Opinion
Civil Action 6:21-3053-JD-KFM
06-28-2022
Gary Boone, aka Valerie Boone, Plaintiff, v. Michael Carvajal, Director of Federal Bureau of Prisons; A. Mendoza, Warden of FCI Williamsburg; K. Nolte, Health Service Administrator at FCI Williamsburg; S. Hoey, Medical Provider at FCI Williamsburg; C. Davis, Nurse Practitioner at FCI Williamsburg; Dr. Figueroa, Chief Psychologist at FCI Williamsburg; and Dr. Laxton, Psychologist at FCI Williamsburg, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 29). The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2) (D.S.C.), all pretrial matters in this case were referred to the undersigned United States Magistrate Judge for consideration.
In Bivens, the Supreme Court of the United States established a cause of action against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Id. See also Osabutey v. Welch, 857 F.2d 220, 221-23 (4th Cir. 1988).
I. BACKGROUND AND FACTS PRESENTED
The plaintiff is a 72-year-old transgender woman and is currently serving a life sentence at Federal Correctional Institution Butner ("FCI Butner") in Butner, North Carolina (docs. 1, compl. ¶ 12; 29 at 8; 27). During the events in question, however, the plaintiff was incarcerated at Federal Correctional Institution Williamsburg ("FCI Williamsburg") in Salters, South Carolina (doc. 1, compl. ¶ 19). The plaintiff filed suit against officials at FCI Williamsburg based on the lack of medical treatment she has received for her gender dysphoria ("GD") (doc. 1, compl.).
The undersigned will refer to the plaintiff by her preferred pronoun of she/her.
A. The BOP's Policies
The Bureau of Prisons ("BOP") has promulgated several program documents that govern the placement and provision of care of transgender inmates, including the T ransgender Offender Manual ("Manual"), which ensures that the BOP "properly identifies, tracks, and provides services to the transgender population," and the Medical Management of Transgender Inmates Guidance ("Medical Management Guidance"), which "provides recommendations for the medical management and treatment of transgender inmates" (docs. 29-1; 29-2).
The Manual notes that GD, which was previously known as gender identity disorder ("GID"), is "a mental health diagnosis currently defined by DSM-5 as, 'A strong and persistent cross-gender identification. It is manifested by a stated desire to be the opposite sex and persistent discomfort with his or her biologically assigned sex'" (doc. 29-1 at 3). "Not all transgender inmates will have a diagnosis of GD" (id.). The Manual also outlines the different groups within the BOP responsible for addressing various aspects of transgender inmates' needs (id. at 4-6). For example, the Transgender Executive Council ("TEC") "is the agency's official decision-making body on all issues affecting the transgender inmate population" and is comprised of staff members from the BOP's Women and Special Populations Branch, the Psychology Services Branch, the Health Services Division, and the Designation and Sentencing Computation Center (id. at 5). The TEC is responsible for "meet[ing] a minimum of monthly to offer advice and guidance on unique measures related to treatment and management needs of transgender inmates and/or inmates with GD, including training, designation issues, and reviewing all transfers for approval" (id.).
The Manual also contains provisions concerning housing and programming assignments for transgender inmates who desire to transfer facilities as a part of their transition:
In situations where the transfer request is related to progressing the individual inmate's transition (i.e., transfer to a different sex facility)[,] the TEC will consider the case. Prior to considering the case, the Warden will submit documentation to the TEC showing the inmate has met the minimum standards of compliance with programs, medications and mental health treatment, and meeting hormone goal levels. Ordinarily, inmates will not be submitted to the TEC for consideration until they have maintained one year clear conduct for 100 and 200 series incident report sanctions, though they may be considered for submissions on a case-by-case basis by the Warden, as appropriate.(Doc. 29-1 at 7-8). In addition, BOP staff conducts program reviews, in which they review transgender inmates' current housing status and the programming available (id. at 7). These reviews consider "on a case-by-case basis that the inmate placement does not jeopardize the inmate's wellbeing and does not present management or security concerns" (id.).
