Norsworthy v. Beard

• Decision Date: 31 March 2015
• Docket Number: Case No. 14–cv–00695JST
• Court: U.S. District Court — Northern District of California
• Parties: Jeffrey B. Norsworthy (a/k/a Michelle–Lael B. Norsworthy), Plaintiff, v. Jeffrey Beard, et al., Defendants.

87 F.Supp.3d 1104

Jeffrey B. Norsworthy (a/k/a Michelle–Lael B. Norsworthy), Plaintiff

v.Jeffrey Beard, et al., Defendants.

Case No. 14–cv–00695JST

United States District Court, N.D. California.

Signed March 31, 2015

Herman Joseph Hoying, Christopher J. Banks, Ian Thompson Long, Megan Dy Lin, Morgan Lewis & Bockius LLP, San Francisco, CA, Ilona Margaret Turner, Jennifer Orthwein, Shawn Thomas Meerkamper, Oakland, CA, for Plaintiff.

Preeti Kaur Bajwa, Edward Rheem Fluet, Jose Alfonso Zelidon–Zepeda, California State Attorney General's Office, San Francisco, CA, for Defendants.

AMENDED ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTION TO STAY DISCOVERY¹

Re: ECF Nos. 20, 23

JON S. TIGAR, District Judge

Before the Court is Defendants A. Adams, R. Coffin, J. Lozano, M. Spearman, and L. Zamora's Motion to Dismiss Plaintiff's First Amended Complaint. ECF No. 20, which Defendants A. Newton and D. Van Leer subsequently joined, ECF Nos. 24, 26. Defendants Adams, Coffin, Lozano, Newton, Spearman, and Zamora have also moved for a protective order to stay discovery until the Court rules on Defendants' Motion to Dismiss. ECF No. 23. The Court now GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss, and DENIES Defendants' Motion for a Protective Order to Stay Discovery.

I. BACKGROUND

A. Factual History

For purposes of the Motion to Dismiss, the Court assumes the following facts, pursuant to the allegations of Plaintiff's First Amended Complaint (“FAC”), ECF No. 10. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005).

Plaintiff Norsworthy is a California Department of Corrections and Rehabilitation (“CDCR”) prisoner currently incarcerated at Mule Creek State Prison in Ione, California.² FAC ¶ 2. She has been in the custody of CDCR since on or around April 15, 1987. Id. Norsworthy is a transsexual woman who has experienced gender dysphoria

and significant distress resulting from the incongruence between her male physical features and her female gender identity since at least adolescence. Id. ¶¶ 2, 17. She identifies and has been living as a woman since the 1990s. Id. ¶ 59. In 1999, after several weeks of testing at a CDCR facility, a psychologist, Dr. Viesti, diagnosed Norsworthy with gender identity disorder, “the only DSM–IV diagnosis available for this condition.” Id. ¶ 18. The American Psychiatric Association has since published a revised version of its Diagnostic and Statistical Manual of Mental Disorders (“DSM–V”), which replaced the “gender identity disorder” diagnosis with “gender dysphoria.” Id. Plaintiff has received feminizing hormone therapy and injections to accomplish chemical castration since January 2000.³

Id. ¶ 19. As

a result of these treatments, Norsworthy's physical features and voice have feminized. Id. ¶ 20. Her prison records state that she is a “biological female” based on her estrogen and testosterone

levels and describe her as “a pleasant-looking woman, slender and coiffed in a pony tail” who “walk[s] the yard as a woman.” Id.

The final step of Norsworthy's treatment is sex reassignment surgery, which would bring her primary and secondary sex characteristics into conformity with her female gender identity and therefore treat the severe mental anguish she experiences as a result of her gender dysphoria

. Id. ¶¶ 21–22. The surgery would also allow Norsworthy to reduce the high dosages of hormones she receives, which put her at increased risk for heart and vascular conditions and certain types of cancer, conditions that would be particularly dangerous for Norsworthy because she contracted Hepatitis C after being gang raped while in CDCR custody in 2009. Id. ¶ 22. In 2012, Norsworthy's treating psychologist, Dr. Reese, expressly prescribed sexual reassignment surgery as medically necessary, finding that “it is clear that clinical medical necessity suggest[s] and mandate[s] a sex change medical operation before normal mental health can be achieved for this female patient.” Id. ¶ 23. Dr. Reese repeatedly renewed his opinion over the following six months. Id. CDCR then removed Plaintiff from his care. Id.

Dr. Reese's finding is supported by leading medical research and standards of care, including the World Professional Association for Transgender Health (“WPATH”) Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, which state that sex reassignment surgery is an “essential and medically necessary” treatment for gender dysphoria

in certain cases. Id. ¶¶ 24–36. In California, both Medicaid and private health insurance plans offer coverage for health care treatment related to gender transition, including sex reassignment surgery. Id. ¶ 30.

