Opinion
CA 9:22-cv-04247-DCC-MHC
05-31-2023
Sofia Cano, Plaintiff, v. South Carolina Department of Corrections; Bryan P. Stirling, Dr. Chris Kunkle, Esther Labrador, and Dr. Andrew Hedgepath, in their individual and official capacities; Dr. John Taylor, William Langdon, McKendley Newton, Terrie Wallace, Salley Elliott, Kenneth L. James, Netra Adamas, Pamela Derrick, Dr. Robert Ellis, Dr. Jennifer Block, Timothy Green, Chelsea Johnson, Yvonne Wilkins-Smith, Shawanda Washington, and Does 1-5, in their individual capacities; Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
Plaintiff Sofia Cano, represented by counsel, brings this action alleging claims pursuant to 42 U.S.C. § 1983; the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; the Rehabilitation Act, 29 U.S.C. § 794a; and the Affordable Care Act, 42 U.S.C. § 18116. ECF No. 1. In her Complaint, Plaintiff alleges that she is a 20-year-old transgender woman in the custody of Defendant South Carolina Department of Corrections (“SCDC”). In December 2020, an SCDC doctor diagnosed Plaintiff with gender dysphoria. Plaintiff alleges that despite her diagnosis, Defendants continue to deny Plaintiff medically necessary gender-affirming care.
Before the Court is Defendants' Partial Motion to Dismiss Portions of Plaintiff's Complaint. ECF No. 16. Plaintiff filed a Response in Opposition to that Motion, ECF No. 22, and Defendants filed a Reply, ECF No. 27. The matter is ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2) (D.S.C.). Because the Motions are dispositive, this Report and Recommendation is entered for review by the District Judge.
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendants' Motion. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
In her Complaint, Plaintiff alleges that she “is a 20-year-old transgender woman diagnosed with gender dysphoria who has been in the custody of the South Carolina Department of Corrections (‘SCDC') since the age of 17; prior to entering SCDC's custody, [Plaintiff] was in the custody of the Juvenile and Adult Detention Centers in Greenville County since she was 13 years old.” ECF No. 1 at ¶ 1 (further alleging that she “was assigned male at birth but identifies as a woman”).
When she was a preteen, she began experimenting with her gender identity and sensed the misalignment between her assigned sex and her gender identity. ECF No. 1 at ¶ 71. After Plaintiff was arrested at 13, those feelings persisted. Id. at ¶ 72. By the time she was sixteen, Plaintiff knew she was transgender, and, at 18, she began to tell others about her identity. Id. at ¶¶ 73-74. After initially disclosing her identity to SCDC in July 2020, id. at ¶ 75, Plaintiff received a formal diagnosis of gender dysphoria from Dr. Block, an SCDC employee, in December 2020, id. at ¶ 89. Plaintiff alleges that both before and after receiving a formal medical diagnosis, she repeatedly petitioned SCDC staff for help alleviating the suffering wrought by her gender dysphoria. Id. at ¶¶ 77, 80-81, 84, 86, 88, 90, 93-94, 97, 101, 103, 105, 115, 126, 128, 130-31, 135, 144-45, 149.
According to the Complaint, gender dysphoria is a serious medical condition. ECF No. 1 at ¶¶ 43-44. The prevailing medical standards of care-the “Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People” published by the World Professional Association for Transgender Health (“WPATH”)-dictate that accommodations allowing a patient to live in accordance with their gender identity and hormone therapy are necessary when a patient's psychological distress persists. Id. at ¶¶ 45-48.
Under SCDC policy, all inmates are entitled to receive “medically necessary care” when “an existing pathological process threatens the well-being of the inmate over a period of time.” Id. at ¶ 51 (citing SCDC Policy/Procedure, HS-18.15, “Levels of Care,” (Nov. 1, 2007)). Pursuant to that policy, medical care will meet “generally accepted medical standards of the community and will be the most reasonable level of service available for the diagnosis, symptoms, and treatment of the [prisoner's] medical condition.” Id.
The Complaint alleges that SCDC's Policy, GA-06.09, titled “Care and Custody of Transgender Inmates and Inmates Diagnosed with Gender Dysphoria,” (“Trans Inmate Care Policy”) purports to establish guidelines for medically necessary treatment of transgender inmates and inmates diagnosed with gender dysphoria. Id. at ¶ 52. The Trans Inmate Care Policy states SCDC's commitment to providing medically necessary care throughout incarceration, including services in line with generally accepted medical standards, and it incorporates the definition of gender dysphoria as reflected in the DSM-5. Id. at ¶¶ 52-53. Pursuant to the Trans Inmate Care Policy, when SCDC learns of an inmate's trans identity or gender dysphoria diagnosis, SCDC is required to refer the inmate to: (1) the Behavioral and Mental Health Director and the Prison Rape Elimination Act (“PREA”) Coordinator, and for medical and mental health staff to conduct an initial evaluation; and (2) the Multidisciplinary Management and Treatment Team (“MMTT”), which creates an inmate's individualized accommodation plan (“IAP”). Id. at ¶ 54.
Plaintiff alleges that she has a serious case of gender dysphoria that requires treatment in the form of hormone therapy and gender-affirming accommodations. See, e.g., Id. at ¶¶ 90, 96, 99, 134, 136, 152. Plaintiff alleges that Defendants have denied, and continue to deny, her the treatment she requires, including hormone therapy and gender-affirming accommodations.
