Seventh Circuit: Wisconsin’s “Inmate Sex Change Prevention Act” Violates the Eighth Amendment

Surely, had the Wisconsin legislature passed a law that DOC inmates with cancer must be treated only with therapy and pain killers, this court would have no trouble concluding that the law was unconstitutional. Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture. — Fields v. Smith, 7th Cir., Aug. 5, 2011

The Seventh Circuit recently struck down a 2005 Wisconsin law, the “Inmate Sex Change Prevention Act,” that barred prison doctors from prescribing hormone treatment or sex reassignment surgery for transgender prisoners. The Seventh Circuit panel of Gottschall (a district judge sitting by designation), Rovner, and Wood held that the statute violates the Eighth Amendment ban on cruel and unusual punishment, affirming a ruling by Wisconsin federal district judge Charles Clevert. (While Clevert’s ruling also found a Fourteenth Amendment Equal Protection Clause violation, the Seventh Circuit did not reach that issue, striking the law solely on Eighth Amendment grounds.)

Writing for the panel, Judge Gottschall (PDF here) summarizes the expert testimony offered at trial about the “feelings of dysphoria” caused by Gender Identity Disorder (GID): 

Advertisement

Seventh Circuit: “Our prison system is not the gulag”

The procedural history: Indiana inmate files lawsuit challenging his work assignment; district court dismisses his suit for failure to state a claim; Seventh Circuit panel of Posner, Wood, and Williams reverses and remands for further proceedings. Judge Posner’s opinion is worth quoting at length:

Smith was assigned to uproot tree stumps. Workers on the stump crew were forced, the complaint alleges (and since the complaint was dismissed on its face, we take its allegations to be true, though of course without vouching for their truth), to work in “freezing cold” with axes, pickaxes, and shovels and without having received any safety instruction or protective gear—not even gloves. Stump-crew workers are alleged to be at risk of getting hit by the blades of their tools because the heads of the tools slip from their handles as the prisoners hack away without proper training. Smith developed blisters from handling these heavy tools in the cold without gloves. …

The district court dismissed the Eighth Amendment claim, insofar as it complained about failure to provide gloves for outdoor work in cold weather, on the ground that Smith’s blisters were nothing more than “the usual discomforts of winter” rather than deprivations of the “minimal civilized measure of life’s necessities,” and brushed off his fear of dangerous working conditions …

Although no one much likes to work out of doors during the winter, the normal discomfort that such work involves does not make the work cruel and unusual punishment. But that is provided that the worker is properly clothed. Smith does not specify the temperature in which he was working without gloves and got blisters on his hands but it was during the winter of 2008-2009, and the average temperature at the location of the Branchville Correctional Facility in Indiana where he was imprisoned was only 29.6 degrees Fahrenheit in January (it was 35.2 in December, 38.8 in February, and 50.2 in March); on January 16 it plunged to -7.

“The Eighth Amendment ‘forbids knowingly compelling an inmate to perform labor that is beyond the inmate’s strength, dangerous to his or her life or health, or unduly painful.’ “ Ambrose v. Young, 474 F.3d 1070, 1075 (8th Cir.2007). It forbids forcing prisoners to “perform physical labor which is beyond their strength, endangers their lives or health, or causes undue pain.” Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994) (per curiam). Failure to provide a prisoner required to work out of doors with minimal protective clothing, obviously including gloves, can therefore violate the Eighth Amendment, as countless cases have found. [cites numerous cases]

The “usual discomforts of winter” to which the district judge referred do not include handling heavy tools with gloveless hands in subzero weather. Our prison system is not the gulag. Smith’s blisters could have been caused by his handling the stump removal tools without gloves, or could even have been precursors to or consequences of frostbite—the record does not say. But the allegations of the complaint are sufficient to preclude dismissal for failure to state a claim.

Full docket info: Smith v. Peters, et al., No. 10-1013, 7th Cir., January 19, 2011; opinion PDF here.

Seventh Circuit Reinstates First Amendment Class Action Lawsuit Against Indiana Jail

Although the named plaintiff may no longer be an inmate there, his would-be class action lawsuit against an Indiana county jail is not moot, the Seventh Circuit held this week. Mark Olson alleges that Tippecanoe County Jail (TCJ) officials opened his legal mail outside of his presence, denied him access to the law library, and failed to respond to any of the 21 grievances he filed while he was incarcerated there in 2008-09. Olson filed a federal lawsuit against the sheriff in charge of the jail, alleging several violations of both the First Amendment and Indiana law. Olson also moved to certify the lawsuit as a class action, attaching affidavits from 53 other TCJ inmates with similar complaints.

Shortly after filing the suit, Olson was transferred out of TCJ by the Indiana Department of Corrections. As a result, the district court dismissed the lawsuit as moot. The Seventh Circuit reversed, and remanded the suit back to the district court for a decision on whether to certify the class, relying on the “inherently transitory” exception to the mootness doctrine. That is, even though Olson himself can’t benefit directly from the lawsuit anymore, there will always be some group of inmates at TCJ who may be suffering from the alleged pattern of violations:

The pervasive nature of these claims, as evidenced by the fifty-three affidavits outlining problems similar to those complained of by Olsen, makes it likely that TCJ’s alleged practices of opening inmates’ legal mail, denying inmates access to the law library, and failing to respond to inmates’ grievances will continue.

(Olson v. Brown, No. 09-2728, 7th Cir., Feb. 4, 2010, p. 13)

No Dungeons & Dragons in the Dungeon

One of many D & D monsters, the "Bonecrusher Skeleton." © 2009 Wizards. All Rights Reserved

There’s been some talk in the blogosphere of the Seventh Circuit’s recent ruling upholding a Wisconsin prison’s ban on the role-playing game Dungeons & Dragons, against a prisoner’s First Amendment challenge. (Note that the ban covers not only the game itself, but also any D & D related publications: novellas, strategy guides, etc.) Here’s one take over at the Volokh Conspiracy, which spurred a series of comments that for some reason merited coverage in the New York Times; Above the Law skewers the Seventh Circuit’s reasoning here. Why the ban? According to the prison warden (as quoted in the opinion), D & D can lead to “fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling” (p. 4).

From a technical legal standpoint, the Seventh Circuit may have been right to uphold the ban, since the standard for judicial review of prison policies is akin to “rational basis review” — basically, as long as the government can come up with a remotely plausible explanation for a regulation, the court oughtn’t interfere. (Though I’d invite readers to read the opinion and the commentaries linked above, and then see how plausible you actually find the state’s justifications.) And sure, it’s easy enough to joke about a role-playing game that revolves around a weird hybrid of medieval fantasy and Tolkien. (To make this a case, in the words of the New York Times, that’s just about “the rights of inmates to nerd out.”) As a policy matter, though, a ban of this type raises questions that go straight to the heart of the entire prison project: