United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of the Report and
Recommendation [Doc. No. 16] issued by United States
Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. §
636(b)(1)(B) and (C). Upon initial screening of the Amended
Complaint, Judge Erwin recommends a dismissal without
prejudice for failure to state a claim upon which relief can
be granted under 42 U.S.C. § 1983, and denial of
Plaintiff's Motion for Appointment of Counsel [Doc. No.
4] and Motion for a Preliminary Injunction [Doc. No.
who appears pro se, has filed a timely Objection
[Doc. No. 19]. Although Plaintiff objects to Judge
Erwin's finding that the Amended Complaint fails to state
a plausible claim, she includes additional factual
allegations in her argument and proposes changes to her
pleading. See, e.g., Obj. at 3 (stating
Plaintiff “would like to remove Dr. Beard as a
defendant”). Further, within the time period for making
an objection (as extended by the Order of January 30, 2019),
Plaintiff has submitted a Second Amended Complaint [Doc. No.
20]. If accepted, this pleading will supersede the original
and render it of no legal effect. See Davis v. TXO Prod.
Corp., 929 F.2d 1515, 1517 (10th Cir. 1991); see
also Predator Int'l, Inc. v. Gamo Outdoor USA, Inc.,
793 F.3d 1177, 1180-81 (10th Cir. 2015).
construing Plaintiff's filings, the Court understands
that although Plaintiff disagrees with Judge Erwin's
conclusion that the Amended Complaint fails to state a §
1983 claim, she wishes to cure any deficiencies through
amendment of her pleading. Notably, Judge Erwin recommends a
dismissal without prejudice to amendment, and Rule 15(a)
directs that district courts “should freely give leave
[to amend] when justice so requires.” See (a),
Fed.R.Civ.P. 15(a)(2). Under the circumstances, the Court
finds that Plaintiff should be authorized to file the Second
Amended Complaint and that the case should be referred back
to Judge Erwin for further proceedings. However, the Court
also finds that Plaintiff's objections to the R&R
should be addressed so that the case proceeds with the
benefit of the Court's rulings on the issues presented.
Erwin first concludes that Plaintiff's Eighth Amendment
claim that she was denied medical care for gender dysphoria
is inadequately pleaded. He finds that Plaintiff alleges a
serious medical condition that satisfies the objective
component of her claim. But he further finds that Plaintiff
fails to allege the personal participation of any named
defendant in the alleged conduct that prevented her from
receiving medical treatment, and fails to allege sufficient
facts to satisfy the subjective component of deliberate
indifference. See R&R at 9 (“Ms. Halliwell
does not state that any of the named Defendants were
responsible for altering her records or refusing her
treatment”); id. at 10 (Plaintiff provides
insufficient “information regarding how . . . each
Defendant had exhibited deliberate indifference to her
serious medical need”).
though Plaintiff objects to this portion of the R&R, she
does not seem to disagree that the Amended Complaint is
deficient in these respects. She argues new facts to cure
these deficiencies and includes these allegations in her
amended pleading - for example, that Warden Byrd talked to
Plaintiff about a threat to harm herself if she did not
receive treatment for gender dysphoria (GD) but then refused
to provide treatment. See Obj. at 4; Second Am.
Compl. at 9. New factual allegations also fill gaps in her
original pleading regarding the participation of Defendants -
for example, that Dr. Hennenigan was instructed by Defendants
Allbaugh, McCurdy, Honaker, and Jones to change
Plaintiff's diagnosis and not treat her for GD, that
Defendant Rashti prevented Plaintiff from communicating with
Dr. Hennenigan, and that Defendants Rashti and Paine told
Plaintiff to stop making sick call requests for GD treatment
because none would be provided. See Second Am.
Compl. at 5, 6, 9, 17. The Court therefore finds that Judge
Erwin should assess the sufficiency of Plaintiff's
amended pleading to state a plausible Eighth Amendment
medical care claim.
Erwin next finds Plaintiff's allegation that she was
treated differently from other transgender inmates who
received treatment, fails to state an equal protection claim.
Plaintiff objects to this conclusion and argues that she
knows of two other inmates in the same prison where she is
located (Cimarron Correctional Facility) who are receiving
hormone replacement therapy for GD but she has been denied
this treatment. Because Plaintiff's claim is not based on
allegations of disparate treatment of a class of persons, she
is asserting what is known as a “class of one”
equal protection claim. See A.M. v. Holmes, 830 F.3d
1123, 1166-67 (10th Cir. 2016) (discussing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000));
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1216 (10th Cir. 2011). To state a plausible claim under this
theory, Plaintiff must allege specific and detailed facts to
“establish that others, similarly situated in every
material respect, were treated differently” from
Plaintiff. A.M., 830 F.3d at 1167 (internal
quotation omitted); see Kan. Penn, 656 F.3d at
1216-17. Plaintiff fails to satisfy this standard by simply
alleging that two inmates have received a treatment for GD
that she desires. Therefore, the Court finds that Plaintiff
has failed to state a plausible equal protection claim.
Erwin also finds Plaintiff's conclusory allegation that
she experienced “unsafe conditions” is
insufficient to state a separate Eighth Amendment claim based
on her conditions of confinement. Although Plaintiff purports
to object to this finding, she argues only that she has been
denied adequate medical care. See Obj. at 5-6. She
neither argues in her Objection nor alleges in the Second
Amended Complaint any facts that would state a separate
“conditions of confinement” claim. Thus, the
Court agrees with Judge Erwin that Plaintiff asserts no
Eighth Amendment claim other than the one claiming a denial
of constitutionally adequate medical care.
Judge Erwin recommends the denial of Plaintiff's Motions
if the Amended Complaint is dismissed. Regarding appointment
of counsel, Judge Erwin presumably views Plaintiff as capable
of articulating her claim and framing a sufficient pleading.
The Court agrees. While appointment of counsel in § 1983
cases is permissible, it is a matter of discretion and
appropriate for complex cases in which an inmate demonstrates
he or she lacks the ability to present a meritorious claim.
See Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.
2012). Upon consideration of the relevant factors, see
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995),
the Court finds that Plaintiff's request for counsel
should be denied at this time, without prejudice to a future
Judge Erwin finds that Plaintiff has failed to justify her
request for injunctive relief at this early stage of the
case. Plaintiff objects on the ground that her Motion has
obvious merit, and submits another copy as an attachment.
See Obj., Ex. 1 [Doc. No. 19-1]. The Court cannot
add significantly to Judge Erwin's explanation of why
Plaintiff has failed to justify a mandatory injunction
granting unspecified treatment for her alleged GD.
Accordingly, for the reasons fully stated by Judge Erwin, the
Court finds that Plaintiff's Motion for a TRO or a
preliminary injunction should be denied.
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 16] is ADOPTED as set forth herein. The Amended Complaint
[Doc. No. 11-1] is DISMISSED with leave to amend.
Plaintiff's Motion for Appointment of Counsel [Doc. No.
4] and Motion for a Preliminary Injunction [Doc. No. 6] are
FURTHER ORDERED that Plaintiff is authorized to proceed with
her Second Amended Complaint [Doc. No. 20], subject to the
rulings stated in this Order, and that the case is
re-referred to Judge Erwin for further proceedings consistent
with the initial referral order [Doc. No. 9].