U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:17-cv-05714-BHS-JRC

Goninan v. Sinclair et al Assigned to: Judge Benjamin H. Settle Referred to: Judge J Richard Creatura Cause: 42:1983 Prisoner Civil Rights

Date Filed: 09/05/2017 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
Nathan Robert Goninan also known as Nonnie M Lotusflower

represented by Antoinette Marie Davis ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-624-2184 Email: tdavis@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin C Byers CORR CRONIN, LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Email: bbyers@corrcronin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hank L Balson PUBLIC INTEREST LAW GROUP 705 SECOND AVE STE 1000 SEATTLE, WA 98104 206-838-1800 Fax: 206-838-3330 Email: hank@budgeandheipt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristina Markosova DAVIS WRIGHT TREMAINE

(SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-757-8026 Fax: 206-757-7026 Email: kristinamarkosova@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Edwards CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Email: dedwards@corrcronin.com TERMINATED: 10/12/2018

V. Defendant Washington State Department of Corrections TERMINATED: 04/15/2019
Defendant Eleanor Vernell Director of the DOC TERMINATED: 04/15/2019
Defendant

represented by Candie M Dibble ATTORNEY GENERAL'S OFFICE (SPOKANE-CORRECTIONS) CORRECTIONS DIVISION 1116 WEST RIVERSIDE AVENUE SPOKANE, WA 99201-1194 509-456-3123 Fax: 509-458-3548 Email: Candie.Dibble@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Candie M Dibble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karie Rainer Mental Health Manager
Defendant Dan White WCC Administrator TERMINATED: 04/15/2019
Defendant Dr Wendy Wachsmuth TERMINATED: 04/15/2019
Defendant Erika Lauretz Mental Health TERMINATED: 02/12/2018
Defendant Dr Burt and others to be named later TERMINATED: 04/15/2019
Defendant Stephen Sinclair
Defendant Sarah Kariko M.D.

represented by Candie M Dibble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Candie M Dibble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Candie M Dibble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ramona Noel Hunter ANDREWS SKINNER 645 ELLIOTT AVENUE W STE 350 SEATTLE, WA 98119-3911 206-223-9248 Fax: 206-623-9050 Email: ramona.hunter@andrewsskinner.com ATTORNEY TO BE NOTICED
represented by Candie M Dibble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Candie M Dibble (See above for address) ATTORNEY TO BE NOTICED
represented by Candie M Dibble (See above for address) ATTORNEY TO BE NOTICED

Defendant
Bruce C Gage M.D.

represented by Candie M Dibble (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/05/2017
09/08/2017 09/08/2017
10/17/2017

# Docket Text
1 MOTION for Leave to Proceed In Forma Pauperis, filed by Nathan Robert Goninan. (Attachments: # 1 Proposed 1983 Prisoner Civil Rights Complaint, # 2 Exhibits 1-7, # 3 Exh 7 cont'd - 8, # 4 Exh 8 cont'd - 10, # 5 Exh 10 cont'd - 12, # 6 Exh 12 cont'd, # 7 Proposed Motion to Appoint Counsel, # 8 Proposed Motion to file without exhausting administrative remedies, # 9 Proposed Motion for Temporary Restraining Order and Preliminary Injunction, # 10 verification email)**255 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 09/08/2017)
NOTICE TO FILER: Your Interrogatories will not be filed in this case. Per LCR 5 (b), discovery documents are not to be filed in your court case. **TEXT ONLY, PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 09/08/2017)
3 LETTER re IFP deficiency:
- The proper IFP form was not submitted. Enclosed please find the correct IFP form to be filled out in full and returned to the Court. - Please provide a certified copy of your prison trust account statement showing transactions for the last six months. Filer has until 10/10/2017 to correct. (Attachments: # 1 IFP application (blank)) **5 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 09/08/2017)
4 ORDER that plaintiff file an amended motion for IFP with a certified copy of his prison trust account on or before 11/17/2017. If plaintiff fails to do so, the Court will recommend that plaintiff's action be dismissed for failure to obey a court order and failure to prosecute.Signed by Magistrate Judge J Richard Creatura. (Attachments: # 1 IFP application (blank))**6 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 10/17/2017)

10/17/2017 10/20/2017 10/20/2017 10/27/2017 10/27/2017 10/27/2017 10/27/2017 10/27/2017

Plaintiff's amended IFP application due by 11/17/2017. **DO NOT PRINT**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 10/17/2017)
5 LETTER explaining why the IFP Deficiencies were corrected late; and NOTICE of Change of Address, filed by Plaintiff Nathan Robert Goninan. (address updated) (Attachments: # 1 envelope)**2 PAGES received via USPS, PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 10/24/2017)
6 AMENDED 1 MOTION for Leave to Proceed In Forma Pauperis with Trust Account Statement, filed by Plaintiff Nathan Robert Goninan (Attachments: # 1 envelope)**4 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 10/24/2017)
7 ORDER GRANTING 6 AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS AND DIRECTING INSTITUTION TO CALCULATE, COLLECT, AND FORWARD PAYMENTS by Judge J Richard Creatura. (cc: Plaintiff, DOC, WAWD Finance)**2 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 10/30/2017)
8 1983 Prisoner Civil Rights Complaint against defendants Dr Burt, Erika Lauretz, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections and Dan White with JURY DEMAND, filed by Nathan Robert Goninan. (IFP Granted) **218 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 10/30/2017)
9 MOTION for Temporary Restraining Order and Preliminary Injunction, filed by Plaintiff Nathan Robert Goninan. Noted by clerk for: 10/27/2017. **14 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(GMR) Modified on 10/30/2017 (GMR). (Entered: 10/30/2017)
10 MOTION for the Appointment of Counsel, filed by Plaintiff Nathan Robert Goninan. Noted by clerk for: 11/17/2017. **11 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 10/30/2017)
11 MOTION to file without first exhausting administrative remedies, filed by Plaintiff Nathan Robert Goninan. Noted by clerk for: 11/17/2017. **2 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 10/30/2017)

10/30/2017
10/30/2017 11/16/2017 11/16/2017 11/16/2017 11/16/2017 11/16/2017 11/16/2017 11/16/2017
11/16/2017

12 ORDER DIRECTING SERVICE OF CIVIL RIGHTS COMPLAINT by E-Mail upon the named defendants (7); by Magistrate Judge J Richard Creatura. ( 8 Complaint, this Order and the notice of lawsuit/request for waiver and waiver of service emailed 10/30/2017) (Attachments: # 1 Pro se Information Sheet)**6 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 10/30/2017)
Check status of service on 12/6/2017. (GMR) (Entered: 10/30/2017)
13 NOTICE of Appearance by attorney Candie M Dibble on behalf of Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White. **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/16/2017)
14 WAIVER OF SERVICE of summons upon defendant Burt mailed on 10/30/2017 **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/16/2017)
15 WAIVER OF SERVICE of summons upon defendant Wendy Wachsmuth mailed on 10/30/2017 **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/16/2017)
16 WAIVER OF SERVICE of summons upon defendant Dan White mailed on 10/30/2017 **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/16/2017)
17 WAIVER OF SERVICE of summons upon defendant Washington Department of Corrections mailed on 10/30/2017 **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/16/2017)
18 WAIVER OF SERVICE of summons upon defendant Eleanor Vernell mailed on 10/30/2017 **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/16/2017)
19 MOTION for Oral Arguments re 11 MOTION to file without first exhausting administrative remedies, filed by Plaintiff Nathan Robert Goninan. Noted by clerk for: 12/1/2017. (Attachments: # 1 Transmittal Letter) **8 PAGES RECEIVED VIA USPS, PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 11/21/2017)
20 MOTION for Oral Arguments re 9 MOTION for Temporary Restraining Order and Preliminary Injunction, filed by Plaintiff Nathan

11/21/2017
11/22/2017 11/22/2017 11/27/2017 12/07/2017

Robert Goninan. Noted by clerk for: 12/1/2017. (Attachments: # 1 Transmittal Letter) **7 PAGES RECEIVED VIA USPS, PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 11/21/2017)
NOTICE TO FILER RE: NON-COMPLIANCE WITH PRISONER EFILING INITIATIVE (Dkts. 19 & 20 ). The Western District of Washington received documents from you for filing through the U.S. Postal Service. Pursuant to General Order 06-16, participation in the Prisoner E-Filing Initiative is mandatory for all prisoner litigants incarcerated at the Washington State Penitentiary. These documents will be filed by the clerk in this instance, it is not necessary to refile. Please comply by submitting all future documents to be filed with this Court to the Law Librarian/designee for electronic filing. **0 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(GMR) (Entered: 11/21/2017)
21 RESPONSE, by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White, to 11 MOTION to file without first exhausting administrative remedies, 9 MOTION for Temporary Restraining Order and Preliminary Injunction. **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/22/2017)
22 ORDER that Plaintiff's 9 MOTION for Temporary Restraining Order and Preliminary Injunction; 10 MOTION to Appoint Counsel; 11 MOTION to file without first exhausting administrative remedies, 19 MOTION for Oral Arguments, and 20 Second MOTION for oral arguments are re-noted to 12/15/2017. Defendants are directed to respond to the substantive aspects of the above noted motions on or before 12/11/17. Signed by Magistrate Judge J Richard Creatura. **2 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 11/22/2017)
23 WAIVER OF SERVICE of summons upon defendant Karie Rainer mailed on 10/30/2017 **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 11/27/2017)
24 RESPONSE, by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White, to 11 MOTION to file without first exhausting administrative remedies, 19 MOTION for Hearing re 11 MOTION to file without first exhausting administrative remedies. **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 12/07/2017)

12/07/2017 12/07/2017 12/08/2017 12/08/2017 12/12/2017 12/12/2017 12/21/2017

25 RESPONSE filed by Plaintiff Nathan Robert Goninan, TO defendants' objections to plaintiff's 9 MOTION for Temporary Restraining Order and Preliminary Injunction, and 11 MOTION to file without first exhausting administrative remedies, **3 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 12/08/2017)
26 DECLARATION of Nathan R Goninan (aka Nonnie M Lotusflower) in support of 25 Plaintiff's Response to Defendants' Objections to Plaintiff's 11 MOTION to file without first exhausting administrative remedies, 9 MOTION for Temporary Restraining Order and Preliminary Injunction **9 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 12/08/2017)
27 RESPONSE, by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White, to 9 MOTION for Temporary Restraining Order and Preliminary Injunction. **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 12/08/2017)
28 DECLARATION of Dr. Karie Rainer filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White re 9 MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit A)**PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 12/08/2017)
29 ANSWER to 8 Complaint, with JURY DEMAND by Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White.**PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Dibble, Candie) (Entered: 12/12/2017)
30 SURREPLY filed by Plaintiff Nathan Robert Goninan to Plaintiff's 9 MOTION for Temporary Restraining Order and Preliminary Injunction and reply to the defendants' objection to the same. **28 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 12/13/2017)
31 RESPONSE by Plaintiff Nathan Robert Goninan to Defendants' 29 Affirmative Defenses in answering Plaintiff's civil action. JURY DEMANDED. **4 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) Modified on 12/26/2017: added "jury demand" language (CMG). (Entered: 12/26/2017)

01/05/2018 01/08/2018 01/09/2018 01/09/2018
01/23/2018 02/05/2018 02/08/2018 02/08/2018 02/12/2018

32 NOTICE of Appearance by attorney Ramona Noel Hunter on behalf of Defendant Erika Lauretz. **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Hunter, Ramona) (Entered: 01/05/2018)
33 ANSWER to 8 Complaint, with JURY DEMAND by Erika Lauretz.**PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Hunter, Ramona) (Entered: 01/08/2018)
34 ORDER denying 10 Motion to Appoint Counsel ; granting 11 Motion to proceed without exhausting remedies; and denying 19 Motion for Oral Argument. Signed by Magistrate Judge J Richard Creatura.**4 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 01/10/2018)
35 ORDER directing defendants to respond to plaintiff's surreply and the attached exhibits by 2/9/18. Defendants should address what, if any, changes this filing makes to the argument presented in their response (Dkt. 27) and what changes, if any, have occurred in plaintiff's treatment plan. The Clerk is directed to RE-NOTE plaintiff's 9 MOTION for Temporary Restraining Order and Preliminary Injunction and 20 MOTION for Oral Argument to 2/9/2018. Signed by Magistrate Judge J Richard Creatura. **3 PAGE(S), PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 01/10/2018)
36 MOTION for leave to file evidence late and to add surreply, filed by Plaintiff Nathan Robert Goninan. Noted by Clerk for 2/9/2018. **3 PAGE(S), PRINT NEF ONLY**(Nathan Goninan, Prisoner ID: 869663)(CMG) (Entered: 01/25/2018)
37 NOTICE of Appearance by attorney Antoinette Marie Davis on behalf of Plaintiff Nathan Robert Goninan. **PRINT ALL**(Nathan Goninan, Prisoner ID: 869663)(Davis, Antoinette) (Entered: 02/05/2018)
38 STIPULATION AND PROPOSED ORDER For Dismissal of Defendant Erika Laurentz by parties (Hunter, Ramona) (Entered: 02/08/2018)
39 Stipulated MOTION for 45 Day Stay of Deadlines, filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White. Noting Date 2/9/2018, (Dibble, Candie) (Entered: 02/08/2018)
40 STIPULATION AND ORDER by Judge Benjamin H. Settle re 38 Stipulation filed by Erika Lauretz; Erika Lauretz (Mental Health) terminated. (TG) (Entered: 02/12/2018)

02/13/2018 02/15/2018 02/15/2018 02/22/2018 02/23/2018
04/19/2018 04/19/2018 04/19/2018 04/19/2018
04/19/2018

41 Agreed Stipulated MOTION for Protective Order, filed by Plaintiff Nathan Robert Goninan. Noting Date 2/13/2018, (Davis, Antoinette) (Entered: 02/13/2018)
42 STIPULATED PROTECTIVE ORDER signed by Judge Benjamin H. Settle re 41 Stipulated Motion.(TG) (Entered: 02/15/2018)
43 ORDER directing the parties to file a clarification, indicating which deadlines the parties have stipulated to stay, on or before February 23, 2018. Signed by Magistrate Judge J Richard Creatura. (CMG) (Entered: 02/16/2018)
44 STATEMENT of Clarification re 43 Order to Re-Note Motion by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White (Dibble, Candie) (Entered: 02/22/2018)
45 ORDER granting 39 Stipulated Motion. This action is stayed until 4/13/18. The Clerk is directed to terminate all pending motions (Dkts. 9 , 20 , 36 ) until the stay expires and the Court orders those motions to be renoted. Signed by Magistrate Judge J Richard Creatura.(CMG) (Entered: 02/23/2018)
46 NOTICE of Appearance by attorney David B Edwards on behalf of Plaintiff Nathan Robert Goninan. (Edwards, David) (Entered: 04/19/2018)
47 NOTICE of Appearance by attorney Kristina Markosova on behalf of Plaintiff Nathan Robert Goninan. (Markosova, Kristina) (Entered: 04/19/2018)
48 MOTION for Partial Summary Judgment , filed by Plaintiff Nathan Robert Goninan. (Attachments: # 1 Proposed Order) Noting Date 5/11/2018, (Markosova, Kristina) (Entered: 04/19/2018)
49 DECLARATION of David Edwards filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Attachments: # 1 SEALED Exhibit A-D)(Markosova, Kristina) Modified on 5/2/2018 - Attachment sealed as Exhibit D contains personal identifiers that must be redacted pursuant to FRCP 5.2 and LCR 5.2(GMR). (Entered: 04/19/2018)
50 DECLARATION of William Block filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A-D)(Markosova, Kristina) (Entered: 04/19/2018)

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05/03/2018 05/03/2018 05/03/2018 05/11/2018 05/11/2018 05/22/2018 05/30/2018

