D.G.-m. v. New Jersey Department of Corrections ( 2024 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0398-22
D.G.-M.,1
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted October 7, 2024 – Decided October 30, 2024
Before Judges Sabatino, Berdote Byrne, and Jacobs.
On appeal from the New Jersey Department of
Corrections.
D.G.-M., appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Nicholas Falcone and Patrick J.
Misale, Deputy Attorneys General, on the brief).
1
We use initials and a fictitious name to protect appellant's privacy interests.
R. 1:38-11(b).
PER CURIAM
Appellant, "Dory," who identifies as female, appeals from a final decision
of the Department of Corrections ("DOC") upholding the Prison Rape
Elimination Act ("PREA") Accommodation Committee's ("PAC") July 27, 2022
determination to transfer Dory out of a women's correctional facility and place
her in what is known as the "vulnerable housing unit" at a men's facility. On
appeal, Dory argues the DOC's decision should be reversed because it was
arbitrary and capricious, and because the record did not contain substantial
evidence to support the DOC's findings. Dory also contends the PAC is
unqualified to make housing decisions for transgender inmates, and the DOC's
decision is discriminatory towards her as a transgender woman, and in retaliation
for her past grievances and complaints.
We conclude the PAC's decision to transfer Dory from a women's
correctional facility and its decision to house her in the vulnerable housing unit
at a men's correctional facility were both justified and in compliance with all
DOC regulations. Accordingly, we find the DOC's decision is not arbitrary,
capricious, or unreasonable and affirm.
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I.
Dory is an incarcerated transgender person who currently identifies as
female. She was initially housed in a men's correctional facility in 2011 but was
transferred to Edna Mahan Correctional Facility ("EMCF"), a woman's
correctional facility, in August 2020 after she informed the DOC she identified
as a transgender woman and wished to be housed consistent with her gender
identity. However, in February 2022, Dory requested to be transferred back to
a men's correctional facility. She reiterated this request on April 20, 2022, out
of fear she would be transferred to a facility outside of New Jersey. On May 4,
2022, the PAC decided not to vote on Dory's request to be transferred because
of her "own expressed views concerning her safety and repeated references to
rescinding her application." Dory rescinded her transfer request on May 5, 2022.
In April 2022, EMCF officials investigated two alleged "[i]nmate on
[i]nmate consensual sexual relationship[s]" with "[c]onfirmed pregnanc[ies]"
involving Dory. Following the investigation, EMCF issued disciplinary charges
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against Dory for "[e]ngaging in sexual acts with others" in violation of N.J.A.C.
10A:4-4.1(a)(2)(v) (prohibited act *.051). 2
On June 3, 2022, the PAC initiated a review of Dory's housing assignment
because her placement at EMCF not only threatened her own safety, but
"threaten[ed] orderly operation, management[,] and security of the correctional
facility and pose[d] a risk to other incarcerated people in the facility." On June
24, 2022, the PAC held a meeting, without Dory present, and decided it could
no longer "house [her] in[-]line with gender identity (female facility) based on
the safety of inmate [Dory]." Following this decision, Dory was transferred to
the vulnerable housing unit at Garden State Youth Correctional Facility
("GSYCF"), a men's correctional facility. Dory appealed the decision to the
DOC.
On July 21, 2022, the DOC remanded the PAC's decision to transfer Dory
to GSYCF for the development of a more complete record. On July 27, 2022,
the PAC held a hearing, at which Dory was present, and considered: her past
safety concerns while housed at EMCF; the "four formal [k]eep [s]eparate orders
2
Although Dory admitted to impregnating both inmates at EMCF in previous
messages and communications with the PAC, she "reserve[d] comment" in her
letter appealing the July 27, 2022 decision, writing "no one even knows . . . if I
impregnated both women, instead my statements [and] [i]nvestigations rendered
a conclusion that is [n]ot supported by facts[,] i.e. DNA test [sic]."
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4
[against her] . . . as a result of her involvement in various conflicts with other
[incarcerated people] and impregnating multiple women at EMCF"; the inability
to move her to her former housing unit at EMCF because she was allegedly
"sexually assaulted by an unknown individual also housed in the unit"; and the
six out-of-state placement requests made by the DOC, all of which were
declined. At the hearing, the PAC considered Dory's medical and mental health,
and her access to gender-affirming hormone therapy as an incarcerated person
at GSYCF.
Dory administratively appealed the July 27, 2022 PAC housing decision,
but the DOC upheld the PAC's decision finding "sufficient information to
support the decision to continue to house [Dory] in[-]line with her assigned sex
at this time." The DOC added Dory's placement at GSYCF will be "periodically
reviewed," as required by the DOC's Transgender, Intersex, and Non-Binary
Inmates Policy ("DOC Policy"). Following the DOC's final decision and another
transfer request from Dory to be placed at Northern State Prison, a different
men's correctional facility, she was transferred out of GSYCF on approximately
September 22, 2023. This appeal followed.
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II.
Our role in reviewing a final decision of the DOC is limited. Figueroa v.
