McQueen v. Brown

• Decision Date: 26 February 2019
• Docket Number: No. 2:15-cv-2544 JAM AC P,2:15-cv-2544 JAM AC P
• Parties: LAMAR MCQUEEN, aka NINA SHANAY MCQUEEN, Plaintiff, v. EDMUND BROWN, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

LAMAR MCQUEEN, aka NINA SHANAY MCQUEEN, Plaintiff, v. EDMUND BROWN, et al., Defendants.

No. 2:15-cv-2544 JAM AC P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 26, 2019

ORDER and FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a transgender prisoner incarcerated at Mule Creek State Prison (MCSP), under the authority of the California Department of Corrections and Rehabilitation (CDCR). She proceeds pro se and in forma pauperis with a First Amended Complaint (FAC) filed April 19, 2018, pursuant to 42 U.S.C. § 1983. ECF No. 12. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).

Upon screening the FAC pursuant to 28 U.S.C. § 1915A, this court found that it states cognizable claims for declaratory and injunctive relief against defendants Dr. Jeffrey Carrick and (former) CDCR Secretary Scott Kernan for deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment, and for discrimination based on plaintiff's transgender status under the Fourteenth Amendment's Equal Protection Clause. ECF No. 13.

Defendants have filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that the allegations of the FAC fail to support cognizable legal claims and/or because defendant Carrick is entitled to qualified immunity and defendant Kernan is named only in his official capacity. ECF No. 21. Plaintiff filed an opposition, ECF No. 23; defendants filed a reply, ECF No. 26. For the reasons that follow, the undersigned recommends that defendants' motion to dismiss be granted in part and denied in part.

Plaintiff's opposition to defendant's motion includes a motion for appointment of counsel, ECF No. 23 at 7-8, and a motion for preliminary injunctive relief, id. at 9-10. Defendants responded to these matters in their reply. ECF No. 26 at 5-7. For the reasons set forth below, the undersigned grants plaintiff's motion for appointment of counsel and denies without prejudice her motion for preliminary injunctive relief.

II. Allegations and Claims of the First Amended Complaint

District courts are required to preliminarily screen all prisoner civil rights complaints. See 28 U.S.C. § 1915A(a). Dismissal of a complaint or portion thereof is warranted upon screening only if the prisoner has raised claims that are legally "frivolous or malicious," fail to state a claim upon which relief may be granted, or seek monetary relief from an immune defendant. 28 U.S.C. § 1915A(b)(1), (2). When screening a complaint under Section 1915A, the court is guided by Rule 8, Federal Rules of Civil Procedure, which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This requirement is intended to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Applying these standards, the undersigned summarized the factual allegations of the FAC and identified the following legal claims against the named defendants, ECF No. 13 at 3-9:

The FAC avers that plaintiff "has been diagnosed with the serious medical condition of gender dysphoria which, despite more than (8) eight years of feminizing hormone therapy, continues to cause plaintiff serious mental distress, and requires treatment in the form of SRS [sex reassignment surgery] as recommended by CDCR psychologist and supported by Plaintiff's medical records and prevailing medical standards of care." ECF No. 10 at 3.

Plaintiff has twice been denied requested SRS, first on January 26, 2016, see ECF No. 10 at 8, ECF No. 9 at 2, and most recently on January 2, 2018, see ECF No. 10 at 7. These final administrative decisions were rendered by the Headquarters Utilization Management Committee (HUMC), following findings by the Sex Reassignment Surgery Review Committee (SRSRC) that plaintiff's ongoing treatments for gender dysphoria "provide significant relief that is adequate and sufficient for her condition." ECF No. 10 at 7, 8; seealso ECF No. 9 at 3-10. Preceding the first pair of decisions by the SRSRC and HUMC, plaintiff exhausted her inmate appeal remedies. ECF No. 10 at 9-19.

The FAC asserts two claims under 42 U.S.C. § 1983, both arising from the denial of plaintiff's requests for medically necessary SRS: (1) deliberate indifference to plaintiff's serious medical needs, in violation of the Eighth Amendment's proscription against cruel and unusual punishment (Claim One); and (2) violation of plaintiff's rights under the Fourteenth Amendment's Equal Protection Clause, based on alleged discrimination due to plaintiff's transgender status (Claim Two). See ECF No. 10 at 4.

. . . . The FAC makes no specific charging allegations against any named defendant. Instead, the FAC alleges in general terms that "defendants" violated plaintiff's constitutional rights. Nevertheless, [the] FAC states cognizable claims against defendants Carrick and Kernan.

The challenged conduct of defendant Carrick is readily identified from review of plaintiff's exhibits: Dr. Jeffrey Carrick, M.D., acting as "Deputy Medical Executive (A) Utilization Management," issued the HUMC decisions plaintiff challenges in this action. See ECF No. 10 at 7, 8. Given Dr. Carrick's apparently central and decisive role in issuing the challenged decisions, the court provisionally construes the complaint as stating claims against him in both his personal and official capacities.

. . . . CDCR Secretary Kernan also appears to be an appropriate defendant in his official capacity, because he would be able to respond to an order granting injunctive relief even though he had no personal involvement in the alleged constitutional violations.

III. Defendants' Motion to Dismiss

As earlier noted, defendants move to dismiss this action on the ground that that plaintiff's allegations fail to support cognizable Eighth and Fourteenth Amendment claims and/or because defendant Carrick is entitled to qualified immunity and defendant Kernan is named only in his official capacity. See ECF No. 21. Defendants request judicial notice of several documents in support of their motion. ECF No. 22. Plaintiff opposes defendants' motion, ECF No. 23; defendants have filed a reply, ECF No. 26.

A. Legal Standards Governing Motion to Dismiss

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. North Star Intern. v. Arizona Corp. Com'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In order to survive dismissal for failure to state a claim, a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004). "[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 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, (1992)). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388(9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). However, the court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

B. Defendants' Request for Judicial Notice

Defendants request that this court take judicial notice of the following:

• Gender Dysphoria Management Policy, set forth in the California Correctional Health Care Services (CCHCS) Inmate Medical Services Policies and Procedures guidelines (Guidelines), Volume 4 (Medical Services), Chapter 26 (Gender Dysphoria Management Policy) (June 2015); see ECF No. 22 at 4 (Dfs. Ex. 1).¹

• Supplement to CCHCS/DHCS Care Guide: Gender Dysphoria, Guidelines for Review of Requests for Sex Reassignment Surgery (SRS) (May 24, 2016); see ECF No. 22 at 6-14 (Dfs. Ex. 2).

• Defendants' Exhibit 2 in support of Motion to Dismiss filed September 6, 2016 in Young v. Smith, Case

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