51 DECLARATION of Dr. Randi Ettner filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A-B)(Markosova, Kristina) (Entered: 04/19/2018)
NOTICE TO FILER: re 49 Declaration of David Edwards - Attachment Exhibits A-D. The document contains personal identifiers that must be redacted pursuant to LCR 5.2 and FRCP 5.2. You are required to re-file a redacted version of your document using the event "Redacted Document" located in the Other Documents category. This event will allow you to link back to your original filing, as well as the underlying motion. This will not affect your original filing date. Pursuant to LCR 5.2 and FRCP 5.2, the document has been administratively sealed by the Court. (GMR) (Entered: 05/02/2018)
52 RESPONSE, by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White, to 48 MOTION for Partial Summary Judgment . (Dibble, Candie) (Entered: 05/03/2018)
53 DECLARATION of Kevin Bovenkamp filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White re 48 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A)(Dibble, Candie) (Entered: 05/03/2018)
54 REDACTION to 49 Declaration, of David Edwards re Plaintiff's Motion for Partial Summary Judgment by Plaintiff Nathan Robert Goninan (Attachments: # 1 Exhibit A-D)(Markosova, Kristina) (Entered: 05/03/2018)
55 REPLY, filed by Plaintiff Nathan Robert Goninan, TO RESPONSE to 48 MOTION for Partial Summary Judgment (Markosova, Kristina) (Entered: 05/11/2018)
56 DECLARATION of Kristina Markosova filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A)(Markosova, Kristina) (Entered: 05/11/2018)
57 ORDER directing the Clerk to renote Plaintiff's 9 motion for temporary restraining order, motion for oral argument 20 , and motion for leave to file evidence late 36 for June 1, 2018. Signed by Magistrate Judge J Richard Creatura. (CMG) Modified on 5/24/2018: typo (CMG). (Entered: 05/22/2018)
58 NOTICE to Withdraw Pending Motion re 36 MOTION for Leave to File, 9 MOTION for Temporary Restraining Order and Preliminary

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Injunction, 20 MOTION for Hearing re 9 MOTION for Temporary Restraining Order and Preliminary Injunction ; by Plaintiff Nathan Robert Goninan. (Markosova, Kristina) (Entered: 05/30/2018)
59 SUPPLEMENT re 48 MOTION for Partial Summary Judgment Notice of Supplemental Authority by Plaintiff Nathan Robert Goninan (Markosova, Kristina) (Entered: 06/05/2018)
60 ORDER that Defendants will file supplemental briefing on or before July 13, 2018. **SEE ORDER FOR DETAILS ON BRIEFING** Plaintiff may file a supplemental reply on or before July 27, 2018. The Clerk is directed to renote plaintiff's 48 motion for partial summary judgment to 7/27/2018. Signed by Magistrate Judge J Richard Creatura. (CMG) (Entered: 06/15/2018)
61 RESPONSE, by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White, to 48 MOTION for Partial Summary Judgment . (Dibble, Candie) (Entered: 07/02/2018)
62 DECLARATION of Dr. Karie Rainer filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White re 48 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A)(Dibble, Candie) (Entered: 07/02/2018)
63 REPLY, filed by Plaintiff Nathan Robert Goninan, TO RESPONSE to 48 MOTION for Partial Summary Judgment (Markosova, Kristina) (Entered: 07/27/2018)
64 DECLARATION of Kristina Markosova filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A)(Markosova, Kristina) (Entered: 07/27/2018)
65 DECLARATION of Antoinette Davis filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Markosova, Kristina) (Entered: 07/27/2018)
66 DECLARATION of Plaintiff Nathan Robert Goninan aka Nonnie Marcella Lotusflower filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Markosova, Kristina) (Entered: 07/27/2018)
67 MOTION for Sanctions Against Defendants and for Protective Order, filed by Plaintiff Nathan Robert Goninan. (Attachments: # 1 Proposed Order on Plaintiff's Motion for Protective Order and For Sanctions

08/02/2018
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Against Defendants) Noting Date 8/24/2018, (Davis, Antoinette) (Entered: 08/02/2018)
68 DECLARATION of Antoinette M. Davis in Support of Plaintiff's Motion for Protective Order and for Sanctions Against Defendants filed by Plaintiff Nathan Robert Goninan re 67 MOTION for Sanctions Against Defendants and for Protective Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Davis, Antoinette) (Entered: 08/02/2018)
69 DECLARATION of Dr. Randi C. Ettner in Support of Plaintiff's Motion for Protective Order and for Sanctions Against Defendants filed by Plaintiff Nathan Robert Goninan re 67 MOTION for Sanctions Against Defendants and for Protective Order (Davis, Antoinette) (Entered: 08/02/2018)
70 DECLARATION of Nathan Robert Goninan aka Nonnie Marcella Lotusflower filed by Plaintiff Nathan Robert Goninan re 48 MOTION for Partial Summary Judgment (Markosova, Kristina) (Entered: 08/07/2018)
71 REPORT AND RECOMMENDATIONS re 48 MOTION for Partial Summary Judgment filed by Nathan Robert Goninan; signed by Magistrate Judge J Richard Creatura. Noted for consideration beginning 8/31/2018. (CMG) Modified on 7/2/2019 to set document type to Opinion (KB). (Entered: 08/16/2018)
72 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5. (Markosova, Kristina) (Entered: 08/17/2018)
73 RESPONSE, by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White, to 67 MOTION for Sanctions Against Defendants and for Protective Order. (Dibble, Candie) (Entered: 08/20/2018)
74 DECLARATION of Dr. Karie Rainer filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White re 67 MOTION for Sanctions Against Defendants and for Protective Order (Dibble, Candie) (Entered: 08/20/2018)
75 DECLARATION of Stephen B. Levine, MD filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White re 67 MOTION for

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Sanctions Against Defendants and for Protective Order (Attachments: # 1 Exhibit A)(Dibble, Candie) (Entered: 08/20/2018)
76 REPLY, filed by Plaintiff Nathan Robert Goninan, TO RESPONSE to 67 MOTION for Sanctions Against Defendants and for Protective Order (Davis, Antoinette) (Entered: 08/24/2018)
77 MOTION for Reconsideration re 48 MOTION for Partial Summary Judgment , 71 REPORT AND RECOMMENDATIONS re 48 MOTION for Partial Summary Judgment filed by Nathan Robert Goninan. , filed by Plaintiff Nathan Robert Goninan. (Attachments: # 1 Proposed Order on Plaintiff's Motion for Reconsideration) Noting Date 8/24/2018, (Davis, Antoinette) (Entered: 08/24/2018)
78 ORDER denying 77 Motion for Reconsideration signed by Magistrate Judge J Richard Creatura. (GMR) (Entered: 08/29/2018)
79 OBJECTIONS by Plaintiff Nathan Robert Goninan to 71 Report and Recommendations. Noting Date 9/14/2018, (Attachments: # 1 Proposed Order on Plaintiff's Objections to Report and Recommendation)(Davis, Antoinette) (Entered: 08/30/2018)
80 RESPONSE to 79 OBJECTIONS by Plaintiff Nathan Robert Goninan to 71 Report and Recommendations. filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White (Dibble, Candie) (Entered: 09/13/2018)
81 DECLARATION of STEPHEN B. LEVINE, MD filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington Department of Corrections, Dan White re 79 OBJECTIONS by Plaintiff Nathan Robert Goninan to 71 Report and Recommendations. (Dibble, Candie) (Entered: 09/13/2018)
82 ORDER denying 67 Motion for Sanctions and for Protective Order signed by Magistrate Judge J Richard Creatura. (GMR) (Entered: 09/27/2018)
83 PRETRIAL SCHEDULING ORDER: all Discovery shall be completed by February 15, 2019; and any Dispositive Motion shall be filed and served on or before March 15, 2019; signed by Magistrate Judge J Richard Creatura. (GMR) (Entered: 09/27/2018)
84 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney David B Edwards for Plaintiff Nathan Robert Goninan. (Markosova, Kristina) (Entered: 10/12/2018)

10/12/2018 12/19/2018
01/04/2019 01/18/2019 02/14/2019
02/25/2019 03/15/2019 03/15/2019
03/15/2019 04/03/2019

85 NOTICE of Appearance by attorney Benjamin C Byers on behalf of Plaintiff Nathan Robert Goninan. (Byers, Benjamin) (Entered: 10/12/2018)
86 SUPPLEMENT re 79 OBJECTIONS by Plaintiff Nathan Robert Goninan to 71 Report and Recommendations. Statement of Supplemental Authority by Plaintiff Nathan Robert Goninan (Attachments: # 1 Exhibit A and B)(Markosova, Kristina) (Entered: 12/19/2018)
87 ORDER adopting Report and Recommendations re 79 and re-referring to Magistrate Judge J. Richard Creatura. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 01/04/2019)
88 Stipulated MOTION and proposed order to extend deadlines, filed by Plaintiff Nathan Robert Goninan. Noting Date 1/18/2019, (Markosova, Kristina) (Entered: 01/18/2019)
89 ORDER Granting 88 Stipulated Motion to Extend, signed by Magistrate Judge J Richard Creatura. The Court's 83 Pretrial Scheduling Order is amended as follows: discovery must now be completed by April 16, 2019; and any dispositive motion must now be filed by May 14, 2019. (GMR) (Entered: 02/14/2019)
90 NOTICE of Change of Address/Change of Name of Attorney Kristina Markosova. Filed by Plaintiff Nathan Robert Goninan. (Markosova, Kristina) (Entered: 02/25/2019)
91 MOTION for Partial Summary Judgment , filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington State Department of Corrections, Dan White. (Attachments: # 1 Proposed Order) Noting Date 4/12/2019, (Dibble, Candie) (Entered: 03/15/2019)
92 DECLARATION of Dr. Karie Rainer filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington State Department of Corrections, Dan White re 91 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A)(Dibble, Candie) (Entered: 03/15/2019)
93 DECLARATION of Eleanor Vernell filed by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington State Department of Corrections, Dan White re 91 MOTION for Partial Summary Judgment (Dibble, Candie) (Entered: 03/15/2019)
94 Second Stipulated MOTION to Extend Deadlines, filed by Plaintiff Nathan Robert Goninan. Noting Date 4/3/2019, (Davis, Antoinette) (Entered: 04/03/2019)

04/03/2019

95 Stipulated MOTION to Continue Noting Date for Defendants' Motion for Partial Summary Judgment [Dkt. 91 ], filed by Plaintiff Nathan Robert Goninan. Noting Date 4/3/2019, (Davis, Antoinette) Modified on 4/5/2019 to add document relationship (SP). (Entered: 04/03/2019)

04/08/2019

96 ORDER RENOTING DEADLINES; signed by Magistrate Judge J Richard Creatura. Discovery must now be completed no later than July 15, 2019 12/16/2019. Any dispositive motion must now be filed no later than August 12, 2019 1/13/2020. The noting date for defendants' partial summary judgment motion (Dkt. 91 ) is now April 19, 2019. (SP) Modified on 6/27/2019 per 106 Order (SP). (Entered: 04/08/2019)

04/12/2019

97 Stipulated MOTION and Proposed Order to Amend Complaint and Case Caption, filed by Plaintiff Nathan Robert Goninan. (Attachments: # 1 Amended Complaint) Noting Date 4/12/2019, (Davis, Antoinette) (Entered: 04/12/2019)

04/12/2019

98 NOTICE to Withdraw Pending Motion re 91 MOTION for Partial Summary Judgment ; by Defendants Burt, Karie Rainer, Eleanor Vernell, Wendy Wachsmuth, Washington State Department of Corrections, Dan White. (Dibble, Candie) (Entered: 04/12/2019)

04/15/2019

99 ORDER granting 97 Stipulated MOTION and Proposed Order to Amend Complaint and Case Caption, signed by Judge J Richard Creatura. The Clerk is directed to docket the amended complaint and to amend the case caption to be consistent with the amended complaint. (GMR) (Entered: 04/16/2019)

04/15/2019

100 AMENDED COMPLAINT against defendants Karie Rainer, Stephen Sinclair, Sarah Kariko, Bruce C Gage, filed by Nathan Robert Goninan.(GMR) (Entered: 04/16/2019)

04/25/2019

101 ORDER DIRECTING SERVICE OF PLAINTIFF'S FIRST AMENDED COMPLAINT by e-mail to the newly named defendants, signed by Magistrate Judge J Richard Creatura. ( 100 Amended Complaint, this Order, and Notice of Lawsuit and Waiver of Service emailed 4/26/2019) (ERA) (Entered: 04/26/2019)

04/26/2019

Check status of service waivers per 101 Order Directing Service, due by 6/2/2019. (ERA) (Entered: 04/26/2019)

04/30/2019

102 NOTICE of Appearance by attorney Candie M Dibble on behalf of Defendants Bruce C Gage, Sarah Kariko, Stephen Sinclair. (Dibble, Candie) (Entered: 04/30/2019)

04/30/2019

103 WAIVER OF SERVICE of Summons upon defendant Bruce C Gage mailed on 4/25/2019; Sarah Kariko mailed on 4/25/2019; Stephen Sinclair mailed on 4/25/2019 (Dibble, Candie) (Entered: 04/30/2019)

06/20/2019

104 ANSWER to 100 Amended Complaint with JURY DEMAND by Bruce C Gage, Sarah Kariko, Karie Rainer, Stephen Sinclair.(Dibble, Candie) (Entered: 06/20/2019)

06/26/2019

105 Third Stipulated MOTION to Extend Deadlines, filed by Plaintiff Nathan Robert Goninan. Noting Date 6/26/2019, (Byers, Benjamin) (Entered: 06/26/2019)

06/27/2019

106 ORDER Extending Deadlines; signed by Magistrate Judge J Richard Creatura. The Court grants the parties' motion. See Dkt. 105 . The Clerk shall update the docket (see Dkt. 96 ) to reflect a new discovery deadline of December 16, 2019, and a new dispositive motion deadline of January 13, 2020. (SP) (Entered: 06/27/2019)

08/29/2019 107 NOTICE of Appearance by attorney Hank L Balson on behalf of Plaintiff Nathan Robert Goninan. (Balson, Hank) (Entered: 08/29/2019)

12/02/2019

108 Per Counsel Please Disregard See Dkt. 109 . Stipulated MOTION for Extension of Time to Complete Discovery , filed by Plaintiff Nathan Robert Goninan. Noting Date 12/2/2019, (Davis, Antoinette) Modified on 12/2/2019 (SP). (Entered: 12/02/2019)

12/02/2019

109 Stipulated MOTION to Extend Deadlines, filed by Plaintiff Nathan Robert Goninan. Noting Date 12/2/2019, (Davis, Antoinette) (Entered: 12/02/2019)

12/03/2019

NOTICE of Docket Text Modification re 108 Stipulated MOTION for Extension of Time to Complete Discovery: ***Motion terminated: 108 Stipulated MOTION for Extension of Time to Complete Discovery filed by Nathan Robert Goninan. (SP) (Entered: 12/03/2019)

12/11/2019

110 ORDER granting 109 Stipulated Motion to Extend Deadlines signed by Judge J Richard Creatura. The Clerk shall update the docket to reflect a new discovery deadline of April 14, 2020, and a new dispositive motion deadline of May 19, 2020. (GMR) (Entered: 12/11/2019)

01/14/2020

111 NOTICE of Change of Address/Change of Name of Attorney Antoinette Marie Davis. Filed by Plaintiff Nathan Robert Goninan. (Davis, Antoinette) (Entered: 01/14/2020)

02/06/2020

112 NOTICE of Change of Address/Change of Name of Attorney Hank L Balson. Filed by Plaintiff Nathan Robert Goninan. (Balson, Hank) (Entered: 02/06/2020)

03/12/2020 113 Stipulated MOTION to Stay , filed by Plaintiff Nathan Robert Goninan. Noting Date 3/12/2020, (Balson, Hank) (Entered: 03/12/2020)

03/16/2020

114 ORDER granting Stipulated 113 Motion to Stay signed by Judge J Richard Creatura. This matter shall be stayed until September 9, 2020, unless the Court lifts the stay upon the parties' motion. (GMR) (Entered: 03/16/2020)

03/16/2020

Check status of settlement 9/9/2020. (GMR) (Entered: 03/16/2020)

 
 Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 1 of 9

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10

NATHAN ROBERT GONINAN,

a.k.a. NONNIE M.

11

LOTUSFLOWER,

12

Plaintiff,

13

v.

CASE NO. 3:17-cv-05714-BHS-JRC REPORT AND RECOMMENDATION NOTED FOR: August 31, 2018

14

WASHINGTON DEPARTMENT

OF CORRECTIONS et al.,

15 Defendants.

16 This 42 U.S.C. § 1983 civil rights matter has been referred to Magistrate Judge J. Richard

17 Creatura pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR

18 1, MJR 3, and MJR 4.

