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Cassady v. Dozier

United States District Court, M.D. Georgia, Macon Division

March 16, 2018

DANA MARIE CASSADY, Plaintiff,
v.
Commissioner GREGORY DOZIER, et al., Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE.

         After screening the Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, United States Magistrate Judge Charles H. Weigle recommends denying the Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) and dismissing the Plaintiff's complaint without prejudice because (1) the Plaintiff has already had three or more actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim and accordingly the Prison Litigation Reform Act's “three strikes” provision applies to the Plaintiff's complaint; and (2) the Plaintiff's complaint does not allege “imminent danger” sufficient to trigger the imminent danger exception to the “three strikes” provision. Doc. 5. The Plaintiff has objected to the Recommendation, arguing that she has sufficiently alleged that she faces “imminent danger.” Doc. 6.

         Pursuant to 28 U.S.C. 636(b)(1), the Court has considered the objections and made a de novo determination of the portions to which the Plaintiff objects. As discussed below, the Court REJECTS the Recommendation (Doc. 5); finds that the Plaintiff has alleged “imminent danger of serious physical injury” and grounded her allegations in specific facts sufficient to avoid the “three strikes” provision of the Prison Litigation Reform Act; GRANTS the Plaintiff's motion to proceed in forma pauperis; finds that the Plaintiff states a claim sufficient to survive screening pursuant to the PLRA as to most of the Defendants; and accordingly ORDERS that service now be made on Defendants Angelyn Curry, Gregory Dozier, Sharon Lewis, Tom McElhaney, Michael Pitts, and Cedric Taylor, but the Plaintiff's claims against Shawn Emmons are DISMISSED without prejudice.

         I. FACTS [1]

         The Plaintiff is a 49-year-old preoperative transgender woman. Doc. 6 at 3. The Plaintiff has been taking “feminizing hormone therapy and chemical castration treatments continually since January 2016” to address her gender dysphoria. Doc. 1-1 ¶ 4. She seeks injunctive relief based upon Defendants' failure to provide her with medical necessary surgery in violation of the Eighth Amendment of the United States Constitution. Id. ¶ 1.

         The Plaintiff claims that on November 3, 2015, she was sent to Augusta State Medical Prison to treat her gender dysphoria. Id. ¶ 66. There, she was prescribed hormone therapy and chemical castration treatments, as well as 90-day follow-up appointments. Id. The Plaintiff claims that the hormone therapy she currently undergoes, which is acknowledged as medically necessary by the state, presents serious health risks in light of her medical conditions and the intensification of gender dysphoria with age. Id. ¶¶ 38-40, 43, 45. She also alleges that the hormone therapy is not sufficient to address her gender dysphoria, including her greater risk of suicide, evidenced by previous suicide attempts and self-mutilation, and that her depression, hypertension, and “cardioreactivity” are all exacerbated by the stigma of her “gender and anatomical incongruence.” Id. ¶¶ 41, 44-45, 67. The Plaintiff further alleges that one mental health care provider, Dr. McKinnon, “unequivocally prescribed [gender reassignment surgery] as medically necessary for” her, and another, Dr. Duane Harris, stated in 2015 in the Plaintiff's mental health progress record that the Plaintiff is “a good candidate for gender confirming surgery.” Id. ¶¶ 49, 64.

         The Plaintiff alleges that she “has made numerous formal and informal requests for [gender reassignment surgery] since she started on hormones in January 2016.” Id. ¶ 63. The Plaintiff's claims arise from the Defendants' denials of those requests. The Plaintiff alleges that the Defendants have been deliberately indifferent to her medical needs by refusing to provide her with gender reassignment surgery despite their knowledge of her “on-going pain and anguish” and her “long history of self-injurious behavior as related to her failure to obtain [gender reassignment surgery].” Id. ¶¶ 114, 116. The Plaintiff requests injunctive relief and attorney's fees but not monetary damages. See id. ¶¶ 134-39.