Plaintiff alleges five causes of action in her Complaint: (1) a claim against all individual Defendants pursuant to 42 U.S.C. § 1983 for deliberate indifference in violation of the Eighth Amendment; (2) a § 1983 claim against all individual Defendants for violation of the Equal Protection Clause of the Fourteenth Amendment; (3) a claim against SCDC for disability discrimination in violation of Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq.; (4) a claim against SCDC for disability discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794a; and (5) a claim against SCDC for disability discrimination in violation of Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116. Plaintiff seeks injunctive and declaratory relief, as well as monetary damages. Id. at 4547.
II. LEGAL STANDARD
Defendants move for partial dismissal of the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. “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)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[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. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not analogous to a “probability requirement,” rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of Plaintiff. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as 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)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
III. DISCUSSION
Defendants move for partial dismissal of the Complaint, seeking dismissal of the following claims: (1) all official capacity claims; (2) any claims for money damages against SCDC; (3) the Eighth Amendment claim only insofar as it is based on hormone therapy; and (4) the Fourteenth Amendment claim alleged against all individual capacity defendants. ECF No. 16. The undersigned addresses each argument in turn.
A. Official Capacity Claims Against Defendants Stirling, Kunkle, Labrador, and Hedgepath
Claims I and II are § 1983 claims for violation of Plaintiff's constitutional rights. To state a § 1983 claim, Plaintiff must demonstrate Defendants, acting under color of state law, deprived her of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001).
Defendants argue that despite the caption of the Complaint asserting that Defendants Stirling, Kunkle, Labrador, and Hedgepath are being sued in both their individual and official capacities, there is no cause of action related to these Defendants in their official capacity. ECF No. 16 at 5. They note that Claims I and II are “[a]gainst all individual Defendants,” while Claims 3, 4, and 5 are “against Defendant SCDC” only. Id. (citing ECF No. 1 at 36-45). They further argue that “these Defendants in their official capacity are considered arms-of-the-state, and therefore, even if Plaintiff had properly pled a claim against them in their official capacities, such claims would be barred from proceeding in this Court pursuant to the Eleventh Amendment.” Id.
In her Response, Plaintiff explains that “Claims I and II are brought against all Individual Defendants, meaning all Defendants except SCDC. This includes all Defendants named in their individual or official capacities.” ECF No. 22 at 22. She notes that “Claims I and II each seek compensatory, declaratory, and injunctive relief,” and clarifies that “[f]or Claims I and II, damages are sought against Individual Defendants in their individual capacities, and prospective relief is sought against Individual Defendants named in their official capacities.” Id. Plaintiff states that she “does not seek damages against any Defendant in their official capacity.” Id.
In their Reply, Defendants state that “Plaintiff appropriately clarifies that Plaintiff is not seeking-nor could she seek-money damages against Official Capacity Defendants.” ECF No. 27 at 2. They argue that even if the first and second causes of action are alleged against Defendants Stirling, Kunkle, Labrador, and Hedgepath in their official capacities-which they dispute-the official capacity claims should be dismissed because they seek monetary damages. Id. at 3.
Upon review, the undersigned finds that the Complaint's prayer for relief seeks both monetary damages as well as injunctive and declaratory relief. See ECF No. 1 at 45-47. Moreover, the undersigned finds that Plaintiff alleged the first two claims against Defendants Stirling, Kunkle, Labrador, and Hedgepath in both their official and individual capacities.
To the extent Claims I and II can be read as requesting an award of damages against those Defendants in their official capacities, the undersigned recommends that Defendants' Motion be granted and any such claim for damages against those Defendants in their official capacities be dismissed. See Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020) (explaining that the Eleventh Amendment to the United States Constitution “generally bars actions for damages against unconsenting States”); see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to actions ‘against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); Quern v. Jordan, 440 U.S. 332, 343 (1979) (Congress has not abrogated the states' sovereign immunity under § 1983); Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (explaining that Eleventh Amendment “immunity extends to . . . state agencies and state officers acting in their official capacity”); Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 379 (D.S.C. 2019) (“Pursuant to the South Carolina Tort Claims Act, SC Code §§ 15-78-10 through 15-78-200, (the ‘SCTCA'), South Carolina has not waived its Eleventh Amendment immunity for lawsuits in federal court[.]”); S.C. Code Ann. § 15-78-20(e).
However, to the extent that these claims seek an award of damages against these Defendants in their individual capacities or an award of injunctive or declaratory relief against these Defendants in their official capacities, the undersigned recommends that the claims be permitted to proceed to discovery. See Cromer, 88 F.3d at 1332 (“Eleventh Amendment immunity does not protect state officials in their official capacities from § 1983 claims for injunctive relief.”); Murray v. S.C. Dep 7 of Corr., No. CV 6:19-0100-RMG, 2020 WL 3603782, at *2 (D.S.C. July 2, 2020) (“[F]ederal courts may enjoin state officials in their official capacities.”) (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)).
B. Claims for Money Damages Against SCDC
Defendants next argue that Plaintiff's request for money damages against SCDC is barred by the Eleventh Amendment. ECF No. 16 at 6. Plaintiff does not respond to this argument, although she expressly pleads in her Complaint that SCDC is not entitled to immunity under the Eleventh Amendment for either the ADA claim or the Rehabilitation Act claim. See ECF No. 1 at ¶¶ 184, 192.
