United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION RE: CROSS MOTIONS FOR
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
District Court has referred this 42 U.S.C. § 1983 civil
rights matter to United States Magistrate Judge J. Richard
Creatura under 28 U.S.C. §§ 636(b)(1)(A) and (1)(B)
and Local Magistrate Judge Rules MJR 1, 3, and 4.
See Dkt. 2. The matter is before the Court on the
parties' cross motions for summary judgment. See
Dkts. 33, 38.
a male-to-female transgender prisoner, alleges claims of
deliberate indifference in violation of the Eighth Amendment
against Bruce Gage, the Department of Corrections'
(“DOC”) chief of psychiatry; Ryan Herrington,
facility's medical director; and Scott Light, one of her
primary care providers. Her claims derive from
defendants' various roles in an alleged 13-month delay
between when she requested hormone therapy and when it was
provided-a period during which plaintiff attempted
self-castration and reported suffering emotional anguish
because of the delay.
the Court is conscious that treatment for Gender Dysphoria
(“GD”) is relatively new and appropriately
treating prisoners with this condition may inevitably involve
some delay, here, plaintiff has provided facts that could
support a jury finding that for at least two defendants, the
delay was due to purposeful interference, not prudent medical
judgment. Thus, there are material issues of fact regarding
whether at least some portion of that delay was the result of
deliberate indifference toward a serious medical need.
Therefore, the undersigned recommends that the District Court
deny plaintiff's motion for summary judgment and grant in
part and deny in part defendants' cross-motion for
the facts giving rise to this lawsuit are undisputed,
including the following. Plaintiff identifies herself as a
male to female transgender prisoner at Stafford Creek
Corrections Center. See Dkt. 20, at 1. She suffers
from GD, which is a “persistent discomfort with
one's assigned sex and with one's primary and
secondary sex characteristics, which causes intense emotional
pain and suffering.” Dkt. 33-1, at 234; see
Dkt. 38, at 3. The parties agree that GD is a “serious
medical condition.” Dkt. 38, at 14; Dkt. 43, at 5.
the methods of treating this condition is a form of hormone
therapy. See Dkt. 33-1, at 28; Dkt. 39, at 3. But,
according to DOC policy, before such therapy could be
administered, the treatment had to be authorized by a care
review committee specifically addressing persons with GD (a
committee that is hereinafter referred to as the
“GD-CRC”) on a case-by-case basis. See
Dkt. 33, at 6; Dkt. 39-1, at 13, 25, 27, 55. The GD-CRC is
comprised of three voting members-the DOC chief medical
officer, mental health director, and chief of psychiatry.
See Dkt. 33-1, at 163; Dkt. 39-1, at 56. Defendant
Gage, the DOC chief of psychiatry, is one voting member of
that committee. See Dkt. 33, at 7; Dkt. 39, at 2;
Dkt. 39-1, at 56, 63, 65.
following dates are important to the resolution of these
August 16, 2017 - Plaintiff is diagnosed with GD.
See Dkt. 33, at 3.
September 21, 2017 - Defendant Gage becomes personally aware
of plaintiff's case. See Dkt. 43, at 4.
November 20, 2017 - Clinical assessments are completed for
presentation of plaintiff's hormone treatment request to
the GD-CRC. Dkt. 38, at 4; Dkt. 43, at 4-5.
January 5, 2018 - Plaintiff attempts auto-castration and is
treated by defendant Light. Dkt. 33-1, at 15, 165; Dkt. 41-1,
February 8, 2018 - According to defendant Gage, the GD-CRC
meets, but plaintiff's case is not discussed because of
agenda issues. See Dkt. 39, at 4.
March 26, 2018 - The GD-CRC meets to discuss plaintiff's
case, decides that it is unable to confirm plaintiff's GD
diagnosis, and orders psychological testing, all of which is
documented in an April 3 report authored by defendant Gage.
See Dkt. 33-1, at 165; Dkt. 39, at 4; Dkt. 39-1, at
May 9, 2019 - A “blood work up” reveals that
plaintiff has slightly elevated prolactin levels.
See Dkt. 43, at 9.
July 12, 2018 - The GD-CRC meets, considers psychological
testing results, and authorizes plaintiff's hormone
therapy. Dkt. 39-1, at 66; see Dkt. 43, at 9.
July 16, 2018 - Defendant Gage writes a primary encounter
report documenting the GD-CRC's decision and authorizing
hormone therapy. See Dkt. 39-1, at 66; see
Dkt. 43, at 9.
August 30, 2018 - An additional endocrinology consultation is
completed at the request of defendant Herrington. Dkt. 33-1,
at 211; Dkt. 40, at 2.
October 12, 2018 - Defendant Light, now plaintiff's
primary care provider, approves plaintiff's hormone
treatment. See Dkt. 33, at 11; Dkt. 41, at 4.
November 3, 2018 - Plaintiff receives the first hormone
injection. Dkt. 40, at 2; see Dkt. 43, at 8.
who proceeds pro se and in forma pauperis,
initiated this matter in October 2018. See Dkt. 1.
In her amended complaint, she asserts that the actions of
defendants Gage, Herrington, and Light violated the Eighth
Amendment. See Dkt. 20, at 2. Plaintiff requests
$250, 000 in damages, payment of costs associated with her
lawsuit, and injunctive relief. See Dkt. 20, at 6.
