De'Lonta v. Johnson

• Decision Date: 28 January 2013
• Docket Number: No. 11–7482.,11–7482.
• Citation: 708 F.3d 520
• Parties: Ophelia Azriel DE'LONTA, Plaintiff–Appellant, v. Gene JOHNSON, Director of VDOC; Fred Schilling, Director of Health Services for VDOC; Meredith R. Carey, Chief Psychiatrist for VDOC; Gary L. Bass, Chief of Operations, VDOC; W.P. ROGERS, Assistant Deputy Director of Operations, VDOC; Gerald K. Washington, Regional Director, Central Regional Office for the VDOC; Eddie Pearson, Warden of Powhatan Correctional Center, VDOC; Anthony Scott, Chief of Security at Powhatan Correctional Center; Robert L. Hulbert, PhD, Mental Health Director for the VDOC; Larry Edmonds, Warden, Buckingham Correctional Center, VDOC; Major C. Davis, Chief of Security of Buckingham Correctional Center; Lisa Lang, Staff Psychologist; Toney, Counselor at Buckingham Correctional Center; Lou Dixon, Registered Nurse Manager, Buckingham Correctional Center, Defendants–Appellees. DC Trans Coalition; American Civil Liberties Union; American Civil Liberties Union of Virginia, Incorporated, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

708 F.3d 520

Ophelia Azriel DE'LONTA, Plaintiff–Appellant,

v. Gene JOHNSON, Director of VDOC; Fred Schilling, Director of Health Services for VDOC; Meredith R. Carey, Chief Psychiatrist for VDOC; Gary L. Bass, Chief of Operations, VDOC; W.P. ROGERS, Assistant Deputy Director of Operations, VDOC; Gerald K. Washington, Regional Director, Central Regional Office for the VDOC; Eddie Pearson, Warden of Powhatan Correctional Center, VDOC; Anthony Scott, Chief of Security at Powhatan Correctional Center; Robert L. Hulbert, PhD, Mental Health Director for the VDOC; Larry Edmonds, Warden, Buckingham Correctional Center, VDOC; Major C. Davis, Chief of Security of Buckingham Correctional Center; Lisa Lang, Staff Psychologist; Toney, Counselor at Buckingham Correctional Center; Lou Dixon, Registered Nurse Manager, Buckingham Correctional Center, Defendants–Appellees.DC Trans Coalition; American Civil Liberties Union; American Civil Liberties Union of Virginia, Incorporated, Amici Supporting Appellant.

No. 11–7482.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 24, 2012.

Decided: Jan. 28, 2013.

ARGUED: Bernadette Francoise Armand, Victor M. Glasberg & Associates, Alexandria, Virginia, for Appellant. Earle Duncan Getchell, Jr., Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. ON BRIEF:Victor M. Glasberg, Victor M. Glasberg & Associates, Alexandria, Virginia, for Appellant. Kenneth T. Cuccinelli, II, Attorney General of Virginia, Michael H. Brady, Assistant Attorney General, Charles E. James, Jr., Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. Jeffrey Light, Law Office of Jeffrey Light, Washington, D.C., for DC Trans Coalition, Amicus Supporting Appellant. Joshua Block, American Civil Liberties Union Foundation, New York, New York; Rebecca K. Glenberg, American Civil Liberties Union of Virginia Foundation, Inc., Richmond, Virginia, for American Civil Liberties Union Inc., and American Civil Liberties Union of Virginia, Inc., Amici Supporting Appellant.

Before MOTZ, KING, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion. Judge DIAZ wrote the opinion, in which Judge MOTZ and Judge KING joined.

OPINION

DIAZ, Circuit Judge:

Virginia inmate Ophelia Azriel De'lonta (born Michael A. Stokes) filed suit under 42 U.S.C. § 1983 claiming that prison officials denied her adequate medical treatmentin violation of the Eighth Amendment. The district court dismissed the complaint for failure to state a claim. Because we conclude that De'lonta's complaint states a claim for relief that is plausible on its face, we reverse and remand for further proceedings.

I.

On appeal from a dismissal for failure to state a claim upon which relief can be granted, we accept as true all the factual allegations contained in the complaint and construe them in the light most favorable to the plaintiff. Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir.1997).

A.

De'lonta has been in the custody of the Virginia Department of Corrections (“VDOC”) since 1983, serving a 73–year sentence for bank robbery. She is a pre-operative transsexual suffering from a diagnosed and severe form of a rare, medically recognized illness known as gender identity disorder (“GID”). GID is characterized by a feeling of being trapped in a body of the wrong gender. This belief has caused De'lonta to suffer “constant mental anguish” and, on several occasions, has caused her to attempt to castrate herself in efforts to “perform[ ] [her] own makeshift sex reassignment surgery.” App. 14, 46, 48. De'lonta has described these ongoing urges to perform self-surgery as “overwhelming.” App. 31.