Moreover, the Manual provides that the BOP's psychologists will provide assessment and treatment services for transgender inmates, as appropriate, including providing information regarding the range of treatment options available in the BOP, a referral to the clinical director or chief psychiatrist, and individual psychotherapy (doc. 29-1 at 10). Further, the Manual provides for hormone therapy as follows:
Hormone therapy or other medical treatment may be provided after an individualized assessment of the requested inmate by institution medical staff. Medical staff will request consultation from Psychology Services regarding the mental health benefits of hormone or other medical treatment. If appropriate for the inmate, hormone treatment will be provided . . . .(Id. at 9). In addition, the Manual addresses requests for gender-affirming surgery and states that "surgery may be the final stage in the transition process and is generally considered only after one year of clear conduct and compliance with mental health, medical, and programming services at the gender affirming facility," which is a facility for individuals of the inmate's preferred gender (id. at 10). The Manual provides that once the one-year period at the gender affirming facility is complete, an inmate may submit a surgery request to the warden, who will forward the request to the TEC (id.). If the TEC determines that all milestones and goals for surgical consideration are satisfied, the TEC will refer the request to the medical director for medical consideration (id.). The medical director will then make an individualized determination as to whether gender-affirming surgery is appropriate for the individual inmate, and, if so, refer the matter to a surgeon (id.).
The Medical Management Guidance also provides guidance on the appropriate medical treatment of transgender inmates, including mental health treatment, implementation of real-life experience, hormone therapy, and surgery (doc. 29-2 at 14-23). Specifically regarding surgery, the Medical Management Guidance states that "[a]lthough individuals may live successfully as transgender persons without surgery, gender-affirming surgery may be appropriate for some and is considered on a case-by-case basis" (id. at 23). Pursuant to the Medical Management Guidance, "[i]n addition to the eligibility and readiness criteria for hormone therapy, general criteria for consideration of surgery include at least 12 months of successful use of hormone therapy, participation in psychotherapy as clinically indicated, full-time real[-]life experience in their preferred gender, and consolidation of gender identity" (id.).
Additionally, the World Professional Association for Transgender Health ("WPATH"), an independent organization, published Standards of Care ("WPATH Standards of Care"), which purport to provide "flexible clinical guidelines" for "health professionals to assist transsexual, transgender, and gender-nonconforming people with safe and effective pathways to achieving lasting personal comfort with their gendered selves, in order to maximize their overall health, psychological well-being, and self-fulfillment" (doc. 29-3 at 8-9). The defendants submit that while the Medical Management Guidance provides a reference to the WPATH Standards of Care in a footnote labeled "[f]or further consideration," nothing in any BOP manual or policy purports to incorporate or be bound by the WPATH Standards of Care (docs. 29 at 6; 29-2 at 14). However, the Court of Appeals for the Fourth Circuit has relied on the WPATH Standards of Care and recognized it as authoritative in some circumstances. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 595 (4th Cir. 2020) (citations omitted).
With respect to gender-affirming surgery, the WPATH Standards of Care recognize that genital surgery "is often the last and most considered step in the treatment process for gender dysphoria" (doc. 29-3 at 61). The WPATH Standards of Care outline six criteria for vaginoplasty operations in female transgender patients:
1. Persistent, well-documented gender dysphoria;
2. Capacity to make a fully informed decision and to consent for treatment;
3. Age of majority in a given country;
4. If significant medical or mental health concerns are present, they must be well controlled;
5. 12 continuous months of hormone therapy as appropriate to the patient's gender goals (unless hormones are not clinically indicated for the individual).
6. 12 continuous months of living in a gender role that is congruent with their gender identity.(Id. at 67). The WPATH Standards of Care state that the criteria that transgender individuals live 12 continuous months in a gender role congruent with their gender identity is included "based on expert clinical consensus that this experience provides ample opportunity for patients to experience and socially adjust in their desired gender role, before undergoing irreversible surgery" (doc. 29-3 at 67). As the WPATH Standards of Care note, "[t]he duration of 12 months allows for a range of different life experiences and events that may occur throughout the year (e.g., family events, holidays, vacations, season-specific work or school experiences)" (id. at 68).
