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Tetlow v. Maryland Department of Public Safety and Correctional Services

United States District Court, D. Maryland

September 24, 2019

JOSEPH LEWIS TETLOW, a/k/a Jasmine Lynn, Plaintiff,
v.
MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, MARYLAND DIVISION OF CORRECTION, WEXFORD HEALTH SOURCES, INC., MARYLAND CORRECTIONAL TRAINING CENTER, MARYLAND CORRECTIONAL INSTITUTION-JESSUP, STEPHAN MOYER, Secretary (DPSCS), DAYENA CORCORAN, Maryland Commissioner of Correction, JOHN DOE, Warden (MCTC), J. PHILIP MORGAN, Warden (MCI-J), DR. SISAY, Medical Doctor (MCI-J), EMMANUEL, Physician Assistant (MCI-J), MS. ROBERTS, Psychologist, Psychology Dept. (MCI-J), DR. CHOUDRY, Medical Doctor (MCTC), DR. GARWOOD, Psychologist, Psychology Dept. (MCI-J) PAT GOINES-JOHNSON, Executive Director, Field Support Services, and MS. LYN, Social Worker Dept. (MCTC) Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE

         Joseph Tetlow, also known as Jasmine Lynn, is incarcerated at the Maryland Correctional Institution in Hagerstown, Maryland ("MCIH"). Tetlow, who identifies as a transgender woman, filed this case pursuant to 42 U.S.C. § 1983, alleging that Defendants violated her constitutional rights and federal law based on deliberate indifference and discrimination in addressing her gender dysphoria ("GD") while she was incarcerated at the Maryland Correctional Training Center ("MCTC") in Hagerstown, Maryland and the Maryland Correctional Institution in Jessup, Maryland ("MCIJ"). Defendants include Wexford Health Sources, Inc., Dr. Maksed Choudry, Dr. Yonas Sisay, and Physician's Assistant Emmanuel Esianor (collectively, "the Medical Defendants"), as well as the Maryland Department of Public Safety and Correctional Services ("DPSCS"), the Maryland Division of Correction ("DOC"), MCTC, MCIJ, Secretary of DPSCS Stephen Moyer, former Commissioner of Correction Dayena Corcoran, DPSCS Executive Director of Field Support Patricia Goins-Johnson, MCTC Warden Richard Dovey, MCIJ Warden J. Philip Morgan, Dr. Gregory Garwood, Kamala Lyn, and Zulema Roberts (collectively the "State Defendants"). Pending before the Court are three Motions to Dismiss or, in the Alternative, Motions for Summary Judgment: one filed by the State Defendants; one filed by the Medical Defendants, excluding Dr. Choudry; and one filed by Dr. Choudry in which he incorporates by reference the arguments made in the Medical Defendants' Motion. Having reviewed the Complaint and submitted materials, all three Motions will be GRANTED.

         BACKGROUND

         In her Complaint, Tetlow claims that Defendants violated her constitutional rights and discriminated against her by failing to provide "adequate and equally effective medical care for her Gender Dysphoria as a transgender woman and to take effective steps to remove the risk of serious future harm." Compl. at 1, ECF No. 1. Specifically, Tetlow faults Defendants for failing to provide her with an "individual medical evaluation aimed solely at determining the appropriate treatment" for her GD under the community standards of care promulgated by the World Professional Association for Transgender Health. Id. at 1-2. Rather, Tetlow claims that her treatment has been "a pattern of delays, inconsistencies, and seemingly endless dropping the ball." Id.

         As alleged in the Complaint, Tetlow has GD and suffers from depression and anxiety as result of her condition. She has been denied access to female clothing, undergarments, and cosmetics. Tetlow alleges that she has not received adequate treatment for GD at both MCTC, where she was incarcerated from July 2017 to March 2018, and MCIJ, where she resided from March 2018 until the filing of the Complaint in May 2018.

