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Levy v. Wexford Medical Sources, Inc.

United States District Court, D. Maryland

August 9, 2017

SHAWNTE ANNE LEVY, a/k/a EL SOUDANI EL WAHHABI, Prisoner Identification No. 416369, Plaintiff,
v.
WEXFORD MEDICAL SOURCES, INC.; FRANK B. BISHOP, WARDEN; and GREGG L. HERSHBERGER, COMMISSIONER; Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE

         Plaintiff Shawnte Anne Levy, previously known as El Soudani El Wahhabi, is currently incarcerated at North Branch Correctional Institution ("NBCI") in Cumberland, Maryland. Levy has been diagnosed with Gender Dysphoria ("GD"), formerly referred to as Gender Identity Disorder, a condition under which a person feels strongly that he or she is not the gender of his or her birth. Levy[1] filed a Complaint under 42 U.S.C. § 1983 against former Division of Correction Commissioner Gregg L. Hershberger;[2] NBCI Warden Frank Bishop (collectively, the "Correctional Defendants"); Wexford Health Sources, Inc. ("Wexford"), the health care provider under contract to provide certain medical services to Maryland state prisoners; and the Maryland Department of Public Safety and Correctional Services ("DPSCS"), which has since been dismissed as a defendant. Levy alleged several causes of action, the only remaining of which is her allegation that Defendants violated her rights under the Eighth and Fourteenth Amendments to the United States Constitution and under the Maryland Declaration of Rights by not providing her with hormone therapy and psychotherapy as treatment for GD.[3] In a March 7, 2016 Memorandum Opinion and Order resolving Defendants' Motions to Dismiss or, in the Alternative, for Summary Judgment and Levy's Motion for Partial Summary Judgment, the Court found that Levy's claim for GD treatment was likely moot because Defendants conceded that Levy was entitled to treatment. In an abundance of caution, the Court instituted a six-month monitoring period to ensure full implementation of that treatment. That compliance period has ended, and Defendants have each filed a renewed Motion for Summary Judgment. Also pending are Levy's Motion to Appoint Counsel, her Motion to Amend the Complaint, her Motion for a Preliminary Injunction, and her Motion for Partial Summary Judgment. Having reviewed the parties' submissions, the Court finds no hearing necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Wexford's Motion for Summary Judgment is granted, the Correctional Defendants' Motion for Summary Judgment is granted, Levy's Motion to Appoint Counsel is denied, her Motion to Amend the Complaint is denied, her Motion for a Preliminary Injunction is denied, and her Motion for Partial Summary Judgment is denied.

         BACKGROUND

         The prior factual background of this case is set forth in the Court's March 7, 2016 Memorandum Opinion. Levy v. Wexford, No. TDC-14-3678, 2016 WL 865364 at *l-3 (D. Md. Mar. 7, 2016). The Court therefore summarizes such background as necessary and sets forth subsequent facts and procedural history relevant to the pending Motions.

         Shortly after her arrival at NBCI in September 2013, Levy informed prison medical staff that she suffered from GD and asked for treatment. She was refused. Medical staff told her that NBCI had no record of any GD diagnosis such that, under DPSCS policy, she would receive no treatment. That policy was contained in a February 22, 2012 DPSCS Office of Clinical Services/Inmate Health Services Medical Evaluations Manual, in effect at the time Levy entered NBCI, and stated that DPSCS will provide transgender treatment only to inmates who have either 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 DPSCS policy.

         On March 24, 2014, Levy filed a Request for Administrative Remedy under the Administrative Remedy Procedure ("ARP") in which she asserted that she had been diagnosed with GD prior to her incarceration at NBCI and asked to receive estrogen hormone therapy and transgender counseling for her condition. She also asked to be allowed to wear women's clothing, to wear makeup, and to shave three times a week. The ARP was denied the next day as frivolous. Levy appealed that denial to the Inmate Grievance Office ("IGO"). On December 8, 2014, the IGO instructed Levy to provide within 30 days the medical records substantiating her claims of a GD diagnosis. Levy failed to submit any records, so the IGO administratively closed her appeal. That IGO appeal was the only one filed by Levy in 2014.

