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Dimarco v. Wyoming Dep't of Corrections

February 18, 2004


The opinion of the court was delivered by: Clarence A. Brimmer, United States District Judge


Plaintiff Miki Ann DiMarco brings this suit against the Wyoming Department of Corrections, Division of Prisons, Wyoming Women's Center; Judy Uphoff, Nola Blackburn, Vicki McKinney, Darlene Rea, and Donna Lloyd asserting five causes of action; (1) a Sec. 1983 under the Eighth Amendment; (2) a Sec. 1983 Procedural Due Process claim under the Fourteenth Amendment; (3) a § 1983 Substantive Due Process claim under the Ninth and Fourteenth Amendment and Wyoming Constitution § 97-1-036; and (4) a § 1983 Equal Protection claim under the Fourteenth Amendment.

This Court conducted a bench trial starting on January 20, 2004 and ending on January 29, 2004. At the close of proceedings, the parties submitted Proposed Findings of Fact and Conclusions of Law and the Court took the matter under advisement. This Court now issues its Findings of Fact and Conclusions of Law and enters Judgment. Fed. R. Civ. P. 52(a), 58. After hearing the issues presented during the bench trial, considering the evidence, and being fully advised of the premises, the Court FINDS and ORDERS as follows:

Statement of Parties and Jurisdiction

Plaintiff, Miki Ann DiMarco, is a resident of Douglas, Wyoming. Plaintiff was incarcerated at the Wyoming Women's Center ("WWC") from May 3, 2000, through July 10, 2001, upon the revocation of her probation on an earlier check fraud conviction in the First Judicial District, Laramie County, Wyoming.

Plaintiff was born intersexual (or as a hermaphrodite).*fn1 A person is intersexual if they have both male and female characteristics, including in varying degrees reproductive organs, secondary sexual characteristics, and sexual behavior. This condition is the result of an abnormality of the sex chromosomes or a hormonal imbalance during the development of the embryo.

Defendant State of Wyoming Department of Corrections Division of Prisons ("WDOC") has general control over all penal institutions in Wyoming. Defendant WWC is a penal institution in Wyoming that has control and custody over women inmates. The WWC is located in Lusk, Wyoming. The individual Defendants are being sued as individuals and not in their official capacity. Defendant Judith Uphoff, is the former Director and Chief Administrative Officer of the Wyoming Department of Corrections and was in this capacity during the entire period in contention. Defendant, Nola Blackburn, is the Warden of the WWC. Defendant, Viki McKinney, is a Major at the WWC. Defendant, Darlene Rea, is a Lieutenant at the WWC. Defendant, Donna Lloyd, is a Corporal at the WWC.

The Court has federal question and supplemental jurisdiction. 28 U.S.C. §§ 1331, 1343, 1367. Venue is proper. 28 U.S.C. § 1391(b).

Findings of Fact

1. At all relevant times herein, Defendant Judith Uphoff was the Director of the Wyoming Department of Corrections.

2. At all relevant times herein, Defendant Nola Blackburn was the Warden of the WWC.

3. At all relevant times herein, Defendants Major Victoria McKinney, Lieutenant Darlene Rea and Corporal Donna Lloyd were employed as correctional officers at WWC and all resided in Lusk, Wyoming.

4. Plaintiff Miki Ann Dimarco is classified as an individual of ambiguous gender. Plaintiff is closer to being a hermaphrodite than either a male or female. Plaintiff has a nearly complete set of male reproductive organs however does not have testicles. Plaintiff has no female reproductive organs.

5. Plaintiff has lived as a female since puberty and identifies herself as being of female gender.

6. Plaintiff's gender ambiguity was congenital in nature and the result of a disruption in her gonadal development resulting in non-typical hormone production. (Testimony of Dr. Maxwell Taylor).

7. Plaintiff was incarcerated at WWC on May 2, 2000 upon revocation of her probation from an earlier conviction for check fraud by the Honorable Edward Grant, District Judge, First Judicial District, State of Wyoming. The probation revocation was due to lack of verifiable identification and positive drug tests.

8. After the probation revocation, Plaintiff was initially committed to the Laramie County Jail for approximately thirty-eight (38) days and was housed with the female population without any reported incident and got along just fine with the other female inmates.

9. Plaintiff was transported to WWC on May 2, 2000 by two correctional officers, Defendant Lloyd and Henry, after being picked up at the Laramie County Detention Center.

10. An initial physical inventory was performed at the Laramie County Jail by the correctional officers which included a strip search, pursuant to policy, and made notations regarding unusual marks, scars and tattoos.

