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Levy v. Wexford Health Sources, Inc.

United States District Court, D. Maryland

March 7, 2016

MS. SHAWNTE ANNE LEVY, a/k/a EL SOUDANI EL WAHHABI, #416-369 Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, GREGG L. HERSHBERGER, COMMISSIONER; and FRANK B. BISHOP, WARDEN, Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG United States District Judge

Plaintiff Shawnte Anne Levy (“Levy”), also known as El Soudani El Wahhabi, has been diagnosed with several psychiatric disorders and is currently incarcerated at North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. Levy has been diagnosed with Gender Identity Disorder (“GID”), or gender dysphoria, a condition under which a person feels strongly that he or she is not the gender of his or her physical appearance. She[1] has filed a Complaint under 42 U.S.C. § 1983 against Wexford Health Sources, Inc. (“Wexford”), the health care provider under contract to provide certain medical services to Maryland state prisoners; the Maryland Department of Public Safety and Correctional Services (“DPSCS”); former Division of Correction (“DOC”) Commissioner Gregg L. Hershberger;[2] and NBCI Warden Frank Bishop. Levy seeks injunctive relief in the form of estrogen medication and transgender psychotherapy based on her allegations that Defendants have violated her rights under the Eighth and Fourteenth Amendments to the United States Constitution and the Maryland Declaration of Rights by denying her requests for such treatment.[3] Levy also asserts that this denial of treatment has violated her rights under the Fairness for All Marylanders Act, Md. Code Ann., State Gov’t, § 20-304 (2015).[4] She further alleges a violation of the Fourteenth Amendment based on NBCI’s failure to formally list her name in prison records as “Shawnte Anne Levy, ” despite the fact that she has had her name legally changed, and seeks injunctive relief to require NBCI to update her commitment record to reflect that name change.

Pending before the Court are: Wexford’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment; a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment filed by DPSCS, Hershberger, and Bishop (collectively, the “Correctional Defendants”); Levy’s Motion for Partial Summary Judgment; Levy’s Motion for a Temporary Restraining Order and Preliminary Injunction; the Correctional Defendants’ Motion to Strike Levy’s Supplemental Complaint; and Wexford’s Supplemental and Amended Motions for Summary Judgment. No hearing is necessary to resolve the Motions. See D. Md. Local R. 105.6. For the reasons that follow, Wexford’s Motions to Dismiss or for Summary Judgment are GRANTED IN PART and DENIED IN PART; the Correctional Defendants’ Motion to Dismiss or for Summary Judgment is GRANTED IN PART and DENIED IN PART; Levy’s Motion for Partial Summary Judgment is DENIED; Levy’s Motion for a Temporary Restraining Order or for a Preliminary Injunction is DENIED; and the Correctional Defendants’ Motion to Strike is DENIED.

BACKGROUND

I. Gender Identification Disorder

The parties do not explain the circumstances that led to Levy’s confinement at NBCI. What is known is that Levy, then known as El Wahhabi, was committed to Clifton T. Perkins Hospital Center (“CTPHC”)[5] for psychiatric treatment, but was transferred to DPSCS after she murdered a fellow patient. Levy was transferred to NBCI on September 16, 2013. Within a week of that transfer, Levy wrote the first of several letters to NCBI Psychology Department Director Bruce Liller, asking for GID and transgender health care and amenities.

While at NBCI, Levy has received medical care from Wexford and mental health care from DPSCS staff and employees of MHM Services, Inc. (“MHM”), the entity under contract with the DPSCS to provide mental health services. Levy repeatedly told prison mental health personnel that she had been diagnosed with GID, and she repeatedly requested GID treatment. As part of her efforts, on March 24, 2014, Levy filed a request for an administrative remedy (“ARP”) in which she expressly directed NBCI officials to her medical records from CTPHC, which she stated would document her GID diagnosis dating back to 1984. Despite this information, it does not appear that Defendants ever sought or obtained those records until after Levy filed suit. Instead, prison mental health personnel repeatedly characterized Levy’s claim that she suffered from GID as self-diagnosed, even as they noted her depression and attempts at self-mutilation.

