff from utilizing prison 9 regulations to find a safe environment in which to live without fear of being sexually abused, 10 verbally mocked and [harassed], or pressured for sexual favors.” Dkt. No. 95 at 11. 11 The Eighth Amendment not only protects prisoners from being subjected to cruel and 12 unusual punishment, it imposes an affirmative duty on prison officials to “provide humane 13 conditions of confinement” through provision of “adequate food, clothing, shelter, and medical care” and “reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 14 U.S. 825, 832 (1994) (citations omitted). “To establish an Eighth Amendment violation, a 15 prisoner ‘must satisfy both the objective and subjective components of a two-part test.’” Toguchi 16 v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 396 F.3d 732, 744 17 (9th Cir. 2002)). The prisoner must show not only (1) that they are “incarcerated under 18 conditions posing a substantial risk of serious harm,” but also (2) that the prison official had 19 “punitive intent” because they were deliberately indifferent to the inmate’s health or safety. 20 Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)), overruled on other grounds, Castro v. Cnty. of L.A., 21 833 F.3d 1060 (9th Cir. 2016). In other words, “an official must have actual knowledge of an 22 excessive risk to inmate health or safety and must deliberatively disregard that risk.” Johnson v. 23 Lewis, 217 F.3d 726, 734 (9th Cir. 2000) (citing Farmer, 511 U.S. at 837). 24 1 As explained by the Magistrate Judge, Plaintiff failed to provide evidence demonstrating 2 that Defendants both knew of and disregarded risk to Plaintiff’s safety when making several 3 housing assignments in 2019. Dkt. No. 94 at 18. While there were factual disputes raised 4 regarding Defendants’ knowledge of her safety concerns, Plaintiff did not show that she suffered 5 more than a “generalized fear of harm” due to those assignments. Id. The standard for Eighth Amendment violations is high: it requires “conditions posing a substantial risk of serious harm,” 6 Clouthier, 591 F.3d at 1242, and a mere “generalized fear of harm” does not meet that high 7 standard. 8 Turning to Plaintiff’s allegations regarding denial of an affirmative housing request she 9 made to be housed with a cellmate of her choosing, Plaintiff alleges that the confidential PREA 10 information that led to her housing assignment request being denied was “fabricated.” Dkt. 11 No. 95 at 5, 11. The Court is not satisfied that Defendants had a reasonable basis to deny Plaintiff’s housing request based on “confidential information” without further detail about the 12 nature of the information that decision was based on. Compare Dkt. No. 56 ¶ 47 (complaint 13 alleging that “no confidential PREA information was ever filed”) with Dkt. No. 70 ¶ 47 (answer 14 admitting this allegation) and Dkt. No. 95 at 25 (Defendants’ response to a request for 15 production that Plaintiff assumes “that confidential information must necessarily be contained in 16 ‘documents’ ” annotated with Plaintiff’s handwritten note “according to policy it does”). But 17 regardless of whether there was a reasonable basis to deny her housing request, Plaintiff has 18 failed to state an Eighth Amendment violation on this basis. A denial of a request to be housed with a particular cellmate does not amount to deliberate disregard of an excessive risk to inmate 19 health and safety. 20 C. Objection 3: Section 1983 Claim Regarding Use of Male Pronouns 21 Third, Plaintiff objects to the Magistrate Judge’s characterization and evaluation of her 22 Section 1983 Eighth Amendment and Fourteenth Amendment equal protection claims against 23 Defendant Downing for using male pronouns when addressing her. Dkt. No. 95 at 16–18. Under 24 Ninth Circuit precedent regarding the Eighth and Fourteenth Amendments, verbal harassment 1 alone is generally insufficient to establish a violation. Austin v. Terhune, 367 F.3d 1167, 1171 2 (9th Cir. 2004) (“the Eighth Amendment’s protections do not necessarily extend to mere verbal 3 sexual harassment”); Patrick v. Martin, 402 F. App’x 284, 285 (9th Cir. Nov. 2, 