Oregon Transgender Prisoner Claims Abusive Violation of Injunction, but Court Declines Sanctions
by Matthew T. Clarke
"Does somebody have any common sense?”
That was the question U.S. District Judge Ann Aiken had for Oregon Department of Corrections (DOC) officials when they appeared before her on December 12, 2023, to respond to a show-cause motion by transgender state prisoner Zera Lola Zombie, who alleged that she was abused by prison guards in violation of a preliminary injunction that the Court issued in her pending federal civil rights lawsuit against state.
Zombie, 39, is serving sentences for the fatal beating of her girlfriend in 2014 and a subsequent assault on a jail prisoner. She is ineligible for release prior to 2049. In 2021, aided by Portland attorney John D. Burgess of the law offices of Daniel Snyder and Hillsboro attorney Katherine Edwards, Zombie filed suit pursuant to 42 U.S.C. § 1983 against the state and numerous DOC officials alleging gender-identity-based discrimination and claims related to her repeated sexual assault and sexual abuse while housed in a men’s prison with a known sexual predator as a cellmate. Based on the evidence presented, Judge Aiken took the unusual step of issuing a temporary restraining order on September 8, 2023, extending it seven days later until she ultimately issue the preliminary injunction against Defendants on September 30, 2023. See: Zombie v. Oregon, 2023 U.S. Dist. LEXIS 159411; 2023 U.S. Dist. LEXIS 164153; and 2023 U.S. Dist. LEXIS 176498 (D. Or.).
According to the Court, it is more likely than not that Zombie will prevail on her claims of repeated sexual abuse, including sexual assault, by male prisoners with whom she was housed—including a known sexual predator she was celled with at Oregon State Penitentiary and another prisoner serving a 10-year sentence for five counts of First Degree Sexual Abuse that she was forced to live with at Two Rivers Correctional Institution after filing the lawsuit.
The Court noted that DOC was required to “take reasonable measures to guarantee the safety of the inmates,’’ including protecting transgender prisoners from sexual assault, citing Farmer v. Brennan, 511 U.S. 825 (1994). In this case, the Court said, “there are strong indicators stacking the scale in favor of the high likelihood that plaintiff, a vulnerable inmate, would be sexually assaulted by cellmates with known histories of perpetrating sexual abuse and predation.” The Court ordered Defendants to continue to designate Zombie as a vulnerable person under DOC rules; not to house her with another cellmate or where she can be viewed while nude (including when showering) by male prisoners and staff; and not to require her to take meals or medication at the same time as cellmates who previously sexually assaulted her.
But in November 2023, Zombie said she was placed in a cell without a toilet or toilet access. As a result, she urinated on herself and took off her outer clothing to dry. Guards then entered her cell, handcuffed and paraded her—dressed only in a bra and underwear—in the view of male guards and prisoners, after which a male guard performed an invasive body cavity search on her. Zombie was cited for contraband and disobeying an order and placed in a disciplinary unit, where she was required to shower in front of male prisoners.
The parties were back in the Court about these allegations in December 2023, when DOC claimed that no female guards were available for the body cavity search, and Aiken rejected that excuse. The search, the judge noted, was for a non-life-threatening drug called spice paper, so there was no reason not to wait for a guard of the appropriate gender to conduct the search. Zombie, the Court added, “is not the only transgender individual in the system. So these are precautions that need to be addressed.”
Judge Aiken ordered DOC to answer the allegations “in detail” and threatened sanctions if they proved true. Ultimately, though, the Court blinked, denying the show-cause motion on February 2, 2024. At a settlement conference before a magistrate on April 1, 2024, the parties failed to reach an agreement, leaving the case to proceed. PLN will update developments as they are available. See: Zombie v. Oregon, USDC (D. Or.), Case No. 3:21-cv-01338.
Additional source: The Advocate
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