JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff, a transgender state prisoner also known as Fatima Shabazz, is proceeding with appointed counsel on a first amended complaint ("FAC") for Eighth Amendment medical indifference and Fourteenth Amendment equal protection claims against defendants Coffin, Cryer, Lewis, and Sundaram, while defendant Farrell is sued for medical indifference under the Eighth Amendment. Pending now are defendants' motion for summary judgment for failure to exhaust administrative remedies (Doc. 53) and plaintiff's motion to amend (Doc. 56).
For the reasons set forth below, plaintiff's motion to amend will be DENIED. Also, the Court will recommend that defendants' motion for summary judgment be DENIED.
The plaintiff alleges that at all relevant times, she was a state prisoner incarcerated at California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California. Plaintiff claims that she is a transgender woman
Plaintiff initiated this action on August 13, 2015. By order dated September 14, 2015, the Court screened plaintiff's complaint and dismissed it with leave to amend for failure to state a claim. (Doc. 8.) Plaintiff then filed the FAC, which the Court found to state claims under the Eighth Amendment for medical indifference and under the Fourteenth Amendment for violation of equal protection against Coffin, Cryer, Lewis, and Sundaram, and an Eighth Amendment claim for medical indifference solely against Farrell. (Doc. Nos. 16, 19.)
On January 12, 2017, defendants filed a motion to dismiss and argued that the FAC fails to state a claim, her claims are moot in light of recent changes to the DOM, and/or her claims are barred because she is a class member in
Defendants filed an answer on October 30, 2017 (Doc. 49), and a discovery and scheduling order issued thereafter. (Doc. 50.)
By order dated December 26, 2017, the previously-assigned magistrate judge determined that the appointment of counsel for plaintiff was warranted. (Doc. 52.) Attorney Carter C. White was appointed to represent plaintiff.
Approximately one month later, the defendants filed the pending motion for summary judgment for plaintiff's failure to exhaust his administrative remedies for her Fourteenth Amendment equal protection claim against Coffin, Cryer, Lewis, and Sundaram. (Doc. 53.) Plaintiff opposes this motion on the merits and seeks leave to amend/supplement the FAC. (Doc. Nos. 55, 56, 69.) Defendants oppose the motion to amend. (Doc. 64.)
Plaintiff moves the court for leave to amend pursuant to Federal Rule of Civil Procedure 15(d) and has submitted a proposed second amended complaint ("SAC").
Plaintiff names 29 defendants in the SAC: (1) Scott Kernan, Secretary of the CDCR, who "has ultimate responsibility and authority for the operation of the CDCR, including the administration of health care and the execution of policies governing medical care," (2) Dr. Raymond Farrell, CSATF Psychologist, (3) Dr. Raymond J. Coffin, CSATF Chief Psychologist, (4) Clarence Cryer, CEO of the CSATF Medical Department, (5) J. Lewis, Deputy Director of Policy and Risk Management at California Correctional Health Care Services ("CCHCS"), (6) Dr. J. Sundaram, a Primary Care Physician ("PCP") at CSATF, (7) Katherine Tebrock, CDCR Deputy Director, Statewide Mental Health Program, who "is responsible for appointment members of CDCR's Sex Reassignment Surgery Review Committee ("SRSRC"), (8) Dr. Ricki Barnett, CDCR Deputy Director of Medical Services and "responsible for appointing members of the SRSRC," and (9) Dr. Jeffrey Carrick, Deputy of Medical Executive Utilization Management and Chair of the Headquarters Utilization Management Committee ("HUM").
Plaintiff then names several members of the HUM who are alleged to have denied her medically necessary surgery: (10) Dr. Arun Vasudeva, (11) Dr. Grace Song, (12) Dr. David Ralston, (13) Dr. Jasdeep Bal, (14) Dr. Meet Boparai, (15), Dr. Elizabeth Dos Santos Chen, D.O., CDCR Chief Medical Officer for the Southern Region of Clinical Support, (16) Dr. Felix Igbinosa, (17) Dr. Steven Tharatt, (18) Dr. Renee Kanan, and (19) Dr. Lesley Carmichael.
Plaintiff also names several members of the SRSRC who are alleged to have denied plaintiff medically necessary surgery: (20) John Lindgren, (21) Dr. Michael Golding, (22) Dr. Richard Gray, (23) Dr. Michael Lee, (24) Dr. Laura Ceballos, Ph.D., CCPH (25) Dr. Amy Eargle, Ph.D. CCPH, (26) Kim Cornish, (27) Daniel Ross, a CDCR Captain, and (28) Thomas Bzoskie. Lastly, plaintiff names (29) the CDCR itself.
