Driever v. United States
| Decision Date | 19 October 2020 |
| Docket Number | Civil Action No. 19-1807 (TJK) |
| Parties | JEANETTE DRIEVER, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Jeanette Driever, a former federal inmate, has sued various government entities and officials to challenge a Bureau of Prisons policy that authorizes housing transgender prisoners according to their gender identity. Proceeding pro se, she asserts violations of her First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights, as well as violations of the Religious Freedom Restoration Act, the Administrative Procedure Act, and the Federal Tort Claims Act. For the reasons explained below, the Court will grant Defendants' motions to dismiss and deny as futile Driever's second motion to amend her complaint.
The BOP may place a prisoner in "any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable." 18 U.S.C. § 3621(b). Among other considerations, the BOP must assess "the history and characteristics of the prisoner" and "the resources of the facility contemplated." Id. Regulations promulgated to implement the Prison Rape Elimination Act of 2003 (PREA), 34 U.S.C. § 30301, 28 C.F.R. § 115 ("PREA Regulations"), also require the BOP to assess all inmates during intake and upon facility transfer, to determine the prisoner's (1) risk of becoming a victim of sexual abuse, or (2) propensity to commit sexual abuse. See 28 C.F.R. § 115.41. This process, known as "risk screening," helps determine an inmate's housing assignment. See id. § 115.42. The PREA Regulations specifically address risk screening and housing designation for transgender prisoners:
[i]n deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and whether the placement would present management or security problems.
In January 2017, the BOP issued Program Statement 5200.04, memorialized in its "Transgender Offender Manual" ("Manual"). Defs.' Memorandum in Support of Motion to Dismiss Official Capacity Claims ( ), ECF No. 13 at 3. The Manual "offer[s] advice and guidance on unique measures related to treatment and management needs of transgender inmates and/or inmates with [Gender Dysphoria], including designation issues[,]" id. (citing Manual ¶ 5). It also delineates standards for the BOP's Transgender Executive Council (TEC), which oversees the "treatment and management needs of transgender inmates and/or inmates with GD, including designation issues." Id. In May 2018, the BOP issued and incorporated a "Change Notice" to the Manual, which added new details to certain Manual provisions. Id. at 3 n.1, 3. Relevant here are these additions:
the TEC, on a case-by-case basis, will recommend placement of transgender inmates 'us[ing] biological sex as the initial determination for designation;' id ¶ 5; (2) the TEC will consider the health and safety of transgender inmates, 'exploring appropriate options available to assist with mitigating risk to the transgender offender, to include but not limited to cell and/or unit assignments, application of management variables, programming missions of the facility, etc.;' id., and (3) theTEC will consider 'whether placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution (e.g., considering inmates with histories of trauma, privacy concerns, etc.).'
Id. at 4 (citing Manual ¶ 5).
Driever was incarcerated at Carswell Federal Medical Center ("FMC Carswell") for two stints before she was released from custody in April 2018. Defs.' MTD Mem. I at 4, n.3; Declaration of Corinne M. Nastro ("Nastro Decl.") ¶¶ 4-5, Attach. B. In June 2019—over a year later—she filed this suit. In her initial (and currently operative) complaint, she claims that Program Statement 5200.04 violates her rights because it permits the BOP to place transgender inmates in women's correctional institutions. Complaint ("Compl."), ECF No. 1 ¶ 18. In particular, she objects to transgender—mainly male-to-female—inmates sharing "cells, locker areas, showers, toilets, and other areas where bodily privacy is normatively protected" with female inmates. Compl. ¶ 32. She alleges that doing so:
creates a situation that incessantly violates the privacy of female inmates, endangers the physical and mental health of the female Plaintiffs and others, including prison staff, increases the potential for rape, increases the potential for consensual sex which is nonetheless prohibited by prison regulations, increases the risk for other forms of physical assault, violates the Plaintiffs' right to freely exercise their religion, and causes mental and emotional distress that must be promptly mitigated by preliminary and permanent injunctive relief.