2010) (affirming 4 dismissal of prisoner’s Section 1983 verbal sexual harassment claims based on the Eighth and 5 Fourteenth Amendments). Post-PREA implementation, Ninth Circuit precedent has remained the same. See Lund v. California, No. C20-17133, 2021 WL 4958985, at *2 (9th Cir. Oct. 26, 2021) 6 (affirming dismissal of prisoner’s Section 1983 claims based on the Eighth and Fourteenth 7 Amendments in part because “verbal harassment generally is not sufficient to state a 8 constitutional deprivation”) (citation omitted), cert. denied sub nom. Lund v. Datzman, 142 S. Ct. 9 2870 (2022); Garbarini v. Ulit, 731 F. App'x 708, 709 (9th Cir. 2018) (“ ‘verbal harassment 10 generally does not violate the Eighth Amendment’ ” ) (quoting Keenan v. Hall, 83 F.3d 1083, 11 1092 (9th Cir. 1996), opinion amended on other grounds on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998)); Hill v. Rowley, 658 F. App’x 840, 840–41 (9th Cir. 2016) (dismissing prisoner’s 12 failure-to-protect and equal protection claims based on defendant’s comments because “verbal 13 harassment is insufficient to state a constitutional deprivation under § 1983”). 14 Plaintiff asserts that her argument focuses on being misgendered, and she cites two cases 15 from the Southern District of Illinois discussing the harm that comes with misgendering. Dkt. 16 No. 95 at 17–18; see Tay v. Dennison, 457 F. Supp. 3d 657 (S.D. Ill. 2020); Hampton v. Baldwin, 17 No. C18-550, 2018 WL 5830730, *1 (S.D. Ill. Nov. 7, 2018). The Court understands that 18 “misgendering transgender people can be degrading, humiliating, invalidating, and mentally devastating.” Hampton, 2018 WL 5830730 at *2. However, in those cases, the court found 19 constitutional violations because the misgendering—along with other harassment—was severe 20 and pervasive. In Tay, the court stated, “[t]he evidence establishes that Plaintiff has been subject 21 to frequent and ongoing harassment based on her gender identity . . . . In addition, correctional 22 and medical staff constantly misgender Plaintiff, referring to her as ‘mister’ and using male 23 pronouns even though they are aware that she is a transgender woman.” 457 F. Supp. 3d at 683 24 (emphasis added). Under those circumstances, the Tay court held “[t]he sexual harassment that 1 Plaintiff experiences is so severe and pervasive that it rises to the level of a constitutional 2 violation.” Id. In partially granting a preliminary injunction motion, the Hampton court found 3 “multiple situations where IDOC staff forced [the plaintiff] to engage in sexual acts with other 4 inmates or with the staff themselves, and she complained of being groped and harassed daily by 5 inmates.” 2018 WL 5830730, at *12, *17. In contrast here, the only discriminatory conduct Plaintiff alleges by Defendant Downing 6 is his use of male titles and pronouns to refer to Plaintiff during two related interactions. The 7 Complaint states that Defendant Downing on one occasion referred to Plaintiff as “sir” despite 8 her attempts to correct him and then misgendered Plaintiff in the narrative of an infraction notice 9 related to that interaction.3 Dkt. No. 56 ¶¶ 49–52. Even assuming all the facts as pleaded by 10 Plaintiff,4 the situation presented is a far cry from the situations in Tay and Hampton. This is not 11 meant in any way to minimize the disrespectful and degrading behavior by Defendant Downing.5 However, in applying the law as it exists to the facts pleaded by Plaintiff, these two related 12 incidents in and of themselves are insufficient to establish a constitutional violation. 13 D. Objection 4: Due Process Claims Regarding Administrative Segregation 14 Fourth, Plaintiff objects to the Magistrate Judge’s recommendation to dismiss her 15 Fourteenth Amendment due process claim regarding an eighty-one day period when she was 16 housed in administrative segregation. Dkt. No. 95 at 18–20; Dkt. No. 94 at 31. The Magistrate 17 Judge was unable to find that the hardships Plaintiff experienced in administrative segregation 18 due to issues unique to her transgender status—specifically, a lack of privacy while showering— 19 were sufficiently atypical to create a liberty interest. Dkt. No. 94 at 31. Plaintiff explains that