Although the Eleventh Amendment to the United States Constitution generally bars actions for damages against unconsenting States, “this immunity may be abrogated by an appropriate act of Congress.” Fauconier, 966 F.3d at 279 (citing Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)). As explained below, the Fourth Circuit has found that immunity has either been abrogated or is subject to waiver under each of the statutes under which Plaintiff brings claims against SCDC.
1. Claim Under Title II of the ADA
Plaintiff's Complaint asserts a claim for disability discrimination in violation of Title II of the ADA. “In enacting Title II of the ADA, Congress made it specifically applicable to the States and state entities, such as state prisons.” Fauconier, 966 F.3d at 280 (citing Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)). Moreover, while the States are generally immune from private damages actions by reason of the Eleventh Amendment, “the Supreme Court in United States v. Georgia held that ‘insofar as Title II [of the ADA] creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.'” Id. (quoting United States v. Georgia, 546 U.S. 151, 159 (2006)). Defendants do not argue that Plaintiff has failed to state any claim under Title II of the ADA, and, as explained below, the undersigned finds that the Complaint states a claim for violation of the Fourteenth Amendment. Accordingly, the undersigned concludes that SCDC is not entitled to Eleventh Amendment immunity on the ADA claim at this juncture. See id.
2. Claim Under Section 504 of the Rehabilitation Act
Plaintiff's Complaint also asserts a claim for disability discrimination in violation of Section 504 of the Rehabilitation Act. ECF No. 1 at 43-44. The Fourth Circuit has found that a State agency that accepts federal financial assistance waives its immunity to private suits to enforce Section 504 of the Rehabilitation Act. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 496-96 (4th Cir. 2005) (finding that state university “waived its Eleventh Amendment immunity with respect to [plaintiff's] claims for damages under § 504 of the Rehabilitation Act” when it accepted federal funding); see also 42 U.S.C. § 2000d-7(a)(1) (“A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973. . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.”).
Here, Plaintiff alleges that “SCDC receives federal financial assistance for health care services through multiple avenues, including Medicaid, which is funded by both the federal government and the state.” ECF No. 1 at ¶ 188. Defendants do not argue that Plaintiff has failed to state any claim under Section 504 of the Rehabilitation Act. Accordingly, the undersigned finds that SCDC is not entitled to Eleventh Amendment immunity on the Rehabilitation Act claim at this stage of the litigation.
3. Claim Under Section 1557 of the Affordable Care Act
Finally, Plaintiff's Complaint asserts a claim for disability discrimination in violation of Section 1557 of the Affordable Care Act. ECF No. 1 at 41-43. The Fourth Circuit has held that “Section 1557 of the [Affordable Care Act] unequivocally conditions the receipt of federal financial assistance upon a state's waiver of sovereign immunity against suits for money damages,” such that a state agency that receives federal funds “is not immune from suit.” Kadel v. N. Carolina State Health Plan for Tchrs. & State Emps., 12 F.4th 422, 439 (4th Cir. 2021), as amended (Dec. 2, 2021), cert. denied, 142 S.Ct. 861 (2022).
Plaintiff alleges that SCDC is a covered entity under the Affordable Care Act and has received federal financial assistance. ECF No. 1 at 45 ¶ 196. Defendants do not argue that Plaintiff has failed to state any claim under Section 1557 of the Affordable Care Act. Accordingly, the undersigned concludes that SCDC is not entitled to Eleventh Amendment immunity on the Rehabilitation Act claim at this juncture.
C. Plaintiff's § 1983 Claims Against Individual Capacity Defendants
Plaintiff's Complaint asserts two causes of action under 42 U.S.C. § 1983, both stemming from an alleged violation of Plaintiff's constitutional rights afforded under the Eighth and Fourteenth Amendments to the United States Constitution. These § 1983 claims are alleged against all Defendants except SCDC.
1. Eighth Amendment Claim
Defendants seek partial dismissal of Plaintiff's Eighth Amendment claim, only insofar as it is based on an alleged denial of hormone therapy. ECF No. 16 at 7. Under the Eighth Amendment, prisoners have the right to receive adequate medical care while incarcerated. DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018); 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). “When a prison official demonstrates ‘deliberate indifference' to an inmate's serious medical needs, a constitutional violation occurs under the Eighth Amendment.” DePaola, 884 F.3d at 486 (citing Estelle v. Gamble, 429 U.S. 97, 101-06 (1976); Scinto v. Stansberry, 841 F.3d 219, 236 (4th Cir. 2016)). “Courts treat an inmate's mental health claims just as seriously as any physical health claims.” Id. (citing Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977)).
An Eighth Amendment claim for deliberate indifference to serious medical needs includes objective and subjective elements. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). The objective element requires a serious medical condition. Id. A medical condition is objectively serious when it either is “diagnosed by a physician as mandating treatment” or is “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Scinto, 841 F.3d at 225 (quoting Iko, 535 F.3d at 241).
