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 Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 1 of 21
CLOSED,IFP,JURY,STGSW
U.S. District Court Northern District of Texas (Wichita Falls) CIVIL DOCKET FOR CASE #: 7:17−cv−00009−O

Rhames v. United States of America et al Assigned to: Judge Reed C. O'Connor Cause: 42:1983 Prisoner Civil Rights
Intervenor Theresa Martinez
Intervenor Leslie Garrison
Plaintiff Brenda Rhames

Date Filed: 02/03/2017 Date Terminated: 04/12/2019 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner Pet/Other: Civil Rights Jurisdiction: Federal Question
represented by Warren V Norred The Law Office of Warren V Norred 515 E. Border St. Arlington, TX 76010 817−704−3984 Fax: 817−549−0161 Email: wnorred@norredlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Warren V Norred (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Christiana Holcomb Alliance Defending Freedom 440 First Street NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: cholcomb@adflegal.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Gary Stuart McCaleb Alliance Defending Freedom 15100 N 90th St Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: gmccaleb@adflegal.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Jeana Hallock Alliance Defending Freedom 15100 N 90th St Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jhallock@adflegal.org

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 2 of 21

Plaintiff Charlsa Suzanne Little TERMINATED: 08/02/2018
Plaintiff Jeanette Driever TERMINATED: 01/16/2019

PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
James A Pikl Scheef & Stone LLP 2600 Network Boulevard Suite 400 Frisco, TX 75034 214/472−2100 Fax: 214/472−2150 Email: jim.pikl@solidcounsel.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Charlsa Suzanne Little #47394−177 BOP Bryan FPC PO Box 2149 Bryan, TX 77805 PRO SE
Christiana Holcomb (See above for address) TERMINATED: 04/27/2018 PRO HAC VICE Bar Status: Not Admitted
Gary Stuart McCaleb (See above for address) TERMINATED: 04/27/2018 PRO HAC VICE Bar Status: Not Admitted
James A Pikl (See above for address) TERMINATED: 04/27/2018 Bar Status: Admitted/In Good Standing
Jeana Hallock (See above for address) TERMINATED: 04/27/2018 PRO HAC VICE Bar Status: Not Admitted
represented by Jeanette Driever 4900 Wyoming Blvd #41 Albuquerque, NM 87111 312−483−9667 PRO SE
James A Pikl (See above for address) TERMINATED: 03/07/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Christiana Holcomb (See above for address) TERMINATED: 03/07/2018

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 3 of 21

Plaintiff
Rhonda Fleming TERMINATED: 01/11/2018

PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Gary Stuart McCaleb (See above for address) TERMINATED: 03/07/2018 PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Jeana Hallock (See above for address) TERMINATED: 03/07/2018 PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by James A Pikl (See above for address) TERMINATED: 01/11/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Christiana Holcomb (See above for address) TERMINATED: 01/11/2018 PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Gary Stuart McCaleb (See above for address) TERMINATED: 01/11/2018 PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Jeana Hallock (See above for address) TERMINATED: 01/11/2018 PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V. Defendant United States of America

represented by Kenneth Elliot Sealls United States Department of Justice 1100 L Street, N.W. Room 11520 Washington, DC 20005 202/305−1953 Fax: 202/616−8460 Email: kenneth.sealls@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Emily Brooke Nestler

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 4 of 21

Defendant Jefferson B Sessions, III Attorney General TERMINATED: 02/14/2019
Defendant Thomas R Kane Acting Director of the U S Bureau of Prisons
Defendant Warden Jody R. Upton Warden, Carswell Federal Medical Center

United States Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 202−616−8489 Email: emily.b.nestler@usdoj.gov TERMINATED: 03/21/2018 Bar Status: Not Admitted
represented by Kenneth Elliot Sealls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Emily Brooke Nestler (See above for address) TERMINATED: 03/21/2018 Bar Status: Not Admitted
represented by Kenneth Elliot Sealls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
David Gregory Cutler US Department of Justice PO Box 7146, Ben Franklin Station Washington, DC 20005 202−616−0674 Email: david.g.cutler@usdoj.gov TERMINATED: 11/22/2017 Bar Status: Not Admitted
Emily Brooke Nestler (See above for address) TERMINATED: 03/21/2018 Bar Status: Not Admitted
Laura Katherine Smith U.S. Dept. of Justice PO Box 7146 Ben Franklin Station Washington, DC 20044 202−616−0419 Fax: 202−616−4314 Email: Laura.Smith2@usdoj.gov ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Kenneth Elliot Sealls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
David Gregory Cutler (See above for address) TERMINATED: 11/22/2017 Bar Status: Not Admitted

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 5 of 21

Defendant Steve Mora Warden, Bryan Federal Prison Camp
Defendant Department of Justice TERMINATED: 05/12/2017 Defendant John Doe TERMINATED: 03/02/2017 Defendant Eric Holder TERMINATED: 05/12/2017 Defendant Loretta E Lynch TERMINATED: 05/12/2017 Defendant Barack Hussein Obama TERMINATED: 05/12/2017 Defendant Lt. Soza TERMINATED: 05/12/2017 Defendant Unknown Democratic National Committee Employees

Emily Brooke Nestler (See above for address) TERMINATED: 03/21/2018 Bar Status: Not Admitted
Laura Katherine Smith (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Kenneth Elliot Sealls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
David Gregory Cutler (See above for address) TERMINATED: 11/22/2017 Bar Status: Not Admitted
Emily Brooke Nestler (See above for address) TERMINATED: 03/21/2018 Bar Status: Not Admitted
Laura Katherine Smith (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 6 of 21

TERMINATED: 05/12/2017
Defendant Unknown Government Employees TERMINATED: 05/12/2017
Defendant Debbie Wasserman−Schultz TERMINATED: 05/12/2017
Defendant Democratic National Committee TERMINATED: 05/12/2017
Defendant Hugh J. Hurwitz
Defendant David R. Wilson in his Capacity as Warden of Alderson Federal Prison Camp
Defendant William P Barr Attorney General

represented by Kenneth Elliot Sealls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Date Filed 02/03/2017
02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017

# Docket Text
1 Order to Sever. It is ORDERED that the Clerk of the Court open a new civil action entitled "Rhonda Fleming, et al. v. John Doe" and copy the following to the docket of the new civil action: (1) ECF Nos. 101−125; and (2) this Order. Putative Intervenors will be afforded an opportunity to amend or withdraw their complaint in the new civil action. (Ordered by Judge Reed C. O'Connor on 2/3/2017) (skg) Modified on 2/6/2017 (skg). (Entered: 02/03/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:1. Fri Feb 3 15:56:50 CST 2017 (crt) (Entered: 02/03/2017)
2 MOTION to Intervene filed by Rhonda Fleming, Charlsa Suzanne Little, Jeanette Driever. (skg) (Entered: 02/03/2017)
3 MOTION for Preliminary Injunctive Relief filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 02/03/2017)
4 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Rhonda Fleming. (skg) (Entered: 02/03/2017)
5 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Brenda Rhames. (skg) (Entered: 02/03/2017)
6 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Jessica Summers. (skg) (Entered: 02/03/2017)
7 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Linda Highfield. (skg) (Entered: 02/03/2017)
8 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Natasha Harper. (skg) (Entered: 02/03/2017)

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 7 of 21

02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017
02/03/2017
02/03/2017 02/03/2017 02/03/2017
02/03/2017
02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017

9 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Jeanette Driever. (skg) (Entered: 02/03/2017)
10 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Yolanda Nowlin. (skg) (Entered: 02/03/2017)
11 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Charlsa Suzanne Little. (skg) (Entered: 02/03/2017)
12 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Robin Parezanin. (skg) (Entered: 02/03/2017)
13 RESPONSE filed by Arizona Department of Education, Governor C. L. "Butch" Otter, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 2 MOTION to Intervene. (skg) (Entered: 02/03/2017)
14 RESPONSE filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 3 MOTION for Injunction. (skg) (Entered: 02/03/2017)
15 "Addendum to the Motion for Preliminary Injunctive Relief" 3 filed by Rhonda Fleming. (skg) (Entered: 02/03/2017)
16 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Levon Edmonds. (skg) (Entered: 02/03/2017)
17 NOTICE of Regarding Service of ECF No. 13 & No. 14 filed by Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (skg) (Entered: 02/03/2017)
18 RESPONSE AND OBJECTION filed by Vanita Gupta, John B. King, Loretta Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang re: 2 MOTION to Intervene. (skg) (Entered: 02/03/2017)
19 "Plaintiff−Intervenors' Sur−reply to Plaintiff−States Response" 13 filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 02/03/2017)
20 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Amy Alley. (skg) (Entered: 02/03/2017)
21 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Susan Peters. (skg) (Entered: 02/03/2017)
22 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Donna Roberts. (skg) (Entered: 02/03/2017)
23 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 2 filed by Julie Tina Hatcher. (skg) (Entered: 02/03/2017)
24 "Plaintiff−Intervenors' Sur−Reply to Defendant's Opposition to Motion to Intervene" 18 filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (skg) (Entered: 02/03/2017)
25 ORIGINAL COMPLAINT filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (skg) Modified text on 4/19/2017 (trt). (Entered: 02/03/2017)
26 "Plaintiff−Intervenors' Sur−Reply to Plaintiff−States' Response to Motion for Preliminary Injunction" and "Motion for Live Hearing on the Pleadings" filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (skg) (Entered:

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 8 of 21

02/06/2017 02/15/2017 02/15/2017 02/15/2017 02/21/2017
02/21/2017 02/24/2017 03/02/2017 03/02/2017 03/02/2017 03/02/2017
03/02/2017
03/02/2017 03/02/2017
03/07/2017
03/07/2017

02/03/2017)
27 (Document Restricted) Correspondence (skg) (Entered: 02/06/2017)
28 Correspondence to the Court filed by Rhonda Fleming. (skg) (Entered: 02/15/2017)
30 FIRST AMENDED COMPLAINT against All Defendants filed by Rhonda Fleming, Jeanette Driever, Charlsa Suzanne Little. (skg) Modified text on 4/19/2017 (trt). (Entered: 02/15/2017)
31 Correspondence to the Court filed by Rhonda Fleming. (skg) (Entered: 02/15/2017)
32 NOTICE OF DEFICIENCY AND ORDER: It is ORDERED that Plaintiffs shall cure the deficiencies as directed. Failure to comply with this order may result in dismissal of the case without further notice. Upon the curing of deficiencies by Plaintiffs, this case will be screened by the Court pursuant to 28 U.S.C. § 1915A and/or 28 U.S.C. § 1915(e)(2). (Ordered by Judge Reed C. O'Connor on 2/21/2017) (skg) (Entered: 02/21/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:32. Tue Feb 21 14:08:14 CST 2017 (crt) (Entered: 02/21/2017)
37 MOTION for Plaintiff Charlsa Little to be Dismissed from the Case, filed by Charlsa Suzanne Little. (baa) (Entered: 02/24/2017)
39 Application to Proceed in forma pauperis with certificate of trust account, filed by Jeanette Driever. (baa) Modified on 3/3/2017 (skg). (Entered: 03/02/2017)
40 Application to Proceed in forma pauperis with certificate of trust account, filed by Charlsa Suzanne Little. (baa) Modified on 3/3/2017 (skg). (Entered: 03/02/2017)
41 Application to Proceed in forma pauperis with certificate of trust account, filed by Rhonda Fleming. (baa) Modified on 3/3/2017 (skg). (Entered: 03/02/2017)
42 Brief in Support re 41 MOTION for Leave to Proceed in forma pauperis with certificate of trust account, filed by Rhonda Fleming. (baa) (Main Document 42 replaced on 3/3/2017) (skg). (Additional attachment(s) added on 3/3/2017: # 1 Exhibit(s)) (skg). (Entered: 03/02/2017)
43 "Plaintiff's Memorandum of Law with Supporting Declarations on the Unavailability of the Administrative Remedy Process & The Application of Ross v. Blake," in response to 32 filed by Rhonda Fleming, Jeanette Driever and Charlsa Little. (baa) Modified on 3/3/2017 (skg). (Main Document 43 replaced on 3/3/2017) (skg). (Additional attachment(s) added on 3/3/2017: # 1 Exhibit(s)) (skg). (Entered: 03/02/2017)
44 "Declaration Pursuant to 28 USC §1746," filed by Julie Hatcher. (baa) Modified on 3/3/2017 (skg). (Entered: 03/02/2017)
45 SECOND AMENDED COMPLAINT against All Defendants filed by Jeanette Driever, Charlsa Suzanne Little, Rhonda Fleming. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (baa) Modified text on 4/19/2017 (trt). (Entered: 03/02/2017)
46 FILING FEE ORDER as to Plaintiff Rhonda Fleming in amount of $33.00 with a balance of $317.00 remaining. Clerk to mail this order to the attention of the Inmate Trust Fund Department at the facility where the inmate resides. Plaintiff Rhonda Fleming's motion (ECF No. 41 ) for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is GRANTED. (Ordered by Judge Reed C. O'Connor on 3/7/2017) (baa) . (Entered: 03/07/2017)
47 FILING FEE ORDER as to Plaintiff Charsla Little in amount of $60.00 with a balance of $290.00 remaining. Clerk to mail this order to the attention of the Inmate Trust Fund Department at the facility where the inmate resides. Plaintiff Charlsa Little's motion (ECF No. 40 ) for leave to proceed in forma pauperis pursuant to 28 U.S.C. §

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 9 of 21

03/07/2017
03/07/2017 03/13/2017 03/14/2017 03/17/2017 03/30/2017 03/31/2017 03/31/2017 04/07/2017 04/19/2017
04/19/2017 04/20/2017 04/25/2017
05/12/2017
05/15/2017 05/15/2017

1915 is GRANTED. (Ordered by Judge Reed C. O'Connor on 3/7/2017) (baa) (Entered: 03/07/2017)
48 FILING FEE ORDER as to Plaintiff Jeanette Driever in amount of $43.00 with a balance of $307.00 remaining. Clerk to mail this order to the attention of the Inmate Trust Fund Department at the facility where the inmate resides. Plaintiff Jeanette Driever's motion (ECF No. 39 ) for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is GRANTED. (Ordered by Judge Reed C. O'Connor on 3/7/2017) (baa) (Entered: 03/07/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:46,47,48. Tue Mar 7 15:54:32 CST 2017 (crt) (Entered: 03/07/2017)
49 NOTICE of Change of Address for Pro Se litigant Charlsa Suzanne Little. New address: FPC Bryan, Federal Prison Camp, P.O. Box 2149, Bryan, TX 77805. (baa) (Entered: 03/13/2017)
50 Request for Copy of docket sheet and Filing Fee Order 6 by Rhonda Fleming. (baa) (Entered: 03/14/2017)
51 Correspondence received from Rosario Divins. (baa) (Entered: 03/17/2017)
52 Correspondence received from Rosario Divins (trt) (Entered: 03/30/2017)
53 Correspondence received from Rosario Divins (baa) (Entered: 03/31/2017)
54 Correspondence received from Breanda Cole (baa) (Entered: 03/31/2017)
55 NOTICE of Attorney Appearance by James A Pikl on behalf of Rhonda Fleming, Charlsa Suzanne Little. (Filer confirms contact info in ECF is current.) (Pikl, James) (Entered: 04/07/2017)
56 ORDER: In order to proceed with this case in a timely manner, Counsel shall file a "Third Amended Complaint," if any, by May 19, 2017. All pending motions filed pro se by Plaintiffs prior to the Notice of Appearance of Counsel are DENIED without prejudice to refiling by Counsel. (Ordered by Judge Reed C. O'Connor on 4/19/2017) (baa) (Entered: 04/19/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:56. Wed Apr 19 13:46:09 CDT 2017 (crt) (Entered: 04/19/2017)
57 Correspondence received from Rosario Divins (baa) (Entered: 04/20/2017)
58 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8370130) filed by Jeanette Driever, Rhonda Fleming Attorney Gary Stuart McCaleb added to party Jeanette Driever(pty:pla), Attorney Gary Stuart McCaleb added to party Rhonda Fleming(pty:pla) (McCaleb, Gary) (Entered: 04/25/2017)
59 THIRD AMENDED COMPLAINT WITH JURY DEMAND against All Defendants filed by Jeanette Driever, Charlsa Suzanne Little, Rhonda Fleming, Brenda Rhames. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B, # 3 Exhibit(s) Exhibit C, # 4 Exhibit(s) Exhibit D, # 5 Exhibit(s) Exhibit E, # 6 Exhibit(s) Exhibit F, # 7 Exhibit(s) Exhibit G, # 8 Exhibit(s) Exhibit H, # 9 Exhibit(s) Exhibit I) (Pikl, James) Modified on 5/16/2017 (baa). (Entered: 05/12/2017)
60 Request for Clerk to issue Summons filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames. (Pikl, James) (Entered: 05/15/2017)
61 NOTICE OF DEFICIENCY AND ORDER: In order to proceed in this action, Brenda Rhames must either pay the entire $400.00 filing and administrative fees, or file a motion for leave to proceed in forma pauperis on the Courts application form along with a certified inmate trust account statement. Failure to comply with this order may lead to dismissal for failure to prosecute pursuant to FRCvP 41(b). Deadline to cure the deficiency is 6/5/2017. (Ordered by Judge Reed C. O'Connor on 5/15/2017) (baa)

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 10 of 21

05/23/2017 05/31/2017 05/31/2017 06/01/2017 06/01/2017
06/01/2017
06/01/2017
06/01/2017 06/02/2017 06/02/2017

(Entered: 05/16/2017)
62 Correspondence to the Court filed by Rosario Divins. (baa) (Entered: 05/23/2017)
63 Correspondence to the Court regarding filing fees paid in full, filed by Rhonda Fleming. (baa) (Entered: 05/31/2017)
64 NOTICE of Full Payment of Filing Fees re: 46 Order For Partial Filing Fee, 48 Order For Partial Filing Fee, 47 Order For Partial Filing Fee, filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames (Attachments: # 1 Exhibit(s) 1) (McCaleb, Gary) (Entered: 05/31/2017)
65 ORDER granting 58 Application for Admission Pro Hac Vice of Gary Stuart McCaleb. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Reed C. O'Connor on 6/1/2017) (plp) (Entered: 06/01/2017)
66 AMENDED FILING FEE ORDER: Plaintiff Rhonda Fleming has completed making payment of the filing fees required under the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915. Therefore, the agency having custody of Rhonda Fleming shall no longer deduct filing fee payments from her inmate trust account. The Clerk shall transmit a copy of this Order to the inmate accounting office or other person(s) or entity with responsibility for assessing, collecting and remitting to the Court the filing fee payments on behalf of inmates, as designated by the facility in which plaintiff is confined. (Ordered by Judge Reed C. O'Connor on 6/1/2017) (trt) (Entered: 06/01/2017)
67 AMENDED FILING FEE ORDER: Plaintiff Charlsa Suzanne Little has completed making payment of the filing fees required under the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915. Therefore, the agency having custody of Charlsa Suzanne Little shall no longer deduct filing fee payments for this action from her inmate trust account. The Clerk shall transmit a copy of this Order to the inmate accounting office or other person(s) or entity with responsibility for assessing, collecting and remitting to the Court the filing fee payments on behalf of inmates, as designated by the facility in which plaintiff is confined. (Ordered by Judge Reed C. O'Connor on 6/1/2017) (trt) (Entered: 06/01/2017)
68 AMENDED FILING FEE ORDER: Plaintiff Jeanette Driever has completed making payment of the filing fees required under the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915. Therefore, the agency having custody of Jeanette Driever shall no longer deduct filing fee payments for this action from her inmate trust account. The Clerk shall transmit a copy of this Order to the inmate accounting office or other person(s) or entity with responsibility for assessing, collecting and remitting to the Court the filing fee payments on behalf of inmates, as designated by the facility in which plaintiff is confined. (Ordered by Judge Reed C. O'Connor on 6/1/2017) (trt) (Entered: 06/01/2017)
69 ORDER: It is, therefore, ORDERED that the Clerk of Court shall prepare and serve a summons upon each named Defendant together with a copy of this order and a copy of Plaintiffs Third Amended Complaint. Such service shall be made by certified mail, return receipt requested, to the addresses that have been provided by Plaintiffs in their Third Amended Complaint (ECF No. 59). (Ordered by Judge Reed C. O'Connor on 6/1/2017) (trt) (Entered: 06/01/2017)
70 Summons issued as to Thomas R Kane, Steve Mora, Jefferson B Sessions, III, United States of America, Jody R. Upton, U.S. Attorney, and U.S. Attorney General. (trt) (Entered: 06/02/2017)
71 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8451098) filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames Attorney Jeana Hallock added to party Jeanette Driever(pty:pla), Attorney Jeana Hallock added to party Rhonda Fleming(pty:pla), Attorney Jeana Hallock added to party Charlsa Suzanne Little(pty:pla), Attorney Jeana Hallock added to party Brenda Rhames(pty:pla) (Hallock, Jeana) (Entered: 06/02/2017)

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 11 of 21

06/05/2017 06/08/2017 06/09/2017 06/09/2017 06/12/2017 06/12/2017 06/15/2017
06/26/2017 06/26/2017 06/26/2017 06/27/2017 06/29/2017
06/29/2017 07/06/2017 07/08/2017

