Opinion
Civil Action 6:21-3053-JD-KFM
05-03-2024
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
Thomas E. Rogers, III United States Magistrate Judge
This matter is before the court on the defendants' motion for summary judgment (doc. 126). The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, seeks injunctive and declaratory relief. 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.
I. BACKGROUND AND FACTS PRESENTED
The plaintiff is a 73-year-old transgender woman currently serving a life sentence at Federal Correctional Institution Aliceville ("FCI Aliceville") in Aliceville, Alabama (docs. 1 ¶ 12; 98 at 1; 126-1, Noble decl. ¶ 4). The plaintiff filed suit against Michael Carvajal, the former director of the Bureau of Prisons (“BOP”), and officials at Federal Correctional Institution Williamsburg (“FCI Williamsburg”) in Salters, South Carolina, based on the lack of medical treatment she has received for her gender dysphoria ("GD") (doc. 1).
The undersigned will refer to the plaintiff by her preferred pronoun of she/her.
A. The BOP's Policies
By statute, the BOP possesses discretion over decisions regarding the classification and designation of inmates to a particular prison facility. 18 U.S.C. § 3621(b). The BOP “may designate any available penal or correctional facility that meets minimum standards of health and habitability . . . that the Bureau determines to be appropriate and suitable, considering” among other items, “the resources of the facility contemplated,” “the nature and circumstances of the offense,” and “the history and characteristics of the prisoner.” Id.
Ashley Noble (“Dr. Noble”), the BOP's National Policy and Program Coordinator, testified in her declaration that the BOP also considers Program Statement 5100.08, Inmate Security and Custody Classification (“Program Statement 5100.08”) when designating inmates (doc. 126-1, Noble decl. ¶ 11). The undersigned takes judicial notice of Program Statement 5100.08. Fed.R.Evid. 201(b); Program Statement 5100.08 (located at https://www.bop.gov/mobile/policy/). Program Statement 5100.08 directs the Designation and Sentence Computation Center (“DSCC”), a unit within the BOP, to assess various factors when making a designation decision, including (1) the level of security and supervision the inmate requires, (2) the level of security and staff supervision the institution is able to provide, and (3) the inmate's program needs (Program Statement 5100.08 at ch.1 p.1; doc. 126-1, Noble decl. ¶ 11). Other factors to be considered include as follows:
the inmate's release residence; the level of overcrowding at the institution; any security, location or program recommendation made by the sentencing court; any Central Inmate Monitoring issues; any additional security measures to ensure the protection of victims/witnesses and the public in general; and, any other factor(s) which may involve the inmate's confinement,
the protection of society, and/or the safe and orderly management of a BOP facility.(Program Statement 5100.08 at ch.1, p.1-2).
Specifically regarding transgender inmates, the Code of Federal Regulations directs that “[i]n deciding whether to assign a transgender . . . inmate to a facility for male or female inmates, . . . the [BOP] shall consider on a case-by-case basis whether placement would ensure the inmate's health and safety, and whether the placement would present management or security problems.” 28 C.F.R. § 115.42(c). This regulation further directs the BOP to assess transgender inmates' placement and programming assignments twice yearly to review any threats to safety experienced by a transgender inmate. Id. § 115.42(d).
In addition, the BOP has promulgated a Transgender Offender Manual that provides guidance on various aspects of managing transgender inmates (docs. 1-1 at 2-19; 126-2 at 2-15). There have been several versions of this T ransgender Offender Manual, two of which were filed in this case (see docs. 1-1; 126-2). The plaintiff attached a Transgender Offender Manual dated May 11, 2018 (“2018 Manual”) to her complaint, and the defendants attached a Transgender Offender Manual dated January 13, 2022 (“2022 Manual”) to their motion for summary judgment (docs. 1-1 at 2; 126-2 at 2). The 2022 Manual indicates that it rescinded the 2018 Manual (doc. 126-2 at 2). As a result, the 2018 Manual is applicable to activity in this case from May 11,2018, until January 12, 2022, and the 2022 Manual is applicable to activity on and after January 13, 2022.