Id. at introduction. She also claims that while incarcerated, the BOP forced her to undress in front of individuals whom she considers members of the opposite sex, in conflict with the tenets of her Christian faith that require modesty. See id. ¶¶ 31, 38. Finally, she alleges that transgender inmates sexually harassed her and that she was "threatened with physical violence for speaking out about the FBOP policies on transgender inmates." Id. ¶ 37. She assertsviolations of her rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments, as well as the Religious Freedom Restoration Act (RFRA). She names as defendants the United States, United States Attorney General William Barr, current BOP Director Michael Carvajal, former Warden of FMC Carswell Judy Upton, "all BOP Wardens," "all BOP Directors of Psychology Services," and "unknown BOP employees[,]" in both their official and individual capacities. Id. at caption. She requests injunctive and declaratory relief as well as monetary damages, id. ¶¶ 41-7, and seeks to bring this matter as a class action by requesting relief on behalf of similarly situated federal female inmates. Id. ¶ 2.
In January 2020, Defendants moved to dismiss the official-capacity claims, Defs.' MTD Mem. I, and the individual-capacity claims, Defs.' Memoranda in Support of Motion to Dismiss Individual Capacity Claims ( ), ECF No. 15. The next day, the Court ordered Driever to file an opposition to Defendants' motions by February 21, 2020. ECF No. 16. She requested and received an extension, ECF No. 17, and the Court ordered her to file her opposition by March 20, 2020. See Minute Order of Feb. 26, 2020. The Court also advised her that she had violated Local Civil Rule ("LCvR") 7(m) by not conferring with Defendants; the Court instructed her to comply with the Local Rules. See id. Rather than file an opposition, on March 27, Driever moved to amend the complaint. ECF No. 18. The Court denied the motion without prejudice for failure to comply with LCvR 7(m). See Minute Order of Mar. 31, 2020.
In June 2020, Driever again moved to amend her complaint ("Pl.'s MTA II"), ECF No. 19, and this time included a copy of the proposed amended complaint ("Am. Compl."), ECF No. 19-1.1 The amended complaint adds claims under the Federal Tort Claims Act (FTCA), 28U.S.C. § 1346(b), for negligence and intentional infliction of emotional distress, Am. Compl. ¶¶ 14, 41-5, and a claim for violating the Administrative Procedure Act (APA), 5 U.S.C. § 702, Am. Compl. ¶¶ 19, 49-50. The amended complaint also proposes to join two more pro se plaintiffs, Rhonda Fleming and Stacey Shanahan, id. at caption, ¶¶ 2-3, and four more defendants: former BOP Director Charles Samuels, Warden E. Strong (current warden of the Federal Correctional Institution in Tallahassee, Florida) ("FCI Tallahassee"), Warden C. Coil (former warden of FCI Tallahassee), and Warden Julie Nichols (former warden of the Federal Correctional Institution in Waseca, Minnesota) ("FCI Waseca"), id. at caption, ¶¶ 7-10, 22, 28, 49.2
The next month, Defendants opposed the second motion to amend ( ), ECF No. 21. The Court determined that many issues raised in the opposition overlap with those raised in Defendants' motions to dismiss to which Driever had failed to respond. See Minute Order of August 10, 2020. The Court therefore provided her with another chance to file a combined brief opposing Defendants' motions to dismiss and in reply supporting her second motion to amend. See id. In August, Driever filed a combined brief ( ), ECF No. 23, to which Defendants responded, ECF Nos. 25, 26.
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a court must "treat the complaint's factual allegations as true and must grant a plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (cleaned up). A district court has an obligation to consider a pro se plaintiff's "filings as a whole before dismissing a complaint," Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014), and hold such complaints "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972). Even so, a court need not accept inferences unsupported by facts alleged in the complaint, nor must it accept a plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this...
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