72 ORDER granting 71 Application for Admission Pro Hac Vice of Jeana Hallock. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Reed C. O'Connor on 6/5/2017) (baa) (Entered: 06/05/2017)
73 SUMMONS Returned Executed as to Jody R. Upton; served on 6/5/2017. (trt) (Entered: 06/08/2017)
74 SUMMONS Returned Executed as to Thomas R Kane ; served on 6/5/2017. (trt) (Entered: 06/09/2017)
75 SUMMONS Returned Executed from United States Attorney c/o Civil Process Clerk served on 6/5/2017. (trt) (Entered: 06/09/2017)
76 SUMMONS Returned Executed as to U. S. Attorney General; served on 6/9/2017. (trt) (Entered: 06/12/2017)
77 SUMMONS Returned Unexecuted as to Steve Mora. (Envelope marked: RETURN TO SENDER, Attempted − Not Known, Unable to Forward) (trt) (Entered: 06/12/2017)
78 ORDER REGARDING SERVICE OF SUMMONS: On June 1, 2017, the Court ordered the Clerk to issue service of process on Defendants by certified mail, return receipt requested. See ECF No. 69. The record reflects that service of process has been accomplished as to all Defendants except Steve Mora, Warden of the Bryan Federal Prison Camp in Bryan, Texas. On June 12, 2017, the summons and complaint sent to Steve Mora were returned to the Clerk of Court with service unexecuted. See ECF No. 77 at 2. It is, therefore, ORDERED that the Clerk of Court shall forward the summons, together with a copy of this order and a copy of Plaintiffs Third Amended Complaint, to the United States Marshal for service on Steve Mora at the address provided by Plaintiffs in their Third Amended Complaint (ECF No. 59). (Ordered by Judge Reed C. O'Connor on 6/15/2017) (trt) (Entered: 06/15/2017)
79 MOTION for Injunction (Preliminary) filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames Attorney Gary Stuart McCaleb added to party Charlsa Suzanne Little(pty:pla), Attorney Gary Stuart McCaleb added to party Brenda Rhames(pty:pla) (McCaleb, Gary) (Entered: 06/26/2017)
80 Brief/Memorandum in Support filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames re 79 MOTION for Injunction (Preliminary) (McCaleb, Gary) (Entered: 06/26/2017)
81 Appendix in Support filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames re 80 Brief/Memorandum in Support of Motion, 79 MOTION for Injunction (Preliminary) (McCaleb, Gary) (Entered: 06/26/2017)
82 NOTICE of Attorney Appearance by Kenneth Elliot Sealls on behalf of United States of America. (Filer confirms contact info in ECF is current.) (Sealls, Kenneth) (Entered: 06/27/2017)
83 ORDER: The Court requires that Defendants be provided with notice of the Motion for Preliminary Injunction (ECF No. 79 ) and that they be afforded an opportunity to respond. It is therefore ORDERED that Plaintiffs shall provide notice of the Motion for Preliminary Injunction to Defendants and to the Hon. John R. Parker, U.S. Attorney for the Northern District of Texas. Plaintiffs shall file a statement indicating the date of such notice. Defendants may file a Response to the Motion within 14 days of notice. (Ordered by Judge Reed C. O'Connor on 6/29/2017) (baa) (Entered: 06/29/2017)
84 NOTICE of Filing Plaintiffs' Motion for Preliminary Judgment re: 83 Order,, filed by Rhonda Fleming (Pikl, James) (Entered: 06/29/2017)
85 MOTION for Extension of Time to File Response/Reply to 79 MOTION for Injunction (Preliminary) filed by United States of America (Attachments: # 1 Proposed Order) (Sealls, Kenneth) (Entered: 07/06/2017)
86 RESPONSE filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames re: 85 MOTION for Extension of Time to File Response/Reply to 79 MOTION for Injunction (Preliminary) (Attachments: # 1 Proposed Order) (McCaleb, Gary) (Entered: 07/08/2017)

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 12 of 21

07/08/2017 07/10/2017 07/10/2017
07/26/2017 07/27/2017
08/01/2017 08/04/2017 08/04/2017 08/04/2017 08/07/2017 08/07/2017 08/10/2017 08/12/2017 08/12/2017

87 AMENDED DOCUMENT by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames. Amendment to 86 Response/Objection,. to Defendants' Motion for Extensions of Time. (Attachments: # 1 Proposed Order) (McCaleb, Gary) (Entered: 07/09/2017)
88 REPLY filed by United States of America re: 85 MOTION for Extension of Time to File Response/Reply to 79 MOTION for Injunction (Preliminary) (Sealls, Kenneth) (Entered: 07/10/2017)
89 ORDER GRANTING EXTENSION OF TIME: Defendants' Motion for Extension of Time to Respond to Motion for Preliminary Injunction, and to Respond to Third Amended Complaint 85 . It is therefore ORDERED that Defendants shall file a response to Plaintiffs' Motion for Preliminary Injunction on or before August 12, 2017. It is further ORDERED that Defendants shall file an answer to Plaintiffs' Third Amended Complaint within 30 days after the Court rules on the Motion for Preliminary Injunction. (Ordered by Judge Reed C. O'Connor on 7/10/2017) (skg) (Entered: 07/10/2017)
90 MOTION Unopposed Motion for Leave To File Brief in Excess of Page Limit filed by United States of America with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Sealls, Kenneth) (Entered: 07/26/2017)
91 ORDER GRANTING MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF PAGE LIMIT: Pending before the Court is Defendants' Unopposed Motion for Leave to File Brief in Excess of Page Limit. See ECF No. 90 . Defendants ask the Court to allow an additional 15 pages for their brief in response to Plaintiffs' Motion for Preliminary Injunction, for a maximum of 40 pages in the brief. Upon consideration of the Motion and of the extraordinary and compelling reasons set forth in support of Defendants' request, it is ORDERED that: Defendants' Motion is GRANTED. Defendants may exceed the Local Civil Rule 7.2(c) 25−page limit by no more than 15 pages in their brief in response to Plaintiffs' Motion for Preliminary Injunction. (Ordered by Judge Reed C. O'Connor on 7/27/2017) (skg) (Entered: 07/27/2017)
92 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−8572408) filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames (Holcomb, Christiana) (Entered: 08/01/2017)
93 MOTION for Protective Order filed by United States of America with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Sealls, Kenneth) (Entered: 08/04/2017)
94 NOTICE of Attorney Appearance by Emily Brooke Nestler on behalf of Thomas R Kane, Steve Mora, Jefferson B Sessions, III, United States of America, Jody R. Upton. (Filer confirms contact info in ECF is current.) (Nestler, Emily) (Entered: 08/04/2017)
95 ORDER granting 92 Application for Admission Pro Hac Vice of Christiana Michelle Holcomb. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Reed C. O'Connor on 8/4/2017) (trt) (Entered: 08/04/2017)
96 RESPONSE filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames re: 93 MOTION for Protective Order (Pikl, James) (Entered: 08/07/2017)
97 Brief/Memorandum in Support filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames re 96 Response/Objection, 93 MOTION for Protective Order (Pikl, James) (Entered: 08/07/2017)
98 REPLY filed by United States of America re: 93 MOTION for Protective Order (Sealls, Kenneth) (Entered: 08/10/2017)
99 RESPONSE filed by United States of America re: 79 MOTION for Injunction (Preliminary) (Sealls, Kenneth) (Entered: 08/12/2017)
100 Brief/Memorandum in Support filed by United States of America re 99 Response/Objection , Appendix Thereto (Sealls, Kenneth) (Entered: 08/12/2017)

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 13 of 21

08/16/2017
08/16/2017 09/01/2017 09/01/2017 09/05/2017 09/08/2017 09/12/2017 09/22/2017 09/22/2017 09/25/2017
09/25/2017 09/26/2017 09/28/2017 10/05/2017 10/09/2017 10/11/2017 10/16/2017

102 ORDER: The Court hereby GRANTS Defendants' Motion for Protective Order (ECF No. 93 ), which will issue by separate order. Also before the Court is Defendants' Unopposed Motion to Place under Seal Portions of Pages of their Opposition to Plaintiffs' Preliminary Injunction Motion, and Pages of Defendants' Appendix (ECF No. 101 ). Noting that the motion is unopposed, the Court finds that Defendants' Motion to Place under Seal (ECF No. 101 ) is well−taken and should be and is hereby GRANTED. Accordingly, it is hereby ORDERED that: Pages 69, 12, and 18 of Defendants' Opposition Brief, and pages 203, 273, 275276, 278285, 289295, 297330, 507510 and index page 2 of Defendants' Appendix, be SEALED. To allow Plaintiffs' counsel ample time to review Defendants' unredacted response to the preliminary injunction motion, Plaintiffs shall have until September 1, 2017 to file any reply re: 79 MOTION for Injunction (Preliminary). (Order not sealed per law clerk) (Ordered by Judge Reed C. O'Connor on 8/16/2017) (skg) (Entered: 08/16/2017)
103 PROTECTIVE ORDER (Ordered by Judge Reed C. O'Connor on 8/16/2017) (skg) (Entered: 08/16/2017)
104 (Document Restricted) Sealed Reply re: 79 Motion for Injunction, (Sealed pursuant to order dated 8/16/2017) filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames (McCaleb, Gary) (Entered: 09/01/2017)
105 Appendix in Support filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames re 104 Sealed and/or Ex Parte Reply/Sur−reply (McCaleb, Gary) (Entered: 09/01/2017)
106 MOTION to Stay filed by Peter Langan. (skg) (Entered: 09/06/2017)
107 MOTION to Intervene filed by Peter Langan. (Attachments: # 1 Additional Page(s)) (skg) (Entered: 09/11/2017)
108 RESPONSE AND OBJECTION filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames re: 106 MOTION to Stay, 107 MOTION to Intervene (McCaleb, Gary) (Entered: 09/12/2017)
109 NOTICE of Case Development filed by United States of America (Sealls, Kenneth) (Entered: 09/22/2017)
110 Unopposed MOTION to Stay filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little, Brenda Rhames (Attachments: # 1 Proposed Order) (McCaleb, Gary) (Entered: 09/22/2017)
111 Order: Accordingly, all further proceedings in this matter are hereby ABATED for a period of 120 days, including a ruling on all pending motions. The Clerk of the Court is directed to close the case for administrative purposes during the period of abatement. (Ordered by Judge Reed C. O'Connor on 9/25/2017) (skg) (Entered: 09/25/2017)
112 Correspondence to the Court filed by Rhonda Fleming. (skg) (Entered: 09/25/2017)
113 MOTION to Introduce Evidence filed by Peter Langan. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 09/26/2017)
114 MOTION to Intervene filed by Peter Langan. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 09/28/2017)
115 NOTICE of Change of Address for Pro Se litigant Rhonda Fleming. New address: Bryan FPC PO Box 2149 Bryan, TX 77805. (trt) (Entered: 10/05/2017)
116 MOTION to Withdraw as Attorney filed by Rhonda Fleming (Attachments: # 1 Exhibit(s) 1, # 2 Proposed Order) (McCaleb, Gary) (Entered: 10/09/2017)
117 Motion to Remove Counsel for Conflict of Interest filed by Rhonda Fleming. (skg) (Entered: 10/11/2017)
118 ORDER: Before the Court is Plaintiffs' Counsels' Motion to Withdraw as Attorney (ECF No. 116 ), filed October 9, 2017; and Plaintiff Rhonda Fleming's Motion to Remove Counsel (ECF No. 117 ), filed October 11, 2017. The Court finds that a hearing is necessary to resolve the motions. Accordingly, the Court sets a hearing on this case at 11:00 a.m. on November 6, 2017. The hearing will convene in the United

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 14 of 21

10/16/2017 10/16/2017
10/16/2017 10/25/2017 10/25/2017 10/25/2017 10/30/2017 10/30/2017 11/01/2017 11/01/2017 11/02/2017 11/03/2017 11/03/2017 11/06/2017
11/16/2017 11/20/2017 11/22/2017 12/04/2017 12/05/2017

States District Judges Second Floor Courtroom, 501 W. 10th Street, Fort Worth, Texas. (Ordered by Judge Reed C. O'Connor on 10/16/2017) (plp) (Entered: 10/16/2017)
119 "Plaintiff Fleming's Ex Parte Motion for Miscellaneous Relief" filed by Rhonda Fleming. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 10/16/2017)
120 "Motion/Intervenor Motion Contra Preliminary Injunction, Contra the Plaintiff's Complaint, and Motion to Stay Any Action or Order Directing the Removal of the Movant Intervenor from FMC Carswell or the Women's Prison System" filed by Peter Langan. with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 10/16/2017)
121 Invitation for Judge Reed C. O'Connor to Visit and View Federal Medical Center Carswell in Person filed by Peter Langan. (skg) (Entered: 10/16/2017)
122 Open Letter to the Court on Safety of the Plaintiffs filed by Rhonda Fleming. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 10/25/2017)
123 Open Letter to the Court filed by Charlsa Suzanne Little. (skg) (Entered: 10/25/2017)
124 Request to attend court hearing on November 6, 2017 filed by Charlsa Suzanne Little. (skg) (Entered: 10/25/2017)
125 Testimonial Evidence in Support of a Transfer of Plaintiff Fleming filed by Rhonda Fleming. (skg) (Entered: 10/30/2017)
126 Declaration by Jacqueline Pitts in support of Rhonda Fleming. (skg) (Entered: 10/30/2017)
127 MOTION "to secure copies of the case filings and to be notices of any rulings in this case, as well as to be served copies of any new filings by the Plaintiff and Defendant" filed by Peter Langan. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 11/01/2017)
128 NOTICE of Regarding November 6, 2017 Hearing filed by Thomas R Kane, Steve Mora, Jefferson B Sessions, III, United States of America, Jody R. Upton (Nestler, Emily) (Entered: 11/01/2017)
129 MOTION "to Invite the Honorable Judge Richard A Posner as Advisory Counsel" filed by Rhonda Fleming. (skg) (Entered: 11/02/2017)
130 NOTICE of Attorney Appearance by Emily Brooke Nestler for David G. Cutler on behalf of Thomas R Kane, Steve Mora, Jody R. Upton. (Nestler, Emily) (Entered: 11/03/2017)
131 NOTICE of Amended Notice Regarding November 6, 2017 Hearing re: 128 Notice (Other) filed by Thomas R Kane, Steve Mora, Jefferson B Sessions, III, United States of America, Jody R. Upton (Nestler, Emily) (Entered: 11/03/2017)
132 ELECTRONIC Minute Entry for proceedings held before Judge Reed C. O'Connor: Motions hearing held − re: 117 MOTION, 116 MOTION to Withdraw as Attorney. Motions withdrawn by each party. Attorney Appearances: Plaintiff − James Piki, Gary McCaleb; Defense − David Cutlerf, Emily Nestler. (Court Reporter: Denver Roden) (No exhibits) Time in Court − :24. (chmb) (Entered: 11/13/2017)
133 MOTION for Removal of Counsel, Lift of Stay and Hearing filed by Rhonda Fleming. (skg) (Entered: 11/16/2017)
134 MOTION to Withdraw as Attorney filed by Rhonda Fleming (Attachments: # 1 Proposed Order) (McCaleb, Gary) (Entered: 11/20/2017)
135 NOTICE of Attorney Appearance by Laura Katherine Smith on behalf of Thomas R Kane, Steve Mora, Jody R. Upton. (Filer confirms contact info in ECF is current.) (Smith, Laura) (Entered: 11/22/2017)
136 Correspondence to the Court filed by Rhonda Fleming. (skg) (Entered: 12/04/2017)
137 Notice of Filing of Official Electronic Transcript of Motions Hearing Proceedings held on 11−06−2017 before Judge Reed C. O'Connor. Court Reporter/Transcriber Denver B. Roden, Telephone number 214−753−2298. Parties are notified of their duty to

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 15 of 21

12/07/2017 12/18/2017 12/18/2017 12/18/2017 12/18/2017 12/18/2017 12/18/2017 12/18/2017 01/02/2018 01/04/2018 01/04/2018 01/08/2018 01/08/2018 01/10/2018
01/11/2018

review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (17 pages) Redaction Request due 12/26/2017. Redacted Transcript Deadline set for 1/5/2018. Release of Transcript Restriction set for 3/5/2018. (dbr) (Entered: 12/05/2017)
138 NOTICE of Dismissal of Individual Capacity Claims filed by Jeanette Driever, Charlsa Suzanne Little, Brenda Rhames (McCaleb, Gary) (Entered: 12/07/2017)
139 Plaintiff Fleming's Motion to Adopt Pleadings for Preliminary Injunctive relief filed by Rhonda Fleming. (skg) (Main Document 139 replaced on 12/20/2017) (skg). (Entered: 12/18/2017)
140 Verified Motion to Intervene, To Lift Stay, and To Appoint Counsel filed by Theresa Martinez and Leslie Garrison. ***Document was received via certified mail with "Lisa Biron" listed as the sender*** (skg) (Entered: 12/18/2017)
141 Verified Claims for Which Intervention is Sought re 140 Motion to Intervene filed by Theresa Martinez and Leslie Garrison. (skg) (Entered: 12/18/2017)
142 MOVANT/INTERVENOR'S SUPPLEMENTAL MOTION re: 114 Motion to Intervene filed by Peter Langan. (Attachments: # 1 Exhibit(s)) (skg) Modified on 1/25/2018 (plp). (Entered: 12/18/2017)
143 NOTICE of Conflict of Interest between Defendant's Interests and the Movant Intervenor's Interests filed by Peter Langan. (skg) (Entered: 12/18/2017)
144 Affidavit of Indigence and Motion to Proceed in forma pauperis filed by Peter Langan.(skg) Modified on 1/25/2018 (plp). (Entered: 12/18/2017)
145 Motion to Stay and Settlement Between the Plaintiff and the Defendant Pending Appeal or Other Litigation by the Movant Intervenor, filed by Peter Langan. (skg) Modified on 1/25/2018 (plp). (Entered: 12/18/2017)
146 NOTICE re: 138 NOTICE of Dismissal of Individual Capacity Claims filed by Charlsa Suzanne Little. (skg) (Entered: 01/02/2018)
147 NOTICE of two SASE envelopes being returned due to insufficient address provided by the non−party filer Donna Langan aka Peter Langan. Envelopes contain file marked copies of documents 142 and 145 . (trt) (Entered: 01/04/2018)
148 Movant's Second Supplemental Document filed by Donna Langan aka Peter Langan. (trt) (Entered: 01/04/2018)
149 MOTION for Leave to Proceed in forma pauperis filed by non−party Donna Langan aka Peter Langan. (trt) Modified on 1/25/2018 (plp). (Entered: 01/08/2018)
150 NOTICE filed by non−party Donna Langen aka Peter Langen regarding SASE returned by post office for insufficient address. (trt) (Entered: 01/08/2018)
151 Duplicate copies of 142 MOVANT/INTERVENOR'S SUPPLEMENTAL MOTION, 143 NOTICE of Conflict of Interest between Defendant's Interests and the Movant Intervenor's Interests, 144 Affidavit of Indigence and Motion to Proceed in forma pauperis, 145 Motion to Stay and Settlement Between the Plaintiff and the Defendant Pending Appeal or Other Litigation by the Movant Intervenor filed by non−party movant, Peter Langan. ***Clerk's Note: Courtesy copy of document 147 and a copy of the NEF for this docket entry has been mailed to: PETER LANGAN #64023−061 FMC CARSWELL P.O. BOX 27137 FT WORTH, TX 76127. (skg) (Entered: 01/10/2018)
152 ORDER granting 133 Motion; granting 134 Motion to Withdraw as Attorney. Attorney Gary Stuart McCaleb; James A Pikl; Jeana Hallock and Christiana Holcomb terminated. In light of her statutory right to self−representation, Rhonda Flemings motion to terminate her representation by counsel is GRANTED. Counsel of record is discharged from any further representation of Rhonda Fleming in this case. However, counsel continues to represent Plaintiffs Charlsa Suzanne Little, Jeanette Driever, and

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 16 of 21

01/11/2018 01/11/2018
01/11/2018 01/18/2018 01/19/2018 01/22/2018
01/25/2018
01/25/2018 01/30/2018 02/01/2018 03/01/2018 03/07/2018
03/07/2018 03/09/2018