The subjective state of mind required is that of “deliberate indifference . . . ‘to inmate health or safety.'” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (4th Cir. 1994)). Deliberate indifference requires that the official have “had actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by the official's action or inaction.” Jackson, 775 F.3d at 178; Parrish ex. rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (“[D]eliberate indifference requires a showing that the defendants actually knew of and disregarded a substantial risk of serious injury to the detainee or that they actually knew of and ignored a detainee's serious need for medical care.” (quoting Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001))). Deliberate indifference “entails something more than mere negligence but does not require actual purposive intent.” De Zonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (De 'Zonta II) (citation and internal quotation marks omitted); see also Pfaller, 55 F.4th at 445 (citing De'lonta II and explaining that “deliberate indifference is most akin to criminal-law recklessness”).
To state a claim under § 1983 for deliberate indifference to serious medical needs, a prisoner must show that she had a serious medical need and that officials knowingly disregarded that need and the substantial risk it posed. DePaola, 884 F.3d at 486; Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017).
i. The Allegations in the Complaint Are Sufficient to State a Claim.
Upon review of the Complaint, the undersigned finds that Plaintiff has alleged sufficient factual allegations to state a claim for deliberate indifference to a serious medical need. Specifically, Plaintiff alleges that she has been diagnosed with gender dysphoria, a serious medical condition that causes her to suffer from severe psychological distress, including depression and urges to harm herself. ECF No. 1 at ¶¶ 1-2, 4, 89; see also id. at ¶ 88 (describing Plaintiff's attempt at auto-castration with a can lid). She also alleges that a clinical psychologist has stated that Plaintiff is a “fit candidate for hormone therapy and that this treatment is medically necessary.” Id. at ¶ 99. Thus, Plaintiff has alleged that she has a serious medical need.
She also alleges that Defendants knew of this serious medical need and disregarded it and the substantial risk it imposed. Id. at ¶ 3. Specifically, she alleges that despite her gender dysphoria diagnosis from an SCDC psychologist and a letter of support from a clinical psychologist stating that hormone therapy treatment is medically necessary for Plaintiff, SCDC personnel responsible for her care refuse to provide the medical care necessary to treat her condition. ECF No. 1 at ¶¶ 4, 89, 99. Plaintiff alleges that Defendants responded to her “numerous requests for medically necessary hormone therapy by stating she was categorically ineligible because she was not undergoing hormone therapy when she entered SCDC custody.” Id. at ¶ 5. She alleges that SCDC has adopted a “freeze-frame” policy wherein it “refuses to provide hormone therapy treatment to inmates with gender dysphoria unless the inmate was undergoing hormone therapy at the time they entered SCDC custody” or the inmate otherwise pays for the treatment herself. Id. at ¶¶ 6, 92, 95, 104, 113. She further alleges that because of this policy, Defendants have refused to provide an individualized evaluation to determine the medical necessity of hormone therapy for Plaintiff. Id. at ¶¶ 7, 121, 156. She also alleges that she cannot afford to pay “all fees and costs associated with hormone treatment.” Id. at ¶ 109.
Plaintiff specifically alleges that the Individual Capacity Defendants showed deliberate indifference to Plaintiff's serious medical needs in the following ways:
158. Defendants Labrador, Newton, Elliot, James, and Derrick showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, refusing to provide
her with an individualized medical evaluation to determine necessity of hormone therapy after becoming aware of the distress arising from her inability to access it.
159. Defendant James showed deliberate indifference to Ms. Cano's medical needs by, inter alia, responding to the requests for hormone therapy that SCDC's policy disallows provision of hormone therapy to inmates not previously receiving it; then, that Ms. Cano should make her request to Medical; and, finally, that Ms. Cano should execute previously unavailable forms indemnifying SCDC against any liability arising from her efforts to procure hormone therapy.
160. Defendant Derrick showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, responding to her request for an opportunity to be evaluated for hormone therapy and to present Dr. Kleinfelter's letter of support with a statement that SCDC does not “start” hormone therapy without considering whether such treatment is medically necessary in Ms. Cano's case.
161. Defendant Newton showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, responding to her request for hormone therapy with instructions for her to seek an audience with the MMTT-which failed to provide her with medically necessary individualized care in an IAP when Defendant James directed her to Medical but Medical responded that SCDC does not do “cosmetic surgery” and Defendant Derrick responded that SCDC does not “start” hormones- and, thus, failing to ensure that she would receive medically necessary individualized care.
162. Defendants Ellis, Block, Green, and Johnson showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, refusing to authorize gender dysphoria treatment in accordance with the Standards of Care, failing to exercise individualized medical judgment, and instead, reciting SCDC's anti-trans policy regarding hormone therapy.
163. Defendants James and Johnson showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, refusing to authorize gender dysphoria treatment in the form of alternate hair removal products that would not burn Ms. Cano's skin and cause open sores, despite knowing the physical injury and emotional distress available options had caused.
164. Defendants Stirling, Kunkle, Labrador, Hedgepath, Taylor, and Elliot showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, creating, implementing, and enforcing SCDC's de facto freeze-frame policy, which categorically denies certain inmates- including Ms. Cano-medically necessary gender dysphoria treatment on an irrational and arbitrary basis.
165. Defendants Stirling, Kunkle, Labrador, Hedgepath, Taylor, and Elliot showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, ratifying or condoning unconstitutional actions of subordinates, and failing to prevent the continued disregard for Ms. Cano's medically necessary treatment.
