(PC) Denegal v. Farrell et al, No. 1:2015cv01251 - Document 77 (E.D. Cal. 2018)
Court Description: ORDER DENYING Plaintiff's 56 Motion to Amend; FINDINGS and RECOMMENDATIONS to Deny Defendants' 53 Motion for Summary Judgment signed by Magistrate Judge Jennifer L. Thurston on 9/24/2018. Referred to Judge Dale A. Drozd. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 DWAYNE DENEGAL (FATIMA SHABAZZ), Plaintiff, 13 ORDER DENYING PLAINTIFF’S MOTION TO AMEND (Doc. 56) v. 14 15 CASE NO. 1:15-cv-01251-DAD-JLT (PC) R. FARRELL, et al., 16 Defendants. FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 53) 17 18 Plaintiff, a transgender state prisoner also known as Fatima Shabazz, is proceeding with 19 appointed counsel on a first amended complaint (“FAC”) for Eighth Amendment medical 20 indifference and Fourteenth Amendment equal protection claims against defendants Coffin, 21 Cryer, Lewis, and Sundaram, while defendant Farrell is sued for medical indifference under the 22 Eighth Amendment. Pending now are defendants’ motion for summary judgment for failure to 23 exhaust administrative remedies (Doc. 53) and plaintiff’s motion to amend (Doc. 56). For the reasons set forth below, plaintiff’s motion to amend will be DENIED. Also, the 24 25 Court will recommend that defendants’ motion for summary judgment be DENIED. 26 I. Plaintiff’s Allegations 27 The plaintiff alleges that at all relevant times, she was a state prisoner incarcerated at 28 California Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California. Plaintiff 1 claims that she is a transgender woman1 who experiences gender dysphoria and distress due to the 2 incongruence between her male anatomy and female gender identity. She brings Eighth 3 Amendment claims alleging that prison officials interfered with her treatment, delayed providing 4 her feminizing hormones, and denied her requests for sex reassignment surgery (including, 5 specifically, vaginoplasty), which plaintiff believes is medically necessary to treat her gender 6 dysphoria. She further alleges that since title 15, section 3350.1 of the California Code of 7 Regulations and the California Department of Corrections and Rehabilitation’s Department 8 Operations Manual (“DOM”) § 91020.26 bar sex reassignment surgery, they constitute 9 unconstitutional blanket bans. Plaintiff also brings claims for violation of the Fourteenth 10 Amendment, alleging that while non-transgender women are provided vaginoplasty under certain 11 circumstances, transgender women are not provided the same procedure under any circumstances 12 pursuant to title 15, section 3350.1 of the CCR. Plaintiff seeks only declaratory and injunctive 13 relief. 14 II. 15 Relevant Procedural Background Plaintiff initiated this action on August 13, 2015. By order dated September 14, 2015, the 16 Court screened plaintiff’s complaint and dismissed it with leave to amend for failure to state a 17 claim. (Doc. 8.) Plaintiff then filed the FAC, which the Court found to state claims under the 18 Eighth Amendment for medical indifference and under the Fourteenth Amendment for violation 19 of equal protection against Coffin, Cryer, Lewis, and Sundaram, and an Eighth Amendment claim 20 for medical indifference solely against Farrell. (Doc. Nos. 16, 19.) 21 On January 12, 2017, defendants filed a motion to dismiss and argued that the FAC fails 22 to state a claim, her claims are moot in light of recent changes to the DOM, and/or her claims are 23 barred because she is a class member in Plata v. Schwarzenegger, No. C-01-1351 TEH (N.D. 24 Cal., filed Apr. 5, 2001), and Coleman v. Schwarzenegger, Case No. 90–cv-0520 LKK JFM (E.D. 25 Cal., filed May 14, 1990). (Doc. 27.) The defendants’ motion was considered on May 31, 2017 by 26 the previously-assigned magistrate judge, who recommended that it be denied in its entirety. 27 1 28 A transgender woman is “a person whose female gender identity is different from the male gender assigned to her at birth.” Norsworthy v. Beard, 87 F.Supp.3d 1164, 1169 (N.D. Cal. 2015), appeal dismissed and remanded, 802 F.3d 1090 (9th Cir. 2015). 2 1 (Doc. 39.) This recommendation was adopted in full by the Honorable Dale A. Drozd on 2 September 25, 2017. (Doc. 45.) 3 4 Defendants filed an answer on October 30, 2017 (Doc. 49), and a discovery and scheduling order issued thereafter. (Doc. 50.) 5 By order dated December 26, 2017, the previously-assigned magistrate judge determined 6 that the appointment of counsel for plaintiff was warranted. (Doc. 52.) Attorney Carter C. White 7 was appointed to represent plaintiff. 8 9 Approximately one month later, the defendants filed the pending motion for summary judgment for plaintiff’s failure to exhaust his administrative remedies for her Fourteenth 10 Amendment equal protection claim against Coffin, Cryer, Lewis, and Sundaram. (Doc. 53.) 11 Plaintiff opposes this motion on the merits and seeks leave to amend/supplement the FAC. (Doc. 12 Nos. 55, 56, 69.) Defendants oppose the motion to amend. (Doc. 64.) 