Woman Mistaken for a Man in Lockdown Can’t Sue Jailers

MIAMI (CN) – A federal judge dismissed the claims of a Dominican woman who was mistaken for being a man at a Miami-Dade County jail, ruling the correctional officers involved are entitled to qualified immunity.

In her June 8 ruling, U.S. District Judge Cecilia Altonaga said she had to reject Fior Pichardo De Veloz’s second amended complaint because “qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.”

As recounted in her complaint, on Nov. 4, 2013, Pichardo was arrested on an outstanding warrant at Miami International Airport upon her arrival from the Dominican Republic.

She says she was then booked and taken to the Turner Guilford Knight Correctional Center in Miami.

Pichardo, who was 50 years old at the time of her arrest, says she was undergoing prescribed hormone replacement therapy to deal with her menopause symptoms, and that she also suffered from high blood pressure.

According to the complaint, when Pichardo arrived to the correctional center she was subjected to a strip search during which correctional officers looked at her entire body and reproductive area.

The officer that conducted the search “did not notice anything abnormal,” the amended complaint says.

The complaint alleges that after Pichardo was evaluated at the medical unit, she was placed in a cell with other female inmates.

Fatu Kamara Harris, a nurse from the medical unit, approached Officer Audrey Morman and expressed her doubts about Pichardo being a woman due to a note in her file regarding her hormone replacement therapy, the complaint says.

Despite Pichardo having been subjected to an examination with Dr. Fredesvindo Rodriguez-Garcia, Nurse Harris still insisted that she was a male.

The complaint claims that after Harris’ insisted Pichardo was a man, Sgt. Regina Price ordered her taken to an all-male cell, and without reviewing any supporting documentation, directed another officer to change her sex in her file.

Pichardo was transferred to Metro West, an all-male facility, on November 5 where she was surrounded and harassed by about 40 male inmates, the complaint says.

“Pichardo was too afraid to use the all-male bathroom and instead urinated on herself. At some point, she asked an unknown female officer to move her out of Three Alpha Wing because she was going to go crazy,” the complaint says.

According to the complaint, Pichardo was subjected to a second strip search after her family urged an investigation as to why she had been transferred to an all-male facility.

She claims that correctional officers laughed at her and took pictures of her while she was undressed.

Following the strip search, Pichardo’s sex was confirmed and she was transferred again to an all-female unit in Turner Guilford Knight Correctional Center.

On November 6, Pichardo was released from the Miami-Dade Corrections and Rehabilitation Department’s custody to the United States Marshal Service, the complaint says.

Judge Altonaga’s order says to be entitled to the qualified immunity defense, “a government official must demonstrate he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.”

She also explains that in order “to survive a motion to dismiss based upon qualified immunity, the plaintiff must have alleged sufficient facts to support a finding of a constitutional violation of a clearly established law.”

In her complaint, Pichardo and her husband Cesar Cristobal Veloz Tiburcio, claim that the correctional officers knew she was a female and failed to prevent her from being transferred to an all-male cell, violating her constitutional rights.

However, the order says that “plaintiffs do not provide any decisional law finding an officer liable for failing to prevent a female inmate’s placement in an all-male housing unit after medical personnel concluded the inmate was male.”

“The Court cannot conclude that defendants violated any clearly established constitutional right to intervention in failing to change Pichardo’s sex classification after they perceived medical personnel had conclusively stated Pichardo was male,” the order says.

Judge Altonaga explains that Pichardo failed to demonstrate that defendants acted with “deliberate indifference,” and also failed to show the existence of a policy or widespread practice regarding “illegal strip searches.”

She concluded that plaintiffs were not able to properly frame their claims under federal law, so the complaint needs to be dismissed in order to allow them to re-file their claims in a state court.

Juan Diasgranados, a spokesman for the Miami-Dade Corrections & Rehabilitation Department said the agency does not comment on pending litigation.

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