Norington v. Mitcheff (Indiana, USA)

Lakesha Norington, also known as Shawntrell Marcel Norington, is in a men’s prison for murdering an HIV-positive man.  Norington sued prison officials in Indiana, claiming that he was denied adequate medical care for gender identity disorder (“GID”) in violation of the Eighth Amendment. The court granted the defendant’s motion for summary judgment, ending the lawsuit.  The court noted that medical officials concluded that Norington did not have GID.  Rather, Norington’s “wish for sex-reassignment surgery was driven more by attention seeking and secondary gain rather than distress related to his biological assignment.”

Norington established that he wanted hormone therapy and sex reassignment surgery, and was persistent in his request for this treatment over the course of several years. The court concluded that his desire for this treatment, standing alone, does not mean that the United States Constitution entitled him to it.

Norington Decision

Norington’s Prison Record.

Titlow v. CMS Inc.(Michigan, USA)

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A Michigan prison inmate with gender identity disorder can sue a doctor and a guard accused of ignoring problems with his breasts. Vonlee Titlow says a corrections officer snickered and failed to seek medical care when he complained about pain in his breasts in 2006.   Titlow is male but considers himself a female and received silicone injections to increase his breast size before entering prison in 2002.  The U.S. Court of Appeals for the 6th Circuit will allow  Titlow’ lawsuit to proceed.  The 45-year-old Titlow is in prison for second-degree murder in Oakland County.

Titlow v. CMS Inc.

Konitzer v. DOC (Wisconsin, USA)

Transgender Inmate Konitzer_jpg_475x310_q85

Scott Konitzer alleges in a lawsuit against the Wisconsin Department of Corrections that DOC officials falsely induced him to settle his 2003 civil rights case during mediation in 2010 with promises to continue certain non-surgical treatments, and to consider other therapies that  experts in the disorder might recommend. Konitzer further claims that DOC officials never intended to consider the other treatments and limited his existing treatment to treatments that render him suicidal and bald.

Konitzer, a/k/aDonna, prompted lawmakers to pass the Sex Change Prevention Act, subsequently ruled unconstitutional by a federal judge who concluded that doctors must decide whether inmates with gender identity disorder need the kind of hormone treatments Konitzer and a few others receive.

His current lawsuit contends the Department of Corrections stopped giving him one drug in the hormone treatments, which prompted the head hair loss; denied  proper voice changing therapy; and denied a specific type of depilatory cream to remove unwanted hair from other body areas.

Konitzer v. DOC

News Report.

 

Tomaselli v. Butts (Hawaii, USA)

 

Dion’e Kaeo-Tomaselli , who is presently incarcerated at the Women’s Community Correctional Center (“WCCC”), filed a prisoner civil rights complaint on November 1, 2011 against Joe Chavez, Pi’ikoi Recovery House for Woman (“Pi’ikoi House”).  Her complained alleged that Defendant Butts is the owner and/or operator of Pi’ikoi House, and that Defendant Souza is its resident manager. Kaeo-Tomaselli alleges that Butts and Souza denied her access to public accommodations because of her gender, in violation of the Fair Housing Act. She claims that, on August 10, 2010, Souza told WCCC Librarian Harry Fujigami that “she would not accept me into the Pi’ikoi Recovery House for Women because former inmates who currently live in the house told her that I was a sex change.” Kaeo-Tomaselli also alleges that Souza wrongly identified her “as a ‘Sex Change’ to my witness Mr. Fujigami after former female offenders informed her of false information due to my gender  because for all intent[s] and purposes I am a ‘FEMALE’.”

Kaeo-Tomaselli  alleges the following counts: (I) a 42 U.S.C . § 1983 claim against Butts for violations of equal protection and the Fair Housing Act; (II) a 42 U.S.C. § 1983 claim against Souza for violations of equal protection and the Fair Housing Act; and (III) a state law slander claim against Souza for “defamation of character” and violating her rights of gender identity and expression.

The Defendants moved to dismiss.

The U.S. District Court for the District of Hawaii declined to dismiss the lawsuit.

“Gender stereotyping is direct evidence of sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (discussing discrimination under Title VII). The Ninth Circuit has also held that transgender individuals may state viable sex discrimination claims on the theory that the perpetrator was motivated by the victim’s real or perceived failure to conform to socially-constructed gender norms. See Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (discussing the Gender Motivated Violence Act, 42 U.S.C. § 13981(c)).

Kaeo-Tomaselli  is currently incarcerated at WCCC, which is the Hawaii state prison for women. It is unclear whether [Kaeo-Tomaselli]  has undergone a sex change operation, or is a transsexual or transgender who has not yet done so. [Kaeo-Tomaselli]  is nonetheless being accommodated at WCCC, therefore, the court concludes that [Kaeo-Tomaselli]  states an Equal Protection claim based on her real or perceived sex or gender.”

