United States District Court, D. Maryland
ROSALYN ALYSSA RODRIGUEZ, aka Michael A. Jones, Alyssa V. Hope,  Prisoner ID #420-162, Plaintiff
NANCY K. KOPP, State Treasurer of Maryland, LAWRENCE J. HOGAN, Governor, JOHN DOE, Executive Director, North Region,  STEVEN T. MOYER, Secretary, DAYENA M. CORCORAN, Commissioner, MAHBOOB ASHRAF, Doctor,  FRANK B. BISHOP, Warden, JORDAN TICHNELL, Manager, Defendants
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
se Plaintiff Rosalyn Alyssa Rodriguez is suing Defendants
pursuant to 42 U.S.C. §1983. Rodriguez, who identifies
as a transgender woman and is incarcerated at North Branch
Correctional Institution in Cumberland, Maryland, initiated
this action by filing a verified Complaint that alleges
Defendants have provided inadequate evaluation and treatment
for gender dysphoria (GD) and failed to protect her from harm in
violation of her rights under the Eighth Amendment. She also
claims that Tichnell has denied her right under Equal
Protection Clause of the Fourteenth Amendment. (ECF 1,
Rodriguez asks for preliminary and permanent injunctive relief
to send her to a transgender specialist outside the prison,
to list her on prison records as a transgender woman, and to
provide her with a bra, panties, and "female
hygiene" Items. (ECF 1 at 8). She also seeks
compensatory damages of $200, 000 against each Defendant
jointly and severally and punitive damages of $250, 000
against each defendant jointly and severally. (ECF 1 at 9).
Nancy K. Kopp, Treasurer, Governor Lawrence J. Hogan,
Department of Public Safety and Correctional Services (DPSCS)
Secretary Stephen T. Moyer, Commissioner of Correction Dayena
M. Corcoran, Warden Frank B. Bishop, Jr, and Division of
Corrections (DOC) Case Manager Jordan Tichnell (collectively,
the State Defendants), have filed a Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment. (ECF 25). The
Medical Defendant Mahboob Ashraf, M.D. has filed a Motion to
Dismiss or Alternatively for Summary Judgment. (ECF 27).
Rodriguez was notified that she may file Opposition Responses
to Defendants' dispositive motions and include exhibits
and declarations. (ECF 26, 29). The Court granted Rodriguez
five extensions of time to do so, (ECF No. 28, 30, 31, 32,
33) but to date an opposition Response has not been received.
considering the parties' submissions, this Court finds a
hearing is unnecessary. See Local Rule 105.6 (D. Md.
2018). For reasons discussed below, Defendants' Motions,
will be treated as Motions for Summary Judgment and GRANTED.
Rodriguez transferred to the Maryland
DOC from Ohio via the Interstate Corrections Compact (ICC) on
November 19, 2013, as a male inmate. (Decl. of Warden Frank
Bishop, ECF 2 ¶ 11). Prior to transfer, Rodriguez was
not enrolled in a certified Transgender Program and has not
provided any documentation of previous evaluation and or
enrollment in a certified Transgender Program. (Bishop Decl.,
ECF 2 ¶ 12). Rodriguez was evaluated and determined not
to meet the diagnostic criteria for DG and thus is not
identified by the DOC as a transgender inmate as outlined in
Executive Directive OPS.131.001 "Identification,
Treatment, and Correctional Management of and Inmate
Diagnosed Gender Dysphoria." (Bishop Decl, ECF 2
¶¶ 1, 13; OPS.131.001, ECF 25-3 at 8-19). Rodriguez
remains assigned to NBC I as a male inmate. Bishop Decl., ECF
2 ¶¶ 11, 13.
Rodriguez's second action raising claims about lack of GD
treatment and alleging safety concerns. In Jones v.
Doe, Civil Action No. GLR-15-3065 (D. Md. 2016),
filed October 8, 2015, the Honorable Judge George L. Russell
found Defendants did not act with deliberate indifference
to Rodriguez's (a/k/a Michael Jones) alleged need for
medical treatment for GD because she had not been diagnosed
after evaluation as gender dysphoric. Further, Judge Russell
determined Defendants were not deliberately indifferent to a
specific known risk of harm to Rodriguez whose claims of
sexual assault by other inmates were investigated and
ultimately determined unsubstantiated. Rodriguez was informed
that she did not meet the criteria for protective custody
because she was then housed in a single cell. Based on this
evidence, Judge Russell granted Defendants' Motion for
Summary Judgment on May 26, 2016.
Rodriguez does not allege any changes since her last
evaluation that would cause reconsideration of the
determination that she does not meet GD diagnostic criteria
or to raise new concerns about her housing and safety.
