United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEMA, District Judge.
Ashley Jean Arnold, a federal inmate at Federal Correctional Institution Petersburg ("FCI Petersburg"), proceeding pro, se, has filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the defendants, Eric D. Wilson, warden of FCI Petersburg; Charles E. Samuels, Jr., Director of the Federal Bureau of Prisons ("130P"); Dr. Jorge Vazquez-Velazquez, BOP medical doctor; and Dr. Donald Lewis, Chief Psychiatrist, have shown deliberate indifference to her serious medical needs by depriving her of treatment for her gender identity disorder ("GID"). Each defendant is sued in his official and individual capacity.
On April 11, 2014, defendants filed a Motion to Dismiss and for Summary Judgment, accompanied by a supporting memorandum and exhibits. See Dkt. No. 35, 36. After being given the opportunity to file responsive materials in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1997) and Local Rule 7(K), plaintiff filed a response on June 10, 2014. See Dkt. No. 44 (Sealed), 56 (Redacted). Defendants filed a reply on June 20, 2014. See Dkt. No. 48, 57 (Redacted), 54 (Sealed). On September 18, 2014, plaintiff filed a "Motion for Leave to File Amended Complaint, " in which she seeks to add Dr. Katherine Laybourn, Dr. Krystal Bailey. and Susan Rice as defendants; and to add new causes of action to the lawsuit. For the reasons that follow, the Court will grant defendants' Motion for Summary Judgment and deny plaintiff's motion, without prejudice to her ability to file a new lawsuit against the new defendants, based on the new causes of action.
It is undisputed that plaintiff is a transgender woman. Although she was a born a biological male, she "has long considered herself to be female." Complaint ("Compl.") Dkt. No. ] ¶ 8. She is currently serving a 300-month term of imprisonment at FCI Petersburg, imposed after pleading guilty to production of child pornography. Id . ¶ 7. On March 23, 2012, a BOP psychologist diagnosed plaintiff as suffering from GID. Id . ¶ 11. According to the American Psychiatric Association's Diagnostic and Statistical Manual olMental Disorders (DSM-IV), GID, also known as"gender dysphoria, " is a strong desire to be a member of the opposite sex, and a feeling that one actually is a member of the opposite sex. See id. ¶ 10; Memorandum of Law in Support of Defendants' Motion to Dismiss and for Summary Judgment ("Defs.' Mem.") [Dkt. No. 36], at 3 ¶ 2. Many individuals with GID, including plaintiff, desire to transition from their birth gender to the gender that they feel they truly are. Such a transition is accomplished by a variety of different treatment methods, including real-life experience living as the other gender, hormone therapy, psychotherapy, and sex reassignment surgery. See Defs.' Mem., at 3 ¶ 3; Plaintiff s Response to Defendants' Motion to Dismiss and for Summary Judgment ("Pl.'s Resp.") [Dkt. 44] (Sealed) Ex. A7-A8.
In 2012, the BOP issued a program statement, 6031.01, explaining that inmates with GID would receive individualized treatment, tailored to the inmate's "life experiences prior to incarceration as well as experiences during incarceration." Defs. Mem. Ex. 3, at ¶ 30. To create an individualized treatment plan, the BOP considers "all appropriate treatment options... in currently accepted standards of care, " including hormone therapy, "those elements of the real life experience consistent with the prison environment, " and psychotherapy. Id . In order fer an inmate with GM to obtain hormone therapy, an inmate must go through BOP's "non-formulary review process." See id.; see also Ex. 4 (Lewis Decl.) ¶¶ 5, 7. This process requires approval of the hormones by the institution pharmacist, the clinical director of the local facility, and the regional pharmacist. The prescription is then presented to the chief psychiatrist or medical director for final approval. See Lewis Decl. ¶ 6.
Since being diagnosed with GID, plaintiff has received psychotherapy on a regular basis, often monthly or hi-weekly. See, e.g., Pl.'s Resp. Ex. E5 (plaintiff discussed "meeting every other week" with her therapist "to address [negative emotions]"). In April 2012, shortly after plaintiff's initial GID diagnosis, FCI Petersburg's clinical director recommended that plaintiff receive several blood tests and a chest x-ray, in preparation for a visit with an endocrinologist and eventual hormone therapy. See Deis.' Mem., at 4 ¶ 7; Ex. 5, at 4. BOP's medical staff determined that inmates with GID, like plaintiff, should consult an endocrinologist before obtaining hormone therapy, due to the potentially serious physical side effects of hormone therapy. See id. Ex. 6 (Laybourn Decl.) ¶ 3. Plaintiff disagrees with this assessment of medical necessity, and offers evidence that two other GID inmates received hormones without prior visits to an endocrinologist. See Pl.'s Resp., at 10-12; Ex. I (Brown Decl.). The defendants concede that two inmates were allowed to receive hormones without consulting an endocrinologist, but point out that, unlike plaintiff, those two inmates had been receiving hormone therapy for many years before their incarceration. See Defendants' Reply Memorandum in Support of Motion to Dismiss and for Summary Judgment ("Defs.' Reply") [Dkt. 541 (Sealed) Ex. 1 (Layboum Stipp. Decl.) ¶¶ 2. 3. For this reason, the defendants did not find that the other inmates needed to be evaluated by an endocrinologist before beginning hormone therapy. Id.