News Report.

DION’E KAEO-TOMASELLI V.  JENNIFER BUTTS, ET AL; CIVIL NO. 11-00670 LEK-BMK. (November 30, 2012)

Guzman-Martinez vs. Corrections Corporation of America et al. (Arizona, USA)

NOTE: This is a really awful decision for anyone who cares about people in detention due to immigration status. I am reporting it because of the gender identity aspect, but I disagree with the basis for the court’s decision to dismiss the lawsuit. The court should have looked to standards of care for keeping male inmates free from sexual assaults.  See, e.g., this Department of Justice Rule.  The ACLU represented Guzman-Martinez.  I haven’t looked at their briefs but I don’t think they briefed the issue of standards of care to prevent sexual assault in male prisons by men.  This summary mostly copies the court’s decision.

The Corrections Corporation of America (“CCA”) owns and operates the Eloy Detention Center (“Center”) in Eloy, Arizona, under a contract with the City of Eloy (“City”), which has a contract with the United States Immigration and Customs Enforcement (“ICE”) to house ICE detainees. On February 17, 2006, ICE executed an agreement that the City had signed on February 13, 2006, for the detention and care of ICE detainees. The agreement required the City to house detainees in accordance with the most current editions of the ICE Detention Requirements, American Correctional Association Standards for Adult Local Detention Facilities, and National Commission on Correctional Health Care standards. It provides that ICE inspectors will conduct periodic inspections of the facility to assure compliance with the identified standards. CCA executed another agreement that the City had signed on February 14, 2006 that provided that CCA would indemnify the City and its officers and employees from liability and any claims to the extent they arise as a result of CCA’s acts and omissions in the performance of the agreement.

Continue reading “Guzman-Martinez vs. Corrections Corporation of America et al. (Arizona, USA)”

Contreras v. California (California, USA)

These cases are only interesting because they are filed by Michael Contreras, a convicted murderer who has latched on the Gender Identity as a way to pass the time in prison (along with claiming to want to practice Native American religions, Islam and Judaism).  He won’t be able to file pro se litigation anymore for free because the court (correctly) decided his lawsuits are frivolous, but maybe the Gender Queers could fundraise for him to continue filing lawsuits! Here is an article on how Gender Queers like Tobi Hill-Meyer and Bil Browning have propped him up. Also, Contreras refers to himself in MALE pronouns in some of his litigation. So much for “misgendering” – kind of makes me think this convicted murderer is also a con artist. Here is the con artist’s WordPress blog.

Quetzal Contreraz (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on July 30, 2004. (Doc. 1.) On Plaintiff’s complaint, he listed his name as “Quetzal Contreraz” with CDC number C-45857. Id. at 1. On August 20, 2004, Plaintiff filed an application to proceed in forma pauperis and attached his trust account statement, listing the name used by the prison to identify him, Michael Contreras, with CDC number C-45857. (Doc. 3.) This case now proceeds with the Second Amended Complaint filed on January 22, 2009, against defendants Michael Raymond (Chaplain) and Derral Adams (Warden), on Plaintiff’s claims for violation of the Free Exercise Clause of the First Amendment, based on the denial of Plaintiff’s request for an exemption from the prison’s inmate grooming standards for religious reasons. (Doc. 32.). On the Second Amended Complaint, Plaintiff lists his name as “Quetzala Contreraz aka Lofofora Eva Contreraz.” Id. at 1.

On July 25, 2011, Plaintiff also filed case 1:11-cv-01222-LJO-GSA-PC (E.D. Cal.); Lofofora Eva Contreraz v. Director of CDCR, listing his name as Lofofora Eva (alleging inadequate treatment for Gender Identity Disorder). (See Complaint in case 1:11-cv-01222-LJO-GSA-PC, Doc. 1.) In that case, Plaintiff also lists CDC number C-45857. Id. at 1. In addition, Plaintiff has used at least twelve different aliases to file lawsuits, i.e., “Michael Contreras” aka Al-Mu’min Jihad-Contreras aka Al-Mu’min Jihad Contreras aka Eva Lofofora Contreras aka Jihad Contreras aka Lofofora Contreras aka Lofofora Eva Contreraz aka Lofofora Eva Contreras aka Lopofora Contreras aka Michael Hernandez  Contreras aka Michael Contreraz aka Quetzal Contreras aka Quetzal Contreraz.