Plaintiff, a transgender inmate, suffers from gender dysphoria and has been living as a woman for most of her adult life. Plaintiff has been housed at CSATF since October 2012. Around March 2013, plaintiff met with CSATF physician Dr. Alphonso to request treatment for her gender dysphoria. Dr. Alphonso referred plaintiff to CSATF's endocrinologist, Dr. Pawan Kumar, who met with plaintiff on April 23, 2013, and explained to plaintiff that she would first need to be diagnosed with Gender Dysphoria Disorder ("GDD") before being treated for it. Dr. Kumar referred plaintiff for a Mental Health appointment for an official evaluation.
On April 23, 2013, and May 15, 2013, plaintiff met with defendant Dr. Farrell for a psychological evaluation where plaintiff discussed her history of identifying as a female and her illicit hormone treatment for her gender dysphoria.
On July 19, 2013, after consultation with Dr. Coffin, Dr. Farrell produced her official report from this meeting. At the time, the only training Dr. Farrell and Dr. Coffin had regarding treatment of transsexual patients was a one-day seminar. Dr. Farrell's report excluded certain statements made by plaintiff about wanting to be a woman and it misclassified plaintiff's sexual orientation. Dr. Farrell then incorrectly diagnosed plaintiff as not having Gender Identity Disorder, writing that plaintiff "denied ever having any discomfort with his gender." He recommended that plaintiff engage in a year-long psych-education treatment program (the "Program"), after which she could be re-assessed for hormone replacement therapy.
On October 21, 2013, plaintiff filed a 602 Health Care Appeal challenging Dr. Farrell's report and diagnoses. In response, plaintiff was interviewed on November 25, 2013 by Dr. Coffin, who granted in part plaintiff's appeal but still required plaintiff to complete the Program.
For months, plaintiff repeatedly asked to be placed in the mandatory sessions for the Program but was ignored. On March 17, 2014, plaintiff filed another 602 Health Care Appeal to begin the sessions so that she could eventually be placed on hormone therapy. Dr. Coffin partially granted the appeal on April 28, 2014, explaining that plaintiff has not started the Program sessions because Dr. Coffin had delayed in completing the Gender Identity Report. On September 21, 2014, plaintiff began hormone therapy to treat her gender dysphoria.
On March 29, 2015, plaintiff filed a Health Services Request Form to speak with CDCR's transgender specialist doctor, but plaintiff's PCP, Dr. Sunduram, denied the request and would not allow plaintiff to meet with any specialist for her gender and sexuality issues.
On an unspecified date, Lewis upheld the policy prohibiting sex reassignment surgery ("SRS") to treat gender dysphoria.
On August 7, 2015, a settlement was reached in
After the
In March 2016, plaintiff requested female gender appropriate clothing and cosmetics. This request was denied by CDCR because the policy at the time did not authorize plaintiff to have the requested items.
In June 2016, CDCR adopted regulations that would allow transgender inmates and inmates with symptoms of gender dysphoria to have access to authorized personal property in accordance with their gender identities. The new regulations also established the Transgender Inmates Authorized Personal Property Schedule, which lists personal care/hygiene items for transgender prisoners. These regulations were re-adopted in April 2017.
The medical community has recognized that SRS is a viable treatment for patients with gender dysphoria. While some individuals with gender dysphoria do not need this, for others surgery is essential and medically necessary. For this latter group, relief from gender dysphoria cannot be achieved without modification of their primary and/or secondary sex characteristics, including SRS, breast implants, facial reshaping, and voice modification surgery.
On May 24, 2016, CDCR updated its guidelines for medical treatment for patients with gender dysphoria. The regulations at issue, however, explicitly state that vaginoplasty is not a medically necessary surgery even though it makes exceptions for women with cystocele and rectocele. In addition, plaintiff is subjected to the year-long Program to become eligible for sexual reassignment treatment, but this Program does not exist within CDCR policy.
On July 28, 2016, plaintiff submitted yet another request for SRS. On February 27, 2017, individuals on the HUM and its subcommittee, the SRSRC, reviewed and denied plaintiff's request. These committees were under the supervision and control of defendants Barnett, Tebrock, and Does 1-25.
On March 15, 2017, plaintiff filed a 602 appeal of the HUM's decision and noted that her endocrinology treatment has left her at a toxic level of estrogen hormones, twice that of a normal woman. Plaintiff again sought a referral for SRS. This appeal was denied by the HUM on September 1, 2017.
