Case3:14-cv-00695-JST Document1 Filed02/14/14 Page1 of 25
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I COMPLAINT BY A PRISONER UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. § 1983

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(Last)

(First)

Prisoner Number: CDCR#:

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Institutional Address:.S.-O_PLE:.Do:A·:DB,O=C=AxL=IF7O=0R=N5IA====9=3=9=6=0~1=F=!mRC=TLC=HEF:RH:R:K@fAi':tWEt~:iSO~t::~1W(g..TRW'fIE~B:IO<IIINR?

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UNITED STATES DISTRICT COURT

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cv 1 4 NORTHERN DISTRICf OF CALIFORNIA

NORSWORTHY, NICHELLE-LAEL B./JEFFREY B)

(Enter yourfull name.)

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0695

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vs.
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Case No.

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(Leave blank;-to-b~e p-ro-vi~de~d -by-C-ler-k -of­Court)

BEARD, JEFFREY I CDCR SECRETARY
13 KELSO, CLARK,MEDICAL RECEIVER

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COMPLAINT UNDER THE

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CIVIL RIGHTS ACT,

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42 U .S.C. § 1983

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______________________________) SPEARMAN, M.E., CTF WARDEN , et al,.,,)

15 (Ent~r the full name(s) ofthe defendant(s) in this action.)

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PRISON MEDICAL/HEALTH CARE:

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17 I. Exhaustion of Administrative Remedies.

"MEDICALLY

NECESSARY"

SURGICAL PROCEDURE.

18 Note: You must exhaust available atb,ninistrative nmedies before your claim can go forward. The court will dismiss any

unexhausted claims.

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A. Place of present confinement CORRECTIONAL TRAINING FACILITY _,('-"CT=F_._)_ _ __

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B. Is there a grievance procedure in this institution ?

YES~

NO 0

21 c. If so, did you present the facts in your complaint for review through the grievance

22 procedure? YES I:Xxx NO 0

23 D. lf your answer is YES, list the appeal number and the date and result of the appeal at each

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level of review. If you did not pursue any available level of appeal, explain why.

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1. Infonnal appeal: _ _..s...,..E.E.~.A.TP...._.,A,..C_.H..,.E"".D.....C.O."'"""'&l~P.-LM.AI.wN""T....,./..~..x. wUwi.-a~I.-TwS-------

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COMPLAINT Page I of4

Case3:14-cv-00695-JST Document1 Filed02/14/14 Page2 of 25
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2. First formal level:

SEE .ATTAC~E:C CC»G1:t.AUlT/EXHIIU:TS

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3. Second formal level: SEE ATTACHED cc:t-lPLAIWT/EXIUBI'l'S

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4. Third formal level: SEE ATTACHED COMPLAINT/EXHIBITS

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10 E. Is the last level to which you appealed the highest level of appeal available to you?

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YES S

NOD

12 F. If you did not present your claim for review through the grievance procedure, explain why.

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N/A

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16 II. Parties.

17 A. Write your name and present address. Do the same for additional plaintiffs, if any. 18 NORSWORTHY, MICHELLE-LAEL BRYANNA/JEFFREY BRYAN 19 CORRECTIONAL TRAINING FACILITY (CTF)

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21 B. For each defendant, provide full name, official position and place of employment.
22 BEARD, JEFFREY, SECRETARY OF CORRECTIONS, SACRAMENTO, CALIFORNIA

23 KELSO, CLARK, HEDICAL RECEIVER, SACRAMENTO, CALIFORNIA

24 SPEARHAN, M.E., WARDEN OF CTFI SOLEDAD, CALIFORNIA

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ADAMS, A, CHIEF MEDICAL EXECUTIVE OF C'l'F, SOLEDAD, CALIFORNIA

26 ZAMORA, L.D., CDCR APPEALS CHIEF, SACRAMENTO, CALI EOiiUU A

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COMPLAINT Page 2 of 4

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III. Statement of C laim.

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State briefly the facts ofyour case. Be sure to describe how each defendant is involved and

to include dates, when possible. Do not give any legal arguments or cite any cases or statutes. If

3 you have more than one claim, each claim should be set forth in a separate numbered paragraph.

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SEE ATTACHED OOMPLAINX/EXHIBITS

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16 IV. Relief.

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Your complaint must include a request for specific relief. State briefly exactly what you

want the court to do for you. Do not make legal arguments and do not cite any cases or statutes.

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SEE ATTACHED COMPLAINT/EXHIBITS

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COMPLAINT Page 3 of4

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MAGISTRATE JUDGEJURISDICfiON

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Please indicate below by checking one ofthe two boxes whether you choose to consent or

3 decline to consent to magistrate judge jurisdiction in this matter. Sign this form below your

selection.

4 0 Consent to Magistrate Judge Jurisdiction

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OR
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~ Decline Magistrate Judge Jurisdiction

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In accordance with the provisions of28 U.S.C. § 636(c), I decline to have a United States

magistrate judge conduct all further proceedings in this case, including trial and entry of final

,zol{ :;7'~~ 11 judgment.
12 .Signedthis2l dayor.,:t.,_..,_...)

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COMPLAINT Pagt 4 of4

Case3:14-cv-00695-JST Document1 Filed02/14/14 Page5 of 25

NORSWORTHY, MICHELLE-LAEL BRYANNA/JEFFREY BRYAN P.O. BOX 705 SOLEDAD, CALIFORNIA 93960

U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

NORSWORTHY, MICHELLE-LAEL B./~EFFREY B. vs
B~ARD, JEFFREY, CDCR SECRETARY K~SO, CLARK, CDCR MEDICAL RECEIVER SPEARMAN, M.E., CTF WARDEN ADAMS, A. , CTF CHIEF MEDICAL li:XEciDTlVE Z~ORA, L. D. , CDCR APPEALS CHIEF

CASE#: COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42 USC, 1983
PRISON MEDICAL/HEALTH CARE: A MEDICALLY NECESSARY SURGICAL PROCEDURE

1. JURISDICTION & VENUE This is a civil action authorized by 42 USC section 1983 to redress the deprivation, under the color of state law, of rights secured by the Constitution of the United States. The court has jurisdiction~~~~ 28 USC sec., 2201 and 2202. P~aintiff's claims for injunctive relief are authorized by 28 USC sec., 2283 and 2284, and rule 65 of the Federal rules of Civil Procedure.

The Northern District of California is an appropriate venue under 28 USC sec., 1391(b)(2) because it is where the events giving rise to this claim occurred.

2. PLAINTIFF P~aintiff, NORSWORTHY, is a prisoner within the ealifornia Department of Corrections and Rehabilitation (CDCR), and is currently housed at the Correctional Tll'aining ~acility (CTF), "soledad, California .

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3. DEFENDANTS Defendant, BEARD is the Secretary of Corrections and, therefore, he is respon_sible for the overall operations of the Department, and each institution under its jurisdiction.
Pefendant, KELSO is the CDCR Medical Receiver and, therefore, he oversees all medical decisions made by the CDCR and its medical personnel. The receiver is suppose to know well the meaning of "MEDICAL NECESSITY" AND "MEDICALLY NECESSARY" health care and surgeries. Receiver Kelso is a direct participant in the administrative appeals process in this case, and he allowed a denial of the appeal at issue~which contains very strong language in support of Sex Reassignment Surgery (SRS) as a "Medical Necessity" in plaintiff's case.
Defendant, SPEARMAN is the warden of CTF and, therefore, he is resPonsible for the overall operations of CTF, and for each inmate housed within its borders.
Defendant, ADAMS is the CTF Chief Medical Executive, and directly participated in the denial of the SRS, deemed "Medically Necessary11in plaintiff's case by a hired psychotherapist, although she knows it can cure plaintiff's health problems As a reviewer of the case, at · 3ftd lAvel of review, she must be held to account because having the power and authority to deny the surgery means that she has the power and authority to approve such medical procedures.
Oefendant, ZAMORA is the Chief of Appeals, in this case, at the third level of review, and, obviously, by participation in the gecision making process has the power and authority to deny and/or approve medical surgeries; o.although Zamora is not qualified medical personnel allowed to treat any of a-.gi:ve~ inmate's medical issues and/or conditions.
~ACH DEFENDANT HAS THE POWER AND AUTHORITY TO DENY & ObS'rJlUC'r "MED!CALLY NECESSARY" TREATMENTS AND PROCEDURES AND, THEREFORE, THEY, LOGICALLY, HAVE THE POWER AND AUTHORITY TO APPROVE, ORDER, AND SCHEDULE SURGERIES. THE DEFENDANTS ARE NAMED IN THIS COMPLAINT BECAUSE THEY ARE DIRECTLY INVOLVED IN THE CASE, AND THEY HAVE VIOLATED PLAINTIFF'·S CONSTITUTIONAL ·':Ji:iGHTs~ 1&,ULTIMATELY, THEY ARE THE
POLICY AND DECISION MAKERS IN THE_. coeR ok issti-Es sucH AS THE oNE rr:HAT GAVE RISE
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TO THIS COAPLAINT. THE DEFENDANTS, BY DENYING PLAINTIFF A "MEDICALLY NECESSARY" SURGERY, HAVE VIOLATED THE 8TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION. THUS
tCH DEFENDANT IS BEING SUED INDIVIDUALLY, AND IN THEIR OFFICIAL CAPACITY. AT ALL MES MENTIONED IN THIS COMPLAINT EACH DEFENDANT ACTED UNDER THE COLOR OF STATE AW.
4. FACTS/EXHAUSTION/BACKGROUND Plaintiff, a state prisoner, and Ward of the state, sought, and still seeks, Sex Reassignment Surgery (SRS), at state expense, using proper CDCR Appellate Procedure, while quoting CDCR policies and regulations, as well as state ' and Constitutional Law. Plaintiff didexhaust all levels of Administrative Review, and was denied by each reviewer. (See Exhibit "A"-CDCR 602 Administrative Appeal)
The administrative denia1s not only violated the 8th and 14th amendments ;but.., ~hey violated,existing CDCR and . State policies and regulations, and California Senate Bill "1079," all of which .state, explicitly, inmates, as wards of ~he state, SHALL be provided all medical treatments and procedures that save ~ife, cure illness, and alleviate pain, and that are deemed "MEDICALLY NECESSARY" by qualified personnel~ who are licensed and employed by the state of California. (See Exhibit. "C"-California Senate Bill 1079, authored by California Senator Rubio; The CDCR's Medical Services Overview, chapters 1 & 3; Access to Primary Care, chapter 4; O~tpatient Specialty Services, chapter 8; Diagnostic Services, c~apter 10; Correctional Clinical Case Man~gement System {CCCMS), Mental Health, chapter 3; and the Treatment of Transgender Persons policies and procedures, Department Operations Manual (DOM) sections 62080.14, "Pre-operative Transsexual, 11 and 91020.26, "GENDER DYSPHORIA TREATMENT''; The California Correctional Health Care Services manual (CCHCS) sections 4.26.1 & 4.26.2, dated and revised Jlin~ 2007, January, June, and December 2012; The CDCR Medical Care Guide: GENDER rpENTITY ~ DISORDER, dated December 2011)
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'the First ·level of the Administrative Appeals process wascreviewed by one ~. Fernandez, a Registered Nurse (RN). The involvement of a Nurse in this ~ase is absurd because a decision for or against any type/kind of surgery can never be made by a nurse, in or out of prison. This was, palpably, a stalling ~actic and intended to waste the first available level in plaintiff's "Due Process".
The Second level was reviewed by A. Adams; the Chief Medical Executive (CME), ~mployed at CTF. She confirmed there does exist a serious and documented mediqal/mental health diagnosis and condition in plaintiff's case, and essentially supported plaintiff by fier DENYING the appeal for the following reason:
"There is no blanket policy in the CDCR that prohibits Sex Reassignment SUrgery (SRS) ••• over the past year and a half, neither your mental health nor your PCP has recommended SRS as treatment for any of your medical conditions."
T,he date of her statement was NOVEMBER 27, 2012, Just ~-.two days ''' later, on NOVEM-.
HER 29, 2012, plaintiff's Psychotherapist of two years, at the time, William
Reese, Ph.D/MCSP, . entered into the official records his -' recommendation that
s~s was, and is, a "MEDICAL NECESSITY" in p;taintiff' s case. (See Exhibit "A2" ""
Reports by Doctor Reese and his Supervisors) Based on the reason CME Adams gave for denying plaintiff's appeal, request for SRS, after she received Doctor Reese's recommendation she should have rescinded her previous decision and started open support of SRS in plaintiff's case. All spe wanted was a recommendation from just one of plaintiff's doctors at the t;i.me.
The Third level was .reviewed by on!'! Doctor Raymond' Coffin, Psy;D, on July 1, 2~13, when he interviewed plaintiff for 2.5 hours at CTF1 as a visitor from S4icramento, ::representing the CDCR' s interests in the case.
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~he Third level decision maker in the case, Appeals Chief, L.D. Zamora, avoided entioning his own Doctor's reports in his denial of plaintiff's request for RS because Doctor Coffin couldn't avoid stating a few crucial facts that favor ~laintiff's Administrative Appeal. In Doctor Coffin's own words, excerpted from ~is one-page initial assessment, he states:
Plaintiff's, "Thoughts were logical and goal-oriebted, with no evidence of delusions, auditory or visual hallucinations, or other Schneiderian symptoms ••• memory for recent and remote events.:::was : 97ossly intact ••• based on documents presented during the session and the consistency of responses provided, appeared to be reliable historian." (See Exhibit "A3"-Dr. Coffin's initial one-page assessment)
qn October 10, 2013, Do~tor Raymond J. Coffin made a "21'!.. page entry into plaintiff's Health Care Record (HCR)*that (1) re-diagnosed plaintiff's ever~resent Gender Identity Disorder (GID)/Gender Dysphoria; (2) re-established the ~ ive (5) AXIS Points; and (3) revealed that his overall assessment of the . facts 1upports Sex Reassignment Surgery (SRS), in plaintiff's case, just not at state ~xpense. In his own words from that 2l~page report:
"Gender Identity Disorder Diagnostic Considerations: While I/P Norsworthy went through an extended period of gender identity confusion from adolesce~ce through early:·adulthood , he appears to have consolidated his gender identity around that of a transgender female during the 1990s. For approximately 15-20 years he has been attempting to live· as a female, within the constraints of his classification and housing as a male in the CDCR system. He received a thorough psycho; logical evaluation in 2000 from Dr. Viesti who concluded that I/P Norsworthy met the criteria for a diagnosis of GID. I/P Norsworthy's subsequent behavior appears to confirm the accuracy of that diagnosis. On receipt of Dr. Viesti!s psychological consultation report, Dr. Kohler confirmed I/P Norsworthy's appropriateness for hormone therapy, and initiated treatment." See pages 15-16 of his report.
*(HCR is also known as Unit Health Record (UHR))
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"Based both on the results of the interview conducted for this evalu-

ation and review ' of available documentation since 1987, it does not

appear that I/P Norsworthy has pursued classification as a GID patient

for any "perceived cultural advantages" related to female status. While

the record shows that he has received single cell placement and special

housing in response to safety concerns related in· part to his feminine

presentation, as well as occasional informal accommodations with re-

spect to showers and other "modesty" issues, those do not appe.ar to

be the basis for I/P Norsworthy pursuing gender change treatment."