         II. IMMINENT DANGER OF SERIOUS PHYSICAL INJURY

         As the Recommendation notes, the Plaintiff has filed multiple lawsuits in federal court, and at least three of her complaints or appeals have been dismissed on a ground that constitutes a “strike” under the Prison Litigation Reform Act. Doc. 5 at 2. Pursuant to the PLRA's “three strikes provision, ” the Plaintiff can therefore only go forward with her claim in forma pauperis if she alleges an “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). To satisfy the “imminent danger” exception, a plaintiff must allege the existence of a present and imminent danger of serious physical injury. Id. General allegations that are not grounded in specific facts are not sufficient. Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004).

         The Recommendation concludes that the Plaintiff's complaint “does not . . . set forth any specific facts identifying an imminent danger of serious physical injury as a result of the denial of surgery.” Doc. 5 at 3. But, liberally construed, the Plaintiff's complaint does allege that surgery is “essential” because her hormone therapy, which she undertakes instead of gender reassignment surgery, is inadequate in the following ways: (1) it exposes the Plaintiff to heightened health risks due to interactions with her “chronic obstructed pulmonary disease, asthma, and hypertension;” (2) it will become increasingly inadequate to deal with gender dysphoria, which the Plaintiff alleges intensifies with age and is “more pronounced today than ever before” due to her age and circumstances; (3) as a result, the Plaintiff's mental health needs are not being addressed, and her “inability to reduce or modulate [her] internal anguish is likely to result in emotional decomposition and further self-harm.” Doc. 1-1 ¶¶ 38-40, 43-44. The Plaintiff alleges a history of self-harm arising from her gender dysphoria. See, e.g., id. ¶¶ 67, 113. She also alleges that her treating psychiatrist has “unequivocally prescribed [gender reassignment surgery] as medically necessary for Plaintiff.” Id. ¶ 49. For purposes of determining whether the “three strikes” provision applies, the Court accepts the Plaintiff's allegations and finds them “grounded in specific facts” sufficient to satisfy the imminent danger exception, and the Court accordingly REJECTS the Recommendation. Accordingly, the Court must review the Plaintiff's Complaint and determine whether the Plaintiff's claims should be dismissed or proceed for factual development. See 28 U.S.C. § 1915A.

         III. MOTION TO PROCEED IN FORMA PAUPERIS

         The Plaintiff seeks leave to proceed in this action without paying the Court's filing fee. Doc. 2. The PLRA authorizes courts to commence lawsuits without prepayment of fees if the plaintiff submits an affidavit in support of her claim of indigence and submits a certified copy of her trust fund account statement for the 6-month period immediately preceding the filing of the complaint. 28 U.S.C. §§ 1915(a)(1)-(2). The Plaintiff has done so, and the Court finds that the Plaintiff is unable to pay her filing fee. Docs. 2; 2-1. Accordingly, the Plaintiff's motion to proceed in forma pauperis (Doc. 2) is GRANTED. This does not mean that the filing fee is waived; federal law requires that Plaintiff still pay the full filing fee over time, using the payment plan described in 28 U.S.C. § 1915(b) and directed below. The CLERK is therefore ORDERED to forward a copy of this order to the business manager of the facility in which Plaintiff is confined so that withdrawals from her account may commence as payment to the Court's filing fee.

         IV. PRELIMINARY SCREENING

         A. Standard on Screening

         The PLRA also requires the Court screen the Plaintiff's Complaint and dismiss the Complaint if the Court determines that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. §§ 1915A(b)(1)-(2). But, when screening a complaint under the PLRA, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Boxer X, 437 F.3d at 1110 (internal quotation marks omitted). A complaint fails to state a claim on which relief may be granted if it does not include “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555. In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         B. Requirements for a Deliberate Indifference to Medical Needs § 1983 Claim

         A claimant is entitled to relief under 42 U.S.C. § 1983 if he or she can prove that a person acting under color of state law deprived him or her of a federal right. Almand v. DeKalb Cty.,103 F.3d 1510, 1513 (11th Cir.1997). Under the Eighth Amendment, state actors are prohibited from inflicting cruel and unusual punishment, such as punishments that are “totally without penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (internal quotation marks omitted). Courts examine whether prison officials “acted with deliberate indifference to the inmates' health or safety.” Hope v. Pelzer,536 U.S. 730, 737-38 (2002) (internal quotation marks omitted). Generally, supervisors are not liable under § 1983 for the constitutional violations of their subordinates. Miller v. King, 384 F.3d 1248, 1261 (11th ...


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