19 Plaintiff Nonnie M. Lotusflower (a.k.a. Nathan Robert Goninan) argues that defendants’

20 policy regarding gender confirmation surgery is an unconstitutional blanket ban on its face and is

21 also a de facto blanket ban because defendants’ expert Dr. Stephen Levine, the doctor retained to

22 evaluate plaintiff, allegedly believes gender confirmation surgery is never appropriate for

23 incarcerated transgender individuals. However, Dr. Levine has not yet evaluated plaintiff and

24

REPORT AND RECOMMENDATION - 1

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 2 of 9

1 plaintiff has not yet been denied gender confirmation surgery. Thus, plaintiff asks the Court to

2 grant summary judgment based on a medical opinion that has not yet been rendered. As such,

3 plaintiff has not carried her burden entitling her to summary judgment. Therefore, the Court

4 recommends plaintiff’s motion for summary judgment (Dkt. 48) be denied.

5

BACKGROUND and PROCEDURAL HISTORY

6

Plaintiff initially filed this action pro se in September of 2017. Dkt. 1. Plaintiff is a

7 transgender woman who has been diagnosed with gender dysphoria. Dkt. 8. She argues that,

8 though she was receiving gender affirming therapy when she was incarcerated in Oregon, she

9 has since been transferred to the custody of the Washington Department of Corrections (“DOC”).

10 Id. She argues that the DOC policy governing treatment of gender dysphoria contains a blanket

11 ban on all gender confirmation surgery for transgender prisoners, even if such surgery is deemed

12 medically necessary. Id. She argues she has received recommendations from medical experts

13 stating gender confirmation surgery is medically necessary for her, but she argues that it is

14 inaccessible because of the policy. Id. She further alleges that the DOC maintained this policy

15 even though the DOC knew that individuals diagnosed with gender dysphoria have a greater risk

16 of self-harm and other injury if they are denied gender confirmation surgery when it is medically

17 necessary. Id. She requests that the Court enjoin Defendants from interfering with her medically

18 necessary treatment, enjoin Defendants to provide her with adequate medical care including

19 gender confirmation surgery, require defendants to house plaintiff in female housing after she

20 receives surgery, and declare that the DOC’s policy regarding gender dysphoria is

21 unconstitutional both on its face and as applied. Id. at p. 9.

22

After receiving representation, plaintiff’s counsel filed a motion for partial summary

23 judgment, arguing that defendants’ gender dysphoria policy is unconstitutional on its face

24

REPORT AND RECOMMENDATION - 2

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 3 of 9

1 because it was a blanket ban on gender confirmation surgery, precluding surgery without any

2 consideration for medical necessity. Dkt. 48. Defendants responded, arguing the policy as it

3 stands provides for gender confirmation surgery in cases of medical necessity. Dkt. 52. Plaintiff

4 replied, noting that the policy at the time referenced the DOC’s “Gender Dysphoria Protocol,”

5 which still prohibited “cosmetic or elective surgical procedures for the purpose of reassignment.”

6 Dkt. 55, p. 2; Dkt. 50-1, p. 3.

7

In light of this, the Court ordered the parties to file supplemental briefing, addressing

8 whether the protocol does in fact prohibit all gender confirmation surgery. Dkt. 60. Defendants’

9 supplemental materials stated that, even under that protocol, they would not necessarily have

10 denied plaintiff’s gender confirmation surgery, and that the DOC has since revised the protocol

11 to explicitly allow for gender confirmation surgery in cases of medical necessity. Dkt. 61; Dkt.

12 62-1, p.4. Plaintiffs responded, noting that the DOC did not revise the protocol until five days

13 after the Court ordered supplemental briefing. Dkt. 63. They also argue a de facto ban on gender

14 confirmation surgery is in effect because Dr. Levine, the doctor retained to evaluate plaintiff for

15 surgery, “has [already] concluded that gender reassignment surgery ‘is always an elective

16 procedure.’” Dkt. 63, p. 4 (quoting Norsworthy v. Beard¸87 F. Supp. 3d 1164, 1188 (N.C. Cal.

17 2015)) (in that case, also involving a transgender prisoner seeking gender confirmation surgery,

18 Dr. Levine provided testimony about gender affirming therapy in the prison context).

19

STANDARD OF REVIEW

20

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute

21 over the material facts before the court and the moving party is entitled to judgment as a matter

22 of law. Zweig v. Hearst Corp., 521 F.2d 1129, 1136 (9th Cir. 1975), overruled on other grounds

23 by Hollinger v. Titan Capital Corp., 914 F.2d 1564 (9th Cir. 1990). The moving party is entitled

24

REPORT AND RECOMMENDATION - 3

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 4 of 9

1 to summary judgment if the evidence produced by the parties permits only one conclusion.

2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). To determine if summary judgment

3 is appropriate, the court must consider whether particular facts are material and whether there is

4 a genuine dispute as to the material facts left to be resolved. Fed. R. Civ. P. 56(c). The

5 materiality of a given fact is determined by the required elements of the substantive law under

6 which the claims are brought. Anderson, 477 U.S. at 248. Factual disputes that do not affect the

7 outcome of the suit under the governing law will not be considered. Id. Where there is a

8 complete failure of proof concerning an essential element of the non-moving party’s case on

9 which the nonmoving party has the burden of proof, all other facts are rendered immaterial, and

10 the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

11 317, 323 (1986); Anderson, 477 U.S. at 254 (“the judge must view the evidence presented

12 through the prism of the substantive evidentiary burden”). However, when presented with a

13 motion for summary judgment, the court shall review the pleadings and evidence in the light

14 most favorable to the nonmoving party, Anderson, 477 U.S. at 255 (citation omitted), and “a pro

15 se complaint will be liberally construed . . . .” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.

16 1992) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (other citation omitted).

17

Once the moving party has carried its burden under Fed. R. Civ. P. 56, the party opposing

18 the motion must do more than simply show that there is some metaphysical doubt as to the

19 material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The

20 opposing party cannot rest solely on his pleadings but must produce significant, probative

21 evidence in the form of affidavits, and/or admissible discovery material that would allow a

22 reasonable jury to find in his favor. Id. at n.11; Anderson, 477 U.S. at 249-50. In other words, the

23 purpose of summary judgment “is not to replace conclusory allegations of the complaint or

24

REPORT AND RECOMMENDATION - 4

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 5 of 9

1 answer with conclusory allegations of an affidavit.” Lujan v. National Wildlife Federation, 497

2 U.S. 871, 888 (1990). However, weighing of evidence and drawing legitimate inferences from

3 facts are jury functions, and not the function of the court. See United Steel Workers of America v.

4 Phelps Dodge Corps., 865 F.2d 1539, 1542 (9th Cir. 1989).

5

DISCUSSION

6

The Ninth Circuit has held that a categorical denial of medically necessary care based

7 only on administrative policy constitutes deliberate indifference. Colwell v. Bannister, 763 F.3d

8 1060, 1063 (9th Cir. 2014). A denial of gender confirmation surgery based only on a policy that

9 does not take medical necessity into account, especially if a defendant is aware of a prisoner’s

10 gender dysphoria and medical opinions recommending surgery, also constitutes deliberate

11 indifference. Rosati v. Igbinoso, 791 F.3d 1037, 1039-40 (9th Cir. 2015). Other circuits have

12 similarly held that denial of gender confirmation surgery, even in the presence of other gender

13 affirming therapies such as hormone therapy, can constitute deliberate indifference if the denial

14 is a blanket ban, rather than an individualized medical determination based on medical data. See

15 De’lonta v. Johnson, 708 F.3d 520, 525-26 (4th Cir. 2013); Fields v. Smith, 653 F.3d 550, 554-

16 55 (7th Cir. 2011); but cf. Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014) (finding that the

17 failure to provide gender confirmation surgery, in light of the plethora of other treatments a

18 prisoner was receiving and in light of several contradictory medical opinions regarding the

19 necessity of gender confirmation surgery, did not state a claim).

20

In addition, the question the Court asks when determining whether declaratory judgment

21 is appropriate is “whether the facts alleged, under all the circumstances, show that there is a

22 substantial controversy, between parties having adverse legal interests, of sufficient immediacy

23 and reality to warrant the issuance of a declaratory judgment.” Bayer v. Neiman Marcus Group,

24

REPORT AND RECOMMENDATION - 5

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 6 of 9

1 Inc., 861 F.3d 853, 868 (9th Cir. 2017) (quoting MedImmune, Inc.v. Genentech, Inc., 549 U.S.

2 118, 127 (2007)). Similarly, when determining whether injunctive relief is appropriate, “[a]

3 request for injunctive relief remains live only so long as there is some present harm left to

4 enjoin.” Id. at 864 (quoting Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1502 (D.C. Cir.

5 1995)). If there is no case or controversy – that is if the alleged constitutional violations have

6 ceased –requests for both declaratory and injunctive are moot and should be dismissed. Id. at

7 864, 868.

8

I. Blanket Ban On Its Face

9

The policy that plaintiff challenges placed treatment for gender dysphoria as a level II

10 classification, meaning treatment would be provided if the treatment was deemed medically

11 necessary. Dkt. 54-1, p. 153. However, the policy referenced the “Gender Dysphoria Protocol,”

12 which, when plaintiff filed her motion for summary judgment, indicated that “[c]osmetic or

13 elective surgical procedures for the purpose of reassignment . . . are considered Level III by the

14 Offender Health Plan.” Dkt. 50-1, p. 3. This means surgical procedures for the purpose of

15 reassignment would be deemed never medically necessary. Id. Plaintiff alleges that the policy on

16 its face was a blanket policy precluding any gender confirmation surgery for any transgender

17 inmate under any circumstances and requests declaratory and injunctive relief. Dkt. 48.

18

In response, defendants note that the Gender Dysphoria Protocol has now been amended.

19 Dkt. 61. The amended language in the protocol now provides “[o]ther forms of treatment[:] . . .

20 [g]ender confirmation surgery,” and provides a list of criteria for determining whether a prisoner

21 would be eligible for surgery, including having been on hormone therapy for at least one year

22 and a consultation and evaluation by an “outside expert consultant.” Dkt. 62-1, p. 3. The protocol

23 now also includes additional guidance on the logistics of providing gender confirmation surgery.

24

REPORT AND RECOMMENDATION - 6

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 7 of 9

1 Id. at p. 4. Because the protocol now explicitly includes a path for prisoners to acquire gender

2 confirmation surgery, it cannot be said that it contains an unconstitutional blanket ban on its face.

3 Since there is no longer a blanket ban, thus no longer a case or controversy as to the facial

4 blanket ban, plaintiff cannot acquire the injunctive relief she requests in her motion for summary

5 judgment.

6

Further, defendants’ previous protocol prohibited “cosmetic or elective surgical

7 procedures for the purpose of reassignment.” Dkt. 50-1, p. 3. As defendants note, that does not

8 necessarily prohibit “sex reassignment surgery when it is found to be medically necessary.” Dkt.

9 61, p. 1. With all facts and inferences read in the light most favorable to the non-moving party,

10 the protocol prohibited only “cosmetic or elective” surgical procedures, not surgical procedures

11 deemed to be medically necessary, even before it was amended to provide additional guidance.

12

Because the protocol now explicitly includes a path to acquire gender confirmation

13 surgery, and because, on its face, the original protocol prohibited cosmetic or elective, rather

14 than medically necessary, surgery, plaintiff has not supported her burden as to the facial

15 unconstitionality of the policy. Therefore, the Court recommends plaintiff’s motion for summary

16 judgment be denied as to this allegation.

17

II. Voluntary Cessation of Conduct

18

Plaintiff also argues that, even though defendants have changed the verbiage of the

19 policy, this change is not sufficient to demonstrate that plaintiff’s alleged harms are not likely to

20 recur. Dkts. 55, 63. The voluntary cessation of allegedly illegal conduct will render a motion for

21 an injunction moot if it is “absolutely clear” that the conduct sought to be enjoined could not

22 reasonably be expected to recur. Friends of the Earth, Inc. v. Laidlaw Env. Serv. (TOC), Inc.,

23 528 U.S. 167, 188-89 (2000). Here, defendants have provided a newly updated protocol that

24

REPORT AND RECOMMENDATION - 7

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 8 of 9

1 explicitly addresses gender confirmation surgery and provides an explicit method for acquiring

2 such surgery. Dkt. 62-1. Plaintiff has offered nothing but speculation as to the DOC altering the

3 policy back to its original form or to otherwise amend it to exclude gender confirmation surgery.

4 Because defendants have provided unequivocal proof that the protocol has been updated to

5 explicitly provide for gender confirmation surgery, and because plaintiff offers nothing but

6 speculation that defendants will somehow amend it again, the Court finds plaintiff’s argument

7 unpersuasive. Therefore, the Court recommends plaintiff’s motion for summary judgment be

8 denied on this ground.

9

III. Blanket Ban As Applied

10

Plaintiff finally argues that, even if the Court finds the policy is not a blanket ban on its

11 face and that the likelihood of a future violation does not warrant review, the protocol is a

12 blanket ban as applied. Dkt. 63. She argues that Dr. Levine, the expert that defendants have

13 retained to examine plaintiff and determine if gender confirmation surgery is medically

14 necessary, “has [already] concluded that gender reassignment surgery ‘is always an elective

15 procedure.’” Dkt. 63, p. 4 (citing Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1188 (N.D. Cal.

16 2015)).

17

However, because plaintiff is the moving party, she carries the burden of establishing that

18 there are no disputed material facts and that she is entitled to judgment as a matter of law.

19 Neither party has submitted evidence that plaintiff has completed her evaluation, much less

20 provided evidence that plaintiff has been denied gender confirmation surgery by Dr. Levine

21 because he believes it is never medically necessary. Plaintiff has only provided statements made

22 in one other case to support her position. One set of statements from an unrelated case in 2015 is

23 not enough for this Court to conclude that defendants’ medical expert has a personal bias that

24

REPORT AND RECOMMENDATION - 8

Case 3:17-cv-05714-BHS-JRC Document 71 Filed 08/15/18 Page 9 of 9

1 would effectively ban all transgender prisoners, including plaintiff, from access to medically

2 necessary gender confirmation surgery. Thus, based on the record before the Court, plaintiff has

3 not shown that the DOC’s protocol is a de facto blanket ban.

4

Because plaintiff has not shown that plaintiff is absolutely barred from ever acquiring

5 gender confirmation surgery based on the DOC’s protocol, she has not shown that she is entitled

6 to summary judgment as to the alleged de facto blanket ban. Therefore, the Court recommends

7 her motion for summary judgment be denied as to this allegation.

8

CONCLUSION

9

For the reasons set forth above, the Court recommends that plaintiff’s motion for

10 summary judgment (Dkt. 48) be denied.

11

Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have

12 fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P.

13 6. Failure to file objections will result in a waiver of those objections for purposes of de novo

14 review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver

15 of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Miranda v.

16 Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit

17 imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on August 31,

18 2018 as noted in the caption.

19

Dated this 15th day of August, 2018.

20

21

22

A

23

J. Richard Creatura United States Magistrate Judge

24

REPORT AND RECOMMENDATION - 9

 
 Case 3:17-cv-05714-BHS-JRC Document 82 Filed 09/26/18 Page 1 of 7

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10

NATHAN ROBERT GONINAN,

11

Plaintiff,

12

v.

13

WASHINGTON DEPARTMENT OF

CORRECTIONS, et al.,

14 Defendants.

15

CASE NO. 3:17-cv-05714-BHS-JRC
ORDER DENYING PROTECTIVE ORDER AND DENYING SANCTIONS

16

This 42 U.S.C. § 1983 civil rights matter has been referred to Magistrate Judge J. Richard

17 Creatura pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR

18 1, MJR 3, and MJR 4. Before the Court is defendants’ motion for a protective order and motion

19 for sanctions. Dkt. 67.

20

Plaintiff requests that the Court enter a protective order prohibiting defendants from

21 interacting with plaintiff regarding litigation matters, and requests sanctions against defendants

22 for allegedly allowing a psychologist to ask plaintiff inappropriate litigation questions. However,

23 defendants have represented that the assessment is now complete, and will not be revisited for

24

ORDER DENYING PROTECTIVE ORDER AND DENYING SANCTIONS - 1

Case 3:17-cv-05714-BHS-JRC Document 82 Filed 09/26/18 Page 2 of 7

1 two years, so there is no specific harm that needs to be addressed at this time. Since defendants

2 have represented that they were unaware of the offending questions until after the events in

3 question, plaintiff’s motion for sanctions is denied.

