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Porter v. Allbaugh

United States District Court, N.D. Oklahoma

May 17, 2019

MISS GLENN A. PORTER, Plaintiff,
v.
JOE ALLBAUGH, et al., Defendants.

          OPINION AND ORDER

          John E. Dowdell, Chief Judge.

         Plaintiff, an inmate formerly incarcerated at the Dick Connor Correctional Center (DCCC) in Hominy, Oklahoma, [1] commenced this action on September 10, 2018, by filing a 42 U.S.C. § 1983 civil rights complaint (Doc. 1) and a motion for a temporary restraining order (TRO) and preliminary injunction (Doc. 2). Plaintiff appears pro se and in forma pauperis. Docs. 1, 4. Plaintiff identifies herself as a “pre-operative transgender female” and claims Defendants are violating the Eighth Amendment by failing to provide adequate health care. Doc. 1, at 3-6. She seeks preliminary and permanent injunctive relief that would require Defendants to provide her with hormone therapy and sex reassignment surgery. Id. at 7; Doc. 2, at 1-2.

         Before the Court are the following motions: Plaintiff's motion for a TRO and preliminary injunction (Doc. 2), filed September 10, 2018; Plaintiff's motion to file an amended complaint and an amended motion for preliminary injunctive relief (Doc. 23), filed December 19, 2018; Plaintiff's motion to amend the complaint (Doc. 32), filed February 4, 2019; and Plaintiff's second motion for a TRO and preliminary injunction (Doc. 33), filed February 4, 2019.

         As directed by the Court, Defendants submitted a special report (Doc. 25) on January 7, 2019, addressing the allegations in the complaint. Defendants also filed a motion to dismiss the complaint or, in the alternative, motion for summary judgment (Doc. 26). Plaintiff filed a response to the motion (Doc. 30), and Defendants filed a reply (Doc. 34). Defendants also filed a response (Doc. 37) in opposition to the second motion for a TRO and preliminary injunction, and Plaintiff filed a reply (Doc. 38).

         For the reasons that follow, the Court orders stricken from the record Plaintiff's motion to amend (Doc. 23), filed December 19, 2018; declares moot Plaintiff's first motion for a TRO and preliminary injunction (Doc. 2); dismisses in part and denies in part Plaintiff's second motion for a TRO and preliminary injunction (Doc. 33); grants Plaintiff's motion to amend the complaint (Doc. 32), filed February 4, 2019; and dismisses without prejudice to refiling Defendants' motion to dismiss the complaint or, in the alternative, motion for summary judgment (Doc. 26).

         BACKGROUND

         Plaintiff is currently serving a sentence of life with the possibility of parole plus a consecutive 20-year sentence following her convictions, in the District Court of Pottawatomie County, No. CRF-98-62, for first degree murder and larceny of a motor vehicle. Doc. 25-1, at 2.[2] Plaintiff has been in the custody of the Oklahoma Department of Corrections (ODOC) since 1999. Id. The ODOC identifies Plaintiff as a male. Id.; see also https://okoffender.doc.ok.gov (last visited March 25, 2019). Plaintiff, however, self-identifies as a transgender female. See Doc. 1 at 2 . Plaintiff commenced this action on September 10, 2018, by filing a 42 U.S.C. § 1983 civil rights complaint (Doc. 1) and a motion for a TRO and preliminary injunction (Doc. 2).

         Plaintiff alleges that she has had gender dysphoria[3] “since childhood, ” that the Department of Veterans Affairs diagnosed her with “extreme” gender dysphoria in 1980, and that she requested hormone therapy in 2013 while she was incarcerated at the Lawton Correctional Facility. Doc. 2, at 8, 11. On October 4, 2016, Dr. Lane, a psychiatrist, and Dr. Musallam, “assisted by” the ODOC's Chief Medical Director, Joel McCurdy, diagnosed Plaintiff with gender dysphoria and began treating her with female hormones. Id. at 3; Doc. 1, at 8-9. Plaintiff alleges that before she began hormone therapy, she “was at the point of attempting her own surgery.” Doc. 2, at 3. After she began hormone therapy, she “got healthy, ” suffered less distress and anxiety, and began to feel more comfortable with her body as she developed female sex characteristics. Id. In March 2018, Abraham Williams, a psychiatric clinician at the DCCC, approved Plaintiff's request for female undergarments. Doc. 1, at 4, 19.

