United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
case involves allegations by a former inmate at FCI-Beckley
against several staff members. The Defendants have filed
individual motions for summary judgment, which the Court will
address in a single opinion.
Court has reviewed the following motions: Defendant Dr.
AnnElizabeth Card's Motion for Summary Judgment on
Qualified Immunity (Document 179) and the
supporting memorandum (Document 180), Defendant Donald
Felts' Motion for Summary Judgment on Qualified
Immunity (Document 181) and the supporting memorandum
(Document 182), Defendant Mark Collins' Motion for
Summary Judgment on Qualified Immunity (Document 183)
and the supporting memorandum (Document 184), Defendant
Jeremey James' Motion for Summary Judgment on Qualified
Immunity (Document 185) and the supporting memorandum
(Document 186), Defendant Jerry Vance's Motion for
Summary Judgment on Qualified Immunity (Document 187)
and the supporting memorandum (Document 188), Defendant
Doug Meyer's Motion for Summary Judgment on
Qualified Immunity (Document 189) and the supporting
memorandum (Document 190), Defendant Christopher
Cook's Motion for Summary Judgment on Qualified
Immunity (Document 191) and the supporting memorandum
(Document 192), Defendant Jason McMillion's Motion
for Summary Judgment on Qualified Immunity (Document
193) and the supporting memorandum (Document 194), and
Defendant Joshua Taylor's Motion for Summary Judgment
on Qualified Immunity (Document 195) and the supporting
memorandum (Document 196).
addition, the Court has reviewed the Consolidated Motion
of Individual-Capacity Defendants for Summary Judgment on
Declining to Extend Bivens Remedy (Document 197) and the
supporting memorandum (Document 198), the Plaintiff's
Memorandum in Opposition to Consolidated Motion of
Individual-Capacity Defendants for Summary Judgment on
Declining to Extend Bivens Remedy (Document 210) and the
Plaintiff's Omnibus Memorandum in Opposition to
Individual Defendants' Motions for Summary Judgment
(Document 211). The Court has also reviewed each individual
Defendant's reply memorandum (Documents 232-240) and the
Reply Memorandum in Support of Consolidated Motion of
Individual-Capacity Defendants for Summary Judgment on
Declining to Extend Bivens Remedy (Document 241).
Further, the Court has reviewed all attached exhibits, as
well as the complete deposition transcripts, which the
Plaintiff filed as separate documents. (Documents 213-224.)
reasons stated herein, the Court finds that summary judgment
should be denied as to the Eighth Amendment claims against
Defendants Cook and Meyer, but granted as to all remaining
Plaintiff, Benjamin “Paris” Leibelson, is a
transgender woman who was confined at FCI-Beckley between
November 2013 and March 2014. The Defendants were staff members
and supervisory personnel who interacted with Ms. Leibelson
at FCI-Beckley. Ms. Leibelson has a history of drug abuse and
petty crime that caused her to spend time in and out of jail
as a young adult. In late 2004, she was arrested for purse
snatching in Washington, D.C. She escaped a halfway house,
and was subsequently sentenced for both the original crime
and the escape. Ms. Leibelson spent time in several federal
prisons beginning in 2006, with repeated violations of
supervised release resulting in new periods of incarceration.
Officials at FCI-Allenwood tacitly encouraged her to form a
sexual relationship with another inmate for her own security,
and she did so. She reports that she was sexually assaulted
by a different inmate while at FCI-Allenwood. She believes
this information was available to officials at FCI-Beckley
via prison records. However, an intake form with her
signature has a box checked indicating that she was not a
victim of sexual assault.
supervised release violation led to Ms. Leibelson's
incarceration at FCI-Beckley in November 2013. She was openly
gay and/or transgender at every prison in which she spent
time, with long hair and feminine mannerisms that inmates
readily recognized. Ms. Leibelson spoke with Dr. AnnElizabeth
Card, the chief psychologist at FCI-Beckley, on her arrival,
and believes she mentioned that she was transgender, though
she considers it obvious to any observer. She also emailed
and spoke with Dr. Card about the possibility of using
hormones. It was common knowledge among inmates, and many
staff, that Ms. Leibelson was gay and/or transgender. Ms.
Leibelson admits that she was not a model inmate, either at
FCI-Beckley or at previous institutions. She sometimes used
insulting or insolent language with staff, and she broke
rules on occasion. She stated that she felt she was more
suited to incarceration in a higher security U.S.
Penitentiary, rather than the medium-security F.C.I.