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"Based on the above rationale·, the following diagnosis is offered:

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AXil I: Post-traumatic stress .disorder, in partial remission (DSM-IV-
TR 309.81)

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Gender Identity Disorder, sexually attracted to males (DSM-IV-TR 302.

85)

Al:cohol abuse, in sustained Institutional Remission (DSM-IV-305. 00) Axis II: 301.9 Personality Disorder NOS, with Narcissistic and Bor-

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derline features. Axis III: Gender Reassignment hormone treatment; HEP. C

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Axis IV: Moderate to Severe: Incarceration; history of rape; .estrange-

ment from family.

Axis V: Current: 65 Highest in past year: 65." See Page 16 of his report

"Summary and Conclusion: 1. Does the medical record reflect compliance with current Department policy for classification as a Gender Identity Disorder (GID) patient? Substantially compliant." See Page 17 of his report.

"While it appears likely that his aedical consultants would approve him as a candidate for SRS as an 'elective• procedure, in the opinion of this evaluator the available documentation does not establish SRS as medically necessary at this time." See Page 19 of his report• .

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Doctor Coffin's initial report, one-page, is contained in Exhibit "A3", and his 21-page report, from where plaintiff obtained the above quotes, is contained in Exhibit "B2". Also, note, Exhibit "B2" contains plaintiff Is 8~page response to Dr. Coffin's assessment of the case.
~n spite of all the facts in favor of plaintiff's SRS, on October 25, 2013, Appeals L. D. Zamora, 3rd level administrative reviewer, denied plaintiff's need and request for SRS. Appeals Chief Zamora stated as his reasons for denial:
" Your current providers have documented the determination that the subject surgery is not medically necessary for you. Your appeal of : that determination does not include a showing that the subject surgery is medically necessary for you."
"Previous orders from other medical facilities or staff, input from medical consultants, and/or your own personal preferences may be considered, but do not control the professional judgment of your current medical providers."
Legal Question: To what documents is Chief Zamora referring? Legal Question: Who are these current providers Chief Zamora is talking about?
Plaintiff, in the Exhibits, provides the court with the notes, reports, and records authored by doctors, past and present, involved in plaintiff's GID treatment. They clearly contradict and undermine Chief Zamora's claims that no current providers or therapists have stated SRS is a Medical Necessity in plaintiff's case. In fact, they prove him to be a liar.
Chief Zamora provided no names of doctors or their records ~o substantiate his denial of plaintiff's appeal. On his side, he had only one Doctor, Raymond Coffin, and even he stated plaintiff. is a candidate for SRS which is why Chief Zamora made no mention of Dr. Coffin in his final report. Duly Note: Dr.· Coffin is NOT now and has never been one of plaintiff's current providers. He is just a doctor the CDCR sent to interview plaintiff representing their inter:Erillts . ..
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As for the debate that the terms "MEDICALLY NECESSARY" & "MEDICAL NECESSITY" 1re no where found in plaintiff's current medical records, UHR. Well, the fact is, those terms are found most in 2012 and 2013 reports authored by plaintiff's primary medical providers and therapists in reference to SRS. How could Chief zamora miss them all? If current medical judgment is all that the CDCR will recognize, plaintiff must point out the obvious: 2012 & 2013 are as current as it gets!
BACKGROUND FACTS:
Fact # 1: Plaintiff has Exhausted all Administrative Remedies available, and was denied at each level of review by bureaucrats concerned more about costs and publicity f han helping a human being find wellness and a cure for a serious and diagnosed t edical condition and mental illness.
Fact # 2. Pla-int~_f: was born Jeffrey Bryan Norsworthy, a biological male. However, for the last 14 years plaintiff has lived under the care of doctors as a state diag~osed, confirmed,and validated transsexual/intersex person who identifies and is "acknowledged", and referred to, by CDCR staff as a woman/biological female. Therefore, plaintiff asks the court for the purposes of this proceeeding, "Sex *='eassignment Surgery," please refer . to plaintiff with feminine pronouns, and r se her chosen name when addressing her, Michelle-Lael Bryanna Norsworthy, and use her birth name only when absolutely necessary. This will lessen the severe ~motional . and psychological stress, and anxiety and burden, that always comes tith "over-emphasis" on plai ntiff's former masculinity.
fact # 3. Plaintiff, as Jeffrey B. Norsworthy, began serving a life term in 1987, for j:lecond degree murder. (See Exhibit "B3" for conunitment case profile authored ~Y ones. Thacker, Ph.D., representing the Board of Prison Hearings)
Plaintiff's adolescence and early adulthood were obviously filled with a great amount of anger and frustration due to failing to accept her true identity.
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f n 1996-1997 ,after years of psychoanalysis/psychotherapy, with the. · hf!.~p pf. j umerous people and doctors, plaintiff. began coming-to-terms with the source f f her aggression and hostility f.irlding that it was the result of refusing and Tailing to express and from living contrary to her true identity.
tn 1998-1999, a CDCR Correctional Counselor, G. s. Rasmussen, at Wasco State trison (WSP), transferred plaintiff to the Department of Mental Health (DMH), situated within the California Medical Facility (CMF), for a Gender Dysphoria tvaluation.
~n January 2000, the CDCR reclassified plaintiff a ":Pre-Operative Transsexual;·"* ~ons~eten~' w±tb~ DOM sections 91020.26., and 62080.14., based on the following:
Qn October 7, 1999, plaintiff was referred to DMH, in/at CMF, where a thorough 9ender Dysphoria evaluation was conducted until January 12, 2000, when one Ph.Q c . R. Viesti, Specialist in Gender/S~xual dysphorias and disorders, concluded tha t plaintiff is, (without any doubt), a TRANSSEXUAL suffering from a very , evere case of "Gender Identity Disorder (GID) "/"(;ender Dysphoria (GD) ", also k!nown as, "Gender Incongruence (GI)". Thus, it can be inferred, by his diagnosis, plaintiff is in need of full sex reassignment procedures and treanment. <f ee Exhibit "B" for his report)
The following 14 years from Dr. Viesti's initial diagnosis, to present date, a~l follow-up orders from over "10" state licensed and employed doctors show t~at the feminiizing Endocrine therapy, and Psychotherapy/that was initiated i r January 2000 based on the DMH diagnosis has not ceased or lessened and has remained at pre-operation dosages and intensity. In fact, over the last 14 years plaintiff has been CASTRATED, and has developed and evolved into an ex~ · t~emely feminine, female/and womanly person in form and stature. Plaintiff, a~cording to several doctors notes and reports, "Presents-As-Female". This
(*the term "PRE-OPERATIVE TRANSSEXUAL" is defined as someone being prepared for Sex Reassignment Surgery (SRS). Apparently, based on the evidence, all the Exhibits, the CDCR has been preparing plaintiff for SRS for the last "14" years)
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explains why plaintiff was classified by the CDCR a "Pre-operative Transsexual," who by mind, body and chemistry is, clinically and legally defined, a "Biologi-
female". (Described, plaintiff is 140ish pounds, with the hairless skin .. ~exture, hips and buttocks shape, and breasts, lactate- ducted, as that of any born woman/female person. Plaintiff's permanent chemistry, specifically, her ~ strogen, testosterone , and prolactin levels, are the same and equal to that qf any born woman/female person. See Exhibit "B"-Medical Records for 2013, most current, lab results)
~aet # 5. Plaintiff has, verifiably through the exhibits, lived as a woman/female, :under , he direct and constant care of licansed specialist doctors, for 14 years1 plus. ~owever, the doctor for the Defendants, Raymond Coffin, in his report repeated,. qver and over,that plaintiff has lived as a woman/female for closer to 15-20
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years. With that being stated, the court must account .and factor into their ul~imate decision, to qualify for SRS, in the United States, a Transsexual/Inter1ex person, according to the standards/guidelines setforth by WPATH, * must :. ~ive as a woman/female under a doctors care for 2-5 years. From the DMH diagnosis ~n 2000, to the first . _&•·· directly stated and serious recommendation for SRS, '~ as
~ medical necessityrin plaintiff's case, plaintiff had been living as a woman/
~emale for 13 years. That far exceeds the standard/guideline to qualify for SRS.
DOCTOR WILLIAM REESE, Ph.D/MSCP: On November 29, 2012, plaintiff's psychotherapist of over two years, at the time, recommended, with urgent language, SRS is a "MEDICAL NECESSITY" in ~laintiff's case. In his own words,
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" ••• IT IS CLEAR 'l'HAT CLINICAL MEDICAL NECESSITY SUGGEST AND MANDATE A SEX CHJUfGE MEDICAL OPERATION BEFORE NORMALEMENTAL HEALTH CAN:~BE ACHIEVED FOR THIS FEMALE PATIENT." (*WPATH: The WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH, INC., is 'l'HE ·International . Authority and :Multidisciplinary Professional Association with extensive expertise in the standards for Transgender Health Care and Sex Reassignment Surgery (SRS).
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" ••• SHE SHOULD BE SCHEDULED FOR THE SEX CHANGE OPERATION AS · PART OF A CLINICAL AND MEDICAL NECESSITY FOR HER HEALTH AND WELL-BEING." ($ee Exhibits "A2" & "B" for this report and many others he's authored on the subject at issue.)

Dr. Reese, after filing that initial report, filed report after report telling the CDCR plaintiff is in need of,and substantially qualified for,Sex Reassign• ment Surgery (SRS).

Dr,Coffin, the doctor for the defense, agrees that plaintiff is qualified for SRS, and even goes to great lengths to re-diagnose the original GID diagnosis, a,d,by doing so,confirms and validates plaintiff is a woman/female without the p~oper genitalia.

Dr· Coffin, the doctor for the defense, attacks Dr. Reese incessantly. What

he doesn't do is explain that plaintiff's Primary Care Physician (PCP) and

Endocrinologists !

have

no

say

concerning

SRS

unless

it

pertains

to

a

"Contra-

ildication" issue. MDs, PCPs, and Endocrinologists and even SRS Surgeons, act

o ly upon the diagnostic and therapeutic reports/notes, and recommendations of,

psychologists/psychotherapists when it comes to anything related to GID/GD/GI,

o~ SRS. The reason for that is, Gender Dysphoria/Gender Identity Disorder

diagnostic and treatment criterion is found only in the DIAGNOSTIC AND STATIS.:,. . T~CAL MANUAL OF MENTAL DISORDERS (DSM IV /DSM V) • In other words, Moe and Sur:- .

geons will not touch a given Transsexual's case without first consulting and

h1ing given guidance and recommendations by a given Transsexual's primary

psychotherapist.*

~~ides, what makes Dr. Coffin's credentials "Psy.D" superior to Dr. Reese's "Ph.D and MSCP" ?

t•~ good example of the relationship between Mental Health and Medical doctors lies in a HEP c Patient's request for chemical treatment. Mental Health clinicians must first recommend and1 thenJapprove such treatment or Medical c~inicians will not touch the case.)
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Plaintiff has pursued SRS for 14 years, plus, following State/CDCR policies . · and regulations, and WPATH guidelines and standards verbat~.

Plaintiff sought and received a Gender Identity Disorder (GID) evaluation, and diagnosis, and the results were Positive for(Pre-operative)Transsexualism.

Plaintiff has remained in extensive, and intense, feminizing endocrine and psycho-therapies without breaks of any type or kind.

Plaintiff has acquired re-diagnosis, confirmations and validations, of everpresent Gender Identity Disorder/Gender Dysphoria and continuous and continual therapies under the care of many doctors, not just one.

Plaintiff has obtained a strong recommendation for SRS by a Qualified Psychotherapist, and has faced no qualified opposition, and provides the court, in Exhibit "B" excerpts from plainitff' s medical history showing not one of her past or current doctors opposes the findings and recommendations of Doctor William Reeese.

Observe.