Both Manuals state that GD is "a mental health diagnosis currently defined by the 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'" (docs. 1-1 at 6; 126-2 at 3). Moreover, “[n]ot all transgender inmates will have a diagnosis of GD" (docs. 1-1 at 6; 126-2 at 3). The Manuals also outline the different groups within the BOP responsible for addressing various aspects of transgender inmates' needs (docs. 1-1 at 2, 7-8; 126-2 at 4-6). For example, the 2018 Manual discusses a Transgender Executive Council (“TEC”), which consists of staff members from various divisions within the BOP (doc. 1-1 at 8). The 2018 Manual states that the TEC will meet a minimum of quarterly to offer advice and guidance on the treatment and management of transgender inmates (id.). The 2018 Manual also provides for a Transgender Clinical Care Team (“TCCT”), which is comprised of various medical professionals who offer advice and guidance to BOP health services staff on the medical treatment of transgender inmates with GD (id. at 7). Similarly, the 2022 Manual states that the TEC is comprised of staff members from various divisions in the BOP and is the BOP's “official decision-making body on all issues affecting the transgender population” (doc. 126-2 at 5). The 2022 Manual states that the TEC will meet a minimum of monthly to offer advice and guidance on the treatment and management of transgender inmates with GD (id.).
Regarding transgender inmate housing designations, the 2018 Manual provides that a warden may recommend to the TEC that a transgender inmate be transferred to a gender-affirming facility (doc. 1-1 at 3-4). In reviewing such recommendation from a warden, the TEC will consider various factors related to the inmate and the facility, including the health and safety of the transgender inmate, factors specific to the transgender inmate, and whether placement would threaten the security and management of the institution or pose a risk to other inmates in the institution (id.). The 2018 Manual states that “[t]he designation to a facility of the inmate's identified gender would be appropriate only in rare cases after consideration of all of the above factors and where there has been significant progress towards transition as demonstrated by medical and mental health history, as well as positive institution adjustments” (id. at 4). The 2022 Manual likewise provides that when a transgender inmate requests a transfer “related to progressing the individual inmate's transition (i.e., transfer to a different sex facility),” the TEC conducts a case-by-case review and considers whether the inmate placement would jeopardize the inmate's well-being or present management or security concerns (doc. 126-2 at 7-8). The 2022 Manual states that prior to the TEC considering the case, the warden will submit documentation to the TEC showing that “the inmate has met the minimum standards of compliance with programs, medications, and mental health treatment, and [is] meeting hormone goal levels” (id. at 8). 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 submission on a case-by-case basis by the Warden, as appropriate” (id.). Dr. Noble testified in her declaration that when transferring inmates, the inmates typically do not “skip” security levels as they move down (doc. 126-1, Noble decl. ¶ 12). Accordingly, an inmate may not transfer directly from a higher security male facility to a lower security female facility without first being transferred to a lower security male facility and showing a period of clear conduct (id.). All of the BOP's general population female facilities are low or minimum security (id.).
Further, both Manuals provide that BOP 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 (docs. 1-1 at 12; 126-2 at 10). Both Manuals also state that “[h]ormone therapy or other medical treatment may be provided after an individualized assessment of the requested inmate by institution medical staff” (docs. 1-1 at 12; 126-2 at 9). Medical staff will request consultation from psychology services regarding the mental health benefits of hormone or other medical treatment, and hormone treatment will be provided if it is appropriate for the inmate (docs. 1-1 at 12; 126-2 at 9).
Regarding gender-affirming surgery, the 2018 Manual does not provide any explicit guidance (see doc. 1-1). However, the 2022 Manual states that “[f]or transgender inmates in Bureau custody, 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” (doc. 126-2 at 10). Once that one-year period has elapsed, an inmate may submit a request for surgery to the warden of his or her facility, who in turn will forward the request to the TEC (id.). “The TEC is the sole body who may determine that all milestones and individual goals for surgical consideration have been met” (id.). If the TEC makes a recommendation that the inmate has met all milestones and individual goals, the case is referred to the BOP's medical director, who reviews all of the records, conducts interviews, and provides an individualized assessment of whether surgery is medically appropriate for the inmate (id.). If the medical director determines that gender-affirming surgery is appropriate, the medical director will refer the matter to a surgeon (id.).
Dr. Noble testified in her declaration that the requirement of twelve months in a gender-affirming facility “is intended to allow time for an inmate to adjust, socially transition, and consolidate one's gender identity in relationship to peers” (doc. 126-1, Noble decl. ¶ 17). Dr. Noble further testified as follows:
The twelve-month requirement also allows [the] BOP to evaluate whether the inmate will be able to successfully stay in gender[-]affirming housing long term. This is crucial from a correctional perspective given the need to house the inmate safely and securely. After receiving gender[-]affirming surgery, a transgender female would by necessity be housed in a female facility, as housing a post-surgery transgender female inmate in a male facility would present a number of safety and security concerns. However, [the] BOP has learned through experience that not all transgender women adapt successfully to female facilities. In some cases, transgender women have behaved in ways that made it unsafe to maintain them in a female facility and they have had to return to a male facility. In other cases, they have requested to return to a male facility, due to the stress they experience in a female facility. Accordingly, [the] BOP needs time to evaluate whether such placement in a female facility will itself pose any safety and security concerns, prior to an irreversible surgery being conducted.(Id.).
