204 F.3d 1187 (9th Cir. 2000), 97-35870, Schwenk v. Hartford

Docket Nº:97-35870
Citation:204 F.3d 1187
Case Date:February 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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204 F.3d 1187 (9th Cir. 2000)

DOUGLAS W. SCHWENK, Plaintiff-Appellee,



No. 97-35870

United States Court of Appeals, Ninth Circuit

February 29, 2000

Argued and Submitted March 11, 1999

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COUNSEL: Nancy J. Krier, Assistant Attorney General, Olympia, Washington, for the defendants-appellants.

Jeffry K. Finer, Finer and Pugsley, Spokane, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington

Before: Betty B. Fletcher, Stephen Reinhardt, and Sidney R. Thomas, Circuit Judges.

REINHARDT, Circuit Judge:

Robert Mitchell, a Washington state prison guard, appeals the district court's denial of his motion for summary judgment in a case in which a male-to-female transsexual prisoner, Douglas ("Crystal") Schwenk, sought damages as a result of Mitchell's alleged attempt to rape her.1 Following the alleged assault, Schwenk sued various prison officials including Mitchell both under Section 1983, for a violation of her Eighth Amendment rights, and under the Gender Motivated Violence Act (GMVA).2 Mitchell's summary judgment motion was based on qualified immunity.

With respect to Schwenk's Section 1983 claim, Mitchell argues that he is entitled to qualified immunity because the allegations amount only to sexual harassment and not to the sort of sexual attack proscribed by the Eighth Amendment. With respect to Schwenk's GMVA claim, Mitchell asserts that he is entitled to qualified immunity because the constitutionality of the Act was not clearly established and its applicability under the circumstances of this particular assault was far from clear. For the reasons set forth below, we hold that the district court properly denied Mitchell's

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motion on the Section 1983 claim, but erred with respect to the GMVA.


Douglas (Crystal) Schwenk asserts that she is a preoperative male-to-female transsexual who plans someday to obtain sex reassignment surgery.4 Schwenk testified that she realized that she was psychologically female by the age of 12, and that she used illegally-obtained female hormones prior to incarceration, although she never received any medical or psychiatric treatment for gender dysphoria, the technical diagnosis for transsexuality. According to Schwenk, she considers herself female and has been known as "Crystal Marie" since early adolescence. She has shoulder-length hair, is extremely soft-spoken and feminine, cries easily, and uses make-up and other female grooming products when possible.

In June of 1993, Schwenk was incarcerated in the all-male Washington State Penitentiary in Walla Walla. In September of 1994, she was transferred to the prison's medium security Baker Unit, where Robert Mitchell was employed as a guard. Mitchell recalls that shortly after Schwenk arrived at Baker Unit, other inmates told him that Schwenk was homosexual. Mitchell admits that soon after that, Schwenk told him that she intended to have a sex change operation after her release from prison, and that she repeated this assertion to him "from time to time." Schwenk testified that she also told other prison officials that she was transsexual. According to Schwenk, Mitchell referred to her as Crystal, not Douglas.

Schwenk alleges that shortly after she arrived in Baker Unit, Mitchell subjected her to an escalating series of unwelcome sexual advances and harassment that culminated in a sexual assault. This harassment began with "winking, performing explicit actions imitating oral sex, making obscene and threatening comments, watching Plaintiff in the shower while `grinding' his hand on his crotch area, and repeatedly demanding that Plaintiff engage in sexual acts with him." Then, in late 1994, Mitchell asked Schwenk to have sex with him in the staff bathroom, offering to bring her make-up and "girl stuff" in exchange for sex. When she refused and attempted to walk away, Mitchell grabbed her and groped her buttocks. Schwenk pushed him away and ran back to her cell crying. Later that day, Mitchell again approached Schwenk and told her that he had had oral sex with a former inmate and planned to have sex with his neighbor's young son, who he claimed to be "grooming" for the experience. Schwenk, who testified that she was sexually abused as a child, became terrified of Mitchell and tried to avoid him as much as possible after that. She testified that:

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Once Mitchell told me that I -I freaked. I just started trying to avoid Mitchell because I knew that -I had a feeling that he might be dangerous . . . that he could be personally dangerous to me. I live in a unit where this man controls my every day essential life. That's why I was afraid to tell anybody, even the lieutenants or anybody that came into the unit because I didn't know if word was going to get back to Mitchell.