11. Upon arrival at WWC, a second physical search was performed pursuant to processing policy. The search was performed by a nurse with a correctional officer in attendance. During the physical search it was noted that Plaintiff bore a penis.

12. Plaintiff was immediately housed in Pod 3 of the maximum security East wing of WWC. Pod 3 is segregated from the general population. It is customary in the corrections profession to segregate new inmates from the general prison population until the prison officers are able to evaluate them by placing them into the East Wing of the WWC.

13. Plaintiff remained housed in Pod 3 and separated from the general population throughout her incarceration, a total of 438 days, from May 2, 2000 to July 10, 2001.

14. The East wing of the WWC is the maximum security wing and has three housing pods; Pods 1,2 and 3.

15. Pod 3 is the most restrictive and isolated housing pod at the WWC, and it is the segregated housing unit most often used to segregate serious offenders for punishment. The Pod is very stark with each cell consisting of a bed, a steel sink and steel toilet. There are only four individual cells in Pod 3. The cells are painted cement blocks, with grey solid steel doors. The four cells are accessed through a small "day room," which consists of a small steel table permanently bolted to the floor with a steel bench, also bolted down, and a T.V. high on the wall, controlled by the guards in the glass-encased area from which they control all doors in all three pods. This contrasts with the West wing, where the halls have red brick facing, floors are carpeted, cells doors are wooden. The West wing cells have cupboards for personal effects. There are places for hanging clothes, and there may be some curtains on the windows. The day rooms in the West wing are very comfortable, with overstuffed furniture, tables, T.V., pictures and other decorations.

16. Plaintiff had daily contact with the nursing staff.

17. Plaintiff was not double-bunked, her bed clothes were changed on a weekly basis and Plaintiff's clothing was washed daily.

18. Plaintiff had adequate clothing while incarcerated. Pursuant to the property grid for "Closed/Restrictive" classification, Plaintiff was given two sets of clothing while the general population was granted five sets.

19. Plaintiff had items relating to personal hygiene delivered at no cost to her, including soap, shampoo, toothpaste, and a toothbrush. Plaintiff had no funds on the prison books and was unable to work for pay since she was housed in Pod 3 of the East wing. WWC Prison policy does not allow inmates to work while housed in Pod 3.

20. Plaintiff received three meals a day and ate the same food as was fed to the general population. Plaintiff had to eat meals in her cell and not with any other inmates or in the Pod 3 day room.

21. Plaintiff had access to reading materials from the library cart and could request books be delivered to her.

22. Plaintiff had access to the prison Chaplain.

23. Plaintiff had access to the prison gymnasium, but the time was limited to only when no other inmate was using the facility and when a guard could transport her down to the gym.

24. Plaintiff had access to and used the prison physician twenty-six (26) times. Plaintiff also used the service of Dr. Coyle, D.O. and number of specialists located off-site.

25. In Pod 3, Plaintiff was denied the following privileges: any human contact with fellow inmates, working for pay, access to the general population day room, access to the cafeteria or commissary, access to inmate educational advantages, and a hair cut. Plaintiff was required to eat all meals in her cell which did not have a table or chair so she was constrained to sit on her bed or toilet to eat. Plaintiff was allowed out of her cell and into the Pod 3 day room a maximum of five and one-half hours a day. Plaintiff was not allowed to have everyday possessions which were allowed in minimum and even in certain East wing pods (Pods 1 and 2) such as jewelry, make up, hair pick, tweezers, nail clippers, mirror, facial tissue, colored pencils, hobby craft, religious items, cassette tapes or player, calculator, clock, clock radio, lamp, television, walkman cassette, hair dryer, and thermal top or bottoms. (Ex. 42).

26. Plaintiff was provided a deck of playing cards by a former corrections officer but the cards were confiscated after three days. WWC rules and policy permits inmates assigned as "Closed/Restricted" to obtain and use playing cards. On the WDOC Offender Property Matrix, Item 8 is two decks of playing cards. The matrix shows that two decks of playing cards are allowed in all cells except "Maximum" and "Reception/Assessment." Playing cards are even provided to death row inmates. (See Ex. 42).

27. The Plaintiff's placement in Pod 3 of the maximum security wing of WWC was an assignment to a segregated housing unit, which was at the least administrative segregation and at the worst punitive segregation which was based solely on Plaintiff's gender and physical characteristics.

28. Plaintiff received a total score of 1 on the initial intake evaluation form, which is the lowest possible risk score and which initially classified Plaintiff as a minimum security risk, eligible for minimum security general population housing in the West ...

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