The BOP also promulgated the Medical Management of Transgender Inmates Guidance (“Medical Management Guidance”) in December 2016, which provides guidance on the appropriate medical treatment of transgender inmates (doc. 1-2 at 14-23). The plaintiff has attached a document to her response to the defendants' motion for summary judgment indicating that the Medical Management Guidance was revised in June 2023 (doc. 133 at 48). The plaintiff has also attached the revised guidance, which is entitled GenderAffirming Care of Transgender and Gender Nonbinary Persons (“Gender-Affirming Care Guidance”) (id. at 49-58). As a result, the Medical Management Guidance is applicable to the activity in this case from December 2016 until May 2023, and the Gender-Affirming Care Guidance is applicable to the activity from June 2023 until the present.
The Medical Management Guidance states that “[t]he treatment and management of the [transgender] individual requires individualized care guided by treatment goals to allow for successful transition through education, counseling, real-life experience, medical evaluation, hormone treatment, and in some cases, sex reassignment surgery” (doc. 1-2 at 10). 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.). Requests for gender-affirming surgery are submitted to the TCCT for initial review and recommendation to the medical director, who is the approving authority (id.).
Similarly, the Gender-Affirming Care Guidance states that “[after 12 months of living in the identified gender at the gender-affirming institution or original institution if the [transgender] patient does not request transfer, compliance with continuous genderaffirming hormone treatment and with documentation of persistent gender incongruence, the patient may benefit from lesser/non-invasive gender treatment modalities or invasive/complex gender confirmation surgery” (doc. 133 at 56). “For invasive/complex gender confirmation surgery - the warden at the respective institution will first request an administrative review by the TEC” (id.). “The TEC determines whether general administrative criteria for gender confirming surgery is met and refers the case to the Medical Director for a medical review” (id.). The medical director will request a review by the Transgender Utilization Review Advisory Group, who will clinically review a surgical referral packet (id.). If the inmate meets the clinical criteria for surgery, a memorandum will be sent to the medical director, who is the final authority (id.). If the medical director approves the transgender inmate for surgery, the medical director will refer the inmate to a surgeon (id.). The surgeon will then evaluate the inmate for readiness and medical stability for the complex surgery (id.). Both the Medical Management Guidance and the Gender-Affirming Care Guidance state that “[b]ecause untreated or under-treated GD is associated with increased morbidity and mortality . . ., screening for GD in [transgender] individuals is essential. Without treatment, this population may experience higher rates of depression, anxiety, self-harm, and suicidality” (id. at 50; doc. 1-2 at 10).
Additionally, the World Professional Association for Transgender Health ("WPATH"), an independent organization, has published various versions of Standards of Care ("WPATH Standards of Care"). Both the Medical Management Guidance and the Gender-Affirming Care Guidance cite to the WPATH Standard of Care (docs. 1-2 at 14; 133 at 57), and the Court of Appeals for the Fourth Circuit has recognized that the WPATH Standards of Care are "modern accepted treatment protocols for [GD].” Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 595 (4th Cir. 2020) (citations omitted); see also De'lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013) (relying on the WPATH Standards of Care as laying out the "generally accepted protocols for the treatment of [GD]"). The undersigned takes judicial notice of the WPATH Standards of Care. Fed.R.Evid. 201(b); WPATH Standards of Care (located at https://www.wpath.org/publications/soc). These Standards of Care purport to provide "flexible” guidelines for health professionals to assist with promoting optimal health care and guidance for transgender individuals (SOC V7 at 2; SOC V8 at ¶ 3). The WPATH Standards of Care note that health professionals may modify these guidelines (SOC V7 at 2; SOC V8 at ¶ 3). Version 7 of the WPATH Standards of Care was published in 2012 and addressed with regard to the defendants' motion to dismiss, but Version 8 of the WPATH Standards of Care was published in September 2022 (doc. 29-3; SOC V8 at 2).