EXHIBIT "B"

1. Doctor Viesti's January 2000 diagnosis and report. 2. Plaintiff's current chemistry and lab results. 3. Doctor Lori Kohler, Endocrinologist, and Transgender consultant confirms, as of 2011, plaintiff has remained in GID (pre-operative) related therapies for over a decade. 4. Doctor Ashiq V. Patel, Endocrinologist, and Transgender Consultant confirms, as of 2011 and 2013, plaintiff has ~ remained in all GID related therapies in pursuit of SRS, and not only does he not oppose SRS in plaintiff's case, but he fully endorses it. 5. Doctor Pawan Kumar, Endocrinologist, and Transgender Consultant, with the Colonial Medical Group, in Bakersfield, California, confirms, as of 2013 , and 2014, plaintiff has remained in all GID related therapies in pursuit of SRS. In not one of his reports, and· the subject comes up frequently, does he oppose SRS in plaintiff's case.
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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page17 of 25
6. Doctor Blizzard, in March 2009, just before plaintiff is gang-raped, uses feminine pronouns to help plaintiff settle in a new environment. She indicates that the person before her is a breasted transgender. 7. Doctor Kesces, in April 2009, establishes "Female Presentation," states that she sees history in the file of plaintiff being taken advantage of in the past, and plaintiff ?s fears that itls about to happen again. 8.Psychiatric Social Worker Lebron, in late April 2009, shows there is constant discussion during therapuetic sessions concerning plaintiff's struggles with Gender Dysphoria. 9. Graphic Rape report: .tnat··belongs::hei:e has been omitted for lack of relevance to this complaint. PLAINTIFF'S PTSD STEMMING FROM THE MAY 2009 GANG-RAPE OF HER PERSON IS IN CHECK, AND SHE IS STABLE ENOUGH FOR SRS. EVEN THE DOCTOR FOR THE DEFENSE STATED THE PTSD IS IN "partial remission". 10. Doctor Jane Chung, in March 2010, shows the SRS talk and GID Therapy were ongoing. 11. Doctor Z. Ahmed, plaintiff's current PCP, has done nothing to oppose SRS, and over the last few years has only confirmed plaintiff is a Male-to Female Transgender, issued Brassieres, and endorsed the orders of all Endocrinologists and Transgender Consultants. 12. Doctor Biggs, did nothing to oppose SRS, and all he's done is issue Bras~ Sieres. 13. Doctors C. Matlen, N. Asselborn, W. Reese, and CDCR Correctional Counselors, making up the members of plaintiff's INTERDISCIPLINARY TREATMENT TEAM stated and, f·:.then; signed the Treatment Plan reports confirming a few basic facts in support of plaintiff's case. (1) IDTT report, dated 3/16/2012, they check the "MEDICAL NECESSITY" box on the form, and CONFIRM plaintiff is being treated for GENDER IDENTITY DISORDER, and recommend retention at Correctional Training Facility (CTF) for continuity of care. (2) Mental Health Treatment Plan report, dated 7/3/2012, shows they all conf±rm, by their signatures on the report, SRS is a prevalentJ~-. topic in relation to plaintiff's case, and that plaintiff is a "BIOLOGICAL FEMALE" by clinical and legal definition and standard.
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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page18 of 25
14. Doctor William Reese, plaintiff's psychotherapist for two years before they reassigned him to another facility, due to this case, wrote a great number of reports on sessions with plaintiff. After writing his initial recommendation for SRS on 11/29/2012, plaintiff asked Dr. Reese the big question: DO YOU STAND BY THAT SRS RECOMMENDATION AS A MEDICAL NECESSITY IN PLAINTIFF'S CASE? His response to that is found in reports on the following dates after the report he authored in reponse to CME Adams• denial of plaintiff's request and appeal for SRS.
Doctor Reese informs the CDCR that SRS is Medically Necessary in plaintiff's case, as well as there is a need for a Name Change, and housing that comes with greater vigilance from staff.
He wrote reports . on December 4th and 13th, 2012, and on March 28, 2013, and on April 4th and 18th, 2013, and May 2nd, lOth, 17th, and 24th, 2013.
As the court can easily surmise from the exhibits, Plaintiff is a heavily documented Transsexual/Intersex person, serving time for a crime unrelated to this complaint. Plaintiff, as a prisoner, has not forfeited her right to medical care and treatment that will save life, cure illness, and alleviate pain.
The court should independently examine plaintiff's body to ascertain precisely what the CDCR has done to her. She is a "Eunuch," and is living life in the painful and frustrating place "BETWEEN" worlds,because the CDCR won't finish what it started over a decade ago;
As for all the Exhibits. The court should factor this thought into their decision making process in this case: All reports, notes, documents, and forms are, state and CDCR legal tender, as they are OFFICIAL STATE RECORDS authored and signed by STATE EMPLOYEES and CONTRACTORS.
ARE NOT ALL DOCTORS AND CONSULTANTS LICENSED; HIRED AND EMPLOYED, BY THE STATE
CONSIDERED I'' "EXPERT ~wr.rH:8ssE's•_j
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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page19 of 25

5. LEGAL CLAIMS/CONTENTIONS Plaintiff has a "Diagnosed" and "Serious" Medical & Mental Condition that requires constant treatment and attention from medical professionals.

Plaintiff must, due to · 14 years of feminizing Endocrine* therapy, _and CASTRATION, maintain current chemical levels or risk becoming sick, and even deformed. Only SRS can allow for a smaller dose of medications to be used in her GID-Transsexual treatment.

Plaintiff, after 14 years of feminizing Endocrine therapy, can never be Oncastrated or Re-masculinized. The female parts and shape of .her body are permanent fixtures! (Note: Plaintiff's testes (testicles) are destroyed!)

Plaintiff, NEEDS, not WANTS SRS. Plaintiff would have preferred being born in the right body in the first place! She was not.

Plaintiff, who was diagnosed, confirmed, validated, and treated by the CDCR, the state of California, for 15-20 years, as a PRE-OPERATIVE TRANSSEXUAL 1is not asking the CDCR, and the state, to finish what outside doctors started, but~ what they started,and are refusing to finish. The CDCR, and its doctors, diagnosed, and, then, created, molded1 and refined _px~intiff into the woman she is today. It is rrCruel ' and Unusual" to bring her to this point and place~ ., condition and state, and all of a sudden say, oops, never mind! In a situation like this there's no taking back what has been done.

The DEFENDANTS violated plaintiff's 8th Amendment right to humane and adequate medical care consistent with her indivdualized medical and mental condition.

The Defendants, by denying .plaintiff SRS,have violated the legal standard that

~ states~all

W

a

r

d

s1,/ o

f

a

state1 or federal

jurisdiction,

shall

be provided health

care for serious and diagnosed medical and mental health conditions which will

save life, cure illness, and alleviate pain.

(*Various Estrogens and Depo ~ provera etc.) -15-

Case3:14-cv-00695-JST Document1 Filed02/14/14 Page20 of 25

The Defendants,having failed to protect plaintiff's rights, have violated
the 14th amendment of the u.s. Constitution. Plaintiff, a prisoner, is still
a citizen, by birthright, of the United States of America. Plaintiff has a right to be treated equally to that of any other citizen, incarcerated or not.

The Defendants _must afford plaintiff, a ward of the state, medically necessary . · health care without delay or hesitation.

The Defendan~s are fully aware that plaintiff is suffering in her current

I

condition=arid state of being. How can they not, for they are the ones that

made her the way she is, physically.

I

~e Defendants are fully aware that plaintiff is, after 14 years of extreme and

I

excessive dosages, dependent upon estrogen for survival. NOTE~ Plaintiff has

been on ~Pre-Operation" dosages of feminizing medication for over a decade. On

the one hand, she can't live without those chemicals now, as she must have some

form of hormone coursing through her body, and on the other hand·, surgery is

where pre-operation dosages end and medications are reduced to a less side- -

effect ·risky amount.

The Defendants have shown "delib~rate indifferenee"in denying SRS to Plaintiff.

They are fully aware that medications, castration, and psychotherapy are only

a ~rtial help to plaintiff's serious and diagnosed medical and mental health

condition. Sedating a problem when there is an available cure violates the

8th amendment because the pain still exists when the medication wears off.

I

In a case known as · Spicer V William~on, 191 N.C. 487, 490, 132 S.E. 291, 293,

I

(1926}, the court stated, "tt is but just that the public be required to care for the prisoner,

I

who cannot by reason of the deprivation of his liberty, care for · him-

self."

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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page21 of 25
In a case known as Kositek v Maloney, 221 F. Supp. 2nd 156, 226, 2511 (D. Mass 2002); Kosilek v Spencer, CA No 00-12455 MLW, (2012/2013), District court Judge Mark Wolf ordered SEX REASSIGNMENT SURGERY for the plaintiff, a life term inmate~in the Mass. Department of Corrections, and the Supreme Court upheld the decision and the surgery is pending. The case is identical to this plaintiff's case and the reason for judgment in favor of plaintiff Kosilek' s case has everything to do with possessing the same documentary evidence as the plaintiff in this case.
I~case known as Johnson v Bowers, 884, F.2d 1053 (8th Circuit 1989), the court
stated,
" ••• classifying a prisoner's surgery as 'ELECTIVE' ••• does not abrogate a prison's duty to promptly provide 'Medically Necessary' treatment to prisoners."
In cases known as Baker v Blanchette 186 F. Supp. 2nd 100, 105 N.4 D. Conn 2001; and Delker v Maass 843 F. Supp 1390, 1399, (D. Or. 1994), the courts stated,
"Calling a surgery 'Elective• simply to avoid doing the surgery is a constitutional violation." .:
In ·. cases known as Lopez v Smith 203 F. 3d 1122, (9th cir. 200); and Brown v. District of Columbia 514 F. 3d 127''. (DC Cir 2008) the courts stated,
"When prison guards or other non-medical officials deny/delay a prescribed treatment that's ·:i cvnstitutional violation."
In cases known as Scott v Ambani 577 F.3d 642 (6th Cir 2009)J Sprullv Gillis 372 F 3d 218 ( 3rd Cir 2004)1 . Meloy v Bachmeier 302 F3d 845, ·849 (8th Cir 2002), the courta stated,
"When a doctor fails to treat all of a prisoner's serious medical needs he violates the law."
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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page22 of 25
In a case known as· Brock V Wright 315 F3d 158 162, the court stated, "A serious medical need is a condition of urgency, one that may produce death, degerteration, or extreme pain."

(Quoting Hathaway v Coughlin 37 F 3d 63, 66 (2nd cir 1994); Nance V Kelly 912 F.2d 605, 607 (2nd cir 1990); and Johnson v Wright 412 F.3d 398, 403, (2nd cir 2005))
In a case known as, Allard v Gomez 9 Fed APPX 793,(9th circuit 200~, the court
stated, "Denying treatment based on a blanket administrative policy rather than an individualized medical evaluation is unconstitutional. "
(See also, Fields v Smith 712 F.supp 2d 830 (E.D. Wise. 2012))
In a case known as Jones v Jo~aaon781, F2d 769, 771, the court stated, "Using budgetary restrictions to justify refusing to do a medically necessary procedure is "deliberate indifference"."
This is also a 9th circuit case, dated 1986.

In a case known as ·~stelle v Gamble 429 US 97 104-105, 97 S.CT 285, 291, 50 L Ed 2d 251, 260, (1976), the court said,

"We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' pros~ribed by the Eighth Amendment. This is true whether the indifference is manifested by prison d~~ors in their re- sponse to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed."

(See also, Jett V Penner 439 F.3d 1091, 1096 (9th Cir 2006); Hill V Dekalb Reg'l

Youth Detention Center 40 F.3d 1176, 1187 (11th Cir 1994), these courts define

"serious medical need".)

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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page23 of 25
In cases known as Estate of Cole by Pardue v FRomm 94 F.3d 254 (7th Cir 1996); and Gregoire v Class 236 F.3d 413 (8th cir 2000), these courts agreed,
"Mental Health concerns can qualify as a serious Medical Need." In closing, How many times must one Transsexual be evaluated and diagnosed before being given SRS? Plaintiff, in the medical records,is constantly referred to as an Inmate-Patient (I/P). What is a patient if not one with a medical and/or mental health illness who can never stop being a patient until made whole and healthy by the proper curing procedures.
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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page24 of 25
6. PRAYER FOR RELIEF
WHEREFORE, plaintiff respectfully prays that this court enter judgment granting plaintiff: A declaration that acts and omissions described herein violated plaintiff's rights under the Constitution and laws of the United States. A preliminary and permanent injunction ordering the defendants to provide plaintiff SEX REASSIGNMENT SURGERY (SRS) forthwith. A jury trial .on all issues triable by jury. Plaintiff's cost in this suit.
Any additional relief this court deems just, proper, and equitable.
DATED:
~~ ~~ -"' ~;~ctf~ Su~itted,
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Case3:14-cv-00695-JST Document1 Filed02/14/14 Page25 of 25

7. VERIFICATION

I have read the foregoing complaint and hereby verify that the matters alleged therein are true, except as to matters alleged on information and belief, and, as to those, I believe them to be true. I certify under the penalty of perjury that the foregoing is true and correct.

9 r Executed at ~ Soledad, California, on I I I /
~Li ~ A/

----~~--T-

Michelle-Lael B. NorsworthyiJeffr
PLAINT

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 Case3:14-cv-00695-JST Document10 Filed07/02/14 Page1 of 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

CHRISTOPHER J. BANKS (Bar No. 218779) HERMAN J. HOYING (Bar. No. 257495) MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, California 94105-1126 Telephone: 415.442.1000 Facsimile: 415.442.1001 cbanks@morganlewis.com hhoying@morganlewis.com
ILONA M. TURNER (Bar No. 256219) JENNIFER ORTHWEIN (Bar No. 255196) SHAWN THOMAS MEERKAMPER (Bar No. 296964) TRANSGENDER LAW CENTER 1629 Telegraph Ave, Suite 400 Oakland, CA 94612 Telephone: 415.865.0176 Facsimile: 877.847.1278 ilona@transgenderlawcenter.org jen@transgenderlawcenter.org shawn@transgenderlawcenter.org
Attorneys for Plaintiff MICHELLE-LAEL B. NORSWORTHY (a/k/a JEFFREY B. NORSWORTHY)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

JEFFREY B. NORSWORTHY (a/k/a MICHELLE-LAEL B. NORSWORTHY),
Plaintiff,
vs.
JEFFREY BEARD; A. NEWTON; A. ADAMS; LORI ZAMORA; RAYMOND J. COFFIN; MARION SPEARMAN; DAVID VAN LEER; JARED LOZANO; and DOES 1-30,
Defendants.

Case No. 3:14-cv-00695-JST FIRST AMENDED COMPLAINT

FIRST AMENDED COMPLAINT 3:14-cv-00695-JST

Case3:14-cv-00695-JST Document10 Filed07/02/14 Page2 of 26

1

Plaintiff Michelle-Lael B. Norsworthy (a/k/a Jeffrey B. Norsworthy) (“Plaintiff” or

2 “Norsworthy”) for her Complaint against Defendants Jeffrey Beard, A. Newton, A. Adams, Lori

3 Zamora, Raymond J. Coffin, Marion Spearman, David Van Leer, Jared Lozano and Does 1-30,

4 alleges as follows:

5

NATURE OF THIS ACTION

6

1. Plaintiff brings this civil rights action under 42 U.S.C. § 1983 to seek prospective

7 injunctive relief based upon Defendants’ failure to provide Plaintiff with medically necessary

8 surgery in violation of the Eighth and Fourteenth Amendments to the United States Constitution

9 and failure to allow Plaintiff to pursue a legal name change also in violation of the Eighth and

10 Fourteenth Amendments.

11

PARTIES

12

2. Plaintiff Michelle-Lael Bryanna Norsworthy is a citizen of California currently

13 housed at Mule Creek State Prison in Ione, California by the California Department of

14 Corrections and Rehabilitation (“CDCR”). Plaintiff has been incarcerated under the custody of

15 the CDCR since on or around April 15, 1987. Plaintiff is a transsexual woman – an individual

16 whose gender identity is different from the male gender assigned to her at birth, who requires

17 medical treatment to better conform her body to that gender identity. She experiences severe

18 dysphoria and distress resulting from the incongruence between her male physical features and

19 her female gender identity. Plaintiff has been living as a female since the mid-1990s and has

20 received feminizing hormone therapy and chemical castration treatments since 2000. As a result,

21 plaintiff is a biological female based upon her estrogen and testosterone levels, yet Defendants

22 have refused to allow Plaintiff to obtain medically necessary surgery to further her treatment.