Brenda Rhames. Rhonda Flemings motion to lift the stay in this case is DENIED. Any additional relief sought by Rhonda Fleming in either of her motions for counsel to withdraw is DENIED without prejudice. (Ordered by Judge Reed C. O'Connor on 1/11/2018) (trt) (Entered: 01/11/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:152. Thu Jan 11 16:27:00 CST 2018 (crt) (Entered: 01/11/2018)
153 Order to Sever. For the foregoing reasons, it is ORDERED that Plaintiff Rhonda Fleming and all claims she wishes to pursue are SEVERED from the instant action. The Clerk of Court shall open a new civil rights action with Rhonda Fleming as Plaintiff and John Doe as Defendant. Fleming will be afforded an opportunity to file a new complaint in that action naming all of her Defendants and raising all of her claims. Her current in forma pauperis status will continue in the new case. The Clerk of Court shall terminate Rhonda Fleming as a party to this action. Any future pleadings, motions, or other documents submitted by Fleming shall be docketed in the new case. Clerk to open new case for severed matter. (7:18−cv−004−O) (Ordered by Judge Reed C. O'Connor on 1/11/2018) (trt) (Entered: 01/11/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:153. Thu Jan 11 16:40:35 CST 2018 (crt) (Entered: 01/11/2018)
154 AFFIDAVIT of Peter Langan. (Attachments: # 1 Exhibit(s), # 2 Self−Addressed stamped envelope) (skg) (Entered: 01/18/2018)
155 Unopposed MOTION to Extend Time 60−day Enlargement of the Abatement of This Case for Further Settlement Negotiations filed by United States of America (Attachments: # 1 Proposed Order) (Sealls, Kenneth) (Entered: 01/19/2018)
156 ORDER granting 155 Defendants' Unopposed Motion for 60−Day Enlargement of the Abatement of this Case for Further Settlement Negotiations. All further proceedings in this matter are hereby ABATED for an additional 60 days, through March 24, 2018, including rulings on all pending motions. The case will remain closed for administrative purposes during the additional 60−day period of abatement. (Ordered by Judge Reed C. O'Connor on 1/22/2018) (plp) (Entered: 01/22/2018)
157 ORDER: The caption of this case shall be modified to reflect that Plaintiff Rhonda Fleming and all claims stated by her have been severed from the case and are now pending in a separate civil action. Rhonda Fleming is hereby removed from the caption of this case. The case shall now be captioned: Charlsa Suzanne Little v. United States of America. (Ordered by Judge Reed C. O'Connor on 1/25/2018) (trt) (Entered: 01/26/2018)
158 MOTION to Dismiss Counsel filed by Charlsa Suzanne Little (trt) (Entered: 01/26/2018)
159 "MOTION to Dismiss Counsel and to remove Stay of Proceedings" filed by Jeanette Driever. (skg) (Entered: 01/30/2018)
160 MOTION to Intervene as Non−party, filed by Jeremy Pinson. (ran) (Entered: 02/05/2018)
161 MOTION to Withdraw as Attorney filed by Jeanette Driever (Attachments: # 1 Proposed Order) (McCaleb, Gary) (Entered: 03/01/2018)
162 ORDER granting 161 Motion to Withdraw as Attorney: It is therefore ORDERED that the motion to withdraw as counsel (ECF No. 161 ) is GRANTED. Counsel of record is discharged from any further representation of Jeanette Driever in this case. Counsel continues to represent Plaintiffs Charlsa Suzanne Little and Brenda Rhames. (Ordered by Judge Reed C. O'Connor on 3/7/2018) (skg) (Entered: 03/07/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:162. Wed Mar 7 10:01:29 CST 2018 (crt) (Entered: 03/07/2018)
163 Unopposed MOTION to Withdraw as Attorney filed by Charlsa Suzanne Little (Attachments: # 1 Proposed Order) (McCaleb, Gary) (Entered: 03/09/2018)

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 17 of 21

03/14/2018 03/14/2018 03/14/2018 03/14/2018 03/19/2018 03/21/2018 03/23/2018 04/02/2018 04/09/2018 04/16/2018 04/19/2018
04/19/2018 04/27/2018
04/30/2018 05/01/2018 05/07/2018 05/11/2018

164 Motion to Request a Waiver of Service filed by Peter Langan. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 03/14/2018)
165 Motion to Apply the Movants Previous Motions to the New Case filed by Rhonda Fleming, 7:18−cv−004 by Peter Langan. (skg) (Entered: 03/14/2018)
166 Motion Regarding the Status of Plaintiff Rhonda Fleming filed by Peter Langan. (skg) (Entered: 03/14/2018)
167 Letter sent to the Honorable Gary H. Miller, Judge of the United States District Court Southern District of Texas filed by Peter Langan. (skg) (Entered: 03/14/2018)
168 Status filed by Rhonda Fleming. (skg) (Entered: 03/19/2018)
169 Notice of Substitution of Counsel by AUSA. (Nestler, Emily) (Entered: 03/21/2018)
170 MOTION to Extend Time 60−day Enlargement of the Abatement of This Case filed by United States of America (Attachments: # 1 Proposed Order) (Sealls, Kenneth) (Entered: 03/23/2018)
171 Correspondence to the Clerk filed by Rhonda Fleming. (plp) (Entered: 04/02/2018)
172 Motion for Notice to Potential Plaintiffs and/or Interested Parties filed by non−party filer Michelle Renee Marshall. (skg) (Entered: 04/10/2018)
173 Motion to Disqualify Alliance Defending Freedom as Counsel Based on Conflict of Interest filed by Rhonda Fleming. (skg) (Entered: 04/16/2018)
174 ORDER granting 170 Motion to Extend Time. Accordingly, all further proceedings in this matter are hereby ABATED for an additional 60 days, through May 23, 2018, including rulings on all pending motions. The case will remain closed for administrative purposes during the additional 60−day period of abatement. The deadline by which Defendants may answer or otherwise respond to the Third Amended Complaint is also postponed during the extended period of abatement. Should the case not be resolved by settlement, Plaintiffs shall promptly notify the Court and ask that the case be put back into active status. (Ordered by Judge Reed C. O'Connor on 4/19/2018) (trt) (Entered: 04/19/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:174. Thu Apr 19 14:25:38 CDT 2018 (crt) (Entered: 04/19/2018)
175 ORDER GRANTING MOTION TO DISMISS COUNSEL FOR CHARLSA SUZANNE LITTLE: In light of her statutory right to self−representation, Charlsa Little's motion to terminate her representation by counsel (ECF No. 158 ) is GRANTED. Counsel of record is discharged from any further representation of Charlsa Suzanne Little in this case. Counsel continues to represent Plaintiff Brenda Rhames. Charlsa Little's request to lift the stay in this case is DENIED. Any additional relief sought by Charlsa Little in the instant motion is DENIED without prejudice. The Clerk of Court shall terminate the Motion to Withdraw as Counsel for Plaintiff Charlsa Little (ECF No. 163 ) as moot. (Ordered by Judge Reed C. O'Connor on 4/27/2018) (skg) (Entered: 04/30/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:175. Mon Apr 30 08:21:51 CDT 2018 (crt) (Entered: 04/30/2018)
176 Mail returned as undeliverable. 174 Order on Motion to Extend Time received back from Jeanette Driever as "Attempted−Not Known." No address update from last filed document. The current document has not been re−mailed. (skg) (Entered: 05/01/2018)
177 Motion To Disqualify Alliance Defending Freedom As Counsel Based On Conflict Of Interest filed by Jeanette Driever. (skg) (Main Document 177 replaced on 5/8/2018) (skg). (Entered: 05/07/2018)
178 Mail returned as undeliverable. 175 Order on Motion for Miscellaneous Relief Order on Motion to Withdraw as Attorney received back from Jeanette Driever as "UNK". Address updated from last filed document, 177 . The current document has been re−mailed. (skg) (Entered: 05/11/2018)

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 18 of 21

05/21/2018 05/25/2018 05/25/2018 05/25/2018 05/31/2018
05/31/2018 06/04/2018 06/06/2018 06/07/2018 06/11/2018
06/11/2018 06/13/2018 06/25/2018 07/06/2018 07/11/2018

179 Public correspondence received from Rhonda Fleming filing for Jeanette Driever. (skg) (Entered: 05/21/2018)
180 NOTICE of Regarding Abatement Period and Settlement Negotiations filed by Brenda Rhames (McCaleb, Gary) (Entered: 05/25/2018)
181 Motion For Service Of The Defendant's filed by Jeanette Driever. (skg) (Entered: 05/25/2018)
182 Objection to any future proposed settlement filed by Peter Langan. (skg) (Entered: 05/29/2018)
183 ORDER SETTING STATUS CONFERENCE: Upon review of the record in this case, the Court has determined that a status conference with Counsel for the parties will assist in assuring that this case proceeds in an orderly manner. Accordingly, the Court sets a status conference for this case to begin at 10:00 a.m. on June 7, 2018. The status conference will convene in the United States District Judge's Second Floor Courtroom, 501 W. 10th Street, Fort Worth, Texas. The Clerk of Court shall reopen this case and return it to active status. (Ordered by Judge Reed C. O'Connor on 5/31/2018) (skg) (Entered: 05/31/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:183. Thu May 31 14:33:25 CDT 2018 (crt) (Entered: 05/31/2018)
184 Joint STATUS REPORT of Plaintiff Brenda Rhames and the Defendants setting forth a Joint Proposal for Future Proceedings of this Matter filed by Thomas R Kane, Steve Mora, Jefferson B Sessions, III, United States of America, Jody R. Upton. (Sealls, Kenneth) (Entered: 06/04/2018)
185 Public correspondence received from Peter Langan. (Attachments: # 1 Deputy Clerk's response) (skg) (Entered: 06/07/2018)
186 ELECTRONIC Minute Entry for proceedings held before Judge Reed C. O'Connor: Status Conference held on 6/7/2018. Attorney Appearances: Plaintiff − Gary McCaleb, James Pikl; Defense − Kenneth Sealls. (Court Reporter: Denver Roden) (No exhibits) Time in Court − :13. (chmb) (Entered: 06/11/2018)
187 ORDER REGARDING PROCEEDINGS: Plaintiff Brenda Rhames' has voluntarily WITHDRAWN her Motion for Preliminary Injunction (ECF No. 79 ) without prejudice to her right to seek a preliminary injunction in the future if necessary. Due to the change in circumstances in this case, Jeanette Driever and Charlsa Suzanne Little's Motion for Preliminary Injunction (ECF No. 79 ) is DISMISSED without prejudice to their right to seek a preliminary injunction in the future if necessary. In light of the revisions to the Transgender Offender Manual, and in light of the fact that Jeanette Driever and Charlsa Suzanne Little have dismissed Counsel and are now proceeding pro se, Jeanette Driever, Charlsa Suzanne Little, and Counsel for Brenda Rhames, shall each file an Amended Complaint by July 11, 2018.1 Defendants shall file Answers or otherwise respond to the Amended Complaints by September 10, 2018. See Order for further specifics. (Ordered by Judge Reed C. O'Connor on 6/11/2018) (skg) (Entered: 06/11/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:187. Mon Jun 11 14:54:08 CDT 2018 (crt) (Entered: 06/11/2018)
188 NOTICE TO THE COURT (Movant/Intervenor's Third Supplemental Motion) filed by Peter Langan. (Attachments: # 1 Exhibit(s)) (skg) (Not a Motion, terminated per chambers.) Modified on 6/15/2018 (trt). (Entered: 06/13/2018)
189 Mail returned as undeliverable. 187 Order received back from Jeremy Pinson as Refused, Unable to Forward. No address update from last filed document. The current document has not been re−mailed. (trt) (Entered: 06/25/2018)
190 MOTION to Extend Time to file Amended Complaint filed by Jeanette Driever. (skg) (Entered: 07/06/2018)
191 FOURTH AMENDED COMPLAINT VERIFIED against Jefferson B Sessions, III, United States of America, Jody R. Upton, Hugh J. Hurwitz, David R. Wilson filed by Brenda Rhames. Clerk to issue summons(es) for new federal defendant(s). Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 19 of 21

07/11/2018 07/12/2018 07/16/2018 07/16/2018 07/18/2018 07/18/2018 07/20/2018
07/20/2018 08/01/2018 08/02/2018 08/02/2018
08/03/2018 08/10/2018 08/13/2018 08/13/2018 08/14/2018
08/15/2018 09/10/2018

must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Pikl, James) (Additional attachment(s) added on 7/12/2018: # 1 Exhibit(s)) (skg). (Entered: 07/11/2018)
192 NOTICE of Non−Opposition re: 190 MOTION to Extend Time filed by Brenda Rhames (McCaleb, Gary) (Entered: 07/11/2018)
193 RESPONSE filed by United States of America re: 190 MOTION to Extend Time (Sealls, Kenneth) (Entered: 07/12/2018)
194 Movant/Intervenor's Response to Court's Order of 6/11/2018 ( 187 ) filed by Peter Langan. (skg) (Entered: 07/16/2018)
195 Request for Copy of Docket Sheet filed by Peter Langan. (Attachments: # 1 Deputy Clerk's response) (skg) (Entered: 07/16/2018)
196 Request for Clerk to issue Summons − David Wilson filed by Brenda Rhames. (Pikl, James) (Entered: 07/18/2018)
197 Summons issued as to David R. Wilson. (skg) (Entered: 07/18/2018)
198 ORDER: Jeanette Driever's motion for an extension of time in which to file an amended complaint (ECF No. 190 ) is GRANTED. Driever shall file her amended complaint by August 10, 2018. Defendants shall file their answer to Driever's amended complaint by September 10, 2018. (Ordered by Judge Reed C. O'Connor on 7/20/2018) (skg) (Entered: 07/20/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:198. Fri Jul 20 10:31:28 CDT 2018 (crt) (Entered: 07/20/2018)
199 RESPONSE filed by United States of America re: 194 Response/Objection (Sealls, Kenneth) (Entered: 08/01/2018)
200 RESPONSE filed by Brenda Rhames re: 194 Response/Objection (McCaleb, Gary) (Entered: 08/02/2018)
201 ORDER: For the foregoing reasons, Charlsa Suzanne Little is DISMISSED as a party to this case without prejudice pursuant to Rule 41(b), Federal Rules of Civil Procedure, for want of prosecution. (Ordered by Judge Reed C. O'Connor on 8/2/2018) (skg) (Entered: 08/03/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:201. Fri Aug 3 07:41:02 CDT 2018 (crt) (Entered: 08/03/2018)
202 MOTION for Extension of Time to File Amended Complaint filed by Jeanette Driever (trt) (Entered: 08/10/2018)
203 RESPONSE filed by United States of America re: 202 MOTION for Extension of Time to File Amended Complaint (Sealls, Kenneth) (Entered: 08/13/2018)
204 "Intervenor's Motion Responding to Plaintiff's and Defendant's Opposition to Movant Intervenors Motion to Intervene" re: 199 Response/Objection, 200 Response/Objection. (skg) (Entered: 08/13/2018)
205 ORDER granting 202 Jeanette Driever's second motion for an extension of time in which to file an amended complaint. Driever shall file her amended complaint by September 10, 2018. Defendants shall file their answer to Driever's amended complaint by October 10, 2018. Failure to file an amended complaint may result in the dismissal of Jeanette Driever's claims without further notice. (Ordered by Judge Reed C. O'Connor on 8/14/2018) (plp) (Entered: 08/15/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:205. Wed Aug 15 10:19:41 CDT 2018 (crt) (Entered: 08/15/2018)
206 MOTION to Dismiss for Lack of Jurisdiction filed by United States of America with Brief/Memorandum in Support. (Sealls, Kenneth) (Entered: 09/10/2018)

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09/10/2018 09/10/2018 09/21/2018 09/24/2018
09/24/2018 10/15/2018 10/15/2018 10/29/2018 12/03/2018
12/03/2018 12/18/2018 01/08/2019 01/09/2019 01/16/2019
01/18/2019 01/28/2019 01/29/2019
01/30/2019 01/31/2019

207 Brief/Memorandum in Support filed by United States of America re 191 Amended Complaint,,, of Brenda Rhames (Attachments: # 1 Proposed Order, # 2 Exhibit(s)) (Sealls, Kenneth) (Entered: 09/10/2018)
208 Correspondence to the Court filed by Jeanette Driever. (skg) (Entered: 09/11/2018)
209 MOTION for Extension of Time to File Response/Reply to 206 MOTION to Dismiss for Lack of Jurisdiction filed by Brenda Rhames (Attachments: # 1 Proposed Order) (McCaleb, Gary) (Entered: 09/21/2018)
210 ORDER granting 209 Plaintiff Brenda Rhames' Unopposed Motion for Extension of Time to Respond to Defendants' Motion to Dismiss, or, in the Alternative, for Summary Judgment Brenda Rhames shall file her response by October 15, 2018. (Ordered by Judge Reed C. O'Connor on 9/24/2018) (skg) (Entered: 09/24/2018)
***Clerk's Notice of delivery: (see NEF for details) Docket No:210. Mon Sep 24 13:48:11 CDT 2018 (crt) (Entered: 09/24/2018)
211 RESPONSE filed by Brenda Rhames re: 206 MOTION to Dismiss for Lack of Jurisdiction (McCaleb, Gary) (Entered: 10/15/2018)
212 Brief/Memorandum in Support filed by Brenda Rhames re 211 Response/Objection to Defendants' Motion to Dismiss (McCaleb, Gary) (Entered: 10/15/2018)
213 REPLY filed by United States of America re: 206 MOTION to Dismiss for Lack of Jurisdiction (Sealls, Kenneth) (Entered: 10/29/2018)
214 ***DISREGARD: DOCUMENT LINKED TO WRONG PARTY. SEE DOC 215 ***NOTICE of Attorney Appearance by Warren V Norred on behalf of Brenda Rhames. (Filer confirms contact info in ECF is current.) (Norred, Warren) Modified on 12/4/2018 (skg). (Entered: 12/03/2018)
215 NOTICE of Attorney Appearance by Warren V Norred on behalf of Theresa Martinez, Leslie Garrison. (Filer confirms contact info in ECF is current.) (Norred, Warren) (Entered: 12/03/2018)
216 NOTICE of Case Development and Resultant Suggestion of Mootness filed by United States of America (Attachments: # 1 Exhibit(s)) (Sealls, Kenneth) (Entered: 12/18/2018)
217 MOTION to Intervene filed by Leslie Garrison, Theresa Martinez with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Norred, Warren) (Entered: 01/08/2019)
218 MOTION to Stay All Proceedings in Light of Lapse of Appropriations filed by United States of America (Attachments: # 1 Proposed Order) (Sealls, Kenneth) (Entered: 01/09/2019)
219 ORDER DISMISSING PLAINTIFF JEANETTE DRIEVER: For the foregoing reasons, Jeanette Driever is DISMISSED as a party to this case without prejudice pursuant to Rule 41(b), Federal Rules of Civil Procedure, for want of prosecution. (Ordered by Judge Reed C. O'Connor on 1/16/2019) (skg) (Entered: 01/16/2019)
220 ORDER GRANTING 218 GOVERNMENT'S MOTION FOR STAYOF ALL PROCEEDINGS IN LIGHT OF LAPSE OF APPROPRIATIONS. (Ordered by Judge Reed C. O'Connor on 1/18/2019) (skg) (Entered: 01/18/2019)
221 NOTICE of Restoration of Appropriations re: 220 Order on Motion to Stay filed by United States of America (Sealls, Kenneth) (Entered: 01/28/2019)
222 ORDER LIFTING STAY OF PROCEEDINGS: The parties shall files their responses, if any, to Theresa Martinez and Leslie Garrison's Verified Motion to Intervene (ECF No. 217 ) by March 15, 2019. (Ordered by Judge Reed C. O'Connor on 1/29/2019) (skg) (Entered: 01/30/2019)
223 OBJECTION re: 217 MOTION to Intervene filed by Peter Langan. (skg) (Entered: 01/30/2019)
224 NOTICE of Non−Opposition re: 217 MOTION to Intervene , 206 MOTION to Dismiss for Lack of Jurisdiction filed by Jeanette Driever, Rhonda Fleming, Charlsa

Case: 7:17-cv-9 As of: 02/04/2020 02:25 PM CST 21 of 21

02/04/2019 02/04/2019 02/25/2019 03/08/2019 03/14/2019 03/21/2019 03/21/2019 03/21/2019 04/04/2019 04/08/2019
04/12/2019 04/12/2019 04/12/2019
04/12/2019

Suzanne Little, Brenda Rhames (Pikl, James) (Entered: 01/31/2019)
225 AMENDED COMPLAINT WITH JURY DEMAND filed by Jeanette Driever. (skg) (Entered: 02/04/2019)
226 MOTION for Reconsideration re 219 Order Dismissing Jeanette Driever, filed by Jeanette Driever. (skg) (Entered: 02/04/2019)
227 RESPONSE filed by United States of America re: 226 MOTION for Reconsideration re 219 Order,, Add and Terminate Parties, (Sealls, Kenneth) (Entered: 02/25/2019)
228 Sur−reply filed by Jeanette Driever re: 226 MOTION for Reconsideration re 219 . (skg) (Entered: 03/08/2019)
229 RESPONSE AND OBJECTION filed by United States of America re: 217 MOTION to Intervene (Sealls, Kenneth) (Entered: 03/14/2019)
230 MOTION to Certify Class filed by Leslie Garrison, Theresa Martinez (Norred, Warren). (Entered: 03/21/2019)
231 Brief/Memorandum in Support filed by Leslie Garrison, Theresa Martinez re 230 MOTION to Certify Class (Norred, Warren) (Entered: 03/21/2019)
232 REPLY filed by Leslie Garrison, Theresa Martinez re: 217 MOTION to Intervene (Norred, Warren) (Entered: 03/21/2019)
233 MOTION to Stay re 230 MOTION to Certify Class filed by United States of America with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Sealls, Kenneth) (Entered: 04/04/2019)
234 ORDER: For the foregoing reasons, Defendants' Motion to Stay Briefing on Martinez and Garrison's Motion to Certify Class Action (ECF No. 233 ) is GRANTED. Briefing on the Motion to Certify Class Action is hereby STAYED until further order of the Court. (Ordered by Judge Reed C. O'Connor on 4/9/2019) (skg) (Entered: 04/09/2019)
235 ORDER denying 226 Motion for Reconsideration re 219 Order. (Ordered by Judge Reed C. O'Connor on 4/12/2019) (trt) (Entered: 04/12/2019)
236 ORDER denying 217 Motion to Intervene (Ordered by Judge Reed C. O'Connor on 4/12/2019) (trt) (Entered: 04/12/2019)
237 ORDER DISMISSING CASE. For the foregoing reasons, Defendants' Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment (ECF No. 206) is GRANTED and this action is DISMISSED with prejudice. Alternatively, this action is DISMISSED with prejudice as MOOT. (Ordered by Judge Reed C. O'Connor on 4/12/2019) (trt) (Entered: 04/12/2019)
238 JUDGMENT. It is ORDERED, ADJUDGED, and DECREED that Defendants' Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment (ECF No. 206) is GRANTED and this action is DISMISSED with prejudice. Alternatively, this action is DISMISSED with prejudice as MOOT. (Ordered by Judge Reed C. O'Connor on 4/12/2019) (trt) (Entered: 04/12/2019)

 
 Case 7:17-cv-00009-O Document 14 Filed 02/03/17 Page 1 of 5 PageID 42

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

STATE OF TEXAS, ET AL., Plaintiffs,
V. UNITED STATES OF AMERICA, ET AL.,
Defendants.