With respect to gender-affirming surgery, Version 7 of the WPATH Standards of Care recognizes that genital surgery "is often the last and most considered step in the treatment process for gender dysphoria" (SOC V7 at 54). Version 7 outlines criteria for certain operations in female transgender patients, one of which includes the following:
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 60). Version 7 states that the criteria that transgender individuals live twelve 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" (id. at 61). Moreover, Version 7 notes that "[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.).
Version 8 of the WPATH Standards of Care, however, provides the following “suggested criteria” for gender-affirming surgery in adults:
a. Gender incongruence is marked and sustained;
b. Meets diagnostic criteria for gender incongruence prior to gender-affirming surgical intervention in regions where a diagnosis is necessary to access health care;
c. Demonstrates capacity to consent for the specific gender-affirming surgical intervention;
d. Understands the effect of gender-affirming surgical intervention on reproduction and they have explored reproductive options;
e. Other possible causes of apparent gender incongruence have been identified and excluded;
f. Mental health and physical conditions that could negatively impact the outcome of gender-affirming surgical intervention have been assessed, with risks and benefits have been discussed;
g. Stable on their gender-affirming hormonal treatment regime (which may include at least 6 months of hormone treatment or a longer period if required to achieve the desired surgical result, unless hormone therapy is either not desired or is medically contraindicated).(SOC V8 at ¶ 256).
B. The Plaintiff's Treatment
The plaintiff was first diagnosed with GD in April 2017 (docs. 126-1, Noble decl. ¶ 4; 133 at 3, 6). Shortly thereafter, the BOP's medical providers prescribed the plaintiff hormone therapy to treat her GD symptoms (docs. 126-1, Noble decl. ¶ 4; 133 at 3, 6). The plaintiff also received psychological treatment for her GD (doc. 126-1, Noble decl. ¶ 4). The plaintiff first requested gender-affirming surgery in August 2017 (id.; docs. 1 ¶ 15; 133 at 3).
In March 2018, the plaintiff was transferred to Federal Correctional Institution McKean (“FCI McKean”), a male facility in Pennsylvania (docs. 1 ¶ 17; 126-1, Noble decl. ¶ 4). The plaintiff continued to receive hormone therapy and psychological counseling at FCI McKean (doc. 126-1, Noble decl. ¶ 4). The plaintiff again requested gender-affirming surgery on her arrival to FCI McKean in March 2018, but she claims that she did not receive a response (id.; doc. 1 ¶ 17). On July 29, 2018, the plaintiff was observed by a correctional officer cutting her arms with an unknown object (docs. 1 ¶ 18; 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, a medium security male facility (docs. 1 ¶ 19; 126-2, Noble decl. ¶ 5). The plaintiff continued to receive hormone therapy and psychological counseling for her GD while at FCI Williamsburg (docs. 1 ¶ 20; 126-2, Noble decl. ¶ 5). After she arrived at FCI Williamsburg, the facility's chief psychologist interviewed and assessed the plaintiff (doc. 126-2, Noble decl. ¶ 5).
On August 5, 2019, the plaintiff submitted a request to staff at FCI Williamsburg for gender-affirming surgery (docs. 1 ¶ 21; 1-3 at 12). In response, staff informed the plaintiff that they were "[c]hecking 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 (id. at 13; doc. 1 ¶ 21). 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 a nurse practitioner, on August 26, 2019, to discuss her request for gender-affirming surgery (doc. 1 ¶ 22). During this interview, the nurse practitioner provided the plaintiff with guidance on how to proceed with her request (id.; doc. 126-1, Noble decl. ¶ 5). Based on this guidance, the plaintiff 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 genderaffirming surgery (docs. 1 ¶ 22; 1-3 at 14). The plaintiff also submitted other messages to staff during this time frame, including that the refusal to process her request for genderaffirming surgery was a violation of the law, her hormone therapy was ineffective in treating her symptoms, and she suffered from "thoughts of self-harm, suicide, and castration" (docs. 1 ¶¶ 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 twelve 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). 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 submits that she 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 ¶ 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 given 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 (id.). At this assessment, 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 TCCT 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.).
At the TEC's meeting on January 10, 2022, the TEC recommended that the plaintiff be transferred from FCI Williamsburg to a lower security facility (doc. 126-1, Noble decl. ¶ 12). The plaintiff was transferred from FCI Williamsburg to FCI Butner, a low security male facility, in February 2022 (id.).