B. The Plaintiff's Treatment
The plaintiff submits that she first requested medical treatment to alleviate symptoms of her GD in 2016 and first requested gender-affirming surgery in August 2017 (doc. 1, compl. ¶ 15). The plaintiff was subsequently prescribed hormone therapy as treatment (id. ¶ 16). In March 2018, the plaintiff was transferred to Federal Correctional Institution McKean ("FCI McKean") in Pennsylvania (doc. 1, compl. ¶ 17). The plaintiff submits that she reasserted her request for gender-affirming surgery there, but she received no response (id.). On July 29, 2018, while at FCI McKean, the plaintiff was observed by a correctional officer cutting her arms with an unknown object (id. ¶ 18; doc. 1-3 at 10). The correctional officer notified FCI McKean medical personnel, who responded and escorted the plaintiff out of her cell for examination (doc. 1-3 at 10). The plaintiff submits that she was then placed on suicide watch (doc. 33 at 4).
On July 12, 2019, the plaintiff was transferred to FCI Williamsburg (doc. 1, compl. ¶ 19). While at FCI Williamsburg, the plaintiff received hormone therapy and psychological counseling for her GD (id. ¶ 20). Moreover, Dr. Figueroa, the chief psychologist at FCI Williamsburg, increased the plaintiff's mental health care level from level one to level two (id.). The plaintiff submitted a request to staff for gender-affirming surgery on August 5, 2019 (id. ¶ 21; doc. 1-3 at 12). In response, staff informed the plaintiff that they were "Checking on guidance to your request. If you don't hear back from medical in 2 wks, please resubmit this . . ." (doc. 1-3 at 12). Moreover, the plaintiff submitted another request to Stephen Hoey ("Dr. Hoey"), a doctor at FCI Williamsburg, on August 8, 2019 (doc. 1, compl. ¶ 21; doc. 1-3 at 13). The response stated, "Duplicate request. We have reached out to the region for guidance. Please give us 2 wks. Thanks" (doc. 1-3 at 14).
The plaintiff alleges that she was interviewed at medical services by C. Davis ("Nurse Davis"), a nurse practitioner, on August 26, 2019, to discuss her request for gender-affirming surgery and instructions on the procedural requirements (doc. 1, compl. ¶ 22). During this interview, the plaintiff alleges that Nurse Davis informed her that the BOP's policies were vague but that she must complete at least one year of hormone therapy and then submit a request to the warden for the surgery, which would be submitted to the TEC (id.). Nurse Davis also told the plaintiff to start this process with the associate warden (id.). The plaintiff then sent a “Request to Staff” message to the associate warden on August 27, 2019, indicating that she had completed several years of hormone therapy and requesting the gender-affirming surgery (id.; doc. 1-3 at 14). The plaintiff also submitted other various messages to staff during this time frame, including a message that the refusal to process her request for gender-affirming surgery was a violation of the law; a request for a comprehensive mental and medical health assessment to determine which treatments and services would properly aid in her transition, feminine image projecting, and GD symptoms; a request for voice feminization; and messages noting that her hormone therapy was ineffective in treating her symptoms and indicating that she suffered from "thoughts of self-harm, suicide, and castration" (docs. 1, compl. ¶¶ 26-30; 1-3 at 17-25).
In a journal entry dated May 26, 2020, the plaintiff wrote that Dr. Laxton, a psychologist at FCI Williamsburg, informed her that the TEC had decided that she would be sent to a low security facility in 12 months as the next step of her transition, with hopes of subsequently transferring her to a women's facility after one year in the low security facility (doc. 1-3 at 26, 28). The plaintiff documented that she told Dr. Laxton that her not receiving the treatment she needs for another year was "a major violation of the law" (id. at 26). The plaintiff also "assured Dr. Laxton that at this time I am under control - that as she knows - my symptoms are cyclical depending upon untold factors/triggers" (id.). Further, on June 2, 2021, more than one year after the plaintiff's conversation with Dr. Laxton, Dr. Figueroa and Dr. Laxton informed the plaintiff that, because of COVID-19, she would not be transferred to a low security facility (id. at 29). The plaintiff was also not provided any information about what the next step in the process would be (id.). The plaintiff submits that Dr. Figueroa and Dr. Laxton's reliance on COVID-19 as a reason for not transferring her to a low security facility was false because COVID-19 was in low transmission around this time but in a higher transmission when she was subsequently transferred in February 2022 (id.; doc. 49 at 6).