EVALUATION AND TREATMENT
filed this Complaint on December 27, 2017. She asserts her
evaluation and lack of treatment for GD not comport with the
standards recognized by the World Professional Association of
Transgender Health which provides for evaluation by an
experienced practitioner and appropriate care. (ECF 1 at
3-4). She claims "upon information and belief that the
Maryland Department of Correction (DOC) has a "freeze
frame" policy that holds if a person did not receive
treatment prior to incarceration, treatment will not be
provided in prison. Warden Bishop denies the Department of
Public Safety and Correctional Services (DPSCS) has a
"freeze frame" policy for transgender inmates.
(Bishop Decl. ECF 2 ¶ 12). Rodriguez claims Governor
Hogan approved the "freeze frame policy, which includes
a "blanket ban on estrogen and hormone therapy."
(ECF 1 at 4)." Rodriguez alleges Dr. Ashraf refused her
multiple requests for GD evaluation and treatment. (ECF 1 at
4). Rodriguez faults "Defendants" for refusing to
list her in records as transgender and denying her a private
shower, panties and bra, and hormone and estrogen treatment.
(ECF 1 at 6). She claims the "freeze frame policy has
[her] on the verge of committing suicide." (ECF 1 at 6).
In Jones v. Doe, Civil Action No. GLR-15-3065, she
also alleged having suicidal ideations which she attributed
to her feelings of identifying as female. In the instant
Complaint, she does not allege that she has in fact tried to
harm herself or is suicidal.
mental health assessment and diagnosis of GD is needed for
referral for hormone and surgical treatments. Declaration of
Bruce Liller, ECF 25-5 ¶4. Once an individual is
diagnosed with GD, the generally accepted standard of care
provides that treatment may include hormone therapy, living
as a member of the opposite sex, and sex reassignment
surgery. Liller Decl. ECF 25-5 ¶5. The generally
accepted standard of care to treat GD with hormone therapy
is: 1) persistent, well-documented gender dysphoria; 2)
capacity to make a fully informed decision and consent to
treatment; 3) age of majority; and 4) if there are
significant medical or mental concerns, they must be
reasonably controlled. Liller Decl. ECF 25-5 ¶6.
December 8, 2015, Liller, a Licensed Clinical Professional
Counselor, conducted a diagnostic interview of Rodriguez and
concluded she did not meet the diagnostic criteria for GD and
is not a transgender inmate as outlined in Executive
Directive OPS. 131.001 (Declaration of Bruce Liller, ECF 25-5
¶¶ 8, 10; see also Jones v. Doe, Civil
Action No. GLR-15-3065 (D. Md. 2016), ECF
27-2). Liller allegedly told Rodriguez at a
later and unspecified date that if she wanted an additional
evaluation by a transgender specialist, she would have to pay
for it. Rodriguez claims she was informed she would not be
treated for GD because she had not received treatment
"on the street." (ECF 1 at 4).
explains the GD diagnosis process as follows:
Qualified mental health professionals conduct an assessment
for diagnosis forgender dysphoria in the context of an
evaluation of their psychosocial adjustment. The evaluation
includes assessment of gender identity and gender dysphoria,
history and development of gender dysphoric feelings, and the
impact of stigma attached to gender nonconformity on mental
health. The evaluation may result in no diagnosis, in a
formal diagnosis related to gender dysphoria, and/or in other
diagnoses that describe aspects of the client's health
and psychosocial adjustment. The role of mental health
professionals includes making reasonable sure that the gender
dysphoria is not secondary to, or better accounted for, by
Liller Decl., ECF 25-5 ¶3.
explains that Axis I (clinical condition) and Axis II
(personality disorders) comorbidity may raise concerns about
the validity of self-reported symptoms of a clinical (Axis I)
condition. Axis II conditions may lead to symptom
exaggerations, false report of symptoms, and contriving
symptoms for secondary gain. Liller Decl. ECF 25-5 ¶7.
December 4, 2015, Dr. Sharon Baucom, Director of Clinical
Services for DPSCS stated that after reviewing
Rodriguez's medical and mental health file, she
determined that Rodriguez did not have a history of GD or
receiving hormone treatment in Ohio prior to transfer to
Maryland. (ECF 27-4 ¶¶ 4, 6, 12; see Jones v.
Doe, GLR-15-3065, Decl. of Sharon Baucom, M.D. ECF 6-5
¶¶4, 6, 12.)
states Rodriguez's "clinical picture was dominated
by Axis II symptomology which 'clouds' his claims of
gender dysphoria." (Liller Decl. ECF 25-5 ¶8).