Leibelson met another gay inmate named Jonathan Buell the
first day she arrived at FCI-Beckley. He introduced himself
and offered her any assistance she might need. Ms. Leibelson
asked to be re-assigned to share Mr. Buell's cell, which
prison officials approved. Their relationship became romantic
after a few days, and they were engaged within two or three
months. Although they were aware that sexual relationships
between inmates was prohibited by prison rules, Ms. Leibelson
and Mr. Buell had an intimate relationship.
Leibelson's first disciplinary infraction at FCI-Beckley
was use of suboxone, for which she was sent to the Special
Housing Unit (SHU). She was then released and returned to the
cell she shared with Mr. Buell. On February 6, 2014,
Defendant Jason McMillion and another correctional officer
were in the unit where Ms. Leibelson was housed, conducting
the 4:00 p.m. “count, ” during which all inmates
are to stand and make themselves visible to be accounted for
by the officers. Ms. Leibelson and Mr. Buell were both in the
bottom bunk. A blanket hung from the top bunk to dry
obstructed the view into the bottom bunk from the window in
the door of the cell. Mr. McMillion called out and kicked the
cell door to cause a vibration in case they had headphones in
and could not hear. He could see movement through the
blanket. Ms. Leibelson and Mr. Buell both deny that they were
having sex, and state that they were resting, and Mr. Buell
was assisting Ms. Leibelson with an ingrown hair. Ms.
Leibelson stated in her deposition, as well as in various
administrative remedy forms, that Mr. McMillion shouted
derogatory slurs against homosexuals at her and Mr. Buell.
Mr. McMillion reports that Mr. Buell emerged from the bunk
first, and Ms. Leibelson followed only after repeated orders.
Both appeared disheveled. Because he was concerned that there
may have been sexual activity implicating the Prison Rape
Elimination Act (PREA), Mr. McMillion called for additional
officers in order to separate Mr. Buell and Ms. Leibelson.
Ms. Leibelson received an incident report for failing to
stand for the count, and was sent to the SH U.She and Mr.
Buell maintain that it was unusual to be sent to the SHU for
such a minor infraction.
entrance to the SHU, inmates are subject to a visual search,
requiring them to remove all clothing, lift their arms and
each leg, lift their genitals, and bend over and cough, in
order to demonstrate that they have no concealed contraband.
Officer Christopher Cook conducted the visual search of Ms.
Leibelson on February 6. She passed her clothes through the
slot to Officer Cook, and the search began normally. Officer
Cook then ordered her to move closer to the gate. When she
bent over, he directed her to “open that hole
wide.” (Leibelson Deposition at 196:6) (Document 213).
He then reached his hand through the slot and inserted his
finger(s) in her rectum. She objected and moved away quickly.
The assault lasted two or three seconds. Ms. Leibelson
reports that she felt tearing, and experienced pain
afterwards, which had alleviated by the time she was released
from the SHU. After Ms. Leibelson pulled away from Officer
Cook, he walked away and removed his gloves, then returned
and passed her new clothes through the slot. Ms. Leibelson
indicated that she did not report the assault immediately
because she was afraid of reprisals. Medical notes indicate
that she reported no physical injury when she was examined
after she reported the assault about a month later.
Cook was assigned to the SHU during Ms. Leibelson's stay
there after the February 6 incident. On February 7, in
response to someone asking what she was in the SHU for, he
announced that it was for “sucking dick, ” or
words to that effect. (Leibelson Depo. at 217:5.) Around the
same time, Officer Cook was delivering razors and cleaning
supplies to all inmates in the SHU, but refused to provide
them to Ms. Leibelson. Officer Cook told her there were no
more razors, although she could see a full box, and he also
failed to provide her with cleaning supplies that were
available. She indicates that she received hygiene and
cleaning supplies on other occasions when they were passed
out while she was in the SHU. Officer McMillion worked in the
SHU on later occasions when Ms. Leibelson was housed there,
and reports that he recalls her refusing to take cleaning
supplies on some occasions. Officer Cook stated that he had
no recollection of the incident, but would not have denied an
inmate cleaning supplies, and would have behaved and spoken
professionally. Ms. Leibelson was released from the SHU on or
about February 13, 2014, but moved from Oak B Lower to Oak A
Upper, in order to separate her from Mr. Buell.