4

However, the questions asked of plaintiff were clearly related to this litigation and were

5 inappropriate. In the future, defendants will be held accountable for the actions of their agents

6 and employees as they relate to how they conduct themselves in this litigation. Sanctions may be

7 appropriate in the future if defendants do not take appropriate measures to ensure that such

8 conduct does not occur in the future either by them – or by their agents and employees.

9

BACKGROUND

10

Plaintiff is a transgender prisoner who was awaiting a readiness assessment to determine

11 whether she was a candidate for gender confirmation surgery in June of this year. See Dk. 67, p.

12 2. On June 18, 2018, non-party Dr. Stephen Levine -- a psychologist contracted by the

13 Department of Corrections (“DOC”) to evaluate plaintiff -- interviewed plaintiff as part of the

14 readiness assessment. Dkt. 75, p. 2. After returning to his office in Ohio, Dr. Levine sent several

15 additional questions to non-party Dr. Timothy Richel, a psychologist employed by defendant

16 DOC at the Airway Heights Corrections Center (“AHCC”) where plaintiff was housed. Id.; Dkt.

17 68-6, p. 3. The questions that plaintiff alleges were improper are as follows:

18

a. Do you realize that the ACLU has a motive beyond getting you surgery? If so,

what is it? Why do you think you, in particular, were selected and not many

19

others?

b. Do you realize what this lawsuit means for you in terms of more evaluations,

20

deposition by lawyers asking personal questions, trial, appeal of whatever

verdict is reached, risk that a verdict will take a long time to be given and that

21

surgery if granted may not occur for another several years.

c. This process builds up your hope for surgery and asks you to be convincingly

22

distressed—suffering from your genitals[—]asks you to exaggerate your

distress, and yet it may fail to win in the court. What do you think this would

23

do to your emotional life?

24

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Case 3:17-cv-05714-BHS-JRC Document 82 Filed 09/26/18 Page 3 of 7

1 Dkt. 68-9, p. 3.

2

The record reflects that Dr. Richel asked plaintiff these questions on or about June 27,

3 2018, and provided a report back to Dr. Levine. Dkt. 68-9, p. 3. Dr. Levine included plaintiff’s

4 answers to these questions when preparing his report on plaintiff’s readiness for gender

5 confirmation surgery. Dkt. 68-6, p. 3. The record also reflects that plaintiff’s counsel were

6 unaware that plaintiff was asked the follow-up questions at the time, Dkt. 68-7, and that neither

7 defendants, nor their counsel realized that Dr. Levine had emailed Dr. Richel, Dkt. 74.

8 Defendants also state that they were unaware that Dr. Richel had asked plaintiff additional

9 questions until after they were contacted by plaintiff’s counsel. Dkt. 74. Plaintiff has also filed a

10 declaration from Dr. Randi C. Ettner, an expert retained by plaintiff, indicating the follow-up

11 questions were not appropriate to determine whether an individual is a candidate for gender

12 confirmation surgery. Dkt. 69, p. 2.

13

After meeting and conferring with defendants, plaintiff, through counsel, filed a motion

14 for a protective order and sanctions. Dkt. 67. Plaintiff argues that defendants engaged in bad faith

15 litigation tactics when they asked plaintiff litigation related questions, despite being asked

16 multiple times not to interact with plaintiff regarding this litigation and without notifying

17 plaintiff’s counsel. Dkt. 67, pp. 6-7. Plaintiff specifically requests that the Court prohibit

18 defendants from: “(1) contacting her regarding any litigation related matter without first

19 providing her attorneys with notice; (2) engaging in conduct intended to harass and/or intimidate

20 [plaintiff]; and (3) engaging in conduct intended to disrupt the relationship between [plaintiff]

21 and her attorneys of record in this case.” Id., p. 7. Plaintiff also requests that the Court sanction

22 defendants for contacting plaintiff regarding ongoing litigation because it constituted bad faith

23 litigation tactics. Id., pp. 8-9. Plaintiff argues that the follow-up questions noted above constitute

24

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1 an attempt by defendants to instill fear in plaintiff, to dissuade her from continuing the litigation,

2 and to tamper with the relationship between plaintiff and her counsel. Id., pp. 8-11.

3

Defendants responded, arguing that a protective order is unnecessary because defendants

4 do not require any additional information to complete plaintiff’s readiness assessment, and

5 further that the questions were not asked for an improper purpose. Dkt. 73. They also argue that

6 the mere act of asking follow-up questions to ensure a comprehensive examination does not

7 amount to bad faith litigation warranting sanctions. Id. They finally note that they were not

8 aware of the second interview until after the fact. Id. Plaintiff filed a reply. Dkt. 76.

9

DISCUSSION

10

I. Protective Order

11

The Court may issue a protective order to “protect a party or person from annoyance,

12 embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). Though more

13 commonly used during discovery to insulate sensitive discovery materials, a protective order

14 may also be used to protect a party or potential party from intimidation or retaliation. See, e.g.,

15 Ben David v. Travisono, 495 F.2d 562, 564-65 (1st Cir. 1974) (analyzing and upholding a

16 protective order against prison guards who were beating prisoner plaintiffs in retaliation for

17 filing a class action lawsuit); Wood v. Martin, No. 3:04-cv-00099-BLW, 2013 WL 1412324 at *2

18 (D. Idaho April 8, 2013) (finding a prisoner had not shown good cause why a protective order to

19 protect certain inmates from intimidation and retaliation from prison staff). The moving party

20 must demonstrate “good cause” to warrant a protective order. Fed. R. Civ. P. 26(c). A protective

21 order under Rule 26 is appropriate if the moving party can demonstrate a specific harm that

22 would result if the protective order is not issued, as well as good cause. See Beckman Industries,

23

24

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1 Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (noting allegations of harm must

2 be specific or substantiated by articulate reasoning).

3

Plaintiff requests that the Court enter a protective order against defendants. As an initial

4 matter, the Court finds that the questions asked of plaintiff were inappropriate. The Court fails to

5 understand how the ACLU’s motivation in representing plaintiff is at all relevant to whether

6 plaintiff is a candidate for gender confirmation surgery. Furthermore, the insinuation that

7 plaintiff has to appear “convincingly distressed” and “to exaggerate [her] distress” does not

8 appear to be at all related to gender confirmation surgery, but rather suggest that plaintiff should

9 not be pursuing this litigation because it will adversely impact her health. Coming from a person

10 hired by one of the defendants, this type of questioning is entirely unnecessary and inappropriate.

11 Plaintiff should not be asked to choose between pursuing her health and pursuing her rights

12 through litigation. These questions should not have been asked. Period.

13

Defendants argue that Dr. Levine and Dr. Richel are not defendants in this action and,

14 therefore, a protective order against defendants would be ineffective because it would not

15 restrain the individuals who actually engaged in the offensive conduct. The Court is advised that

16 Dr. Levine was hired by defendant DOC and that defendant DOC employs Dr. Richel.

17 Defendants should take all reasonable steps to advise those they employ and those with whom

18 they contract not to conduct themselves in a manner that interferes with any party’s access to

19 justice. The Court reserves the right to utilize its inherent powers against any party who fails to

20 do so, if conducted in bad faith. See infra.

21

Defendants also argue that a protective order is unnecessary because the readiness

22 assessment has been completed, and no additional information relating to this litigation will be

23 sought from plaintiff. Dkt. 73, pp. 5-6. They have provided evidence indicating that Dr. Levine

24

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1 has concluded that gender confirmation surgery is not medically necessary at this time because

2 of plaintiff’s mental stability, and that the next assessment will not be for two more years. Dkt.

3 74, p. 3. Dr. Levine confirms that he does not require any additional information from plaintiff at

4 this time. Dkt. 75, p. 3. Thus, at this point in the litigation, defendants have no need to discuss

5 this litigation with plaintiff. As such, plaintiff has not shown good cause for a protective order

6 restraining defendants from discussing this litigation with her.

7

However, the Court reserves the option of reevaluating the appropriateness of a

8 protective order should further interviews become necessary.

9

II. Sanctions

10

The Court has inherent power to sanction parties or their attorneys for improper conduct.

11 Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S.

12 752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). The Court’s “inherent power

13 ‘extends to a full range of litigation abuses.’” Find, 239 F.3d at 992 (quoting Chambers, 501

14 U.S. at 46-47). However, to sanction a party under the Court’s inherent powers, the Court must

15 make a specific finding of “bad faith or conduct tantamount to bad faith.” Fink, 239 F.3d at 994.

16 Mere recklessness is insufficient to impose sanctions – rather, “an additional factor such as

17 frivolousness, harassment, or an improper purpose” is also required. Id. at 993-94. Sanctions may

18 be imposed on a party who acted with an improper purpose even if the acts was “a truthful

19 statement or non-frivolous argument or objection.” Id. at 992.

20

Again, as noted above, the Court finds the questions asked of plaintiff to be wholly

21 inappropriate. However, the alleged misconduct occurred purportedly unbeknownst to

22 defendants. Dkts. 68-6, 68-9. Because neither defendants nor their counsel purportedly had

23 knowledge of Dr. Levine’s questions or Dr. Richel’s interview with plaintiff, the Court finds that

24

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1 plaintiff has not demonstrated bad faith or improper purpose on defendants’ part and so sanctions

2 are inappropriate at this time.

3

The Court recognizes that supervisory liability is not appropriate in a § 1983 claim. But

4 the same cannot be said of parties being held accountable for an agent’s actions in litigation

5 practice. See F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128,

6 1144 (finding corporation could be held liable for sanctions based on the conduct of an employee

7 when employee acted as an “agent of his corporation”). Though the Court has found defendants

8 had no knowledge of these inappropriate litigation related questions, the Court also finds this

9 lack of knowledge unacceptable and bordering on reckless. Defendants cannot avoid all

10 responsibility for their agents’ actions simply by stating they did not know what their employees

11 and contractors were doing. Defendants are therefore advised to take steps necessary to better

12 control their agents and employees in the future, or the Court will reconsider whether sanctions

13 are appropriate.

14

CONCLUSION

15

For the reasons stated above, plaintiff’s motion for a protective order and sanctions (Dkt.

16 67) is denied without prejudice.

17

Dated this 26th day of September, 2018.

18

19

20

A

21

J. Richard Creatura United States Magistrate Judge

22

23

24

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1

UNTIED STATES DISTRICT JUDGE BENJAMIN H. SETTLE

MAGISTRATE JUDGE J. RICHARD CREATURA

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 NATHAN ROBERT GONINAN aka NONNIE

11

LOTUSFLOWER,

No. 3:17-cv-05714-BHS-JRC

12

Plaintiff,

13

v.

14

STEPHEN SINCLAIR, in his official capacity, SARA SMITH KARIKO, M.D., in her official

15

capacity, BRUCE GAGE, M.D., in his official capacity, and KARIE RAINER, in her official

16

capacity,

AMENDED COMPLAINT

17

Defendant.

18

INTRODUCTION

19

1.1. Plaintiff Nathan Robert Goninan aka Nonnie Lotusflower (“Plaintiff” and/or

20 “Lotusflower”) is currently incarcerated by the Washington Department of Corrections (“DOC”)

21 in Monroe Correctional Complex (“MCC”) in Monroe, WA after a recent move from

22 Washington State Penitentiary (“WSP”) in Walla Walla, WA.

23

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1

1.2. Ms. Lotusflower has been in DOC custody since August 2017.

2

1.3. Ms. Lotusflower is a transgender woman—an individual whose gender identity

3 (female) is different from the male gender assigned to her at birth (“assigned gender”).1

4

1.4. Ms. Lotusflower is Native American and recognizes that some individuals are

5 Two-Spirit, a Native American concept encompassing cross-gender identifying and gender

6 nonconforming individuals.

7

1.5. Ms. Lotusflower is diagnosed by DOC as suffering from gender dysphoria

8 (previously known as Gender Identity Disorder), a serious medical condition characterized by

9 strong cross-gender identification, and clinically significant distress stemming from the

10 disconnect between one’s assigned gender and one’s gender identity.

11

1.6. As a result of gender dysphoria, Ms. Lotusflower experiences severe distress

12 resulting from the incongruence between her typically-male physical features and her female

13 gender identity. She requires medically necessary care to treat gender dysphoria.

14

1.7. The most common forms of treatment for gender dysphoria are counseling, social

15 transition that includes living fully consistent with one’s gender in all aspects of life, hormone

16 therapy, and gender affirming surgeries that conform primary or secondary sex characteristics

17 with gender identity.

18

1.8. Counseling for individuals with gender dysphoria is aimed at supporting patients

19 in managing the distress flowing from discrimination and bias that transgender people typically

20 experience from other people or institutions.

21
22 1 At birth, infants are classified as male or female based on a visual observation of their external genitalia. This classification becomes the person’s “sex assigned at birth,” but may not be the
23 same as the person’s sex/gender identity.

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1

1.9. Counseling for individuals with gender dysphoria is not a substitute for other

2 interventions.

3

1.10. Prior to her incarceration at DOC, Ms. Lotusflower was diagnosed with gender

4 dysphoria and lived consistently with her identity as a woman while incarcerated at and in the

5 custody of Oregon Department of Corrections (“ODOC”) until August 2017.

6

1.11. After her transfer from ODOC to DOC, Ms. Lotusflower’s gender dysphoria

7 diagnosis was confirmed by DOC.

8

1.12. Once in the custody of DOC, Ms. Lotusflower sought appropriate medical

9 treatment, including access to feminizing hormones, evaluation for gender affirming surgery,2

10 and the ability to live as a woman while incarcerated. However, Defendants deprived her of

11 medically necessary treatment, and instead have repeatedly punished her for expressing her

12 gender identity, including but not limited to denying her access to programming and subjecting

13 her to extensive periods in solitary confinement.

14

1.13. Defendants’ denial of necessary medical treatment, as well as discipline and

15 punishment of Ms. Lotusflower for expressing her female gender, have caused grave and

16 unnecessary suffering and harm to Ms. Lotusflower, including attempted self-castrations and

17 suicide attempts.

18

1.14. Defendants’ actions violate the Eighth Amendment to the U.S. Constitution’s

19 prohibition on cruel and unusual punishment by denying Ms. Lotusflower’s necessary medical

20 treatment and failing to protect her from harm.

21

22
2 Gender affirming surgery is also sometimes referred to as “sex reassignment surgery” or “gender confirming
23 surgery.”

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1

1.15. Ms. Lotusflower seeks injunctive and declaratory relief to remediate Defendants’

2 violations of her rights.

3

JURISDICTION AND VENUE

4

2.1. Plaintiff brings this suit pursuant to 42 U.S.C. § 1983, the Eighth and Fourteenth

5 Amendments to the United States Constitution.

6

2.2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

7 1343.

8

2.3. Plaintiff seeks declaratory and injunctive relief for Defendants’ violation of

9 Plaintiff’s civil rights under 28 U.S.C. §§ 1343 and 42 U.S.C. §§ 1983.

10

2.4. Venue is properly in this Court pursuant to 28 U.S.C. § 1391(b) because the

11 events giving rise to the claim occurred in this District.

12

2.5. Defendants waived any requirement that Plaintiff exhaust administrative

13 remedies. See Docket #34.

14

PARTIES

15

3.1. Plaintiff Nonnie Lotusflower is Native American. She is currently housed at MCC

16 and has been in the custody and control of DOC since August 2017.

17

3.2. Defendant Stephen Sinclair is Secretary of DOC, a State agency responsible for

18 incarceration of adult inmates sentenced by the courts. Mr. Sinclair is responsible for operation

19 of DOC adult correctional facilities in Washington, including MCC where Plaintiff Lotusflower

20 is housed. In his role as Secretary of DOC, Mr. Sinclair has a duty to ensure DOC provides

21 constitutionally adequate medical care to prisoners in its custody. He has authority to direct the

22 activities of subordinate officers and other DOC employees, and is expressly empowered by the

23 Washington State Legislature to “make rules necessary to carry out the intent of [health care

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1 services]” in DOC. RCW 72.10.040. At all times relevant to this action, Mr. Sinclair was acting

2 under color of state law. Mr. Sinclair is sued in his official capacity.

3

3.3. Defendant Sara Smith Kariko, M.D. is Chief Medical Officer (“CMO”) for

4 DOC.3 The DOC CMO is “a licensed doctor of medicine who acts as the statewide clinical

5 health services authority.” Offender Health Plan at p 5. In that role, Dr. Kariko has a duty to

6 ensure DOC provides constitutionally adequate medical care to prisoners in its custody. She has

7 authority to approve or deny medical treatment for DOC prisoners. At all times relevant to this

8 action, Dr. Kariko was acting under color of state law. Dr. Kariko is sued in her official capacity.