Plaintiff met with an endocrinologist at FMC Butner on March 5, 2013. Compl. ¶ 48. The endocrinologist recommended several tests, which plaintiff received in the following weeks. Defs.' Mem, at 7 ¶¶ 16-17. On January 27, 2014, plaintiff returned to Butner to meet with a new endocrinologist. Id. at 8 ¶ 18. On January 28, 2014, plaintiff was prescribed female hormones. See id. at 9 ¶ 20; Ex. 5, at 44-46. Defendants allege that the process of prescribing hormones to plaintiff took almost two years due to initial trouble finding an available endocrinologist. Because there was no endocrinologist on staff at FCI Petersburg, plaintiff had to first be evaluated at FMC Butner. Before she began receiving hormone treatment, plaintiff was referred to Butner for evaluation by a second endocrinologist. See, e.g., Defs.' Mem., at 5 ¶ 10-7 ¶ 16; 8 ¶¶ 18-19. Plaintiff alleges that the delay was actually caused by defendants' deliberate indifference to her medical needs. See. e.g., Pl.'s Resp., at 3.
Plaintiff also complains that she has not been allowed to wear makeup, possess female commissary products, and take Finasteride, an anti-androgen used to treat male pattern baldness, and has filed several grievances addressing these complaints. See Compl. ¶¶ 33-38, 42-47, 51, 58-59; Defs.' Mem. Ex. 11 (Wilson Decl.) 3; Ex. 12, at 3. Although defendant Wilson, the warden of FCI Petersburg, has allowed plaintiff to wear a sports bra, the BOP has denied all of plaintiff's other requests. See Wilson Decl. ¶ 13. FCI Petersburg, which houses an all-male population, does not allow inmates to purchase makeup. Id . 5. Citing security concerns, Wilson denied plaintiff's request for an exception to that rule, which applies to all inmates. See id. ¶¶ 8-11. Specifically, Wilson was concerned that allowing an inmate to wear makeup would make it easier for an inmate to escape. Id . ¶ 9. Wilson also had concerns about the unique atmosphere of FCI Petersburg, which has a large proportion of sex offenders among its inmates and administers a special sex offender management program. Wilson did not want to take "any risk-even a small risk-that could affect the integrity of the sex offender management program." Id . ¶ 10. Lastly, Wilson believed that, by presenting herself as feminine through the use of makeup, plaintiff put herself at an increased risk of sexual assault. Id . ¶ 11. BOP's central offices affirmed Wilson's decision. See Defs.' Mem., at 9 ¶ 22; Ex. 10, at 7-12.
In January of 2013, when plaintiff made her first request for Finasteride through the administrative grievance process, medical staff denied the request as not medically necessary. See Compl. ¶ 33; Defs.' Mem. Ex. 12; Laybourn Decl. ¶¶ 10-11. At the time, plaintiff's stated reason for requesting Finasteride was to treat her thinning hair. See Laybourn Decl. ¶ 10. BOP officials continued to deny plaintiff's administrative requests for Finasteride, finding that the drug was not medically necessary. See Defs.' Mem. Ex. 12. In later grievances, plaintiff asserted, as she does now, that the drug is actually medically necessary as part of her hormone therapy. See Pl.'s Resp., at 7-18, Ex. H4, Exs. N-P. In support, plaintiff offers a print-out from TransGcnderCare.com, which lists Finasteride as one of several anti-androgens which "[have] been used for many years by endocrinologists as a biochemical means of controlling unwanted hair growth in the genetic female." See id. Ex. H4. Anti-androgens are now widely used to treat transgendered women. Id . 130P officials have continued to deny plaintiff's request for Finasteride, finding that her treatment was adequate without the prescription. See Defs.' Mem. Ex. 12, at 17.
Plaintiff states that, because of the defendants' actions, she has suffered "great distress and anguish, " has felt suicidal, and has attempted to mutilate her genitals. Compl. ¶¶ 68-70. She states that the lack of adequate treatment has left her in state "in-between" the male and female gender. Id . ¶ 71.
II. Standard of Review
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Ci v. P. 56. The moving party bears the burden of proving that judgment on the pleadings is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (moving party bears the burden of persuasion on all relevant issues). To meet that burden, the moving party must demonstrate that no genuine issues of material fact are present for resolution. Id. at 322. Once a moving party has met its burden to show that it is entitled to judgment as a matter of law, the burden shifts to the nonmoving party to point out the specific facts which create disputed factual issues. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In evaluating a motion for summary judgment, a district court should consider the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences from the facts in favor of that party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Material facts are those facts for which the moving party bears the burden of proving. "[T]he substantive law will identify which fticts are material. Only disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputes over facts that do not ultimately affect a party's burden of proof on an element of a claim will not defeat a motion for summary judgment. An issue of material fact is genuine when, "the evidence... create[s] [al fair doubt; wholly speculative assertions will not suffice." Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). Thus, summary judgment ...