13 III. 14 15 Plaintiff’s Motion to Amend Plaintiff moves the court for leave to amend pursuant to Federal Rule of Civil Procedure 15(d) and has submitted a proposed second amended complaint (“SAC”).2 (Doc. Nos. 56, 69.) 16 Plaintiff names 29 defendants in the SAC: (1) Scott Kernan, Secretary of the CDCR, who 17 “has ultimate responsibility and authority for the operation of the CDCR, including the 18 administration of health care and the execution of policies governing medical care,” (2) Dr. 19 Raymond Farrell, CSATF Psychologist, (3) Dr. Raymond J. Coffin, CSATF Chief Psychologist, 20 (4) Clarence Cryer, CEO of the CSATF Medical Department, (5) J. Lewis, Deputy Director of 21 Policy and Risk Management at California Correctional Health Care Services (“CCHCS”), (6) 22 Dr. J. Sundaram, a Primary Care Physician (“PCP”) at CSATF, (7) Katherine Tebrock, CDCR 23 Deputy Director, Statewide Mental Health Program, who “is responsible for appointment 24 members of CDCR’s Sex Reassignment Surgery Review Committee (“SRSRC”), (8) Dr. Ricki 25 Barnett, CDCR Deputy Director of Medical Services and “responsible for appointing members of 26 2 27 28 Plaintiff has submitted three versions of the second amended complaint. (See Doc. Nos. 56, 60, 69.) The mostrecently filed version dated May 2, 2018, includes additional information and facts obtained in discovery. (Doc. 69.) The court’s order here is premised on this most recent version of the SAC (“[Third Substitute Proposed] Second Amended and Supplemental Complaint for Declaratory and Injunctive Relief”) (Doc. 69-1). 3 1 the SRSRC,” and (9) Dr. Jeffrey Carrick, Deputy of Medical Executive Utilization Management 2 and Chair of the Headquarters Utilization Management Committee (“HUM”). 3 Plaintiff then names several members of the HUM who are alleged to have denied her 4 medically necessary surgery: (10) Dr. Arun Vasudeva, (11) Dr. Grace Song, (12) Dr. David 5 Ralston, (13) Dr. Jasdeep Bal, (14) Dr. Meet Boparai, (15), Dr. Elizabeth Dos Santos Chen, D.O., 6 CDCR Chief Medical Officer for the Southern Region of Clinical Support, (16) Dr. Felix 7 Igbinosa, (17) Dr. Steven Tharatt, (18) Dr. Renee Kanan, and (19) Dr. Lesley Carmichael. 8 9 Plaintiff also names several members of the SRSRC who are alleged to have denied plaintiff medically necessary surgery: (20) John Lindgren, (21) Dr. Michael Golding, (22) Dr. 10 Richard Gray, (23) Dr. Michael Lee, (24) Dr. Laura Ceballos, Ph.D., CCPH (25) Dr. Amy Eargle, 11 Ph.D. CCPH, (26) Kim Cornish, (27) Daniel Ross, a CDCR Captain, and (28) Thomas Bzoskie. 12 Lastly, plaintiff names (29) the CDCR itself. 13 14 15 A. Allegations in the Proposed SAC 1. Plaintiff’s Request for Treatment and Dr. Farrell’s July 2013 Report Plaintiff, a transgender inmate, suffers from gender dysphoria and has been living as a 16 woman for most of her adult life. Plaintiff has been housed at CSATF since October 2012. 17 Around March 2013, plaintiff met with CSATF physician Dr. Alphonso to request treatment for 18 her gender dysphoria. Dr. Alphonso referred plaintiff to CSATF’s endocrinologist, Dr. Pawan 19 Kumar, who met with plaintiff on April 23, 2013, and explained to plaintiff that she would first 20 need to be diagnosed with Gender Dysphoria Disorder (“GDD”) before being treated for it. Dr. 21 Kumar referred plaintiff for a Mental Health appointment for an official evaluation. 22 On April 23, 2013, and May 15, 2013, plaintiff met with defendant Dr. Farrell for a 23 psychological evaluation where plaintiff discussed her history of identifying as a female and her 24 illicit hormone treatment for her gender dysphoria. 25 On July 19, 2013, after consultation with Dr. Coffin, Dr. Farrell produced her official 26 report from this meeting. At the time, the only training Dr. Farrell and Dr. Coffin had regarding 27 treatment of transsexual patients was a one-day seminar. Dr. Farrell’s report excluded certain 28 statements made by plaintiff about wanting to be a woman and it misclassified plaintiff’s sexual 4 1 orientation. Dr. Farrell then incorrectly diagnosed plaintiff as not having Gender Identity 2 Disorder, writing that plaintiff “denied ever having any discomfort with his gender.” He 3 recommended that plaintiff engage in a year-long psych-education treatment program (the 4 “Program”), after which she could be re-assessed for hormone replacement therapy. On October 21, 2013, plaintiff filed a 602 Health Care Appeal challenging Dr. Farrell’s 5 6 report and diagnoses. In response, plaintiff was interviewed on November 25, 2013 by Dr. Coffin, 7 who granted in part plaintiff’s appeal but still required plaintiff to complete the Program. 