9

3.4. Defendant Bruce Gage, M.D. is Chief of Psychiatry for DOC. In that role, he has

10 a duty to ensure DOC provides constitutionally adequate medical care to prisoners in its custody.

11 He has authority to approve or deny medical treatment for DOC prisoners. At all times relevant

12 to this action, Dr. Gage was acting under color of state law. Dr. Gage is sued in his official

13 capacity.

14

3.5. Defendant Karie Rainer is Director of Mental Health for DOC. In that role, she

15 has a duty to ensure DOC provides constitutionally adequate medical care to prisoners in its

16 custody. She has authority to approve or deny medical treatment for DOC prisoners. At all times

17 relevant to this action, Dr. Rainer was acting under color of state law. Dr. Rainer is sued in her

18 official capacity.

19

3.6. At all times relevant herein, each Defendant was acting in the course and scope of

20 his or her employment and under color of state law.

21

22
3 Plaintiff originally named as a Defendant G. Hammond, who was the then Chief Medical Officer, but has since
23 been replaced by Dr. Kariko.

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1

FACTUAL ALLEGATIONS

2

GENDER DYSPHORIA IS A RECOGNIZED SERIOUS MEDICAL CONDITION

3

4.1. Gender Dysphoria is a diagnosable and treatable condition included in the

4 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”), as well as the 5 International Classification of Diseases-10 (“IDC-10”).4

6

4.2. “Gender dysphoria” is a diagnostic term that refers to clinically significant

7 distress associated with an incongruence or mismatch between a person’s gender identity and

8 assigned sex.

9

4.3. When gender dysphoria is severe and untreated, it can result in a person’s

10 inability to function in everyday life. Gender dysphoria is highly treatable. Indeed, with

11 appropriate treatment, individuals with gender dysphoria experience significant relief from

12

13
4 The DSM-5 describes the criteria as follows: Gender Dysphoria in Adolescents and Adults 302.85 (F64.1)

14

A. A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least

6 months’ duration, as manifested by at least two of the following:

15

1. A marked incongruence between one’s experienced/expressed gender and primary and/or

secondary sex characteristics (or in young adolescents, the anticipated secondary sex

16

characteristics).

2. A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a

17

marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire

to prevent the development of the anticipated secondary sex characteristics).

18

3. A strong desire for the primary and/or secondary sex characteristics of the other gender.

19

4. A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).

20

5. A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).

21

6. A strong conviction that one has the typical feelings and reactions of the other gender (or

some alternative gender different from one’s assigned gender).

22

B. The condition is associated with clinically significant distress or impairment in social, occupational,

or other important areas of functioning.

23 DSM-5 at 452-53.

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1 distress.

2

4.4. When not properly treated, however, gender dysphoria is often associated with

3 dangerous related conditions such as clinically significant psychological distress, dysfunction,

4 depression, substance use, self-harm, including attempts to perform auto-castration or auto-

5 penectomy that can lead to serious and life-threatening injuries, suicidality, and death.

6

4.5. Without treatment, the path for those suffering from gender dysphoria can be

7 torturous, as evidenced by alarmingly high suicide attempt rates: 40 percent of persons

8 identifying as transgender attempt suicide, nearly 9 times the national average of 4.6 percent, 9 according to the 2015 National Transgender Discrimination Survey.5

10

4.6. The data for suicide attempts by incarcerated transgender people increases when

11 they are harassed and mistreated. Citing to the Journal of Correctional Health Care, JCHC Vol.

12 24, Issue 2: April 2018, The National Commission on Correctional Healthcare (“NCCHC”) also

13 cautions there is a “42% increase in the odds of reporting attempted suicide when [prisoners with

14 gender dysphoria are] victimized by an inmate and a 48% increase when [. . . ] victimized by 15 correctional staff.”6

16

4.7. Plaintiff’s history reflects such effects resulting from inadequate treatment: she

17 has repeatedly experienced suicidal ideation and has engaged in dangerous attempts to self-harm

18 and self-castrate as a response to her despair over Defendants’ denial of necessary treatment for

19 her gender dysphoria.

20

STANDARDS OF CARE FOR INCARCERATED PEOPLE WITH GENDER

DYSPHORIA

21

22 5 Available at https://www.transequality.org/sites/default/files/docs/USTS-Full-Report-FINAL.PDF 23 6 NCCHC Vol 32, Issue 32: Spring 2018 at p. 23.

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1

4.8. The World Professional Association for Transgender Health (“WPATH”) is the

2 leading international organization focused on transgender health care.

3

4.9. WPATH has more than 1,000 members throughout the world consisting of

4 physicians, psychiatrists, psychologists, social workers, surgeons, and other health professionals

5 who specialize in the diagnosis and treatment of gender dysphoria.

6

4.10. WPATH publishes the Standards of Care for the Health of Transsexual,

7 Transgender, and Gender Nonconforming People (“Standards of Care”).

8

4.11. The WPATH Standards of Care were first developed in 1979.

9

4.12. The current version of the Standards of Care, Version 77 was published in

10 September 2011 following a five-year process in which eighteen gender dysphoria specialists

11 submitted peer-reviewed papers to help identify the most effective treatments for gender

12 dysphoria.

13

4.13. WPATH’s Standards of Care are recognized by the leading medical and mental-

14 health professional groups as the authoritative and the prevailing standards of care for treating

15 gender dysphoria.

16

4.14. The Standards of Care apply equally to prisoners, and expressly state:

17

Health care for transsexual, transgender, and gender-

nonconforming people living in an institutional environment

18

should mirror that which would be available to them if they

were living in a non-institutional setting within the same

19

community. . . . All elements of assessment and treatment as

described in the SOC can be provided to people living in

20

institutions. Access to these medically necessary treatments

should not be denied on the basis of institutionalization or

21

housing arrangements. If the in-house expertise of health

22
7 Eli Coleman et al., Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming
23 People, Version 7, 13 Int’l J. of Transgenderism 165 (2011),

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1

professionals in the direct or indirect employ of the institution

does not exist to assess and/or treat people with gender

2

dysphoria, it is appropriate to obtain outside consultation from

professionals who are knowledgeable about this specialized

3

area of health care.8

4

4.15. NCCHC recommends that the medical management of prisoners with gender

5 dysphoria “should follow accepted standards developed by professionals with expertise in

6 transgender health,” citing the WPATH Standards of Care.9

7

4.16. Under WPATH Standards of Care, treatment for gender dysphoria is designed to

8 help individuals live congruently with their gender identity and thus alleviate the clinically

9 significant distress.

10

4.17. Treatment protocols include socially transitioning (dressing, grooming, and

11 presenting oneself to others in accordance with one’s gender identity), hormone therapy, and

12 surgeries.

13

4.18. The particular course of medical treatment varies based on the individualized

14 needs of the person.

15

PEOPLE WITH GENDER DYSPHORIA MUST BE ABLE TO ACCESS

TREATMENT DETERMINED TO BE MEDICALLY NECESSARY, INCLUDING

16

GENDER AFFIRMING SURGERY

17

4.19. The goals of medical treatments for gender dysphoria, as stated in the Standards

18 of Care, are (1) to alleviate clinically significant distress and impairment of functioning

19 associated with gender dysphoria, and (2) to maximize overall psychological well-being.

20

21
8 Id. at 67.
22 9 NCCHC Policy Statement, Transgender Health Care in Correctional Settings (October 18, 2009; reaffirmed with
revision April 2015), http://www.ncchc.org/transgender-health-care-in-correctional-settings (last visited March 22,
23 2019) (footnote omitted).

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1

4.20. As recognized by both the DSM-V and the Standards of Care, people with gender

2 dysphoria who do not receive appropriate medical treatment are at risk of depression, anxiety,

3 suicide, and genital self-harm, including attempts to perform auto-castration or auto-penectomy

4 that can lead to serious and life-threatening injuries.

5

4.21. The Standards of Care set forth treatment options for gender dysphoria including:

6 changes in gender expression and role (which may involve living part time or full time in another

7 gender role, consistent with one’s gender identity); hormone therapy to feminize or masculinize

8 the body; surgery to change primary and/or secondary sex characteristics (e.g. breasts/chest,

9 external and/or internal genitalia, facial features, body contouring); and psychotherapy

10 addressing the negative impact of gender dysphoria and stigma on mental health, alleviating

11 internalized transphobia, enhancing social and peer support, improving body image, or

12 promoting resilience.

13

4.22. After a diagnosis of gender dysphoria is made, the Standards of Care require that

14 a competent medical professional with knowledge and expertise in gender dysphoria evaluate a

15 patient for appropriate and necessary treatment options. This medical treatment not only

16 improves a patient’s quality of life, but also limits the development of mental health issues,

17 which often accompany lack of treatment.

18

4.23. The Standards of Care also make clear that surgical care to treat gender dysphoria

19 is not “elective.” WPATH Standards of Care at p. 55.

20

4.24. For many people, gender affirming surgery is an “essential and medically

21 necessary” treatment to alleviate gender dysphoria. WPATH Standards of Care at p. 54.

22 Hormone therapy alone is not sufficient for such individuals.

23

4.25. All of the WPATH Standards of Care apply to individuals in institutional

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1 environments such as prisons.

2

4.26. The Standards of Care state that “[a]ll elements of assessment and treatment as

3 described in the SOC can be provided to people living in institutions…If the in-house expertise

4 of health professionals in the direct or indirect employ of the institution does not exist to assess

5 and/or treat people with gender dysphoria, it is appropriate to obtain outside consultation from

6 professionals who are knowledgeable about this specialized area of health care.” WPATH

7 Standards of Care at p. 67.

8

4.27. Leading medical and mental-health professional groups—including the American

9 Medical Association, the American Psychological Association, the American Psychiatric

10 Association, the American Academy of Family Physicians, the American Congress of

11 Obstetricians and Gynecologists, the Endocrine Society, the National Association of Social

12 Workers, and WPATH—all agree that gender dysphoria is a serious medical condition, and that

13 treatment for gender dysphoria is medically necessary for many transgender people.

14

DOC’S GENDER DYSPHORIA POLICY

15

4.28. The DOC provides health services to prisoners according to the Offender Health

16 Plan (“OHP”), which defines the services the Department considers “medically necessary.”

17

4.29. The OHP recognizes gender dysphoria as a diagnosis qualifying a prisoner for

18 treatment and then incorporates by reference the DOC’s Gender Dysphoria Protocol for the

19 purposes of that treatment.

20

4.30. The Gender Dysphoria Protocol (the “Policy”) provides that “the correctional

21 environment is a relative contraindication to the indication of sexual reassignment treatment, as

22 are self-inflicted genital or other forms of self-mutilation,” but certain limited treatments may be

23 available under certain circumstances.

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4.31. Authorization of medically necessary treatment for gender dysphoria is typically

2 determined on a case-by-case basis by the Gender Dysphoria Care Review Committee10 (“GD

3 CRC”), which reviews case summaries and votes on whether or not to authorize proposed care.

4

4.32. The GD CRC case must be presented by, at a minimum, the treating psychiatrist,

5 primary therapist,11 and medical provider.

6

4.33. Those charged with treatment—specifically, the “treating correctional provider

7 and/or clinical consultants,” and “consulting community endocrinologist, psychiatrist or other

8 specialist (as necessary)” as it relates to the gender dysphoria specific-care of their patient—have

9 no vote in this decision-making process.

10

4.34. Only the Defendants DOC Chief Medical Officer, Chief of Psychiatry and Mental

11 Health Director are voting members of the GD CRC. “Decisions of the GD CRC are made by

12 majority vote” of these three (3) functions.

13

4.35. However, the GD CRC was barred from authorizing gender affirming surgery

14 under any circumstances until June 19, 2018—287 days after this matter was filed with the

15 Court, and as a result, the GD CRC denied Ms. Lotusflower’s request for medically necessary

16 gender affirming surgery.

17

PRE-LAWSUIT BLANKET BAN OF MEDICALLY NECESSARY GENDER

AFFIRMING TREATMENT

18 4.36. The OHP includes a Level III classification for medical treatment that it deems

19

20

21 10 DOC’s defines the CRC as a “[g]roup of DOC primary care physicians, dentists, Pas, and ARNPs, organized in
discipline- or condition-specific committees, appointed by the Chief Medical Officer (CMO) to review the medical
22 necessity of proposed health care.” OHP, effective March 18, 2018 at p. 5.
11 “Mental health staff provider responsible for coordinating an offender’s mental health care.” OHP, effective
23 March 18, 2018 at p. 5.

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1 “not medically necessary.”

2

4.37. Those services categorized as Level III “cannot be authorized by an individual

3 provider or CRC” “even if medically appropriate.”

4

4.38. Regarding gender dysphoria, the Policy states:

5

Offenders with [gender dysphoria] and [transgender] identification are NOT

eligible for:

6

Cosmetic or elective surgical procedures for the purpose of reassignment.

Such interventions are considered Level III by the Offender Health Plan

7

(OHP)

8

4.39. Even though surgical treatment for gender dysphoria is neither cosmetic nor

9 elective, the DOC applied this ban to all surgical treatment regardless of medical need.

10

4.40. DOC Chief of Psychiatry Dr. Gage admitted in September 2017 that since 2009

11 “sex reassignment surgery” has been a Level III service that “is not provided under the OHP.”

12

4.41. In a September 2017 email, Dr. Gage explained the history of DOC’s blanket ban:

13

In 2009, there was no separate mental health section in the OHP. At

that time, ‘gender modification’ was listed as a level I service for

14

continuation of hormone therapy but with some conditions. It was

listed as a level II service when the person was not receiving

15

hormone therapy at the time of admission to DOC. It was also listed

as a level 3 service with regard to surgery or other treatments not

16

specified in the level I and II sections.

17

GID/GD has been in the mental health section of the Offender

Health Plan since its inception in 2011. Initially, it was broken into

18

level I for continuation of community treatment but subject to the

GID CRC/guideline and as level II for ‘gender modification’ subject

19

to the GID guideline. The language of the preceding paragraph was

retained in the medical section of the OHP until 2012 when we made

20

GID treatment generally a level II condition subject to the GID

protocol (where the GID-CRC and criteria were specified). The

21

reason we made it level II was that treatment of GID (now GD) was

always subject to the GID guideline/CRC and was thus more

22

properly considered level II – treatment that would not always be

provided. ‘Gender modification’ was retained in the medical section

23

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1

under level III for surgical treatment and other treatment not covered

by the GID guideline/CRC.

2 In July 2017, the Gender Dysphoria protocol was modified to

3

include transgendered persons and to remove language regarding

medical necessity in favor of continuation of a sexual reassignment

4

regimen or treatment being ‘clinically indicated,’ and also subject to

the person’s willingness to disclose healthcare information and the

5

absence of contraindications to treatment.

6

With regard to surgery, the current language in the Gender

Dysphoria protocol is clear:

7 “Offenders with GD and TG identification are NOT eligible for:

8 • Cosmetic or elective surgical procedures for the purpose of reassignment. Such

9

interventions are considered Level III by the Offender Health Plan (OHP)”

10

As you probably know, level III means the service is not provided under the OHP.

In short, surgery for gender reassignment is level III. This has been the meaning

11

of the language you asked about since 2009.

12

4.42. DOC’s blanket ban deeming gender affirmation surgery as “not medically

13 necessary” under any circumstances was directly at odds with well-established medical

14 principles and the individualized evaluations provided by DOC staff which have repeatedly

15 found gender affirming surgery medically necessary for Plaintiff Lotusflower12.

16

DEFENDANTS DELIBERATELY WITHHELD FROM PLAINTIFF MEDICALLY

NECESSARY TREATMENT

17

4.43. Plaintiff Lotusflower is currently incarcerated by DOC in MCC in Monroe, WA,

18 following a transfer from WSP in Walla Walla, WA.

19

4.44. Ms. Lotusflower has been incarcerated and in DOC custody since August 2017.

20

21

22 12 In July 2018, in response to Plaintiff’s Motion for Partial Summary Judgment, which challenged DOC’s “blanket
ban” as a violation of the Eighth Amendment, DOC modified the OHP to categorize treatment for Gender Dysphoria
23 under “Level II” services.

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1

4.45. Ms. Lotusflower is a transgender woman—an individual whose gender identity

2 (female) is different from the male gender assigned to her at birth. She identified as female very

3 young in her life.