On September 1,2022, the plaintiff reported to health services at FCI Butner with a three to four centimeter laceration on her penis (doc. 126-1, Noble decl. ¶ 26). The plaintiff reported that the wound was self-inflicted (id.). The plaintiff was transferred to Duke University Medical Center for evaluation and treatment, and the laceration was surgically repaired (id.). The plaintiff returned to FCI Butner the following day and remained on suicide watch until September 9, 2022 (id.). At that time, the plaintiff was given a full evaluation by a psychologist, who determined that the plaintiff's mental health was stable, forward oriented, and focused on continuing with her current treatment and moving forward with her transition (id.). The plaintiff has been seen at least monthly by the BOP's psychologists since that time (id.).
At the TEC's meeting on October 24, 2022, the TEC discussed the status of the plaintiff's case and request for gender-affirming surgery, and the TEC determined that a transfer to a gender-affirming female facility was appropriate (doc. 126-2, Noble decl. ¶ 13). The TEC made this recommendation even though the plaintiff had only spent approximately eight months at FCI Butner and BOP policy provides that inmates are ordinarily not considered for changes to housing assignments “until they have maintained one year of clear conduct” at their current facility (id.). This recommendation was communicated to the staff at FCI Butner, who informed the plaintiff and began administrative preparations for her transfer (id.). The plaintiff was transferred to FCI Aliceville, a female facility, on January 25, 2023 (id.).
Upon her arrival to FCI Aliceville, the plaintiff was evaluated by BOP psychologists (doc. 126-1, Noble decl. ¶ 28). The plaintiff denied suicidal ideation, intent, or plan, and she presented as future oriented (id.). The plaintiff expressed her desire to spend a year at FCI Aliceville in order to receive gender-affirming surgery (id.). The following day, the plaintiff moved cells without staff permission and then walked out of her unit without permission after being told that she could not change cells (id. ¶ 29). The plaintiff stated to BOP psychologists that she would “do whatever it takes . . . physically” to be removed from the cell and indicated that she would engage in self-injurious behavior (id.). The plaintiff also expressed to BOP psychologists that having a female cellmate was “unacceptable” (id.). The plaintiff was placed on suicide watch and received daily contact with BOP psychologists until she was removed from suicide watch on January 31, 2023 (id.).
The plaintiff had further clinical contacts with BOP psychologists on February 1 and February 7, 2023 (doc. 126-1, Noble decl. ¶ 30). Additionally, in a clinical contact on February 22, 2023, the plaintiff reported that she was adjusting to the institution quite well (id.). During a clinical contact on March 29, 2023, the plaintiff reported that she felt “completely” accepted by other inmates and had a healthy relationship with her cellmate (id.). The plaintiff expressed some concerns about the availability of certain commissary items and stated that she did not like the female uniforms because they were “not feminine” (id.).
On April 10, 2023, the plaintiff was placed on suicide watch again after she was found in a holding cell with elastic from the waistband of her pants tied around her neck, which was also attached to the door (doc. 126-1, Noble decl. ¶ 31). The plaintiff received daily contact with BOP psychologists until her removal from suicide watch on April 12, 2023 (id.). The plaintiff had follow-up clinical contacts with BOP psychologists on April 19 and April 26, 2023 (id.).
The plaintiff was placed on suicide watch again on May 23, 2023, following an incident where she tied her shoelaces around her neck in a holding cell (doc. 126-1, Noble decl. ¶ 32). The plaintiff also refused meals starting on May 25, 2023, until resuming food intake on May 30, 2023 (id.). The plaintiff was seen daily by BOP psychologists until her removal from suicide watch on June 5, 2023 (id.). The plaintiff had a follow-up clinical contact with BOP psychologists on June 9, 2023 (id.). Notes from a BOP psychologist on June 8, 2023, reflect that the plaintiff “has a significant history of self-directed violence, suicide attempts, and suicide watch admissions” (doc. 133 at 25). This BOP psychologist also made a notation that the plaintiff had a “chronic suicide risk,” a “serious mental illness,” and six “suicide risk assessments in the last 12 months” (id.).
The plaintiff had additional clinical contacts with BOP psychologists on July 18 and July 30, 2023 (doc. 126-1, Noble decl. ¶ 33). The plaintiff denied mental health concerns and reported good relations with her cellmate (id.). The plaintiff also expressed that she had reflected about the different types of gender-affirming surgeries and reported that she was interested in “minimal depth vaginal surgery” (id.). Between December 2019 and July 2023, the TEC discussed the plaintiff's case on twenty occasions (id. ¶ 9). Dr. Noble testified in her declaration that going forward, the TEC will continue to communicate with the plaintiff's treatment staff and the executive staff at FCI Aliceville as needed to ensure the appropriate management of her case and that the plaintiff will continue to have access to the TEC through the use of a TEC mailbox (id. ¶ 34).