8 9 For months, plaintiff repeatedly asked to be placed in the mandatory sessions for the Program but was ignored. On March 17, 2014, plaintiff filed another 602 Health Care Appeal to 10 begin the sessions so that she could eventually be placed on hormone therapy. Dr. Coffin partially 11 granted the appeal on April 28, 2014, explaining that plaintiff has not started the Program 12 sessions because Dr. Coffin had delayed in completing the Gender Identity Report. On September 13 21, 2014, plaintiff began hormone therapy to treat her gender dysphoria. On March 29, 2015, plaintiff filed a Health Services Request Form to speak with CDCR’s 14 15 transgender specialist doctor, but plaintiff’s PCP, Dr. Sunduram, denied the request and would 16 not allow plaintiff to meet with any specialist for her gender and sexuality issues. 17 18 On an unspecified date, Lewis upheld the policy prohibiting sex reassignment surgery (“SRS”) to treat gender dysphoria. 19 2. 20 The Quine Settlement On August 7, 2015, a settlement was reached in Quine v. Beard, 3:14-cv-2726-JST (N.D. 21 Cal.), resulting in changes to CDCR policies to allow transgender prisoners access to treatment 22 for gender dysphoria as well as clothing and commissary items for their preferred gender identity. 23 After the Quine settlement but before substantive changes were made to CDCR policies, 24 plaintiff submitted another request to be evaluated for SRS. When this request was denied, 25 plaintiff initiated this action on August 13, 2015. 26 /// 27 /// 28 /// 5 1 3. 2 CDCR Policy Changes a. Regulations Regarding Personal Property 3 In March 2016, plaintiff requested female gender appropriate clothing and cosmetics. This 4 request was denied by CDCR because the policy at the time did not authorize plaintiff to have the 5 requested items. 6 In June 2016, CDCR adopted regulations that would allow transgender inmates and 7 inmates with symptoms of gender dysphoria to have access to authorized personal property in 8 accordance with their gender identities. The new regulations also established the Transgender 9 Inmates Authorized Personal Property Schedule, which lists personal care/hygiene items for 10 11 12 transgender prisoners. These regulations were re-adopted in April 2017. b. Regulations Regarding Treatment The medical community has recognized that SRS is a viable treatment for patients with 13 gender dysphoria. While some individuals with gender dysphoria do not need this, for others 14 surgery is essential and medically necessary. For this latter group, relief from gender dysphoria 15 cannot be achieved without modification of their primary and/or secondary sex characteristics, 16 including SRS, breast implants, facial reshaping, and voice modification surgery. 17 On May 24, 2016, CDCR updated its guidelines for medical treatment for patients with 18 gender dysphoria. The regulations at issue, however, explicitly state that vaginoplasty is not a 19 medically necessary surgery even though it makes exceptions for women with cystocele and 20 rectocele. In addition, plaintiff is subjected to the year-long Program to become eligible for sexual 21 reassignment treatment, but this Program does not exist within CDCR policy. 22 On July 28, 2016, plaintiff submitted yet another request for SRS. On February 27, 2017, 23 individuals on the HUM and its subcommittee, the SRSRC, reviewed and denied plaintiff’s 24 request. These committees were under the supervision and control of defendants Barnett, 25 Tebrock, and Does 1-25. 26 On March 15, 2017, plaintiff filed a 602 appeal of the HUM’s decision and noted that her 27 endocrinology treatment has left her at a toxic level of estrogen hormones, twice that of a normal 28 woman. Plaintiff again sought a referral for SRS. This appeal was denied by the HUM on 6 1 September 1, 2017. 2 5. Plaintiff’s Claims 3 Based on the foregoing, plaintiff seeks to assert the following claims: (1) an Eighth 4 Amendment medical indifference claim for failure to provide necessary medical treatment beyond 5 hormone therapy, (2) a Fourteenth Amendment equal protection claim for failing to provide 6 proper medical treatment in the form of vaginoplasty on the basis of her transgender status, (3) a 7 Fourteenth Amendment equal protection claim for failing to provide plaintiff access to personal 8 items approved and available to prisoners in female institutions on the basis of gender and 9 transgender status, (4) discrimination on the basis of disability in violation of the Americans with 10 Disabilities (“ADA”) and the Rehabilitation Act by denying her adequate and necessary medical 11 treatment, denying proper and reasonable training to custody and health staff, and depriving 12 plaintiff of programs and activities in a manner that is detrimental to her health, and, finally, (5) 13 violation of the Affordable Care Act, 42 U.S.C. § 18116, for the CDCR’s continued 14 discrimination against plaintiff on the basis of sex when they deny her adequate and necessary 15 medical treatment on the basis of sex stereotyping and/or a belief that people who are assigned 16 the male sex at birth should display only stereotypically male characteristics, behaviors, and 17 dress. 