Shortly thereafter, Schwenk says that Mitchell entered her cell, saw that they were alone, and demanded that Schwenk perform oral sex on him. Schwenk refused and told him to get out. Mitchell then turned and looked behind him to make sure no one was coming, unzipped his pants, pulled out his penis, and again demanded that Schwenk perform oral sex. She again rebuffed him and again told him to leave. Although Mitchell said he would leave, he did not. Instead, according to Schwenk, Mitchell closed the door to her cell, grabbed her, turned her around forcibly, pushed her against the bars, and began grinding his exposed penis into her buttocks. Schwenk testified that she told him to "get off me Mitchell, leave me alone, get out of my house. And he -he didn't listen to me." Schwenk alleges that Mitchell ignored her struggling and continued to forcibly rub his penis against her, saying "oh baby, I knew you'd be good." The attack only stopped, according to Schwenk, when Mitchell, apparently fearing detection, abruptly pushed away from Schwenk, zipped up his pants, and left hastily.

Later that week, Mitchell again demanded sex from Schwenk, who again refused. Mitchell told her that if she did not submit, he would "cross [her] out and send [her] inside to seg, give [her] a new address." Schwenk testified that she interpreted Mitchell's threat to cross her out to mean that he would get her "infracted" and transferred out of the medium security Baker Unit into the main cell house, where she would be at high risk for sexual attack by other inmates. On January 11, 1995, this in fact happened. Schwenk's cell was stripped, and an illegal tattoo gun made out of a ball-point pen was discovered. As a result, she lost some accumulated good time credit and was sent to segregation for 28 days. In addition, she was moved to a multi-man cell in the maximum security Unit 6 of the main institution, where she "live[d ] in a constant state of fear and anxiety," wondering whether she would be raped or otherwise assaulted.

Schwenk subsequently filed an administrative grievance regarding the attack by Mitchell. That grievance was denied as untimely, however, because it was filed ten days after the attack and all such complaints must be made within five days of the alleged incident. Approximately one year after the attack, Schwenk filed a pro se complaint in federal court against Mitchell and various institutional defendants; in that complaint, she alleged that the sexual assault violated her Eighth Amendment rights. The district court appointed counsel for Schwenk, and an amended complaint adding a claim under the Gender-Motivated Violence Act was filed. After dismissing the institutional defendants, the district court converted Mitchell's motion to dismiss into a motion for summary judgment and allowed discovery to proceed.

Schwenk claimed that she was traumatized by Mitchell's assault and by his threats of retaliation. In support of this assertion, Professor Klingbeil found that Schwenk did indeed suffer psychological injury resulting from Officer Mitchell's attack. Moreover, Klingbeil found Schwenk's description of the incident in her cell to be credible because it was consistent with her previous testimony, her intense fear of Mitchell, and the symptoms of post-traumatic stress that Schwenk displayed. In particular, Klingbeil noted that Schwenk had improved since being transferred out of Walla Walla--and away from Officer Mitchell--because she felt that she was "safe from retaliation and treated fairly by staff and inmates." Klingbeil found that Schwenk's reactions and symptoms

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clearly established "that the attack by Mitchell profoundly disturbed Schwenk, left [her] feeling wholly vulnerable to [her] attacker, and experiencing great fear and dread."

Following discovery, Mitchell renewed his request for summary judgment based on what he presents on appeal as two separate grounds: first, the alleged failure to state a claim under the GMVA; and second, qualified immunity with respect to both the GMVA and Section 1983 Eighth Amendment claims. Mitchell raises three points regarding the first ground. First, Mitchell asserts that the acts of which he was accused do not satisfy the statutory definition of a crime of violence. Second, he asserts that Schwenk is male and that the GMVA does not protect men who are raped or sexually assaulted by other men. Third, Mitchell argues that in general, transsexuals are not covered by the act. In particular, Mitchell argues that Schwenk's allegations do not constitute a claim that the attack was based on gender, as required by the statute, but rather on transsexuality. Therefore, Mitchell claims, the...

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