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CIVIL ACTION NO. 7:16-CV-00054-O

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PLAINTIFFS’ RESPONSE TO MOTION FOR PRELIMINARY INJUNCTION BY JEANETTE DRIEVER, ET AL.

In conjunction with moving to intervene, ECF No. 101, three female prisoners contend that the Court should enjoin Defendants from transferring male prisoners to Federal Medical Center Carswell (“Carswell”), a federal prison hospital for women. ECF No. 102. As the Court does not have jurisdiction to grant the requested relief, the motion should be denied.
I. FACTS Jeanette Driever, Charlsa Little, and Rhonda Fleming (collectively, “movants”), are inmates at Carswell, “the only full service hospital in the country for chronically ill women who have been convicted of federal crimes.” Betty Brink, Death by Indifference, FORT WORTH WEEKLY (Apr. 18, 2012), available at https:// www.fwweekly.com/2012/04/18/death-by-indifference/. The inmates allege that, recently, Carswell began accepting male prisoners who self-identify as women. ECF No. 101 at 2–4. Movants assert that the transfers are “[b]ased on the Obama Administration’s directives on sexual identity,” ECF No. 102 at 7. And, on December 30, 2016, they requested that the Court grant “the same relief” that was awarded to Plaintiffs, to

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wit: an injunction preventing the housing of both sexes in the same prison. Id. at 8. Before movants sought injunctive relief, however, Defendants filed a notice of appeal, ECF No. 88 (Oct. 20, 2016), and have proceeded to challenge the breadth of the Court’s injunction before the Fifth Circuit. See Defendants-Appellants’ Motion for Partial Stay Pending Appeal, Texas, et al., v. United States of America, et al., No. 1611534 (5th Cir. Nov. 23, 2016).
II. LEGAL STANDARD “A federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.” Henton v. Stephens, No. 3:14-cv-345, 2016 WL 6125454, at *1 (S.D. Tex. Oct. 20, 2016) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). The filing of a notice of appeal deprives the district court of jurisdiction to hear matters connected to the appeal. Procter &

Gamble Co. v. Amway Corp., 280 F.3d 519, 524 (5th Cir. 2002); Erly Indus. v. M/V CHADA NAREE, 226 F.3d 641 (5th Cir. 2000) (“A district court is divested of jurisdiction upon the filing of notice of appeal with respect to any matters involved in the appeal.”) (per curiam).
III. ARGUMENT A district court lacks “the power to alter the status of the case” in the manner that the movants request. Dayton Ind. Sch. Dist. v. U.S. Mineral Products Co., 906 F.2d 1059, 1063 (5th Cir. 1990). As the Court is well aware, Plaintiffs have sought to uphold longstanding principles protecting the privacy and dignity of both sexes in intimate areas at educational facilities and workplaces. See, e.g., ECF No. 90 at 11. These principles are evidenced in case law and further protected by statutory text. Id. at 15–27. And they are overruled by Defendants’ new rule, which turns “workplaces and educational settings across the country into laboratories for a massive social experiment” without basis in law or common sense. ECF No. 6 at 3. The Court properly concluded that the law does not prohibit schools and

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employers from maintaining sex-designated intimate areas. ECF No. 58; ECF No. 86; ECF No. 100. The scope of the Court’s injunction is now on appeal. See DefendantsAppellants’ Motion for Partial Stay Pending Appeal, supra, at 9–21. Yet movants ask the Court to revisit precisely that question. They request that the Court rule that the injunction applies to the housing of inmates in federal prisons, and enjoin federal officials from transferring prisoners to facilities designated for the opposite sex. “Given the current posture of this case,” movant’s requested relief, “would, if granted, alter the status of the case as it rests before the Fifth Circuit and constitute an action outside this Court’s jurisdiction.” Henton, No. 3:14-CV-345, 2016 WL 6125454, at *1. Accordingly, the motion should be denied.
Furthermore, even assuming that this Court had jurisdiction, the requested relief is unwarranted. As Plaintiffs explained in response to movants’ proposed intervention, “[t]he factual circumstances and the controlling legal principles raised in the intervention are distinct from those at issue in this case,” ECF No. 112 at 3–4. The injunction addresses intimate areas in educational environments and workplaces, not prisons. See, e.g., ECF No. 86 at 6. Indeed, the housing of federal inmates implicates different policy interests, cf. Jones v. N.C. Labor Union, Inc., 433 U.S. 119, 140 (1977), which were not briefed by Plaintiffs or relied upon by the Court in awarding injunctive relief. Moreover, the interests of Plaintiffs, as sovereigns, that this Court protected through its injunction are not implicated, as far as Plaintiffs can tell, by Movants (federal prisoners in a federal prison). Accordingly, movants are not within the scope of the Court’s injunction in this matter.
IV. CONCLUSION For the reasons stated herein, the putative intervenors’ motion for preliminary injunction should be denied. Putative intervenors’ interests can be raised in a separate proceeding, if they so desire.

Plaintiffs’ Response to Motion for Preliminary Injunction by Jeanette Driever, et al.

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Respectfully submitted this the 17th day of January, 2017,

LUTHER STRANGE Attorney General of Alabama
BRAD D. SCHIMEL Attorney General of Wisconsin
PATRICK MORRISEY Attorney General of West Virginia
HERBERT SLATERY, III Attorney General of Tennessee
MARK BRNOVICH Attorney General of Arizona
SCOTT PRUITT Attorney General of Oklahoma
JEFF LANDRY Attorney General of Louisiana
SEAN REYES Attorney General of Utah
CHRISTOPHER M. CARR Attorney General of Georgia

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY D. STARR Deputy First Assistant Attorney General
PRERAK SHAH Senior Counsel to the Attorney General
ANDREW D. LEONIE Associate Deputy Attorney General
AUSTIN R. NIMOCKS Associate Deputy Attorney General
/s/ Austin R. Nimocks AUSTIN R. NIMOCKS Texas Bar No. 24002695 austin.nimocks@oag.texas.gov
MICHAEL C. TOTH Senior Counsel
JOEL STONEDALE Counsel
Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel: 512-936-1414
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I, Austin R. Nimocks, hereby certify that on this the 17th day of January, 2017, a true and correct copy of the foregoing document was transmitted via using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Austin R. Nimocks Austin R. Nimocks

Plaintiffs’ Response to Motion for Preliminary Injunction by Jeanette Driever, et al.

Page 5

 
 Case 7:17-cv-00009-O Document 59 Filed 05/12/17 Page 1 of 40 PageID 292

In the United States District Court Northern District of Texas Wichita Falls Division

Rhonda Fleming, Charlsa Little, Jeanette Driever, and Brenda Rhames,
Plaintiffs,
v.
United States of America, Attorney General Jefferson B. Sessions, III, Acting Director of the Bureau of Prisons Dr. Thomas R. Kane, Jody R. Upton, and Steve Mora,
Defendants.

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§ CIVIL ACTION NO.

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7:17-cv-0009-0

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§ Jury Trial Demanded

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THIRD AMENDED VERIFIED COMPLAINT

Plaintiffs Rhonda Fleming, Brenda Rhames, Charlsa Little, and

Jeanette Driever bring this lawsuit against the United States of

America and named officials in their official and individual capacities.

THIRD AMENDED VERIFIED COMPLAINT

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I. Introduction This action anses out of recent U.S. Bureau of Prisons (BOP) rules and regulations that authorize male prison inmates to be housed in the same facilities that house female inmates. Such a blending of the sexes in the confined and restricted conditions attendant to prisons violates the privacy of female inmates and causes numerous dangers and threats to the physical and mental health and safety of our female Plaintiffs, and has in fact resulted in many such dangers coming to fruition as detailed below. The basis for the recent changes to rules and regulations is a politically-driven agenda to affirm that gender identity theory, rather than biological sex, is the normative basis to determine whether an inmate is male or female. Consequently, male inmates who profess to be transgender women are being placed in female-only prison facilities as a method of affirming their misperceived sex. Housing male inmates in facilities otherwise housing only female inmates creates a situation that incessantly violates the privacy of female inmates; endangers the physical and mental health of the female Plaintiffs and others,

THIRD AMENDED VERIFIED COMPLAINT

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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.
Plaintiffs seek a return to objective reason in prison regulations and the housing actions of the BOP, and recompense for past harms inflicted on them.
Throughout this Complaint, Plaintiffs refer to "sex" as the biological sex a person has at birth which correlates to objective indicia of sex such as chromosomes, gonads, and internal and external genitalia. Sex is objectively verifiable; binary, fixed, and defined by our human reproductive nature as either male or female.
Plaintiffs use the term "gender" as it is used by Defendants' policies and practices, to mean a self-perception of one's "gender" that is subjectively discerned and exists within a continuum of genders that range from male to female to something else. Gender is established

THIRD AMENDED VERIFIED COMPLAINT

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only by a person's self-report; there are no objective indicia that disclose one's "gender," and gender identity theory rejects male and female physiological reproductive systems as being definitional primary sex characteristics. Gender is subjectively perceived; fluid, and may be called male, female, or something else as the individual may desire.
Finally, "intersex'' refers to a disorder of sexual physiological development in which there is an abnormal chromosomal complement; the development of deformed or ambiguous genitalia; or some combination of the two. Intersex conditions may be objectively diagnosed and are distinct from "genders" proposed by gender-identity theory. Intersex conditions are irrelevant to this Complaint.
II. Parties and Service of Process 1. Plaintiff Rhonda Fleming is a 51-year-old, Mrican-American female, currently residing in the Federal Medical Center, Carswell Federal Prison, Fort Worth, Texas. 2. Plaintiff Charlsa Little is a 37-year-old Caucasian female, currently residing in the Federal Prison Camp, Bryan, Texas.

THIRD AMENDED VERIFIED COMPLAINT

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3. Plaintiff Jeanette Driever Is a 39-year-old, Shoshone-Bannock
Native American female, currently residing in the Federal
Medical Center, Carswell Federal Prison, Fort Worth, Texas.
4. Plaintiff Brenda Rhames is a 63-year-old, Caucasian female,
currently residing in the Federal Medical Center, Carswell
Federal Prison, Fort Worth, Texas.
5. Defendant United States of America Is the sovereign
responsible for creation and implementation of the policies being
challenged in this lawsuit, and for the incarceration of Plaintiffs
and the conditions in which Plaintiffs live. It may be served with
process via certified mail delivered to the U.S. Attorney for the
Northern District of Texas:
Hon. John R. Parker, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney's Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242
with copy delivered via certified mail to:
Hon. Jefferson B. Sessions, III Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW

THIRD AMENDED VERIFIED COMPLAINT

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Washington, D.C. 20530-0001
and copy delivered via certified mail to:
Dr. Thomas R. Kane Acting Director, Federal Bureau of Prisons 320 First Street, NW Washington, D.C. 20534
6. Defendant Hon. Jefferson B. Sessions, III is the Attorney
General of the United States and director of the U.S. Department
of Justice, and is being sued in his official and individual
capacities. He is the official who, among other tasks, supervises
the Department of Justice, of which one division is the Federal
Bureau of Prisons. He is the person responsible for the proper
enforcement of BOP regulations. He may be served with process
via certified mail delivered to the U.S. Attorney for the Northern
District of Texas:
Hon. John R. Parker, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney's Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242
with copy delivered via_ certified mail to:
Hon. Jefferson B. Sessions, III

THIRD AMENDED VERIFIED COMPLAINT

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Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
and copy delivered via certified mail to:
Dr. Thomas R. Kane Acting Director, Federal Bureau of Prisons 320 First Street, NW Washington, D.C. 20534
7. Defendant Dr. Thomas R. Kane is the Acting Director of the
U.S. Bureau of Prisons and is being sued in his official and
individual capacities. He is the official responsible, among other
tasks, for the creation, administration, and implementation of the
policies and procedures of the Bureau of Prisons that are being
challenged in this lawsuit. He may be served with process via
certified mail delivered to the U.S. Attorney for the Northern
District of Texas:
Hon. John R. Parker, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney's Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242
with copy delivered via certified mail to:

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Hon. Jefferson B. Sessions, III Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
and copy delivered via certified mail to:
Dr. Thomas R. Kane Acting Director, Federal Bureau of Prisons 320 First Street, NW Washington, D.C. 20534
8. Defendant Jody R. Upton is the warden of the Carswell Federal
Medical Center, and is being sued in her official and individual
capacities. She may be served with process via certified mail
delivered to the U.S. Attorney for the Northern District of Texas:
Hon. John R. Parker, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney's Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242
with copy delivered via certified mail to:
·Ms. Jody R. Upton Federal Medical Center, Carswell Naval Air Station J St Bldg 3000 Fort Worth, Texas 76127

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9. Defendant Steve Mora is the warden of the Bryan Federal Prison
Camp, and is being sued in his official and individual capacities.
He may be served with process via certified mail delivered to the
U.S. Attorney for the Northern District of Texas:
Hon. John R. Parker, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney's Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242
with copy delivered via certified mail to:
Mr. Steve Mora Federal Prison Camp, Bryan 1100 Ursuline Avenue Bryan,Texas77803
III. Jurisdiction and Venue
10. Jurisdiction is proper in this Court under Article III of the U.S.
Constitution and 28 U.S.C. §§1331 and 1346 because claims in the
case arise under the Constitution, laws, or treaties of the United
States, including the First, Fourth, Fifth, Eighth, and Fourteenth
Amendments, 42 U.S.C. §2000(bb), et seq. (the RFRA), and under

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Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 11. The Court has jurisdiction to issue the requested declaratory relief in accordance with 28 U.S.C. §§2201 and 2202, and Federal Rule of Civil Procedure 57. 12. The Court has jurisdiction to issue the requested injunctive relief in accordance with 5 U.S.C. §§702 and 703, 28 U.S.C. §1343(a)(4), and Federal Rule of Civil Procedure 65. 13. The Court has jurisdiction to award attorney's fees and costs in accordance with 28 U.S.C. §2412 and the Equal Access to Justice Act, and money damages under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 288 (1971). 14. Venue is proper in the Northern District of Texas in accordance with 28 U.S.C. §1391(e) because the Defendant wardens reside in this district, a substantial part of the events or omissions giving rise to the claims occurred in this district, and the policies being challenged are being implemented in the Northern District of Texas, among other locations.

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IV. Relevant Background Facts A. General Prison Conditions
15. Plaintiffs are incarcerated women in the custody of the Federal Bureau of Prisons, serving sentences in excess of 50 months. Each of them is a non-violent, minimum security inmate. Many other affected inmates at these facilities are serving sentences in excess of 20 years.
16. Both FMC Carswell (population approximately 1,164 inmates) and FPC Bryan (population approximately 879 inmates) are designated by the Bureau of Prisons (BOP) as "female only" prisons. This means they are supposed to house only female offenders in these facilities, and are not officially designated to house male inmates. Many other facilities under the direction of BOP are similarly designated as "female only" or "male only."
17. Carswell FMC currently houses more inmates than its designed capacity.
18. Prison facilities generally house inmates 24 hours a day during their incarceration. At Carswell and Bryan, inmates are bunked

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in 4-person cells and are obligated to accept cellmates as assigned by Defendants; there is effectively no privacy from one's cellmates. Inmates are under the direction, control, and supervision of the prison at all times while they eat, sleep, recreate, bathe, work, dress, and engage in other intimate activities such as using the restroom. Many of these activities are not conducted in physically-separated spaces, but are instead conducted in dormitory or "open" spaces visible to all other inmates and prison officials. This openness is mostly necessary in order to allow prison officials to keep a close eye on the activities of inmates to detect prison rule violations or harmful or harassing behavior towards other inmates or guards, thus encouraging inmates to follow the rules to avoid discipline as well as preserving the security of the facility. 19. For the entire history of this country, and in most countries world-wide, male prison inmates are housed in separate facilities from female inmates. There are many good reasons for this separation, including to protect the physical safety of the inmates

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and prison officials, bodily privacy, hygiene, and to prevent or avoid mental/sexual trauma, sexual assault, and consensual sexual relations that are nonetheless illicit under prison regulations. 20. To preserve their bodily privacy, inmates may not be generally or routinely subjected to observation by guards of the opposite sex when the inmates are disrobing, showering, or toileting. 21. Similarly, to protect their bodily privacy, inmates may not generally or routinely be subjected to pat searches by guards of the opposite sex. 22. These conditions are controlled by federal regulations and statutes, some of which are relevant to this case.
B. Recent Changes to Prison Regulations.
23. In 2012, under former President Barack Obama, government regulations were changed regarding the "gender identities" of inmates housed in federal prisons. See, e.g., 28 C.F.R. §115.42, which provides rules for the assignment of self-identified

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"transgender" inmates to facilities where other inmates are of a

different biological sex.

24. Specifically, the former administration began designating male

inmates who claimed to be "female" as if they were actually

females, and began housing them in female-only prison facilities.

For ease of reference, these male inmates will be identified as

"MTF Inmates."1

25. Under BOP regulations, MTF Inmates are discerned as being

"female" only through their self-report. Moreover, there 1s no

objective, physical, or evidence-based test that can verify that a

biological male inmate is actually a MTF Inmate. This is

evidenced by the regulations relating to professed transgender

inmates, who are classified as such by this self-reported criteria:

Gender identity - a person's sense of their own gender, which is communicated to others by their gender expression.

Acknowledging that some professed transgender inmates may suffer a psychological condition is not a pejorative, but is supported by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (sometimes referred to as the "DSM-5") published by the American Psychiatric Association. See Exhibit I (Gender dysphoria definition and diagnoses guidelines). Counsel notes that Plaintiffs do not concede that the DSM-5 establishes an authoritative scientific consensus on gender identity theory. As that document itself admits, gender identity theory is rife with confusion, controversy, and a proliferation of terms of varying meaning. Id. at 451.

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Gender expression

includes mannerisms,

clothing, hair style, and choice of activities.2

As is evident, a person's "sense of their own gender," and each of

the clinical indicia of "gender expression," are based solely on the

self-reported declarations and volitional behaviors of the person

himself, and are not objectively verifiable as is biological sex.

26. Additionally, this same Program Statement differentiates gender

identity from sexual orientation (or the sexual preferences of the

person):

Sexual orientation - the direction of one's sexual interest towards members of the same, opposite, or both genders (e.g., heterosexual, homosexual, bisexual, asexual). Sexual orientation and gender identity are not related.

27. This differentiation means that male inmates could be

heterosexual in their orientation while also claiming to be MTF

Inmates, and under current BOP regulations thereby gain access

to a captive prison population filled with female inmates who the

2

Source: U.S. Justice Department, Federal Bureau of Prisons, Program

Statement, OPI: RSD/FOB, Number: 5200.04, Date: January 18, 2017,

"Transgender Offender Manual." See Exhibit H.

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male inmate still has sexual desire for and who are ready victims for sexual assault and rape. That is, because of the self-reported nature of the MTF designation, it is possible that MTF Inmates are actually just regular male inmates who falsely "identify" as MTF Inmates for nefarious purposes including gaining access to a female-only prison population in order to engage in sexual assault, rape, or other sexual aggression or activity. 28. Even for those professed transgender inmates whose confusion as to their sex may be genuine, the fact that sexual orientation is distinct from gender identity means that an MTF inmate may retain male genitalia and be sexually attracted to females with consequent elevated risk for consensual sex or rape within the inmate population, or between inmates and staff. 29. Regardless of sexual orientation, male inmates often use their male sexual organs as threats or weapons against other inmates. Even without physical contact, Plaintiffs are being subjected to constant visual exposure of male sexual organs, which violates the privacy rights of any woman unwillingly exposed to the sight. For

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victims of sexual abuse - as many women in prison are - such exposure can be even more severely mentally distressing and harmful. 30. Upon information and belief, there are at least four MTF professed transgender inmates currently at Carswell: Linda Thompson; Peter Langan; Andre Saunders; and Darnell Nash. Saunders and Nash have prison disciplinary records for violent incidents. Thompson, Saunders, and Nash have each threatened to rape female inmates. Langan presents himself as having a propensity for violence, and has verbally threatened other inmates with death. 31. Most or all of the MTF Inmates currently at Carswell and at Bryan possess male sexual genitalia including testicles and penises. 32. For instance, Linda Thompson, is an approximately 6-4, 230 pound male bank robber currently housed among the female population of that facility. He still has his external male genitalia, is among the largest inmates at Carswell, and poses a physical

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threat to not only other inmates but also to prison staff, many of whom are smaller females. Thompson has also threatened various inmates, including one Plaintiff, with sexual assault and rape if he did not get his way on certain issues---for example, being assigned to a cell with a female inmate whom he disliked. 33. Plaintiffs have received death threats after one or more of the MTF inmates used PACER to access documents filed in this case, such threats to be effected should a court order issue directing that MTF inmates are to be relocated from Carswell FMC. 34. The constant risk and frequent reality of Plaintiffs' unconsented viewing of nude male inmates, and their being observed by male inmates when Plaintiffs are disrobing, partially nude, or fully nude, deprives Plaintiffs of their Constitutional rights to bodily privacy and freedom from mental and physical assault. The following incidents typify the injuries to Plaintiffs and other female inmates: 35. Ms. Driever was raped in a half-way house by a male staff member before coming to Carswell. This traumatic experience

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obviously caused her severe mental distress which continues to this day. For her to be at constant risk of, and actual exposure to viewing male sexual organs, which is forced on her by the living conditions Defendants have by policy established as described herein (and that she has no way to escape from) severely exacerbates her already-fragile mental condition (PTSD) and psychological anguish and stress. 36. On or about January 31, 2017, Inmate Thompson sought out and confronted Ms. Fleming in the law library area while armed with a mop handle or similar stick, and threatened her for filing this lawsuit to protect her privacy and safety. See Exhibit A, Declaration by Rhonda Fleming; Exhibit B, Declaration by Cheree Cockrell; and Exhibit C, Declaration by Levon Edmonds. 37. On or about March 14, 2017, during a fire drill, Inmate Thompson dropped his pants and urinated, exposing his genitals and buttocks to a crowd of approximately 400 female inmates, including Plaintiffs. See Exhibit B, Declaration by Cheree Cockrell and Exhibit D, Declaration by Kathleen Nelson.