         Plaintiff alleges, however, that following her transfer to the DCCC, Defendants have been deliberately indifferent to her serious medical needs as a transgendered individual, in violation of the Eighth Amendment. Doc. 1, at 2-6; Doc. 2, at 3-9, 11. According to Plaintiff, on May 17, 2018, Dr. Patricia Jones came to the DCCC from the Joseph Harp Correctional Center, made a “demeaning” statement that Plaintiff was “masquerading as a female, ” and concluded that Plaintiff does not have gender dysphoria. Doc. 2, at 3-4. As a result, Bethany Wagener, a physician's assistant, discontinued Plaintiff's hormone therapy. Id. at 4. Plaintiff alleges that the DCCC's medical staff are not “licensed or qualified” to correctly diagnose and treat her for gender dysphoria or to monitor her as she withdraws from hormone therapy. Id. at 9; see also Doc. 1, at 4. Plaintiff claims that Defendants' decision to discontinue her hormone therapy after “almost 2 years” has “plac[ed] Plaintiff at a serious risk of irreparable injury to her long term health.” Doc. 2, at 4.

         In addition, Plaintiff alleges Defendants violated her rights under the Eighth Amendment and the Equal Protection Clause (1) by “den[ying] psychotherapy by a psychologist every 30 days” because A.J. Williams, a social worker, is “not [q]ualified to provide psychotherapy, ” (2) by taking from her “a ragdoll and 3 teddy bears” she had previously been allowed to keep as therapeutic aids, and (3) by failing to provide her with female clothing and cosmetics-items she claims other ODOC facilities provide to transgender females. Id. at 4; Doc. 2, at 9. Plaintiff also alleges that no members of the DCCC medical staff are “[q]ualified or licensed to stop [her] hormones (or) monitor [her] during withdrawal.” Doc. 1, at 4. Plaintiff claims that during withdrawal from hormone therapy, she has “experience[d] confusion, embarrassment, depression, [and] fear, ” and she “will likely” experience a loss of the physical “[b]enefit[s] obtained in the last 1 ½ years” from receiving female hormones. Id. at 5. Finally, she alleges Defendants have denied her repeated requests for sex reassignment surgery and have not allowed her to consult any surgical specialists outside of prison. Id. at 6.

         As relief for these alleged constitutional violations, Plaintiff seeks (1) an emergency temporary restraining order (TRO) “restraining prison officials from stopping hormone therapy, ” (2) a preliminary and permanent injunction “enjoining prison officials from withdrawal of hormone therapy, ” and (3) an order directing prison officials to “provide sex reassignment surgery.” Id. at 7. In her motion for preliminary injunctive relief, Plaintiff specifically asks this Court to “restrain[] [Defendants] from denying [her] hormone therapy at her last level/dose issued.” Doc. 2, at 2.

         By Order filed October 5, 2018, (Doc. 7), the Court directed service of the complaint and the motion for preliminary injunctive relief on Defendants, directed the agencies responsible for the alleged violations to prepare and submit a special report, and directed Defendants to answer or otherwise respond to Plaintiff's allegations within 60 days of service. After service of process, defense counsel entered an appearance on behalf of Defendants (Docs. 18, 37), [4] and the Court granted counsel's request for an extension of time to file the special report and answer or otherwise respond to the allegations in the complaint (Docs. 20, 21).

         On December 19, 2018, Plaintiff moved for leave to amend her complaint and her motion for a TRO and preliminary injunction (Doc. 23) and submitted a proposed amended complaint (Doc. 23-1) and proposed amended motion for a TRO and preliminary injunction (Doc. 23-2). In the proposed amended complaint, Plaintiff seeks to add five additional defendants: Dr. Bowler, Raymond Byrd, Mr. Enzy, Mr. Gillespie and Ms. Morris. Doc. 23-1, at 2. Plaintiff identifies Dr. Bowler as an officer or employee of the DCCC and the latter four additional defendants as “Core Civic Defendants” employed by the “CCA private prison in Cushion, OK.”[5] Id. In Count I of the proposed amended complaint, Plaintiff reasserts her claim that Defendants, particularly Jones, Wagener, Lehnus, A.J. Williams and Dr. Bowler are violating the Eighth Amendment by denying her requests for reinstatement of hormone therapy and for sex reassignment surgery and by failing to correctly diagnose her with and provide adequate treatment for gender dysphoria. Id. at 4-9. In addition, she alleges the Defendants' decision to discontinue her hormone therapy may be an act of retaliation because she reported CCF officials for “conduct[ing] a [c]ross gender strip search prohibited by” the Prison Rape Elimination Act, 34 U.S.C. §§ 30301-30309, (PREA). Id. at 9-10.