23

3. Upon information and belief, Defendant Dr. Jeffrey Beard (“Beard”) is a resident

24 of California. Since his appointment by Governor Edmond G. Brown, Jr. on December 27, 2012,

25 Beard has served as Secretary of the CDCR. In his position as Secretary, Beard has ultimate

26 responsibility and authority for the operation of the CDCR, including the administration of health

27 care and the execution of policies governing medical care and name changes.

28

4. Upon information and belief, Defendant A. Newton (“Newton”) is a resident of

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1 California. Upon information and belief, at all relevant times, Newton was an agent or employee

2 of the CDCR with the title “SRN II” and was charged with evaluating certain appeals of prisoner

3 health care issues with the authority to grant or deny the relief requested in the appeals. Upon

4 information and belief, A. Newton is currently employed by the CDCR at Salinas Valley State

5 Prison in Soledad, California.

6

5. Upon information and belief, Defendant A. Adams (“Adams”) is a resident of

7 California. Upon information and belief, at all relevant times, Adams was an agent or employee

8 of the CDCR with the title “CME” and was charged with evaluating certain second level appeals

9 of prisoner health care issues with the authority to grant or deny the relief requested in the

10 appeals. Upon information and belief, A. Adams is currently employed by the CDCR at the

11 Correctional Training Facility in Soledad, California.

12

6. Upon information and belief, Defendant Lori Zamora (“Zamora”) is a resident of

13 California. Upon information and belief, at all relevant times, Zamora was Chief of the CDCR

14 Office of Third Level Appeals-Health Care with the authority to grant or deny the relief requested

15 in the appeals.

16

7. Upon information and belief, Defendant Raymond J. Coffin (“Coffin”) is a

17 resident of California. Upon information and belief, at all relevant times, Coffin was the Chief

18 Psychologist at the California Substance Abuse Treatment Facility and State Prison in Corcoran,

19 California and an employee of the CDCR charged with evaluating the merits of certain inmates’

20 claims of inadequate medical care.

21

8. Upon information and belief, Defendant Marion Spearman (“Spearman”) is a

22 resident of California. At all relevant times, Spearman was the Warden for the California

23 Correctional Training Facility located in Soledad, California, at which facility Plaintiff was

24 housed when the CDCR decisions at issue here were made. As warden, Spearman is responsible

25 for reviewing and approving or denying an inmate’s request for a legal name change.

26

9. Upon information and belief, Defendant David Van Leer (“Van Leer”) is a

27 resident of California. Upon information and belief, at all relevant times, Van Leer was an

28

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1 Appeals Examiner for the CDCR with responsibility for reviewing and approving or denying the

2 appeal of the denial of an inmate’s request for a legal name change.

3

10. Upon information and belief, Defendant Jared Lozano (“Lozano”) is a resident of

4 California. Upon information and belief at all relevant times, Lozano was the Chief of the Office

5 of Appeals for the CDCR with responsibility, among other things, for reviewing and approving or

6 denying the appeal of the denial of an inmate’s request for a legal name change. Upon

7 information and belief, Lozano is currently employed by the CDCR at the California Health Care

8 Facility in Stockton, California.

9

11. Does 1-30 are unnamed agents or employees of CDCR that participated in the

10 decision to deny Plaintiff medical care and/or the right for Plaintiff to seek a legal name change.

11

12. Plaintiff reserves the right, consistent with applicable rules and orders, to amend

12 this Complaint to include other officials should it become apparent that those officials’ inclusion

13 is necessary to grant the prospective injunctive relief requested herein.

14

JURISDICTION

15

13. This court has jurisdiction over the claims pursuant to 42 U.S.C. §§ 1331 and

16 1343(a)(3).

17

14. Venue is appropriate in this judicial district pursuant to 42 U.S.C. § 1391(b)(2), as

18 a substantial part of the events giving rise to the claim occurred in the Northern District of

19 California.

20

FACTUAL BACKGROUND

21

I. 22

PLAINTIFF’S PERSONAL HISTORY WITH GENDER DYSPHORIA

15. Plaintiff was born in 1964 in Detroit, Michigan. While Plaintiff was still an infant, 23

her parents divorced and Plaintiff was sent to live with her grandmother. Approximately ten 24

years later, Plaintiff’s mother retook custody of Plaintiff and moved the family to the West Coast, 25

eventually settling in California. Throughout childhood and adolescence, Plaintiff never felt 26

comfortable in the male gender assigned to her at birth. Plaintiff attempted to overcompensate for 27

feeling weak and less than a man as a result of Plaintiff’s feminine characteristics and gender 28

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1 identity confusion by acting out aggressively, owning guns and turning to alcohol. At sixteen,

2 Plaintiff dropped out of high school and moved to Hollywood, California, eventually working as

3 a police informant in her late teens and joining the military.

4

16. On December 4, 1985, Plaintiff encountered a male acquaintance at a bar in

5 Fullerton, California with whom Plaintiff had a contentious history due to Plaintiff’s work as an

6 informant. Both intoxicated, an argument began in the bar and Plaintiff left the bar to go to

7 Plaintiff’s car. The acquaintance followed Plaintiff to the car, and Plaintiff retrieved a loaded

8 rifle from the car. Plaintiff fired a warning shot but the acquaintance reached for the gun and a

9 struggle ensued. During the struggle, the acquaintance was shot in the neck. Plaintiff

10 immediately attempted to administer first aid and, upon police arriving, stated “I shot my friend.”

11 The acquaintance was taken to the hospital, but died a few days later as the result of a blood clot

12 from the gunshot wound. Plaintiff was convicted of second degree murder and sentenced to

13 seventeen years to life. Plaintiff has been under the custody of CDCR since on or about April 15,

14 1987 and currently is housed at Mule Creek State Prison in Ione, California.

15

17. Since at least adolescence Plaintiff has experienced significant distress and anxiety

16 as a result of the discrepancy between the male sex assigned to her at birth and her own female

17 gender identity. In the 1990s, Plaintiff’s feelings and understandings surrounding her gender

18 began to consolidate and Plaintiff came to understand and accept that she is a transsexual woman.

19

18. In 1999, Plaintiff underwent several weeks of testing by a psychologist, Dr. Carl

20 Viesti, at a CDCR facility. “The results of all test instruments were consistent with the profile of

21 a transsexual” and Plaintiff was diagnosed with gender identity disorder – “the only DSM-IV

22 diagnosis available for this condition.” Subsequent to Plaintiff’s initial diagnosis, the American

23 Psychiatric Association published a revised version of its Diagnostic and Statistical Manual of

24 Mental Disorders (“DSM-V”) in 2013, which replaced the “gender identity disorder” diagnosis

25 with “gender dysphoria.” The DSM-V characterizes the diagnosis of gender dysphoria as

26 follows: “[i]ndividuals with gender dysphoria have a marked incongruence between the gender

27 they have been assigned to (usually at birth, referred to as natal gender) and their

28 experienced/expressed gender.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of

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1 Mental Disorders 453 (5th ed. 2013) (“DSM-V”) In addition to this marked incongruence,

2 “[t]here must also be evidence of distress about this incongruence.” Id. Hereinafter this

3 Complaint will generally refer to the condition as gender dysphoria even when referring to

4 diagnoses prior to 2013.

5

19. Upon receiving this diagnosis in early 2000, it was determined that it was

6 medically necessary for Plaintiff to receive treatment for her condition that would help to bring

7 her body into greater conformity with her gender identity. Toward this end, Plaintiff was

8 prescribed feminizing hormone therapy and injections of a progestin (Depo-Prevera) to

9 accomplish chemical castration. Plaintiff has received these treatments continually from January

10 2000 through the present, with periodic dose adjustments as necessary.

11

20. As a result of Plaintiff’s feminizing hormone therapy and chemical castration

12 treatments over the past fourteen years, Plaintiff’s physical features and voice have feminized.

13 Plaintiff has been living as a female since the 1990s and her medical records repeatedly describe

14 her as a “biological female” based upon her presentation, her estrogen and testosterone levels and

15 the chemical castration. Her prison records note that she “tend[s] to move and gesture in a

16 feminine manner” and describe her as “a pleasant-looking woman, slender and coiffed in a pony

17 tail” who “walk[s] the yard . . . as a woman.”

18

21. The end goal of Plaintiff’s treatment has always been to bring her primary and

19 secondary sex characteristics into conformity with her female gender identity. The only way this

20 can be accomplished for Plaintiff is through sex reassignment surgery (“SRS”), also known as

21 gender confirming surgery, which involves, inter alia, reconstructing the genitalia to conform in

22 appearance and function to that typically associated with the person’s gender identity. Plaintiff’s

23 records from the 1990s through the present reflect that she considered herself a transsexual,

24 suffered severe distress as a result of her condition and desired to obtain a “sex change.” Her

25 medical records consistently reflect that she was “undergoing a sex change” and in the “process”

26 of changing her sex, with the final step of that process being SRS.

27

22. In addition to treating the severe mental anguish Plaintiff experiences as a result of

28 her gender dysphoria, SRS also is medically necessary so that Plaintiff may reduce the high

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1 dosages of feminizing hormones and Depo-Provera that she receives, which Defendants have

2 repeatedly acknowledged are medically necessary treatment for Plaintiff’s gender dysphoria.

3 Large intake of these hormones over the course of many years has been attributed to increased

4 risk for heart and vascular conditions and certain types of cancer. Eliminating these unnecessary

5 increased risks is particularly essential in Plaintiff’s case, because she contracted Hepatitis C after

6 being gang raped while in CDCR custody in 2009 and thus already has significant risk factors and

7 would face significant, heightened risks if she were to develop one of these conditions. SRS

8 would entirely eliminate the need for Plaintiff to take Depo-Provera and would reduce by

9 approximately 2/3 the required feminizing hormone dosage.

10

23. In 2012, Plaintiff’s treating psychologist, Dr. Reese, expressly prescribed SRS as

11 medically necessary for Plaintiff, finding that “it is clear that clinical medical necessity suggest

12 and mandate a sex change medical operation before normal mental health can be achieved for this

13 female patient.” Dr. Reese repeatedly renewed his opinion with regard to the necessity of SRS

14 for the following six months, at which time Plaintiff was removed from his care by the CDCR.

15 II. SRS IS WIDELY RECOGNIZED AS MEDICALLY NECESSARY TREATMENT

16

FOR GENDER DYSPHORIA

17

24. Dr. Reese’s finding that SRS was a medically necessary treatment for Plaintiff’s

18 gender dysphoria is supported by leading medical research and standards of care. Gender

19 dysphoria is recognized as a serious medical condition, with mental and physical manifestations.

20 SRS has widely been accepted as genuine, necessary treatment for severe cases of gender

21 dysphoria, including by the federal courts that have addressed the issue.

22

25. Gender dysphoria is not just a mild discomfort with one’s sex assigned at birth;

23 rather, it is a profound disturbance such that the lives of some transsexual people revolve only

24 around performing activities to lessen their gender distress. DSM-V 453-454. Gender dysphoria

25 often comes with severe mental anguish and the inability to function normally at school, at work,

26 or in a relationship. Id. at 457-58. Moreover, those suffering from gender dysphoria often

27 become socially ostracized and stigmatized, which further diminishes self-esteem. Id. Although

28 gender dysphoria on its own is not considered a life-threatening illness, when not properly

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1 treated, it is often associated with dangerous related conditions such as depression, substance

2 related disorders, self-mutilation, and suicide. Id. at 458-59. Without treatment, the path for

3 those suffering from gender dysphoria can be torturous, as evidenced by shockingly

4 high suicide rates: 45 percent for those aged 18-44, in comparison to the national average of 1.6

5 percent, according to the 2009 National Transgender Discrimination Survey.

6

26. The World Professional Association for Transgender Health (“WPATH”) is a non-

7 profit, multidisciplinary professional association dedicated to understanding and treating gender

8 dysphoria. The organization seeks to promote evidence-based care, education, research,

9 advocacy, public policy, and respect for transgender health. WPATH publishes the Standards of

10 Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (“Standards

11 of Care”), which are based upon the best available science and expert professional consensus and

12 articulate clinical guidance for health professionals to assist with safe and effective care that

13 maximizes the patients’ overall health and psychological well-being. The current version of the

14 Standards of Care—Version 7—was released in September 2011 following a five-year process in

15 which eighteen gender dysphoria specialists submitted peer-reviewed papers to help identify the

16 most effective treatments for gender dysphoria. Eli Coleman et al., Standards of Care for the

17 Health of Transsexual, Transgender, and Gender-Nonconforming People, Version 7, 13 INT’L J.

18 OF TRANGENDERISM, 165 (2011) (“Standards of Care”), attached hereto as Exhibit 1. WPATH’s

19 Standards of Care are the prevailing standards for treating gender dysphoria. Mental health

20 providers and medical professionals rely heavily on the Standards of Care in determining the best

21 course of treatment for their patients.

22

27. The Standards of Care make clear that SRS is an “essential and medically

23 necessary” treatment for gender dysphoria in certain cases. Hormone therapy alone for those

24 individuals is not sufficient. As the Standards of Care explain:

25

While many transsexual, transgender, and gender-nonconforming individuals find

comfort with their gender identity, role, and expression without surgery, for many

26

others surgery is essential and medically necessary to alleviate their gender

dysphoria. For the latter group, relief from gender dysphoria cannot be achieved

27

without modification of their primary and/or secondary sex characteristics to

establish greater congruence with their gender identity.