N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). The decision
will not be disturbed on appeal unless it was "arbitrary, capricious[,] or
unreasonable or it [was] not supported by substantial credible evidence in the
record as a whole." Mejia v. N.J. Dep't of Corr., 446 N.J. Super. 369, 376 (App.
Div. 2016) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Indeed, "[w]ide discretion is afforded to administrative decisions because of an
agency's specialized knowledge." In re Request to Modify Prison Sentences,
242 N.J. 357, 390 (2020). However, the agency must "disclose its reasons for
any decision, even those based upon expertise, so that a proper, searching, and
careful review by this court may be undertaken." Malacow v. N.J. Dep't of Corr.,
457 N.J. Super. 87, 93 (App. Div. 2018) (quoting Balagun v. N.J. Dep't of Corr.,
361 N.J. Super. 199, 203 (App. Div. 2003)).
To determine whether an agency's action is arbitrary, capricious, or
unreasonable, we examine three factors. Blanchard v. N.J. Dep't of Corr., 461
N.J. Super. 231, 238 (App. Div. 2019). First, we look at whether "the agency
follow[ed] the law." Ibid. (quoting In re Carter, 191 N.J. 474, 482 (2007)).
Second, we examine "whether the record contains substantial evidence to
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support the findings on which the agency based its action." Ibid. Third, we
examine "whether[,] in applying the legislative policies to the facts, the agency
clearly erred in reaching a conclusion that could not reasonably have been made
on a showing of the relevant factors." Ibid.With respect to the first factor, the DOC has "complete discretion in
determining an inmate's place of confinement." Smith v. N.J. Dep't of Corr.,
346 N.J. Super. 24, 29 (App. Div. 2001) (citing N.J.S.A. 30:4-91.2). Although
the DOC has discretion over the housing of inmates, it is bound by the DOC
Policy that "establish[es] procedures regarding the health, safety, and dignity of
incarcerated persons, including transgender, intersex, and non-binary
incarcerated persons, in the custody of the NJDOC, including ensuring the
rebuttable presumption to live in line with their gender identity." See N.J. Dept.
of Corr., DOC Internal Management Procedure PCS.001.TGI.01 § I (rev. Oct.
11, 2022) [hereinafter DOC Procedure]. The DOC Policy is comprised PREA,
34 U.S.C. §§ 30301-09, associated federal regulations, and the New Jersey Law
Against Discrimination, N.J.S.A. §§ 10:5-1 to 10:5-49.
The PREA protects inmates from prison rape. 34 U.S.C. § 30302. Its
purposes include "establish[ing] a zero-tolerance standard for the incidence of
prison rape in prisons in the United States"; "increas[ing] the accountability of
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prison officials who fail to detect, prevent, reduce, and punish prison rape"; and
"protect[ing] the Eighth Amendment rights of [f]ederal, [s]tate, and local
prisoners." Ibid. Consistent with the PREA, DOC Policy states:
Once the NJDOC learns and confirms an incarcerated
person's gender identity . . . it shall determine the
incarcerated person's facility and housing unit
assignment, with a rebuttable presumption that the
incarcerated person will be housed in[-]line with their
gender identity. The [PAC] may deviate from the
presumptive placement following a thorough
individualized review . . . .
[DOC Procedure § III].
The DOC Policy complies with the PREA by ensuring transgender inmates are
assigned housing on "a case-by-case basis, [considering] whether a placement
would ensure the inmate's health and safety, and whether the placement would
present management or security problems." 28 C.F.R. § 115.42(c).
The PAC's decision to transfer Dory out of EMCF applied the PREA,
DOC Policy, and DOC Procedure, basing its decision on "whether a placement
would ensure the inmate's health and safety, and whether the placement would
present management or security problems." 28 C.F.R. § 115.42(c). When the
June 24, 2022 PAC decision did not provide a detailed-enough explanation of
how Dory was unsafe, and how her placement at EMCF impacted the
management or security of the facility, the DOC remanded the matter to the PAC
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for a hearing, specifically requesting more detail regarding why Dory could no
longer be safely housed at EMCF. The July 27, 2022 PAC decision was an
individualized determination of Dory's housing and specifically stated the PAC's
concerns regarding Dory's safety at EMCF3 and the management and safety
concerns caused by her placement at EMCF. 4
Although the PAC "deviate[d] from the presumptive placement" of
housing Dory at EMCF, this decision was made "after an individualized
determination and upon written certification that the placement would
jeopardize the inmate's health and safety." In its final decision, the DOC
"carefully review[ed] and consider[ed]" Dory's narrative and medical records
submitted on appeal and upheld the PAC's decision because there was "sufficient
information to support the decision to continue to house her in[-]line with her
3
Dory expressed she felt unsafe at EMCF due to "sexually inappropriate
comments" another inmate allegedly made to her; alleged sexual harassment by
another inmate; "fe[eling] pressured into having sex [and] . . . be[ing] grabbed"
by other inmates and EMCF "upper level management . . . not car[ing]"; as well
as additional concerns such as "feel[ing] like the [EMCF] administration is
trying to make [her] get raped [sic]."