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, all in their official capacities (doc. 1). The plaintiff sought 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.). The plaintiff's claims for voice feminization and a comprehensive treatment plan, however, were previously dismissed based on her failure to exhaust her administrative remedies as to those claims (doc. 65 at 7-8).
Of note, the plaintiff indicated in her complaint that she was seeking relief pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (doc. 1 at 1, 9). However, because she sues the defendants in their official capacities for injunctive and declaratory relief, the plaintiff's claims do not fall under Bivens (see docs. 1 at 1; 33 at 2, 8-9). See Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) ("[A] Bivens action does not lie against either agencies or officials in their official capacity."). Accordingly, the plaintiff's claims are construed as deliberate indifference claims for injunctive and declaratory relief pursuant to the Eighth Amendment, over which the court has federal question jurisdiction. See 28 U.S.C. § 1331; Strickland v. United States, 32 F.4th 311,363-66 (4th Cir. 2022) (discussing the Larson-Dugan exception and noting that "parties can seek to enjoin federal officials in their official capacities from exceeding the scope of their authority or acting unconstitutionally."); Washington v. Fed. Bureau of Prisons, C/A No. 5:16-03913-BHH-KDW, 2019 WL 2125246, at *9 (D.S.C. Jan. 3, 2019) (recognizing that "there is an available injunctive relief remedy for constitutional violations against the BOP under § 1331 . . . ."), R&R adopted by 2019 WL 1349516 (D.S.C. Mar. 26, 2019). However, even construing the plaintiff's complaint as raising deliberate indifference claims pursuant to Bivens, dismissal would still be appropriate because the analysis for the plaintiff's official capacity deliberate indifference claims is the same as that of Bivens deliberate indifference claims. See, e.g., Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)); Alvarado v. Fed. Bureau of Prisons, C/A No. 0:22-1723-JD-PJG, 2023 WL 4089490, at *4-6 (D.S.C. May 10, 2023).
On August 31, 2023, the defendants filed a motion for summary judgment (doc. 126). On the same date, 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. 127). The plaintiff filed a response on October 16, 2023 (doc. 133), and the defendants filed a reply on October 30, 2023 (doc. 137). Accordingly, this matter is now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
B. Deliberate Indifference
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); see Pfaller v. Amonette, 55 F.4th 436, 445 (4th Cir. 2022) ("Because adequate ... medical care is a basic condition of humane confinement, a prison official's deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.") (internal citations and quotation marks omitted). “A prison official's duty under the Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials' unenviable task of keeping dangerous [individuals] in safe custody under humane conditions." Farmer v. Brennan, 511 U.S. 825, 844-45 (1994) (internal citations and quotation marks omitted).
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. United States 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.
Not "every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the Eighth Amendment." Estelle, 429 U.S. at 105. Rather, the treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), abrogated on other grounds by Fidrych v. Marriott Int'l, Inc., 952 F.3d 124 (4th Cir. 2020). Mere negligence, malpractice, or incorrect diagnosis is not actionable. See Estelle, 429 U.S. at 106. Moreover, "[a]n inmate's mere disagreement with the course of treatment provided by medical officers will not support a valid Eighth Amendment claim." Jackson v. Sampson, 536 Fed.Appx. 356, 357 (4th Cir. 2013) (citation omitted). "Under the applicable legal principles, a significant delay in the treatment of a serious medical condition may, in the proper circumstances, indicate an Eighth Amendment violation." Webb v. Hamidullah, 281 Fed.Appx. 159, 166 (4th Cir. 2008). "An Eighth Amendment violation only occurs, however, if the delay results in some substantial harm to the patient." Id.
Here, the defendants do not dispute that the plaintiff has serious medical needs but rather argue that the plaintiff has failed to establish that they were deliberately indifferent to those needs, and therefore, she is not entitled to injunctive relief (doc. 126 at 14-22). The undersigned agrees that the plaintiff has shown that a reasonable jury could conclude that her GD and a protection from self-harm are serious medical needs. Further, the undersigned agrees that, under the circumstances presented here, the plaintiff has not shown that a reasonable jury could conclude that the defendants provided her with constitutionally inadequate medical care.
