Fisher v. Fed. Bureau of Prisons

484 F.Supp.3d 521

Tony FISHER, aka Kellie Rehanna Plaintiff,

v.FEDERAL BUREAU OF PRISONS, et al., Defendants.

Case No. 4:19-cv-1169

United States District Court, N.D. Ohio, Eastern Division.

Signed September 3, 2020

Edward A. Icove, Icove Legal Group, Cleveland, OH, for Plaintiff.

James R. Bennett, II, Marlon A. Primes, Office of the U.S. Attorney - Cleveland Northern District of Ohio, Cleveland, OH, Joshua E. Gardner, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

SARA LIOI, UNITED STATES DISTRICT JUDGE

Tony Fisher ("Fisher"),¹ an inmate incarcerated at Federal Correctional Institution Elkton ("FCI-Elkton"), brought this action alleging that FCI-Elkton, the Federal Bureau of Prisons ("BOP"), the United States Public Health Service ("USPHS"), seven BOP employees, ten FCI-Elkton employees, the United States Surgeon General, and the Assistant Secretary for Health (collectively, "defendants") violated her Eighth Amendment rights. (Doc. No. 1, complaint ["Compl."].)

Now pending before the Court is defendants’ motion to dismiss for lack of jurisdiction and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Doc. No. 21 ["Mot."].) Fisher opposed the motion, (Doc. No. 29, opposition ["Opp'n"]), and defendants filed a reply, (Doc. No. 30, reply ["Reply"]). For the reasons detailed below, defendants’ motion to dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND

Though born a male, Fisher believed she was "assigned the wrong gender[ ]" throughout most of her life. (Compl. ¶ 63.) For a variety of reasons, however, Fisher did not present as a female publicly prior to her incarceration in 2013. (Id. ¶¶ 67–68.) While attending therapy in prison, Fisher realized that she was suffering from untreated Gender Dysphoria ("GD"). (Id. ¶ 68.) Fisher was formally diagnosed with GD by the FCI-Elkton medical staff on July 7, 2015, and began hormone treatment for her condition shortly thereafter. (Id. at ¶¶ 57, 71.) GD "refers to discomfort or distress that is caused by [a] discrepancy between a person's gender identity[ ] and that person's sex assigned at birth."² (Id. at ¶ 49.) "[P]eople with GD who do not receive appropriate medical treatment are at risk of genital self-harm (a form of surgical self-treatment of auto-castration or auto-penectomy that can lead to serious, even life threatening, injuries, depression[,] and suicide attempts)." (Id . at ¶ 45.) GD "can be in large part alleviated through [individualized] treatment[.]" (Id . at ¶¶ 49–50.) Treatment options include changes in gender expression and role, hormone therapy, sex reassignment surgery ("SRS")³ , and/or psychotherapy. (Id . ¶ 51.)

Since her diagnosis, Fisher has "made a plethora of requests, communications[,] and complaints to BOP officials at multiple levels," asking for a variety of treatments and accommodations related to her GD. (Id . ¶ 77.) Some of these requests include: electrolysis hair removal (id . ¶ 84); access to the same clothing and grooming products as female inmates (including "the same bras, panties, hairstyles, and makeup items permitted in ... female [prison] facilities") (id . ¶ 85); being placed on female hormones (id . ¶ 78); SRS (id . ¶ 77); treatment from outside medical professionals who specialize in GD (id . ¶ 69(j)–(k)); installation of full restroom stall doors on certain of FCI-Elkton's restrooms (id . ¶ 87); and a "pat search[ ]" exception whereby pat searches are performed by female officers (id . ¶ 88). After reviewing the nearly 400 pages of exhibits appended to her complaint, it is clear that the BOP and FCI-Elkton granted some of Fisher's requests, but denied others.

The BOP has promulgated various policies, manuals, and rules related to the treatment and clinical care of inmates with GD, including the Transgender Offender Manual. (Id. ¶¶ 55, 60, 81.) See also Federal Bureau of Prisons, Transgender Offender Manual (May 11, 2018), bop.gov/policy/progstat/5200-04-cn-1.pdf. The Transgender Offender Manual details BOP policy concerning staff training and responsibilities, initial designations and intake screening, housing and programming assignments, documentation and sentry assignments, hormone and necessary medical treatment, institution psychology services, pronouns and names, pat searches and exceptions, visual searches and exceptions, clothing and commissary items, and transgender inmates’ reentry needs. Id.