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38. In May or June 2016, Ms. Fleming attempted to file an administrative complaint to seek relief from having male inmates assigned to the female facility; prison officials retaliated by placing her on kitchen duty which is understood by inmates to be a disciplinary duty. Additionally, a Correctional Supervisor threatened to "open an investigation" on Fleming if she persisted in complaining about men being present in the prison. See Exhibit E, Declaration by Robin Pareznanin and Exhibit F, Administrative Grievance re: Lt. Sosa.
39. In late 2016, Inmate Thompson was challenged by a guard regarding the way he was wearing his uniform. In protest, he stripped naked and walked about in the presence of over 100 women.
40. Inmate Thompson frequently exposes his genitalia to Plaintiffs and other female inmates by wearing his prison-issue skirt without underwear, and sitting spread-legged so as to expose himself to female inmates generally, or to a particular female inmate.

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41. Other inmates have experienced similar violations of bodily privacy and safety. For instance, inmate Joann Henry was housed for several months in 2016 in the SHU (Special Housing Unit) with MTF inmates, where she repeatedly was exposed to nude male bodies and male genitals. See Exhibit G, Declaration by Joann Henry.
42. Inmate Kathleen Nelson reported exposure to male bodies and witnessed the fire drill incident in which Inmate Thompson exposed himself while urinating. See Exhibit D, Declaration by Kathleen Nelson.
43. Inmate Cheree Cockrell states that female inmates feel less safe with men in the unit and are regularly disrespected by the MTF inmates. She also witnessed the fire drill incident, and has witnessed Thompson agitating with other inmates to condemn Fleming for filing her lawsuit. She further states that Fleming and Driever are both at risk of assault due to their legal work on this case. See Exhibit B, Declaration by Cheree Cockrell.

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44. Inmate Julie Hatcher has been exposed to male inmates, including being exposed to full frontal nudity of Inmate Thompson, and to Thompson's genitals, on a daily basis.
45. Sexual assault in prison is a very serious national problem. This is confirmed by the fact that the federal government has passed statutes to prevent such activities. See, e.g., Prison Rape Elimination Act of 2003, P.L. 108-79, 42 U.S.C. §15601, et seq. The government requires regular audits to monitor this ongoing problem.
46. Interestingly, none of the Obama-era regulations regarding professed "transgender" inmates mention, much less make any special provisions for, the protection, safety, and privacy of the biological female inmates with whom MTF Inmates are being housed. For instance, the cited Program Statement cites to 18 C.F.R. §115.42(c): In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates...the agency shall consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and

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whether the placement would present management or security problems. Nothing is said about the privacy, religious beliefs, health, or safety of other inmates who do not suffer from sexually-based psychological conditions.a 47. This in turn means present regulations elevate the "concerns" of MTF Inmates - inmates who are suffering from senous psychological disorders, including gender dysphoria, or maybe simply pretending to do so - over and above the concerns and protection of the entire population of female inmates, thus shifting the burden to protect the privacy and safety of the female inmates from the prison and onto the inmates themselves. 48. It is undoubtedly humane to offer supportive services to psychologically suffering inmates, but there is no justification or penological interest being served by the new and extraordinary

3 The only part of the cited Program Statement that might come close to showing concern for other inmates is in the factors to be considered when determining where to house MTF Inmates: "... likelihood of perpetrating abuse." However, this is vague as to who would be the perpetrator and who would be the victim of such abuse, and given its inclusion in a listing of harms that might be suffered by an MTF Inmate, is appears it is addressing only harm to, not caused by, the MTF Inmate.

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harms and risks being perpetrated on other inmates 1n that process via the recent Obama-era BOP regulations. 49. To be clear, Plaintiffs are not seeking to prevent medically-necessary treatment prescribed for any inmate. Instead, they are asking that their legal rights to privacy, safety, and the free exercise of their faith be protected against the inevitable consequences of official policies of intermingling the sexes in their home---particularly when that home is a federal prison. 50. These new regulations are found in numerous BOP policies and rules, including provisions of 28 C.F.R. §115 implementing the Prison Rape Elimination Act and the USDOJ BOP Transgender Offender Manual (attached as Exhibit H). 51. Non-federal prisons having similar inmate populations and inmate demographics-such as the State of Texas system-currently manage the needs of professed transgender prisoners without intermingling the sexes in the general prison population, just as the Federal system did prior to the adoption of gender-identity theory in its regulations.

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52. MTF Inmates, even though they self-report to be "females," still possess the innate physical characteristics of male human beings, (even if they have had surgical removal of some or all male sexual organs) including greater average height, weight, and muscle mass than females. These characteristics make MTF Inmates substantially larger and stronger than the average female, thus rendering them a physical as well as sexual danger to female inmates and prison officials.
C. The Conditions That Support This Lawsuit.
53. As would be expected from the federal prison regulations requiring this, Plaintiffs have been housed with MTF Inmates, sometimes in the same sleeping and intimate spaces.
54. MTF Inmates have been known to display their male genitalia to Plaintiffs, either aggressively and intentionally as a means of intimidation or harassment, or inadvertently in locker areas, showers, restrooms, and cells.
55. Whether such exposure is intentional or inadvertent, or motivated by animus or not, it is damaging to Plaintiffs and such exposure

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anses solely because of the Defendants' policy and practices challenged herein. 56. Plaintiffs being exposed, either intentionally or inadvertently, to these displays of male genitalia has caused them to suffer embarrassment, mental anguish, suspicion, fear of sexual assault, and other unnecessary and readily-preventable mental distress. 57. In addition, many MTF Inmates have verbally threatened Plaintiffs and others with physical and sexual assault, and in several instances such threats have turned into actual assaults. 58. In addition, federal prisons, including Carswell and Bryan, house other female inmates who self-report to be "male." Some of the professed female-to-male or "FTM" Inmates, while being females, have been treated by prison officials with testosterone and have engaged in strength training to further their process of "becoming males." They are also known to wear "strap on" devices to mimic male sexual anatomy. 59. Hormone and strength-training actions by FTM Inmates render them physically stronger than regular female inmates, and the

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hormones make them much more aggressive and increase their propensity for physical violence. 60. Being housed with professed "transgender" inmates of either variety deprives Plaintiffs of their Constitutional rights to pnvacy, bodily integrity, safety, freedom from physical assault and rape, and basic human dignity. 61. Further, Plaintiffs are evangelical Christians. Consistent with the tenets of their faith, Plaintiffs observe certain conventions of modesty in dress and demeanor, which include not being subjected to unnecessary or unconsented viewing of nude males and similarly avoid exposing their own nudity to men. These religious tenets and the free exercise thereof are being violated by the imposition of the subject regulations and the housing of professed "transgender" inmates in their prison facilities, and no reasonable accommodations have been offered to Plaintiffs to address these concerns.

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62. Christian teachings about modesty and privacy between the sexes
are among the most fundamental teachings, being evident in
Genesis, the very first book of the Bible.
63. On May 4, 2017, President Donald Trump issued an Executive
Order Promoting Free Speech and Religious Freedom to the
agencies under his authority-including the Bureau of Prisons-
to establish the following policy, which in relevant part states:
Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.
Presidential Order Promoting Free Speech and Religious Freedom,
https://www.whitehouse .gov/the-press-office/2017/05/04/presidenti
al-executive-order-promoting-free-speech-and-religious-liberty.
Defendants' policies and practices as applied to the Plaintiffs'

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religious tenets regarding personal privacy are inconsistent with the President's May 4, 2017 Executive Order Promoting Free Speech and Religious Liberty. 64. Finally, backed up by federal regulations, certain prison officials have embraced gender-identity ideology and have threatened, berated, and embarrassed Plaintiffs for their activities in attempting to bring these issues to the attention of the courts and seek their correction. These actions by prison officials violate Plaintiffs' Constitutional rights to bodily privacy, to be free from mental anguish, threatens their physical well-being, and singles them out for punishment by government officials for petitioning the Government for a redress of grievances and exercising their First Amendment rights. 65. Prison officials at Carswell and Bryan have offered only
unreasonable "accommodations" to Plaintiffs so they may avoid
the so-called "transgender" inmates. Those accommodations have only involved Plaintiffs volunteering to be placed in protective custody, which is a form of solitary confinement in a special

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housing unit (or SHU). Confinement in SHU results in loss of paid prison work assignments, contact with other inmate friends and associates, access to recreational facilities, and other deprivations. 66. This is backwards: it is not Plaintiffs who are intruding on the constitutional rights of other inmates in the prison, but rather it is the professed "transgender" inmates who necessarily violate other inmates' privacy and pose other threats to legal rights and even others' safety. It is unjust and unreasonable for Plaintiffs to be asked to "volunteer" for more-punitive confinement conditions in the SHU in order to avoid the harms and threats being inflicted on them by the irrational regulations and operations of the prison system. Plaintiffs plead for reason to be returned to the prison system in which they find themselves captive, and seek relief from the threats and mental anguish being foisted upon them by the regulations and practices of the BOP regarding professed "transgender" inmates. 67. Plaintiffs have suffered, and continue to suffer, severe mental anguish in the form of extreme embarrassment, fear for their

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physical safety, anxiety, sleeplessness, physical illness, and panic attacks, based on their being subjected to conditions where their bodily privacy is continually at risk and frequently violated and mental and physical safety is constantly endangered by being housed with professed "transgender" inmates, all under the Defendants' rules and regulations.
v.
Statement of Applicable Law 68. At all relevant times, each and all of the acts alleged herein were
attributed to the Defendants who acted under color of a statute, regulation, or other laws of the United States. 69. The right to privacy in one's bodily integrity is well established under federal law, and protected by the 4th, 8th, and 14th Amendments to the U.S. Constitution, and by various federal statutes and regulations. 70. The right to be free from threats of physical and mental abuse, or actual physical and mental abuse, while incarcerated In a government prison is well established under federal law.

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71. The right to be free to express and enjoy religious liberty without unreasonable governmental interference is well established In federal law, including the Religious Freedom Restoration Act.
72. The right to petition the government for a redress of grievances free from government retaliation is a well-established right, even for prison inmates.
73. The rules and regulations under review in this case infringe on and disparage the federally-protected rights of Plaintiffs as set forth herein.
74. Under federal law, if government officials violate the Constitutional rights of citizens, they are liable for monetary damages caused by those violations.
75. Defendants knew or should have known that the subject rules and regulations infringed on Plaintiffs' Constitutional and statutory rights, but enforced and implemented those rules and regulations anyway, and continue to do so, all to the harm of Plaintiffs.
76. The continued enforcement of the subject rules and regulations by Defendants will continue to infringe and violate Plaintiffs'

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Constitutional and statutory rights unless this Court enjoins such action. 77. Defendants are and have been deliberately indifferent to the constitutional and statutory violations visited upon the Plaintiffs by the Defendants' policies and practices. 78. Preserving bodily privacy-particularly In conducting personal hygiene and not suffering unconsented viewing of one's nude body-is one necessary measure of civilized life's necessities. 79. Defendants have no legitimate penological interest in forcing Plaintiffs to share with male inmates their cells, locker areas, showers, toilets, and other areas where bodily privacy is normatively protected.
VI. Causes of Action
All facts set forth above are incorporated into each of the causes of action below as if fully set forth therein.
A. · Violation of Constitutional Rights
80. Plaintiffs have the Constitutional right under the First Amendment, even while in prison, to petition the government for

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a redress of grievances without being subjected to retaliation, intimidation, and threats for doing so. 81. Plaintiffs have the Constitutional right under the Fourth, Eighth, and Fourteenth Amendments, even while in prison, to be free from physical and mental harm and threats of harm imposed on them by prison officials, directly or indirectly, whether that harm is caused by implementation of rules and regulations or otherwise which constitute cruel and unusual punishment. 82. Plaintiffs have a Constitutional right to privacy under the Fourth and Fourteenth Amendments, which includes bodily privacy. 83. Plaintiffs have a Constitutional right under the Fourth, Eighth, and Fourteenth Amendments to expect that prison officials will keep them safe from harm from other inmates by exercising reasonable actions designed to do so. 84. Plaintiffs have a Constitutional right under the Fifth Amendment to petition the government for redress of grievances without suffering retaliation by government officials for doing so, even while they are in prison.

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85. Plaintiffs have a constitutional right under the 8th amendment to not be subjected to cruel and unusual punishment.
86. The BOP regulations identified above serve to create an environment wherein these Constitutional rights are violated, or are at constant risk of violation, all to the detriment of Plaintiffs.
B. Violation of the Religious Freedom Restoration Act
87. Defendants' conduct in imposing rules and regulations, and in imposing conditions affecting Plaintiffs that violate their rights to practice the tenets of their faith, violate the First Amendment and the federal Religious Freedom Restoration Act.
88. Defendants intentional intermixing of the sexes within a female-specific facility violates the Plaintiffs' free exercise of their faith absent any legitimate penological interest in intermixing the sexes; lacks any rational basis for such intermixing; and is devoid of any compelling or even rational government interest.
89. Were a compelling government interest in intermingling the sexes in female-specific facilities established, then Defendants failed to use the least restrictive means to advance any such interest.

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90. These deprivations of rights by Defendants are caused by the rules and regulations imposed by the policymaker of the BOP.
C. Attorney's Fees 91. Plaintiffs are entitled to recover their reasonable and necessary
attorney's fees as the Court deems them fair and equitable, for all of which Plaintiffs hereby sue.
VI. Relief Requested Plaintiffs seek the following relief: 92. Declaratory Judgment that the regulations of the BOP as set out herein are violative of the U.S. Constitution, facially and as applied, because they infringe on Plaintiffs' rights to bodily pnvacy, freedom from cruel and unusual punishment, and religious freedom; and further declare that such regulations are null and void. 93. Preliminary injunctive relief to relocate Plaintiffs to a secure half-way house or similar minimum-security facility where their bodily privacy and personal safety may be assured during the pendency of this litigation, and such permanent injunctive relief

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as 1s necessary to assure their bodily privacy and safety throughout the balance of their respective terms of imprisonment. 94. Preliminary and permanent injunctive relief forbidding the BOP, or any of its officials, from enforcing, implementing, or relying upon for any purpose any rules or regulations that would cause or allow professed "transgender" inmates from being housed in any facility other than a facility that houses inmates who are of the same sex as the inmates as that sex is determined by their sex at birth; 95. Injunctive relief forbidding the BOP, or any of its officials, from retaliating or taking any punitive action whatsoever toward any Plaintiff based on the fact that this lawsuit has been filed seeking a redress of Plaintiffs' grievances; 96. Mandatory injunctive relief directing the BOP to promptly relocate all inmates in the federal prison system who are presently housed in facilities also housing inmates of another sex such that all inmates will be housed in facilities that house inmates corresponding to their binary sex at birth; or in the

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alternative, Plaintiffs ask the Court to order Defendants to craft a
remedy that protects the Constitutional rights and safety of
Plaintiffs without imposing punitive or restrictive conditions on
Plaintiffs, and then upon notice and hearing, adopt said
alternative remedy if and as the Court deems it appropriate
97. Money damages of $22,000.00 per Plaintiff for past mental
anguish;
98. Punitive damages at the highest rate allowed by law;
99. Nominal damages of $10.00 per Plaintiff per Defendant;
100. Reasonable and necessary attorney's fees in accordance with 28
U.S. C. §2412, the Equal Access to Justice Act, and in equity; and
101. Such other and further relief as is just.
RESPECTFULLY SUBMITTED:
Isf James A. Pikl, Lead Counsel iim. pikl@solidcounsel. com Texas Bar No. 16008850 SCHEEF & STONE, LLP 2600 Network Blvd., Suite 400 Frisco, Texas 75034 (214) 472-2100 Fax (214) 472-2150
Gary McCaleb*

THIRD AMENDED VERIFIED COMPLAINT

page 38

Case 7:17-cv-00009-O Document 59 Filed 05/12/17 Page 39 of 40 PageID 330
gmccale b@adflegal.org Arizona Bar No. 018848 J eana Hallock** ihallock@adflegal.org Arizona Bar No. 032678 Alliance Defending Freedom 15100 N. 90th Street Scottsdale, Arizona 85260 (480) 444-0020 Fax (480) 444-0025
ATTORNEYS FOR PLAINTIFFS * Pro hac vice application submitted **Pro hac vice application pending.fp
CERTIFICATE OF SERVICE
In accordance with Local Rule 5.1(d), the foregoing pleading was served in accordance with the CM/ECF filing system and FRCP 4.
Is/ James A. Pikl

THIRD AMENDED VERIFIED COMPLAINT

page 39

Case 7:17-cv-00009-O Document 59 Filed 05/12/17 Page 40 of 40 PageID 331
VERIFICATION BEFORE ME, the undersigned authority, personally appeared Rhonda Fleming, known to me to be the person whose name is subscribed below, and upon her oath, stated as follows: My name is Rhonda Fleming. I am one of the Plaintiffs in this lawsuit. I have personal knowledge of all facts stated in the pleading above, and all such facts are true and correct.
SUBSCRIBED this~ day of May, 2017, to which witness my hand and seal of office.
A. ARRIAGA My Notary ID # 130793845 Expires August 24, 2020

THIRD AMENDED VERIFIED COMPLAINT

page 40

 
 Case 7:17-cv-00009-O Document 79 Filed 06/26/17 Page 1 of 5 PageID 446

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

RHONDA FLEMING, CHARLSA LITTLE, JEANETTE DRIEVER, and BRENDA RHAMES,
Plaintiffs,
vs.
UNITED STATES OF AMERICA, et al.,
Defendants.

§ § Case No. 7:17-CV-00009-O § § § The Honorable Reed C. O’Connor § § § Oral Argument Requested § § § § §

MOTION FOR PRELIMINARY INJUNCTION Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs Rhonda Fleming, Brenda Rhames, Charlsa Little, and Jeanette Driever respectfully move this Court for a preliminary injunction to enjoin Defendants from enforcing the Defendants’ Transgender Offender Manual and related policies and regulations in such a manner as to place male inmates in federal prisons that normatively incarcerate only female inmates and further, at least until Defendants have removed all males currently incarcerated in female facilities at Carswell Federal Medical Center and Bryan Prison Camp, to relocate the Plaintiffs to a safe minimum security facility where males are not intermingled with the female inmate population and services are available at a level sufficient to address Plaintiffs’ medical and mental health needs. Plaintiffs also respectfully request that this Court waive the Rule 65 bond requirement for a preliminary injunction. Courts in the Fifth Circuit have discretion to determine an appropriate amount and may require “no security at all.” Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th

MOTION FOR PRELIMINARY INJUNCTION

1

Case 7:17-cv-00009-O Document 79 Filed 06/26/17 Page 2 of 5 PageID 447
Cir. 1996) (quoting Corrigan Dispatch Co. v. Casa Guzman, S. A., 569 F.2d 300, 303 (5th Cir. 1978)). The burden on the government if an injunction issues would only be the adjustment of extant policies and relocating a few inmates, which is simply part of the routine of prison administration. Hence, in respect to Defendants, “the risk of harm is remote, [and] the court has discretion to require only a nominal bond or no bond at all.” Texans for Free Enter. v. Texas Ethics Comm’n, No. A-12-CA-0845-LY, 2012 WL 12874899, at *7 (W.D. Tex. Dec. 6, 2012), aff'd, 732 F.3d 535 (5th Cir. 2013).
Waiving the bond requirement is also warranted because the Plaintiffs seek to vindicate constitutional and statutory rights, and so their lawsuit is in the public interest. See Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 803 n.8 (3d Cir. 1989) (collecting cases); City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. 1981) (noting that courts have recognized that public interest litigation is an exception to the Rule 65 bond requirement); Crowley v. Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen, & Packers, 679 F.2d 978, 1000 (1st Cir. 1982), rev’d on other grounds, 467 U.S. 526 (1984) (“no bond is required in suits to enforce important federal rights or public interests.”) (quotation marks omitted). The Plaintiffs raise important claims that serve the public interest by vindicating inmates’ constitutional and statutory rights as set forth in the Memorandum of Law supporting this motion. The federal Defendants will not be harmed by the issuance of an injunction, because the government cannot be harmed when it is prevented from enforcing unconstitutional laws. Joelner v. Vill. of Wash. Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004).

