United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
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.
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
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.
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.
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.
IMMINENT DANGER OF SERIOUS PHYSICAL INJURY
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).
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.
MOTION TO PROCEED IN FORMA PAUPERIS
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.
Standard on Screening
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.
Requirements for a Deliberate Indifference to Medical Needs
§ 1983 Claim
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 ...