On September 16, 2012, Norsworthy filed a Patient/Inmate Health Care Appeal seeking sex reassignment surgery as a medically necessary treatment for her gender dysphoria

. Id. ¶ 37. Her request was denied at three levels of review: by Defendant Newton on or around September 28, 2012; by Defendant Adams on or around November 27, 2012; and by Defendant Zamora on October 25, 2013, based on the recommendation of Defendant Coffin that, “[w]hile it appears likely that [Norsworthy's] medical consultants would approve [her] as a candidate for [sex reassignment surgery] as an elective procedure, in the opinion of this evaluator the available documentation does not establish [sex reassignment surgery] as medically necessary at this time.” Id. ¶¶ 37–52. Defendant Beard has ultimate authority over Norsworthy's Health Care Appeal and for the implementation of CDCR policy with regard to medically necessary treatment. Id. ¶ 53.

Norsworthy alleges that because her medical records demonstrate that, under prevailing standards of care and research, sex reassignment surgery is medically necessary, Defendants were fully aware that she faces a serious medical need for sex reassignment surgery and failed to take any reasonable measures to address her ongoing anguish. Id. ¶¶ 38–39, 43, 49, 51. Furthermore, each Defendant regarded and applied California Code of Regulations (“C.C.R.”) Title 15, Section 3350.1 —which identifies vaginoplasty

as a “[s]urgery not medically necessary [that] shall not be provided” except for specified conditions involving damage to the vaginal wall, unless the patient's attending physician prescribes the treatment and “[t]he service is approved by the medical authorization review committee and the health care review committee,” 15 C.C.R. § 3350.1(b)(2) ; 15 C.C.R. § 3350.1(d) —as a de facto bar to Norsworthy's request for sex reassignment surgery, solely because of her status as a transgender woman. FAC, ¶¶ 54–57.

As part of Norsworthy's treatment for gender dysphoria

, she has changed her name from Jeffrey Bryan Norsworthy to Michelle–Lael Bryanna Norsworthy. Id. ¶ 59. Since the mid–1990s, she has used the name “Michelle” in all settings in which she has the ability to do so. Id. Her treating doctors generally refer to her as “Michelle.” Id. ¶ 61. Use of the name “Jeffrey” is a painful reminder of the discrepancy between Norsworthy's female gender identity and the male sex assigned to her at birth, and causes her severe distress and anxiety.Id. ¶ 60. WPATH's Standards of Care recognize name changes as an important part of treatment for gender dysphoria. Id. ¶ 60.

A person under the supervision of CDCR is required to obtain the permission of the warden of the facility in which she is housed in order to obtain a change of name from a California Superior Court. Cal.Code Civ. Proc. § 1279.5. To minimize the use of the name “Jeffrey” and the associated pain and distress she experiences, Norsworthy submitted a request for approval for a legal name change to Defendant Spearman, the warden of the CDCR facility to which she was then assigned. FAC, ¶ 64. Although Spearman acknowledged that Norsworthy “is in the process of ‘trans-sexualism

,’ ” the request was denied on the basis “that it would not be appropriate to approve a name change to the feminine until the appellant is determined to meet the criteria to be assigned to an institution for female offenders.” Id. ¶ 65. At the third level of review, Defendants Van Leer and Lozano found the warden's denial “appropriate as the appellant is still incarcerated in an institution for men.” Id. ¶ 68. Defendant Beard has ultimate authority over Norsworthy's request for a legal name change and for the implementation of CDCR policy with regard to inmate name changes. Id. ¶ 71.

B. Procedural History

Norsworthy initiated this action by filing a complaint under 42 U.S.C. § 1983 on February 14, 2014. ECF No. 1. On March 26, 2014, the Court dismissed her claims with leave to amend, ECF. No. 4, and on April 2, 2014, the Court issued an Order Appointing Counsel, ECF. No. 7. On April 15, 2014, the Court dismissed a separate but related action, Norsworthy v. Beard, et al., No. 3:14–cv–00345–JST, concerning Norsworthy's request for a name change, without prejudice to Plaintiff reasserting the name change claims in her amended complaint in this action. ECF No. 8 at 5.

Norsworthy filed her First Amended Complaint on July 2, 2014. ECF No. 10. She sues Defendants Adams, Beard, Coffin, Lozano, Newton, Spearman, Van Leer, Zamora, and Does 1–30 under 42 U.S.C. § 1983, seeking injunctive relief based on Defendants' failure to provide her with medically necessary sex reassignment surgery in violation of the Eighth and Fourteenth Amendments to the United States Constitution and failure to allow her to pursue a legal name change, also in violation of the Eighth and Fourteenth Amendments. FAC, ¶ 1. Norsworthy claims that Defendants Adams, Beard, Coffin, Newton, and Zamora were deliberately indifferent to her medical needs and deprived her of her right to equal protection under the laws when they denied her sex reassignment surgery. Id. ¶¶ 74–88. She claims that Defendants Beard, Lozano, Spearman, and Van Leer were deliberately indifferent to her medical needs and deprived her of her right to...