Diamond v. Owens

• Decision Date: 14 September 2015
• Docket Number: Civil Action No. 5:15–CV–50 (MTT)
• Parties: Ashley A. Diamond, Plaintiff, v. Brian Owens, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

131 F.Supp.3d 1346

Ashley A. Diamond, Plaintiff,

v.Brian Owens, et al., Defendants.

Civil Action No. 5:15–CV–50 (MTT)

United States District Court, M.D. Georgia, Macon Division.

Signed September 14, 2015

A. Chinyere Ezie, David Dinielli, Samuel Wolfe, Montgomery, AL, James M. Knoepp, Atlanta, GA, for Plaintiff.

Deborah Nolan Gore, State of Georgia, Department of Law, Elizabeth McRary Crowder, David V. Johnson, Insley Race, Brett A. Tarver, Sharonda Boyce, Atlanta, GA, for Defendants.

ORDER

MARC T. TREADWELL

, JUDGE, UNITED STATES DISTRICT COURT

Plaintiff Ashley Diamond alleges she¹ is a transgender woman with gender dysphoria

. She alleges the Defendants, in various ways, violated her constitutional rights while she was an inmate in various Georgia prisons by failing to provide her with medical treatment and by failing to protect her from sexual assault. Some of the Defendants have moved to dismiss some of Diamond's claims. (Docs. 35; 38). For the reasons discussed in detail below, the motions are DENIED.

I. INTRODUCTION

When she filed her complaint, Ashley Diamond was a "nonviolent" Georgia prison inmate who had been incarcerated after violating probation imposed after a theft conviction. (Doc. 3, ¶¶ 8, 16). In her 163 paragraph, 38 page verified complaint, Diamond alleges that officials in four different prisons repeatedly violated her constitutional rights by failing to provide her with medical treatment for her gender dysphoria

and by failing to protect her from sexual assaults. As a result, she alleges that on many different occasions she attempted suicide, attempted to castrate herself, was raped, and was otherwise sexually assaulted by inmates at the maximum security prisons in which she was housed. Her complaint attacks in particular the Georgia Department of Corrections' Standard Operating Procedure on the Management of Transsexuals (the "Transgender SOP"). Diamond claimed that although the Transgender SOP recognized that gender dysphoria is a serious medical need requiring special medical evaluations and appropriate treatment, the Transgender SOP nevertheless limited treatment to specific inmates, specifically those inmates who had been identified as transgender during their intake screenings, and even then treatment was limited to " ‘maintenance.’ " (Doc. 3, ¶¶ 47–49). She calls this type of policy a "freeze-frame policy." (Doc. 3, ¶ 142).

Shortly after Diamond filed her complaint, the Department of Justice filed a Statement of Interest of the United States. (Doc. 29). "[T]o assist the Court in evaluating" Diamond's motion to enjoin the enforcement of the Transgender SOP, the United States argued that "proscriptive freeze-frame policies are facially unconstitutional under the Eighth Amendment because they do not provide for individualized assessment and treatment." (Id. at 2). Shortly after that, during a hearing on Diamond's motion for a temporary restraining order, defense counsel announced, to the surprise of Plaintiff's counsel and the Court, that the freeze-frame policy had been "rescinded, I want to say, two days ago." (Doc. 40 at 33). The Court has heard nothing further from the United States so it assumes that the rescission of the policy has satisfied the United States "interests." It did not, however, resolve Diamond's claims for injunctive and declaratory relief unrelated to the freeze-frame policy. Then, on August 31, 2015, the Georgia Department of Corrections released Diamond from custody. That resolved Diamond's remaining claims for injunctive and declaratory relief. (Docs. 67; 68). The Court now turns to the Defendants' remaining issues raised by the motions to dismiss.

II. BACKGROUND²

A. Gender Dysphoria

Ashley Diamond suffers from gender dysphoria

. Gender dysphoria"is a medical condition in which an individual's gender identity and ... identification differ from the gender assigned at birth." (Doc. 3, ¶ 25). Diamond alleges medical professionals agree that gender dysphoria is a serious medical condition requiring treatment conforming to the "Standards of Care."³ (Doc. 3, ¶¶ 27–28). These standards provide that transgender persons should be assessed individually and given appropriate treatment, which may consist of outward expression of "one's internal sense of gender identity," hormone therapy, and/or sex reassignment surgery, but not psychotropic drugs or counseling alone. (Doc. 3, ¶¶ 31–34). If left untreated or if treatment is discontinued, there is a "severe risk" the individual will experience "suicidality[,] the impulse to engage in self-castration and self-harm, ... clinically significant depression, anxiety, and mental impairment." (Doc. 3, ¶¶ 27, 32, 34).