The record reflects that the defendants have provided the plaintiff with hormone therapy since shortly after her GD diagnosis, as well as regular psychological treatment. The plaintiff has undergone numerous suicide risk assessments, and the plaintiff's medical records reflect lengthy summaries of her mental health and suicide risk histories and the BOP's actions to prevent her from engaging in self-harm (see doc. 133 at 25-32). Moreover, the plaintiff has been placed on suicide watch multiple times and was seen on at least a daily basis by psychologists while on suicide watch (id.). The plaintiff also asserts that she takes medication for her "depressive symptoms" (id. at 13). In addition, the TEC has conducted an individualized assessment of the plaintiff's case and approved actions to advance the plaintiff towards satisfying the BOP's policy eligibility requirements for gender-affirming surgery. Specifically, the TEC recommended that the plaintiff be transferred from FCI Williamsburg, a medium security male facility, to FCI Butner, a low security male facility, in preparation for transferring the plaintiff to a low security female facility. As set out above, Dr. Noble testified that an inmate may not transfer directly from a higher security male facility to a lower security female facility without first being transferred to a lower security male facility and showing a period of clear conduct. The plaintiff subsequently received this transfer to FCI Butner. Further, after the plaintiff spent eight months at FCI Butner, the TEC recommended that the plaintiff be transferred to FCI Aliceville, a female facility, on October 24, 2022. The TEC made this recommendation even though the 2022 Manual provides that the TEC does not ordinarily consider a transfer request related to an inmate's transition until the inmate has maintained one year of clear conduct at her current institution (doc. 126-2 at 8). The plaintiff was subsequently transferred to FCI Aliceville on January 25, 2023. While not all of the policies mandate that transgender inmates spend one year at a gender-affirming facility prior to consideration for gender-affirming surgery, the 2022 Manual provides that "[f]or transgender inmates in Bureau custody, 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" (id. at 10). As Dr. Noble explained, this twelve-month period also comports with the BOP's need to house inmates safely and securely (doc. 126-1, Noble decl. ¶ 17). Moreover, the TEC has considered the plaintiff's case twenty times in the last four years.
In sum, the defendants have provided the plaintiff with regular medical and psychological care for her GD and self-harm and are actively taking steps to make her eligible for consideration for gender-affirming surgery. Based on the foregoing, the undersigned finds that the plaintiff's treatment has not been "so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness,” Miltier, 896 F.2d at 851, and the plaintiff's belief that she should have already received gender-affirming surgery is not evidence that the defendants have been deliberately indifferent to her serious medical needs.
The plaintiff argues that the defendants were deliberately indifferent because they did not fully comply with their own policies (doc. 133 at 8-11). However, federal officials' "failure to follow BOP policy does not establish a constitutional violation." Rowls v. Mackelburg, C/A No. 0:20-979-DCN-PJG, 2020 WL 13739255, at *2 (D.S.C. Apr. 27, 2020), R&R adopted by 2021 WL 11133500 (D.S.C. Sept. 8, 2021); see Estate of Riopedre v. United States, C/A No. 8:12-2806-BHH, 2015 WL 505584, at *12 n.12 (D.S.C. Feb. 6, 2015) ("[I]f Plaintiffs are attempting to argue that Defendants were deliberately indifferent to Riopedre by not following BOP's policies and procedures, this claim fails because such allegations are insufficient to articulate a constitutional violation.") (citation omitted); Sanders v. Holder, C/A No. 3:09-3342-CMC-JRM, 2010 WL 1463432, at *3 (D.S.C. Mar. 11, 2010) ("Misapplication or failure to comply with BOP policies or program statements, standing alone, do not amount to constitutional violations.") (citation omitted), R&R adopted by 2010 WL 1463429 (D.S.C. Apr. 12, 2010). In fact, even "knowingly violating a prison policy does not amount to deliberate indifference." King v. Riley, 76 F.4th 259, 267 (4th Cir. 2023) (citing Rich v. Bruce, 129 F.3d 336, 339-40 (4th Cir. 1997) (applying Farmer to hold that an officer was not deliberately indifferent despite knowingly violating prison regulations)). Accordingly, the plaintiff's argument is without merit.