18 Plaintiff seeks declaratory and injunctive relief. She also seeks costs and attorneys’ fees. 19 B. 20 Because some of plaintiff’s claims arise from actions “that occur[ed] subsequent to the Legal Standards 21 filing of the complaint,” plaintiff seeks leave to amend and supplement her pleading pursuant to 22 Federal Rule of Civil Procedure 15(d). 23 Under Fed. R. Civ. P. 15(a), a party may amend a pleading once as a matter of course 24 within 21 days of service, or if the pleading is one to which a response is required, 21 days after 25 service of a motion under Rule 12(b), (e), or (f). “In all other cases, a party may amend its 26 pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 27 15(a)(2). 28 Granting or denying leave to amend a complaint is in the discretion of the Court, Swanson 7 1 v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996), though leave should be “freely 2 give[n] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In exercising this discretion, a court 3 must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather 4 than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 5 1981). The policy to grant leave to amend is applied with extreme liberality. Id. After a 6 defendant files an answer, leave to amend should not be granted where “amendment would cause 7 prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Madeja 8 v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002) (citing Yakama Indian Nation v. 9 Washington Dep’t of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999)). 10 When determining whether to grant leave to add new parties, the Court is required to 11 consider whether the new parties are properly joined. Parties must be joined if the court cannot 12 provide complete relief otherwise or adjudicating the issues without the new party could impair 13 the new party’s interests or risks double, multiple or inconsistent obligations. Fed.R.Civ.P. 19. 14 Parties may be joined if the right to relief arises out of the same transaction, occurrence or 15 series of transactions or occurrences and there is a common question of law or fact will be 16 determined in the action. Fed.R.Civ.P.20. If new parties are added, the Court may order separate 17 trials as necessary “protect a party against embarrassment, delay, expense, or other prejudice that 18 arises.” Fed.R.Civ.P. 20(b). 19 20 21 C. Analysis 1. The Parties’ Arguments Plaintiff’s proposed SAC includes the addition of new defendants and new claims. It also 22 identifies several Doe defendants who participated in the HUM and SRSRC decision to deny 23 plaintiff’s request for SRS. Plaintiff argues that her motion should be granted because there has 24 not been undue delay, amendment is not futile, and the newly added claims are predicated on the 25 same alleged conduct of the defendants. 26 Defendants oppose the motion, arguing that the supplemental claims are unrelated to the 27 prior allegations since they are premised on CDCR’s revised guidelines regarding SRS, which 28 present distinct questions of fact than those based on the CDCR’s prior policy and the individual 8 1 defendants’ conduct based thereon. Defendants argue that any contention by plaintiff that the new 2 claims arise out of the same series of transactions or occurrences is undermined by the 3 implementation of CDCR’s new policy, which breaks the chain of events. Defendants next argue 4 that the addition of new claims and defendants would not promote judicial economy or efficiency 5 considering the procedural posture of this action and the length of time since it has been filed. 6 They also argue that they would be prejudiced by allowing the unrelated claims to proceed here 7 since the defendants’ actions under the old policy would likely color the jury’s consideration of 8 the defendants’ actions under the new policy. Lastly, they argue that the addition of any new 9 claims would be futile since they amount to a mere difference of medical opinion. 10 In her Reply, plaintiff disputes each of these contentions, arguing, inter alia, that (1) there 11 will not be any jury confusion since a jury will not determine any facts in this case because she 12 seeks declaratory and injunctive relief only, (2) this case does not amount to a mere difference of 13 medical opinion; instead, it is an action by a transgender inmate seeking appropriate treatment for 14 her gender dysphoria, and (3) the facts alleged in the proposed SAC are premised—as are the 15 facts in the FAC—on the defendants’ delay and/or denial of appropriate treatment for plaintiff’s 16 gender dysphoria. 17 18 2. Discussion The amended complaint seeks to add 18 additional defendants—expanded from the five 19 who are currently defendants in this action. (Doc. 67-1) In neither her motion nor in her reply, 20 does the plaintiff address the standards for joinder of the new defendants. The plaintiff does not 21 contend that the new defendants must be joined under Rule 19 and the Court agrees that complete 22 relief can be afforded without doing so. The tougher question is whether the new defendants may 23 be joined under Rule 20. 