B. GDOC's Policies on Transgender Inmates

GDOC's now rescinded "Transgender SOP" recognized gender dysphoria

as a serious medical condition and "discusse[d] the treatment regimen described in the Standards of Care." (Doc. 3, ¶¶ 46–47). However, only inmates identified as transgender at intake were eligible for treatment. (Doc. 3, ¶ 48). Even if an inmate was classified at intake as transgender, the Transgender SOP limited treatment to " ‘maintenance’ of existing treatments—preventing healthcare personnel from initiating medical treatment that in their judgment is medically required for an inmate based on the Standards of Care." (Doc. 3, ¶ 49). Pursuant to the Transgender SOP, "inmates who [were] diagnosed with gender dysphoria after their initial diagnostic screening[ ] or who cannot show a history of treatment" were ineligible for treatments. (Doc. 3, ¶ 50). This policy, described as a "freeze-frame policy," prevented medical professionals from initiating treatment for gender dysphoria. (Doc. 3, ¶¶ 48–49, 142).

The Transgender SOP also discussed "securing proper placements for transgender inmates" and outlined procedures to reduce the risk of harm. (Doc. 3, ¶ 52). The SOP obligated the Statewide Medical Director, Defendant Sharon Lewis, to address housing placements for transgender inmates, particularly when safety issues arose. (Doc. 3, ¶¶ 52–53). The Prison Rape Elimination Act ("PREA") and GDOC's policies on PREA and sexual assault (the "Sexual Assault SOPs") also provide guidelines to ensure transgender inmates' safety from sexual assault.⁴ (Doc. 3, ¶ 54). Pursuant to the Sexual Assault SOPs, personnel must immediately notify wardens, Sexual Assault Response Team ("SART") personnel, and Defendant Lewis when sexual abuse allegations are reported. (Doc. 3, ¶ 60). Finally, the Sexual Assault SOPs impose on wardens and SART personnel the "responsibility to arrange for medical and mental health examinations of suspected sexual assault victims[ ] and revised housing placements." (Doc. 3, ¶ 61).

C. Diamond's Background and Incarceration

Since childhood, Diamond has "strongly identified" as female rather than her "assigned [male] gender." (Doc. 3, ¶ 36). After attempting suicide at the age of 15, Diamond was diagnosed with gender dysphoria

. (Doc. 3, ¶¶ 38–39). Since then, she has lived and expressed herself as female. (Doc. 3, ¶ 39). At 17, she began hormone treatments, and that treatment continued for over 17 years. (Doc. 3, ¶¶ 40, 42). As a result, she has developed female secondary sex characteristics, including "full breasts, a feminine shape, soft skin, and ... a reduction in male attributes." (Doc. 3, ¶ 40).

On March 27, 2012, Diamond's hormone therapy and "female expression"⁵ were terminated after she was placed in GDOC's custody for a non-violent offense. (Doc. 3, ¶¶ 42, 45). At intake, despite her female characteristics and GDOC's knowledge that she was a transgender woman on hormone therapy, "Diamond was not evaluated for gender dysphoria

, referred for treatment, or given a reasonably safe or appropriate housing placement." (Doc. 3, ¶ 64). Despite her non-violent offender status, GDOC housed Diamond at Macon State Prison—a "closed-security facility for adult male felons" with frequent gang activity and assaults.⁶ (Doc. 3, ¶¶ 64–66). Within a month, Diamond was "brutally sexually assaulted" by six gang members. (Doc. 3, ¶ 69). GDOC then transferred her to Baldwin State Prison, which is also a closed-security facility. (Doc. 3, ¶ 70). There, inmates again sexually assaulted Diamond. (Doc. 3, ¶ 71). Diamond reported these assaults, but personnel were slow to respond, lost her complaints and physical evidence of the assaults, failed to investigate, and told her she "brought her assaults upon herself" because she was transgender. (Doc. 3, ¶ 71). Pursuant to GDOC policies, Lewis was notified after each assault but "took no action."⁷ (Doc. 3, ¶¶ 60, 71).

GDOC mental health professionals diagnosed Diamond with post-traumatic stress disorder

("PTSD") and recommended a transfer to a medium-security facility because her transgender status made her more vulnerable to sexual assaults at a closed-security facility.⁸ (Doc. 3, ¶ 72). They also diagnosed Diamond with gender dysphoria, noted her history of treatment and self-harm attempts, and recommended ongoing treatment. (Doc. 3, ¶ 73). No treatment was provided. (Doc. 3, ¶ 73). Diamond attempted suicide on February 28, 2013. (Doc. 3, ¶ 73). Two months later, GDOC healthcare providers reconfirmed Diamond's gender dysphoria and PTSD. (Doc. 3, ¶ 74). GDOC psychologist Stephen Sloan also performed an individualized assessment of Diamond pursuant to the Standards of Care. (Doc. 3, ¶ 75). He concluded Diamond "stood a substantial risk of self-harm and suicide" without treatment and recommended Diamond receive hormone therapy and be permitted female gender expression. (Doc. 3, ¶ 75). Lewis "refused to authorize treatment," and Diamond's visits with Dr. Sloan were discontinued. (Doc. 3, ¶ 76).

D. Rutledge State Prison

On October 1, 2013, Diamond was transferred to Rutledge State Prison, a medium-security facility for non-violent inmates. (Doc. 3, ¶ 77). Upon Diamond's arrival, Defendants Warden Shay Hatcher, Deputy Warden of Care and Treatment Ruthie Shelton, and John Thompson and Donna Silver, healthcare...