28

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1

28. Under the Standards of Care, the criteria for vaginoplasty (surgical construction of

2 a vagina) in male-to-female transsexuals include “[p]ersistent, well-documented gender

3 dysphoria,” “[twelve] continuous months of hormone therapy as appropriate to the patient’s

4 gender goals,” and “[twelve] continuous months of living in a gender role that is congruent with

5 their gender identity.” Id. at 60. The twelve-month requirement that an SRS candidate live in an

6 identity-congruent gender role is “based on expert clinical consensus that this experience provides

7 ample opportunity for patients to experience and socially adjust in their desired gender role,

8 before undergoing irreversible surgery.” Id. It is also recommended that patients seeking SRS

9 have regular visits with a mental health professional or other medical professional.

10

29. The Standards of Care apply equally to inmates and non-inmates, expressly noting

11 that “[h]ealth care for transsexual, transgender, and gender-nonconforming people living in an

12 institutional environment should mirror that which would be available to them if they were living

13 in a non-institutional setting within the same community. . . . All elements of assessment and

14 treatment as described in the SOC can be provided to people living in institutions. Access to

15 these medically necessary treatments should not be denied on the basis of institutionalization or

16 housing arrangements.” Id. at 206-07.

17

30. In California, both Medicaid and private health insurance plans offer coverage for

18 health care treatment related to gender transition, including SRS.

19

31. Medical studies have shown the effectiveness of SRS as a treatment for gender

20 dysphoria. Modern SRS has been practiced for more than half a century and is the internationally

21 recognized treatment to treat gender dysphoria in transsexual persons. A thorough analysis of

22 available research conducted in 1990 concluded that SRS is an effective treatment for gender

23 dysphoria because it drastically reduced the distress of patients with gender dysphoria. In 2007 a

24 review of multiple studies on SRS was conducted. Special attention was paid to the effects of

25 SRS on gender dysphoria, sexuality, and regret. The researchers concluded that SRS is an

26 effective treatment for gender dysphoria and the only treatment that has been evaluated

27 empirically with large clinical case series.

28

32. A 2009 study aimed at evaluating the results of surgical reassignment of genitalia

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1 in transgender women concluded that surgical conversion of the genitalia is a safe and important

2 phase of the treatment of transgender women.

3

33. In a study published in 2010 on outcomes of individuals following sex

4 reassignment almost all patients were satisfied with the sex reassignment and 86% were assessed

5 by clinicians at follow-up as stable or improved in global functioning.

6

34. Another study conducted in 2010 with 247 transgender women indicated surgical

7 treatments are associated with improved mental health-related quality of life.

8

35. Nearly every study to date has concluded SRS is an effective treatment for gender

9 dysphoria.

10

36. Research also has confirmed that hormone therapy alone is insufficient to treat

11 certain cases of gender dysphoria. For example, one study compared gender dysphoria patient

12 groups before treatment, during hormone therapy and after SRS and showed that a bigger

13 improvement occurs after SRS than after simply changing the gender role.

14 III. DEFENDANTS DENIED PLAINTIFF MEDICALLY NECESSARY SURGERY

15

37. On September 16, 2012, Plaintiff filed a Patient/Inmate Health Care Appeal

16 seeking SRS as a medically necessary treatment for her gender dysphoria, because the extensive

17 feminizing hormone therapy and chemical castration treatments she had received over the course

18 of the prior thirteen years were unsuccessful in reducing the extreme distress Plaintiff suffers as a

19 result of her gender dysphoria. Plaintiff ultimately was denied SRS at three levels of review,

20 despite the explicit finding by Dr. Reese – Plaintiff’s treating mental health care professional –

21 that SRS is medically necessary to treat Plaintiff’s gender dysphoria and Plaintiff’s well-

22 documented mental anguish – including anxiety and depression – resulting from being forced to

23 retain her male genitalia.

24

38. The first level of review was performed by Defendant Newton. Defendant Newton

25 denied Plaintiff’s appeal for SRS on or around September 28, 2012 despite Plaintiff’s well-

26 documented case of serious gender dysphoria and the resulting mental anguish, including anxiety

27 and depression that only SRS would effectively treat. Plaintiff’s medical records make clear that

28 Plaintiff had been living as a female and receiving feminizing hormone therapy and chemical

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1 castration treatments for over twelve years but still experienced significant distress and anxiety as

2 a result of the discrepancy between her remaining male sex characteristics, including non-

3 functioning male genitalia, and her female gender identity. In fact, Plaintiff’s mental anguish is

4 intensified by the fact – repeatedly established in her medical records – that Plaintiff is a

5 “biological female” based upon her hormone levels and chemical castration, yet is being forced to

6 live every minute of every day in a body with male genitalia that does not match her biology or

7 deeply rooted identity. It thus was clear under prevailing Standards of Care and medical research

8 that SRS was medically necessary and that Plaintiff fully met the requirements for sex

9 reassignment surgery.

10

39. Defendant Newton thus was fully aware that Plaintiff faces a serious medical need

11 for SRS in order to treat her diagnosed gender dysphoria but was deliberately indifferent to

12 Plaintiff’s medical need for SRS and denied her appeal. Defendant Newton failed to take any

13 reasonable measures to address the ongoing mental anguish that Plaintiff suffers as a result of her

14 gender dysphoria, which is not fully addressed by the feminizing hormone therapy and chemical

15 castration treatments that Plaintiff has been receiving for the past 14 years. Defendant Newton’s

16 denial of Plaintiff’s request for medically necessary SRS was unreasonable and manifested a

17 wanton disregard for appropriate treatment of Plaintiff’s gender dysphoria based upon her history

18 documented in her medical records and the prudent professional standards embodied by the

19 WPATH Standards of Care. Defendant Newton’s deliberate indifference is further evidenced by

20 unreasonable reliance upon Newton’s own non-specialized conclusions rather than those of a

21 qualified, experienced medical provider.

22

40. Following Defendant Newton’s denial of Plaintiff’s request, Plaintiff appealed to

23 the second level of review on October 1, 2012. In appealing to the second level of review,

24 Plaintiff explained that she “suffers greatly w/out gender reassignment surgery,” and indicated

25 that her suffering would be substantially relieved through SRS. Plaintiff’s second level appeal

26 was denied by Defendant Adams on or around November 27, 2012.

27

41. In the denial, Defendant Adams writes that “[o]ver the past year and a half, neither

28 your mental health [provider] nor your [Primary Care Provider] has recommended SRS as a

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1 treatment for any of your medical conditions,” and while “[Plaintiff’s] mental health team is well

2 aware [of her] needs,” “[t]hey have not recommended SRS as a treatment which would help any

3 of [Plaintiff’s] mental health conditions.” Notably, Defendant Adams’ denial of the appeal does

4 not state that either Plaintiff’s mental health provider or primary care provider opposed SRS or

5 that Defendant Adams ever expressly asked Plaintiff’s mental health provider or primary care

6 physician if Plaintiff needed SRS. Moreover, there is no indication that Plaintiff’s request for

7 SRS was ever reviewed by a health care provider with sufficient experience or knowledge

8 regarding gender dysphoria.

9

42. Instead, Defendant Adams relies only on Adams’ own, non-specialized conclusion

10 that SRS is not necessary solely because the medical records purportedly did not explicitly state

11 that SRS was recommended. Had Defendant Adams inquired, Adams would have discovered that

12 Plaintiff’s mental health provider did, in fact, recommend SRS as medically necessary treatment

13 for Plaintiff’s gender dysphoria. Indeed, only two days later, on November 29, 2012, Dr.

14 Reese—Plaintiff’s treating mental health care professional—specifically prescribed SRS as

15 medically necessary to treat Plaintiff’s gender dysphoria, writing that “[a]s a female person, and

16 one for the last 13 years, with the diagnoses given and awarded 13 years ago, it is clear that

17 clinical necessity suggest and mandate a sex change medical operation before normal mental

18 health can be achieved for this female patient.”

19

43. Regardless, even if none of Plaintiff’s health care providers explicitly included in

20 their reports a recommendation for SRS, Plaintiff’s medical records make clear that Plaintiff had

21 been living as a female and receiving feminizing hormone therapy and chemical castration

22 treatments for over twelve years but still experienced (and continues to experience) significant

23 distress and anxiety as a result of the discrepancy between her remaining male sex characteristics,

24 including non-functioning male genitalia, and her female gender identity and thus that SRS is

25 medically necessary treatment for her. Defendant Adams was fully aware that Plaintiff faces a

26 serious medical need for SRS in order to treat her diagnosed gender dysphoria but was

27 deliberately indifferent to Plaintiff’s medical need for SRS when Adams denied Plaintiff’s appeal.

28 Defendant Adams failed to take any reasonable measures to address the ongoing mental anguish

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1 that Plaintiff suffers as a result of her gender dysphoria, which is not fully addressed by the

2 feminizing hormone therapy and chemical castration treatments that Plaintiff has been receiving

3 for the past 14 years. Defendant Adams’ denial of Plaintiff’s request for medically necessary

4 SRS was unreasonable and manifested a wanton disregard for appropriate treatment of Plaintiff’s

5 gender dysphoria based upon her history documented in her medical records and the prudent

6 professional standards embodied by the WPATH Standards of Care. Defendant Adams’

7 deliberate indifference is further evidenced by unreasonable reliance upon Adams’ own non-

8 specialized conclusions rather than those of a qualified, experienced medical provider.

9

44. Despite Dr. Reese’s clear prescription of SRS as treatment for Plaintiff’s gender

10 dysphoria, no official moved to schedule or otherwise provide SRS to Plaintiff. Plaintiff

11 therefore appealed to the third level of review on December 4, 2012.

12

45. In response to Plaintiff’s third appeal, Defendant Coffin was assigned to create a

13 report. Defendant Coffin interviewed Plaintiff for the report on or around July 1, 2013 and he

14 submitted the report on or around October 10, 2013. Upon information and belief, Defendant

15 Coffin has no significant experience or training in the treatment of transsexual patients and is not

16 qualified to make a determination with regard to the medical necessity of SRS.

17

46. In his report, Defendant Coffin reconfirms Plaintiff’s diagnosis of gender

18 dysphoria, agreeing that she legitimately suffers as a result of the discrepancy between the gender

19 assigned to her at birth and her own female gender identity and that Plaintiff does not identify as

20 female for any perceived cultural advantage, or to otherwise reap any benefits from a female

21 classification. Defendant Coffin confirms that Plaintiff had an “extended period of gender

22 identity confusion” which was consolidated in the mid-1990s, and her behavior “appears to

23 confirm the accuracy of [Dr. Carl Viesti’s 2000] diagnosis [of gender dysphoria].” Defendant

24 Coffin also acknowledges that, despite 14 years of feminizing hormone therapy and chemical

25 castration, Plaintiff’s gender dysphoria continues to “create distress for [Plaintiff] related to [her]

26 gender identity,” including living a “miserable existence” because Plaintiff is “not happy with

27 who [she] is.”

28

47. Defendant Coffin even acknowledges that Plaintiff likely meets the requirements

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1 for SRS, yet self-servingly concludes: “While it appears likely that [Norsworthy’s] medical

2 consultants would approve [her] as a candidate for SRS as an elective procedure, in the opinion of

3 this evaluator the available documentation does not establish SRS as medically necessary at this

4 time.” Defendant Coffin fails to explain why Plaintiff’s treating psychotherapist Dr. Reese’s

5 findings that SRS is medically necessary should not be followed, other than to state that “the

6 available evidence does not clearly document that the necessary recommendations have been

7 made or approved consistent with Department policy,” as “[t]here does not appear to be evidence

8 on the record that the gender and endocrinology specialists involved in [Plaintiff’s] care have

9 made a specific recommendation regarding SRS.” Thus, rather than making an assessment of

10 what treatment actually is medically necessary for Plaintiff based upon her medical records, his

11 own evaluation of Plaintiff, and standards of care in the field, Defendant Coffin solely bases his

12 recommendation on his self-serving conclusion that “the available evidence” does not explicitly

13 include a recommendation for SRS from “gender and endocrinology specialists.”

14

48. Notably, similar to Defendant Adams, Defendant Coffin does not state that any

15 gender or endocrinology specialist ever recommended against SRS or that he actually ever even

16 consulted with a gender or endocrinology specialist regarding Plaintiff’s treatment. Nor does

17 Defendant Coffin offer any explanation for why the recommendation of a gender or

18 endocrinology specialist is required or why, if required, a gender or endocrinology specialist was

19 not charged with providing the report for the third level of review.

20

49. Under these circumstances, it is clear that the rationale for Defendant Coffin’s

21 recommendation against SRS was merely a pretext. Plaintiff’s medical records make clear that

22 Plaintiff had been living as a female and receiving feminizing hormone therapy and chemical

23 castration treatments for over 13 years but still experienced (and continues to experience)

24 significant distress and anxiety as a result of the discrepancy between her remaining male sex

25 characteristics, including non-functioning male genitalia, and her female gender identity and thus

26 that SRS is medically necessary treatment. Defendant Coffin thus was fully aware that Plaintiff

27 faces a serious medical need for SRS in order to treat her diagnosed gender dysphoria but was

28 deliberately indifferent to Plaintiff’s medical need for SRS in recommending against SRS.

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1 Defendant Coffin failed to take any reasonable measures to address the ongoing mental anguish

2 that Plaintiff suffers as a result of her gender dysphoria, which he acknowledged is not fully

3 addressed by the feminizing hormone therapy and chemical castration treatments that Plaintiff has

4 been receiving for the past 14 years. Defendant Coffin’s denial of Plaintiff’s request for

5 medically necessary SRS was unreasonable and manifested a wanton disregard for appropriate

6 treatment of Plaintiff’s gender dysphoria based upon her history documented in her medical

7 records and the prudent professional standards embodied by the WPATH Standards of Care.

8 Defendant Coffin’s deliberate indifference is further evidenced by Coffin’s unreasonable reliance

9 upon his own non-specialized conclusions rather than those of a qualified, experienced medical

10 provider.

11

50. On October 25, 2013, based upon Defendant Coffin’s recommendation Plaintiff’s

12 third and final appeal was denied by Defendant Zamora, Chief of the CDCR Office of Third

13 Level Appeals-Health Care because “[Plaintiff’s] current providers have documented the

14 determination that the subject surgery is not medically necessary for [her],” and Plaintiff’s

15 “appeal of that determination does not include a showing that the subject surgery is medically

16 necessary.” Defendant Zamora’s decision is wholly unsupported by Plaintiff’s medical records.