4
The PAC considered the four keep-separate orders against Dory; the inability
to house her in her previous housing unit because of the alleged sexual assault
by an unknown inmate also housed in that unit; and the inability to house Dory
in EMCF's general population because she "was housed in a [general population]
non-dormitory setting prior to April[] 2022, when the first pregnancy was
identified."
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assigned sex at this time." Both the July 27, 2022 PAC decision and the
August 25, 2022 DOC final decision provided substantial evidence of Dory
expressing safety concerns regarding her housing at EMCF, as well as causing
management and security concerns at EMCF. According to the PAC, Dory had
the highest number of orders to be kept separate from other inmates at EMCF,
including two for violating N.J.A.C. 10A:4-4.1(a)(2)(v) (prohibited act *.051),
engaging in sexual activity with others, which resulted in two EMCF inmates
becoming impregnated.
Pursuant to the DOC Policy, the PAC considered these facts when
determining "whether the particular placement would present management or
security problems . . . . [and] [t]his consideration [was] applied equally to all
inmates, regardless of their sex or gender identity, and . . . justif[ied] a deviation
from an inmate's presumptive placement in[-]line with gender identity." The
PAC further relied upon the fact "[Dory] could not explain to [the PAC's]
satisfaction why she now 'ha[d] no safety concerns' about housing at EMCF after
several years of [alleging] documented health and safety concerns." The PAC
also pointed to the "[m]ultiple women at EMCF [who] . . . expressed fear and
anger towards [Dory]" due to her having impregnated two inmates at EMCF and
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emphasized Dory's keep-separate orders and guilty findings in making its
determination.
Considering these facts in their totality, the PAC's decision to transfer
Dory out of EMCF was reasonable and based on her safety concerns at EMCF
as well as the correctional facility's security concerns following her recorded
violations and keep-separate orders. The PAC followed the DOC's internal
procedures and the PREA in first searching for out-of-state placements to
continue housing Dory in-line with her gender identity, and then transferring her
to the vulnerable housing unit at GSYCF. The DOC's decision to uphold the
PAC's housing determination was not arbitrary, capricious, or unreasonable and
Dory's safety concerns at the GSYCF vulnerable housing unit are belied by her
subsequent, voluntary transfer request to Northern State Prison.
Dory's claim that the DOC violated her constitutional rights, not raised
before the DOC but which we choose to address in our discretion, is also
unavailing. The Eighth Amendment protects against cruel and unusual
punishments and imposes a duty to ensure humane conditions in prisons. U.S.
Const., amend. VIII; Farmer v. Brennan, 511 U.S. 825, 847 (1994) (holding "a
prison official may be held liable under the Eighth Amendment for denying
humane conditions of confinement only if he knows that inmates face a
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substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it").
The United States Supreme Court has stated "prison officials have a duty
. . . to protect prisoners from violence at the hands of other prisoners." Farmer,
511 U.S. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556,
558 (1st Cir. 1988)). This protection from violence includes preventing sexual
assaults. See id. at 833-34 ("Prison conditions may be 'restrictive and even
harsh,' but gratuitously allowing the beating or rape of one prisoner by another "
does not legitimately serve a prison's penological objective) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)).
Prison officials violate their duty to take reasonable steps to protect an
inmate's safety and prevent harm when (1) the inmate "is incarcerated under
conditions posing a substantial risk of serious harm" and (2) the officials have a
"state of mind . . . of 'deliberate indifference' to inmate health or safety." Farmer,
511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)).
A correctional facility's decision to house a transgender inmate who
identifies as female in a men's facility does not automatically violate the duty to
prevent harm. See Richardson v. District of Columbia, 322 F. Supp. 3d 175,
184 (D.D.C. 2018) (finding although "Farmer put correctional officers on notice
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that they cannot house together a transgender female inmate who they know
faces a particularly high risk of assault with a male inmate," the United States
Supreme Court did not "hold that transgender female inmates, notwithstanding
their own housing preferences, may never be celled with male inmates")
(emphasis omitted).
The PAC's decision to house Dory in the vulnerable housing unit at
GSYCF was constitutional in light of the circumstances because it took
reasonable steps to prevent her from harm. Aware of Dory's gender identity, the
PAC housed Dory in a unit specifically designated for vulnerable inmates. As
an inmate in the vulnerable housing unit, the PAC provided Dory with "gender
affirming products and other gender-related accommodations"; "[s]ingle [c]ell
[h]ousing"; "[s]ingle [s]hower [c]apability"; and additional services. The PAC
decided to house Dory in the vulnerable housing unit at GSYCF to keep her safe.
There is no evidence in the record of the PAC's "deliberate indifference" for
Dory's health or safety. See Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S.
at 302-03). And Dory is not precluded from requesting future transfers based
on new circumstances if she feels her current placement at a men's correctional
facility is not suitable. In fact, the DOC agreed to continue to periodically
review her housing, consistent with its PAC obligations.
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To the extent we have not addressed any of appellant's arguments, we are
satisfied they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(D) and
(E).
Affirmed.
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