BOP has also established the Transgender Clinical Care Team ("TCCT"), which is "[a] multidisciplinary group of BOP personnel with [transgender] subject matter expertise" that "provides assistance to institution staff and develops clinical treatment recommendations for the BOP [transgender] population." Federal Bureau of Prisons, Medical Management of Transgender Inmates , at 1 (Dec. 2016), https://www.bop.gov/resources/pdfs/trans_guide_dec_2016.pdf. And the Transgender Executive Council, which is "[a] group of BOP management personnel who mitigate executive level non-clinical issues[,] ... [and] provides oversight to the BOP TCCT." Id.

Throughout her complaint, Fisher cites to various publications by the World Professional Association for Transgender Health ("WPATH"). WPATH is "an international multi-disciplinary professional association ... [that] promulgates standards of care for [individuals who suffer from] gender identity disorders, which set forth the clinical protocols for treating persons with GD." (Compl. ¶ 43.) Several BOP policies and procedures related to the care of inmates with GD make reference to WPATH and the WPATH Standards of Care ("WPATH SOC").⁴

Nevertheless, Fisher claims that BOP policies "exclude [her] from fulfilling complete and necessary treatment for [GD]." (Compl. ¶ 62.) Thus, Fisher filed this action alleging that BOP's policies, and denials of certain of her GD-related requests, constitute deliberate indifference to serious medical needs in violation of the Eighth Amendment. (Id. )

Even though Fisher's complaint, with exhibits, is over 400 pages in length, the precise nature of Fisher's claims and requested relief is unclear. It appears as though Fisher seeks declaratory and injunctive relief (id . at 50–54) on the basis that defendants’ following actions violated the Eighth Amendment: (1) denial of her request for a GD specialist's second opinion (id . at ¶¶ 7, 69); (2) denial of her request to stock the prison commissary with female clothing and female grooming products (id . at ¶¶ 7, 69, 85, 86); (3) refusal to install stall doors on bathrooms in the FCI-Elkton recreation room (id . at ¶¶ 7, 87); (4) denial of her request for a bed reassignment (id . at ¶ 89); (5) denial of her request for an exemption from pat searches conducted by male guards (id . at ¶ 88); (6) FCI-Elkton's failure to comply with the Prison Rape Elimination Act ("PREA") (id . at ¶¶ 69, 87); and (7) denial of her request for SRS (id. at ¶¶ 7, 69), including BOP's alleged blanket ban on SRS (id. at ¶¶ 8, 10, 100, 111). The Court will address each of these claims below.

II. STANDARDS OF REVIEW

A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

A complaint 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). Although this pleading standard does not require great detail, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citing authorities). In other words, " Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief." Id. at 556 n.3, 127 S.Ct. 1955 (criticizing the Twombly dissent's assertion that the pleading standard of Rule 8 "does not require, or even invite, the pleading of facts"). This requirement applies to all plaintiffs, including those proceeding pro se. See Kennedy v. First NLC Servs., LLC , No. 08-12504, 2009 WL 482715, at *1 (E.D. Mich. Feb. 25, 2009) ("The requirements of Rule 8(a), of course, are applicable to pro se plaintiffs....").

In deciding a motion to dismiss under Rule 12(b)(6), the Court must take all well-pleaded allegations in the complaint as true and construe those allegations in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citations omitted). Complaints filed by a pro se plaintiff must be liberally construed and " ‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]’ " Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) ).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S. Ct. 1937.

In deciding a motion to dismiss under Rule 12, the Court generally may not consider matters outside of the pleadings without converting the motion into a motion for summary judgment under Rule 56. As the Sixth Circuit has held, however, there are a number of exceptions to this rule. Indeed, it is well settled that a district court, in ruling on a Rule 12 dispositive motion, "may consider the [c]omplaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the [c]omplaint and are central to the claims contained therein." Bassett...