The plaintiff further argues that the defendants were deliberately indifferent because they did not fully comply with the WPATH Standards of Care (doc. 133 at 5, 7). However, although the WPATH Standards of Care are recognized as being "modern accepted treatment protocols for [GD]," Grimm, 972 F.3d at 595, courts within this circuit have never held that the BOP must precisely follow the Standards of Care in their entirety to avoid being deliberately indifferent to a transgender inmate's serious medical needs. In fact, both Version 7 and Version 8 of the Standards of Care recognize that they are intended to be "flexible" guidelines that health professionals may modify (SOC V7 at 2; SOC V8 at ¶ 3). Specifically regarding gender-affirming surgery, Version 8 states that the eligibility criteria are "suggested" (SOC V8 at 256). Moreover, the treatment that the BOP provided the plaintiff is similar to the treatment outlined in the WPATH Standards of Care. Further, the medical field is rapidly changing regarding the proper treatment for transgender individuals, which can be seen by the many policies and standards that were rescinded and updated just during the pendency of this case. As a result, the undersigned declines to find that the defendants were deliberately indifferent to the plaintiff's GD or her need for protection from self-harm because they did not fully comply with the entirety of the WPATH Standards of Care.
The plaintiff also appears to argue that the defendants have been deliberately indifferent to her serious medical needs because she has engaged in a castration attempt and suicide attempts, but the defendants have "persisted in a course of failed medical treatment" (doc. 133 at 6, 12-13). However, as discussed at length above, the medical records reflect that the defendants have provided regular and ongoing medical and psychological care to the plaintiff, through hormone therapy, medication, psychological treatment, suicide risk assessments, and being placed on suicide watch. The defendants have also been advancing the plaintiff's request for gender-affirming surgery pursuant to their policies. Accordingly, short of not providing the plaintiff with gender-affirming surgery, the defendants have provided the plaintiff with consistent treatment for her GD and mental health conditions, and the undersigned finds that this treatment is constitutionally adequate.
The plaintiff also cites to De'lonta, 708 F.3d 520, in support of her claim (doc. 133 at 20-21). In that case, a transgender inmate filed suit against state corrections officials, arguing that their failure to consider her for gender-affirming surgery, when viewed against the backdrop of her medical history and circumstances, constituted deliberate indifference to her serious medical needs. Id. at 523-24. However, unlike the present case, the court in De'lonta did not decide the plaintiff's claim at the summary judgment stage but rather found that the plaintiff had stated a plausible claim of deliberate indifference sufficient to survive screening under 28 U.S.C. § 1915A. Id. at 523-27. Further, the plaintiff in De'lonta alleged that her request for gender-affirming surgery had never been evaluated. Id. at 525. Here, however, the TEC has considered the plaintiff's case twenty times in the last four years and has taken steps to advance the plaintiff's towards eligibility for gender-affirming surgery. Accordingly, to the extent that the plaintiff is arguing that she is entitled to relief pursuant to De'lonta, her arguments are without merit.
It is also worth noting that the Supreme Court of the United States has stated that courts must use "caution" in issuing injunctions in the prison context and should not "enmesh[]" themselves "in the minutiae of prison operations." See Farmer, 511 U.S. at 846-47; see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010) ("An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course."); Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) ("[C]ourts are not to be in the business of running prisons.") (citations and internal quotation marks omitted); Wetzel v. Edwards, 635 F.2d 283, 288 (4th Cir. 1980) (discussing the complexities of running a penal institution and the reluctance of federal courts to interfere in the problems of prison administration).
Under the circumstances presented here, the undersigned finds that the plaintiff has failed to show that a reasonable jury could conclude that the defendants not yet providing the plaintiff with gender-affirming constitutes deliberate indifference to her serious medical needs. See, e.g., Gibson v. Collier, 920 F.3d 212, 221-26 (5th Cir. 2019) (holding that it was not deliberate indifference for prison officials to reject inmate's request for gender-affirming surgery where prison officials provided inmate with mental health counseling and hormone therapy for her GD); Kosilek v. Spencer, 774 F.3d 63, 82-96 (1st Cir. 2014) (holding that a prison's decision not to provide gender-affirming surgery did not violate the Eighth Amendment where the prison provided other treatment options); but see Edmo v. Corizon, Inc., 935 F.3d 757, 785-98 (9th Cir. 2019) (affirming a lower court's grant of an injunction ordering the defendants to provide an inmate with gender-affirming surgery when the inmate met her burden by providing multiple medical experts who opined that gender-affirming surgery was medically necessary). Therefore, the undersigned recommends that the district court grant the defendants' motion for summary judgment.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the court recommends that the defendants' motion for summary judgment (doc. 126) be granted.
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).