         I. DPSCS Gender Dysphoria Policy

         On August 16, 2016, a DPSCS Executive Directive on the Identification, Treatment, and Correctional Management of an Inmate Diagnosed with Gender Dysphoria ("the GD Policy"), No. OPS.131.0001, took effect. Under the GD Policy, Maryland prisons are required to diagnose, treat, and manage inmates with GD, consistent with treatment, custody, and security standards. If an inmate self-identifies as having GD criteria or is referred by medical staff as possibly having GD, a mental health clinician, such as a psychiatrist, psychologist, clinical social worker, mental health counselor, or other mental health professional, is assigned to evaluate the inmate based on a face-to-face meeting and a review of available medical and mental health records in order to determine if the inmate meets the criteria for a provisional diagnosis of GD. If an inmate is provisionally diagnosed as GD, the mental health clinician forwards the case to the Regional Treatment Team, which sends it to the Regional Director of Mental Health, who arranges for an evaluation to take place within four to six weeks of the date the case was referred to the Regional Treatment Team. The contractual Regional Psychiatrist then evaluates the inmate to determine if the inmate meets the criteria for GD. If the diagnosis is confirmed, the case is returned to the Regional Treatment Team within 30 calendar days.

         If the Regional Treatment Team agrees with the diagnosis, it notifies the mental health clinician to initiate individualized treatment planning. An inmate may be referred for specialty consultations related to endocrine, urological, or gynecological services that may result in recommendations for hormone therapy. The GD Policy provides that, consistent with the inmate's security level, an inmate whose assigned gender is male and expressed gender is female is permitted to purchase and retain clothing items authorized for use by females at a female facility.

         II. MCTC

         According to the Complaint, Tetlow first raised the issue of GD to MCTC officials in September 2017, when she told Defendants Kamala Lyn, an MCTC social worker, and Dr. Gregory Garwood, an MCTC psychologist, about her condition. Dr. Garwood told her in October or November 2017 that her name would be submitted for evaluation for GD. During an unrelated medical visit on November 22, 2017, Tetlow told Defendant Dr. Maksed Choudry, an MCTC physician employed by Wexford, that she would like to start hormone therapy. Dr. Choudry told Tetlow to submit a sick call request. Although Tetlow submitted such a request on November 23, 2017, there was no follow-up medical visit. However, on December 12, 2017, Tetlow had a visit with a member of the Psychology Department about her GD. Tetlow was told to write a letter to the medical department. On December 12, 2017, Tetlow sent a detailed letter to Dr. Choudry regarding her GD. The next day, Tetlow submitted a complaint about the lack of a sick call visit following her November 23, 2017 request. She also sent a letter on December 18, 2017 to Defendant Patricia Goins-Johnson at DPSCS headquarters to ask for assistance in obtaining a GD evaluation.

         On January 2, 2018, Tetlow spoke to Dr. Garwood, who said that they would meet during the week of January 8, 2018. On January 18, 2018, Dr. Garwood met with Tetlow to discuss the evaluation process and, according to Tetlow, gave her a "preliminary diagnosis" of GD. Compl. at 15. On January 22, 2018, Tetlow sent Dr. Garwood a letter requesting female clothing. On February 14, 2018, however, Tetlow was transferred to Jessup Correctional Institution ("JCI") because a clerical error had led prison officials to believe that she would be released in October 2018, not October 2021. She was then transferred back to MCTC on February 21, 2018 and submitted a request to see Dr. Garwood. No such visit was scheduled. Then, on March 1, 2018, Tetlow submitted a request to see Lyn, with whom she met on March 13, 2018. At that time, Tetlow told Lyn that she identifies as transgender because "I am at a point in my life where I need to be real with myself and that's who I am, a transgender woman, " and stated, "I now feel comfortable in expressing my real true identity." Compl. at 16. In response, Lyn told Tetlow, "You are not transgender, I don't know why people are using that term so broadly." Id. Lyn acknowledged, however, that she could not "tell you professionally how you identify, " but told Tetlow that, in her opinion, "if you're not fully developed, then you're not transgendered." Id. Tetlow then ended the meeting.