A review of Plaintiff’s filing history using CDC number C-45857 reveals that Plaintiff has filed numerous cases under numerous aliases. See, e.g., Lofofora Contreras v. Sherman Block, Sheriff of Los Angeles County, 2:91-cv-03044-JMI-CT (C.D. Cal.); Lofofora Eva Contreras v. Health and Human Services, Secretary, 3:92-cv-03901-JPV, 1992 U.S. Dist. LEXIS 19138, at *2-*3 (N.D. Cal. Dec. 9, 1992); Eva Lofofora Contreras v. James Gomez, Director Dept. of Corrections, 3:93-cv-01976-EFL, 1994 WL 478793 (N.D. Cal. Aug. 29, 1994); Lopofora Contreras v. U.S. Department of Interior, 2:93-cv-00949-JGD-CT (C.D. Cal.); Al-Mu’Min Jihad-Contreras v. James Gomez, 2:94-cv-00089-WBS-JFM (E.D. Cal.); Michael Contreras v. Richard NMI Dixon, 2:94-cv-03757-KN-JG (C.D. Cal.); Jihad Contreras v. Virgil Townsend, Superintendent, Bureau of Indian Affairs, 3:94-cv-00732-R-POR (S.D. Cal.); Al-Mu’min Jihad Contreras v. S. Vonbiela, 3:94-cv-01840-DLJ (N.D. Cal. Nov. 8, 1994); Contreras v. Ibarra, No. 1:11-cv-01523-LJO-GBC, 2012 U.S. Dist. LEXIS 165865; see also Contreras v. Sharon, 1:11-cv-01607-LJO-GBC , 2012 U.S. Dist. LEXIS 165836 (E.D. Cal.); Quetzal Contreraz v. D. Adams, 1:04-cv-06039-LJO-GSA (E.D. Cal.) (case pending for claims that Plaintiff is required to shave his facial hair, violating his First Amendment right to practice the Native American Olin Pyramid Religion); Michael Contreraz aka Lofofora Eva Contreraz v. Stockbridge, 1:06-cv-01817-LJO-SKO (E.D. Cal.) (case pending for excessive force); Lofofora Eva Contreraz aka Mike Contreraz aka Michael Hernandez Contreras v. Ken Salazar, Secretary, U.S. Department of Interior, 3:11-cv-00265-GPC-PCL (S.D. Cal.)

THREE STRIKES LEGAL STANDARD

The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted “to curb frivolous prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). Pursuant to the PLRA, the in forma pauperis statute was amended to include § 1915(g), a non-merits related screening device which precludes prisoners with three or more “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at 1050. The statute provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S. C. § 1915(g). See also Thomas v. Yates, 2012 U.S. Dist. LEXIS 89172, 2012 WL 2520924, at * 4 (E.D. Cal. June 27, 2012) (finding that appeals count as strikes pursuant to O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008)). Determining whether prior dismissals count as strikes under § 1915(g) requires the Court to conduct a “careful examination of the order dismissing an action, and other relevant information,” to determine if, in fact, “the action was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews, 398 F.3d at 1121. In making the determination whether a dismissal counts as a strike, it is the substance of the dismissal which is determinative, not the styling of the dismissal.O’Neal, 531 F.3d at 1153.

THREE STRIKES ANALYSIS

On August 26, 2004, the Court granted Plaintiff’s application to proceed in forma pauperis. (Doc. 4.) A review of the record of actions filed by Plaintiff in the United States District Court reveals that Plaintiff has filed at least three actions that were dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. The Court takes judicial notice of the following cases which count as strikes:

(1) Lofofora Eva Contreras v. Health and Human Services Secretary, 3:92-cv-03901-JPV, 1992 U.S. Dist. LEXIS 19138, at *2-*3(dismissed  on December 9, 1992 at the Northern District of California for failure to state a claim). The Court found that 28 U.S.C. § 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis sua sponte upon determining that the claim is premised on a meritless legal theory. The Court dismissed Plaintiff’s claim for court approval of a paralegal course by mail to count as a rehabilitation program to qualify for social security benefits pursuant to 42 U.S.C. § 402, because a federal district court is not the proper court to grant or deny program approval pursuant to § 402. Plaintiff must first seek relief in the state court under 42 U.S.C. § 405(g), and 20 C.F.R. 404.900-982 before the case can be brought in federal court;

(2) Eva Lofofora Contreras v. James Gomez, Director Dept. of Corrections, 3:93-cv-01976-EFL, 1994 WL 478793 (Dismissed on August 29, 1994, at the Northern District of California, for failure to state a claim, and affirmed on appeal) . (“The district court provided Contreras two opportunities to amend his complaint . . . but Contreras failed to cure the defects of his complaint. Accordingly, the district court did not abuse its discretion by dismissing this action without additional leave to amend.” Contreras v. Gomez, 54 F.3d 785 (9th Cir. 1995)); and

