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Santiago v. Gage

United States District Court, W.D. Washington, Tacoma

September 12, 2019

MARCO SANTIAGO, Plaintiff,
v.
BRUCE C. GAGE, et al., Defendants.

          REPORT AND RECOMMENDATION RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.

         The 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.

         Plaintiff, 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, her[1] 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.

         Although 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 summary judgment.

         FACTUAL BACKGROUND

         Many of 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.

         One of 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.

         The following dates are important to the resolution of these motions:

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, at 2.
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 63.
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.

         PROCEDURAL BACKGROUND

         Plaintiff, 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 Dkt. 34.

         Plaintiff 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.

         Defendants 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.

         DISCUSSION

         I. Motions To Strike and Supplemental Evidence

         As a 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. 56(c)(2).

         First, 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 the GD-CRC.

         Second, 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 issue.

         Third, 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, at 180.

         Defendants 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.

         Finally, 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.

         II. Legal Principles

         A. Summary Judgment

         Summary 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).

         Because 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).

         B. Section 1983 and the Eighth Amendment

         To 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 ...


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