         Meanwhile, on November 20, 2014, Levy filed suit in this Court alleging that she was receiving constitutionally inadequate treatment for her GD and seeking injunctive relief in the form of hormone therapy and psychotherapy. Levy attached her original ARP to her Complaint. At some point in May 2015, DPSCS received copies of Levy's mental health records from the Clifton T. Perkins Hospital Center, a psychiatric hospital where she had previously been confined. Those records confirmed that Levy had been diagnosed with GD prior to her incarceration at NBCI. As a result, Levy, in accordance with prison policy, was sent to a University of Maryland endocrinologist for an evaluation to begin hormone treatment. On January 28, 2016, Levy was placed on a hormone treatment plan consisting of the provision of spironolactone and estradiol.

         With the start of Levy's treatment for GD, the Wexford and the Correctional Defendants moved for dismissal or summary judgment, arguing primarily that Levy's claims were moot. Levy opposed those Motions, asserting that although she had been prescribed hormone therapy, she was not yet reliably receiving her treatment. In a March 7, 2016 Memorandum Opinion, this Court concluded that dismissal of Levy's claims on the basis of mootness was premature and thus denied the motions without prejudice to renewal at the end of a six-month compliance period. The Court ordered Defendants during that six-month compliance period to provide status reports every 60 days, to which Levy would be permitted to respond.

         In the first of those three reports, submitted in May 2016, Defendants provided records establishing that as of February 25, 2016, Levy was regularly receiving hormone therapy, with only a handful of missed doses. Specifically, she was receiving a daily dose of 50 milligrams of spironolactone and was receiving 0.1 milligram transdermal patches of estradiol twice a week. On April 14, 2016, Levy had another appointment with a University of Maryland endocrinologist, who observed that, as a result of the hormone therapy, Levy had begun to develop breasts. At an April 26, 2016 appointment at NBCI, the provider requested authorization for a follow-up appointment with the endocrinologist in three months. At some point prior to May 6, 2016, Levy received female undergarments. Throughout this period, Levy received mental health treatment for her GD.

         In her response to Defendants' reports, Levy did not dispute that she had been receiving hormone treatment and women's undergarments. She did, however, assert that in April 2016, she submitted a written request to be allowed to have makeup but had not yet received a response.

         In the second report, filed in July 2016, Defendants noted that on May 6, 2016, Levy's laboratory results were sent to her endocrinologist. Those results showed that Levy's estrogen level had increased and her testosterone level had decreased. On May 11, 2016, prison medical staff reviewed those results with Levy. At a May 24, 2016 appointment at NBCI, Levy asked to have her estrogen dose increased. Medical staff informed her that her laboratory results had been sent to her endocrinologist, who had not yet provided updated treatment recommendations. On May 31, 2016, Levy again went to prison medical services asking for her estrogen dose to be increased, expressing disappointment with how long her gender transition was taking. Medical staff explained that transgender treatment is a slow process. On June 10, 2016, Levy's endocrinologist acknowledged receipt of Levy's test results and instructed Wexford to continue Levy's hormone treatment at the same levels. Throughout this period, Levy regularly received both hormone treatment and mental health treatment.

         In her response to Defendants' report, Levy did not dispute that she had been receiving hormone treatment as prescribed, but asserted that she was not provided with certain mental health and psychiatric records as part of Defendants' report.

         In the third report, filed in September 2016, Defendants noted that Levy was seen by her endocrinologist on July 14, 2016 for her three-month follow up appointment. Based on that visit, Levy's hormone doses were doubled to 100 milligrams of spironolactone daily and 0.2 milligram transdermal patches of estradiol twice a week. On July 21, 2016, Wexford updated Levy's prescriptions accordingly. Levy was instructed to get blood work done in six weeks and to return for a follow-up appointment in three to four months. During this period, Levy received all prescribed hormone medications and continued to receive mental health treatment for her GD. At one of those mental health appointments, she expressed her eagerness for sex-reassignment surgery.