In 1999, De'lonta filed a § 1983 lawsuit alleging that VDOC had instituted a policy that wrongfully prevented her from receiving GID treatment in violation of the Eighth Amendment. As in the instant case, the district court dismissed De'lonta's 1999 complaint for failure to state a claim. We reversed and remanded, holding that De'lonta's need for protection against continued self-mutilation constituted an objectively serious medical need under the Eighth Amendment and that De'lonta had sufficiently alleged VDOC's deliberate indifference to that need. De'lonta v. Angelone (“De'lonta I”), 330 F.3d 630, 634 (4th Cir.2003). The parties subsequently reached a settlement in which VDOC acknowledged De'lonta's serious medical need and agreed to provide continuing treatment.

Since that settlement, VDOC, in consultation with an outside Gender Identity Specialist, has provided De'lonta with GID treatment consisting of regular psychological counseling and hormone therapy. De'lonta has also been allowed to dress and live as a woman to the full extent permitted by VDOC. Despite these treatments, which have continued since 2004, De'lonta's symptoms have persisted. In a series of formal grievances and letters, De'lonta notified prison officials of her “extreme distress” with her treatment team. She complained that although her treatment program had produced “growth and stability[,]” she was still feeling strong, “imminent” urges to self-castrate. In July 2010, De'lonta was hospitalized following a self-castration attempt.

In a September 2010 letter, De'lonta asserted that her urges to self-castrate are particularly overwhelming immediately following her therapy sessions with VDOC Psychologist Lisa Lang. J.A. 31. De'lonta asked to stop seeing Lang, and repeatedly requested sex reassignment surgery pursuant to the GID treatment guidelines established by the “Benjamin Standards of Care” (“Standards of Care”).

The Standards of Care, published by the World Professional Association for Transgender Health,¹ are the generally accepted protocols for the treatment of GID. They establish a “triadic treatment sequence” comprised of (1) hormone therapy; (2) a real-life experience of living as a member of the opposite sex; and (3) sex reassignment surgery. App. 15. The Standards of Care explain that although the first two treatment options provide sufficient relief for some patients, others with more severe GID may require sex reassignment surgery. Pursuant to the Standards of Care, after at least one year of hormone therapy and living in the patient's identified gender role, sex reassignment surgery may be necessary for some individuals for whom serious symptoms persist. App. 16. In these cases, the surgery is not considered experimental or cosmetic; it is an accepted, effective, medically indicated treatment for GID.

Responding to De'lonta's letters and grievances, VDOC's Chief Psychiatrist, Dr. Meredith Carey, replied that “in regards to gender reassignment surgery, I would request that you continue to work with Ms. Lang in individual therapy at this time.” App. 37. Although VDOC consults with an outside Gender Identity Specialist regarding De'lonta's care, she has never been evaluated by a GID specialist concerning her need for sex reassignment surgery.

B.

In 2011, De'lonta filed suit against Gene Johnson, the former director of VDOC, as well as numerous VDOC administrators and members of her care team (collectively, “Appellees”). De'lonta's complaint alleges that, in light of their knowledge of her ongoing risk of self-mutilation, Appellees' continued denial of consideration for sex reassignment surgery constitutes deliberate indifference to her serious medical need in violation of the Eighth Amendment. On screening pursuant to 28 U.S.C. § 1915A(b)(1), the district court dismissed the complaint without prejudice for failure to state a claim upon which relief could be granted.²De'lonta v. Johnson (“De'lonta II”), No. 7:11–CV–00257, 2011 WL 5157262 (W.D.Va. Oct. 28, 2011).

The district court held that De'lonta failed to allege deliberate indifference on the part of Appellees sufficient to state an Eighth Amendment claim. The court explained that De'lonta's own allegations contradict the conclusion that Appellees are “persistently denying her treatment,” since De'lonta acknowledges that VDOC has provided mental health consultations, hormone therapy, and cross-dressing allowances in accordance with the Standards of Care. De'lonta II, 2011 WL 5157262, at *5. “The only treatment described by the Standards of Care that she has not yet received,” the court observed, “is the sex reassignment surgery.” Id. But because De'lonta has not been approved for that surgery, the district court determined that she is “not entitled to” it. Id. In the view of the district court, Appellees are permissibly denying De'lonta “only her preferred therapy of surgery.” Id. at *5–6. Since De'lonta has not presented “a situation where there is a total failure to give medical attention or a policy prohibiting her treatment for GID,” the court held that “her current dissatisfaction with the progressor choice of treatment” is insufficient to support an Eighth Amendment claim. Id. at *6.

De'lonta appeals, arguing that the district court erred in dismissing her Eighth Amendment claim.³

II.

The sole issue before us is whether De'lonta's complaint states a plausible Eighth Amendment claim. We review de novo a district court's dismissal under 28 U.S.C. § 1915A for failure to state a claim, applying the same standards as those for reviewing a dismissal under Fed.R.Civ.P. 12(b)(6). Slade v. Hampton Rds. Reg'l. Jail, 407 F.3d 243, 248 (4th Cir.2005); cf. De'lonta I, 330 F.3d at 633. To survive a motion to dismiss under that rule, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing the complaint's plausibility, we accept as true all the factual allegations contained therein. Coleman v. Md. Court of Appeals, 626...