         III. MCIJ

         On March 15, 2018, Tetlow was transferred to MCIJ. On March 16, 2018, Tetlow was given a transgender strip search consent form. On April 6, 2018, Tetlow met with Defendant Zulema Roberts, a member of the MCIJ Psychology Department, to discuss why she identified as a transgender woman. On April 10, 2018, Tetlow submitted a sick call request asking for hormone therapy. In response, on April 14, 2018, Defendant Emmanuel Esianor, a physician's assistant at MCIJ employed by Wexford, met with Tetlow and referred her to Defendant Dr. Yonas Sisay. On April 16, 2018, during a medical visit on another matter, Dr. Sisay acknowledged that Esianor had referred the hormone therapy request to him. When no immediate action was taken, Tetlow sent a letter to Goins-Johnson on April 18, 2018 complaining of discrimination and mistreatment of transgender inmates. On April 25, Tetlow submitted a complaint about not receiving a GD evaluation or hormone treatment. On May 4, 2018, during another medical visit, Dr. Sisay again acknowledged the request but did not provide hormone therapy.

         On May 18, 2018, Tetlow submitted an Administrative Remedy Procedure complaint ("ARP"), No. MCIJ-0309-18, in which she claimed that she was denied medical treatment for GD. On May 21, 2018, Tetlow filed her Complaint in the present case. On May 22, 2018, Tetlow was informed that the Warden was denying her grievance because Tetlow had already been seen by mental health staff, and her case was being presented to the Gender Dysphoria Committee. On June 19, 2018, Tetlow appealed that determination to the Commissioner of Correction, who dismissed the appeal on August 6, 2018. No further appeal was filed with the Inmate Grievance Office.

         IV. Transfer to WCI

         On June 8, 2018, Tetlow was transferred to Western Correctional Institution ("WCI") in Cumberland, Maryland, which she alleges to be a maximum security prison. She was placed in a cell with a Muslim inmate who objected to being housed with a transgender cellmate. Although Tetlow was then placed in a separate cell, her new cellmate was a member of the MS-13 gang who threatened her with an ice pick. When she informed correctional officers about this incident, one of the officers told her that he knew that MS-13 members did not like homosexuals, but "I didn't know they don't like transgenders." Supp. Compl. ¶ 19, ECF No. 25.

         On June 9, 2018, Tetlow filed ARP No. WCI-1288-18, alleging that she was transferred to WCI for no legitimate reason. On June 2, 2018, the ARP was denied for procedural reasons because additional information was needed to investigate the claim. On June 15, 2018, Tetlow filed a supplement to the Complaint alleging that the transfer to WCI violated her First Amendment right to freedom of speech because it was ordered by Defendants Commissioner Corcoran and MCI J Warden Morgan in retaliation for her filing of an ARP and the Complaint in the present case alleging that her lack of GD treatment was unconstitutional and unlawful. On June 23, 2018, Tetlow filed another ARP, No. WCI 1399-18, alleging that she was transferred to WCI in retaliation for filing her earlier ARP complaining about the lack of a GD evaluation and for filing the present federal lawsuit. That ARP was dismissed on the grounds that an inmate may not request relief for an institutional transfer through the ARP process. On August 29, 2018, Tetlow was transferred to Roxbury Correctional Institution in Hagerstown, Maryland.

         V. Procedural History

         In the Complaint, Tetlow alleges that by failing to provide a GD evaluation and hormone therapy, Defendants violated her Eighth Amendment right against cruel and unusual punishment; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (2012); and the Rehabilitation Act, 29 U.S.C. §§ 701-796 (2012). In the June 15, 2018 supplement, Tetlow added the First Amendment retaliation claim against Commissioner Corcoran and Warden Morgan. Tetlow seeks declaratory relief of an unstated nature; injunctive relief ordering a GD evaluation, hormone therapy, and immediate treatment recommended by a gender specialist; and compensatory and punitive damages.

         DISCUSSION

         I. ...


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