24 Undoubtedly, the plaintiff has been denied the surgeries she seeks to address her gender 25 dysphoria. This denial is ongoing. However, the reasons for the denial are vastly different. In 26 2015, she was denied the surgeries because she had not been taking female hormones provided by 27 the prison for 12 months and because the CDCR policy did not allow inmates to have them. (Doc. 28 12 at 18; Doc. 67-1 at 8) In 2017, though the policy changed to allow the surgeries, the plaintiff 9 1 was again denied the surgeries by the new defendants. The plaintiff does not allege any facts to 2 explain why she was denied the surgeries in 2017 (Doc. 67-1 at 8). 3 The Court does not find that the new allegations related to the new defendants arise out of 4 the same transaction, occurrence or series of transactions or occurrences. The operative 5 complaint demonstrates that the plaintiff was not considered for surgery because the CDCR 6 policies precluded this consideration. The new allegations demonstrate that the new defendants 7 considered her for the surgeries but denied them nonetheless. This demonstrates also that the 8 operative complaint and the second amended complaint present different questions of law and 9 fact.3 Consequently, the Court DENIES the plaintiff’s request to amend the complaint.4 10 IV. 11 Defendants’ Motion for Summary Judgment for Failure to Exhaust Defendants move for summary judgment for failure to exhaust administrative remedies on 12 plaintiff’s equal protection claim.5 As discussed supra, this claim is premised on the defendants’ 13 decision to deny plaintiff SRS based on the allegedly discriminatory policies that were set forth in 14 CCR § 3350.1(b)(2) and DOM § 92010.26.6 Specifically, plaintiff claims a violation of her equal 15 protection rights based on the policy that provides vaginoplasty to female inmates with certain 16 conditions but not to transgender women. Plaintiff counters that she properly exhausted this claim 17 even though the grievance at issue does not specifically mention “equal protection.” 18 A. 19 Legal Standards 1. Summary Judgment 20 The court must grant a motion for summary judgment if the movant shows that there is no 21 genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of 22 law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 23 Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A 24 3 25 26 27 28 However, of course the plaintiff may file a new action and request that it be related to this current action, if appropriate. 4 The Court does not consider the Rule 15 factors because, the joinder consideration is determinative. 5 Defendants do not challenge plaintiff’s Eighth Amendment claim. 6 Since defendants moved for summary judgment before plaintiff filed her motion to amend, it is clear that any arguments made in defendants’ motion are related only to the claims concerning the CDCR policy in existence before the revised policy implemented on or around May 2016. To distinguish these claims from one another, the Court will refer to the former as “the old policy” and the revised guidelines as “the new policy.” 10 1 dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to 2 return a verdict for the non-moving party. Id. at 248-49. 3 The party moving for summary judgment bears the initial burden of informing the court of 4 the basis for the motion, and identifying portions of the pleadings, depositions, answers to 5 interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of 6 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving 7 party must either produce evidence negating an essential element of the nonmoving party's claim 8 or defense or show that the nonmoving party does not have enough evidence of an essential 9 element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. 10 Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 11 1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving 12 party need only point out ‘that there is an absence of evidence to support the nonmoving party's 13 case.’”) (quoting Celotex, 477 U.S. at 325). 14 If the moving party meets its initial burden, the burden shifts to the non-moving party to 15 produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d 16 at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse 17 party's evidence, but instead must produce admissible evidence that shows there is a genuine 18 issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not 19 produce evidence to show a genuine issue of material fact, the moving party is entitled to 20 judgment. See Celotex, 477 U.S. at 323. 21 Generally, when a defendant moves for summary judgment on an affirmative defense on 22 which he bears the burden of proof at trial, he must come forward with evidence which would 23 entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. 