[B]URLINGTON — A federal judge heard competing arguments whether to allow a lawsuit to go forward brought by a transgender former prisoner who asked to go to a female facility but was placed in a male prison where she was assaulted.

Assistant Vermont Attorney General Steve Collier contended during a hearing Tuesday in federal court in Burlington that the case brought by Cammie Cameron should be thrown out, in part, because she is the one who started the fight with the male inmate.

“Plaintiff cannot start a fight and construct a ‘failure to protect claim’ from that factual predicate — particularly against officials who neither knew her plans nor consciously permitted her to carry them out,” Collier wrote in a filing in support of his motion to dismiss the lawsuit.

Theodore Kramer, a Brattleboro attorney representing Cameron, disputed that assertion and urged the judge to permit the lawsuit to move toward trial. Camerson was 35 when the suit was filed in December.

“Defendant’s allusions to Plaintiff being the aggressor in this altercation adds insult to injury,” according to Kramer.

“Plaintiff had multiple wounds to her forehead, right eye, cheek and jaw, a fractured nose, a major closed head injury, internal bleeding, and concussion,” Kramer added, “all requiring hospitalization.”

Also, Kramer wrote in his own filing, the other inmate barely had a scratch.

Magistrate Judge John M. Conroy, after listening to arguments from both sides Tuesday, said he would take the matter under advisement and issue a written decision “soon” on whether he believes the case should be dismissed or be allowed to proceed.

“It’s important to remember that we’re here to determine plausibility, whether or not the plaintiff’s allegations push the case over from conceivability to plausibility,” Conroy said during the hearing.

Collier, from the Attorney General’s Office, represents Department of Corrections officials named in the suit, including Lisa Menard, former Vermont corrections commissioner who was in the post at the time of Cameron’s incarceration on a burglary conviction.

Cameron filed the lawsuit late last year seeking more than $350,000 in damages stemming from her incarceration at the Southern State Correctional Facility in Springfield. The facility is an all-male, 370-bed facility, according to the state Department of Corrections website.

According to the lawsuit, Cameron was identified by state Department of Corrections officials during the intake process as a transgender female, and she requested to be lodged with female inmates. However, the lawsuit stated, that request was denied.

While at the Springfield prison, according to the lawsuit, Cameron was “ridiculed, threatened and harassed by male inmates and correctional officers,” and was subjected to “constant sexual harassment, comments, demands, and threats by male inmates.”

“Despite being aware of the threat inmate Francis Lajoice presented to the Plaintiff,” the filing added, Cameron was placed in a cell adjacent to Lajoice.

The lawsuit stated that around 10 a.m. on Dec. 21, 2015, inmate Lajoice attacked Cameron.

In the aftermath of the beating, “Cameron was found lying on the ground with ‘blood pouring from her nose and mouth,’ her ‘right eye was swollen shut and purple,’ and she ‘had several bumps and bruises on her forehead and temple areas,” the lawsuit stated.

According to the lawsuit, Lajoice was later convicted of simple assault in connection with the attack.

Collier, in a filing seeking to dismiss the case, wrote that Cameron was also charged in connection with the incident. Cameron pleaded no contest to a simple assault charge and was convicted of assaulting Lajoice, with the prosecutor terming Cameron the “instigator.”

Kramer asked the judge to consider striking from the record any mention of his client’s no contest plea to the misdemeanor assault charge, but added that information about the conviction itself would be permissible.

He argued that it’s “well-understood” in criminal proceedings in Vermont that a no contest plea, where a person doesn’t admit guilt but concedes the prosecution has enough to prove a case, would not be used against a person in a civil matter.

“My expectation would be that if this case were to be tried there would obviously be a substantial amount of evidence that would be presented to the jury regarding the beating that my client took,” he said.

“She will be able to testify about what happened, Mr. Lajoice presumably will be able to testify about what happened, witnesses will be able to testify about what happened, and then the jury will make a judgment on culpability.”

Kramer also said Cameron was acting in self-defense, and that DOC officials were aware of Cameron’s request to be housed in a women’s facility and the risk that would arise if not placed there.

“It’s reasonable to infer that when a feminine-appearing transgender female inmate is placed in close proximity with male inmates, she will be vulnerable and at risk of sexual harassment and assault, both physical and sexual,” Kramer wrote in his filing.

According to a DOC directive that went into effect in February 2015, “DOC can house transgender or intersex inmates according to their gender identity rather than their birth sex.”

In determining whether to assign a transgender inmate to a male or female facility, the directive stated that DOC “will consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”

Those decision regarding transgender inmates will be made by a management team made up by the department’s director of correctional facilities, health services director, case work director, and “a DOC employee with the ability and knowledge needed to represent LGBTQI interests,” the directive states.

After serving time in Springfield, Cameron later was housed from May 18, 2016, to Jan. 14, 2017, at the Chittenden Regional Correctional Facility, an all-women’s facility, in South Burlington, DOC records stated.

Conroy, the federal magistrate judge, pressed Collier during the hearing Tuesday over the placement of Cameron in a male prison.

“Isn’t it obvious that a transgender inmate placed in a general male population would face a heightened risk of assault, isn’t that an obvious conclusion?” Conroy asked.

“I think that it depends on the circumstances, it depends on the circumstances of a particular prison,” Collier replied. “In this case, there’s no allegations that transgender inmates are at risk of physical assault.”

“Doesn’t the DOC policy recognize that?” Conroy said to Collier.

“The DOC policy recognizes that under certain circumstances it may be appropriate to place people with other folks of their same gender identity,” Collier responded, adding DOC officials named as defendants were not specifically aware that Cameron was at risk of physical harm.

“There is certainly smoke, I mean it’s obviously concerning that the plaintiff was a transgender inmate who was assaulted by another inmate,” Collier said. “But, that’s not enough to show that an official violated the Constitution.”

Kramer told the magistrate judge that transgender females are “particularly vulnerable to assault and violence” when incarcerated with male inmates.

“We have alleged that contrary to Cammie’s request, contrary to their appreciation as set forth in their regulations, and contrary to common sense, they placed a transgender female amongst male inmates,” he said of the DOC officials. “They chose to do that.”