On February 19, 2021, the plaintiff met with Dr. Hoey, who documented that the plaintiff was "doing well clinically," was in a good mood, and did not report suicidal ideations (doc. 1-3 at 30). Dr. Hoey also documented as follows:
All labs and recent medical information was shared with pt. at length; this in preparation for discussion of "Gender Reassignment Surgery" being requested. It was explained quite candidly and objectively to pt. that [gender-affirming surgery] is, for all intents and purposes, an elective, non-life saving, essentially cosmetic surgery being requested in a 70 year old, though "well" individual; [s]he agrees with this assessment, but is willing to assume the risk/benefit ratio as explained in detail to [her]. (She) appears to be very rational and thoughtful regarding this request, and has exhausted all administrative remedies so far available, according to 01/12/2021 response from Regional Director, SERO, and has
been directed to pursue further efforts via HSU. Therefore, Surgical Consult will be written, to be addressed by RMD.(Id.).
On June 4, 2021, the plaintiff sent a follow-up inquiry to Dr. Hoey regarding the status of the surgical consult request (doc. 1-3 at 31). Dr. Hoey replied, "Psychology staff should be able to aid with direction at this point. If not then the [assistant warden] may be able to help" (id.). The plaintiff asserts that she then reached out to psychology staff, and Dr. Figueroa and Dr. Laxton informed her that they do not assess requests for medical procedures (doc. 1, compl. ¶ 36). The plaintiff thereafter delivered a request to the associate warden on June 25, 2021, but she never received a response (id.).
During this time period, the plaintiff was also seeking gender-affirming surgery through the BOP's formal administrative remedy program. On May 18, 2020, the plaintiff filed a "Documentation of Informal Resolution Attempt" form regarding not being provided with gender-affirming surgery and alleging that not being provided with this surgery put her in "imminent danger of self[-]harm, genital castration, and suicide" (doc. 1-4 at 2). In response, FCI Williamsburg staff referred the plaintiff for a mental health assessment, which resulted in another increase to her mental health care level from level one to level two (id.). However, it was determined that suicide watch was not warranted (id.). On June 3, 2020, the plaintiff filed a formal request for administrative remedy, asserting that the BOP was being deliberately indifferent to her GD because she was seeking gender-affirming surgery, and the hormone therapy was an inadequate treatment for her symptoms (id. at 4). The warden responded on June 19, 2020, stating that pursuant to the BOP's guidelines, all requests for gender-affirming surgery must be sent to the Transgender Clinical Care Team ("TCCT"), a multi-disciplinary group of BOP personnel with transgender subject matter expertise, for a determination as to whether such treatment is appropriate for any specific inmate (id. at 5; doc. 29-2 at 5). On June 28, 2020, the plaintiff filed a regional administrative remedy appeal, again asserting deliberate indifference because her request for gender-affirming surgery "has been/is being refused or denied" (doc. 1-4 at 6). The BOP's response was issued on January 12, 2021, and stated that the plaintiff should have medical staff raise her request with the TCCT (id. at 7). The plaintiff then filed a central office administrative remedy appeal on February 9, 2021, again asserting deliberate indifference because "my request for gender[-]affirming surgery has been/is being denied" (id. at 8). The BOP's response was issued on April 6, 2021, and noted that the plaintiff's request had been reviewed by the TEC as to whether transferring her to a female facility as part of her transition would be appropriate but that the TEC determined that the plaintiff was appropriately housed at her current facility (id. at 9). The response indicated that this determination was based on a consideration of numerous factors, including the plaintiff's health and safety, her behavioral history, her overall demeanor, her likely interactions with other inmates, whether placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution, and whether the plaintiff had made significant progress towards transition as demonstrated by her medical and mental health history (id.). The plaintiff was informed that the TEC had requested further information from FCI Williamsburg and would continue to review her for a possible future transfer to a lesser security facility (id.). In February 2022, after the filing of her complaint here, the plaintiff was transferred to a low security facility at FCI Butner (doc. 27 at 1).