24 South, 965 F.2d 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an 25 affirmative defense that must be raised in a motion for summary judgment rather than a motion to 26 dismiss. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for 27 summary judgment for nonexhaustion, the defendant has the initial burden to prove “that there 28 was an available administrative remedy, and that the prisoner did not exhaust that available 11 1 remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to the prisoner to 2 come forward with evidence showing that there is something in his particular case that made the 3 existing and generally available administrative remedies effectively unavailable to him.” Id. The 4 ultimate burden of proof remains with the defendant, however. Id. If material facts are disputed, 5 summary judgment should be denied, and the “judge rather than a jury should determine the 6 facts” on the exhaustion question, id. at 1166, “in the same manner a judge rather than a jury 7 decides disputed factual questions relevant to jurisdiction and venue,” id. at 1170-71. 8 9 10 In ruling on a motion for summary judgment, inferences drawn from the underlying facts are viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 11 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is 12 based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder 13 v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff's verified complaint 14 as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, 15 plaintiff stated under penalty of perjury that contents were true and correct, and allegations were 16 not based purely on his belief but on his personal knowledge). Plaintiff’s pleading is signed under 17 penalty of perjury and the facts therein are evidence for purposes of evaluating the defendants' 18 motion for summary judgment. 19 2. California’s Administrative Exhaustion Rules 20 “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or 21 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 22 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion in 23 prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); 24 Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (mandatory language of § 1997e(a) forecloses 25 judicial discretion to craft exceptions to the requirement). All available remedies must be 26 exhausted; those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and 27 effective.’” Porter, 534 U.S. at 524. Even when the prisoner seeks relief not available in grievance 28 proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner, 12 1 532 U.S. 731, 741 (2001). Section 1997e(a) requires “proper exhaustion” of available 2 administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion requires 3 using all steps of an administrative process and complying with “deadlines and other critical 4 procedural rules.” Id. at 90. 5 For a remedial procedure to be “available” it must exist both in law and, in actual practice, 6 be “capable of use to obtain some relief for the action complained of.” Ross, 136 S. Ct. at 1859 7 (internal quotation marks omitted). In Ross, the Supreme Court enumerated three instances where 8 a procedure, in a practical sense, is unavailable: (1) when the process operates as a “simple dead 9 end” with no actual possibility of relief to prisoners; (2) when the process is so opaque or confusing 10 that it is “essentially unknowable—so that no ordinary prisoner can make sense of what it 11 demands”; and (3) when prison officials thwart inmates from using the process through 12 machination, misrepresentation, or intimidation. Id. at 1859–60 (internal quotation marks omitted). 13 The State of California provides its inmates and parolees the right to appeal administratively 14 “any policy, decision, action, condition, or omission by the department or its staff that the inmate 15 or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or 16 welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies, 17 a prisoner must proceed through three formal levels of appeal and receive a decision from the 18 Secretary of the CDCR or his designee. Id. § 3084.1(b), § 3084.7(d)(3). 19 B. 20 Plaintiff filed several appeals before initiating this action but only one is relevant to the 21 22 23 24 25 26 27 28 Undisputed Facts Court’s analysis. On April 3, 2015, plaintiff submitted a Patient-Inmate Health Care Appeal CDCR 602 Form, SATF HC 15061336 (“Appeal 1336”), complaining as follows: Deliberate Indifference: Violation of CDCR TITLE 15 / Farmer V. Brennan I am a Transgender Inmate, I have been denied my request for Sexual Reassignment Surgery, A medically necessary Surgery. this denial is a violation of CDCR TITLE 15 3350, as well as A rights violation under Farmer V. Brennan. [¶] As per CDCR TITLE 3350. Sub section (a). The Medical Dept. is required to provide medically necessary services. By denying my request for reassignment surgery, 13 1 Dr. Sunderam is in Violation of Article 8 Section 3350, Also Article 