20 3 During the conversation where Plaintiff alleges Defendant Downing insisted on referring to her as “sir,” Defendant Downing questioned Plaintiff about a ring she was wearing. The infraction report in which Defendant Downing 21 misgendered Plaintiff is related to her possession of that ring. Dkt. No. 56 ¶¶ 49–52; Dkt. No. 75-1 at 415. 4 The Department of Corrections’ Investigation Report reflects that another incarcerated person overheard 22 (1) Plaintiff requesting that Defendant Downing use female pronouns and (2) Defendant Downing telling Plaintiff, “[y]ou were born a man and I will address you as such.” Dkt. No. 82-1 at 8. Defendant Downing claims he did not 23 know that Plaintiff wanted to be referred to by female pronouns. Dkt. No. 78 at 19 (citing Dkt. No. 82-2). 5 Assuming the truth of Plaintiff’s assertions, Defendants admit that “such language would be inconsistent with 24 Department policy and is offensive.” Dkt. No. 78 at 19. 1 transgender prisoners in restrictive housing lack access to the same accommodations provided 2 for transgender prisoners in the general population (being allowed to shower separately from 3 other prisoners in showers “specially constructed to accom[m]odate their unique physiology.” 4 Dkt. No. 95 at 19–20. She alleges being forced to shower “in full view of male inmates” while 5 housed in administrative segregation. Dkt. No. 75 at 30. Even if a protected liberty interest is identified, a plaintiff must still demonstrate a denial 6 of due process. Cf. Serrano v. Francis, 345 F.3d 1071, 1078–79 (9th Cir. 2003), cert. denied sub 7 nom. Serrano v. Hamlet, 543 U.S. 825 (2004) (prisoner with disability identified a protected 8 liberty interest in being denied wheelchair access in administrative segregation but was still 9 required to demonstrate a denial of due process). Here, while Plaintiff may have alleged 10 deprivation of a protected liberty interest with these allegations, she fails to show this deprivation 11 was made without due process. Indeed, Plaintiff does not contest that she was provided due process (see Dkt. No. 95) while in administrative segregation. As the Magistrate Judge found, 12 Plaintiff received five reviews of her administrative segregation placements and was even able to 13 appeal her placement in administrative segregation. Dkt. No. 94 at 32. 14 E. Objection 5: Denial of Supplemental Jurisdiction Over Potential State Law 15 Claim 16 Fifth and finally, Plaintiff objects to the Magistrate Judge’s recommendation to decline exercise of supplemental jurisdiction over a potential state law claim. Plaintiff mentioned 17 RCW 72.09.135 as being violated in her complaint, alongside federal constitutional provisions. 18 See Dkt. No. 56 ¶¶ 108–68. However, when a federal court dismisses all federal claims in a case, 19 it cannot retain jurisdiction over any remaining state law claims. See Scott v. Pasadena Unified 20 Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002). 21 The Court makes no judgment regarding Plaintiff’s allegations about how she has been 22 treated in prison. As explained in this Order, the Court only finds that Plaintiff has failed to 23 present issues of material fact sufficient to survive summary judgment of her federal legal claims. 24 1 IV. CONCLUSION 2 For the above reasons, the Court hereby ORDERS that: (1) The Report and Recommendation is ADOPTED; 3 (2) Plaintiff’s objections are OVERRULED; 4 (3) Plaintiff’s motion for summary judgment is DENIED; 5 (4) Defendants’ motion for summary judgment is GRANTED; 6 (5) Plaintiff’s claims against the Doe Defendants are DISMISSED WITHOUT PREJUDICE; 7 (6) Plaintiff’s 42 U.S.C. § 1983 claims against all remaining defendants are DISMISSED WITH 8 PREJUDICE; 9 (7) To the extent Plaintiff purports to bring a claim pursuant to RCW 72.09.135, the Court DECLINES to exercise supplemental jurisdiction over that claim; and 10 (8) This case SHALL BE CLOSED. 11

12 Dated this 25th day of January 2023. 13 A 14 Tana Lin 15 United States District Judge

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