C. Procedural History
The plaintiff filed her complaint in this action on September 22, 2021, alleging a claim of deliberate indifference in violation of her Eighth Amendment rights against Michael Carvajal, the director of the BOP; Warden Mendoza; K. Nolte, the health services administrator at FCI Williamsburg; Dr. Hoey; Nurse Davis; Dr. Figueroa; and Dr. Laxton in their official capacities (doc. 1, compl.). The plaintiff seeks a declaration that the defendants' actions and omissions violated her constitutional rights; an injunction ordering the defendants to provide her with treatment and services, including feminizing products and clothing and gender-affirming surgery; a jury trial on all issues; her costs incurred during this matter; and any additional relief that the court deems just, proper, and equitable (id.). On February 28, 2022, the defendants filed a motion to dismiss (doc. 29). On March 1, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if she failed to respond adequately (doc. 30). The plaintiff filed a response on March 17, 2022 (doc. 33), and the defendants filed a reply on April 7, 2022 (doc. 41). The plaintiff filed a sur-reply on April 18, 2022 (doc. 49). Accordingly, this matter is now ripe for review.
In Bivens actions, while plaintiffs may not seek monetary damages against federal officers in their official capacities, plaintiffs may seek injunctive relief. See Ross v. Meese, 818 F.2d 1132, 1134-35 (4th Cir. 1987); Gardner v. Janson, C/A No. 5:19-2616-CMC, 2021 WL 4472800, at *2 (D.S.C. Sept. 30, 2021) (citations omitted); Muhammad v. Ramirez, C/A No. 2:17-cv-02639-PMD-MGB, 2018 WL 4957388, at *3 (D.S.C. June 25, 2018) (citations omitted), R&R adopted by 2018 WL 4292322 (D.S.C. Sept. 10, 2018).
II. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" 'short and plain statement of the claim showing the pleader is entitled to relief,' in order to 'give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff." Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). ”[T]he facts alleged 'must be enough to raise a right to relief above the speculative level' and must provide 'enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
"In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document "was integral to and explicitly relied on in the complaint," and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)); see also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) ("In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also 'consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'") (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). Rule 12(d) states: "If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d).
B. Attached Documents
Here, the plaintiff attached to her complaint copies of the Manual, the Medical Management Guidance, some medical records, messages to staff members regarding gender-affirming surgery, an incident report and disciplinary hearing documentation related to her cutting herself, journal entries, and grievances she filed and responses she received related to this matter (docs. 1-1; 1-2; 1-3; 1-4). In addition, because the plaintiff's copies of the Manual and the Medical Management Guidance were out of date, the defendants attached updated copies to their motion to dismiss (docs. 29-1; 29-2). The defendants also attached a copy of the WPATH Standards of Care (doc. 29-3). The undersigned will consider the documents submitted by the plaintiff, as they were attached to and incorporated into her complaint. See E.I. du Pont, 637 F.3d at 448. Moreover, "[consideration of a document attached to a motion to dismiss ordinarily is permitted only when the document is integral to and explicitly relied on in the complaint, and when the plaintiffs do not challenge [the document's] authenticity." Zak v. Chelsea Therapeutics Intern., Ltd., 780 F.3d 597, 606-607 (4th Cir. 2015) (citations and internal quotation marks omitted). Because the defendants have merely provided updated copies of the Manual and the Medical Management Guidance; the plaintiff referenced, relied on, and based her claims on the defendants' failure to meet the WPATH Standards of Care; all of the documents submitted by the defendants are publicly available; and the plaintiff has not challenged any of the documents' authenticity, the undersigned will also consider the documents attached to the defendants' motion to dismiss.
C. Exhaustion
In her complaint, the plaintiff requests gender-affirming surgery and feminizing products and clothing, but she also mentions throughout that she did not receive voice feminization or a comprehensive treatment plan to determine which treatments and services would aid in her transition (doc. 1, compl. ¶¶ 27-28, 44). The defendants do not dispute that the plaintiff exhausted her administrative remedies with regard to her claim that they violated her rights by failing to grant her request for gender-affirming surgery but argue that the plaintiff has failed to exhaust her claims regarding voice feminization, feminizing products and clothing, or a comprehensive treatment plan (docs. 29 at 13-16; 41 at 7-8). The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things, that prisoners exhaust their administrative remedies prior to filing civil actions concerning prison conditions under § 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). "[T]he PLRA's exhaustion requirement is mandatory," Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358 (4th Cir. 2017), and "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). "Pursuant to § 1997e(a), the exhaustion requirement is applicable to Bivens claims." Hill v. O'Brien, 387 Fed.Appx. 396, 399 (4th Cir. 2010) (citations omitted).
