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Levy v. Corcoran

United States District Court, D. Maryland

September 23, 2019

MS. SHAWNTE ANNE LEVY, a/k/a El Soudani El Wahhabi, #416-369, Plaintiff,
DAYENA CORCORAN, Commissioner, and SHARON BAUCOM, Director of Inmate Health Services, Defendants.



         Plaintiff Shawnte Anne Levy, a self-represented inmate at North Branch Correctional Institution ("NBCI") in Cumberland, Maryland and formerly known as El Soudani El Wahhabi, has been diagnosed with Gender Identity Disorder ("GID"), or gender dysphoria, a condition under which a person perceives strongly that he or she is not the gender of his or her physical appearance. In 2015, she filed a civil rights complaint in this Court pursuant to 42 U.S.C. § 1983 asserting that she was not receiving treatment in prison for her GID, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and seeking relief in the form of estrogen medication and transgender psychotherapy. See Levy v. Wexford, TDC-14-3678, 2016 WL 865364, at *1 (D. Md. Nov. 20, 2014) ("levy “). In that case, the Medical Defendants conceded that Levy was entitled to treatment for GID pursuant to prison policy, and after a six-month court-monitored compliance period, the Court granted Defendants' Motions for Summary Judgment. Levy v. Wexford Med. Sources, No. TDC-14-3678, 2017 WL 3431951, at *12 (D. Md. Aug. 9, 2017) ("levy II”), aff'd 710 F.App'x 157 (4th Cir. Feb. 1 2018) (per curiam). In that Opinion, the Court also denied Levy's Motion to Amend the Complaint, in which Levy asked to be granted leave to amend her Complaint to expand her deliberate indifference claims to include the failure of the prison to authorize sex reassignment surgery. Id. at *8. The Court found that allowing Levy to amend to add a claim for sex reassignment surgery would be futile because, at that point, there was no physician who had determined that such surgery was medically necessary to treat Levy's GID. Id.

         In the present lawsuit, Levy returns to the issue of sex reassignment surgery, alleging, in a civil rights complaint pursuant to 42 U.S.C. § 1983, that Defendants refuse to authorize gender-affirming surgery to treat her gender dysphoria, in violation of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. She also asserts an equal protection claim based on the refusal of prison officials to reassign her to a correctional institution for women. She complains that at NBCI, a prison for male inmates, she has been housed in a Special Needs Unit or assigned to administrative segregation, which greatly restricts her movement. Levy seeks injunctive relief that would require Defendant to provide her with sex reassignment surgery, to classify her as a woman and reassign her to a women's prison, and to provide access to women's clothing.

         Defendants have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, which Levy opposes. The Court has reviewed the pleadings and briefs and finds no hearing necessary. D. Md. Local R. 105.6. For the reasons set forth below, Defendants' Motion will be GRANTED.


         I. Sex Reassignment Surgery

         Levy's prior treatment history for GID while confined at NBCI is set forth in Levy II, 2017 WL 3431951 at *2-6. In this lawsuit, Levy revisits the claim that the Court did not previously resolve, Levy's assertion that sex reassignment surgery is medically necessary for proper treatment of her GID. Maryland Department of Public Safety and Correctional Services ("DPSCS") guidelines on the treatment of transgender inmates, codified in Executive Directive OPS. 131.0001, commit DPSCS to treat transgender inmates using an individualized treatment plan developed in consultation with a treating mental health professional, the DPSCS Regional Director of Mental Health, other clinicians providing treatment to the inmate, and the Regional Treatment Team, consisting of the Regional Director of Mental Health, the Regional Psychiatrist, and certain prison staff. That treatment plan is to conform to the standards promulgated by the National Commission on Correctional Health Care, which suggests that sex reassignment surgery should be provided when determined to be medically necessary for a patient.

         As to the medical necessity of sex reassignment surgery, Levy asserts that she is suffering severe psychological distress and depression as a result of not being biologically female. This distress is so severe, Levy contends, that she engages in genital mutilation. For example, on February 9, 2018, she reported to a prison clinician during a therapy session that she "had been bleeding between [her] legs during the night as a result of mutilative behavior" as a result of the delays in providing her with gender-affirming surgery. Levy Decl. at 1, Compl. Ex. 1, ECF 1-2.

         Levy also asserts that she has met the clinical guidelines for sex reassignment surgery. On this point, she cites the World Professional Association for Transgender Health ("WPATH") Guidelines, which require, in part, that the patient live for 12 months in the identity-congruent gender role with hormone therapy, that surgery be recommended by two physicians, and that any significant medical or mental health conditions are well controlled. As to the two-physician requirement, Levy provides January 11, 2018 clinical support progress notes from two endocrinologists, Rana Malek, M.D. and Lauren Brooks, M.D. In addition to discussing Levy's ongoing hormone treatment, Dr. Malek states in the notes that Levy asked Drs. Malek and Brooks to support her in her efforts to obtain sex reassignment surgery, and that "[w]e do support her decision to undergo gender affirming surgery" and "recommend psychiatric evaluation for her depression and it[s] relationship to undergoing the surgery." Opp'n Mot. Summ. J. ("Opp'n") Ex. 1 at 1, ECF No. 25-1. These progress notes also state that Levy was previously recommended for evaluation by Dr. Chris Kraft, the Director of Clinical Services at the Johns Hopkins University Sex and Gender Clinic.

         In response to Levy's assertions, Defendants submitted with their reply brief a declaration from Randall S. Nero, Ph.D., Director of Mental Health at Patuxent Institution, another DPSCS facility, who asserts that on November 9, 2018, the Regional Gender Dysphoria Committee met to discuss Levy's request for gender-affirming surgery and declined to recommend surgery at this time due in part to her history of both psychopathic and sociopathic traits. Specifically, Nero notes that Levy refuses to follow clinical recommendations for genital comfort, and that she is under the mistaken belief that she has been "chemically castrated." Nero Decl. ¶ 3, Reply Mot. Summ. J. Ex. 1, ECF No. 26-1. Nero states that neither Defendant Baucom nor Defendant Corcoran attended the November 9, 2018 meeting.

         Nero further asserts that he and Dr. Kraft reviewed the January 2018 treatment notes from Drs. Malek and Brooks and understood the parts cited by Levy to signify that Drs. Malek and Brooks believed Levy should be supported in her transgender process, not that they were recommending her for surgery. Nero further notes that gender-affirming surgery requires the recommendation of two mental health professionals who are deemed experts in gender-specific treatment, and that Dr. Brooks, who is an endocrinology fellow, lacks the expertise to make a recommendation for sex reassignment surgery.

         On December 20, 2017, Levy filed Administrative Remedy Procedure grievance ("ARP") No. NBCI-2906-17 in which she complained that she has been denied gender-affirming surgery. The grievance alleged misconduct by the contract medical staff, not by correctional personnel. On March 1, 2018, having received Levy's appeal of the ARP denial, the Inmate Grievance Office ("IGO") administratively dismissed the complaint because Levy had not provided proof that she appealed the ARP to the Commissioner of Correction and because the IGO lacked jurisdiction over the contract medical personnel.

         II. Prison Reassignment and Commissary Items

         In 2017, Levy filed ARP No. NBCI-2680-17, a grievance in which she complained that as a transgender female, she should be classified as a female. On December 4, 2017, Levy appealed the Warden's denial of her grievance to the IGO in IGO No. 20171804. As of September 12, 2018, the IGO had not resolved the appeal. The parties have submitted no information to establish whether it has since been resolved. In her Complaint, Levy asserts that Defendants have failed to house in her in a women's ...

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