Estate of Dimarco v. Wy Dept. of Corrections

• Citation: 473 F.3d 1334
• Decision Date: 24 January 2007
• Docket Number: No. 04-8024.,No. 04-8067.,04-8024.,04-8067.
• Parties: ESTATE OF Miki Ann DIMARCO, Plaintiff-Appellee,<SMALL><SUP>*</SUP></SMALL> v. WYOMING DEPARTMENT OF CORRECTIONS, DIVISION OF PRISONS, Wyoming Women's Center; Judy Uphoff; Nola Blackburn; Viki McKinney; Karen Rea; and Donna Lloyd, as individuals, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

473 F.3d 1334

ESTATE OF Miki Ann DIMARCO, Plaintiff-Appellee,^* v. WYOMING DEPARTMENT OF CORRECTIONS, DIVISION OF PRISONS, Wyoming Women's Center; Judy Uphoff; Nola Blackburn; Viki McKinney; Karen Rea; and Donna Lloyd, as individuals, Defendants-Appellants.

No. 04-8024.

No. 04-8067.

United States Court of Appeals, Tenth Circuit.

January 24, 2007.

COPYRIGHT MATERIAL OMITTED

David L. Delicath, Senior Assistant Attorney General (Patrick J. Crank, Wyoming Attorney General, John W. Renneisen, Deputy Attorney General, and Misha Westby, Senior Assistant Attorney General, with him on the briefs), Office of the Wyoming Attorney General, Cheyenne, WY, for Appellants.

Kimberly A. Corey, Law Office of Tom Sedar, P.C., Casper, WY, for Appellee.

Before TYMKOVICH and EBEL, Circuit Judges, and BROWNING, District Judge.^**

TYMKOVICH, Circuit Judge.

Miki Ann DiMarco lived her life as a woman even though she was anatomically male. In 2000, after she violated the terms of her probation, a Wyoming state court sentenced her to prison. Not realizing DiMarco's medical condition and believing her to be a woman, the court placed her in Wyoming's women's correctional facility in Laramie. It was only during a routine prison intake examination that prison officials learned DiMarco was a hermaphrodite¹

Because the officials believed that she presented a safety risk, DiMarco was placed in administrative segregation apart from the rest of the prison population. After an initial evaluation period, officials decided to continue her administrative segregation because they concluded she should not be placed with the general female prison population. Her confinement was reviewed every ninety days, but she remained segregated until her release from prison 14 months later.

DiMarco does not contest her segregation on appeal. Rather, the issue is whether Wyoming had a constitutional duty to provide her an opportunity to challenge the placement and conditions of confinement under the Fourteenth Amendment's Due Process Clause. DiMarco contends that she had a right to contest her prior placement and living conditions through an administrative hearing, and that Wyoming violated her rights by failing to provide the hearing. The district court agreed and held that the Wyoming Department of Corrections and the individual defendants violated her procedural due process rights. Since she had been released from prison in 2002 and before the time of trial, the district court awarded $1,000 in nominal damages as well as costs, attorney's fees and expert fees.

Because we conclude DiMarco does not have a liberty interest in her placement and the conditions of confinement, we reverse.

I. Background

DiMarco's arrest

In 1998, DiMarco pleaded guilty to check fraud in Wyoming and was placed on probation. She violated the terms of her probation by testing positive for drug use and failing to carry verifiable identification. Accordingly, a state judge revoked her probation in early 2000 and sentenced her to two to four years imprisonment. She was temporarily committed to a county jail in Laramie, where she was housed with the general female population.

Wyoming then moved DiMarco to the state's only women's prison, the Wyoming Women's Center (WWC). There, she underwent a routine physical examination pursuant to intake processing policy. As a result of this exam, officials realized she was anatomically male, although she looked and presented herself as female. A prison doctor examined her and concluded that she suffered from gender identity disorder.

DiMarco's confinement

The WWC consists of two wings, the East and the West. The general prison population resides in the West wing. The East wing, where higher risk inmates are housed, consists of housing Pods 1, 2 and 3. New prisoners are routinely housed separately from the general prison population for about one month in Pod 2 while prison officials determine appropriate housing assignments. At intake, DiMarco was housed in Pod 3, the most restrictive and isolated housing pod used for inmates confined to administrative or protective custody.

Pod 3 consists of four cells, which are accessed through a small "day room." Each cell consists of a bed, a steel sink and a steel toilet. The cells are painted cement blocks with grey solid steel doors. The day room consists of a small steel table with a steel bench, both bolted to the floor, and a television, which is mounted high on the wall and controlled by correctional officers. The other cells in Pod 3 were occupied intermittently during DiMarco's confinement.

