Iglesias v. Fed. Bureau of Prisons

• Decision Date: 18 April 2022
• Docket Number: Case No. 19-CV-415-NJR
• Citation: 598 F.Supp.3d 689
• Parties: Cristina Nichole IGLESIAS (also known as Christian Noel Iglesias), Plaintiff, v. FEDERAL BUREAU OF PRISONS, Michael Carvajal, Chris Bina, Ian Connors, Dan Sproul, Jeffery Allen, Alix McLearen, Thomas Scarantino, and Donald Lewis, Defendants.
• Court: U.S. District Court — Southern District of Illinois

598 F.Supp.3d 689

Cristina Nichole IGLESIAS (also known as Christian Noel Iglesias), Plaintiff,

v.FEDERAL BUREAU OF PRISONS, Michael Carvajal, Chris Bina, Ian Connors, Dan Sproul, Jeffery Allen, Alix McLearen, Thomas Scarantino, and Donald Lewis, Defendants.

Case No. 19-CV-415-NJR

United States District Court, S.D. Illinois.

Signed April 18, 2022

Angela M. Povolish, Feirich/Mager/Green/Ryan, Carbondale, IL, Lisa Nowlin-Sohl, Pro Hac Vice, James D. Esseks, Pro Hac Vice, Meredith Taylor Brown, American Civil Liberties Union Foundation, New York, NY, Frank Battaglia, Courtney Block, Katherine D. Hundt, Shannon Lemajeur, Pro Hac Vice, Winston & Strawn LLP, Chicago, IL, John A. Knight, Joshua Daniel Blecher-Cohen, Roger Baldwin Foundation of ACLU, Inc. ACLU of Illinois, Chicago, IL, Kevin Warner, Chicago, IL, for Plaintiff.

Brian M. Boynton, USDOJ - Civil Rights Division, Washington, DC, Joshua Edward Gardner, Joshua Michael Kolsky, Laura K. Smith, Gary Daniel Feldon, John J. Robinson, Daniel Schwei, Kate Talmor, U.S. Department of Justice, Civil Division, Washington, DC, Laura J. Jones, Assistant U.S. Attorney, Fairview Heights, IL, for DefendantIan Connors.

Brian M. Boynton, USDOJ - Civil Rights Division, Washington, DC, Joshua Edward Gardner, Gary Daniel Feldon, Joshua Michael Kolsky, Daniel Schwei, Kate Talmor, John J. Robinson, U.S. Department of Justice, Civil Division, Washington, DC, for DefendantsAlix McLearen, Michael Carvajal, Chris Bina, Thomas Scarantino, Donald Lewis.

Brian M. Boynton, USDOJ - Civil Rights Division, Washington, DC, Joshua Edward Gardner, Daniel Schwei, John J. Robinson, Kate Talmor, Gary Daniel Feldon, Joshua Michael Kolsky, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant Federal Bureau of Prisons.

Brian M. Boynton, USDOJ - Civil Rights Division, Washington, DC, Joshua Edward Gardner, Daniel Schwei, John J. Robinson, Kate Talmor, Joshua Michael Kolsky, U.S. Department of Justice, Civil Division, Washington, DC, for DefendantsDan Sproul, Jeffery Allen.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

As previously noted, throughout this litigation the Federal Bureau of Prisons ("BOP") has employed tactics similar to the game of Plinko on The Price is Right.¹BOP was warned for employing these tactics, and it apologized.Now BOP's tactics are turning into a game of "whack-a-mole."Indeed, it appeared the last of BOP's moles had been "whacked."Then another one "popped-up."This time BOP represented it had an appointment with a surgeon for a consultation of gender confirmation surgery ("GCS") on April 7, 2022, but the surgeon does not even perform vaginoplasties.

For the following reasons, BOP is ordered to show cause why it should not be held in contempt for violating the Court's original preliminary injunction order.The Motion to Modify the Preliminary Injunction filed by PlaintiffCristina Nichole Iglesias("Iglesias") is granted in part.(Doc. 213).Finally, BOP and the DOJ's attorneys are ordered to show cause why sanctions should not be imposed.

BACKGROUND

I.The Preliminary Injunction and Evidentiary Hearing on November 22, 2021

Iglesias's Motion for Preliminary Injunction sought to order Defendants to provide her with the medically necessary healthcare she needs, including permanent hair removal and GCS.²(Doc. 93).An evidentiary hearing was held on November 22, 2021.(Doc. 175).At the evidentiary hearing, the Court specifically asked Dr. Leukefeld—a member of the Transgender Executive Council("TEC") and administrator for the psychology services branch of BOP—about the process for evaluating and ordering GCS for inmates:

THE COURT: The psychiatrist, but the—so would you make a referral, then, for a medical examination—if the TEC was considering, say, that an inmate at a—seeking gender-confirming surgery at a female facility, hormone levels are stabilized, would you then refer her for a medical evaluation?

DR. LEUKEFELD: Yes.For example, in the case where the TEC recently made a recommendation for surgery, we of course are working with the local health care professionals, and when we made that recommendation, we referred it to BOP's medical director, who will ensure that the individual is appropriate for surgery, that there are no contraindications, and look for a surgeon.