Based on the foregoing, plaintiff seeks to assert the following claims: (1) an Eighth Amendment medical indifference claim for failure to provide necessary medical treatment beyond hormone therapy, (2) a Fourteenth Amendment equal protection claim for failing to provide proper medical treatment in the form of vaginoplasty on the basis of her transgender status, (3) a Fourteenth Amendment equal protection claim for failing to provide plaintiff access to personal items approved and available to prisoners in female institutions on the basis of gender and transgender status, (4) discrimination on the basis of disability in violation of the Americans with Disabilities ("ADA") and the Rehabilitation Act by denying her adequate and necessary medical treatment, denying proper and reasonable training to custody and health staff, and depriving plaintiff of programs and activities in a manner that is detrimental to her health, and, finally, (5) violation of the Affordable Care Act, 42 U.S.C. § 18116, for the CDCR's continued discrimination against plaintiff on the basis of sex when they deny her adequate and necessary medical treatment on the basis of sex stereotyping and/or a belief that people who are assigned the male sex at birth should display only stereotypically male characteristics, behaviors, and dress.
Plaintiff seeks declaratory and injunctive relief. She also seeks costs and attorneys' fees.
Because some of plaintiff's claims arise from actions "that occur[ed] subsequent to the filing of the complaint," plaintiff seeks leave to amend and supplement her pleading pursuant to Federal Rule of Civil Procedure 15(d).
Under Fed. R. Civ. P. 15(a), a party may amend a pleading once as a matter of course within 21 days of service, or if the pleading is one to which a response is required, 21 days after service of a motion under Rule 12(b), (e), or (f). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2).
Granting or denying leave to amend a complaint is in the discretion of the Court,
When determining whether to grant leave to add new parties, the Court is required to consider whether the new parties are properly joined. Parties must be joined if the court cannot provide complete relief otherwise or adjudicating the issues without the new party could impair the new party's interests or risks double, multiple or inconsistent obligations. Fed.R.Civ.P. 19.
Parties may be joined if the right to relief arises out of the same transaction, occurrence or series of transactions or occurrences and there is a common question of law or fact will be determined in the action. Fed.R.Civ.P.20. If new parties are added, the Court may order separate trials as necessary "protect a party against embarrassment, delay, expense, or other prejudice that arises." Fed.R.Civ.P. 20(b).
Plaintiff's proposed SAC includes the addition of new defendants and new claims. It also identifies several Doe defendants who participated in the HUM and SRSRC decision to deny plaintiff's request for SRS. Plaintiff argues that her motion should be granted because there has not been undue delay, amendment is not futile, and the newly added claims are predicated on the same alleged conduct of the defendants.
Defendants oppose the motion, arguing that the supplemental claims are unrelated to the prior allegations since they are premised on CDCR's revised guidelines regarding SRS, which present distinct questions of fact than those based on the CDCR's prior policy and the individual defendants' conduct based thereon. Defendants argue that any contention by plaintiff that the new claims arise out of the same series of transactions or occurrences is undermined by the implementation of CDCR's new policy, which breaks the chain of events. Defendants next argue that the addition of new claims and defendants would not promote judicial economy or efficiency considering the procedural posture of this action and the length of time since it has been filed. They also argue that they would be prejudiced by allowing the unrelated claims to proceed here since the defendants' actions under the old policy would likely color the jury's consideration of the defendants' actions under the new policy. Lastly, they argue that the addition of any new claims would be futile since they amount to a mere difference of medical opinion.
In her Reply, plaintiff disputes each of these contentions, arguing, inter alia, that (1) there will not be any jury confusion since a jury will not determine any facts in this case because she seeks declaratory and injunctive relief only, (2) this case does not amount to a mere difference of medical opinion; instead, it is an action by a transgender inmate seeking appropriate treatment for her gender dysphoria, and (3) the facts alleged in the proposed SAC are premised—as are the facts in the FAC—on the defendants' delay and/or denial of appropriate treatment for plaintiff's gender dysphoria.
The amended complaint seeks to add 18 additional defendants—expanded from the five who are currently defendants in this action. (Doc. 67-1) In neither her motion nor in her reply, does the plaintiff address the standards for joinder of the new defendants. The plaintiff does not contend that the new defendants must be joined under Rule 19 and the Court agrees that complete relief can be afforded without doing so. The tougher question is whether the new defendants may be joined under Rule 20.
Undoubtedly, the plaintiff has been denied the surgeries she seeks to address her gender dysphoria. This denial is ongoing. However, the reasons for the denial are vastly different. In 2015, she was denied the surgeries because she had not been taking female hormones provided by the prison for 12 months and because the CDCR policy did not allow inmates to have them. (Doc. 12 at 18; Doc. 67-1 at 8) In 2017, though the policy changed to allow the surgeries, the plaintiff was again denied the surgeries by the new defendants. The plaintiff does not allege any facts to explain why she was denied the surgeries in 2017 (Doc. 67-1 at 8).