4

4.46. Ms. Lotusflower is Native American and her Tribe recognizes that some individuals

5 are Two-Spirit, a Native American concept encompassing cross-gender identifying and gender

6 nonconforming individuals.

7

4.47. Immediately prior to incarceration at DOC, Ms. Lotusflower was in the custody of

8 ODOC.

9

4.48. On or about October 31, 2016, ODOC Dr. Mary McCarthy, M.D. diagnosed Ms.

10 Lotusflower with gender dysphoria.

11

4.49. Ms. Lotusflower’s gender dysphoria causes her to experience severe distress

12 resulting from the incongruence between her typically-male physical features and her female

13 gender identity, and requires medically necessary care and treatment.

14

4.50. The most common forms of treatment for gender dysphoria are counseling, social

15 transition that includes living fully consistent with one’s gender in all aspects of life, hormone

16 therapy, and gender affirming surgeries that conform primary or secondary sex characteristics

17 with gender identity.

18

4.51. Counseling for individuals with gender dysphoria is aimed at supporting patients

19 in managing the distress flowing from discrimination and bias that transgender people typically

20 experience from other people or institutions

21

4.52. While still in ODOC custody and less than two (2) months from her initial gender

22 dysphoria diagnosis, on or about December 8, 2016, it was deemed medically necessary to

23

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1 provide Ms. Lotusflower with gender affirming medical care and treatment to address her gender

2 dysphoria.

3

4.53. On February 14, 2017, ODOC deemed it medically necessary for Ms. Lotusflower

4 to be placed on Hormone Replacement Therapy (“HRT”) to manage her symptoms of gender

5 dysphoria and she lived full-time as a woman while incarcerated until August 2017, when she

6 was transferred to DOC.

7

4.54. After her transfer from ODOC to DOC, Ms. Lotusflower’s gender dysphoria

8 diagnosis was confirmed by DOC.

9

4.55. Ms. Lotusflower sought appropriate medical treatment from DOC, including

10 continued access to hormone therapy, evaluation for gender affirming surgery, and the ability to

11 live as a woman while incarcerated.

12

4.56. Defendants have refused to allow Plaintiff to access such medically necessary

13 treatment, and instead have repeatedly punished, taunted and harassed Plaintiff for expressing

14 her female gender, including but not limited to Ms. Lotusflower repeatedly being called names

15 like “tranny” by DOC staff, and being placed in solitary confinement for excessive and

16 inhumane periods, often causing significant deterioration of her mental health.

17

4.57. Defendants and DOC have a blanket policy banning the use of makeup, which is

18 medically necessary for gender nonconforming prisoners in male prisons, and have otherwise

19 denied medically necessary treatments including allowing women’s undergarments and clothing

20 and other feminizing methods.

21

4.58. Defendants have further denied Plaintiff the benefits of public services, programs

22 and activities as a result of her gender dysphoria, failed to provide proper and reasonable training

23 to custody and health staff in responding to persons with gender dysphoria; and disciplined

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1 Plaintiff for actions or behavior related to gender dysphoria and imposing punishments depriving

2 Plaintiff of programs and activities because of such actions or behavior in a manner detrimental

3 to her health.

4

DEFENDANTS’ FAILURE TO PROVIDE MEDICALLY NECESSARY

TREATMENT

5 4.59. Even DOC’s own medical professional Dr. Patricia Zeisler found that “[a]t this

6 time corrective surgery is medically necessary in order to completely eradicate the gender

7 dysphoria.”

8 4.60. Similarly, a primary encounter report signed by DOC Dr. Wendi Wachsmuth

9 found that Lotusflower “needs gender confirming surgery to relieve her gender dysphoria”.

10 4.61. To date, Plaintiff Lotusflower’s requests for gender affirming surgery have been

11 denied by DOC--first as Level III services according to the blanket ban Policy and then at urging

12 of a paid gender dysphoria consultant, Stephen Levine, PhD, whose opinions have been rejected

13 by several courts across the country.

14 4.62. Two courts in the Ninth Circuit have noted the lengths to which Dr. Levine will

15 go to determine incarcerated people with gender dysphoria are not entitled to gender affirming

16 surgery. The Northern District of California gave “very little weight to the opinions of Levine,

17 whose report misrepresents the Standards of Care; overwhelmingly relies on generalizations

18 about gender dysphoric prisoners, rather than an individualized assessment of [the complainant];

19 contains illogical inferences; and admittedly includes references to a fabricated anecdote.”

20 Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1188 (N.D. Cal. 2015), appeal dismissed and

21 remanded, 802 F.3d 1090 (9th Cir. 2015).

22 4.63. Just last year, a district court in neighboring Idaho wrote: “Dr. Levine is

23

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1 considered an outlier in the field of gender dysphoria and does not ascribe to the WPATH

2 Standards of Care. His training materials do not reflect opinions that are generally accepted in

3 the field of gender dysphoria.” Edmo v. Idaho Dep't of Correction, 358 F. Supp. 3d 1103 (D.

4 Idaho 2018)).

5

4.64. Defendants were aware of the Norsworthy opinion and the above concerns raised

6 by that court before entering into the gender dysphoria consultant contract with Dr. Levine.

7

4.65. The mere use of Dr. Levine as a paid DOC gender dysphoria consultant evidences

8 Defendants’ lack of intention to provide medically necessary treatment to those with gender

9 gysphoria, including Plaintiff.

10

PLAINTIFF’S CLAIMS FOR RELIEF

11

CLAIM FOR RELIEF

Failure to Provide Necessary Medical Treatment

12

(Eighth Amendment; 42 U.S.C. § 1983)

Against ALL Defendants

13 5.1 Plaintiff repeats and re-alleges the allegations in all preceding paragraphs as if

14 fully set forth herein.

15 5.2 Plaintiff has been diagnosed with the serious medical condition of gender

16 dysphoria, which continues to cause Plaintiff serious mental distress and, without necessary

17 treatment, has resulted in serious physical harm to Plaintiff.

18 5.3 Defendants are responsible for providing adequate and necessary medical

19 treatment to Plaintiff, including treatment for persons diagnosed with gender dysphoria.

20 5.4 Defendants have failed to follow even DOC’s own policies relating to Plaintiff’s

21 treatment. For example, Defendants failed to convene and/or conduct the necessary DOC CRC

22 meetings to meaningfully evaluate Plaintiff’s treatment for gender dysphoria.

23

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1

5.5 Defendants have failed to provide adequate and necessary treatment to Plaintiff

2 that is consistent with prevailing medical standards of care for gender dysphoria, as evidenced, in

3 relevant part, by Defendants and DOC’s blanket policy banning the use of makeup, women’s

4 clothing and other feminizing methods, which are medically necessary for gender

5 nonconforming prisoners in male prisons.

6

5.6 Defendants’ acts and/or omissions with respect to Plaintiff’s treatment reflect

7 Defendants’ policy, custom, practice and/or procedure of failing to provide adequate and

8 necessary medical treatment to inmates with gender dysphoria.

9

5.7 Each Defendant has been and remains deliberately indifferent to Plaintiff’s

10 medical need to be adequately treated for gender dysphoria, including but not limited to

11 evaluation for gender affirming surgery by an unbiased qualified medical personnel with

12 expertise in the diagnosis and treatment of gender dysphoria and provision of such surgery, if

13 determined appropriate, as well as other medical treatments and accommodations that would

14 alleviate Plaintiff’s serious medical symptoms.

15

5.8 Each Defendant has known of Plaintiff’s serious medical need for treatment for

16 gender dysphoria and failed to take reasonable measures to address Plaintiff’s continued pain and

17 suffering resulting from her inadequately treated gender dysphoria.

18

5.9 Defendants’ continued denial of necessary medical treatment for gender

19 dysphoria is causing irreparable harm and unnecessary suffering to Plaintiff, including severe

20 anxiety and distress resulting in emotional, psychological, and physical harm.

21

5.10 Defendants’ failure to provide necessary medical treatment to Plaintiff violates

22 the Eighth Amendment to the U.S. Constitution.

23

5.11 As a direct and legal result of Defendants’ actions and omissions, Plaintiff has

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1 suffered and continues to suffer damages including, without limitation, pain and suffering;

2 emotional, psychological and physical distress; and violation of dignity.

3

5.12 Defendants by engaging in the aforementioned acts or omissions and/or in

4 ratifying such acts or omissions, engaged in willful, malicious, intentional, and/or oppressive

5 conduct, and/or acted with willful and conscious disregard of the rights, welfare, and safety of

6 Plaintiff, thereby justifying injunctive and declaratory relief.

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiff requests entry of judgment in her favor and against Defendants

9 as follows:

10

1. For injunctive and declaratory relief, including but not limited to enjoining

11 Defendants to provide Plaintiff with adequate and necessary medical care;

12

2. For injunctive and declaratory relief, including but not limited to enjoining

13 Defendants to provide Plaintiff equal access to clothing, cosmetic, and hygiene items available to

14 inmates housed in female institutions;

15

3. For injunctive and declaratory relief, including but not limited to enjoining

16 Defendants to house Plaintiff at an institution consistent with her gender identity;

17

4. For injunctive and declaratory relief, including but not limited to declaring

18 unconstitutional and violative of federal law Defendants’ practices in denying Plaintiff and other

19 similarly situated inmates with adequate and necessary medical treatment.

20

5. For an award of Plaintiff’s costs and attorneys’ fees:

21

6. For leave to amend these pleadings to conform to the evidence as presented at

22 trial; and

23

7. For such other and further relief as the Court may deem just and proper.

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1 DATED this ___th day of April, 2019.
2

3 AMERICAN CIVIL LIBERTIES UNION DAVIS WRIGHT TREMAINE LLP OF WASHINGTON FOUNDATION
4

5 By: /s/Antoinette M. Davis Antoinette M. Davis, WSBA No. 29821
6 901 Fifth Avenue, Suite 630 Seattle, Washington 98164
7 Telephone: (206) 624-2184 tdavis@aclu-wa.org
8 Attorneys for Plaintiff
9

By: /s/ Kristina Markosova
Kristina Markosova, WSBA No. 47924 920 Fifth Avenue, Suite 3300 Seattle, Washington 98164 Telephone: (206) 757-8026 kristinamarkosova@dwt.com Cooperating Attorneys to the ACLU-WA Foundation

10

11 CORR CRONIN MICHELSON
12 BAUMGARDNER FOGG & MOORE LLP

13

By: /s/ Ben C. Byers

Benjamin C. Byers, WSBA No. 52299

14 1001 Fourth Avenue, Suite 3900

Seattle, Washington 98154-1051

15 Telephone: (206) 625-8600 bbyers@corrcronin.com

16

Cooperating Attorney to the ACLU-WA Foundation

17

18

19

20

21

22

23

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 Case 3:17-cv-05714-BHS-JRC Document 87 Filed 01/04/19 Page 1 of 7

1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

2

AT TACOMA

3 NATHAN ROBERT GONINAN, a.k.a. 4 NONNIE M. LOTUSFLOWER,

5

v.

Plaintiff,

6 WASHINGTON DEPARTMENT OF CORRECTIONS, et al.,
7
Defendants. 8

CASE NO. C17-5714 BHS-JRC
ORDER ADOPTING REPORT AND RECOMMENDATION AND REREFERRING TO MAGISTRATE JUDGE

9

10

This matter comes before the Court on the Report and Recommendation (“R&R”)

11 of the Honorable J. Richard Creatura, United States Magistrate Judge, Dkt. 71, and

12 Plaintiff Nathan Goninan, a.k.a. Nonnie Lotusflower’s (“Lotusflower”) objections to the

13 R&R, Dkt. 79.

14

Lotusflower is a transgender woman currently incarcerated by Defendant

15 Washington State Department of Corrections (“DOC”). Dkt. 1-1. Lotusflower

16 experiences symptoms of gender dysphoria and has been diagnosed with gender

17 dysphoria. Dkt. 1-2 at 7–8, 29.1

18

On October 27, 2017, Lotusflower filed a pro se civil rights complaint alleging

19 that DOC’s failure to provide her with medically necessary gender reassignment surgery

20 violates the Eighth and Fourteenth amendments to the United States Constitution. Dkt. 8

21
1 Unless otherwise noted, the Court refers to the electronic case file pagination, which can be
22 found in the heading added to all documents filed electronically with the Court.

ORDER - 1

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1 at 1. Lotusflower obtained representation, and the parties filed a stipulated motion to stay

2 the case until April 2018. Dkts. 39, 45. Before the stay ended, on March 16, 2018, DOC

3 revised its Offender Health Plan (“OHP”), moving surgical intervention for gender

4 dysphoria from Level III (not medically necessary or not provided under the OHP) to

5 Level II (medically necessary under certain circumstances). Dkts. 50-1, 53, 53-1.

6

On April 19, 2018, Lotusflower moved for partial summary judgment on the facial

7 unconstitutionality of the gender dysphoria policy under the revised OHP. Dkts. 48, 49-1.

8 On May 3, 2018, DOC responded that the revised OHP “does not prohibit sex

9 reassignment surgery when it is found to be medically necessary.” Dkt. 52 at 3. On May

10 11, 2018, Lotusflower replied, arguing that despite moving gender reassignment surgery

11 to Level II, the revised OHP “still incorporates by reference DOC’s Gender Dysphoria

12 Protocol—and that protocol maintains the blanket ban.” Dkts. 50-1, 55 at 1–2.

13

The revised OHP did refer DOC medical providers to an internal “protocol”

14 document for treatment of gender dysphoria. See Dkts. 49-1, 50-1. In turn, this written

15 protocol prohibited “elective or cosmetic surgical procedures for the purpose of

16 reassignment.” Dkt. 50-1 at 3. As the OHP continued to reference the original gender

17 dysphoria protocol (“GDP”) banning cosmetic or elective surgical procedures, it was

18 therefore uncertain whether the OHP barred medically necessary gender reassignment

19 surgery, even as revised. See Dkt. 60. On June 14, 2018, Judge Creatura ordered DOC to

20

21

22

ORDER - 2

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1 provide supplemental briefing addressing the relationship between the two documents. 2

2 Id.

3

On July 2, 2018, DOC responded that the language of the original GDP permitted

4 gender reassignment surgery when medically necessary. Dkt. 61. However, DOC also

5 stated that it had now revised the GDP “to include language addressing the criteria for

6 gender confirmation surgery when such treatment has been found to be medically

7 necessary.” Dkt. 62-1. DOC revised the GDP on June 19, 2018, five days after Judge

8 Creatura issued the order requesting supplemental briefing. Dkt. 62 at 2. The bulk of

9 Lotusflower’s supplemental reply thus devolved into a discussion of whether DOC

10 engaged in conduct designed to evade judicial review of its policies. Dkts. 63, 66.

11 Lotusflower also argued that, based on the doctor DOC recently hired to perform

12 readiness assessments for gender reassignment surgeries, DOC has “simply replaced one

13 ban with another by hiring an ‘expert’ who has concluded that gender reassignment

14 surgery ‘is always an elective procedure.’” Dkt. 63 at 4.

15

On August 15, 2018, Judge Creatura issued the R&R recommending that this

16 Court deny Lotusflower’s motion. Dkt. 71. The R&R concluded that, when viewed in the

17 light most favorable to non-moving party DOC, the original GDP only prohibited

18 transgender inmates from accessing cosmetic or elective surgical procedures, rather than

19 banning medically necessary gender reassignment surgery. Dkt. 71 at 7. The R&R also

20 concluded that the revised GDP now explicitly includes a path to gender reassignment

21
2 The Court considers the OHP and the GDP together when reviewing the constitutionality of
22 DOC’s policy towards gender dysphoria, as did Judge Creatura. Dkt. 71 at 7.

ORDER - 3

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1 surgery. Id. In other words, although courts have held blanket bans or per se protocols

2 denying or limiting medical treatment unconstitutional, Judge Creatura found that each of

3 DOC’s protocols for gender dysphoria independently established a pathway to gender

4 reassignment surgery when medically necessary. Id. Based on these findings, the R&R

5 recommends denying Lotusflower’s motion because she failed to establish that DOC’s

6 gender dysphoria policy is unconstitutional on its face. Id. The R&R also rejects

7 Lotusflower’s “blanket ban as applied” challenge because she failed to provide evidence

8 that the doctor categorically denies every request for gender reassignment surgery. Id.

