United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
Stephen Mover. Sharon Baucom. M.D.. Randall S. Nero. Bruce
Liller, Lauren Beitzcl. and Assistant Warden Jeff
Nines move to dismiss the above-entitled civil
rights action or in the alternative for summary judgment. ECF
No. 17. Plaintiff opposes Defendants" Response to Show
Cause, ECF No. 12. raising matters identical to those raised
in Plaintiff's initial Motion for Preliminary Injunction.
F.CF No. 3. and moves for appointment of counsel. ECF No. 14.
No. hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For
the following reasons. Defendants" Motion is granted, in
part, and denied, in part. Plaintiffs Motion for Appointment
of Counsel is granted.
Amber Canter, formerly known as Charles Canter, is a person
who is anatomically male, but identifies as female. At the
time her Complaint was filed. Canter was incarcerated in
North Branch Correctional Institution ("NBCT"). an
all-male prison located in Cumberland. Maryland and operated
by the Maryland Department of Public Safety and Correctional
Services (DPSCS). While this case was pending. Canter was
released on parole. See ECF No. 17-1 at 10; ECF No.
Complaint. Canter asserts that she suffers from gender
dysphoria but because of the DPSCS "freeze-frame"
policy and its failure to provide an official diagnosis, she
was denied hormone treatment resulting in numerous acts of
self-injury (including attempts at self-castration) and
approximately 18 attempts at suicide. ECF No. 1 at 8. Canter
explains that she was receiving hormone treatment prior to
her incarceration in 2013 on "the black market"
from a doctor. Those treatments included injections with
Premarin, an estrogen-based drug. In addition. Canter asserts
that she developed breast lumps with leakage which were
caused by withdrawal from estrogen, hi. at 10.
Despite her many attempts on her own life. Canter claims the
only treatment she received was 45 minutes of counseling
once-a-month. When Canter sought hormone treatments from
prison medical care providers, she was told she could not
have them because she had not been diagnosed as having gender
dysphoria by the psychology department at NBC I. Id.
sought a preliminary injunction and Court Order requiring
Defendants to provide treatment for her gender dysphoria. ECF
No. 3. Thereafter, the Court issued an Order to Show Cause to
Defendants to show why injunctive relief should not be
granted in her favor, given the serious allegations raised.
ECF No. 5. In response to that Order. Defendants maintained
that Canter had not been identified as someone suffering
gender dysphoria and provided assurances to the Court that
Canter would be evaluated by a psychologist from Johns
Hopkins Hospital, Dr. Kraft, to better assess her needs for
treatment. ECF No. 9. Defendants further stated that Canter
would be reassessed for gender dysphoria on June 2, 2017.
tiled a Reply on June 12. 2017. stating that there had been
no reassessment as stated by Defendants, nor had she been
seen by Dr. Kraft as represented by Defendants in their
response. ECF No. 12. Subsequent to that Reply. Canter filed
a Motion to Appoint Counsel. ECF No. 14. stating that the
promised assessment by Dr. Kraft had yet to occur and that
Defendants were not allowing Canter to have copies of her
medical and mental health records. Canter further provided
the name of counsel willing to represent her in this case.
Motion to Dismiss or for Summary Judgment restates the
position made in the Response to Show Cause-that Canter was
never diagnosed as suffering from gender dysphoria-and
asserts that the claim for injunctive relief is now moot due
to Canter's release from incarceration. ECF No. 17. The
declarations under oath from Defendants Nero. Filler. Nines,
and Beitzel assert that each declarant "did not delay,
hinder or prevent Charles Canter from receiving mefn]tal
health care." ECF Nos. 17-3. -4. -5, -6. Nines adds in
his declaration under oath that he does not have any control
over the delivery of mental health services to inmates and
that the American Correctional Association accredited NBCT in
January 2017. ECF No. 17-5. Filler, who is the Mental Health
Program Manager at NBC1. states only that he is familiar with
Canter and that psychological and psychiatric treatment are
available to inmates at NBC1 upon request. ECF No. 1 7-4.
None of the Defendants, all of whom aver they are
"familiar" with Canter, provide any statements
regarding Canter personally. There are no medical or
psychology records submitted, nor do Defendants deny that
Canter attempted suicide, engaged in self-injurious acts, and
presented as female in appearance. Defendants do not address
the failure to have Canter evaluated by Dr. Kraft prior to
her release from incarceration, they simply rely on the fact
that Canter was not diagnosed with gender dysphoria and
therefore did not fall within the purview of the policy
governing treatment of inmates suffering with gender
dysphoria to otherwise warrant treatment. See ECF
STANDARD OF REVIEW
Motion to Dismiss
purpose of a motion to dismiss pursuant to Fed.R.Civ.P.
I2(b)(6) is to test the sufficiency of a plaintiff's
complaint. See Edwards v. Galdsboro, 178 F.3d 231,
243 (4th Cir.1999). The Supreme Court has articulated the
proper framework for analysis:
Federal Rule of Civil Procedure 8(a)(2) requires only "a
short and plain statement of the claim showing that the
pleader is entitled to relief." in order to "give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Conley v. Gibson,
355 U.S. 41. 47 (1957) (abrogated on other grounds).
While a complaint attacked by a Rule 1 2(h)(6) motion to
dismiss does not need detailed factual allegations, ibid;
Sanjuan v. American Board of Psychiatry and Neurology,
Inc., 40 F.3d 247. 251 (7th Cir. 1994), a plaintiffs
obligation to provide the "'grounds" of his
"entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. see Papasan v. Attain,
478 U.S. 265. 286 (1986) (on a motion to dismiss, courts
"are not bound to accept as true a legal conclusion
couched as a factual allegation"). Factual allegations
must be enough to raise a right to relief above the
speculative level, see 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216. pp. 235-236 (3d
ed. 2004) (hereinafter Wright & Miller) ("[T]he
pleading must contain something more . . . than ... a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action"), on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact), see, e.g.. Swierkiewicz v. Sorenia
N.A., 534 U.S. 506. 508 n.l (2002): Neitzke v.
Williams. 490 U.S. 319. 327(1989) ("Rule I2(b)(6)
does not countenance . . . dismissals based on a judge's
disbelief of a complaint's factual allegations"):
Scheuer v. Rhodes. 416 U.S. 232. 236 (1974) (a
well-pleaded complaint may proceed even if it appears
"that a recovery is very remote and unlikely").
Bell Atlantic Corp. v. Twombly 550 U.S. 544. 555
(2007) (footnotes omitted).
standard does not require a defendant to establish
"beyond doubt" that a plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief. Id. at 561. Once a claim has been staled
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint,
Id. at 562. The Court need not. however, accept
unsupported legal allegations, see Reverie v. Charles Cty
Comm'rs,882 F.2d 870. 873 (4th Cir. 1989). legal
conclusions couched as factual allegations, see Papasan
v. Attain,478 U.S. 265. 286 (1986). or ...