MOTION FOR PRELIMINARY INJUNCTION

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Finally, Plaintiffs Fleming, Little, and Driever are proceeding in forma pauperis1 (see filing fee orders granting in forma pauperis status, ECF Nos. 46-48) and it is clear “that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c).” Bass v. Richardson, 338 F. Supp. 478, 490 (S.D.N.Y. 1971). To do otherwise would be to disincentivize citizens vindicating their constitutional and statutory rights against government overreach and “would condition the exercise of plaintiffs’ constitutional rights upon their financial status.” Smith v. Bd. of Election Comm’rs for City of Chi., 591 F. Supp. 70, 72 (N.D. Ill. 1984). And just as in the Smith case, the “likelihood that this matter may be resolved through prompt appellate review of our ruling” is a mitigating factor that favors waiving the bond as Plaintiffs respectfully request. Id.
This motion is made on the grounds specified in this motion, in the Plaintiffs’ memorandum of law in support thereof, and the Appendix providing the factual materials in support of this motion.
Respectfully submitted this 26th day of June, 2017. By: s/ Gary S. McCaleb

1 Ms. Rhames did not move for in forma pauperis status as her filing fee was paid by counsel.

MOTION FOR PRELIMINARY INJUNCTION

3

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JAMES A. PIKL jim.pikl@solidcounsel.com TX Bar No. 16008850 SCHEEF & STONE, LLP 2600 Network Blvd., Suite 400 Frisco, Texas 75034 (214) 472-2100 (214) 472-2150 Fax

GARY S. MCCALEB gmccaleb@adflegal.org AZ Bar No. 018848* JEANA HALLOCK jhallock@adflegal.org AZ Bar No. 032678* ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, Arizona 85260 (480) 444-0020 (480) 444-0028 Fax
*Admitted Pro Hac Vice

Attorneys for Plaintiffs

MOTION FOR PRELIMINARY INJUNCTION

4

Case 7:17-cv-00009-O Document 79 Filed 06/26/17 Page 5 of 5 PageID 450
CERTIFICATE OF SERVICE In accordance with Local Rule 5.1(d), the foregoing pleading was served in accordance with the CM/ECF filing system and FRCP 4.
By: s/ Gary S. McCaleb GARY S. MCCALEB Attorney for Plaintiffs

MOTION FOR PRELIMINARY INJUNCTION

5

 
 Case 7:17-cv-00009-O Document 238 Filed 04/12/19 Page 1 of 1 PageID 2947

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

BRENDA RHAMES,

§

§

Plaintiff,

§

§

v.

§

§

UNITED STATES OF AMERICA, et al., §

§

Defendants.

§

Civil Action No. 7:17-cv-009-O

JUDGMENT

This action came on for consideration by the Court, and the issues having been duly

considered and decisions duly rendered,

It is ORDERED, ADJUDGED, and DECREED that Defendants’ Motion to Dismiss, or,

in the Alternative, Motion for Summary Judgment (ECF No. 206) is GRANTED and this action is

DISMISSED with prejudice.

Alternatively, this action is DISMISSED with prejudice as MOOT.

SO ORDERED this 12th day of April, 2019.

_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE

 
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 Case 7:17-cv-00009-O Document 191 Filed 07/11/18 Page 1 of 43 PageID 2534

In the United States District Court Northern District of Texas Wichita Falls Division

Charlsa Little, et al.,
Plaintiff,
v.
United States of America, Attorney General Jefferson B. Sessions III, Acting Director of the Bureau of Prisons Hugh J. Hurwitz, Jody R. Upton, and David R. Wilson,
Defendants.

§

§

§ CIVIL ACTION NO.

§

§

7:17-cv-00009-O

§

§

§ The Hon. Reed C. O’Connor

§

§

§

§

§

§

BRENDA RHAMES’ AMENDED VERIFIED COMPLAINT Plaintiff Brenda Rhames brings this lawsuit against the United States of America and named officials in their official capacities.
I. Introduction This action arises out of a federal regulation, 28 C.F.R. § 115.42 Use of Screening Information, and two U.S. Bureau of Prisons (BOP) program statements that authorize male prison inmates to be housed in

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the general population of federal women’s prisons.1 Such intermingling of the sexes in the confined and restricted conditions attendant to prisons violates Plaintiff Brenda Rhames’ right to bodily privacy and endangers her physical and mental health.
Defendants created the regulation and program statements under the authority of the Prison Rape Elimination Act (PREA), which purposes to make the prevention of rape a top priority in federal prisons. But rather than do the obvious—keep male inmates separate from female inmates—Defendants went far beyond the authority conveyed by Congress by adopting gender identity theory, rather than biological sex, to determine whether an inmate is male or female.
By treating gender as determinative of sex, the BOP houses male inmates who profess to have a feminine gender identity in female prison facilities as a method of affirming their self-perceived gender.
Housing male inmates in women’s prisons violates Ms. Rhames’ right to bodily privacy; increases the risk for rape; increases the potential for consensual sex which is nonetheless prohibited by prison regulations; increases the risk for other forms of physical assault;
1 “Prison” herein denotes BOP incarceration facilities, whether designated as a penitentiary, prison camp, medical center, or other term.
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violates Ms. Rhames’ right to freely exercise her religion; and causes mental and emotional distress that must be promptly mitigated by injunctive relief.
Moreover, the Defendants’ creation and enforcement of 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals violates the Administrative Procedures Act.
Gender identity theory sows confusion by conflating two very different concepts: sex and gender. To avoid that confusion, Plaintiff refers herein to “sex” as one’s biological sex that is established at conception and which correlates to objective indicia of sex such as chromosomes, gonads, and internal and external genitalia. Sex is objectively verifiable, binary, fixed, and defined by human reproductive nature as being either male or female.
Plaintiff uses the term “gender” in the sense that Defendants use it: a social, psychological, and behavioral construct used to classify inmates as male, female, both, or neither. Gender is discerned well after birth—sometimes many decades after birth. Although gender identity advocates will refer to “male” or “female” genders, Plaintiff uses the terms masculine or feminine gender to avoid conflating sex
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(being male or female) with an appearance of, or belief about, sex (i.e., masculinity or femininity). Gender as used in this suit is categorically established only by a person’s self-report: there are no objective indicia that disclose or confirm one’s reported gender.
Finally, “intersex” refers to a disorder of sexual physiological development in which there is an abnormal chromosomal complement; the development of deformed or ambiguous genitalia; or some combination of the two. Intersex conditions may be objectively diagnosed and are distinct from “genders” proposed by gender identity theory. Intersex conditions are irrelevant to this Complaint.
II. Parties and Service of Process 1. Plaintiff Brenda Rhames is a 64 year old Caucasian female, currently residing in the Federal Prison Camp, Alderson, West Virginia. Ms. Rhames is a Christian lady with 3 children and 5 grandchildren. 2. Plaintiff Jeanette Driever is a female former inmate who was released from Bureau of Prisons control on April 13, 2018. She is
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Case 7:17-cv-00009-O Document 191 Filed 07/11/18 Page 5 of 43 PageID 2538
believed to be proceeding pro se, and no claims are made on her
behalf in this Complaint.2 3. Plaintiff Charlsa Little is a female inmate currently residing in
the Federal Prison Camp, Bryan, Texas. She is believed to be
proceeding pro se, and no claims are made on her behalf in this
Complaint. 4. Defendant United States of America is the sovereign
responsible for creation and implementation of the policies being challenged in this lawsuit, and for the incarceration of the Plaintiff and the conditions in which Plaintiff lives. It may be served with process via certified mail delivered to the U.S. Attorney for the Northern District of Texas: Hon. Erin Nealy Cox, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney’s Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699
with copy delivered via certified mail to: Hon. Jefferson B. Sessions, III Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW
2 Ms. Driever has moved the Court for a 30 day extension to file an amended complaint. Mot. to Extend Time to File Compl., ECF No, 190.
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Washington, D.C. 20530-0001
and copy delivered via certified mail to:
Hugh J. Hurwitz Acting Director, Federal Bureau of Prisons 320 First Street, NW Washington, D.C. 20534
5. Defendant Hon. Jefferson B. Sessions, III is the Attorney
General of the United States and director of the U.S. Department
of Justice, and is being sued in his official capacity. Among other
duties, Attorney General Sessions supervises the Department of
Justice, of which one division is the Federal Bureau of Prisons. He
is the person responsible for the proper enforcement of BOP
regulations. He may be served with process via certified mail
delivered to the U.S. Attorney for the Northern District of Texas:
Hon. Erin Nealy Cox, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney’s Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699
with copy delivered via certified mail to:
Hon. Jefferson B. Sessions, III Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
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and copy delivered via certified mail to:
Hugh J. Hurwitz Acting Director, Federal Bureau of Prisons 320 First Street, NW Washington, D.C. 20534
6. Defendant Hugh J. Hurwitz is the Acting Director of the U.S.
Bureau of Prisons and is being sued in his official capacity.
Among other tasks, he is the official responsible for the creation,
administration, and implementation of the policies and
procedures of the Bureau of Prisons that are being challenged in
this lawsuit. He may be served with process via certified mail
delivered to the U.S. Attorney for the Northern District of Texas:
Hon. Erin Nealy Cox, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney’s Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699
with copy delivered via certified mail to:
Hon. Jefferson B. Sessions, III Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
and copy delivered via certified mail to:
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Hugh J. Hurwitz Acting Director, Federal Bureau of Prisons 320 First Street, NW Washington, D.C. 20534
7. Defendant Jody R. Upton is the warden of the Carswell Federal
Medical Center, and is being sued in his official capacity. Among
other tasks, he is an official responsible for the creation,
administration, and implementation of the policies and
procedures of the Bureau of Prisons that are being challenged in
this lawsuit. He may be served with process via certified mail
delivered to the U.S. Attorney for the Northern District of Texas:
Hon. Erin Nealy Cox, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney’s Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699
with copy delivered via certified mail to:
Hon. Jefferson B. Sessions, III Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
and copy delivered via certified mail to:
Mr. Jody R. Upton FMC Carswell Federal Medical Center
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P.O. Box 27066 Fort Worth, Texas 76127
8. Defendant David R. Wilson is the warden of the Alderson
Federal Prison Camp, and is being sued in his official capacity. He
is an official responsible, among other tasks, for the creation,
administration, and implementation of the policies and
procedures of the Bureau of Prisons that are being challenged in
this lawsuit. He may be served with process via certified mail
delivered to the U.S. Attorney for the Northern District of Texas:
Hon. Erin Nealy Cox, U.S. Attorney c/o Civil-Process Clerk U.S. Attorney’s Office, Northern District of Texas 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699
with copy delivered via certified mail to:
Hon. Jefferson B. Sessions, III Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
and copy delivered via certified mail to:
Mr. David R. Wilson, Warden FPC Alderson Federal Prison Camp Glen Ray Road, Box A Alderson, WV 24910
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III. Jurisdiction and Venue 9. Jurisdiction is proper in this Court under Article III of the U.S. Constitution and 28 U.S.C. §§ 1331 and 1346 because claims in the case arise under the Constitution, laws, or treaties of the United States, including the First, Fourth, Fifth, and Eighth Amendments to the United States Constitution; the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000(bb), et seq.; and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq. 10. The Court has jurisdiction to issue the requested declaratory relief in accordance with 28 U.S.C. §§ 2201 and 2202, and Federal Rule of Civil Procedure 57. 11. The Court has jurisdiction to issue the requested injunctive relief in accordance with 5 U.S.C. §§ 702 and 703, 28 U.S.C. § 1343(a)(4), and Federal Rule of Civil Procedure 65. 12. The Court has jurisdiction to award attorney’s fees and costs in accordance with 28 U.S.C. § 2412, 42 U.S.C. § 1988, and the Equal Access to Justice Act.
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13. Venue is proper in the Northern District of Texas in accordance with 28 U.S.C. § 1391(e) because a substantial part of the events or omissions giving rise to the claims occurred in this district, and the policies being challenged are being implemented in the Northern District of Texas, among other locations. IV. Relevant Background Facts
A. General Prison Conditions 14. Ms. Rhames is incarcerated and in custody of the Federal Bureau
of Prisons, serving a sentence of 51 months. Ms. Rhames is a non-violent, minimum security inmate. 15. Both FMC Carswell (population approximately 1,652 inmates) and FPC Alderson (population approximately 958 inmates) are designated by the Bureau of Prisons (BOP) as “female only” prisons. 16. This means those facilities should house only female offenders. They are not officially designated to house male inmates. 17. Prison facilities generally house inmates 24 hours a day during their incarceration. At FMC Carswell, where this case originated after male inmates were placed in the general population (and
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later, the SHU) of the women’s prison, inmates are bunked in 4-person cells and are obligated to accept cellmates as assigned by Defendants. There is effectively no privacy from one’s cellmates. 18. Similarly, at FPC Alderson, inmates are housed in partially walled 2 person cubicles, with about 60 cubicles per wing. Inmates are obligated to accept cellmates as assigned by Defendants. There is effectively no privacy from one’s cellmates within any given wing of cubicles. 19. Inmates are under the direction, control, and supervision of BOP staff at all times while they eat, sleep, recreate, bathe, work, dress, and engage in other intimate activities such as using the restroom. 20. Many of these activities are not conducted in physically separated spaces, but are instead conducted in dormitory or “open” spaces visible to all other inmates and prison officials. This openness is mostly necessary in order to allow prison officials to keep a close eye on the activities of inmates to detect prison rule violations or harmful or harassing behavior towards other inmates or guards,
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thus encouraging inmates to follow the rules to avoid discipline as well as preserving the security of the facility. 21. For the entire history of our nation, and in most nations world-wide, male prison inmates were housed in separate facilities from female inmates. There are many good reasons for this separation, including to protect the physical safety of the inmates and prison officials, bodily privacy, hygiene, and to prevent or avoid mental/sexual trauma, sexual assault, unintended pregnancies, and consensual sexual relations, which are typically prohibited by prison regulations. 22. To preserve their bodily privacy, female inmates may not be generally or routinely subjected to observation by male guards when the inmates are disrobing, showering, or toileting. 23. Similarly, to protect their bodily privacy, female inmates may not generally or routinely be subjected to pat searches by male guards. B. Recent Changes to Prison Regulations. 24. In 2012 under former President Barack Obama, Defendants promulgated implementing regulations for the Prison Rape
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Elimination Act, 34 U.S.C. § 30301 et seq., via notice-and-comment rulemaking to effect PREA’s purpose of eliminating rape in federal and federally-funded prison facilities. 25. Among other matters, these implementing regulations stated how self-identified transgender inmates would be assigned to BOP facilities. See 28 C.F.R. § 115.42. 26. Subsequently, the BOP issued Program Statement number 5200.04, Transgender Offender Manual, effective January 18, 2017, to ensure that the BOP “properly identifies, tracks, and provides services to the transgender population.” Pls.’ Third Am. Compl. Ex. H, at 1, ECF No. 59-8 (“2017 Transgender Offender Manual”). 27. The 2017 Transgender Offender Manual expressly authorized Defendants to house transgender inmates based on their professed, self-reported gender identity. 28. The direct consequence of housing professed transgender inmates based on gender identity rather than sex was that male inmates claiming a feminine gender were placed in formerly female-only
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prisons, including FMC Carswell. For ease of reference, these male inmates will be identified as “M/FG Inmates.” 29. The sole dispositive criterion for such M/FG Inmates to be treated as if they were females is their self-report. 30. There is no objectively discernible factor that establishes that a male inmate is actually a transgender person. 31. In contrast, sex means that one is either male or female as is determined by the union of male and female gametes at conception. 32. Sex is binary, objectively provable, and grounded in the fact that humans reproduce sexually. 33. The physical differences between males and females are enduring. 34. The sexes are not fungible. 35. The subjectivity of gender is evidenced by the regulations relating to professed transgender inmates, who are classified as such by this self-reported criteria:
Gender identity – a person’s sense of their own gender, which is communicated to others by their gender expression. Gender expression – includes mannerisms, clothing, hair style, and choice of activities.
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2017 Transgender Offender Manual at 2. 36. As is evident, a person’s “sense of their own gender,” and each of
the indicia of “gender expression,” are based solely on the self-reported declarations and volitional behaviors of the person himself, and are not objectively verifiable as is one’s sex. 37. Additionally, this 2017 Transgender Offender Manual differentiates gender identity from sexual orientation:
Sexual orientation – the direction of one’s sexual interest towards members of the same, opposite, or both genders (e.g., heterosexual, homosexual, bisexual, asexual). Sexual orientation and gender identity are not related. Id. 38. This differentiation means that male inmates could be heterosexual in their orientation and thus attracted to women, while also claiming to be an M/FG Inmate. 39. Thus, under Defendants’ policies, a male inmate who is sexually attracted to women may gain access to a captive female prison population. 40. Intermingling males and females within a federal women’s prison increases the risk of prison rape occurring.
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41. Regardless of sexual orientation, male inmates may use their male sexual organs to harass, threaten, or harm females.
42. For victims of sexual abuse—as many women in prison are—exposure to male sexual organs can be even more severely mentally distressing and harmful.
43. Upon information and belief, there are at least four M/FG professed transgender inmates who were placed into the female populations of federal women’s prisons: Linda Thompson; Peter Langan; Andre Saunders; and Darnell Nash.
44. Inmates Saunders and Nash have prison disciplinary records for violent incidents.
45. Inmate Langan presents himself as having a propensity for violence, and has verbally threatened other inmates with death.
46. Most or all of the M/FG Inmates currently housed in federal women’s prisons retain their male genitalia, including testicles and penises as well as their male physical stature.
47. For instance, Inmate Thompson, an approximately 6 foot, 4 inch tall, 230 pound male bank robber was housed along with Ms. Rhames in the female population at FMC Carswell.
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48. Thompson still has his male genitalia, is much larger than the typical female inmates, and poses a physical threat to not only other inmates but also to prison staff, many of whom are smaller females.
49. Thompson has threatened various inmates with sexual assault if he did not get his way on certain issues—for example, when he might be assigned to a cell with a female inmate whom he disliked.
50. The constant risk of Ms. Rhames’ unconsented viewing of male genitalia, and of her being observed by male inmates when she is disrobing, partially nude, or fully nude, deprives Ms. Rhames of her Constitutional rights to bodily privacy and freedom from mental and physical assault. The following incidents typify the risks to Ms. Rhames and exemplify the systemic impacts of the Defendants’ policies:
51. On or about March 14, 2017, during a fire drill, Inmate Thompson dropped his pants and urinated, exposing his genitals and buttocks to a crowd of approximately 400 female inmates, including Ms. Rhames who was standing behind Thompson
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during the incident. See also Pls.’ Third Am. Compl. Ex. B, ECF No. 59-2 (“Decl. by Cheree Cockrell”) and Pls.’ Third Am. Compl. Ex. D, ECF No. 59-4 (“Decl. by Kathleen Nelson”) (describing incident). 52. In early 2017, Inmate Thompson was challenged by a guard regarding the way he was wearing his uniform. In protest, he stripped naked and walked about in the presence of over 100 women. 53. While Ms. Rhames was on kitchen duty at FMC Carswell, Inmate Thompson would wear his prison issue skirt without any underwear, then sit where Ms. Rhames would see him while spreading his legs to expose himself to her. 54. In another instance, while Ms. Rhames was watching a stage production, Inmate Saunders, who was wearing short shorts had a “wardrobe malfunction” where his male genitalia were exposed to Ms. Rhames and the audience while he was dancing on stage. 55. Other inmates have experienced similar violations of bodily privacy and safety. For instance, Inmates Theresa Martinez and Leslie Garrison asserted that they were housed in the Special
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Housing Unit (“SHU”) administrative segregation cells with Inmate Thompson, during which time they had to shower, undress, and use the toilet in full view of Thompson. Verified Claims for which Intervention is Sought 2-3, ECF No. 141. 56. Inmate Kathleen Nelson reported exposure to male bodies and witnessed the fire drill incident in which Inmate Thompson exposed himself while urinating. Decl. by Kathleen Nelson 1, ECF No. 59-4. 57. Inmate Julie Hatcher has been exposed to male inmates, including being exposed to full frontal nudity of Inmate Thompson, and to Thompson’s genitals, on a daily basis. Decl. by Julie Hatcher 1, ECF No. 44. 58. Inmate Nakeisha Hall has been exposed to a male inmate in her shower and bathroom area, when he entered without warning the women of his presence. App. to Pls.’ Reply to Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. 3 (“Decl. by Nakeisha Hall”), ECF No. 105. 59. Inmate Megan Kemp was locked in a segregation cell with Inmate Thompson and suffered sexual harassment. Mot. for Notice to
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Potential Pls. and/or Interested Parties Ex. A (“Decl. of Megan Kemp”), ECF No. 172. 60. Sexual assault in prison is a very serious national problem, which is why then-Senator Jefferson Sessions sponsored and helped pass the Prison Rape Elimination Act of 2003, P.L. 108-79, codified as 34 U.S.C. § 30301, et seq. 61. Regulation 28 C.F.R. § 115.42 does not mention, much less make provisions for, the protection, safety, and privacy of the biological female inmates with whom M/FG Inmates are being housed. 62. The 2017 Transgender Offender Manual did not mention, much less make provisions for, the protection, safety, and privacy of the biological female inmates with whom M/FG Inmates are being housed. For instance, 2017 Transgender Offender Manual cites to 28 C.F.R. § 115.42(c):
In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates...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.
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Nothing was said about the privacy, religious beliefs, health, or safety of other inmates who do not suffer from sexually-based psychological conditions. 63. The 2017 Transgender Offender Manual elevated the concerns of M/FG Inmates, many of whom suffer multiple serious psychological disorders in addition to gender dysphoria, over and above the concerns and protection of the entire population of female inmates, thus shifting the burden to protect the privacy and safety of the female inmates from the prison and onto the inmates themselves. 64. There is no penological interest being served by placing male inmates within the general populations of federal women’s prisons. 65. On September 25, 2017, the Court ordered that this case be abated pending the resolution of ongoing settlement negotiations. Order, ECF No. 111. 66. On May 11, 2018 the Bureau of Prisons issued a revised Transgender Offender Manual, No. 5200.04 CN-1 (“2018 Transgender Offender Manual”), attached as Exhibit 1.
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67. On May 25, 2018, Ms. Rhames advised the Court through counsel that a satisfactory settlement had not been reached, and requested that the case be returned to active status. Plaintiff Brenda Rhames’ Notice Regarding Abatement Period and Settlement Negotiations 1, ECF No. 180.
68. On May 31, the Court returned the case to active status. Order Setting Status Conference, ECF No. 183.
69. Under the 2018 Transgender Offender Manual, Defendants retain the authority to house an M/FG Inmate in federal women’s prisons.
70. Nothing within the 2018 Transgender Offender Manual prohibits the Defendants from placing an M/FG Inmate within a federal women’s prison.
71. Nothing within the 2018 Transgender Offender Manual prohibits the Defendants from housing an M/FG Inmate within a SHU administrative segregation cell where one or more female inmates are housed.
72. Nothing within the 2018 Transgender Offender Manual prohibits the Defendants from housing an M/FG Inmate within a dormitory
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cubicle at FPC Alderson. 73. Nothing within the 2018 Transgender Offender Manual prohibits
the Defendants from housing an M/FG Inmate at any of BOP’s women’s prisons. 74. Contemporaneously with the publication of the 2018 Transgender Offender Manual, M/FG Inmate Thompson was transferred from FMC Carswell to another federal women’s prison, FCI Aliceville. 75. Non-federal prisons having similar inmate populations and inmate demographics—such as the State of Texas system—currently manage the needs of professed transgender prisoners without intermingling the sexes in the general prison population, just as the Federal system did prior to the adoption of gender identity theory in its regulations. 76. M/FG Inmates still possess the innate physical characteristics of male human beings (even if they have had surgical removal of some or all male sexual organs), including greater average height, weight, and muscle mass than females. 77. These characteristics make M/FG Inmates substantially larger and stronger than the average female, thus rendering them a
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physical as well as sexual danger to female inmates and prison officials. C. The Conditions That Support This Lawsuit. 78. As would be expected from the federal prison regulations requiring this, Ms. Rhames has been housed with M/FG Inmates. 79. M/FG Inmates have been known to display their male genitalia to Ms. Rhames, either aggressively and intentionally as a means of intimidation or harassment, or inadvertently in the course of prison life. 80. Whether such exposure is intentional or inadvertent, or motivated by animus or not, it is damaging to Ms. Rhames and such exposure arises solely because of the Defendants’ policies and practices challenged herein. 81. Ms. Rhames’ exposure, either intentionally or inadvertently, to these displays of male genitalia has caused her to suffer embarrassment, mental anguish, suspicion, fear of sexual assault, and other unnecessary and readily preventable mental distress. 82. Further, Ms. Rhames is an evangelical Christian. Consistent with the tenets of her faith, she observes certain conventions of
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modesty in dress and demeanor, which include not viewing nude
males unnecessarily and similarly avoiding exposure of her own
nudity to men. These religious tenets and the free exercise thereof
are being violated by the imposition of the subject regulations and
the housing of M/FG Inmates in federal women’s prisons.
83. Christian teachings about modesty and privacy between the sexes
are among the most fundamental of Christian teachings, being
evident in Genesis, the very first book of the Bible.
84. On May 4, 2017, President Donald Trump issued an Executive
Order Promoting Free Speech and Religious Liberty to the
agencies under his authority—including the Bureau of Prisons—
to establish the following policy, which in relevant part states:
Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans’ first freedom. Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.
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Presidential Executive Order Promoting Free Speech and Religious Liberty, https://www.whitehouse.gov/presidential-actions/presid ential-executive-order-promoting-free-speech-religious-liberty/. Defendants’ policies and practices as applied to Ms. Rhames’ religious tenets regarding personal privacy are inconsistent with the President’s May 4, 2017 Executive Order Promoting Free Speech and Religious Liberty. 85. Despite being on notice through this lawsuit that their policies were violating Ms. Rhames’ religious freedom, Defendants took no action pursuant to the Presidential Order to amend their problematic policies. 86. While at FMC Carswell, Ms. Rhames’ only potential alternative to avoid exposure to M/FG Inmates would be to volunteer for protective custody. This amounts to solitary confinement in the SHU, which results in loss of paid prison work assignments, contact with other inmate friends and associates, access to recreational facilities, and other deprivations. 87. This is backwards: it is not Ms. Rhames who is intruding on the constitutional rights of other inmates in the prison, but rather it
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is the M/FG Inmates who necessarily violate privacy and pose other threats to legal rights and even others’ safety. It is unjust and unreasonable for Ms. Rhames to be asked to “volunteer” for more-punitive confinement conditions in the SHU in order to avoid the harms and threats being inflicted on her by the Defendants’ policies. 88. Ms. Rhames has suffered, and continues to suffer, severe mental anguish in the form of extreme embarrassment, fear for her physical safety, anxiety, and sleeplessness based on her being subjected to conditions where her bodily privacy is continually at risk and frequently violated, and mental and physical safety is constantly endangered by being housed with professed transgender inmates, all under the Defendants’ policies.
V. Statement of Applicable Law 89. At all relevant times, each and all of the acts alleged herein were attributed to the Defendants who acted under color of a statute, regulation, or other laws of the United States. 90. Nothing within the text of the PREA authorizes Defendants to place males into federal women’s prisons.
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91. Nothing within the text of the PREA authorizes Defendants to place male inmates into federal women’s prisons so as to affirm a male inmate’s claimed feminine gender.
92. Nothing within the text of the PREA authorizes the Defendants to redefine “sex” in federal law or regulation as meaning or including “gender identity.”
93. Nothing within the text of the PREA authorizes the Defendants to redefine “sex” in federal law or regulation to be established by a person’s claimed gender.
94. The right to bodily privacy is protected by the Fourth, Fifth, and Eighth Amendments to the U.S. Constitution and various federal laws and regulations.
95. Even within prison, women retain constitutional bodily privacy rights sufficient to foreclose routine surveillance by males.
96. The right to be free from a sexually hostile environment and from sexual harassment while incarcerated in a government prison is well established under federal law.
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97. The right to be free to express and enjoy religious liberty without improper governmental interference is well established in federal law, including RFRA.
98. The rules and regulations under review in this case infringe on and disparage the federally protected rights of Ms. Rhames as set forth herein.
99. Defendants knew or should have known that the subject rules and regulations infringed on Ms. Rhames’ constitutional and statutory rights, but enforced and implemented those rules and regulations anyway, and continue to do so, all to the harm of Ms. Rhames.
100. The continued enforcement of the subject rules and regulations by Defendants will continue to infringe and violate Ms. Rhames’ constitutional and statutory rights unless this Court enjoins such action.
101. Defendants are and have been deliberately indifferent to the constitutional and statutory violations visited upon Ms. Rhames by the Defendants’ policies and practices.
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102. Preserving bodily privacy—particularly in conducting personal hygiene and not suffering unconsented viewing of one’s nude body—is one necessary measure of civilized life.
103. Defendants have no legitimate penological interest in forcing female inmates to share their cells, locker areas, showers, and toilets—areas where even inmates retain a degree of constitutional protection for their bodily privacy—with male inmates. VI. Causes of Action All facts set forth above are incorporated into each of the causes of
action below as if fully set forth therein. First Cause of Action: Violation of Bodily Privacy
104. While inmates have a lessened expectation of privacy while incarcerated, all inmates, including Ms. Rhames, retain a degree of constitutional protection for their bodily privacy, particularly in respect to exposure of their nude or partially unclothed bodies to the opposite sex within their cells, sleeping quarters, and in shower and restroom facilities.
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105. Ms. Rhames retains constitutional bodily privacy protection rights from unconsented exposure to male nudity and/or a sexually harassing environment.
106. By intentionally placing M/FG inmates within federal women’s prisons, including FMC Carswell while Ms. Rhames was incarcerated therein, Defendants have violated Ms. Rhames’ constitutional right to bodily privacy. Second Cause of Action: Cruel and Unusual Punishment
107. Ms. Rhames has the Constitutional right under the Fourth, Fifth, and Eighth Amendments, even while in prison, to be free from physical and mental harm and threats of harm imposed on her by prison officials, directly or indirectly, whether that harm is caused by implementation of rules and regulations or otherwise. Such physical and mental harm and threats of harm imposed by prison officials constitute cruel and unusual punishment under the Eighth Amendment.
108. Ms. Rhames was sentenced to serve her time in a federal women’s prison.
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109. Defendants’ creation and enforcement of 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals subjected her to cruel and unusual punishment by housing her in a facility where male inmates were intermingled in the female inmate general population with consequent violations of her bodily privacy and religious exercise.
110. Defendants’ creation and enforcement of 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals subjected Ms. Rhames to an ongoing risk of being housed with a male inmate within the general population of any BOP women’s prison to which she may be assigned.
111. Defendants therefore have subjected, and continue to subject, Ms. Rhames to cruel and unusual punishment prohibited by the Eight Amendment. Third Cause of Action: Violation of the RFRA
112. RFRA requires, among other things, that a federal statute or regulation, even if facially neutral and generally applicable, that imposes a substantial burden upon an individual’s religious
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exercise must be narrowly tailored to serve a compelling government interest by the least restrictive means. 113. There is no compelling government interest in housing male inmates in federal women’s prisons as a method of eliminating prison rape. 114. There is no compelling government interest in housing male inmates in federal women’s prisons so as to affirm a male inmate’s self-reported feminine gender. 115. There is no compelling government interest in housing male inmates in federal women’s prisons as a method of treatment or diagnosis for gender dysphoria. 116. Defendants did not use the least restrictive means to attain any government interest that they may posture as “compelling.” 117. Defendants have therefore violated Ms. Rhames’ free exercise of religion under the RFRA.
Fourth Cause of Action: Violation of the APA 118. Under the APA, a reviewing Court must “hold unlawful and set
aside agency action” in four instances that apply to this case:
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a. if the agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);
b. if the agency action is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B);
c. if the agency action is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C); and
d. if the agency action is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
119. The Defendants’ creation and enforcement of 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals violates Ms. Rhames’ statutory right to the free exercise of religion pursuant to RFRA.
120. The Defendants housed male inmates in women’s prisons, purportedly as a method of eliminating prison rape pursuant to their creation and enforcement of 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals.
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121. Therefore, the Defendants acted arbitrarily, capriciously, and abused their discretion in creating and enforcing 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals in violation of 5 U.S.C. § 706(2)(A);
122. The Defendants’ creation and enforcement of 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals violated Ms. Rhames’ constitutional right to bodily privacy.
123. The Defendants’ creation and enforcement of 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals imposed unconstitutionally cruel and unusual punishment upon Ms. Rhames.
124. Therefore, 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals are contrary to constitutional right and violate 5 U.S.C. § 706(2)(B).
125. Nothing within PREA authorized Defendants to redefine sex to mean, or at least include, gender identity.
126. Nothing within PREA authorized Defendants to house male inmates in women’s prisons for the purpose of establishing zero tolerance for rape.
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127. Nothing within PREA authorized Defendants to house male inmates in women’s prisons for the purpose of preventing rape.
128. Nothing within PREA authorized Defendants to house male inmates in women’s prisons for the purpose of affirming an inmate’s claimed gender.
129. PREA expressly requires Defendants to protect the Eighth Amendment rights of federal prisoners, a duty in which Defendants failed with respect to Ms. Rhames.
130. Therefore, 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals are in excess of statutory jurisdiction, authority, or limitations, or short of statutory right and violate 5 U.S.C. § 706(2)(C).
131. The 2017 and 2018 Transgender Offender Manuals are legislative rules that create new law, rights, or duties for inmates based upon their claimed gender.
132. The 2017 and 2018 Transgender Offender Manuals impose a new duty upon Ms. Rhames to treat an M/FG inmate in all respects as if the inmate were female.
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133. The 2017 and 2018 Transgender Offender Manuals create a new right for M/FG inmates to be housed in the general population of BOP women’s prisons.
134. The 2017 and 2018 Transgender Offender Manuals were not created via notice-and-comment rulemaking.
135. Therefore, the 2017 and 2018 Transgender Offender Manuals were without observance of procedure required by law and violate 5 U.S.C. § 706(2)(D). VI. Relief Requested Ms. Rhames does not seek to prevent medically necessary
treatment prescribed for any inmate. Instead, to protect her legal rights to privacy, safety, and the free exercise of her faith, she does seek the following relief: 136. Declaratory Judgment that 28 C.F.R. § 115.42 and the 2017 and
2018 Transgender Offender Manuals as applied to Ms. Rhames violate the U.S. Constitution because they infringe on her right to bodily privacy and subject her to cruel and unusual punishment;
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137. Declaratory Judgment that 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals as applied to Ms. Rhames violate her right to freely exercise her religion under RFRA;
138. Declaratory Judgment that 28 C.F.R. § 115.42 and the 2017 and 2018 Transgender Offender Manuals violate the APA as set forth in the Fourth Cause of Action;
139. Permanent Injunction enjoining the Defendants from housing any male inmates, including those self-reporting to be M/FG inmates, within the general population of a federal women’s prison or granting a male inmate access to any female-only privacy area such as restrooms, locker areas, or showers;
140. Preliminary Injunction pending the resolution of this litigation, enjoining Defendants from housing any male inmates, including those self-reporting to be M/FG Inmates, within the general population of any facility in which Ms. Rhames is or may be incarcerated; or granting a male inmate access to any female-only privacy area such as restrooms, locker areas, or showers to which Ms. Rhames would have access;
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141. Enjoin the Defendants to promptly relocate any male inmates,