(Doc. 175, p. 151).Dr. Leukefeld continued testifying the following:

MR. KNIGHT: So—But Dr. Stahl does not determine whether someone gets surgery; is that right?

DR. LEUKEFELD: Correct.The TEC makes that recommendation, and then she and her staff would work to find a surgeon and make sure that there's–that there are no contraindications that would preclude surgery.

(Id. at p. 163).

Dr. Leukefeld confirmed the following during the Court's questioning:

THE COURT: Okay.And just so I'm clear, and you said that—I think we've—both things have been said here today.Is the committee going to recommend surgery in April or refer her at that time for an evaluation?

DR. LEUKEFELD: The committee will make a determination about whether to recommend in April, and if it does, she would immediately be referred to the medical director to find—

THE COURT: Okay.So first you have to recommend it and then she would be referred, and for the one that you just mentioned in October who was referred—were they referred or recommended?

DR. LEUKEFELD: The TEC recommended surgery and referred her to the medical director.Medical director would not—will do surgery unless there's some kind of contraindication.

THE COURT: And that's the BOP medical director?

DR. LEUKEFELD: Correct.

THE COURT: Okay.But you don't know how long that's going to take.

DR. LEUKEFELD: I don't know how long it will ultimately take, but I—but it is underway.

(Id. at pp. 189-190).

Mr. Knight, former counsel for Iglesias, sought clarification of TEC's process, and Dr. Leukefeld did not correct Mr. Knight, but confirmed the following:

MR. KNIGHT : Well, the question is, is Ms. Iglesias ever going to get surgery under the circumstances we're talking about here?The TEC still hasn't decided to recommend her for surgery to the medical director, has not made arrangements for permanent hair removal, has not made arrangements for a surgeon as far as I can tell, so my client, I think, would like to know if it's ever going to happen.

DR. LEUKEFELD: The TEC set a date to consider her for surgery.That takes into account her release date and will ensure that if she's recommended for surgery, she'll have time to recover in BOP custody.The TEC has provided her feedback over time about—has made requests of her to, you know, manage her behavior, to participate in treatment.She's done those things.I understand it's a process, and progression is happening.

(Id. at pp. 192-193).

After considering the evidence and relevant authority, the Court entered preliminary injunctive relief, granting Iglesias's motion in part.(Docs. 176, 177).The Court ordered BOP to have the TEC meet to evaluate Iglesias's request for GCS by Monday, January 24, 2022.(Doc. 177).If the TEC recommended Iglesias for surgery, then BOP was ordered to refer Iglesias to BOP's medical director.If the TEC did not recommend Iglesias for surgery, then BOP was ordered to file a notice with the Court explaining all the reasons for the TEC's decision.(Id. ).

II.Defendants’ Response to the Court's Preliminary Injunction Order and the Court's Show Cause Order

Despite the evidence and testimony on BOP's process for evaluating and ordering GCS for inmates, on January 31, 2022, Defendants filed their Notice of Compliance with December 27, 2021 Preliminary Injunction, noting:

The TEC "recommended that Iglesias be referred to a surgeon for consultation for GCS approximately one month after she is placed in a Residential Reentry Center ("RRC")(commonly referred to as a "halfway house")[.]"McLearenDecl. ¶ 6.The TEC made this recommendation on the "assum[ption that]she does not engage in behavior that would prevent her from continued placement in a female facility and assuming further that no other reasons develop that would make gender confirmation surgery inappropriate[.]"Id.Although the Court's PI anticipated that the TEC would either (a) recommend Plaintiff for surgery and immediately refer Plaintiff to BOP's Medical Director or (b) not recommend Plaintiff for surgery, the TEC's decision was to recommend referral to a surgeon for consultation for GCS at a future date provided no reasons develop that would make surgery inappropriate.

(Doc. 183, p. 2).

There was never this option.Nowhere did BOP, DOJ, or Dr. Leukefeld explain that the TEC could refer Iglesias to a surgeon for consultation for GCS directly.(Doc. 199, p. 15).BOP even had an opportunity to contest the Court's order on the preliminary injunction, but used that opportunity to only contest the transcription of the TEC meeting.BOP explained "[they] do not seek relief from any of these other requirements."(Doc. 178, p. 3).

As a result of this new option, the Court ordered the BOP to show cause in writing on or before February 14, 2022, why sanctions should not be imposed.(Doc. 187).The Court also ordered that Dr. Leukefeld, Dr. Alix McLearen, Joshua Gardner, John Robinson, Joshua Kolsky, and Kate Talmor³ appear before the Court on Tuesday, February 22, 2022, to show cause for their failure to adhere to the Court's Preliminary Injunction (dated December 27, 2021).(Id. ).

In their written response, Defendants reported they complied with the preliminary injunction.Defendants noted that "[g]iven that the TEC had not immediately and unconditionally ‘recommend[ed] Iglesias for GCS,’ its recommendation did not fall under the injunction's first set of instructions, and BOP therefore complied with the preliminary injunction by following the alternate set of instructions that applied ‘[i]f the TEC [did] not recommend Iglesias for GCS.’ "(Doc. 191, p. 17).Defendants continued construing what happened as "[a] single instance [ ][ ] involving an inadvertent...