Leibelson indicated that inmates at FCI-Beckley-and other
federal institutions-were divided socially along racial and
geographic lines. Because she was from Washington, D.C., she
was affiliated with the D.C. inmates, but her transgender
status complicated matters. Some D.C. inmates pressured her
for sexual favors, and there was an expectation among the
D.C. inmates that she would enter into a sexual relationship
with another inmate from D.C. Ms. Leibelson initially sat
with the D.C. inmates in the cafeteria. However, after she
and Mr. Buell established a relationship, and because of
ongoing pressure to offer sexual favors to the D.C. inmates,
she and Mr. Buell both sat with a friend of his from Georgia.
That caused tension among inmates, particularly after Ms.
Leibelson was no longer housed with Mr. Buell, as other
inmates viewed her as available. Within the cell block, she
dealt with harassment from her new cellmate, who would touch
himself in her presence, and from other inmates.
cafeteria, an older, long-term inmate ordered Ms. Leibelson
not to sit with anyone other than the D.C. inmates because it
caused problems among the inmates. She did not believe she
could sit with the D.C. inmates without being forced into a
sexual relationship with one or more of them. Ms. Leibelson
reported the problem to Captain Douglas Meyer and to Warden
Collins on multiple occasions, both verbally and in written
or emailed requests, followed by submitting administrative
complaints, but nothing was done. Ms. Leibelson also spoke
with her unit manager, again with no effect. She requested
that a table be established in the cafeteria for GBT (gay,
bisexual, and transgender) inmates. The request was denied.
In his deposition, Capt. Meyer explained that it was a BOP
policy, above the institution level, not to segregate inmates
in the cafeteria. He denied knowledge that Ms. Leibelson was
unable to access food because of threats of sexual abuse by
other inmates, and stated that on one occasion when Ms.
Leibelson complained of having nowhere to sit in the dining
hall, she had a hamburger in her hand.
inmates sometimes attempted to smuggle food out of the
cafeteria for Ms. Leibelson and Mr. Buell, but that was a
violation of prison rules. Inmates were patted down as they
left the cafeteria, and if food was found, it was thrown
away. On one occasion, Capt. Meyer observed an inmate
collecting food for Ms. Leibelson and Mr. Buell, and directed
an officer to permit him to leave through a side door to
bring them food. He did not offer a more permanent solution,
however. Ms. Leibelson reports that the longest she went
entirely without food at FCI-Beckley was two days.
Leibelson also continued to experience harassment from some
FCI-Beckley employees following her release from the SH U.She
overheard Officer Joshua Taylor and Officer McMillion talking
about wanting to be rid of her, after which Officer Taylor
conducted a search of her cell, throwing everything on the
floor or bed. In another incident, Ms. Leibelson requested
permission to pass Mr. Buell a radio that had been mistakenly
placed with her belongings when she and Mr. Buell were sent
to the SHU. Officer Taylor agreed, but then sent them to
Lieutenant Felts' office, and may have written them up
for sharing property. When Ms. Leibelson asked why they were
being sent to the Lieutenant's office, Officer Taylor
said it was “for being gay.” (Leibelson Depo. at
Leibelson and Mr. Buell waited outside Lt. Felts' office
for a lengthy period. When Lieutenant Felts arrived, he
screamed at them, called them derogatory and homophobic
names, and threatened to send them to a higher-security
U.S.P. where they “wouldn't make it three days
without the ‘blacks' tearing [their] assholes
apart.” (Leibelson Depo. at 273:1.) Ms. Leibelson
viewed the statement as a threat, and an indication that
Lieutenant Felts did not care about protecting them from
sexual assault or harassment because of their sexual
orientation. She also believed that he could have them sent
to a higher security facility by writing them up for
disciplinary infractions until they reached the number of
points necessary to trigger transfer to a USP. Ms. Leibelson
was not, in actuality, concerned about the threat of being
sent to a USP, because she had spent time in penitentiaries,
and prefers them to FCI facilities.
the time period when Ms. Leibelson and Mr. Buell were housed
separately, but in the general population, they met regularly
during moves between different areas of the facility,
recreation time, and at the chapel. Officer Jerry Vance was
the Religious Resources Assistant, or chapel officer. Ms.
Leibelson and Mr. Buell sometimes watched films in a video
room in the chapel. Ms. Leibelson reports that Officer Vance
shut down the video room on February 28, 2014, and someone
stated that it was to prevent them from using it. Ms.
Leibelson and Mr. Buell decided to attend a Bible study led
by an outside volunteer that was beginning soon after they
were sent out of the video room. Ms. Leibelson testified that
she does not identify with any specific religion, but
believes in a higher power. She attended religious services
at FCI Beckley in order to spend time with Mr. Buell. Ms.
