Transsexual Inmate Can Sue Warden

Unusual Eighth Amendment win for inmate beaten in protective custody

In a rare victory, a transsexual prison inmate in Ohio won the right to a trial of her claim that the prison warden violated her right to be free of cruel and unusual punishment by knowingly placing her in a position to be physically assaulted by another prisoner.

In a March 16 ruling reversing a decision by U.S. District Judge Sandra S. Beckwith, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati found that inmate, Traci Greene, had alleged facts sufficient to constitute “deliberate indifference” to her safety by the warden.

Greene, a male-to-female transsexual, was still “preoperative” when incarcerated at Warren Correctional Institute, where Anthony J. Brigano was the warden. Due to hormone treatment, Greene displayed female characteristics including developed breasts. She was placed in protective custody in the men’s prison and was not classified as a high security risk.

Despite his past violent history, Frezzell was not segregated from other protective custody inmates, and the warden took no precautions to protect any of them.

Then, the predictable happened. Frezzell assaulted Greene on several occasions, “culminating in a severe attack on July 12 in which Frezzell beat Greene with a mop handle and then struck her with a 50-pound fire extinguisher,” according to the court’s ruling. Frezzell was then transferred to a segregation unit and criminally charged with attempted murder.

Greene sued Warden Brigano and several other prison officials, charging a violation of her constitutional rights under the Eighth Amendment, which prohibits “cruel and unusual punishments.”

The Supreme Court has not made it easy for prisoners who suffer assaults at the hands of other prisoners or prison guards to win such cases. The standard for constitutional liability on the part of prison officials is “deliberate indifference to a substantial risk of serious harm.” Greene would have to allege that Warden Brigano knew that she was vulnerable to such an attack, that Frezzell was likely to instigate such an attack, and that placing them together in the protective custody unit was likely to lead to such an attack.

The trial judge granted summary judgment in favor of Brigano, reasoning that because this was not a sexual attack, Greene’s status as a transsexual was irrelevant. The lower court also found that Greene had failed to offer any evidence that Brigano actually knew about Frezzell’s past history of assaulting other prisoners.

Judge Moore found that the trial judge had gotten the analysis wrong. Brigano had personally signed forms signifying that Greene was being placed in protective custody for her personal safety and noting that her physical appearance was a reason for such a placement. In a deposition, the warden testified that transgendered inmates were placed into protective custody precisely due to the risk of attacks by other inmates in the general prison population, and had conceded, on cross-examination, that other protective custody inmates could present a risk to such inmates.

In his deposition testimony, Brigano also conceded that Frezzell had “a long institutional history of being a disruptive, violent inmate” who had been classified as “maximum security.” Although there was some contrary and conflicting evidence in the record presented to the trial judge for the summary judgment ruling, Moore concluded that these factual disputes needed to be sorted out at a trial, not on a motion for summary judgment. Greene had alleged enough to be entitled to such a trial, Moore found.

One member of the 6th Circuit panel, Circuit Judge John Rogers, dissented from this decision, arguing that Greene had failed to show “deliberate indifference” by the warden. Rogers argued that it was not enough for Greene to show that the warden was aware of the risk to her, but rather that Brigano would only incur liability if Greene could show that he deliberately decided to expose her to this risk. Rogers insisted that the Supreme Court had adopted a totally subjective test, but that the other two judges on the panel were actually constructing an objective test. He argued the majority asked whether somebody in possession of the knowledge that Brigano had would conclude there was a serious risk, rather than asking whether Greene had proved that Brigano actually reached such a conclusion.

Moore was appointed to the court by President Bill Clinton. George W. Bush appointed Rogers.

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