The parties have engaged in extensive discovery. See
and defendants have now filed cross motions for summary
judgment. See Dkts. 33, 38. Defendants included a
notice of dispositive motion with their cross motion for
summary judgment. See Dkt. 42. Plaintiff concedes
that defendants' motion should be granted inasmuch as it
requests dismissing her claims for injunctive relief.
See Dkt. 43, at 13.
have also filed supplemental evidence in support of their
motion. See Dkt. 47. Plaintiff filed a response to
the supplemental evidence that includes arguments in support
of her summary judgment motion. See Dkt. 48.
Motions To Strike and Supplemental Evidence
preliminary matter, the undersigned addresses defendants'
requests to strike certain evidence that plaintiff relies
upon. An affidavit or declaration “must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed.R.Civ.P.
56(c)(4). “A party may object that the material cited
to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” Fed.R.Civ.P.
defendants request that the Court strike plaintiff's
briefing to the extent that it relies on a statement in
plaintiff's declaration that an April 2017 report
established that plaintiff “meet[s] the standards to be
treated with Hormone therapy.” Dkt. 38, at 2;
see Dkt. 33-1, at 11. Plaintiff provided the report.
See Dkt. 33-1, at 1. Contrary to plaintiff's
characterization, the report does not state that plaintiff
meets the criteria for hormone therapy; rather, it states
that she meets the criteria for GD and refers her to a
psychiatrist so that her case can be presented to the GD-CRC.
Dkt. 33-1, at 6-7. The Court will therefore consider the
report to the extent that it establishes that the provider
who drafted the report assessed GD and directed further
referral so that plaintiff's case could be considered by
defendants request that the Court strike plaintiff's
briefing to the extent that it relies on plaintiff's
statement that World Professional Association for Transgender
Health (“WPATH”) guidelines outline appropriate
treatment protocols for individuals with GD. Dkt. 38, at 2.
The Court will consider the guidelines as having some
persuasive value, although they are not binding. The Court
takes judicial notice that other courts have looked to the
WPATH standards as authoritative in this area. See,
e.g., Edmo v. Corizon, __ F.3d __, 2019 WL
3978329, at *4 (9th Cir. Aug. 23, 2019); Norsworthy v.
Beard, 87 F.Supp.3d 1164, 1171, 1188 (N.D. Cal. 2015).
There is no reason to strike plaintiff's briefing on this
defendants object to plaintiff's reliance on emails
between Rachael Seevers (an attorney with Disability Rights
Washington who appears to have assisted plaintiff before
plaintiff filed this case) and Dan Karasic, M.D. (a professor
of psychiatry). See Dkt. 38, at 2; Dkt. 33-1, at
179. In these emails, which plaintiff offers as expert
opinion testimony regarding whether the personality testing
ordered by the GD-CRC was medically appropriate, Dr. Karasic
stated that “[n]either personality testing nor
projective testing have any place in the evaluation of people
for hormones.” Dkt. 38, at 2; see Dkt. 33-1,
are correct that this statement is hearsay, offered without
an exception-and therefore is inadmissible. Moreover, even if
plaintiff offered a hearsay exception or the evidence could
be presented in an admissible form, this statement is offered
as an expert opinion regarding the standard of care for GD
patients. Rule 702 of the Federal Rules of Evidence requires
that, among other things, the proffered expert opinion be
based on sufficient facts or data and the product of reliable
principles and methods and that the expert must have
“reliably applied the principles and method to the
facts of the case.” Here, Dr. Karasic does not explain
the basis for his conclusory statement about projective and
personal testing, nor does he explain whether this statement
applies to plaintiff's particular case or is a general,
abstract principle. Without more explanation about the basis
for this opinion, it does not meet the requirements of Rule
702. The motion to strike Dr. Karasic's opinion about
personality or projective testing is granted.
defendants submitted supplemental evidence in support of
their cross-motion after the noting date for summary
judgment, when this Court granted their motion to compel.
See Dkts. 46, 47. This evidence consists primarily
of plaintiff's responses to interrogatories, in which she
identifies “no physical harm” that resulted from
a particular “act” by defendant Light, Gage, or
Herrington, since her claim is premised on a “failure
to act.” E.g., Dkt. 47, at 8. The Court has
considered this supplemental evidence in making a
recommendation on the parties' motions for summary
judgment, although the Court does not find that any of this
evidence is material to the analysis below. The Court has
also considered plaintiff's arguments in her response to
the supplemental evidence, to the extent that they are
offered in support of her summary judgment motion and in
opposition to defendants' cross motion for summary
judgment. See Dkt. 48.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “In ruling on a motion for summary
judgment, ‘[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
[the nonmovant's] favor.'” Moldex-Metric,
Inc. v. McKeon Prods., Inc., 891 F.3d 878, 881 (9th Cir.
2018) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)). Further, “‘courts should
construe liberally motion papers and pleadings filed by
pro se inmates and should avoid applying summary
judgment rules strictly.'” Soto v.
Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting
Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
2010); see also Blaisdell v. Frappiea, 729 F.3d
1237, 1241 (9th Cir. 2013) (a court must not hold
“missing or inaccurate legal terminology or muddled
draftsmanship against” a pro se inmate).
plaintiff is pro se, all of her contentions in
motions and pleadings that are made under penalty of perjury,
based on personal knowledge, and set forth facts that would
be admissible in evidence will be considered in ruling on the
cross motions for summary judgment. See Jones v.
Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
Section 1983 and the Eighth Amendment
prevail in a § 1983 action, a plaintiff must show
“(1) a violation of rights protected by the
Constitution or created by federal statute, (2) proximately
caused (3) by conduct of a “person” (4) acting
under color of ...