including those self-reporting to be M/FG inmates, who are

currently housed in the general population of federal women’s

prisons to either a federal men’s prison or, in the alternative,

order Defendants to craft a remedy that protects the

constitutional rights and safety of Ms. Rhames without imposing

punitive or restrictive conditions on her and, upon notice and

hearing, adopt said alternative remedies if and as the Court

deems it appropriate.

142. Nominal damages of $100.00 to memorialize the legal injuries

suffered by Ms. Rhames;

143. Reasonable and necessary attorneys’ fees in accordance with 28

U.S.C. § 2412, 42 U.S.C. § 1988, the Equal Access to Justice Act,

and in equity; and

144. Such other and further relief as is just.

Respectfully submitted this 11th day of July, 2018, by:

/s/ James Pikl
JAMES PIKL jim.pikl@solidcounsel.com TX Bar No. 16008850 SCHEEF & STONE, LLP 2600 Network Blvd., Suite 400

CHRISTIANA HOLCOMB cholcomb@adflegal.org CA Bar No. 277427* ALLIANCE DEFENDING FREEDOM 440 First St. NW, Suite 600

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Frisco, Texas 75034 (214) 472-2100 Fax (214) 472-2150

Washington, DC 20001 (202) 393-8690 Fax (202) 347-3622

GARY S. MCCALEB gmccaleb@adflegal.org AZ Bar No. 018848* JEANA HALLOCK jhallock@adflegal.org AZ Bar no. 032678* ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, Arizona 85260 (480) 444-0020 Fax (480) 444-0028
*Admitted Pro Hac Vice
ATTORNEYS FOR PLAINTIFF BRENDA RHAMES

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CERTIFICATE OF SERVICE In accordance with Local Rule 5.1(d), the foregoing pleading was served in accordance with the CM/ECF filing system and FRCP 4.
/s/ James A. Pikl
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VERIFICATION My name is Brenda Rhames. I am the Plaintiff in this lawsuit. I have personal knowledge of the facts I stated in the pleading above, and all such facts are true and correct. I hereby verify under penalty of perjury that the foregoing answers are true and correct. (28 U.S.C. § 1746).
Brenda Rhames' Amended Complaint Verification Page 43

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EXHIBIT 1

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U.S. Department of Justice Federal Bureau of Prisons

CHANGE NOTICE

OPI:

RSD/WSP

NUMBER: 5200.04 CN-1

DATE:

May 11, 2018

Transgender Offender Manual

Approved: Mark S. Inch Director, Federal Bureau of Prisons
This Change Notice (CN) implements the following change to Program Statement 5200.04, Transgender Offender Manual, dated January 18, 2017. The purpose of the Change Notice is to ensure that the Transgender Executive Council (TEC) considers issues related to prison management and security in determining appropriate housing of transgender inmates, including risks posed to staff, other inmates, and members of the public. The clarifications to policy will establish appropriate expectations for the inmate population concerning designations.
The changes are marked with a highlight and inserted into the policy. Deleted text is struck through. In addition, the branch name has been changed from Female Offender Branch to Women and Special Populations Branch.
1. PURPOSE AND SCOPE
To ensure the Bureau of Prisons (Bureau) properly identifies, tracks, and provides services to the transgender population, consistent with maintaining security and good order in Federal prisons.
4. STAFF TRAINING
The Women and Special Populations Branch will be responsible for developing training materials and current information on the management of transgender inmates. Training will include information concerning best practices for maintaining the safety of transgender inmates, while also ensuring security and good order in Federal prisons and the safety of staff, inmates, and the public. This information will be made available to staff on the Women and Special Populations Branch Sallyport page.

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5. INITIAL DESIGNATIONS
The TEC will consider factors including, but not limited to, an inmate’s security level, criminal and disciplinary history, current gender expression, medical and mental health needs/information, vulnerability to sexual victimization, and likelihood of perpetrating abuse. The TEC may also consider facility-specific factors, including inmate populations, staffing patterns, and physical layouts (e.g., types of showers available). The TEC will recommend housing by gender identity when appropriate.
In deciding the facility assignment for a transgender or intersex inmate, the TEC should make the following assessments on a case-by-case basis:
■ The TEC will use biological sex as the initial determination for designation; ■ The TEC will consider the health and safety of the transgender inmate, 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.; ■ The TEC will consider factors specific to the transgender inmate, such as behavioral history, overall demeanor, and likely interactions with other inmates; and ■ The TEC 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.).
The designation to a facility of the inmate’s identified gender would be appropriate only in rare cases after consideration of all of the above factors and where there has been significant progress towards transition as demonstrated by medical and mental health history.
It will be noted in SENTRY designation notes that the TEC reviewed the inmate for appropriate institution designation.
7. HOUSING AND PROGRAMMING ASSIGNMENTS
In order for an inmate to be considered for transfer to another institution of the same sex as the inmate’s current facility location, including a facility housing individuals of the inmate’s identified gender, the Warden should consult with the TEC prior to submitting a designation request to the DSCC, but this is not required.
In addition, the Warden may make a recommendation to the TEC to transfer a transgender or intersex inmate based on an inmate’s identified gender.

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In considering such recommendations, the TEC will apply all criteria of Section 5, above, and make the following assessments concerning the recommendation:
■ The TEC will use biological sex as the initial determination for designation; ■ The TEC will consider the health and safety of the transgender inmate, 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, re-designation to another facility of the same sex, etc.; ■ The TEC will also consider factors specific to the transgender inmate, such as behavioral history, overall demeanor, program participation, and likely interactions with other inmates; and ■ The TEC 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.).
The designation to a facility of the inmate’s identified gender would be appropriate only in rare cases after consideration of all of the above factors and where there has been significant progress towards transition as demonstrated by medical and mental health history, as well as positive institution adjustments.
It will be noted in SENTRY designation notes that the TEC reviewed the inmate for appropriate institution designation.
9. HORMONE AND NECESSARY MEDICAL TREATMENT
Hormone or other necessary medical treatment may be provided after an individualized assessment of the requested inmate by institution medical staff. Medical staff should request consultation from Psychology Services regarding the mental health benefits of hormone or other necessary medical treatment. If appropriate for the inmate, hormone treatment will be provided in accordance with the Program Statement Patient Care and relevant clinical guidance. Questions concerning hormone treatment may be referred to the TCCT.

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U.S. Department of Justice Federal Bureau of Prisons

PROGRAM STATEMENT

OPI:

RSD/FOB

NUMBER: 5200.04

DATE:

January 18, 2017

Transgender Offender Manual

/s/ Approved: Thomas R. Kane Acting Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE
To ensure the Bureau of Prisons (Bureau) properly identifies, tracks, and provides services to the transgender population, consistent with maintaining security and good order in Federal prisons.
a. Program Objectives. Expected results of this program are:
■ This policy is meant to provide guidance to staff in dealing with the unique issues that arise when working with transgender inmates.
■ Institutions ensure transgender inmates can access programs and services that meet their needs as appropriate, and prepare them to return to the community.
■ Sufficient resources will be allocated to deliver appropriate services to transgender inmates. ■ Staff will be offered training, enabling them to work effectively with transgender inmates. ■ To support staff’s understanding of the increased risk of suicide, mental health issues and
victimization of transgender inmates.
b. Institution Supplement. None required. Should local facilities make any changes outside changes required in national policy or establish any additional local procedures to implement national policy, the local Union may invoke to negotiate procedures or appropriate arrangements.
2. DEFINITIONS
Gender – a construct used to classify a person as male, female, both, or neither. Gender encompasses aspects of social identity, psychological identity, and human behavior.

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Gender identity – a person’s sense of their own gender, which is communicated to others by their gender expression.
Gender expression – includes mannerisms, clothing, hair style, and choice of activities.
Gender nonconforming – a person whose appearance or manner does not conform to traditional societal gender expectations.
Transgender – the state of one’s gender identity not matching one’s biological sex. For the purposes of this policy, a transgender inmate is one who has met with a Bureau of Prisons psychologist and signed the form indicating consent to be identified within the agency as transgender. This step allows for accommodations to be considered.
Cisgender – the state of one’s gender identity matching one’s biological sex.
Sexual orientation – the direction of one’s sexual interest towards members of the same, opposite, or both genders (e.g., heterosexual, homosexual, bisexual, asexual). Sexual orientation and gender identity are not related.
Gender Dysphoria (GD) – a mental health diagnosis currently defined by DSM-5 as, “A strong and persistent cross-gender identification. It is manifested by a stated desire to be the opposite sex and persistent discomfort with his or her biologically assigned sex.” Not all transgender inmates will have a diagnosis of GD, and a diagnosis of GD is not required for an individual to be provided services.
Intersex – a person whose sexual or reproductive anatomy or chromosomal pattern does not seem to fit typical biological definitions of male or female. Not all intersex people identify as transgender; unless otherwise specified, this policy does not apply to intersex people who do not identify as transgender.
Transition – measures that change one’s gender expression or body to better reflect a person’s gender identity.
3. STAFF RESPONSIBILITIES
The following Bureau components are responsible for ensuring consistent establishment of the programs, services, and resource allocations necessary for transgender offenders.