Liller described Rodriguez's actions as "best
accounted for by his primary diagnosis of Antisocial
Personality Disorder, Narcissistic Personality Disorder, and
Posttraumatic Stress Disorder. (Liller Decl. ECF 25-5
February 2, 2016, a multi-disciplinary team met to discuss
Rodriguez's GD concerns. Rodriguez was not diagnosed with
GD. (Decl. of Mahboob Ashraf, ECF 27-3 ¶5). The team
added a diagnosis of Narcissistic Personality Disorder to her
record. After reviewing Rodriguez's severe Axis II
co-morbidity, historical factors, history of acting out in
multiple ways, and the absence of community treatment records
(including evidence of a GD diagnosis or treatment for GD
prior to transfer to NBCI), the team ruled out a diagnosis of
GD. (Liller Decl. ECF 25-5 ¶9). The Regional Gender
Dysphoria Committee was scheduled to review Rodriguez's
case at its next quarterly meeting. This review was to
include input from Dr. Chris Kraft, Director of Clinical
Services, Sex and Gender Clinic at the Johns Hopkins School
of Medicine. (Liller Decl. ECF 25-5 ¶10).
Rodriguez's current diagnosis is Episodic Mood Disorder,
Antisocial Personality Disorder, Narcissistic Personality
Disorder, and Posttraumatic Stress Disorder. (Liller Decl.
ECF 25-5 ¶9).
SAFETY AND HOUSING
alleges the "freeze frame" policy endangers her
safety. (ECF 1 at 5). Rodriguez asserts that she was
"forced" to find a cellmate or be placed "in a
cell with anyone." (ECF 1 at 5). Rodriguez chose Brandon
Thompson as her cellmate. She asserts that two weeks later,
Thompson assaulted and threatened to kill her. Rodriguez went
to the shower and refused to return to the cell. She was
placed on suicide watch. She alleges next day Warden Bishop
instructed Sergeant Thomas to put her in another cell and she
was forced again to choose a cellmate. This time she chose
Derek Jones. Two month later, Derek Jones allegedly informed
Rodriguez that gang members, who are not named, ordered him
to kill Rodriguez. Derek Jones recommended Rodriguez move to
a different cell, which she did. Rodriguez states she was
moved to a contingency cell as retaliation, although she does
not allege what prompted the purported retaliation or the
date of her move. (ECF 1 at 5).
State Defendants dispute Rodriguez's assertions of
danger. Case manager Tichnell states there have been no
documented threats or violence directed toward Rodriguez from
past or current cellmates. (Tichnell Decl. ECF 25-4 ¶
11). Warden Bishop denies ever ordering Rodriguez placement
in a single or double cell, and states that housing
assignments are determined by the Housing Unit Manager based
on the needs of the housing unit and its inmate residents.
(Bishop Deck ECF 25-2 ¶¶ 14-15).
12, 2016, Rodriguez was assaulted in a medical holding cell
by Tony Gater and Ricky Horton, whom she claims are two well
known gang members of the Bloods. (ECF 1 at 5; Tichnell Deck,
ECF 25-4 ¶ 11). The inmates stopped fighting when a
correctional officer ordered them to stop. (Notice of Rule
Violation, ECF 25-3 at 5, 6, 7). All three inmates were
offered medical treatment and refused. (ECF 25-3 at 5, 6, 7).
Gater and Horton, who were not listed as Rodriguez's
verified enemies at the time of the assault, were added to
her enemies' list. (Tichnell Deck, ECF 25-4 ¶ 11).
On April 19, 2018, Rodriguez signed an Enemy Retraction Form
to verify that Gater and Horton are not his enemies and they
should be deleted from his Enemy Alert Screen. (Tichnell
Deck, ECF 25-4 ¶ 14). Tichnell states he did not work at
NBCI or have prior knowledge that Gater and Horton would
assault Rodriguez. (Tichnell Deck, ECF 25-4 ¶ 14).
states Rodriguez housing has been effectively managed by
finding suitable alternatives to placement on Protective
Custody. (Bishop Deck ECF 25-2 ¶ 18). Rodriguez was
placed in Housing Unit 1 C-Tier, which has all single cells,
for almost ten months before he was assaulted in the medical
room on July 12, 2016 by Gater and Horton, and she remained
on C-Tier for five months afterward. (Bishop Deck ECF 25-2
¶¶ 14, 15). Rodriguez was celled in Housing Unit 1
C-Tier on: July 2. 2015- July 7, 2015; September 29. 2015-
February 6, 2017: February 18, 2017- July 7, 2017; and
November 7, 2017-November 1, 2018. (Bishop Decl, ECF25-2
¶ 15). Rodriguez was moved to Housing Unit 1 B-Tier
after receiving an infraction for possessing, misusing,
tampering with, damaging or destroying security equipment or
property and moved back to C-Tier on July 7, 2017 when her
disciplinary segregation period ended. (Bishop Decl. ECF 25-2
¶ 16). Rodriguez returned to disciplinary segregation on
July 25, 2017, after receiving multiple rule infractions.
claims she is in danger in the medical room when she is
around other inmates who are gang members or Muslim,
and is in danger generally because inmates can slip out of
their handcuffs and attack. ECF 1 at 5. Rodriguez alleges
that she lives in fear, has become paranoid, and exits her
cell only for showers and sick call. ECF 1 at 6. Rodriguez
asserts she expressed her fears to Tichnell and requested
placement on protective custody, but he refused her request.