17 Defendant Zamora failed to address Dr. Reese’s opinion that SRS was medically necessary in the

18 denial, failed to obtain the recommendation of any other qualified health care provider, and failed

19 to offer any measures to address Plaintiff’s ongoing mental anguish resulting from her gender

20 dysphoria.

21

51. Defendant Zamora was fully aware that Plaintiff faces a serious medical need for

22 SRS in order to treat her diagnosed gender dysphoria but was deliberately indifferent to Plaintiff’s

23 medical need for SRS in denying her SRS. Defendant Zamora failed to take any reasonable

24 measures to address the ongoing mental anguish that Plaintiff suffers as a result of her gender

25 dysphoria, which Zamora acknowledged is not fully addressed by the feminizing hormone

26 therapy and chemical castration treatments that Plaintiff has been receiving for the past 14 years.

27 Defendant Zamora’s denial of Plaintiff’s request for medically necessary SRS was unreasonable

28 and manifested a wanton disregard for appropriate treatment of Plaintiff’s gender dysphoria based

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1 upon her history documented in her medical records and the prudent professional standards

2 embodied by the WPATH Standards of Care. Defendant Zamora’s deliberate indifference is

3 further evidenced by Zamora’s unreasonable reliance upon the conclusions of non-specialized,

4 inexperienced health care providers rather than those of a qualified, experienced health care

5 professional.

6

52. Defendant Zamora’s denial exhausted Plaintiff’s administrative remedies within

7 the CDCR.

8

53. Defendant Beard has ultimate authority for whether or not Plaintiff is provided

9 SRS and for the implementation of CDCR policy with regard to medically necessary medical

10 treatment. Defendant Beard has endorsed and affirmed the discriminatory and deliberately

11 indifferent conduct of Defendants Newton, Adams, Coffin and Zamora by failing to intercede and

12 grant Plaintiff medically necessary SRS and by failing to ensure that CDCR’s policies

13 surrounding the provision of medical treatment are implemented in a fair and non-discriminatory

14 manner and/or that inmates receive medically necessary treatment for gender dysphoria, including

15 SRS in appropriate cases. Defendant Beard’s deliberate indifference is further evidenced by

16 Beard’s unreasonable reliance upon the conclusions of non-specialized, inexperienced health care

17 providers rather than those of a qualified, experienced health care professional.

18 IV. CALIFORNIA CODE OF REGULATIONS TITLE 15, SECTION 3350.1 IS

19

DISCRIMINATORY AND DOES NOT IMMUNIZE DEFENDANTS’

20

UNCONSTITUTIONAL DENIAL OF SRS

21

54. Defendants’ refusal to provide SRS to Plaintiff is not justified by California Code

22 of Regulations (“C.C.R.”) Title 15, Section 3350.1, which identifies vaginoplasty as a “[s]urgery

23 not medically necessary [that] shall not be provided” except for cystocele or rectocele (conditions

24 involving damages to the vaginal wall) unless the patient’s attending physician prescribes the

25 treatment and “[t]he service is approved by the medical authorization review committee and the

26 health care review committee.” 15 C.C.R. § 3350.1(b)(2); 15 C.C.R. § 3350.1(d).

27

55. As a preliminary matter, this regulatory scheme is facially discriminatory against

28 transsexual women inmates by making vaginoplasty de facto unavailable for such inmates but

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1 allowing the treatment for non-transgender female inmates with certain conditions such as

2 cystocele. The regulation singles out inmates assigned male at birth, and transgender women

3 inmates in particular, by placing onerous, significant barriers to obtaining vaginoplasty even

4 when, as here, it is medically necessary.

5

56. Moreover, the regulation was applied by each of the Defendants in a manner that

6 discriminated against Plaintiff on the basis of her status as an inmate assigned male at birth, and a

7 transsexual woman in particular. Each of the Defendants failed to give proper consideration to

8 whether or not SRS was a medical necessity for the treatment of Plaintiff’s gender dysphoria and

9 based their conclusions on different factors and processes than they would have in determining

10 the appeal of a non-transgender inmate’s request for medically-necessary surgery. Each

11 Defendant regarded and applied the regulation as a de facto bar to Plaintiff’s request for SRS –

12 and vaginoplasty in particular – solely as the result of Plaintiff being assigned male at birth, and

13 status as a transgender woman in particular.

14

57. Finally, each of the Defendants discriminated against Plaintiff and manifested

15 deliberate indifference to the mental anguish and suffering still resulting from her gender

16 dysphoria by failing to prescribe SRS and refer Plaintiff’s SRS for approval by the medical

17 authorization review committee and the health care review committee pursuant to 15 C.C.R. §

18 3350.1(d).

19

58. Plaintiff continues to suffer deep anxiety and distress as a result of the discrepancy

20 between her female gender identity and her remaining male sex characteristics, including non-

21 functioning male genitalia. Plaintiff’s mental anguish is intensified by the fact – repeatedly

22 established in her medical records – that Plaintiff is a biological female based upon her hormone

23 levels and chemical castration, yet is being forced to live every minute of every day in a body

24 with male genitalia that does not match her biology.

25 V. PLAINTIFF’S REQUEST FOR A NAME CHANGE

26

59. Plaintiff identifies and has been living as a woman since the 1990s. As part of her

27 treatment for gender dysphoria and to militate against the effects caused by the discrepancy

28 between Plaintiff’s female gender identity and the male sex assigned to her at birth, Plaintiff

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1 changed her name from the normatively masculine Jeffrey Bryan Norsworthy, to the normatively

2 feminine name Michelle-Lael Bryanna Norsworthy. Plaintiff has been using the name “Michelle”

3 – in all settings in which she had the ability to do so – since the mid-1990s.

4

60. Use of the name “Jeffrey” is a painful reminder to Plaintiff of the discrepancy

5 between Plaintiff’s female gender identity and the male sex assigned to her at birth and causes

6 Plaintiff severe distress and anxiety each time it is used. WPATH’s Standards of Care recognize

7 “changes in name and gender markers on identity documents” as an important part of the

8 treatment for gender dysphoria. Standards of Care at 171-72. In a statement issued by the

9 WPATH Board of Directors in 2008, they made it clear that SRS “is not required for social

10 gender recognition, and such surgery should not be a prerequisite for document or record

11 changes.” Instead, “[c]hanges to documentation are important aids to social functioning, and are

12 a necessary component of the pre-surgical process; delay of document changes may have a

13 deleterious impact on a patient's social integration and personal safety.”

14

61. Consistent with the Standards of Care, Plaintiff’s treating doctors generally refer to

15 her as “Michelle” not “Jeffrey.”

16

62. With very few exceptions, California law permits any person to obtain a change of

17 name from a California Superior Court. Cal. Code Civ. Proc. §§ 1275, 1279.5. For a transgender

18 person seeking a change of name to better conform the name to the person’s gender identity, the

19 law provides that a name change petition must be granted without the necessity of a hearing if no

20 opposition is raised.

21

63. Persons under the supervision of CDCR, however, are required to obtain the

22 permission of the warden of the facility in which he or she is housed in order to submit

23 documentation to the Superior Court for approval of a requested name change. Cal. Code Civ.

24 Proc. § 1279.5.

25

64. In furtherance of her treatment for gender dysphoria and to minimize the use of the

26 name “Jeffrey” and the pain and distress associated therewith, Plaintiff submitted a request for

27 approval for a legal name change to the warden of the CDCR facility to which she was assigned

28 at the time – Defendant Spearman of the Correctional Training Facility. However, her request for

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1 a name change was denied.

2

65. The formal appeal at the first level was bypassed by the appeals coordinator and

3 Plaintiff’s appeal was accepted at the second level of review. Defendant Spearman denied the

4 appeal, however, because although Spearman “acknowledge[d] the appellant is in the process of

5 ‘trans-sexualism’” he determined “that it would not be appropriate to approve a name change to

6 the feminine until the appellant is determined to meet the criteria to be assigned to an institution

7 for female offenders.” Defendant Spearman presented no justification or reasoning for this

8 position.

9

66. Defendant Spearman’s decision explicitly discriminates against Plaintiff on the

10 basis of her gender – refusing to allow Plaintiff a feminine name because Plaintiff was assigned

11 the male sex at birth and has not yet been provided medically necessary SRS treatment.

12 Defendant Spearman’s decision further discriminated against Plaintiff because she is a

13 transsexual woman, treating Plaintiff’s request differently and subjecting it to different criteria

14 than he would the name change request of an inmate who was not transgender.

15

67. In addition to being discriminatory, Defendant Spearman’s denial of Plaintiff’s

16 request to pursue a legal name change was deliberately indifferent to Plaintiff’s gender dysphoria

17 and the mental anguish and suffering caused by not being able to legally change her name.

18 Defendant Spearman was fully aware that Plaintiff suffers from gender dysphoria, even

19 acknowledging her condition in the decision, but failed to take any reasonable measures to

20 address the ongoing mental anguish that Plaintiff unnecessarily suffers as a result of not being

21 able to change her name or to offer any legitimate justification for refusing to allow her to pursue

22 a legal name change.

23

68. Plaintiff appealed to the third level of review, where the appeals examiners,

24 Defendants Van Leer and Lozano, found the Warden’s denial of Plaintiff’s name change request

25 “appropriate as the appellant is still incarcerated in an institution for men.”

26

69. The decision of Defendants Van Leer and Lozano to deny Plaintiff access to

27 pursue a name change – just like that of Defendant Spearman – clearly discriminates against

28 Plaintiff by treating Plaintiff’s request differently than those of other inmates solely on the basis

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1 of Plaintiff’s gender and gender dysphoria. In addition to being discriminatory, Defendants Van

2 Leer and Lozano were deliberately indifferent to Plaintiff’s gender dysphoria and the mental

3 anguish and suffering caused by not being able to legally change her name.

4

70. The final denial by Defendants Van Leer and Lozano exhausted Plaintiff’s

5 administrative remedies available to her within the CDCR. Because Plaintiff is incarcerated, she

6 is unable to petition the California Superior Court for a name change without first obtaining

7 approval from the Warden and ultimately Defendant Beard, the Secretary of the CDCR. Cal.

8 Code Civ. Proc. § 1279.5.

9

71. Defendant Beard thus has ultimate authority for whether or not Plaintiff is allowed

10 to pursue a legal name change and for the implementation of CDCR policy with regard to inmate

11 name changes. Defendant Beard has endorsed and affirmed the discriminatory and deliberately

12 indifferent conduct of Defendants Spearman, Van Leer and Lozano by failing to intercede and

13 grant Plaintiff’s request to pursue a legal name change and by failing to ensure that the name

14 change policy is implemented in a fair and non-discriminatory manner and/or that inmates receive

15 medically necessary treatment for gender dysphoria, including the ability to change one’s legal

16 name.

17

72. Plaintiff seeks permission for a legal name change as a further step toward

18 minimizing the discrepancy between her gender identity and the sex she was assigned at birth and

19 as a fundamental aspect of expression of her true, female identity. As a transsexual woman,

20 Plaintiff suffers severe emotional and psychological stress and anxiety when she is referred to by

21 the normatively masculine name given to her at birth.

22

73. This distress can be alleviated by a simple name change that will aid in the

23 treatment of Plaintiff’s gender dysphoria and allow Plaintiff to express herself authentically in

24 accordance with her female gender identity. The repeated refusal to provide Plaintiff with this

25 treatment for gender dysphoria serves no government objective, and there is no rational basis

26 under which to deny her requested name change. The only explanation offered (that Plaintiff does

27 not qualify for placement in a women’s facility) is wholly unsupported by the medical literature

28 regarding the treatment of gender dysphoria and clearly discriminates against Plaintiff based upon

MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

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1 her gender and gender dysphoria.

2

COUNT ONE

3

VIOLATION OF 42 U.S.C. § 1983 BASED UPON

DEPRIVATION OF EIGHTH AMENDMENT RIGHTS RESULTING FROM

4

FAILURE TO PROVIDE MEDICALLY NECESSARY SURGERY

5

(against Defendants Beard, Newton, Adams, Zamora, and Coffin)

6

74. Plaintiff repeats and realleges the allegations of Paragraphs 1 through 73 as if fully

7 set forth herein.

8

75. Plaintiff has been diagnosed with the serious medical condition of gender

9 dysphoria which, despite 14 years of feminizing hormone therapy and chemical castration,

10 continues to cause Plaintiff serious mental distress, and requires treatment in the form of SRS as

11 prescribed by Plaintiff’s former treating mental health provider, Dr. Reese, and supported by

12 prevailing medical standards of care.

13

76. Each Defendant – acting in his/her official capacity and under color of state law –

14 was and remains deliberately indifferent to Plaintiff’s medical need for SRS. Each Defendant

15 knew of Plaintiff’s serious medical need for SRS and disregarded Plaintiff’s need and failed to

16 take any reasonable measures to address Plaintiff’s continued pain and suffering resulting from

17 her gender dysphoria. The deliberate indifference of each Defendant is further demonstrated by

18 that Defendant’s unreasonable reliance on their own conclusions or those of other non-specialized

19 individuals rather than the conclusions and recommendations of a health care professional with

20 sufficient training and/or experience in the treatment of gender dysphoria.

21

77. Defendants’ continued denial of SRS is causing irreparable harm to Plaintiff,

22 including severe anxiety and distress as a result of the discrepancy between her remaining male

23 sex characteristics, including non-functioning male genitalia, and her female gender identity.

24 Plaintiff’s mental anguish is intensified by the fact – repeatedly established in her medical records

25 – that Plaintiff is a “biological female” based upon her hormone levels and chemical castration,

26 yet is being forced to live every minute of every day in a body with male genitalia that does not

27 match her biology. The denial of SRS also unreasonably and recklessly places Plaintiff at

28 increased risk for heart and vascular conditions and certain types of cancer, particularly given that

MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

20

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1 she is afflicted with Hepatitis C, which risks could be substantially reduced as a result of the

2 substantially reduced hormone treatments that would be required following SRS.