Leibelson indicates that they behaved respectfully and
appropriately during the Bible study, but noticed Officer
Vance watching them through the window, and then interrupting
the service. Officer Vance pulled them out of the
service, and took them into his office one at a time. Mr.
Buell claims that Officer Vance conducted a pat search that
included grabbing his genitals and his buttocks. Officer
Vance then told Ms. Leibelson and Mr. Buell that the chapel
was not “a gay church” and that they would not be
permitted to come to the chapel while he was working.
(Leibelson Depo. at 288:14.) Ms. Leibelson did not attempt to
go to church services again.
the incident in the chapel, Ms. Leibelson and Mr. Buell
decided to report the sexual harassment and abuse they
experienced while at FCI-Beckley. Staff members prevented
them from speaking to members of a PREA compliance audit team
visiting the prison from Washington, D.C., but Ms. Leibelson
and Mr. Buell both submitted written administrative remedies,
sent to the regional office. They prepared the paperwork in
the library at the same time, and may have talked about what
happened, but each prepared their own forms. Ms. Leibelson
also spoke to Dr. Card on March 11, 2014. When she went to
the psychology office, which is in the same building as the
chapel, Officer Vance came in and followed her around, until
she screamed and refused to be in a room without a camera
with him. Dr. Card arrived and brought Ms. Leibelson into an
office. Ms. Leibelson recounted Mr. Buell's allegations
against Office Vance, as well as her own alleged assault by
Officer Cook. She described the continual harassment by
Lieutenant Felts and Officers Taylor, McMillion, and Vance.
Dr. Card prepared a memorandum for the Warden detailing Ms.
Leibelson's allegations, and walked Ms. Leibelson to a
Lieutenant's office, where Dr. Card spoke with Captain
Meyer, Lieutenant Smith, and Special Investigative Agent
(SIA) Anthony Hussion. She also arranged for Ms. Leibelson to
be placed in protective custody in the SHU and separated from
the officers involved. Mr. Buell reported his sexual assault
the same day and was also placed in SHU.
entry to the SHU for protective custody, which took place on
March 11, 2014, Officer McMillion conducted the visual
search. He repeatedly called her a faggot, and, after she had
removed her clothing, spit on her nude body. Ms. Leibelson
interacted with Mr. McMillion every day while she was in SHU,
and he regularly used homophobic slurs. Ms. Leibelson had a
cellmate in the SHU, who treated her respectfully and was
supportive of her complaints. Mr. Buell's SHU cell was
above hers, and they were able to communicate through the
vents in the cells.
Leibelson reports that Officer Jeremy James, who had
previously treated her appropriately, began harassing her
during her March placement in the SHU. He made offensive
comments about her sexuality and gender identity, including
suggesting that he find her a dress. Officer James also
threatened to put a piece of metal in her cell if she went to
recreation (where she could see Mr. Buell), which she
interpreted as a threat to plant a shank in her cell so that
she would be disciplined. Lieutenant Felts also did rounds in
the SHU, and Ms. Leibelson states that he used homophobic
slurs toward her.
Buell was moved to prevent continued communication through
the vents. Ms. Leibelson explains that she was very upset by
this because they remained under the control and supervision
of the officers who had harassed them, but were unable to
check on one another's safety. On March 22, 2014, she
responded by covering the window of the cell and repeatedly
breaking the sprinklers, flooding the cell. Officer McMillion
initially responded by ordering Ms. Leibelson and her
cellmate to remove the window covering and submit to hand
restraints, but they refused. Ms. Leibelson admits that she
used profane language and threatened staff with lawsuits
and/or complaints that could result in negative employment
consequences. Lieutenant Felts responded, and directed
Ms. Leibelson and her cellmate to uncover the window and
submit to hand restraints, which they again refused.
Lieutenant Felts notified Captain Meyer and obtained approval
for a calculated use of force. He used a pole with extensions
on the sides to push the barricade away, which Ms. Leibelson
says struck her in the hip. She and her cellmate then
submitted to hand restraints without further use of force,
and were removed from the cell and taken to the visual search
Felts claims that his involvement in the incident ended at
that point. Ms. Leibelson, however, claims that he threatened
her with what appeared to be a shotgun when she attempted to
break the sprinkler in the visual search room. He pointed the
gun at her and said, “I'm going to shoot you in
your pussy.” (Leibelson Depo. at 358:12.) Officers do
not carry lethal weapons on the compound at FCI-Beckley. Ms.