The PLRA requires "proper exhaustion" of available administrative remedies prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court of the United States has noted, "[a]ggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons," whether it be concerns about efficiency or "bad faith." Id. at 89-90. This is especially true in a prison context. Id. at 90 n.1. Nevertheless, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91.
However, "an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered unavailable when: (1) "it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) it is "so opaque that it becomes, practically speaking, incapable of use"; or (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross v. Blake, 578 U.S. 632, 643-44 (2016).
As set out above, the plaintiff attached to her complaint copies of her grievances and the responses (doc. 1-4 at 2-9). A review of these documents reflects that she never mentioned a request for voice feminization, feminizing products and clothing, or a comprehensive treatment plan. Instead, the plaintiff's grievances make clear that she was requesting gender-affirming surgery. Specifically, the plaintiff provided that she had requested gender-affirming surgery on multiple occasions, the hormone therapy that she was receiving was inadequate, and the denial of this surgery violated her Eighth Amendment rights (id.). The plaintiff concluded her grievances with statements such as, "Relief Requested: Gender Affirming Surgery" and "Please provide gender affirming surgery" (id. at 3, 4). The administration's responses to the plaintiff's grievances indicate that they also interpreted these requests for gender-affirming surgery: "This is in response to your Request for Administrative Remedy, dated June 3, 2020, in which you request gender-affirming surgery"; "This is in response to your Regional Administrative Remedy receipted July 1, 2020. You allege you are diagnosed with gender dysphoria and needlessly suffer with symptoms because the BOP has refused your request for gender affirming surgery. As relief, you are requesting the surgery in question"; and "This is in response to your Administrative Remedy Appeal wherein you request gender affirming surgery" (id. at 5, 7, 9).
The plaintiff argues that she exhausted her claim that the defendants violated her constitutional rights by not providing her with voice feminization, feminizing products and clothing, or a comprehensive treatment plan through her statements in her grievances that "These courts and the BOP recognize the [WPATH Standards of Care] as authority on medical treatment of gender dysphoria yet this institution refuses or fails to provide treatment consistent with those standards in violation of the Eighth Amendments prohibition against cruel and unusual punishment" (docs. 1-4 at 4, 6, 8; 33 at 3, 9-10). However, the undersigned declines to find that the plaintiff's reference to the WPATH Standards of Care availed her of every possible remedy provided for in that document. Rather, "[t]he relief requested must be reasonably clear from the assertions in the grievance." Aten v. S.C. Dep't of Corrs., C/A No. 3:17-cv-00874-PMD-KDW, 2018 WL 4560564, at *3 (D.S.C. June 13, 2018), R&R adopted by 2018 WL 4178445 (D.S.C. Aug. 31, 2018). Because the plaintiff never raised a request for voice feminization, feminizing products and clothing, or a comprehensive plan in any of her grievances and therefore never alerted the BOP to those purported wrongs, the BOP was never given an opportunity to consider or resolve the issues through the grievance process prior to this suit. See Jones, 549 U.S. at 219 ("We have identified the benefits of exhaustion to include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record."); Woodford, 548 U.S. at 89 ("Exhaustion gives an agency an opportunity to correct its own mistakes with respect to the programs it administers before it is hauled into federal court, and it discourages disregard of [the agency's] procedures.") (citation and internal quotation marks omitted). Therefore, the undersigned finds that the plaintiff has failed to exhaust her claims seeking relief based on voice feminization, feminizing clothing and products, and a comprehensive treatment plan and recommends that the district court dismiss those claims.