166. Defendants Stirling, Kunkle, Labrador, Hedgepath, Taylor, and Elliot showed deliberate indifference to Ms. Cano's serious medical needs by, inter alia, instructing SCDC healthcare personnel-including Drs. Block and Ellis-to not initiate or refer inmates for gender dysphoria treatment and to ignore their professional medical judgment regarding whether treatment was required under the Standards of Care.Id. at ¶¶ 158-66. Plaintiff alleges that as result of Defendants' actions denying her medically necessary care, “she continues to suffer from gender dysphoria, as well as from the resultant depression, emotional distress of foregone treatment, and ideation of self-harm.” Id. at ¶¶ 10, 16769.
The undersigned concludes that these allegations, among others in the Complaint, are sufficient to state an Eighth Amendment claim for deliberate indifference to a serious medical need.
ii. Defendants' Arguments Regarding the Budget Proviso
Defendants argue that “the subjective requirement of the deliberate indifference standard cannot plausibly be met in light of the South Carolina budget proviso that limits SCDC's use of state money for inmate requests for hormone replacement therapy and sexual reassignment surgery.” ECF No. 16 at 9 (citing 2021 S.C. Acts No. 4100, Part 1B, § 65.28). According to Defendants, as a result of the budget proviso, “SCDC-by law-is prohibited from using state funds to initiate new hormone replacement therapy on one of its prisoners claiming gender dysphoria.” Id. at 4. They maintain that to comply with this law, “SCDC's internal policy only allows for the expenditure of state money for hormone replacement therapy whenever the inmate was previously taking hormone replacement therapy at the time of commitment to SCDC.” Id. They further argue that the “Individual Capacity Defendants cannot be accused of deliberate indifference for failing to break state law or for not using their own personal money to fund Plaintiff's desired method of treatment.” Id. at 10. According to Defendants, “the fact that the budget proviso simply exists is at the heart of the Defendants' argument that Plaintiff's 42 U.S.C. § 1983 claims cannot survive a motion to dismiss.” ECF No. 27 at 5. Upon review, the undersigned concludes that the budget proviso does not foreclose Plaintiff's Eighth Amendment claim based on hormone treatment therapy, at least not at this early stage of the litigation.
According to the Complaint, a bill “to prohibit SCDC from using state funds or resources to provide prisoners with sexual reassignment surgery or hormone therapy” was introduced in the South Carolina Senate in 2012 but failed to pass. ECF No. 1 at ¶ 59. Another bill “to prohibit SCDC from using state funds or resources to provide prisoners with sexual reassignment surgery or hormone therapy” was introduced in the South Carolina Senate in 2015 and failed, as well. Id. at ¶ 60.
The Complaint further alleges that in 2013, a state senator introduced an amendment to the South Carolina budget to prohibit SCDC from using state funds or resources to provide inmates sexual reassignment surgery. Id. at ¶ 67. The amendment passed, and the budget proviso has been in South Carolina's appropriations ever since. See id.
The budget proviso, which is titled “Prohibition on Funding Certain Surgery,” states:
(A) The Department of Corrections is prohibited from using state funds or state resources to provide a prisoner in the state prison system sexual reassignment surgery; however, if a person is taking hormonal therapy at the time the person is committed to the Department of Corrections, the department shall continue to provide this therapy to the person as long as medically necessary for the health of the person.
(B) As used in this provision:
(1) ‘Hormonal therapy' means the use of hormones to stimulate the development or alteration of a person's sexual characteristics in order to alter the person's physical appearance so that the person appears more like the opposite gender;
(2) ‘Sexual reassignment surgery' means a surgical procedure to alter a person's physical appearance so that the person appears more like the opposite gender.Id. at ¶ 68; see also 2021 S.C. Acts No. 4100, Part 1B, § 65.28.
According to the Complaint, in SCDC's Fiscal Year 2020-21 Accountability Report, which was signed by Defendant Stirling, the note corresponding with Budget Proviso 65.28 states, “Provide hormonal therapy to inmates as long as medically necessary for the health of the inmate[.]” ECF No. 1 at ¶ 69.
Although Defendants argue that the budget proviso prohibits SCDC from using state funds to provide hormone therapy to Plaintiff, the allegations in the Complaint do not support this argument. According to the Complaint's allegations, the legislature repeatedly declined to enact legislation that would prohibit SCDC from using state funds or resources to provide prisoners with hormone therapy. See ECF No. 1 at ¶¶ 59-60. However, while the legislature declined to prohibit SCDC's use of state funds for hormone therapy, it passed a budget amendment prohibiting the use of funds for sexual reassignment surgery. See Id. at ¶ 67. Interestingly, this budget proviso requires SCDC to use state funds to provide hormone therapy to inmates who were receiving such therapy at the time of their incarceration, so long as it remains medically necessary. See Id. at ¶ 68. However, the budget proviso is silent as to Plaintiff's alleged situation-she is not seeking sexual reassignment surgery, but she also was not receiving hormone therapy at the time she came under SCDC custody.
Based on the legislative history alleged in the Complaint and the express language of the budget proviso prohibiting the use of state funds only for sexual reassignment surgery, the undersigned is not persuaded, at this stage of the litigation, that the budget proviso prohibits Defendants from providing hormone therapy to Plaintiff. See Town of Mt. Pleasant v. Roberts, 713 S.E.2d 278, 283 (S.C. 2011) (“The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.”). Accordingly, the undersigned finds that, contrary to Defendants' arguments, the existence of the budget proviso does not impact Plaintiff's ability to state a claim for deliberate indifference by the Defendants based on hormone therapy.