Leibelson is not familiar with firearms and does not know
what type of gun it was, but noted that it had a pump. When
asked if corrections officers carry guns in FCIs, she
replied, “No, but he was.” (Leibelson Depo. at
360:15.) Ms. Leibelson stopped attempting to break the
sprinkler, and the officers put her in ambulatory restraints
and brought her to another cell. While she was in the open
area accessible to all cells, she shouted to Mr. Buell,
telling him she had been breaking the sprinklers and asking
if he was all right.
Leibelson remained in restraints for 24 hours, which
triggered a visit by Dr. Card on March 23, 2014. During that
visit, Ms. Leibelson made detailed allegations against
Officers Cook James, McMillion, Taylor, Vance, and Lieutenant
Felts, for past sexual misconduct or harassment, continued
harassment, and retaliation for the previously filed
complaints. Dr. Card prepared another memorandum for Warden
Collins, dated March 25, 2014. Upon review of that
memorandum, Warden Collins initiated efforts to transfer Ms.
Leibelson. Mr. Hussion was also in contact with officials
regarding a transfer. The transfer was quickly approved.
March 26, 2014, Mr. Hussion met with Ms. Leibelson to try to
calm her down. He explained that when inmates with complaints
were acting out, he would sometimes be asked to speak with
them. Mr. Hussion was in the process of conducting an
investigation regarding Ms. Leibelson's allegations
against staff members, but he did not initially intend to
interview Ms. Leibelson on that subject on March 26. He
assured her that he was looking into the allegations, but
when she wanted to talk about that subject, he stopped her.
He did not have a computer to type the details or draft an
affidavit for her to sign, so he asked her to do the
interview later. Ms. Leibelson also talked about wanting a
transfer during the first conversation with Mr. Hussion, and
the transfer was approved shortly thereafter. When Mr.
Hussion had the interview set up, Ms. Leibelson refused to
speak with him. She indicated in her deposition that she did
not believe he would be impartial because he worked for the
BOP. At the time, Mr. Hussion recalls her saying that she had
gotten what she wanted because she was going to be
transferred. He made no further attempts to obtain a
statement from Ms. Leibelson detailing her recollection of
staff misconduct, either before or after her transfer. Mr.
Hussion spoke with the staff members against whom allegations
had been made, with a particular focus on the most serious
allegations against Officer Cook. Because Ms. Leibelson
declined to speak with him, he had no facts to counter
Officer Cook's denial, and concluded that the sexual
misconduct allegations were not sustained.
Leibelson was transferred to FCI-McDowell on March 28, 2014.
Mr. Buell was transferred shortly thereafter. While at
FCI-McDowell, Ms. Leibelson re-submitted her administrative
remedies from FCI-Beckley because she was concerned that they
had not been properly reviewed or processed. She was housed
in the SHU at FCI-McDowell without a cell mate for the
entirety of her time there, and had no disciplinary issues.
Ms. Leibelson spent much of her time documenting her account
of her experiences at FCI-Beckley in preparation of this
lawsuit. After Ms. Leibelson's transfer, Mr. Hussion
continued his investigation into her allegations at
FCI-Beckley, interviewing the accused staff members. He
prepared affidavits summarizing their sworn statements, all
of which denied wrongdoing, which each staff member reviewed
and signed. Ultimately, Mr. Hussion found each allegation to
Leibelson is currently being treated for post-traumatic
stress disorder, general anxiety, panic attacks, and she is
on an anti-depressant. She fractured her spine in a fall, and
takes opioid pain medication. She has been working with her
doctor to reduce her dosage, and she sees a masseuse to
assist with pain relief without opioids. Ms. Leibelson's
treatment for mental health conditions extends to her early
childhood, but she reports that her depression, PTSD, anxiety
and panic attacks have significantly worsened as a result of
her experiences at FCI-Beckley. She admits that she claimed
she had anxiety in order to obtain Xanax and Klonopin without
a real medical need prior to her incarceration at
FCI-Beckley, but has since experienced ongoing anxiety and
frequent panic attacks. On February 18, 2015, Ms. Leibelson,
along with her parents, signed a document prepared by a
psychiatrist detailing the circumstances and history of her
various diagnoses. It includes a brief discussion of abuse
suffered in prison, but mentioned only physical and sexual
abuse by other inmates. Ms. Leibelson indicated during her
deposition that she generally avoids discussing the abuse by
staff at FCI-Beckley due to this ongoing litigation.