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Leibelson v. Collins

United States District Court, S.D. West Virginia, Beckley Division

December 27, 2017

MARK COLLINS, et al., Defendants.



         This 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.

         The Court has reviewed the following motions: Defendant Dr. AnnElizabeth Card's Motion for Summary Judgment on Qualified Immunity (Document 179)[1] 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).

         In 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.)

         For the 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 claims.


         The Plaintiff, Benjamin “Paris” Leibelson, is a transgender woman who was confined at FCI-Beckley between November 2013 and March 2014.[3] 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.

         A 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.

         Ms. 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.

         Ms. 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.

         Upon 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.

         Officer 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.

         Ms. 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.

         In the 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.

         Other 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.

         Ms. 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.[4] 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 292:9.)

         Ms. 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.

         During 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.[5] 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.

         After 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.

         On her 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.

         Ms. 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.

         Mr. 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.[6] 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 room.

         Lieutenant 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.

         Ms. 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.

         On 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.

         Ms. 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 be unsustained.

         Ms. 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.

         STANDARD ...

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