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Rodriguez v. Kopp

United States District Court, D. Maryland

February 12, 2019

ROSALYN ALYSSA RODRIGUEZ, aka Michael A. Jones, Alyssa V. Hope, [1] Prisoner ID #420-162, Plaintiff
v.
NANCY K. KOPP, State Treasurer of Maryland, LAWRENCE J. HOGAN, Governor, JOHN DOE, Executive Director, North Region, [2] STEVEN T. MOYER, Secretary, DAYENA M. CORCORAN, Commissioner, MAHBOOB ASHRAF, Doctor, [3] FRANK B. BISHOP, Warden, JORDAN TICHNELL, Manager, Defendants

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         The pro 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)[4] 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, 2).[5] Rodriguez asks for preliminary[6] 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).

         Defendants 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.

         After 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.

         BACKGROUND

         Rodriguez[7] 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.

         This is 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), [8] filed October 8, 2015, the Honorable Judge George L. Russell found Defendants[9] 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.

         Notably, 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.

         I. EVALUATION AND TREATMENT

         Rodriguez 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[10] 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.

         A 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.

         On 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).[11] Liller[12] 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).

         Liller 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 other diagnosis.

Liller Decl., ECF 25-5 ¶3.

         Liller 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.

         On 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.)

         Liller 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 ¶8).

         On 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.[13] 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).

         II. SAFETY AND HOUSING

         Rodriguez 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).

         The 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).

         On July 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).

         Bishop 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.

         Rodriguez claims she is in danger in the medical room when she is around other inmates who are gang members or Muslim, [14] 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.

         Rodriguez is on Disciplinary Segregation until September II, 2019.[15] 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.

         There 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)[16] 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.

         STANDARD OF REVIEW

         Because 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).

         A court "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.)).

         Defendants 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.

         Under 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 ...


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