9

On August 30, 2018, Lotusflower objected, arguing that an as-applied challenge

10 was not at issue before the Court. Dkt. 79. Lotusflower also believes that the R&R

11 ignored evidence showing that DOC modified its gender dysphoria policies in an attempt

12 to evade judicial review, and further objects on that basis. Id. On September 13, 2018,

13 DOC responded. Dkt. 80. On December 19, 2018, Lotusflower supplemented her

14 objections with two recent authorities. Dkt. 86.

15

The district judge must determine de novo any part of the magistrate judge’s

16 disposition that has been properly objected to. Fed. R. Civ. P. 72(b)(3). The district judge

17 may accept, reject, or modify the recommended disposition; receive further evidence; or

18 return the matter to the magistrate judge with instructions. Id.

19 A. 20

Facial Challenge Lotusflower first argues that the R&R “failed to consider the very purpose of the

21 voluntary cessation doctrine” which is to “foreclose efforts by defendants to evade 22 judicial review by temporary and/or ineffectively modifying their behavior in the short

ORDER - 4

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1 term in an effort to moot ongoing litigation.” Dkt. 79 at 2, citing Bell v. City of Boise, 709

2 F.3d 890, 898 (9th Cir. 2013). Lotusflower’s objection has some merit. The R&R’s

3 voluntary cessation discussion was admittedly brief. See Dkt. 71 at 7–8. The R&R did not

4 address why DOC’s conduct did not implicate the voluntary cessation doctrine, or

5 analyze the voluntary cessation factors. Id. More importantly though, the R&R relied on

6 the revised GDP’s explicit pathway to reassignment surgery in order to defeat

7 Lotusflower’s argument that the original GDP banned reassignment surgery, thus

8 appearing to negate the purpose of voluntary cessation doctrine. Id.

9

Nonetheless, the R&R went on to separately conclude that the original GDP

10 permitted medically necessary gender reassignment surgery when viewed in the light

11 most favorable to DOC, and therefore was not a blanket surgical ban. Dkt. 71 at 7. The

12 Court agrees with this conclusion. After the OHP was revised, the DOC Assistant

13 Secretary for Health Services declared that if gender reassignment surgery was deemed

14 medically necessary, the OHP would cover the surgery at Level I (medically necessary).

15 Dkt. 53, ⁋⁋ 4–5. DOC further stated that regardless of the language in the original GDP,

16 the revised OHP would not prohibit a transgender inmate from receiving gender

17 reassignment surgery, if surgery was deemed medically necessary following a readiness

18 assessment. Dkts. 61, 62. Moreover, the original GDP did not explicitly prohibit

19 medically necessary surgery. Dkt. 50-1. When viewing the facts and inferences in the

20 light most favorable to DOC, a reasonable juror could therefore conclude that the original

21 GDP prohibited “only ‘cosmetic or elective’ surgical procedures, not surgical procedures

22 deemed to be medically necessary.”’ Dkt. 71 at 7. The R&R thus correctly concluded that

ORDER - 5

Case 3:17-cv-05714-BHS-JRC Document 87 Filed 01/04/19 Page 6 of 7

1 Lotusflower failed to meet her burden to establish the facial unconstitutionality of the

2 original policy, and the Court will adopt it on that basis.

3

Last, the Court’s conclusion that Lotusflower failed to establish the facial

4 unconstitutionality of the original GDP moots the need to discuss voluntary cessation

5 (and Lotusflower’s supplemental authorities) in context to the revised GDP.3

6 Lotusflower’s voluntary cessation objection is therefore denied.

7 B. As Applied Challenge

8

Next, Lotusflower objects to the R&R’s as applied recommendation. Lotusflower

9 states that she only challenged the policy facially, and the as applied issue “had not been

10 briefed and was not properly before the court.” Dkt. 79 at 4. In her initial motion for

11 partial summary judgment, Lotusflower did challenge the policy facially. See Dkt. 48. In

12 supplemental briefing, however, Lotusflower later argued that the revised GDP was a “de

13 facto” ban because it required DOC to consult an outside medical expert in gender

14 dysphoria, and DOC had chosen an expert who, Lotusflower alleged, believes it is never

15 medically necessary for any prison inmate to receive gender reassignment surgery. Dkt.

16 63 at 4. While a challenge to a “de facto” ban may sound like an as-applied challenge in

17 disguise, Lotusflower’s arguments demonstrate that she continued to challenge the policy

18 relative to all DOC inmates, consistent with a facial challenge. Dkt. 63.

19

20
3 Beyond the GDP revision, Lotusflower also argues that DOC waited to revise the OHP until just
21 before the mutually-agreed upon stay ended. Dkt. 55 at 5–6. Because Lotusflower herself moved for
judgment under the revised OHP, citing its internal reference to the original GDP as the foundation of her
22 motion, Dkts. 49-1 at 129, 55 at 2, the Court ignores this argument.

ORDER - 6

Case 3:17-cv-05714-BHS-JRC Document 87 Filed 01/04/19 Page 7 of 7

1

The R&R addressed Lotusflower’s de facto ban argument under a section titled

2 “Blanket Ban As Applied.” Dkt. 71 at 8. However, this section recommended finding that

3 Lotusflower had not established sufficient evidence to conclude that DOC’s choice of

4 medical expert “would effectively ban all transgender prisoners, including plaintiff, from

5 access to medically necessary gender confirmation surgery.” Dkt. 71 at 8–9. It then went

6 on to conclude that Lotusflower failed to show that she is absolutely barred from ever

7 qualifying for surgery under the alleged de facto ban. Dkt. 71 at 9. At the very least, the

8 use of the key phrase “as applied” may have led to confusion. The Court therefore

9 concludes that Lotusflower merely supplemented her facial challenge with her “de facto”

10 ban argument, which the R&R then addressed and denied. The Court adopts the R&R on

11 that basis, leaving Lotusflower’s as applied challenge intact in all respects. Given this

12 conclusion and the fact that the dispositive motion deadline does not expire until March

13 2019, further proceedings before Judge Creatura are warranted. Fed. R. Civ. P. 72(b)(3).

14

Therefore, having considered the R&R, Plaintiff’s objections, and the remaining

15 record, the Court does hereby find and order as follows:

16

(1) The R&R, Dkt. 71, is ADOPTED;

17

(2) Lotusflower’s motion for partial summary judgment, Dkt. 48, is DENIED;

and

18

(3) The matter is rereferred for consideration of future motions.

19

Dated this 4th day of January, 2018.

20 21

A

BENJAMIN H. SETTLE

22

United States District Judge

ORDER - 7

 
 Case 3:17-cv-05714-BHS-JRC Document 77 Filed 08/24/18 Page 1 of 7

DISTRICT JUDGE BENJAMIN H. SETTLE

1

MAGISTRATE JUDGE J. RICHARD CREATURA

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT TACOMA 9

NATHAN ROBERT GONINAN, 10

No. 3:17-cv-05714-BHS-JRC

Plaintiff,

11

PLAINTIFF’S MOTION FOR

v. 12

RECONSIDERATION

WASHINGTON DEPARTMENT OF 13 CORRECTIONS, et al.,

NOTE ON MOTION CALENDAR:

AUGUST 24, 2018

14

Defendants.

15

16

I. INTRODUCTION AND RELIEF REQUESTED

17

Plaintiff Nonnie Marcella Lotusflower (a.k.a. Nathan Robert Goninan) (“Lotusflower”)

18 respectfully submits that the Court committed manifest error by failing to consider the standard
19

for voluntary cessation and by focusing on a question not presently before the Court when it 20

21

issued its August 15, 2017 Report and Recommendation. Dkt. No. 71 (“Report”). Specifically,

22 the Court ignored the undisputed evidence showing that the DOC’s purported policy change is

23 nothing more than an attempt to evade judicial review. Therefore, Lotusflower hereby moves

24

for reconsideration of the Report.

25

PLAINTIFF’S MOTION FOR RECONSIDERATION – 1 No. 3:17-cv-05714-BHS-JRC

CORR CRONIN LLP
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Case 3:17-cv-05714-BHS-JRC Document 77 Filed 08/24/18 Page 2 of 7

II. ARGUMENT 1

2

A. The Report Does Not Address the Issue Before the Court

3

When Lotusflower initially filed her Motion for Partial Summary Judgment, the issue

4 before the Court was whether the DOC’s Policy banning gender affirming surgery for all

5

inmates violates the Eighth Amendment of the United States Constitution. See dkt. #48. In

6 response, DOC argued that it no longer maintained the blanket ban but failed to provide any
7 evidence supporting the alleged policy change. See dkt. #52. The Court ordered supplemental
8

9

briefing from the DOC, specifically asking for evidence that the policy had changed. Dkt. #60.

10

The DOC then filed a supplemental response, which included a modified policy that was drafted

11 only days after the Court’s Order. See dkt. #61.

12

The main issue in the parties’ supplemental briefing then became whether DOC’s

13

purported policy change amounted to anything more than voluntary cessation. In its Report, the

14 Court brushed this question aside, concluding that the “amended language in the protocol now
15 provides” the possibility of gender confirmation surgery, and that “defendants have provided
16

17

unequivocal proof that the protocol has been updated to explicitly provide for gender

18

confirmation surgery.” In doing so, however, the Court failed to consider the very purpose of

19 the voluntary cessation doctrine, which is to “foreclose efforts by defendants to evade judicial

20

review by temporary and/or ineffectively modifying their behavior in the short term in an effort

21 to moot ongoing litigation.” See Bell v. City of Boise, 709 F.3d 890, 898 (9th Cir. 2013).
22 Just this week, the Northern District of Florida addressed a similar fact pattern in
23
Keohane v. Jones. Order on the Merits, Keohane v. Jones, No. 4:16-cv-00511-MW-CAS (N.D. 24

25

Fla. August 22, 2018), ECF No. 171. In that case, Keohane, a transgender female inmate,

PLAINTIFF’S MOTION FOR RECONSIDERATION – 2 No. 3:17-cv-05714-BHS-JRC

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Case 3:17-cv-05714-BHS-JRC Document 77 Filed 08/24/18 Page 3 of 7

challenged the Department of Corrections’ policy banning hormone therapy for inmates. 1

2

Defendant argued that the case was moot because they permitted the plaintiff to begin hormone

3 therapy (after she filed her Complaint and a preliminary injunction was entered). The Court in

4 that case provided an exhaustive analysis of the voluntary cessation doctrine, ultimately finding

5

that “Defendant’s actions are too little too late to moot Ms. Keohane’s claims.” Id. at 18. The

6 Court specifically noted that Defendant failed to provide “any explanation for the swift course
7 correction,” and failed to “provide an explanation as to why it took Defendant more than
8

9

eighteen months to reach this point.” Id. at 19 (emphasis in original). Ultimately, the Court held,

10

Given that Defendant’s “freeze-frame” policy and denial of Ms. Keohane’s hormone therapy constituted a deliberate practice during her first two years in Defendant’s

11

custody, the late-in-the-game timing and content of Defendant’s decision to amend its policy and provide for hormone treatment, the lack of any evidence of “substantial

12

deliberation” giving rise to the policy amendment, and at least one instance of inconsistent application of the new policy, this Court finds Defendant has failed to

13

establish an “unambiguous termination” of the challenged “freeze-frame” policy and the denial of hormone treatment.

14

Id. at 20.

15 In the present case, Defendants’ actions were far more egregious than those of the
16 Defendant in Keohane. Defendants refused to change their policy after Lotusflower filed her
17
Complaint, and they refused to change their policy after Lotusflower filed for Summary 18

19

Judgment. They even refused to change their policy when opposing the Motion for Summary

20 Judgment and instead misled the Court to believe that the policy had in fact changed when in

21 reality, it had not. It was not until weeks after the Court ordered Defendants to provide proof of

22

the policy change that they actually changed the policy. Furthermore, with the policy change,

23 Defendants have provided zero evidence of any “substantial deliberation” giving rise to the
24

25

PLAINTIFF’S MOTION FOR RECONSIDERATION – 3 No. 3:17-cv-05714-BHS-JRC

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Case 3:17-cv-05714-BHS-JRC Document 77 Filed 08/24/18 Page 4 of 7

change, and therefore zero evidence that they have “unambiguously terminated” the challenged 1

2

policy.

3

The Court explained that Lotusflower offered “nothing but speculation as to the DOC

4 altering the policy back,” but this conclusion ignores the following undisputed facts: (1) the

5

DOC did not update its policy until after the Court ordered it to provide proof that the policy

6 had changed, (2) the “updated policy” is not available to inmates, and (3) health care providers
7 at the correction center are unaware of the policy changes. Thus, DOC’s presentation that it
8

9

has changed its policy does not amount to “unequivocal proof” of a change, particularly in the

10

face of overwhelming evidence that this policy has not been implemented. See dkt. #66 at ¶ 3–

11 4.

12

Moreover, the Court acknowledged an inmate needs to meet a variety of criteria to be

13

deemed eligible, including “evaluation by an ‘outside expert consultant’” but ignores that the

14 fact the “outside expert” selected by DOC has an express belief that inmates, in custody, are
15
never suitable candidates for gender confirmation surgery. 16

17

Rather than addressing the voluntary cessation evidence raised by Lotusflower, the

18

Court turned instead to an “as applied” question, which had not been briefed and was not

19 properly before the Court. On reconsideration, the Court should set aside its “as applied”

20

recommendation, as it is not at issue at this time.

21 Because the Court failed to consider the standard for voluntary cessation and the totality
22 of the circumstances surrounding the DOC’s purported policy change, and because the
23
undisputed evidence shows that Defendants have not changed their unconstitutional policy in 24

25

any meaningful way, Plaintiff respectfully requests that the Court reconsider its Report,

PLAINTIFF’S MOTION FOR RECONSIDERATION – 4 No. 3:17-cv-05714-BHS-JRC

CORR CRONIN LLP
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Case 3:17-cv-05714-BHS-JRC Document 77 Filed 08/24/18 Page 5 of 7

especially in light of the decision in Keohane, and find Defendants’ blanket ban on gender 1

2

reassignment surgery unconstitutional.

3 B. Newly Discovered Evidence Supports Reconsideration

4

Because the Court addressed the “as applied” issue, and discussed that “neither party

5

has submitted evidence that plaintiff has completed her evaluation, much less provided

6 evidence that plaintiff has been denied gender confirmation surgery by Dr. Levine,”
7 Lotusflower takes this opportunity to present the Court with new evidence that has been
8

9

discovered since the parties’ briefing. On July 5, 2018, Dr. Levine issued his report finding that

10

Lotusflower is not ready for gender confirmation surgery. See dkt. #74 at ¶11. This admission

11 is contained in the August 14, 2018 declaration of Dr. Karie Rainer, Director of Mental Health

12

for the Washington State Department of Corrections. Id. Thus, it is undisputed that Dr. Levine’s

13

belief that no inmate is ever ready for gender confirmation surgery applies directly to this case,

14 and Lotusflower is still unable to receive the necessary treatment under the DOC’s “revised”
15
policy. 16

17

Noteworthy, Dr. Rainer’s recently filed declaration is oddly silent regarding medically

18

necessary surgical treatment for people suffering with Gender Dysphoria. See dkt. #74. The

19 declaration states:

20

The Department provides medically necessary treatment for inmates diagnosed with

21

Gender Dysphoria. This includes establishing treatment plans, evaluation and

management for hormonal treatment when the patient has been fully assessed and

22

determined that the treatment is medically indicated.

23 Id. at ¶4. The only mention in Dr. Rainer’s declaration of “surgery” is in reference to “the

24

Department contract[ing] to have a sex reassignment surgery readiness assessment performed

25

on Ms. Goninan,” and the conclusion that “[b]ased on the report, gender reassignment surgery

PLAINTIFF’S MOTION FOR RECONSIDERATION – 5 No. 3:17-cv-05714-BHS-JRC

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 3:17-cv-05714-BHS-JRC Document 77 Filed 08/24/18 Page 6 of 7

is not medically necessary for Ms. Goninan.” See dkt. ##6, 11. The omission of surgery as a 1

2

medically necessary treatment for Gender Dysphoria only further affirms the fact that

3 Defendants have no intention of lifting their blanket ban on gender confirmation surgery.

4

III. CONCLUSION

5

Because the Court failed to properly consider whether the DOC’s policy change

6 constitutes voluntary cessation, Plaintiff respectfully requests that the Court grant her Motion
7 for Reconsideration, declare that DOC’s Policy violates the Eighth Amendment, and direct the
8

9

DOC to discontinue the use of the Policy.