3

78. By failing to provide SRS to Plaintiff while incarcerated, Defendants have

4 deprived Plaintiff of her right to medically necessary treatment guaranteed by the Eighth

5 Amendment to the United States Constitution.

6

COUNT TWO

7

VIOLATION OF 42 U.S.C. § 1983 BASED UPON DEPRIVATION OF FOURTEENTH

AMENDMENT RIGHT TO EQUAL PROTECTION BY REFUSING PLAINTIFF SRS ON

8

THE BASIS OF GENDER AND TRANSGENDER STATUS

9

(against Defendants Beard, Newton, Adams, Zamora, and Coffin)

10

79. Plaintiff repeats and realleges the allegations of Paragraphs 1 through 78 as if fully

11 set forth herein.

12

80. California Code of Regulations (“C.C.R.”) Title 15, Section 3350.1 identifies

13 vaginoplasty as a “[s]urgery not medically necessary [that] shall not be provided” except for

14 cystocele or rectocele unless the patient’s attending physician prescribes the treatment and “[t]he

15 service is approved by the medical authorization review committee and the health care review

16 committee.” 15 C.C.R. § 3350.1(b)(2); 15 C.C.R. § 3350.1(d).

17

81. This regulatory scheme discriminates against transsexual women inmates by

18 making vaginoplasty de facto unavailable for such inmates but allowing the treatment for non-

19 transgender female inmates with certain conditions such as cystocele. The statute singles out

20 inmates assigned male at birth, and transgender women inmates in particular, by placing onerous,

21 significant barriers to obtaining vaginoplasty even when, as here, it is medically necessary.

22

82. Each of the Defendants applied the statute in a manner that discriminated against

23 Plaintiff on the basis of her gender and transgender status. In considering Plaintiff’s need for

24 SRS, each Defendant failed to give proper consideration to the specific circumstances of

25 Plaintiff’s gender dysphoria and need for SRS but instead based their conclusions on factors and

26 processes that they would not have considered in determining the medical necessity of a treatment

27 for a non-transgender inmate’s request for medically-necessary surgery. Each Defendant

28 regarded and applied the statute as a de facto bar to Plaintiff’s request for SRS – and vaginoplasty

MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

21

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1 in particular – solely as the result of Plaintiff being assigned male at birth, and a transsexual

2 woman in particular.

3

83. Finally, each Defendant discriminated against Plaintiff and manifested deliberate

4 indifference to the mental anguish and suffering still resulting from her gender dysphoria by

5 failing to prescribe SRS and refer Plaintiff’s SRS for approval by the medical authorization

6 review committee and the health care review committee pursuant to 15 C.C.R. § 3350.1(d)

7

84. Defendants intentionally treat Plaintiff differently from non-transgender female

8 inmates seeking vaginoplasty due to her gender and transgender status.

9

85. Due to the difference in treatment, similarly situated non-transgender women with

10 serious medical needs are able to receive adequate medical care, including medically necessary

11 vaginoplasty, but inmates assigned male at birth and transgender inmates requiring such treatment

12 are either barred from receiving it or, at a minimum, held to a more onerous standard.

13

86. The difference in treatment between transgender women and non-transgender

14 women does not further any important government interest in a way that is substantially related to

15 that interest, nor is it rationally related to any legitimate government interest.

16

87. Defendants’ discriminatory denial of SRS is causing irreparable harm to Plaintiff,

17 including severe anxiety and distress as a result of the discrepancy between her remaining male

18 sex characteristics, including non-functioning male genitalia, and her female gender identity.

19 Plaintiff’s mental anguish is intensified by the fact – repeatedly established in her medical records

20 – that Plaintiff is a “biological female” based upon her hormone levels and chemical castration,

21 yet is being forced to live every minute of every day in a body with male genitalia that does not

22 match her biology. The denial of SRS also unreasonably and recklessly places Plaintiff at

23 increased risk for heart and vascular conditions and certain types of cancer, particularly given that

24 she is afflicted with Hepatitis C, which risks could be substantially reduced as a result of the

25 substantially reduced hormone treatments that would be required following SRS.

26

88. By failing to provide SRS to Plaintiff while incarcerated, Defendants have

27 deprived Plaintiff of her right to equal protection under the laws guaranteed by the Fourteenth

28 Amendment to the United States Constitution.

MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

22

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1

COUNT THREE

2

VIOLATION OF 42 U.S.C. § 1983 BASED UPON

DEPRIVATION OF EIGHTH AMENDMENT RIGHTS RESULTING FROM

3

FAILURE TO ALLOW PLAINTIFF LEGAL NAME CHANGE

4

(against Defendants Beard, Spearman, Van Leer and Lozano)

5

89. Plaintiff repeats and realleges the allegations of Paragraphs 1 through 88 as if fully

6 set forth herein.

7

90. Plaintiff has been diagnosed with the serious medical condition of gender

8 dysphoria and the continued use of Plaintiff’s normatively masculine legal name causes Plaintiff

9 serious mental distress that would be significantly reduced by allowing Plaintiff to change her

10 legal name to her preferred normatively feminine name, Michelle-Lael Bryanna Norsworthy.

11

91. Each Defendant – acting in his/her official capacity and under color of state law –

12 was and remains deliberately indifferent to Plaintiff’s medical need for a legal name change, in

13 spite of Plaintiff’s well-documented condition and widely recognized Standards of Care

14 recognizing the need for a name change. Each Defendant knew of Plaintiff’s serious medical

15 need for the name change and deliberately disregarded Plaintiff’s need and failed to take any

16 reasonable measures to address Plaintiff’s continued pain and suffering resulting from her

17 inability to legally change her name. The deliberate indifference of each Defendant is further

18 demonstrated by that Defendant’s unreasonable reliance on their own conclusions or those of

19 other non-specialized individuals rather than the conclusions and recommendations of a health

20 care professional with sufficient training and/or experience in the treatment of gender dysphoria.

21

92. Defendants’ continued denial of the request to pursue a legal name change is

22 causing irreparable harm to Plaintiff, including severe anxiety and distress.

23

93. By failing to provide permission for Plaintiff to petition the California Superior

24 Court for a name change while incarcerated, Defendants have deprived Plaintiff of her right to

25 medically necessary treatment guaranteed by the Eighth Amendment to the United States

26 Constitution.

27

28

MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

23

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1

COUNT FOUR

2

VIOLATION OF 42 U.S.C. § 1983 BASED UPON DEPRIVATION OF FOURTEENTH

AMENDMENT RIGHT TO EQUAL PROTECTION BY REFUSING PLAINTIFF

3 PERMISSION TO PURSUE A LEGAL NAME CHANGE ON THE BASIS OF GENDER AND

TRANSGENDER STATUS

4

(against Defendants Beard, Spearman, Van Leer and Lozano)

5

6

94. Plaintiff repeats and realleges the allegations of Paragraphs 1 through 93 as if fully

7 set forth herein.

8

95. California Code of Regulations, Title 15, section 3294.5 explicitly allows inmates

9 to request legal name changes.

10

96. Each Defendant – acting in his/her official capacity and under color of state law –

11 discriminated against Plaintiff by refusing to permit her to seek a legal name change as a result of

12 her gender and transgender status. In particular, each Defendant refused Plaintiff’s request to

13 change her name to a normatively feminine name solely because Plaintiff was assigned male at

14 birth. Upon information and belief, similarly situated non-transgender female inmates are

15 permitted to change their names to normatively feminine names and similarly situated non-

16 transgender male inmates are permitted to change their names to desired normatively masculine

17 names.

18

97. This difference in treatment with regard to name changes based upon gender and

19 transgender status does not further any important government interest in a way that is

20 substantially related to that interest, nor is it rationally related to any legitimate government

21 interest.

22

98. Defendants’ discriminatory denial of Plaintiff’s request to petition the California

23 Superior Court for a name change is causing irreparable harm to Plaintiff, including severe

24 anxiety and distress.

25

99. By failing to provide permission for Plaintiff to petition the California Superior

26 Court for a name change while incarcerated, Defendants have deprived Plaintiff of her right to

27 equal protection under the laws guaranteed by the Fourteenth Amendment to the United States

28 Constitution.

MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

24

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1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiff prays for judgment against Defendants Beard, Newton, Adams,

3 Zamora, Coffin, Spearman, Van Leer and Lozano, and Does 1-30 as follows:

4

100. Enter injunctive relief enjoining Defendants from interfering with the discretion of

5 the mental health and other medical professionals involved in Plaintiff’s care;

6

101. Enter injunctive relief declaring California Code of Regulations, Title 15, Section

7 3350.1(b)(2) unconstitutional on its face and as applied;

8

102. Enter injunctive relief enjoining Defendants to provide Plaintiff with adequate

9 medical care, including SRS;

10

103. Enter injunctive relief requiring Defendants to allow Plaintiff to seek a legal name

11 change in the Superior Court of California pursuant to California Code of Regulations, Title 15,

12 section 3294.5; California Code of Civil Procedure sections 1279.5, 1276 and 1277;

13

104. Award reasonable attorneys fees and costs to Plaintiff pursuant to 42 U.S.C. §

14 1988; and

15

105. Such other relief as the Court finds appropriate in the interests of justice.

16

17 Dated: July 2, 2014 18

MORGAN, LEWIS & BOCKIUS LLP

19

By /s/ - Herman J. Hoying

20

HERMAN J. HOYING MORGAN, LEWIS & BOCKIUS LLP

21

One Market, Spear Street Tower San Francisco, California 94105-1126

22

Telephone: Facsimile:

415.442.1000 415.442.1001

23

hhoying@morganlewis.com

24

25

Attorneys for Plaintiff

26

27

28

MORGAN, LEWIS & BOCKIUS LLP
ATTORNEYS AT LAW SAN FRANCISCO

25

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3:14-cv-00695-JST

 
 Case3:14-cv-00695-JST Document94 Filed04/02/15 Page1 of 38

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6 MICHELLE-LAEL B. NORSWORTHY,
7 Plaintiff,
8 v.
9 JEFFREY BEARD, et al.,
10 Defendants.
11
12

Case No. 14-cv-00695-JST
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION, GRANTING REQUEST FOR JUDICIAL NOTICE, AND DENYING MOTION TO STRIKE
Re: ECF Nos. 62, 77, 80

13 Before the Court are Plaintiff Michelle-Lael B. Norsworthy’s Motion for a Preliminary
14 Injunction, ECF No. 62, Defendants’ Request for Judicial Notice, ECF No. 77, and Plaintiff’s
15 Evidentiary Objection and Motion to Strike Portions of Expert Declaration of Dr. Stephen Levine
16 in Support of Defendants’ Opposition to Plaintiff’s Motion for a Preliminary Injunction, ECF No.
17 80. For the reasons set forth below, the Court will grant Plaintiff’s motion for a preliminary
18 injunction, grant Defendants’ request for judicial notice, and deny Plaintiff’s evidentiary objection
19 and motion to strike.
20 I. BACKGROUND
21 A. Norsworthy’s Gender Dysphoria
22 Plaintiff, a California Department of Corrections and Rehabilitation (“CDCR”) inmate
23 currently incarcerated at Mule Creek State Prison in Ione, California, is a transsexual woman – a
24 person whose female gender identity is different from the male gender assigned to her at birth.
25 Deposition of Michelle-Lael Norsworthy (“Norsworthy Dep.”), ECF No. 66-4 at 5, 18-20; Mental
26 Health Evaluation: Gender Identity Disorder Evaluation of Dr. Raymond J. Coffin (“Coffin
27 Eval.”), ECF No. 66-1 at 4. Norsworthy was convicted of murder in the second degree with the
28

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United States District Court Northern District of California

1 use of a firearm on April 15, 1987, and is serving a sentence of seventeen years to life in prison.

2 Coffin Eval. at 3. She has been eligible for parole since March 28, 1998. Comprehensive Risk

3 Assessment for the Board of Parole Hearings (“2014 Risk Assessment”), ECF No. 67 at 1.

4

Norsworthy experienced early confusion about her gender identity that continued into

5 adulthood. Coffin Eval. at 4-5; Norsworthy Dep. at 42. She began openly identifying as a

6 transsexual woman in the mid-1990’s, and was diagnosed with gender identity disorder, now 7 known as gender dysphoria, in January 2000.1 Coffin Eval. at 4-6; Norsworthy Dep. at 42.

8 Gender dysphoria is “a serious medical condition codified in the International Classification of

9 Diseases (10th revision; World Health Organization) and the American Psychiatric Association’s

10 Diagnostic and Statistical Manual of Mental Disorders – 5th edition (DSM-V).” Declaration of

11 Dr. Randi C. Ettner (“Ettner Decl.”), ECF No. 63 ¶ 16. It is “characterized by an incongruence

12 between one’s experienced/expressed gender and assigned sex at birth, and clinically significant

13 distress or impairment of functioning as a result.” Id. The condition is associated with “severe

14 and unremitting emotional pain.” Id. Without treatment, people with gender dysphoria experience

15 anxiety, depression, suicidality, and other mental health issues. Id. ¶ 18. Male-to-female

16 transsexuals without access to appropriate care may resort to attempting auto-castration in order to

17 alleviate their distress. Id. ¶ 19. Gender dysphoria intensifies with age. Id. ¶ 20.

18

Norsworthy explains that she is “a woman trapped in a man’s body” and that “[her spirit]

19 is imprisoned in a way that causes excruciating pain and frustration to a point that therapy and

20 other remedies are the only way to relieve that [] agony.” Norsworthy Dep. at 20, 133. The

21 “psychological and emotional pain” and “frustration and agony” she experiences mean that she is

22 “unable [] to complete [her] existence or complete who [she is].” Id. at 21. At times, the anxiety

23 caused by her gender dysphoria causes symptoms such as sleeplessness, cold sweats,

24 hypervigilance, panic attacks, and mood swings. Id. at 87-88; Ettner Decl. ¶ 69 (describing

25 “severe” anxiety symptoms consistent with a gender dysphoria diagnosis, including “feeling

26 discomfort in abdomen, feeling hot, heart pounding, feeling faint, and fear of ‘the worst

27

28

1 This order will generally use the current term “gender dysphoria,” even when referring to earlier treatment and diagnoses.

2

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United States District Court Northern District of California

1 happening’”).

