by Matt Clarke
On September 1, 2021, the U.S. Court of Appeals for the Third Circuit overturned a lower court’s decision to dismiss the claim of a pre-operative transgender federal prisoner who accused Bureau of Prisons (BOP) officials of deliberate indifference to her serious risk of sexual assault when she was placed in a New Jersey cell where she was raped and stabbed.
The prisoner, Christopher “Crissy” Shorter, is a transgender woman who is undergoing hormone replacement therapy, making her body “openly female,” court documents recorded. In June 2015, when she arrived at the Federal Correctional Institution in Fort Dix, New Jersey, BOP officials screening her concluded she was at “significantly” higher-than-average risk of sexual assault because she was transgender, of small stature, and a prison rape survivor. They recommended she not be housed with anyone perceived “at risk” for “sexual abuse perpetration.”
Nonetheless, Shorter was housed in a room without a lock with 11 male prisoners. She asked to move to a two-person cell, citing BOP policies and her risk of sexual assault. Prison officials balked at this request initially. Then when they moved her to a two-person cell, it had no lock and was the farthest from the guard’s station.
Shorter raised the issue of her safety again with prison officials, once more pointing to BOP policies, but they took no other steps to protect her. Instead, her counselor had a sex offender assigned as her cellmate.
Shorter complained to prison officials once more and, again citing BOP policies, requested a transfer to a higher-security prison, where she would at least be better protected against sexual assault. The prison’s Gender Identity Dysphoria Committee took 17 days to recommend that transfer, and the warden took another 17 days to submit a request to BOP’s central office.
Meanwhile, the prison experienced an upsurge in assaults against prisoners and guards. On October 14, 2015, before the transfer went through, a prisoner entered Shorter’s cell, raped her, and cut her seven times. She was transferred about three weeks later.
Shorter proceeded to exhaust her administrative remedies before filing suit pro se in federal district court in New Jersey in October 2017 against the federal government and various BOP officials, proceeding in forma pauperis under 28 U.S.C. § 1915(e) to accuse them of deliberate indifference to the serious risk she would be harmed.
Her case took a roundtrip to the federal district court for the Northern District of Florida, where she settled after her release in 2019, but where defendants objected to moving the proceedings. Returning to New Jersey, the case was dismissed after the district court there found her complaints were too “generalized” to state a sufficient Eighth Amendment claim.
Shorter appealed. She was appointed counsel, attorneys Kelly J. Popkin and Samuel Weiss of the Rights Behind Bars offices in Brooklyn, New York, and Washington, D.C., respectively.
What the Third Circuit then found was that the circumstances in this case were “virtually indistinguishable” from those in Farmer v. Brennan, 511 U.S. 825 (1994). Therefore, they could provide the basis for a civil rights claim against federal authorities, as outlined in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971).
Further, the Court said, “Shorter has adequately alleged that the Defendants were deliberately indifferent to the substantial risk that she would be sexually assaulted,” noting that “[i]t is difficult to imagine what more an unrepresented inmate could do to make prison officials aware of her risk of sexual assault.”
Finding the district court erred in dismissing the claim so early in the litigation, the Court vacated the decision and remanded the case for further proceedings. See: Shorter v. United States, 12 F.4th 366 (3d Cir. 2021).
The case returned to the district court, where the defendant federal government moved to dismiss because Shorter did not file to reopen the case nor re-serve defendants. That prompted a cross-motion to do both from Shorter, who explained in a brief filed on May 9, 2022, that she was once again proceeding pro se and so “had no idea she would have to file motions to get the courts to follow the mandate from the appeal court.” In fact, she said she had to phone “the clerk of courts office several times to inquire what exactly do Local Rule 79.4 mean and what needed to be done to reopen the case.” She also said her emails to her appellate counsel went unanswered.
Those cross-motions remain pending. See: Shorter v. United States, USDC (D. N.J.), Case No. 1:19-cv-16627.
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Related legal cases
Shorter v. United States
|Cite||USDC (D. N.J.), Case No. 1:19-cv-16627|
Shorter v. United States
|Cite||12 F.4th 366 (3d Cir. 2021)|
|Level||Court of Appeals|
|Appeals Court Edition||F.4th|