2. Fourteenth Amendment Claim
Defendants also seek dismissal of Plaintiff's claim for violation of the Equal Protection Clause of the Fourteenth Amendment. Specifically, they argue that Plaintiff has failed to state a viable claim for relief based on hormone therapy and other gender affirming accommodations. ECF No. 16 at 13-17.
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal quotation marks and alteration omitted). “An equal protection violation occurs in one of two ways: (1) when the government explicitly classifies people based on [sex], or (2) when a law is facially neutral, but its administration or enforcement disproportionately affects one class of persons over another and a discriminatory intent or animus is shown.” Monroe v. City of Charlottesville, 579 F.3d 380, 388 (4th Cir. 2009).
“To succeed on an equal protection claim, a plaintiff must first demonstrate that [s]he has been treated differently from others with whom [s]he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). The court then considers “whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id.; see King v. Rubenstein, 825 F.3d 206, 220 (4th Cir. 2016).
Generally, sex-based classifications are subject to intermediate scrutiny. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 608 (4th Cir. 2020), as amended (Aug. 28, 2020) (explaining that courts “have held that various forms of discrimination against transgender people constitute sex-based discrimination for purposes of the Equal Protection Clause because such policies punish transgender persons for gender non-conformity, thereby relying on sex stereotypes”). However, the Fourth Circuit has explained that when equal protection challenges arise in a prison context, “courts must adjust the level of scrutiny to ensure that prison officials are afforded the necessary discretion to operate their facilities in a safe and secure manner.” Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (evaluating equal protection claim brought by inmate). Under this more deferential standard, courts must determine whether the disparate treatment is “reasonably related to [any] legitimate penological interests.” Id. (explaining that while courts are to “apply this deferential standard even when the alleged infringed constitutional right would otherwise warrant higher scrutiny[,] . . . this more deferential review does not make [the court] ignorant to the concerns that justify application of a heightened standard outside of the prison context”) (citation and internal quotation marks omitted).
In determining whether an action is reasonable under this deferential standard, courts consider the following factors: (1) whether there is a valid, rational connection between the policy and penological interest; (2) whether an alternative means of exercising the right remains available to the inmate; (3) the impact accommodation of the asserted right will have on guards, other inmates, and the allocation of prison resources; and (4) the absence of ready alternatives that accommodate prisoners' rights at de minimis cost to valid penological interests. Morrison, 239 F.3d at 655 (citing Turner v. Safley, 482 U.S. 78, 89-90 (1987)).
i. The Complaint's Allegations
In her Complaint, Plaintiff puts forth two distinct Equal Protection theories. First, she asserts that the freeze-frame policy treats transgender inmates differently from non-transgender inmates:
[T]he behaviors and policies created, implemented, and enforced by Individual Defendants irrationally differentiate between cisgender inmates, who are entitled to all medically necessary healthcare, and transgender inmates, who are not. As alleged above, SCDC generally guarantees individualized medical care pursuant to prevailing standards of care. See supra, ¶¶ 51-52. But under SCDC's de facto freeze-frame policy, transgender inmates are denied this promise of appropriate medical care and instead must satisfy an additional and unjustifiable obstacle to obtaining medically necessary treatment.ECF No. 1 at ¶ 172. Plaintiff alleges that she requires “medically necessary individualized care- including but not limited to gender-affirming hormone therapy; utilization of her legal, female name; and access to adequate hair removal products”-for her gender dysphoria, but Defendants have denied her this care, which is causing her harm. Id. at ¶ 175.
Second, she asserts that the freeze-frame policy “pointlessly distinguishes between similarly-situated inmates by authorizing hormone therapy for inmates who were diagnosed with gender dysphoria before their incarceration, but denying the same treatment for individuals-like [Plaintiff]-who were not diagnosed until after their arrest.” Id. at ¶ 174. Plaintiff alleges that she “knows of at least one other prisoner who has received gender-affirming hormone treatment in SCDC custody.” Id. at ¶ 118.
The undersigned finds these allegations “sufficient to state an intentional disparity in treatment from other similarly situated inmates.” See King, 825 F.3d at 221.
As for the second prong of the Equal Protection claim, the undersigned finds that Plaintiff has alleged sufficient facts indicating that these classifications-(1) providing non-transgender inmates with all medically necessary care while not doing so for transgender inmates, and (2) differentiating between transgender inmates diagnosed with gender dysphoria before incarceration from transgender inmates diagnosed with gender dysphoria after incarceration-are not “reasonably related to [any] legitimate penological interests.” Shaw v. Murphy, 532 U.S. 223, 225 (2001); see, e.g., ECF No. 1 at ¶ 174 (“Because this differentiation is neither medically nor penologically justifiable, it too violates the Equal Protection Clause.”). Accordingly, at this early stage of the litigation, and upon taking the allegations in the Complaint as true and drawing all reasonable inferences in the light most favorable to Plaintiff, the undersigned finds that Plaintiff has stated a viable claim for violation of her right to equal protection under the Fourteenth Amendment.