D. Deliberate Indifference
The plaintiff alleges that the defendants were deliberately indifferent to her serious medical needs because they have delayed and denied her gender-affirming surgery (doc. 1, compl. ¶ 23). The Supreme Court of the United States has extended Bivens to encompass Eighth Amendment claims of deliberate indifference to serious medical needs. See Carlson v. Green, 446 U.S. 14, 18-19 (1980). Under the Eighth Amendment, prisoners have the right to receive adequate medical care while incarcerated. See Scinto v. Stansberry, 841 F.3d 219, 236 (4th Cir. 2016). When a prison official demonstrates "deliberate indifference" to an inmate's serious medical needs, a constitutional violation occurs under the Eighth Amendment. See id.; Estelle v. Gamble, 429 U.S. 97, 101-06 (1976). To state a claim for deliberate indifference to serious medical needs, a prisoner must show that he had a serious medical need and that officials knowingly disregarded that need and the substantial risk it posed. King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017). A "serious medical need" is a condition "diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Heyer, 849 F.3d at 210 (citation omitted). An official acts with deliberate indifference if he had actual knowledge of the prisoner's serious medical needs and the related risks, but nevertheless disregarded them. See Scinto, 841 F.3d at 225-26.
The undersigned finds that, at this stage of the litigation, the plaintiff's allegations reflect that her GD and a need for protection from self-harm could constitute serious medical needs. Regarding GD, the defendants submit that they do not dispute that the plaintiff has GD, which requires medical treatment (doc. 41 at 7). Further, as set out above, the Manual defines GD as a “mental health diagnosis” that involves “strong and persistent cross-gender identification” and “persistent discomfort” (doc. 29-1 at 3). The Medical Management Guidance also defines GD as “discomfort or distress caused by a person's gender assigned at birth” and further provides as follows:
Transgender adults with GD are at an increased risk of suicidal ideation and suicide prior to initiation of their gender transition, regardless of the clinical endpoint of their transition - whether that endpoint is living as the psychologically identified gender, hormone therapy, cosmetic treatments, breast augmentation/removal, and/or sex reassignment surgery. For many individuals, the risk of suicide may decrease after receiving the appropriate, individual treatment.(Doc. 29-2 at 6-7). While the Fourth Circuit has not squarely addressed this question, many other circuits have recognized GD as a serious medical need. See Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019); Mitchell v. Kallas, 895 F.3d 492, 499 (7th Cir. 2018); Kothmann v. Rosario, 558 Fed.Appx. 907, 911 (11th Cir. 2014); Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014). Moreover, the plaintiff has alleged that she is "needlessly suffering] from both morbid and comorbid symptoms of gender dysphoria and [is] in imminent danger of self[-]harm, genital castration, and suicide," her hormone therapy has been ineffective in reducing or alleviating her symptoms, she "need[s] help," and "she lives with constant strong urges of suicide and self[-]harm" (docs. 1, compl. ¶ 29; 1-4 at 2-4; 33 at 12). Additionally, the Fourth Circuit has found that a protection from self-harm, in some circumstances, constitutes a serious medical need. See De'lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013) ("De'lonta II") (finding that a transgender inmate had stated a serious medical need of protection against continued self-mutilation sufficient to survive screening under 28 U.S.C. § 1915A when she repeatedly attempted to castrate herself in an effort to perform a makeshift gender-affirming surgery); De'lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) ("De'lonta I") (same) (citing Lee v. Downs, 641 F.2d 1117, 1121 (4th Cir.1981) (explaining that "prison officials have a duty to protect prisoners from self-destruction or self-injury")). The defendants argue that this matter is distinguishable from De'lonta I and De'lonta II because, in those cases, the plaintiff repeatedly attempted self-castration, but the plaintiff here only engaged in self-harm on one occasion (doc. 29 at 21-22) (citing Morris v. Fletcher, 311 F.Supp.3d 824 (W.D. Va. May 2, 2018)). However, unlike Morris, which was decided on a motion for summary judgment, the undersigned cannot make a similar determination at the motion to dismiss stage without the benefit of discovery or the entirety of the plaintiff's relevant medical records. Moreover, the plaintiff has submitted some evidence that she has cut her arms, been placed on suicide watch, her mental health care level has been increased from level one to level two, and she has had "thoughts of self-harm, suicide, and castration" (docs. 1, compl. ¶¶ 18, 20, 28-30; 1-3 at 10, 19-25). In light of this, the undersigned cannot conclude that the plaintiff has failed to allege a serious medical need of GD and protection from self-harm sufficient to state a claim of deliberate indifference that is plausible on its face.