Conditions in the West wing, by contrast, are more pleasant. The halls have brick facing, the floors are carpeted, and the cell doors are wooden. The West wing cells have cupboards for personal effects and space for hanging clothing. The day rooms in the West wing have furniture, tables, televisions, pictures and other accessories.

As part of their review of DiMarco's initial placement, prison officials determined that she was a low security risk. Placement officials nonetheless recommended that she be kept apart from the general population for three reasons: (1) DiMarco's safety and that of the general female inmate population, (2) her physical condition, and (3) the need to tailor programs for her condition. WWC's warden testified at trial that a primary concern was that other inmates might try to harm DiMarco if they discovered her physical condition. Furthermore, questions surrounded DiMarco's identity because of DiMarco's use of multiple, unverifiable aliases. The warden felt that she did not know enough about DiMarco to risk placing her in the general population.

After DiMarco's initial placement, prison officials reviewed her status every 90 days until her release. Each review yielded a decision to maintain DiMarco's confinement in Pod 3, relying on the initial reasons for the placement. Following each assessment, DiMarco signed a document indicating she had reviewed the prison's placement decision and understood the reasons for her placement. The document explained, "Inmate DiMarco based on medical testing has been determined to be a male and therefore requires housing from other inmates." Aple.App. at 197.

Prison conditions

As detailed by the district court, DiMarco's general confinement met the basic necessities of life:

— DiMarco had adequate clothing, which was washed daily. Yet, she was only given two sets of clothing while the general population received five.

— DiMarco received three meals a day and ate the same food as the general population. Nevertheless, she had to eat in her cell and not with other inmates or in the Pod 3 day room. DiMarco was forced to sit on her bed or toilet to eat because her cell did not have a table or chair.

— DiMarco had access to the prison chaplain.

— DiMarco had access to reading materials from the library cart and could request books to be delivered to her.

— DiMarco had access to the gymnasium, but only when a guard could transport her and the facility was not being used by other prisoners.

— DiMarco received personal hygiene items at no cost to her, including soap, shampoo, toothpaste and a toothbrush.

DiMarco was denied other prison amenities. For instance, she was not allowed day-to-day contact with the other inmates. Nor did she have access to some of the educational programs that would have put her in contact with other inmates. Even though DiMarco was not allowed routine contact with other inmates, she did have access to prison staff and medical personnel. Along with weekly contacts with her caseworker, DiMarco had frequent contact with the nursing staff, physician staff, and specialists located off-site. Shortly after beginning her sentence, DiMarco was included in two small treatment groups, which met for one hour counseling sessions each week. These sessions included other WWC inmates.

II. Procedural History

Following her release from prison, DiMarco brought four federal claims: (1) a 42 U.S.C. § 1983 claim of excessive punishment under the Eighth Amendment; (2) a § 1983 procedural due process claim under the Fourteenth Amendment; (3) a § 1983 substantive due process claim under the Ninth and Fourteenth Amendments, and § 97-1-036 of the Wyoming Constitution; and (4) a § 1983 equal protection claim under the Fourteenth Amendment.

After a bench trial, the court denied DiMarco's excessive punishment and equal protection claims. The court determined DiMarco's segregated confinement did not amount to cruel and unusual punishment since the prison had legitimate concerns over institutional safety and because DiMarco was provided the basic necessities of food, shelter, clothing and medical treatment. In denying the claim, the court also found that institutional safety concerns created by "[p]lacing an inmate of the opposite gender in a facility like the WWC . . . mandated separate housing." Aplts. App. at 167.

In rejecting DiMarco's equal protection claim, the court first determined that "individuals born with ambiguous gender" are not members of a quasi-suspect or constitutionally protected class, and that DiMarco was not denied a fundamental right. Applying rational basis review, the court found no equal protection violation "because Defendants' actions in placing Plaintiff in segregated confinement was rationally related to the legitimate purposes of ensuring the safety of Plaintiff and other inmates and security of the facility." Id. at 177-78.

The court, however, concluded that Wyoming's placement decision and subsequent reviews violated due process. It found that DiMarco's placement in solitary confinement for 438 days resulted in an atypical and significant departure from ordinary incidents of prison life, giving rise to a state-created liberty interest that required due process protection, and that DiMarco did not receive adequate due process.

Having found Defendants' conduct violated due process, the court also denied Defendants'...