ii. Defendants' Arguments
Defendants argue that Plaintiff cannot state an Equal Protection claim based on hormone therapy for three reasons. First, Defendants argue that because the “Individual Capacity Defendants did not enact the South Carolina Budget Proviso limiting the expenditure of funds[,] . . . Plaintiff has failed to show the personal involvement necessary in raising a 42 U.S.C. § 1983 claim for an Equal Protection violation against Individual Capacity Defendants.” ECF No. 16 at 14-15. Second, they contend that Plaintiff has failed to plead that Defendants acted with discriminatory animus, and they maintain that Plaintiff cannot show discriminatory animus “in light of Individual Capacity Defendants complying with State law.” Id. at 15. Finally, Defendants argue that “the South Carolina Budget Proviso and SCDC's adherence to the same is substantially related to a sufficiently important government interest,” maintaining that the “State has made a policy decision on the expenditure of limited financial resources” and that “the decision to allow transgender inmates to continue hormone replacement so long as the inmate was receiving hormone replacement therapy at the time of incarceration is substantially related to a sufficiently important government interest due to the recognized medical concerns in abruptly stopping hormone replacement therapy once initiated.” Id. at 15-16.
However, as explained above, Defendants' reliance on the budget proviso, at least at this stage of the litigation, is misplaced. The Complaint's allegations do not support Defendants' argument that South Carolina law prohibits Defendants' use of state funds to provide hormone therapy to Plaintiff. Moreover, because the freeze-frame policy alleged in the Complaint expressly applies only to transgender inmates, it is not a facially neutral policy for which a showing of discriminatory animus is required; rather, the policy “explicitly classifies people based on [sex].” See Monroe, 579 F.3d at 388; Grimm, 972 F.3d at 608.
Defendants also argue that Plaintiff has failed to state an Equal Protection claim based on the alleged failure by Defendants to use her legal name and the denial of certain hair removal products because she has not alleged facts showing that she has been treated any differently than any other inmate. ECF No. 16 at 16-17. However, Plaintiff's Complaint alleges that the use of her legal name and access to hair removal products are part of the medically necessary care that she requires to treat her gender dysphoria. See, e.g., ECF No. 1 at ¶¶ 3, 88, 136, 175, 176. And, as stated above, she has alleged that because she is transgender, Defendants treat her differently than non-transgender inmates in that non-transgender inmates are entitled to all medically necessary care. See Id. at ¶ 172. The undersigned finds these allegations sufficient to state an Equal Protection claim at this early stage of the litigation.
3. Qualified Immunity
Finally, Defendants argue that the Individual Capacity Defendants are entitled to qualified immunity under the facts of this case for Plaintiff's claim of a violation of her rights afforded by the Eighth Amendment (as to hormone replacement therapy) and the Fourteenth Amendment.
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Mays v. Sprinkle, 992 F.3d 295, 301 (4th Cir. 2021) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). In the Fourth Circuit, plaintiffs bear the burden of proof to show that a constitutional violation occurred, while “defendants bear the burden of showing that the violation was not clearly established, and they are therefore entitled to qualified immunity.” Id. at 302 n.5; see Betton v. Belue, 942 F.3d 184, 190 (4th Cir. 2019) (“The burden of establishing the affirmative defense of qualified immunity rests on the party seeking to invoke it.”).
As stated above, the undersigned finds that Plaintiff has pleaded sufficient facts to allege that Defendants violated her Eighth Amendment and Fourteenth Amendment rights. Accordingly, for Defendants to be granted qualified immunity at this early stage of the litigation, they must show that her rights were not clearly established at the time of the alleged violations.
“To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate.” Mays, 992 F.3d at 301 (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). That right must not be defined “at a high level of generality” but with precision. Id. (quoting City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 613 (2015). “And that precision requires looking to the law at the time of the conduct in question.” Id.
“The key inquiry in this regard is not whether [a court] has considered identical factual circumstances and held that an officer's conduct violated particular constitutional rights.” Betton, 942 F.3d at 194. Rather, courts consider whether officials in their jurisdiction “have been provided fair warning, with sufficient specificity, that their actions would constitute a deprivation of an individual's constitutional rights.” Id. at 193-94. Indeed, a right may be clearly established if “a general constitutional rule already identified in the decisional law applies with obvious clarity to the specific conduct in question.” Booker v. S.C. Dep't of Corr., 855 F.3d 533, 543 (4th Cir. 2017) (alterations omitted) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)); see also Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004) (stating that a right may be clearly established if it is “manifestly apparent from broader applications of the constitutional premise in question”). Thus, officers can be “on notice that their conduct violates established law even in novel factual circumstances.” Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 907 (4th Cir. 2016) (quoting Hope, 536 U.S. at 741).
i. The Eighth Amendment Claim
Regarding the Eighth Amendment claim, Defendants first argue that they are “not aware of a decision in which the South Carolina budget proviso has been ruled unconstitutional by a court of competent jurisdiction.” ECF No. 16 at 19. Once again, however, the undersigned is not persuaded, based on the allegations in the Complaint, that the budget proviso prohibits the use of state funds by Defendants to provide hormone therapy to Plaintiff, such that the existence of the budget proviso does not have any bearing on the clearly established analysis.