10

DATED this 24th day of August, 2018.

11

CORR CRONIN MICHELSON

12

BAUMGARDNER FOGG & MOORE LLP

13

s/ Kristina Markosova

14

Kristina Markosova, WSBA No. 47924 David Edwards, WSBA No. 44680

15

1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051

16

Telephone: (206) 625-8600 Fax: (206) 625-0900

17

kmarkosova@corrcronin.com dedwards@corrcronin.com

18

19

AMERICAN CIVIL LIBERTIES UNION

OF WASHINGTON FOUNDATION

20

21

By: /s/ Antoinette M. Davis

Antoinette M. Davis, WSBA No. 29821

22

901 Fifth Avenue, Suite 630

Seattle, Washington 98164

23

Telephone: (206) 624-2184

24

tdavis@aclu-wa.org

25

Attorneys for Plaintiff

PLAINTIFF’S MOTION FOR RECONSIDERATION – 6 No. 3:17-cv-05714-BHS-JRC

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 3:17-cv-05714-BHS-JRC Document 77 Filed 08/24/18 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

I hereby certify that on August 24, 2018, I electronically filed the foregoing and

3 attached Proposed Order with the Clerk of the Court using the CM/ECF system which will

4 send notification of such filing to the following:

5

6

Candie M. Dibble Attorney General’s office (Spokane-

7

Corrections)

Corrections Division

8

1116 West Riverside Avenue

Spokane, WA 99201-1194

9

Phone: 509-456-3123

10

Email: CandieD@atg.wa.gov Attorneys for Defendants

11

12

s/ Kaya McRuer

13

Kaya McRuer, Paralegal

American Civil Liberties Union

14

of Washington Foundation

15

16

17

18

19

20

21

22

23

24

25

PLAINTIFF’S MOTION FOR RECONSIDERATION – 7 No. 3:17-cv-05714-BHS-JRC

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

 
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 Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 1 of 12

1

DISTRICT JUDGE BENJAMIN H. SETTLE

MAGISTRATE JUDGE J. RICHARD CREATURA

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 NATHAN ROBERT GONINAN

11

Plaintiff

12

v.

13 WASHINGTON DEPARTMENT OF CORRECTIONS, et al.,
14 Defendants.
15

No. 3:17-cv-05714-BHS-JRC
STIPULATED MOTION FOR STAY
Noted on the Motion Calendar: March 12, 2020

16

The parties to this action, by and through their undersigned attorneys, jointly ask the

17 Court to enter a stay of this litigation for 180 days to allow the parties an opportunity to

18 implement the settlement agreement attached as Exhibit A.

19

Plaintiff Nonnie Lotusflower, a transgender woman incarcerated in the Washington

20 Department of Corrections, filed this lawsuit in October 2017 to obtain appropriate treatment,

21 including surgical treatment, for her gender dysphoria. The parties recently executed a settlement

22
STIPULATED MOTION FOR STAY - 1
No. 3:17-cv-05714-BHS-JRC

American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 206-624-2184

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 2 of 12

1 agreement (Exhibit A), under which Ms. Lotusflower will receive the medical treatment she

2 seeks if a professional evaluator determines that she is ready for surgery and that it is medically

3 necessary. The parties have agreed that the Court may retain jurisdiction over this matter solely

4 to enforce the terms of the settlement, and that once the terms of the settlement have been

5 satisfied, they will file a stipulated motion to dismiss this action with prejudice. Therefore, the

6 parties ask the Court to stay this litigation for 180 days to allow them to implement the terms of

7 their settlement prior to dismissing the case.

8

DATED this 12th day of March, 2020.

9 ATTORNEY GENERAL’S OFFICE (SPOKANE-CORRECTIONS)
10 CORRECTIONS DIVISION

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION

11 By s/ Candie M. Dibble
12 Candie M. Dibble, WSBA No. 42279 1116 West Riverside Avenue
13 Spokane, WA 99201-1194 Telephone: 509-456-3123
14 CandieD@atg.wa.gov Attorney for Defendants
15

By:

s/ Antoinette M. Davis

Antoinette M. Davis, WSBA No. 29821

P.O. Box 2728

Seattle, Washington 98111

Telephone: (206) 624-2184

tdavis@aclu-wa.org

Attorneys for Plaintiff

16 CORR CRONIN LLP

DAVIS WRIGHT TREMAINE LLP

17
By s/ Benjamin C. Byers 18 Benjamin C. Byers, WSBA No. 52299
1001 Fourth Avenue, Suite 3900 19 Seattle, Washington 98154-1051
Telephone: (206) 625-8600 20 bbyers@corrcronin.com
Cooperating Attorney to the ACLU-WA 21 Foundation

By:

s/ Kristina Markosova

Kristina Markosova, WSBA No. 47924

920 Fifth Avenue, Suite 3300

Seattle, Washington 98164

Telephone: (206) 757-8026

kristinamarkosova@dwt.com

Cooperating Attorneys to the ACLU-WA

Foundation

22
STIPULATED MOTION FOR STAY - 2
No. 3:17-cv-05714-BHS-JRC

American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 206-624-2184

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 3 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
STIPULATED MOTION FOR STAY - 3
No. 3:17-cv-05714-BHS-JRC

BUDGE & HEIPT, PLLC

By:

s/ Hank Balson

Hank Balson WSBA No. 29250

808 E. Roy St.

Seattle, WA 98102

Telephone (206) 624-3060

hank@budgeandheipt.com

Cooperating Attorney to the ACLU-WA

Foundation

American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 206-624-2184

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 4 of 12

1

ORDER

2

IT IS HEREBY ORDERED that the Parties Stipulated Motion for Stay is GRANTED for

3 the reasons set forth in the Stipulation. This action is stayed for 180 days from the date of this

4 order.

5

SO ORDERED.

6

DATED this _______ day of ____________________, 2020.

7

____________________________________

Honorable Benjamin H. Settle

8

United States District Judge

9 Presented by:

10 ATTORNEY GENERAL’S OFFICE (SPOKANE-CORRECTIONS)
11 CORRECTIONS DIVISION
12 By s/ Candie M. Dibble Candie M. Dibble, WSBA No. 42279
13 1116 West Riverside Avenue Spokane, WA 99201-1194
14 Phone: 509-456-3123 Email: CandieD@atg.wa.gov
15 Attorney for Defendants

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION

By:

s/ Antoinette M. Davis

Antoinette M. Davis, WSBA No. 29821

P.O. Box 2728

Seattle, Washington 98111

Telephone: (206) 624-2184

tdavis@aclu-wa.org

Attorneys for Plaintiff

16 CORR CRONIN LLP
17
By s/ Benjamin C. Byers 18 Benjamin C. Byers, WSBA No. 52299
1001 Fourth Avenue, Suite 3900 19 Seattle, Washington 98154-1051
Telephone: (206) 625-8600 20 bbyers@corrcronin.com
Cooperating Attorneys to the ACLU-WA 21 Foundation

DAVIS WRIGHT TREMAINE LLP

By:

s/ Kristina Markosova

Kristina Markosova, WSBA No. 47924

920 Fifth Avenue, Suite 3300

Seattle, Washington 98164

Telephone: (206) 757-8026

kristinamarkosova@dwt.com

Cooperating Attorneys to the ACLU-WA

Foundation

22
STIPULATED MOTION FOR STAY - 4
No. 3:17-cv-05714-BHS-JRC

American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 206-624-2184

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 5 of 12

1 BUDGE & HEIPT, PLLC

2 By:

s/ Hank Balson

3

Hank Balson WSBA No. 29250 808 E. Roy St.

Seattle, WA 98102

4 Telephone (206) 624-3060

hank@budgeandheipt.com

5 Cooperating Attorney to the ACLU-WA

Foundation

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22
STIPULATED MOTION FOR STAY - 5
No. 3:17-cv-05714-BHS-JRC

American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 206-624-2184

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 6 of 12

1

CERTIFICATE OF SERVICE

2 I hereby certify that on this date, I filed the attached document electronically with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to all

4 counsel of record named below.

5 Candie M. Dibble

6

Attorney General’s office (Spokane-Corrections)

Corrections Division

7

1116 West Riverside Avenue

Spokane, WA 99201-1194

8

Phone: 509-456-3123

Email: CandieD@atg.wa.gov

9

Attorneys for Defendants

10 DATED this 12th day of March, 2020.

11

s/ Hank Balson HANK BALSON, WSBA No. 29250

12

13

14

15

16

17

18

19

20

21

22
STIPULATED MOTION FOR STAY - 6
No. 3:17-cv-05714-BHS-JRC

American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 206-624-2184

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 7 of 12
Exhibit A

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 8 of 12

1

2

3

4

5

6

7

8 DISTRICT JUDGE BENJAMIN H. SETTLE

9

MAGISTRATE JUDGE J. RICHARD CREATURA

10

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

11

AT TACOMA

12 NATHAN ROBERT GONINAN, a.k.a. 13 NONNIE M. LOTUSFLOWER

14

Plaintiff,

NO. 3:17-cv-05714-BHS-JRC
RELEASE AND SETTLEMENT AGREEMENT

15

v.

16 WASHINGTON STATE DEPARTMENT 17 OF CORRECTIONS, et al.,

18

Defendants.

19

This is a Release and Settlement Agreement for the above-referenced action. Based upon

20 consideration and mutual promises, the Plaintiff, NONNIE M. LOTUSFLOWER, appearing by

21 and through her attorneys, HANK BALSON, BENJAMIN BYERS, ANTOINETTE DAVIS,

22 and KRISTINA MARKOSOVA, and the Defendants, by and through their attorneys, ROBERT

23 W. FERGUSON, Attorney General, and CANDIE M. DIBBLE, Assistant Attorney General,

24 agree to the following:

25

1. In consideration of the following provisions of the Release and Settlement

26 Agreement, Plaintiff NONNIE LOTUSFLOWER, DOC #869663, her heirs, assigns or other

RELEASE AND SETTLEMENT AGREEMENT

1

No. 3:17-cv-05714-BHS-JRC

ATTORNEY GENERAL OF WASHINGTON Corrections Division
1116 West Riverside Avenue, Suite 100 Spokane, WA 99201-1106 (509) 456-3123

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 9 of 12

1 successors in interest, do hereby release and forever discharge the State of Washington, its

2 officers, agents, employees and agencies and departments for any and all existing claims,

3 damages and causes of action of any nature arising out of the claims as described in Plaintiff’s

4 Complaint in this action which are the source of her claims against the Defendants.

5

2. This Agreement is the final, conclusive, and complete release of liability for all

6 known, as well as all unknown claims for recovery of any sort arising out of the claims set forth

7 in Plaintiff’s Complaint.

8

3. This Agreement shall be effective when signed by all parties and/or their legal

9 representatives.

10

4. An expert evaluator mutually agreed upon by the parties (“Evaluator”) will examine

11 and evaluate Ms. Lotusflower using the medically necessary standards as stated in the

12 Department’s Offender Health Plan to determine her readiness for gender affirming surgery (the

13 “Evaluation”). Specifically, the Evaluator will determine whether gender affirming surgery is a

14 “medical necessity,” which means it is:

15

a. “Is essential to life or preservation of limb, OR

16

b. Reduces intractable pain, OR

17

c. Prevents significant deterioration of ADLs, OR

18

d. Is of proven value to significantly reduce the risk of one of the three outcomes above

19

(e.g. certain immunizations), OR

20

e. Immediate intervention is not medically necessary, but delay of care would make

21

future care or intervention for intractable pain or preservation of ADLs significantly

22

more dangerous, complicated, or significantly less likely to succeed, OR

23

f. Reduces severe psychiatric symptoms to a degree that permits engagement in

24

programming that advances correctional interests, OR

25

g. Is described as part of a Departmental policy or health care protocol or guideline and

26

delivered according to such policy, protocol, or guideline, OR

RELEASE AND SETTLEMENT AGREEMENT

2

No. 3:17-cv-05714-BHS-JRC

ATTORNEY GENERAL OF WASHINGTON Corrections Division
1116 West Riverside Avenue, Suite 100 Spokane, WA 99201-1106 (509) 456-3123

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 10 of 12

1

h. From a public health perspective, is necessary for the health and safety of a

2

community of individuals and is medically appropriate, but may not be medically

3

necessary for the individual (for example, treatment for head lice).”

4

In addition, the Evaluator will make a recommendation regarding what housing

5 assignment would best support Ms. Lotusflower’s successful recovery and mental wellbeing

6 following surgery.

7

The Department will schedule the Evaluation within forty-five (45) days after the parties

8 have selected an Evaluator.

9

5. If the Evaluator concludes that gender affirming surgery is medically necessary, as

10 defined above, and that Ms. Lotusflower is ready for surgery, DOC will provide gender affirming

11 surgery for Ms. Lotusflower within a reasonable timeframe that is agreed upon by the parties

12 after receipt of the Evaluator’s written report and that is consistent with the requirements of the

13 Apple Health Transgender Program.

14

6. The parties recognize that the potential surgeons for Ms. Lotusflower’s gender

15 affirming surgery may have limited availability. Thus, in order to avoid additional unnecessary

16 delay, within thirty (30) days of receipt of the Evaluator’s report, the DOC will contact

17 Dr. Geoffrey Stiller at Palouse Surgeons, Pullman Washington and Dr. Daniel Dugi at Oregon

18 Health & Science University, Portland, Oregon to determine which surgeon has the earliest

19 availability for gender affirming surgery. Also within thirty (30) days of the Evaluator’s report,

20 DOC will schedule a gender affirming surgery consultation with the surgeon who has the earliest

21 availability to perform Ms. Lotusflower’s gender affirming surgery. The surgeon must also be

22 contracted with Washington Medicaid to provide services consistent with the Apple Health

23 Transgender Program.

24

7. Within 30 days prior to Ms. Lotusflower receiving gender affirming surgery, the

25 Department will complete a housing classification hearing for Ms. Lotusflower to determine

26 which institution she will be transferred to immediately following surgery. In making this

RELEASE AND SETTLEMENT AGREEMENT

3

No. 3:17-cv-05714-BHS-JRC

ATTORNEY GENERAL OF WASHINGTON Corrections Division
1116 West Riverside Avenue, Suite 100 Spokane, WA 99201-1106 (509) 456-3123

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 11 of 12

1 classification decision, DOC will solicit and consider Ms. Lotusflower’s expressed housing

2 preference as well the recommendation of the evaluator. In the event Ms. Lotusflower is not

3 transferred to the Washington Corrections Center for Women (WCCW) immediately following

4 her surgery, DOC will conduct another housing classification hearing within 30 days after the

5 surgery to further evaluate Ms. Lotusflower’s housing assignment, again soliciting and

6 considering Ms. Lotusflower’s expressed housing preference as well as the recommendation of

7 the evaluator.

8

8. If the Evaluator determines that Ms. Lotusflower is not currently ready for gender

9 affirming surgery but recommends further evaluation after a specific period of time, DOC will

10 arrange for such a further evaluation reasonably within the time period identified by the

11 Evaluator. If after such further evaluation, the Evaluator concludes that Ms. Lotusflower is ready

12 for gender affirming surgery using the medically necessary standards as stated in the

13 Department’s Health Plan, DOC will provide gender affirming surgery consistent with the DOC

14 Gender Dysphoria Protocol, assuming the DOC adopts the protocol produced in this litigation

15 as DEFS 11777-11789.

16

9. The parties agree this Release and Settlement Agreement is not an admission of

17 liability or that any claim or defense advanced by any party lacks merit.

18

10. This Agreement is the final written expression of all the terms of this Agreement and

19 is a complete and exclusive statement of these terms.

20

11. The parties agree that neither party is to be considered a prevailing party in this action

21 for any purpose, including, but not limited to, attorney fees.

22

12. The parties jointly agree that dismissal with prejudice of this action is an appropriate

23 resolution in consideration of the agreed terms provided for in this Agreement. The parties also

24 agree to sign and file a stipulated motion for the entry of an order dismissing this action with

25 prejudice.

26

RELEASE AND SETTLEMENT AGREEMENT

4

No. 3:17-cv-05714-BHS-JRC

ATTORNEY GENERAL OF WASHINGTON Corrections Division
1116 West Riverside Avenue, Suite 100 Spokane, WA 99201-1106 (509) 456-3123

Case 3:17-cv-05714-BHS-JRC Document 113 Filed 03/12/20 Page 12 of 12 3/12/2020