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a. Central Office
(1) The Women and Special Populations Branch is the agency’s primary source and point of contact on classification, management, and intervention programs and practices for transgender inmates in Bureau custody. The Branch is responsible for the following functions as they relate to transgender inmates:
■ Engaging stakeholders, including serving as the primary point of contact on issues affecting transgender inmates with judges, political figures, and advocacy groups.
■ Ensuring the Bureau offers appropriate services to transgender inmates. ■ Preparing budgetary requests to deliver national and pilot programs or services affecting
transgender inmates. ■ Providing guidance and direction to Regional staff and institution leadership on transgender
issues. ■ Developing and implementing staff training on transgender issues. ■ Building a research-based foundation for the Bureau’s work with transgender inmates. ■ Presenting at internal and external conferences/events regarding the agency’s transgender
inmates’ practices. ■ Developing and monitoring monthly reports on the transgender population and institutional
programs. ■ Issuing an annual report on the state of transgender offenders in the Bureau that will be made
available to all staff and stakeholders. ■ Advising agency leadership on transgender inmate needs. ■ Conducting an annual survey of transgender inmates in the Bureau and sharing results with
internal and external stakeholders. ■ Providing national oversight of pilot programs and initiatives serving transgender offenders.
(2) The Health Services Division oversees all medical and psychiatric activity as it applies to transgender inmates. Guidance on the most current research-driven clinical medical and psychiatric care of transgender inmates will be provided by the Medical Director.
The Health Services Division also has oversight of a Transgender Clinical Care Team (TCCT). This team will be comprised of Physicians, Pharmacists, and Psychiatrists. Social Workers, Psychologists, and other clinical providers can also be included when appropriate. The TCCT will offer advice and guidance to health services staff on the medical treatment of transgender inmates and/or inmates with GD. Medical staff can raise issues to the TCCT through the Health Services Division.
(3) The Psychology Services Branch oversees all psychological mental health programs and services as they apply to transgender inmates, to include providing advice and guidance on

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identification and evaluation of transgender inmates, and making recommendations for treatment needs of transgender inmates and/or inmates with GD.
(4) Central Office Branches/Divisions of Correctional Services, Psychology Services, Education, Correctional Programs, Reentry Affairs, Residential Reentry Management, Health Services, Health Programs, Social Work, Office of General Counsel, and Trust Fund meet annually with the Women and Special Populations Branch to discuss transgender population needs and evaluate current gender-responsive services. The National Union and the Central Office LGBT Special Emphasis Program Manager will be invited to attend these meetings.
(5) The Transgender Executive Council (TEC) will consist of staff members from the Health Services Division, the Women and Special Populations Branch, Psychology Services, the Correctional Programs Division, the Designation and Sentence Computation Center (DSCC), and the Office of General Counsel. The TEC will meet a minimum of quarterly to offer advice and guidance on unique measures related to treatment and management needs of transgender inmates and/or inmates with GD, including designation issues. Institution staff and DSCC staff may raise issues on specific inmates to the TEC through the Women and Special Populations Branch. The National PREA Coordinator is consulted as needed.
b. Regional Offices
■ Provide oversight to institutions regarding services and other relevant trends managing transgender inmates.
■ Assign transgender responsibilities to the Regional Female Offender/Transgender Coordinator Collateral Duty Assignment. This individual meets quarterly with the Women and Special Populations Branch to discuss staffing and programming needs.
c. Institutions
The institution CEO will establish a multi-disciplinary approach to the management of transgender inmates; specifically: ■ Ensure transgender inmates have access to services. ■ Enter tracking information for self-identified transgender inmates by updating SENTRY and
other databases (e.g., PDS), as appropriate. ■ Provide appropriate reentry resources that may be specific to the population. ■ Advise the Local Union of transgender inmate management issues, as appropriate.

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4. STAFF TRAINING
Staff will be provided specialized training in working with unique issues when managing transgender inmates, with refresher training at annual training. Institutions housing known transgender inmates should provide additional training, if needed.
The Women and Special Populations Branch will be responsible for developing training materials and current information on the management of transgender inmates. Training will include information concerning best practices for maintaining the safety of transgender inmates, while also ensuring security and good order in Federal prisons and the safety of staff, inmates, and the public. This information will be made available to staff on the Women and Special Populations Branch Sallyport page.
In addition, the Prison Rape Elimination Act (PREA) regulations incorporated into the BOP Program Statement Sexually Abusive Behavior Prevention and Intervention Program have training requirements concerning pat searches and communication skills for transgender inmates. See 28 C.F.R. § 115.15(f) and 115.31 (a) (9). Please refer to this Program Statement regarding implementation of those training requirements.
Staff will be provided adequate time to complete these trainings during duty hours.
5. INITIAL DESIGNATIONS
The PREA regulations, incorporated into the Program Statement Sexually Abusive Behavior Prevention and Intervention Program, state in section 28 C.F.R. § 115.42 (c):
“In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates…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.”
Upon receipt of information from a Pre-Sentence Report, court order, U.S. Attorney’s Office, defense counsel, the offender, or other source that an individual entering BOP custody is transgender, designations staff will refer the matter to the TEC for advice and guidance on designation.
Institution staff managing pretrial or holdover offenders may also refer cases to the TEC for review. Any TEC recommendations concerning pretrial inmates will be coordinated with the appropriate United States Marshal’s Office.

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The TEC will consider factors including, but not limited to, an inmate’s security level, criminal and disciplinary history, current gender expression, medical and mental health needs/information, vulnerability to sexual victimization, and likelihood of perpetrating abuse. The TEC may also consider facility-specific factors, including inmate populations, staffing patterns, and physical layouts (e.g., types of showers available). The TEC will recommend housing by gender identity when appropriate.
In deciding the facility assignment for a transgender or intersex inmate, the TEC should make the following assessments on a case-by-case basis:
■ The TEC will use biological sex as the initial determination for designation; ■ The TEC will consider the health and safety of the transgender inmate, 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.; ■ The TEC will consider factors specific to the transgender inmate, such as behavioral history, overall demeanor, and likely interactions with other inmates; and ■ The TEC 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.).
The designation to a facility of the inmate’s identified gender would be appropriate only in rare cases after consideration of all of the above factors and where there has been significant progress towards transition as demonstrated by medical and mental health history.
It will be noted in SENTRY designation notes that the TEC reviewed the inmate for appropriate institution designation.
6. INTAKE SCREENING
The PREA regulations in 28 C.F.R. part 115, Subpart A, incorporated into the Program Statement Sexually Abusive Behavior Prevention and Intervention Program and the Program Statement Intake Screening, address intake screening. Screening of transgender inmates will be conducted in accordance with these policies and all other applicable policies and procedures.
7. HOUSING AND PROGRAMMING ASSIGNMENTS
During Initial classification and Program Reviews, Unit Management staff will twice-yearly review the inmate(s) current housing unit status and programming available for transgender inmates; this review will be documented by Unit Management.

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The reviews will consider on a case-by-case basis that the inmate placement does not jeopardize the inmate’s health and safety and does not present management or security concerns.
In making housing unit and programming assignments, a transgender or intersex inmate’s own views with respect to his/her own safety must be given serious consideration.
Transgender inmates shall be given the opportunity to shower separate from other inmates.
The agency shall not place transgender or intersex inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree , legal settlement, or legal judgment for the purpose of protecting such inmates.
In order for an inmate to be considered for transfer to another institution of the same sex as the inmate’s current facility location, including a facility housing individuals of the inmate’s identified gender, the Warden should consult with the TEC prior to submitting a designation request to the DSCC, but this is not required.
In addition, the Warden may make a recommendation to the TEC to transfer a transgender or intersex inmate based on an inmate’s identified gender.
In considering such recommendations, the TEC will apply all criteria of Section 5, above, and make the following assessments concerning the recommendation:
■ The TEC will use biological sex as the initial determination for designation; ■ The TEC will consider the health and safety of the transgender inmate, 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, re-designation to another facility of the same sex, etc.; ■ The TEC will also consider factors specific to the transgender inmate, such as behavioral history, overall demeanor, program participation, and likely interactions with other inmates; and ■ The TEC 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.).
The designation to a facility of the inmate’s identified gender would be appropriate only in rare cases after consideration of all of the above factors and where there has been significant progress

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towards transition as demonstrated by medical and mental health history, as well as positive institution adjustments.
It will be noted in SENTRY designation notes that the TEC reviewed the inmate for appropriate institution designation.
8. DOCUMENTATION AND SENTRY ASSIGNMENTS
a. Medical and Mental Health Information. Medical and mental health information for transgender inmates will be maintained in the current electronic recordkeeping system in accordance with the Program Statement Health Information Management. Medical and mental health information is considered confidential, and may only be released in accordance with appropriate laws, rules, and regulations.
b. Initial Screening. For initial designations, designations staff will assign Case Management Activity (CMA) SENTRY assignments if information in the PSR or other documentation indicates a likely transgender identity. The screening codes will be:
SCRN M2F – inmate should be screened for male to female. SCRN F2M – inmate should be screened for female to male.
Any inmate arriving at the designated institution with a screening code is to be referred to the Chief Psychologist or designee for review within 14 days. If the code was assigned in error, the screening code will be removed by the psychologist. If the inmate identifies as transgender, the psychologist will replace the screening code with an identifying code, as indicated below. Holdover facilities will be exempt from this initial screening requirement, as limited available records and brevity of stay do not allow for a comprehensive screening.
Any inmate who arrives without a screening code but identifies as transgender during intake, or at any time during the incarceration period, is referred to the Chief Psychologist or designee and interviewed within 14 days of the inmate notification. Inmates in pretrial status at Bureau facilities may also receive a SENTRY code.
c. Notification to Staff and Tracking. After consultation with Psychology Services, and if the inmate affirms his/her transgender identity, the screening code will be updated to a permanent assignment by a psychologist:
TRN M2F – inmate is male to female transgender (transgender female). TRN F2M – inmate is a female to male transgender (transgender male).

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The inmate must request to Psychology Services staff that the CMA assignment be entered, and the inmate consents that all staff will therefore be notified that the individual is transgender. The inmate’s request will be documented on BP-A1110, Case Management Activity (CMA) SENTRY Assignment Consent Form for Transgender Inmates (included as Attachment A to this policy). Psychology Services will maintain the form in the electronic mental health record and forward a copy of the form to the Unit Team. The Unit Team will maintain the form in the FOI Exempt section of the Central File.
Staff should consult the CMA assignment when interacting with the inmate; e.g., use of pronouns, searches, commissary items, etc., as indicated below.
If there are questions about the need to continue a CMA assignment, the Warden should contact the Women and Special Populations Branch. Should the CMA assignment change, staff members will not be disciplined for the continued provision of accommodations or use of pronouns.
9. HORMONE AND NECESSARY MEDICAL TREATMENT
Hormone or other necessary medical treatment may be provided after an individualized assessment of the requested inmate by institution medical staff. Medical staff should request consultation from Psychology Services regarding the mental health benefits of hormone or other necessary medical treatment. If appropriate for the inmate, hormone treatment will be provided in accordance with the Program Statement Patient Care and relevant clinical guidance. Questions concerning hormone treatment may be referred to the TCCT.
In the event this treatment changes the inmate’s appearance to the extent a new identification card is needed, the inmate will not be charged for the identification card.
10. INSTITUTION PSYCHOLOGY SERVICES
Bureau psychologists are available to provide assessment and treatment services for transgender inmates, if appropriate. Guidance on assessment procedures will be provided by the Psychology Services Branch.
If an inmate identifies as transgender, the psychologist will provide the inmate with information regarding the range of treatment options available in the Bureau and their implications. In addition, based upon the psychologist’s preliminary assessment and the inmate’s expressed interest, a referral to the Clinical Director and/or Chief Psychiatrist may be generated. While the initial interview must be scheduled within 14 days, an assessment may take longer in some instances.

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In addition to a referral to medical services, a transgender inmate may be offered individual psychotherapy. Individual psychotherapy goals might include: (1) helping the inmate to live more comfortably within a gender identity and deal effectively with non-gender issues; (2) emphasizing the need to set realistic life goals related to daily living, work, and relationships, including family of origin; (3) seeking to define and address issues that may have undermined a stable lifestyle, such as substance abuse and/or criminality; and (4) addressing any co-occurring mental health issues. Mood disorders, anxiety disorders, substance use disorders, and personality disorders, etc., may also be present; any effective treatment plan will fully address these symptoms.
If an institution has multiple transgender inmates, a support group facilitated by a mental health provider may also be a component of the treatment plan. Common concerns of transgender inmates, which may be addressed effectively in a group setting, include self-esteem issues and relationship issues.
Psychologists who provide mental health treatment for transgender inmates address all mental health needs, including suicide risk, if present.
Psychologists working with transgender inmates are encouraged to consult the Reentry Services Division in Central Office for additional resources.
11. PRONOUNS AND NAMES
Staff interacting with inmates who have a CMA assignment of transgender can use the authorized gender-neutral communication with inmates (e.g., by the legal last name or “Inmate” last name). Transgender inmates often prefer to be called by pronouns of their identified gender identity. Staff may choose to use these gender-specific pronouns or salutations per the inmate’s request, and will not be disciplined for doing so.
An official committed name change while in BOP custody must be done consistent with the Program Statement Correctional Systems Manual, Chapter 4. The name entered on the inmate’s Judgement and Commitment Order will remain the official committed name for all Bureau records (incident reports, progress reviews, sentence calculations, etc.). However, any additional names or aliases can be entered into SENTRY as appropriate.

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12. PAT SEARCHES
Pat searches of transgender inmates will be conducted in accordance with the Program Statement Searches of Housing Units, Inmates, and Inmate Work Areas. The policy language, included here as a reference, states:
“Transgender Inmates – For purposes of pat searching, inmates will be pat-searched in accordance with the gender of the institution, or housing assignment, in which they are assigned. Transgender inmates may request an exception. The exception must be pre-authorized by the Warden, after consultation with staff from Health Services, Psychology Services, Unit Management, and Correctional Services. Exceptions must be specifically described (e.g., “pat search only by female staff”), clearly communicated to relevant staff through a memorandum, and reflected in SENTRY (or other Bureau database; e.g., posted picture file). Inmates should be provided a personal identifier (e.g., notation on commissary card, etc.) that indicates their individual exception, to be carried at all times and presented to staff prior to pat searches.”
It is recommended the inmate request the exception by submitting an Inmate Request to Staff (BP-A0148) to the Warden. The Warden will consult with the departments listed above, and the memo approving or denying the request will be generated by the Warden’s Office.
Inmates who are granted this exception under policy may have it reversed by the Warden if found to have violated institution rules concerning contraband.
In exigent circumstances, any staff member may conduct a pat search of any inmate consistent with the Program Statement Searches of Housing Units, Inmates, and Inmate Work Areas.
13. VISUAL SEARCHES
For purposes of a visual search, inmates will be searched in accordance with the gender of the institution, or housing assignment, to which they are assigned. The visual search shall be made in a manner designed to ensure as much privacy to the inmate as practicable. Staff should consider the physical layout of the institution, and the characteristics of an inmate with a transgender CMA assignment, to adjust conditions of the visual search as needed for the inmate’s privacy.
Transgender inmates may also request an exception to be visually searched by a staff member of the inmate’s identified gender. The exception must be pre-authorized by the Warden, after consultation with staff from Health Services, Psychology Services, Unit Management, and Correctional Services. Exceptions must be specifically described (e.g., “visual search only by female staff”), clearly communicated to relevant staff through a memorandum, and reflected in SENTRY (or other Bureau database; e.g., posted picture file). Inmates should be provided a

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personal identifier (e.g., notation on commissary card, etc.) that indicates their individual exception, to be carried at all times and presented to staff prior to visual searches.
It is recommended the inmate request the exception by submitting an Inmate Request to Staff (BP-A0148) to the Warden. The Warden will consult with the departments listed above, and the memo approving or denying the request will be generated by the Warden’s Office.
Inmates who are granted this exception under policy may have it reversed by the Warden if found to have violated institution rules concerning contraband.
Transgender inmates placed at an institution or in a housing unit that does not correspond with their identified gender, and who are granted an exemption as indicated above, will be searched by: bargaining unit staff of the inmate’s identified gender who consent to participate in the search; management staff of the inmate’s identified gender who consent to participate in the search; or available Health Services clinical staff.
Transgender inmates placed at an institution or in a housing unit of their identified gender will be searched by bargaining unit staff of the inmate’s identified gender who consent to participate in the search; management staff of the inmate’s identified gender; or available medical staff.
Institutions should consider using available body scanning technology in lieu of visual searches of transgender inmates.
In exigent circumstances, any staff member may conduct a visual search of any inmate consistent with the Program Statement Searches of Housing Units, Inmates, and Inmate Work Areas.
14. CLOTHING AND COMMISSARY ITEMS
Consistent with safety and security concerns, inmates with the CMA assignment of transgender will have the opportunity to have undergarments of their identified gender even if they are not housed with inmates of the identified gender. Institutional laundry will have available institutional undergarments that fulfill the needs of transgender inmates. Undergarments will not have metal components.
Standardized lists of Commissary items for transgender inmates are available in accordance with the Program Statement Trust Fund/Deposit Manual.
Additional items based on an individualized assessment of the transgender inmate may be approved by the Warden. Additional items may be provided by the institution or purchased by the inmate, as appropriate.

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Inmates who purchase and/or are provided items under this section will be subject to disciplinary sanctions, including the removal of these items, if they are found to have violated institution rules relating to the possession of these items.

15. REENTRY NEEDS

In accordance with the Program Statement Release Preparation Program, institution staff should assist transgender inmates in addressing these issues prior to release or placement in a Residential Reentry Center/Home Confinement.

During initial classifications and Program Reviews, Unit Management will formulate a prerelease plan that will assist transgender inmates in obtaining appropriate identification, finding housing and employment, and providing community resources to reintegrate into the community.

The Reentry Affairs Coordinator may assist staff with identifying these resources. Institution and/or Regional Social Workers should be contacted concerning the continuity of medical care.

The Women and Special Populations Branch and/or Social Workers can be contacted to provide guidance and resources for reentry needs of transgender inmates.

16. ADMINISTRATIVE REMEDIES

Inmates may use the procedures of the Program Statement Administrative Remedy Program concerning any issues relating to this policy.
REFERENCES

Program Statements P1330.18 Administrative Remedy Program (1/6/14) P4500.11 Trust Fund/Deposit Fund Manual (4/9/15) P5100.08 Security Designation and Custody Classification Manual (9/12/06) P5290.15 Intake Screening (3/30/09) P5310.12 Psychology Services Manual (03/07/95) P5310.16 Treatment and Care of Inmates with Mental Illness (5/1/14) P5322.13 Inmate Classification and Program Review (5/16/14) P5324.08 Suicide Prevention (4/5/07) P5324.12 Sexually Abusive Behavior Prevention and Intervention Program (6/4/15) P5325.07 Release Preparation Program (12/31/07) P5521.06 Searches of Housing Units, Inmates, and Inmate Work Areas (6/4/15) P5800.15 Correctional Systems Manual (9/23/16)

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P6031.04 P6090.04

Patient Care (6/3/14) Health Information Management (3/2/15)

Federal Regulations 28 CFR part 115

Additional Resources For Clinicians Diagnostic and Statistical Manual of Mental Disorders (DSM), most current version. World Professional Association for Transgender Health (WPATH) standards.

BOP Forms BP-A0148 BP-A1110

Inmate Request to Staff Case Management Activity (CMA) SENTRY Assignment Consent Form for Transgender Inmates

ACA Standards (see Program Statement, Directives Management Manual, sections 2.5 and 10.3)

■ American Correctional Association Standards for Adult Correctional Institutions, 4th Edition: 4-4056M, 4-4084M, 4-4084.1M, 4-4133M, 4-4180M, 4-4194M, 4-4278M, 44281.1M, 4-4281.2M, 4-4281.3M, 4-4281.4M, 4-4281.5M, 4-4281.6M, 4-4281.7M, 44281.8M, 4-4362M, 4-4371M, 4-4406M.
■ American Correctional Association Performance Based Standards for Adult Local Detention Facilities, 4th Edition: 4-ALDF-2A-29, 4-ALDF-2A-32, 4-ALDF-2A-34, 4-ALDF-6B-03, 4-ALDF-2C-03, 4-ALDF-4C-22M, 4-ALDF-4C-30M, 4-ALDF-4D-22, 4-ALDF-4D-22-1, 4ALDF-4D-22-2, 4-ALDF-4D-22-3, 4-ALDF-4D-22-4, 4-ALDF-4D-22-5, 4-ALDF-4D-226M, 4-ALDF-4D-22-7, 4-ALDF-4D-22-8, 4-ALDF-7B-08, 4-ALDF-7B-10, 4-ALDF-7B-101.
■ American Correctional Association Standards for Administration of Correctional Agencies, 2nd Edition: None.
■ American Correctional Association Standards for Correctional Training Academies: None.

Records Retention Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) on Sallyport.

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Attachment A. Case Management Activity (CMA) SENTRY Assignment Consent Form for Transgender Inmates (BP-A1110)
I agree that Bureau of Prisons staff may enter a CMA assignment on SENTRY concerning my gender identity.
I understand that this CMA assignment will identify me as transgender to all staff members.
I understand that the purpose of the CMA assignment is to assist staff members in providing programs and taking measures as described in the Program Statement Transgender Offender Manual.
I understand that specific medical and mental health information will not be disclosed to all staff using the CMA assignment; specific medical and mental health information is maintained separately.
Inmate Name: Register Number: Signature: Date:

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