Plaintiff argues that even if the budget proviso did prohibit SCDC's use of funds to pay for hormone therapy for inmates in Plaintiff's alleged situation, the budget proviso still would not bar Plaintiff's claims, at it would conflict with federal law and thus would be rendered invalid by the Supremacy Clause of the U.S. Constitution. See ECF No. 22 at 14-16 & n.8. Because the undersigned finds that the allegations in the Complaint do not support Defendants' arguments regarding the budget proviso, the undersigned declines to address this constitutional argument at this time. See Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 157 (4th Cir. 2010) (“[T]he principle of constitutional avoidance . . . requires the federal courts to avoid rendering constitutional rulings unless absolutely necessary.”) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)); see also Bell Atl. Md., Inc. v. Prince George's Cnty., Md., 212 F.3d 863, 865 (4th Cir. 2000) (“[C]ourts should avoid deciding constitutional questions unless they are essential to the disposition of a case.”).
Defendants also argue that “the law concerning the care of transgender inmates is still growing and developing throughout the country.” Id. That may be so, but that does not mean there is no existing precedent in the Fourth Circuit regarding the care of transgender inmates. In 2004, the Fourth Circuit reversed a district court order dismissing a complaint filed by a transgender inmate with gender identity disorder, finding that the allegations in the complaint were sufficient to state an Eighth Amendment claim that she did not receive constitutionally adequate treatment to protect her from her compulsion to mutilate herself. De'Lonta v. Angelone, 330 F.3d 630, 636 (4th Cir. 2003) (De'Lonta I) (holding that plaintiff's need for protection against continued selfmutilation constituted an objectively serious medical need under the Eighth Amendment and that she had sufficiently alleged defendant's deliberate indifference to that need). In so doing, the court drew an inference that the defendants' “refusal to provide hormone treatment to De'lonta was based solely on the Policy rather than on a medical judgment concerning De'lonta's specific circumstances,” and they noted that while De'lonta may have received some treatment that alleviated her symptoms, it was not clear that the treatment was deemed a reasonable method of preventing further mutilation. Id. at 635.
“With the publication of DSM-5 in 2013, ‘gender identity disorder' was eliminated and replaced with ‘gender dysphoria.'” Gender Dysphoria Diagnosis, Am. Psych. Ass'n, available at https://www.psychiatry.org/psychiatrists/diversity/education/transgender-and-gender-nonconforming-patients/gender-dysphoria-diagnosis (last visited on May 25, 2023)).
Ten years later, the Fourth Circuit again reversed a district court order dismissing an Eighth Amendment claim for deliberate indifference brought by De'lonta, holding that plaintiff “stated a claim that [defendant prison officials] have been deliberately indifferent to her serious medical need by refusing to evaluate her for surgery, consistent with the Standards of Care.” De'lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (De'lonta II) (referencing the World Professional Association for Transgender Health Standards of Care). In so doing, the Fourth Circuit acknowledged that defendants “have provided De'lonta with some measure of treatment to alleviate her GID symptoms,” but it explained that just because they “have provided De'lonta with some treatment consistent with the GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment.” Id.
Based on the case law above, a reasonable person would have known after 2013 that prison officials' denial of medically necessary gender-affirming care based solely on policy could give rise to an Eighth Amendment deliberate indifference claim. Therefore, based upon the facts pled in the Complaint, the Court finds that dismissal of the Eighth Amendment claim under a qualified immunity defense would not be proper at this stage in the litigation.
ii. The Fourteenth Amendment Claim
Defendants have not carried their burden of showing that Plaintiff's Equal Protection rights were not clearly established at the time of the violations. First, Defendants' conclusory argument that the “law is not clearly established and beyond debate” is not sufficient to establish the affirmative defense of qualified immunity. See York v. Bostic, No. CV 1:20-2172-RMG-SVH, 2020 WL 7647452, at *6 (D.S.C. Dec. 2, 2020) (“Defendants' denial of Plaintiff's allegations and recitation of the elements of the qualified immunity defense, without more, fails to carry their burden in showing this defense is applicable in the present instance.”), report and recommendation adopted, No. CV 1:20-2172-RMG, 2020 WL 7488312 (D.S.C. Dec. 21, 2020).
Second, to the extent Defendants' arguments regarding the budget proviso are intended to apply to the Equal Protection claim, they are not persuasive for the reasons set forth above.
Finally, the undersigned agrees with Plaintiff that, at the time of the alleged violations, Fourth Circuit case law clearly established that differential treatment of similarly situated inmates regarding the provision of medical care can give rise to an Equal Protection claim. See King, 825 F.3d at 220 (reversing dismissal of inmate's equal protection claim alleging that he was treated differently from two other inmates when he was required to have surgery to remove implants in his penis while they were not required to undergo surgery). Thus, at this stage of the litigation, Defendants have not shown they are entitled to qualified immunity as to Plaintiff's Fourteenth Amendment claims.
For the foregoing reasons, the undersigned concludes that the Complaint states a claim for violation of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment, such that Defendants' Motion to Dismiss these claims should be denied.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendants' partial Motion to Dismiss (ECF No. 16) be GRANTED in part and DENIED in part. Specifically, the undersigned recommends that any claims for money damages alleged against the individual Defendants in their official capacities be dismissed. The undersigned further recommends that the remaining claims proceed to discovery.
IT IS SO RECOMMENDED.
Charleston, South Carolina
The parties are directed to the next page for their rights to file objections to this recommendation.
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
Post Office Box 835
Charleston, South Carolina 29402
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).