         Plaintiff's proposed amended complaint also seeks to add two new claims. In Count II of the proposed amended complaint, Plaintiff alleges she was subjected to two cross-gender strip searches, one at the CCF on July 24, 2017, and one at the DCCC on October 25, 2018. Id. at 11. She alleges both searches violated the PREA and the Eighth Amendment.[6] Id. In Count III, Plaintiff alleges “prison staff” at the CCF violated the Eighth Amendment by failing to protect her from another inmate who, she claims, raped her on three separate occasions in October and November 2017. Id. In the proposed amended complaint, Plaintiff seeks injunctive and declaratory relief as well as monetary damages for physical and emotional injuries resulting from the withdrawal of her hormone therapy, acts of retaliation by prison officials, and sexual assaults. Id. at 12.

         Plaintiff's proposed amended motion for a TRO and preliminary injunction seeks the same relief as the original motion for preliminary injunctive relief-namely, reinstatement of her hormone therapy-but Plaintiff relies, in part, on one affidavit identified as “amended” that was not attached to the original motion. Doc. 23-2, at 2-3, 7.[7] In the “amended” affidavit, Plaintiff states that A.J. Williams and non-party Dr. Tromka, a psychiatrist, denied her requests for mental health care. Id. at 7.

         Defendants did not file a response or otherwise object to Plaintiff's motion to amend the complaint and motion for preliminary injunctive relief. Instead, as directed by the Court, Defendants filed a special report (Doc. 25) on January 7, 2019. That same day, Defendants filed a motion to dismiss the complaint or, in the alternative, motion for summary judgment (Doc. 26). Defendants contend the complaint fails to state any claims upon which relief may be granted, Plaintiff is not entitled to preliminary or permanent injunctive relief, and all defendants sued in their individual capacities are entitled to judgment as a matter of law on the basis of qualified immunity. See Doc. 26, at 2-3. On January 23, 2019, Plaintiff filed a response (Doc. 30) in opposition to Defendants' motion. Defendants filed a reply (Doc. 34) on February 6, 2019.

         Meanwhile, on February 4, 2019, Plaintiff filed a motion for appointment of counsel (Doc. 31), a motion to amend the complaint and a proposed amended complaint (Doc. 32), and a second motion for a TRO and preliminary injunction (Doc. 33), along with an “Exhibits Package.”[8] The proposed amended complaint (Doc. 32), is nearly identical to the previously submitted proposed amended complaint (Doc. 23-1).[9]Defendants filed a response (Doc. 37) in opposition to the second motion for a TRO and preliminary injunction, and Plaintiff filed a reply (Doc. 38).

         DISCUSSION

         I. Plaintiff's motion to amend (Doc. 23), filed December 19, 2018

         The Court finds that Plaintiff's motion to amend (Doc. 23), filed December 19, 2018, should be stricken from the record. By Order filed October 5, 2018 (Doc. 7), the Court directed the Clerk of Court to issue the summonses provided by Plaintiff, directed service of process, and directed Defendants to submit a special report and file an answer or dispositive motion within sixty (60) days of service. In that Order, the Court stated that “[n]o other applications, motions or discovery shall be filed or considered until the steps set forth in this Order have been completed and an order entered, ” unless otherwise ordered by the Court. Doc. 7, at 2.

         On December 10, 2018, the Court granted Defendants' motions for an extension of time to file the special report and to respond to the complaint and established a filing deadline of January 7, 2019. See Docs. 19, 20, 21. On December 19, 2018, before Defendants' deadline expired, Plaintiff filed a motion for leave to amend the complaint and the motion for a TRO and preliminary injunction (Doc. 23). Because Plaintiff filed this motion to amend before “the steps set forth in” the Order directing Defendants to submit a special report and file a responsive pleading had “been completed and an order entered, ” see Doc. 7, at 2, the Court finds that the motion to amend (Doc. 23) shall not be considered and orders that motion to be stricken from the record.

         II. Plaintiff's motions for a TRO and preliminary ...


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