(3) Al-Mu’min Jihad Contreras v. S. Vonbiela, 3:94-cv-01840-DLJ (Dismissed on November 8, 1994, at the Northern District of California) (denying motion to proceed in forma pauperis for Plaintiff’s allegations of labeling his mail as “legal mail” and dismissing case for failure to state a claim) (in forma pauperis denied on appeal, No. 94-17219, 9th. Cir. Feb. 28, 1995) (see Contreras v. Ibarra, No. 1:11-cv-01523-LJO-GBC, 2012 U.S. Dist. LEXIS 165865; see also Contreras v. Sharon, 1:11-cv-01607-LJO-GBC, 2012 U.S. Dist. LEXIS 165836 (E.D. Cal.) (dismissal order from case No. 3:94-cv-01840-DLJ attached to F&R to revoke IFP).

Thus, Plaintiff has three or more strikes which occurred before Plaintiff filed this action on July 30, 2004. Moreover, Plaintiff does not demonstrate that he faced imminent danger of serious physical injury at the time he filed his complaint. Therefore, the Court finds that Plaintiff should be precluded from proceeding in forma pauperis and revocation of Plaintiff’s in forma pauperis status is appropriate. 28 U.S.C. § 1915(g). The filing fee for this action is $150.00. Court records show that to date, Plaintiff has paid $90.03 and  [*10] owes a balance of $59.97.

CONCLUSION AND RECOMMENDATION

Based on the foregoing, it is HEREBY RECOMMENDED that:

1. Plaintiff’s in forma pauperis status be REVOKED, pursuant to 28 U.S.C. § 1915(g);

2. The Court’s orders of August 26, 2004, which granted Plaintiff in forma pauperis status and directed the Director of the California Department of Corrections and Rehabilitation or his designee to deduct payments for the $150.00 filing fee from Plaintiff’s trust account, be VACATED;

3. The Clerk of the Court be DIRECTED to serve a copy of this order on (1) the Financial Department, U.S. District Court, Eastern District of California, Fresno Division, and (2) the Director of the California Department of Corrections and Rehabilitation via the Court’s electronic case filing system (CM/ECF); and

4. Plaintiff be required to PAY the balance of $59.97 owed for the filing fee for this action, in full, within fifteen (15) days or this action will be dismissed, without prejudice.

1. Contreraz v. Dir. of CDCR, 1:11-cv-01222-LJO-GSA-PC, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, 2012 U.S. Dist. LEXIS 165862, November 20, 2012, Decided, November 20, 2012.

2. Contreras v. Sharon, CASE NO. 1:11-cv-01607-LJO-GBC (PC), UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, 2012 U.S. Dist. LEXIS 165867, November 19, 2012, Decided, November 19, 2012.

3. Contreraz v. Adams, 1:04-cv-06039-LJO-GSA-PC, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, 2012 U.S. Dist. LEXIS 165884, November 19, 2012, Decided, November 20, 2012.

4. Contreras v. Ibarra, CASE NO. 1:11-cv-01523-LJO-GBC (PC), UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, 2012 U.S. Dist. LEXIS 165865, November 19, 2012, Decided, November 19, 2012.

Kosilek v. Spencer (Massachusetts, USA)

U.S. Chief Judge Mark Wolf of the U.S. District Court for the District of Massachusetts ordered the Massachusetts Department of Correction to hire an independent specialist to determine whether the state must provide convicted murderer Robert Kosilek electrolysis as he waits to undergo taxpayer-financed sex reassignment surgery.

In September, Wolf ruled that Kosilek, who strangled his wife, Cheryl McCaul, in 1990, is entitled to the surgery because it is a medically necessary treatment for his gender identity disorder.

Governor Deval Patrick’s administration will appeal Wolf’s ruling and has asked the court to delay his surgery.

mlw order 10 24 12 final

More on Kosilek

Alexander v. Weiner (Massachusetts, USA)

In Alexander v. Weiner, decided in January, 2012, U.S. District Court for the District of Massachusetts held that denial or delay of treatment for an inmate with gender identity disorder constituted an 8th Amendment violation. The court ordered the prison to provide prescribed medical treatment for a male-to-female prisoner.

Opinion.

Soneeya v. Spencer (Massachusetts, USA)

 

In Soneeya v Spencer, the U.S. District Court for the District of Massachusetts invalidated the prison system’s gender identity disorder policy because it provided, without exception, that certain accepted treatments for GID were never medically necessary for inmates in GID custody.  The court held that the male prisoner (a male-to-female transgender person) had to receive treatment for his GID in accordance with community standards for adequate care.

Decision.