         On August 15, 2016, DPSCS issued a revised policy on the treatment of inmates with GD. That policy commits DPSCS not only to the treatment of inmates diagnosed with GD prior to incarceration, as in Levy's case and as required under the previous policy, but also to the treatment of inmates first diagnosed with GD during incarceration. As relevant here, that policy requires a GD-diagnosed inmate's prison mental health clinician to develop an initial individualized treatment plan in consultation with (1) the inmate's treating psychiatrist, (2) DPSCS's Regional Director of Mental Health, (3) any other clinicians providing relevant treatment, and (4) the Regional Treatment Team ("RTT"), which consists of the Regional Director or a designee, the Regional Psychiatrist, the Regional Medical Director, prison staff as needed, and any other medical staff as needed. That initial plan is then to be sent to the RTT for approval and, if warranted, for referral of the inmate to a specialist for treatment.

         Levy submitted no rebuttal to Defendants' third status report. Instead, she submitted a Motion for Partial Summary Judgment in which she confirmed that she has been receiving her hormone therapy, that she is being allowed to wear female undergarments, and that she is being provided with regular mental health counseling. She complained, however, that she was not allowed to purchase eyeliner or a hair relaxer kit from the NBCI commissary. She also asserted that she has not yet had sex-reassignment surgery and argues that the failure of Defendants to schedule that procedure amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. In support of the latter contention, Levy asserts that on May 18, 2016, she asked to be referred to a GD specialist for a surgical consultation, but that such consultation never took place. Levy also asserts that on August 16, 2016, a member of the Wexford medical staff speculated that Levy would not receive sex-reassignment surgery.

         Levy has made several additional filings, each of which will be discussed in turn. As part of those filings and Defendants' responses to them, the following additional medical history has been submitted to the Court. On October 18, 2016, Levy was examined by prison medical personnel for genital bleeding as result of her tying up her genitals. She also complained of headaches related to the change in her spironolactone dose. On November 9, 2016, Levy filed a request that this Court, pursuant to Federal Rule of Civil Procedure 35, order an examination by a GD specialist relating to sex reassignment surgery, but provided no factual basis or legal support for that request. The next day, November 10, 2016, at a visit to her endocrinologist, Levy asked that her spironolactone dose be doubled to 200 mg per day and also asked for the names of doctors who could perform sex-reassignment surgery. Levy's endocrinologist noted that Levy's estrogen levels were above the therapeutic goal but, after reviewing with Levy the risks of elevated estrogen levels, made no adjustment to the daily 100 milligrams of spironolactone and twice weekly 0.2 milligram patches of estradiol that had previously been prescribed. The endocrinologist recommended that Levy continue to receive psychological counseling in tandem with her hormone therapy. The endocrinologist further recommended that Levy be referred to a urologist for an evaluation of an inguinal hernia, as well as for a possible orchiectomy, a surgical procedure to remove one or both testicles. No medical basis for the orchiectomy was noted. That urology consultation was ordered by the prison on December 5, 2016.

         Following the endocrinologist's report, on December 6, 2016, Defendants convened a meeting with Levy and a number of her medical providers, including Dr. Mulugeta B. Akal, the DPSCS Regional Medical Director; Bruce Liller, her mental health counselor; and Krista Bilak, her primary Nurse Practitioner, to discuss the possibility of an orchiectomy. At that meeting, Liller suggested that any consideration of body-altering surgery be approached cautiously in light of the fact that Levy has not only GD but also schizoaffective disorder and psychosis. Liller remarked as well that Levy had been undergoing hormone therapy for only about six months, noting that literature on GD recommends that patients undergo hormone therapy for at least a year before progressing to sex-reassignment surgery. Liller suggested that the question of an orchiectomy be put before the RTT for further discussion. After a therapy session with Levy the following day, Liller noted that there was a need for a reassessment of her other mental health diagnoses based on divergences between those diagnoses and her symptoms, a need to better understand the triggers to her psychosis, and a need to further discuss the nature of sex-reassignment surgery and ensure that Levy understood that some individuals with GD obtain no relief from symptoms even after sex reassignment. Liller also increased the frequency of Levy's therapy sessions from once a month to twice a month.

         On January 23, 2017, Levy filed what she titled an "Order to Show Cause for a Preliminary Injunction, " which the Court construes as a Motion for a Preliminary Injunction, seeking an order requiring that Levy receive sex-reassignment surgery. In that Motion, Levy asserts that Defendants are wrongfully denying her an orchiectomy, which she characterizes as medically ...


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