8 Section 3350.1 provides a list of ailments that are excluded, and the surgery I have requested is not included on that list. To deny me all of the necessary medical treatment needed is also tantamount to deliberate indifference, which is a violation of Farmer v. Brennan. In addition, The SOC set forth by WPATH7 has determined that surgeries e.g. Sexual Reassignmet, Breast Augmentation, and Vocal Femenization as well as Facial Femenization, are necessary, and “not” particularly “elective” in regard to the mental health of the trans-person seeking to alleviate his/her Gender Dysphoria. I have been diagnosed with gender Dysphoria, and I beleive that these surgeries are necessary to my health and well-being in helping to provide relief from my Gender Dysphoria, denial is a violation of my rights. 2 3 4 5 6 7 8 9 Decl. of S. Gates in Supp. of Defs.’ Mot. Summ. J. Ex. B (Doc. 53-1 at 11-14) (misspellings and 10 stylized capitalizations in original). By way of relief, plaintiff sought “the surgeries necessary, 11 which included (but are not limited to), Sexual Reassignment, Breast Augmentation, as well as 12 Facial Femenization and Vocal Femenization [sic].” Id. Appeal 1336 was bypassed at the first level of review and denied at the second level of 13 14 review by defendant Cryer on April 23, 2015, because plaintiff had not yet completed one year of 15 continuous hormone treatment. Gates Decl. Ex. B (Doc. 53-1 at 15-16). Plaintiff appealed the denial on May 7, 2015, claiming that he had taken illicit hormones 16 17 before his incarceration that should count towards the one-year of continuous hormone treatment. 18 Gates Decl. Ex. B (Doc. 53-1 at 12). On May 27, 2015, defendant Lewis denied plaintiff’s grievance at the Director’s Level of 19 20 Review because his unmonitored hormone therapy prior to incarceration could not be verified and 21 thus did not count towards the one-year minimum for hormone therapy. Gates Decl. Ex. B (Doc. 22 53-1 at 9-10). 23 C. Analysis 24 Defendants move for summary judgment on plaintiff’s equal protection claim and argue 25 that she failed to exhaust administrative remedies. They argue that Appeal 1336 does not serve to 26 exhaust this claim because it does not address any policy regarding the availability of 27 vaginoplasty for female inmates as opposed to transgender inmates. Indeed, Appeal 1336 does not 28 7 WPATH is an acronym for Worth Professional Association for Transgender Health. 14 1 make any reference to “equal protection” or the availability of vaginoplasty to some but not other 2 CDCR inmates. They also argue that Appeal 4695 could not have served to exhaust plaintiff’s 3 administrative remedies because it was not submitted and a final decision was not received until 4 after plaintiff initiated this case. Defendants have thus met their burden to demonstrate that 5 plaintiff did not properly exhaust those remedies as to her equal protection claim based on the 6 availability of vaginoplasty for female inmates but not transgender inmates. 7 Generally, the amount of detail in an administrative grievance necessary to properly exhaust 8 a claim is determined by the prison’s applicable grievance procedures. Jones v. Bock, 549 U.S. 9 199, 218 (2007); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (“To provide 10 adequate notice, the prisoner need only provide the level of detail required by the prison's 11 regulations”). California prisoners are required to lodge their administrative complaint on a CDCR- 12 602 form (or a CDCR-602 HC form for a health-care matter). The level of specificity required in 13 the appeal is described in a regulation: 14 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member's last name, first initial, title or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. [¶] The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if needed, the Inmate/Parolee Appeal Form Attachment. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Code Regs. tit. 15, § 3084.2(a)(3-4).8 8 Several Ninth Circuit cases have referred to California prisoners' grievance procedures as not specifying the level of detail necessary and instead requiring only that the grievance “describe the problem and the action requested.” See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Cal. Code Regs. tit. 15, § 3084.2); Sapp, 623 F.3d at 824 (“California regulations require only that an inmate ‘describe the problem and the action requested.’ Cal. Code Regs. tit. 15, § 3084.2(a)”); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (when prison or jail's procedures do not specify the requisite level of detail, “‘a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought’ ”). Those cases are distinguishable because they did not address the regulation as it existed at the time of the events complained of in Plaintiff’s pleading. Section 3084.2 was amended in 2010 (with the 2010 amendments becoming operative on January 28, 2011), and those amendments included the addition of subsection (a)(3). See Cal. Code Regs. tit. 15, § 3084.2 (history notes 11-12 providing operative date of amendment). Wilkerson and Sapp used the pre-2011 version of section 3084.2, as evidenced by their statements that the regulation required the inmate to “describe the problem and the action requested” – a phrase that does not exist in the version of the regulation in effect in and after 2011. Griffin is distinguishable because it discussed the Maricopa County Jail 15 1 The institutional regulations required plaintiff to include sufficient facts to give notice of 2 her claim. Defendants are correct that Appeal 1336 concerns a SRS but does not reference a 3 vaginoplasty or an equal protection violation. Nonetheless, plaintiff is also correct that she was 4 not required to use legal terminology or phrases like “equal protection” or “discriminatory on the 5 basis of gender or transgender status” in her grievance to have exhausted her administrative 6 remedies. Griffin, 557 F.3d at 1120. Rather, the intent of the grievance is to “alert the prison to 7 the nature of the wrong for which redress is sought.” Sapp, 623 F.3d at 824. 8 In Griffin, a prisoner was taking prescription medications for a medical condition that led 9 to impaired vision and depth perception making it difficult for him to access his upper bunk. 557 10 F.3d at 1118. After falling from the top bunk, Griffin filed a grievance requesting 11 accommodations for accessing the top bunk. Id. While his grievance was pending, the prison 12 nurse issued an order for a lower-bunk assignment that prison staff disregarded. Id. at 1118-19. 13 The inmate then appealed his grievance on the access issue for the top bunk but did not mention 14 the fact that prison staff disregarded the nurse’s lower bunk chrono. Id. at 1119. Since plaintiff’s 15 claim in his lawsuit was that prison staff failed to comply with the nurse’s order, the Ninth Circuit 16 held that Griffin failed to properly exhaust because the prison officials had concluded, based on 17 the limited information included in the grievance, that the only issue was one of access and that 18 the nurse’s lower bunk chrono resolved the issue. Id. at 1121. The court held that the grievance 19 did not “provide enough information ... to allow prison officials to take appropriate responsive 20 measures” to any claim premised on the staff’s alleged failure to abide by the nurse’s order. Id. 21 (citations omitted). 22 In contrast, in this case the wrong identified by plaintiff in Appeal 1336 was the denial of 23 the SRS—a necessary component of which is a vaginoplasty—and related surgeries, and the 24 relief that she sought was the SRS and those other surgeries. As Griffin noted, “[t]he primary 25 purpose of a grievance is to alert the prison to a problem and facilitate its resolution….” 557 F.3d 26 27 28 administrative remedies rather than the CDCR's administrative remedies. Whatever the former requirements may have been in the CDCR and whatever requirements may still exist in other facilities, since January 28, 2011, the operative regulation has required California prisoners using the CDCR's inmate appeal system to list the name(s) of the wrongdoer(s) in their administrative appeals. 16 1 at 1120 (citation omitted) (emphasis added). Had prison officials granted plaintiff’s grievance and 2 approved her request for the surgery, then it would have fully resolved the plaintiff’s complaints. For these reasons, the Court finds that Appeal 1336 was sufficient to exhaust plaintiff’s 3 4 administrative remedies as to her equal protection claim and will therefore recommend that 5 defendants’ motion for summary judgment be denied. The undersigned makes no findings at this 6 procedural posture as to whether plaintiff exhausted her available remedies for any claims related 7 to the new policy. 8 V. 9 Conclusion Based on the foregoing, the Court ORDERS: Plaintiff’s motion to amend and supplement (Doc. 56) is DENIED; 10 1. 11 The Court also RECOMMENDS: 12 1. 13 Defendants’ motion for summary judgment for failure to exhaust administrative remedies (Doc. 53) be DENIED. 14 The findings and recommendations will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 21 days after 16 being served with the findings and recommendations, the parties may file written objections with 17 the Court pursuant to Federal Rule of Civil Procedure 72. The document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” A party may respond to 19 another party’s objections by filing a response within 21 days after being served with a copy of the 20 objections. The parties are advised that failure to file objections within the specified time may result 21 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 22 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 25 IT IS SO ORDERED. Dated: September 24, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28 17
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