Because the prison mental health staff believed that Levy did not have a GID diagnosis, they repeatedly informed her that, under prison policy, she was not entitled to the transgender treatment that she was seeking. That policy is a part of a February 22, 2012 DPSCS Office of Clinical Services/Inmate Health Services Medical Evaluations Manual, in effect at the time Levy entered NBCI, which states that DPSCS will provide transgender treatment only to inmates who have a transgender diagnosis prior to entering the prison, or prior enrollment in a certified Transgender Program. Wexford, as the primary medical contractor to DPSCS prisons, is contractually obligated to follow this policy.

Levy’s March 24, 2014 ARP regarding the prison’s failure to provide her GID treatment was denied the next day after the prison determined that it was “frivolous” and “without merit” because Levy was “indeed a male inmate.” Compl. Ex. 1 at 2, ECF No. 1-1.[6] The denial admonished Levy that “inmates may not seek remedy through a complaint which is not serious or practical in content or form.” Id. That dismissal was signed by a member of prison staff on behalf of Warden Bishop. Levy appealed that denial to the Inmate Grievance Office (“IGO”). On December 8, 2014, the IGO instructed Levy to provide the medical records referenced in the ARP within 30 days. When Levy failed to obtain the records from CTPHC and submit them, the IGO administratively closed her appeal.

Levy filed her Complaint in this Court on November 20, 2014, seeking an injunction requiring that she be provided with estrogen medication and GID psychotherapy. On May 29, 2015, James K. Holwager, Director of Mental Health for DPSCS, submitted a Declaration stating that he recently received copies of Levy’s mental health records from CTPHC, including summaries of her mental health care and diagnosis. After reviewing the medical records, Holwager concluded that Levy is suffering from multiple simultaneous conditions, including GID. Holwager noted that Levy currently is housed in the Special Needs Unit for management of the mentally ill and that she receives care for her psychiatric diagnoses through MHM and mental health care from staff of the psychology department at NBCI. Based on Levy’s prior diagnosis, Holwager recommended that Levy be considered a candidate for treatment with hormones, and if such treatment is approved, that she be allowed to wear female undergarments. On June 11, 2015, Levy filed an Amended Complaint in which she reiterated that she is seeking an injunction requiring that she receive estrogen medication and GID psychotherapy.

In July 2015, Levy was evaluated for possible hormone therapy treatment and was referred to a University of Maryland endocrinologist. Levy was also authorized to wear a sports bra. On August 24, 2015, Levy was examined by an endocrinologist at University of Maryland Medical Center. In October 2015, she had blood work to determine whether she could proceed with hormone therapy. On December 10, 2015, she had another appointment with the endocrinologist, at which a follow-up appointment was scheduled for January 28, 2016.

On January 27, 2016, however, Levy submitted a verified “Supplement Complaint” asserting that Defendants have violated their policy on transgender treatment, that the hormone treatment has not proceeded, that she continues to suffer mental anguish and depression, and that she considers self-mutilation. On February 10, 2016, the Correctional Defendants filed a Motion to Strike Levy’s Supplemental Complaint, asserting that it was procedurally improper.

Also on January 27, 2016, Levy filed a Motion for a Temporary Restraining Order and Preliminary Injunction seeking an order mandating that the treatment commence. The next day, on January 28, 2016, Levy was seen by the endocrinologist and received a hormone treatment plan consisting of two different medications, spironolactone and estradiol. On February 24, 2016, Levy reported that on February 13, 2016, she received her first supply of spironolactone, but that on February 17, 2016, a correctional officer ordered her to surrender the spironolactone. She also reported that she had not yet received the estradiol, which comes in patch form.

II. Name Change

On March 26, 2014, Levy, then legally known as El Soudani El Wahhabi, filed an action in the Circuit Court for Allegany County seeking a name change. See In the Matter of: El Soudani El Wahhabi, Case No. 01C14040428 (Cir. Ct. Allegany Cty.), available at: http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis. On January 5, ...


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