30-F-2. Segregation and Protective Custody
State prisons may not segregate LGBT prisoners from the general prison population unless either a prisoner asks for this or a court order requires such separation.128 If being housed with the general population is difficult or harmful for you, you can request to be placed in segregation or protective custody. While LGBT prisoners deserve protection, the conditions of protective custody often are horrible.129
Segregation means different things in different prisons. Some prisons have so many LGBT prisoners that they have a wing for people identifying themselves as LGBT; other prisons can offer only single rooms, or certain cells within a larger segregation unit, for the occasional LGBT prisoner.130
(a) Getting Into Protective Custody
If you have been placed in general population and have experienced ill treatment there (attack or threat of attack), you may request to be transferred into protective custody through administrative channels.131 Be aware, though, that the conditions in protective custody could be the same as or very similar to solitary confinement (also called the "hole," "SHU," or "AdSeg."). However, according to the PREA Standards, prisoners in protective custody should receive access to programs, privileges, education and work opportunities to the greatest extent possible.132
If your protective custody request is not granted when brought through administrative channels, including all administrative appeals processes, you may bring a Section 1983 claim against prison officials for violating your Eighth Amendment right to be free from cruel and unusual punishment. As explained in Part E of this Chapter, a prison official may be held liable under Section 1983 for violating the Eighth Amendment if he acted with "deliberate indifference" to your health or safety-that is, if he knew you faced a substantial risk of serious harm but disregarded that risk by not taking reasonable action to stop it.133 In general, the more serious the threats or attacks against you and the more evidence you can produce that the prison officials knew about the risk but did nothing, the better your chances are of winning in court.
Few Section 1983 suits about the failure to house a prisoner in protective custody have been brought by LGBT prisoners,134 but several courts have recognized the vulnerability of prisoners who do not fit within traditional gender norms.135 Before Farmer v. Brennan, the few such claims that were filed had very limited success.136 The Farmer Court's extensive discussion of the meaning of "deliberate indifference," however, may make it easier to win on such claims.137 Also strengthening the deliberate indifference argument of LGBT prisoners is the fact that courts have acknowledged the heightened vulnerability of prisoners known to be LGBT, or who might be thought to be LGBT, by giving lighter sentences.138 These cases may make it more difficult for a prison official to prove he did not have the required knowledge that LGBT prisoners are at risk. If you plan to bring a Section 1983 claim for violation of your Eighth Amendment rights, be sure to also read Chapter 16 of the JLM, "Using 42 U.S.C. 1983 and 28 U.S.C. 1331 to Obtain Relief From Violations of Federal Law."
(b) Getting Out of Protective Custody
Although segregation from the general prison population may afford LGBT prisoners protection from harassment and assault, the conditions of segregated cells are often worse than those in general population.139 If segregation makes you ineligible for certain work detail or denies you access to libraries and other...