ECF 1 at 5. Tichnell denies that Rodriguez asked him to
consider her for protective custody or complained she was
being threatened. Tichnell Decl. ECF 25-4 ¶6.
is on Disciplinary Segregation until September II,
2019. Tichnell Decl. ECF 25-4 ¶5. In
disciplinary segregation, she can meet with staff at least
monthly to address concerns, is separated from general
population inmates, is handcuffed and escorted by
correctional staff when outside her cell, showers alone, may
enter recreational enclosures only with an assigned cell
partner, and is closely monitored. (Tichnell Decl. ECF 25-4
¶¶ 5, 6, 16). Once Rodriguez completes her term of
disciplinary segregation sentence, corrections staff will
closely examine her housing placement. (Tichnell Decl. ECF
25-4 ¶ 5). Tichnell notes that Rodriguez has one
verified enemy within the DPSCS, and that inmate is not
housed at NBCI. Rodriguez currently shares a cell with inmate
Gary Cooper. Tichnell Decl. ECF 25-4 ¶8.
have been no verified sexual assault claims made by
Rodriguez. Tichnell Decl. ECF 25-4 ¶ 10. In 2015, the
Internal Investigation Division (IID) investigated a PREA
(Prison Rape Elimination Act) claim Rodriguez made and found
it unsubstantiated. (Bishop Decl. ECF 25-2 ¶ 18;
Tichnell Decl. ECF 25-4 ¶ 10; see also Jones v.
Doe, ECF 27-2; PREA Investigation Rep ECF20-12 at 5-8,
17-20). As noted, have been no documented threats or
incidents of violence directed toward Rodriguez from past or
current cellmates. Tichnell Decl. ECF 25-4 ¶ 11.
Rodriguez is self-represented, this Court liberally construes
his pleadings and holds them to "less stringent
standards than formal pleadings drafted by lawyers."
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
"is not to consider matters outside the pleadings or
resolve factual disputes when ruling on a motion to
dismiss." Bosiger v. U.S. Airways, 510 F.3d
442, 450 (4th Cir. 2007). If it does so, "the motion
must be treated as one for summary judgment under Rule
56." Fed.R.Civ.P. 12(d). Therefore, a motion styled in
this manner implicates a court's discretion under Rule
12(d) of the Federal Rules of Civil Procedure. Kensington
Vol. Fire Dept., Inc. v. Montgomery County, 788
F.Supp.2d 431, 436-37 (D. Md. 2011). A district judge has
"complete discretion to determine whether or not to
accept the submission of any material beyond the pleadings
that is offered in conjunction with a Rule 12(b)(6) motion
and rely on it, thereby converting the motion, or to reject
it or simply not consider it." Soger v. Hous.
Com'n of Anne Arundel Cty., 855 F.Supp.2d 524, 542
(D. Md. 2012) (quoting 5C Wright & Miller, Federal
Practice & Procedure § 1366, at 159 (3ded.
2004, 2011 Supp.)).
have filed Motions to Dismiss or, in the Alternative, for
Summary Judgment supported with exhibits and declarations.
(ECF 25, 27). Because the Court will consider these exhibits
and declaration. Defendants' Motions will be treated as
Motions for Summary Judgment.
Federal Rule of Civil Procedure 56(c), a court must grant
summary judgment if the record shows "that there is no
genuine issue as to any material fact and that the moving
party is entitled tojudgment as a matter of law.
"Anderson v. Liberty Lobby, Inc.,477 U.S. 242,
247 (1986). A material fact is one that "might affect
the outcome of the suit under the governing law."
Libertarian Party of Va. v. Judd,718 F.3d 308, 313
(4th Cir. 2013) (quoting Anderson, 477.S. at 248).
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine dispute of material
fact, Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986), and the court must take all facts and
inferences in the light most favorable to the non-moving
party. Scott v. Harris,550 U.S. 372, 378 (2007).
The party opposing summary judgment must, however, "do
more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus.
Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986);
see also In re Apex Express Corp.,190 F.3d 624, 633
(4th Cir. 1999). The non-movant" 'may not rest upon
the mere allegations or denials of [his] pleadings,' but
rather must;set forth specific facts showing that
there is a genuine issue for trial.'" Bouchat v.
Bait. Ravens Football Club, Inc.,346 F.3d 514, 522 (4th
Cir. 2003) (alteration in original) (quoting ...