Moreover, the plaintiff contends that the defendants were deliberately indifferent to her serious medical needs. The plaintiff has presented evidence that the defendants were aware of her GD and the symptoms that she was experiencing and provided her with hormone therapy and psychological counseling, in accordance with the Manual, the Medical Management Guidance, and the WPATH Standards of Care. However, these policies also provide for, in some circumstances, allowing an inmate to live in his or her preferred gender prior to advancing the inmate's request for surgery.
Here, the plaintiff alleges that the defendants have been engaging in a "'moving of the goal posts or kicking the can down the road' delay tactic" (doc. 33 at 13). It is well established that delay of medical treatment can constitute deliberate indifference to serious medical needs. See Estelle, 429 U.S. at 104-05 (holding that deliberate indifference can be demonstrated by "intentionally denying or delaying access to medical care."); Sharpe v. S.C. Dept of Corrs., 621 Fed.Appx. 732 (4th Cir. 2015) ("A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain.") (quoting McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)). Moreover, the plaintiff has alleged that she has been requesting gender-affirming surgery since 2017; she satisfied the hormone therapy criteria for transfer to another facility pursuant to the Manual, the Medical Management Guidance, and the WPATH Standards of Care by at least 2018; after years of requesting surgery, the defendants informed her on May 26, 2020, that they would transfer her to a low security facility in hopes of subsequently transferring her to a women's facility, but they made her wait 12 months prior to the transfer; after waiting for 12 months, the defendants informed her in June 2021 that they could not transfer her due to COVID-19, yet this reason was false because COVID-19 was in a low transmission at that time; the defendants did not inform the plaintiff what the next step in the process would be; and, after she filed her complaint, the defendants then transferred her to a low security facility in February 2022, when COVID-19 was at a higher transmission. As set out above, the plaintiff also alleges that, during this time, she has been needlessly suffering the symptoms of GD and has been experiencing constant strong urges of suicide and self-harm. While the defendants may have valid explanations for their actions, the undersigned finds that, accepting the plaintiff's allegations as true and liberally construing her pro se complaint - which the court must do at this stage - the plaintiff has stated a claim for deliberate indifference that is plausible on its face based on the defendants' delay in providing her with treatment, particularly considering her allegations that she first requested surgery in 2017 and had completed one year of hormone therapy by at least 2018 but was not transferred to a low security facility until 2022.
The defendants argue that the plaintiff has received continuous, multifaceted medical and psychological treatment for her GD and has alleged, at most, a disagreement with the course of her care (doc. 29 at 17). Specifically, the defendants submit that they have provided the plaintiff with hormone therapy and regular psychological treatment; they did not ignore her requests for surgery, as seen through their responses to her grievances and her appointments with Nurse Smith on August 26, 2019, with Dr. Laxton on May 26, 2020, and with Dr. Hoey on February 19, 2021; and she has now been transferred to a low security facility (id. at 18-20). However, as set forth in De'lonta II:
We do, of course, acknowledge that Appellees have provided De'lonta with some measure of treatment to alleviate her GID symptoms. But just because Appellees have provided De'lonta with some treatment consistent wit the GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment.708 F.3d at 526 (emphasis in original) (citations omitted). Accordingly, the undersigned recommends that the district court deny the defendants' motion to dismiss. It is worth making clear, however, that the undersigned's recommendation is limited to the conclusion that the plaintiff's claim that the defendants have been deliberately indifferent to her serious medical needs by delaying the treatment and process for obtaining surgery outlined in the Manual, the Medical Management Guidance, and the WPATH Standards of Care is sufficiently plausible to survive the defendants' motion to dismiss at this stage of the litigation and does not purport to decide the merits of her claims or suggest the remedy to which the plaintiff would be entitled to if she were to prevail.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the court recommends that the defendants' motion to dismiss (doc. 29) be granted for failure to exhaust as to the plaintiff's deliberate indifference claims for voice feminization, feminizing products and clothing, and a comprehensive treatment plan but be denied as to the plaintiff's deliberate indifference claim for gender-affirming surgery.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).