The Court does not find that the new allegations related to the new defendants arise out of the same transaction, occurrence or series of transactions or occurrences. The operative complaint demonstrates that the plaintiff was not considered for surgery because the CDCR policies precluded this consideration. The new allegations demonstrate that the new defendants considered her for the surgeries but denied them nonetheless. This demonstrates also that the operative complaint and the second amended complaint present different questions of law and fact.
Defendants move for summary judgment for failure to exhaust administrative remedies on plaintiff's equal protection claim.
The court must grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact.
If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence supporting its claims or defenses.
Generally, when a defendant moves for summary judgment on an affirmative defense on which he bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial.
In ruling on a motion for summary judgment, inferences drawn from the underlying facts are viewed in the light most favorable to the non-moving party.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence.
"No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory.
For a remedial procedure to be "available" it must exist both in law and, in actual practice, be "capable of use to obtain some relief for the action complained of."
The State of California provides its inmates and parolees the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies, a prisoner must proceed through three formal levels of appeal and receive a decision from the Secretary of the CDCR or his designee.
Plaintiff filed several appeals before initiating this action but only one is relevant to the Court's analysis.
On April 3, 2015, plaintiff submitted a Patient-Inmate Health Care Appeal CDCR 602 Form, SATF HC 15061336 ("Appeal 1336"), complaining as follows:
Decl. of S. Gates in Supp. of Defs.' Mot. Summ. J. Ex. B (Doc. 53-1 at 11-14) (misspellings and stylized capitalizations in original). By way of relief, plaintiff sought "the surgeries necessary, which included (but are not limited to), Sexual Reassignment, Breast Augmentation, as well as Facial Femenization and Vocal Femenization [sic]."
Appeal 1336 was bypassed at the first level of review and denied at the second level of review by defendant Cryer on April 23, 2015, because plaintiff had not yet completed one year of continuous hormone treatment. Gates Decl. Ex. B (Doc. 53-1 at 15-16).
Plaintiff appealed the denial on May 7, 2015, claiming that he had taken illicit hormones before his incarceration that should count towards the one-year of continuous hormone treatment. Gates Decl. Ex. B (Doc. 53-1 at 12).
On May 27, 2015, defendant Lewis denied plaintiff's grievance at the Director's Level of Review because his unmonitored hormone therapy prior to incarceration could not be verified and thus did not count towards the one-year minimum for hormone therapy. Gates Decl. Ex. B (Doc. 53-1 at 9-10).
Defendants move for summary judgment on plaintiff's equal protection claim and argue that she failed to exhaust administrative remedies. They argue that Appeal 1336 does not serve to exhaust this claim because it does not address any policy regarding the availability of vaginoplasty for female inmates as opposed to transgender inmates. Indeed, Appeal 1336 does not make any reference to "equal protection" or the availability of vaginoplasty to some but not other CDCR inmates. They also argue that Appeal 4695 could not have served to exhaust plaintiff's administrative remedies because it was not submitted and a final decision was not received until after plaintiff initiated this case. Defendants have thus met their burden to demonstrate that plaintiff did not properly exhaust those remedies as to her equal protection claim based on the availability of vaginoplasty for female inmates but not transgender inmates.
Generally, the amount of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures.
Cal. Code Regs. tit. 15, § 3084.2(a)(3-4).
The institutional regulations required plaintiff to include sufficient facts to give notice of her claim. Defendants are correct that Appeal 1336 concerns a SRS but does not reference a vaginoplasty or an equal protection violation. Nonetheless, plaintiff is also correct that she was not required to use legal terminology or phrases like "equal protection" or "discriminatory on the basis of gender or transgender status" in her grievance to have exhausted her administrative remedies.
In
In contrast, in this case the wrong identified by plaintiff in Appeal 1336 was the denial of the SRS—a necessary component of which is a vaginoplasty—and related surgeries, and the relief that she sought was the SRS and those other surgeries. As
For these reasons, the Court finds that Appeal 1336 was sufficient to exhaust plaintiff's administrative remedies as to her equal protection claim and will therefore recommend that defendants' motion for summary judgment be denied. The undersigned makes no findings at this procedural posture as to whether plaintiff exhausted her available remedies for any claims related to the new policy.
Based on the foregoing, the Court
1. Plaintiff's motion to amend and supplement (Doc. 56) is
The Court also
1. Defendants' motion for summary judgment for failure to exhaust administrative remedies (Doc. 53) be
The findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 21 days after being served with the findings and recommendations, the parties may file written objections with the Court pursuant to Federal Rule of Civil Procedure 72. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." A party may respond to another party's objections by filing a response within 21 days after being served with a copy of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