2

B. WPATH Standards of Care

3

The World Professional Association for Transgender Health (“WPATH”) has developed

4 Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People

5 (“Standards of Care”), which are recognized as authoritative standards of care by the American

6 Medical Association, the American Psychiatric Association, and the American Psychological

7 Association. Ettner Decl. ¶ 21; see also Deposition of Lori Kohler, M.D. (“Kohler Dep.”), ECF

8 No. 67 at 21, at 91-92. The Standards of Care explain that treatment for gender dysphoria is

9 individualized: “What helps one person alleviate gender dysphoria might be very different from

10 what helps another person.” Standards of Care, Version 7, ECF No. 10-1 at 5. They address a

11 variety of therapeutic options, including changes in gender expression and role, hormone therapy,

12 surgery, and psychotherapy. Id. at 8.

13

One treatment for gender dysphoria is sex reassignment surgery (“SRS”). “Vaginoplasty is

14 the definitive male-to-female sex reassignment surgery.” Declaration of Dr. Marci L. Bowers

15 (“Bowers Decl.”), ECF No. 65 ¶ 15. It involves the removal of the patient’s male genitals and

16 creation of female genitals, and has two therapeutic purposes. Id. ¶ 19; Ettner Decl. ¶ 39. SRS for

17 transsexual female patients both removes the principal source of testosterone in the body and

18 creates congruence between the patient’s gender identity and her primary sex characteristics.

19 Ettner Decl. ¶¶ 38-39. The Standards of Care explain:

20

While many transsexual, transgender, and gender-nonconforming

individuals find comfort with their gender identity, role, and

21

expression without surgery, for many others surgery is essential and

medically necessary to alleviate their gender dysphoria. For the

22

latter group, relief from gender dysphoria cannot be achieved

without modification of their primary and/or secondary sex

23

characteristics to establish greater congruence with their gender

identity. 24

Standards of Care at 36; see also Ettner Decl. ¶ 38 (“For many individuals with severe gender

25

dysphoria, however, hormone therapy alone is insufficient. Relief from their dysphoria cannot be

26

achieved without surgical intervention to modify primary sex characteristics, i.e. genital

27

reconstruction.”); Bowers Decl. ¶ 31 (“Although some transgender people are able to effectively

28

3

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United States District Court Northern District of California

1 treat their gender dysphoria through other treatments, sex reassignment surgery for many people is

2 a medically necessary treatment needed to treat gender dysphoria and establish congruence with

3 one’s gender identity.”). Studies have shown that SRS is a safe and effective treatment for

4 individuals with gender dysphoria. See Standards of Care at 36 (“Follow-up studies have shown

5 an undeniable beneficial effect of sex reassignment surgery on postoperative outcomes.”); Ettner

6 Decl. ¶ 40 (“Decades of careful and methodologically sound scientific research have demonstrated

7 that sex reassignment surgery is a safe and effective treatment for severe gender dsyphoria and,

8 indeed, for many people, it is the only effective treatment.”); Bowers Decl. ¶ 28 (“The vast

9 majority of studies have shown that sex reassignment surgery is clinically effective. In my

10 professional experience, the success rate of vaginoplasty is extremely high.”); Defendants’ Expert

11 Report (“Levine Report”), ECF No. 72-4, at 6-7 (acknowledging that “SRS is not thought to be

12 experimental now that it has been repeatedly positively evaluated for over twenty years”).

13

The Standards of Care set forth six eligibility criteria for vaginoplasty in male-to-female

14 patients: 15 16 17 18 19 20

(1) Persistent, well-documented gender dysphoria; (2) Capacity to make a fully informed decision and to consent for treatment; (3) Age of majority in a given country; (4) If significant medical or mental health concerns are present, they must be well controlled; (5) 12 continuous months of hormone therapy as appropriate to the patient’s gender goals (unless hormones are not clinically indicated for the individual); (6) 12 continuous months of living in a gender role that is congruent with the patient’s identity.

21 Standards of Care at 39. They also require two referrals from qualified mental health

22 professionals who have independently evaluated the patient. Id. at 19-20. “If the first referral is

23 from the patient’s psychotherapist, the second referral should be from a person who has only had

24 an evaluative role with the patient.” Id. at 20.

25

The standards “in their entirety apply to all transsexual, transgender, and gender-

26 nonconforming people, irrespective of their housing situation.” Id. at 43. They expressly provide

27 that “[p]eople should not be discriminated against in their access to appropriate health care based

28 on where they live, including institutional environments such as prisons.” Id. The Standards 4

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United States District Court Northern District of California

1 allow for “[r]easonable accommodations to the institutional environment,” such as the use of

2 injectable hormones where diversion of oral prescriptions is highly likely, but they make clear that

3 “[d]enial of needed changes in gender role or access to treatments, including sex reassignment

4 surgery, on the basis of residence in an institution are not reasonable accommodations under the

5 [Standards of Care].” Id. at 44.

6

C. Norsworthy’s Treatment

7

Norsworthy indicated to prison staff that she sought hormone treatment and eventual SRS

8 as early as 1996. Coffin Eval. at 4; 2014 Risk Assessment at 5. She self-referred to the Gender

9 Clinic at California Medical Facility (“CMF”) in 1999. Id. at 5. After a comprehensive

10 psychological evaluation, Norsworthy was diagnosed with gender identity disorder by Dr. C.R.

11 Viesti in January 2000. Id. at 6; ECF No. 68 at 17. Later that month, she began hormone therapy

12 under the supervision of Dr. Lori Kohler. Coffin Eval. at 6. This treatment has continued, with

13 periodic dose adjustments and one interruption, discussed below, through the present time. Id.;

14 Declaration of Dr. I. Munir (“Munir Decl.”), ECF No. 74 ¶ 2. As a result of her hormone therapy,

15 Norsworthy has become a “biological female,” “a pleasant looking woman, slender and coiffed in

16 a pony tail,” who “walk[s] the yard . . . as a woman.” ECF No. 68 at 24, 26; see also Ettner Decl.

17 ¶ 73 (“As a result of long-term hormonal usage, she is now hormonally reassigned.”).

18 Norsworthy has been permitted to keep her hair long, to shower out of the sight of other inmates,

19 and to purchase and possess brassieres, with a “few lapses,” but prison officials often refer to her

20 using her legal name, Jeffrey Norsworthy. ECF No. 68 at 32; Coffin Eval. at 6; Levine Report at

21 22; Norsworthy Dep. at 25, 136-39. She is currently housed in a sensitive needs yard. Declaration

22 of Kelly Harrington (“Harrington Decl.”), ECF No. 75 ¶ 5.

23

Norsworthy’s treatment for gender dysphoria has included psychotherapy, which began

24 following her diagnosis in 2000. Coffin Eval. at 8. She also began psychological treatment for

25 symptoms of posttraumatic stress disorder (“PTSD”) after she was gang raped by a group of

26 inmates in March 2009. Id. She is currently under the care of a psychologist, Dr. Landry.

27 Norsworthy Dep. at 125. At times when she does not receive mental health treatment, Norsworthy

28 actively seeks out therapy. Levine Report at 17. 5

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United States District Court Northern District of California

1

Despite these many years of hormone therapy and counseling, Norsworthy continues to

2 experience “excruciating pain and frustration” as a result of her gender dysphoria. Norsworthy

3 Dep. at 20. Her medical records reflect a consistent diagnosis of gender dysphoria, as well as

4 Norsworthy’s continuous desire to obtain SRS. See, e.g., ECF No. 68 at 20 (March 19, 2012), 30

5 (April 28, 2009); ECF No. 70 at 1 (referencing Norsworthy’s statements to endocrinologists since

6 December 2011); see also Norsworthy Dep. at 157 (estimating that she made oral requests for SRS

7 to almost all of her therapists). One progress note from April 2009 indicates that Norsworthy

8 experiences ongoing emotional struggles, “possibly more pronounced by not being able to

9 complete the required surgeries.” ECF No. 68 at 30. In November 2012, her treating

10 psychologist, Dr. W. Reese, determined that “clinical medical necessity suggest and mandate a sex

11 change medical operation before normal mental health can be achieved for this female patient.”

12 ECF No. 68 at 13. He determined that SRS was a “clinical and medical necessity for her health

13 and well-being.” Id. at 14.

14

According to Dr. Gorton, a physician with expertise in the treatment of transgender

15 patients, Norsworthy has several medical risk factors that make the long-term use of the high

16 dosages of hormone therapy needed for preoperative female transgender patients more dangerous.

17 Declaration of Dr. R. Nick Gorton (“Gorton Decl.”), ECF No. 64 ¶¶ 3, 19-20. First, the risks of

18 heart attack, stroke, deep venous thrombosis, pulmonary emboli, breast cancer, liver toxicity, and

19 development of pituitary tumors generally increase for older patients. Id. ¶ 19. Norsworthy is

20 fifty-one years old. Coffin Eval. at 1. Second, Norsworthy was diagnosed with hepatitis C after

21 being raped in 2009, and has ongoing liver damage as a result. Gorton Decl. ¶ 17. Such liver

22 damage can be exacerbated by hormone replacement therapy, particularly the oral estrogens that

23 CDCR has provided. Id. ¶ 20. Third, Norsworthy is allergic to spironolactone, the most common

24 anti-androgen used in the treatment of transgender women in the United States. Id. The

25 alternative treatment she receives can increase risk for breast cancer, heart disease, and liver

26 toxicity. Id.

27

In or around August 2014, Norsworthy’s endocrinologist completely discontinued her

28 hormonal treatments because of concerns about her liver function tests. Id. ¶ 22. Contrary to his 6

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United States District Court Northern District of California

1 recommendation, CDCR denied her access to an alternative medication to treat her gender

2 dysphoria. Id. ¶ 23. According to Dr. Gorton, this complete removal from hormone therapy put

3 Norsworthy at risk for significant worsening of her gender dysphoria. Id. ¶ 24. Norsworthy was

4 permitted to resume hormone therapy at lower doses in or around November 2014, but she is

5 receiving a “last resort” oral medication, rather than the recommended transdermal or injected

6 preparations, which would reduce her risk of liver toxicity. Id. ¶¶ 26-27; see also Munir Decl. ¶ 4.

7 As Norsworthy’s liver condition becomes more serious, she is at increased risk of being

8 completely removed from hormone therapy again, which would increase her dysphoria and might

9 result in serious depression, suicidal ideation, or self-harm. Gorton Decl. ¶ 28. If Norsworthy

10 received SRS, her risk would decrease because the removal of her testosterone-producing male

11 genitalia would reduce the need for the hormones that threaten her health. Id. ¶ 37.

12

D. Norsworthy’s Appeal Seeking SRS

13

Norsworthy discussed her need for SRS with her treating mental health providers

14 beginning in 2000. Norsworthy Dep. at 156-57. It was not until she heard about the decision in

15 Kosilek v. Spencer, 889 F. Supp. 2d 190 (D. Mass. 2012), aff’d, 740 F.3d 733 (1st Cir. 2014),

16 rev’d en banc, 774 F.3d 63 (1st Cir. 2014), however, that she believed that she might have an

17 opportunity to receive SRS. In Kosilek, which was later reversed by the First Circuit, sitting en

18 banc, the district court granted an injunction requiring the Massachusetts Department of

19 Corrections to provide SRS to Michelle Kosilek, an inmate suffering from severe gender

20 dysphoria. 880 F. Supp. 2d at 251. Norsworthy explains that she filed her first formal request for

21 SRS in September 2012, less than two weeks after the Kosilek decision was released, “because it

22 was the first time that an opportunity was provided to transgenders that said the State had to listen

23 to me.” Norsworthy Dep. at 160. Before that, she viewed any formal request for SRS as “absurd”

24 and “like ramming your head into a wall,” because she understood that it would be “continually

25 denied.” Id.

26

On September 16, 2012, Norsworthy, who was then housed at CDCR’s Correctional

27 Training Facility (“CTF”), submitted a Patient/Inmate Health Care Appeal, seeking “adequate and

28 sufficient medical care” for her gender dysphoria, including SRS. ECF No. 68 at 4-6. At the first 7

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1 level of her appeal, registered nurse L. Fernandez interviewed Norsworthy and created a report,

2 which Defendant Alexandra Newton, a supervising registered nurse, approved. ECF No. 68 at 4,

3 8-9; Deposition of Alexandra Newton (“Newton Dep.”), ECF No. 69at 6, at 34. The report states

4 that Norsworthy indicated that she was “feeling miserable of not being able to fully express

5 [her]self,” that she had “a serious medical need which only [SRS] can correct,” and that she was

6 “requesting the medically necessary sex reassignment surgery to alleviate pain and suffering.”

7 ECF No. 68 at 8. She was counseled to “discuss this matter with your PCP primary care provider”

8 in six months, and her request for SRS was “[d]enied per state policy.” Id. Although Kohler, a

9 transgender specialist, was working at CTF at the time, neither Newton nor Fernandez contacted

10 her for assistance in reviewing the appeal. Newton Dep. at 61; Kohler Dep. At 134-36, 143.

11

At the second level, the appeal was assigned to Defendant Dr. Anise Adams, the Chief

12 Medical Executive at CTF. ECF No. 68 at 10-11; Deposition of Dr. Anise Adams (“Adams

13 Dep.”), ECF No. 69 at 30, at 24. Before rendering her decision on November 27, 2012, Adams

14 contacted CDCR legal staff “[b]ecause [she] knew it was an area of legal interest.” Adams Dep. at

15 128. In her decision, Adams stated, “There is no blanket policy in the CDCR that prohibits Sexual

16 Reassignment Surgery (SRS),” but denied Norsworthy’s appeal because “Over the past year and a

17 half, neither your mental health nor your [primary care provider] has recommended SRS as

18 treatment.” ECF No. 68 at 11. She concluded that Norsworthy’s treatment plan was “working

19 well to control [her] symptoms.” Id.

20

Two days after Adams’ decision, Norsworthy’s treating psychologist issued an explicit

21 recommendation that she receive SRS as a “clinical and medical necessity.” ECF No. 68 at 13-14.

22 He then reaffirmed this view over the next few months. See, e.g., ECF No. 68 at 71 (December

23 13, 2012: “[Norsworthy] needs to complete her sex change operation (male to female) so that she

24 can achieve physical, mental and emotional well-being”); 64 (March 28, 2013: “Note that

25 [inmate/patient’s] mental health and well being are dependent on moving forward with this sex-

26 change operation”); 57 (April 18, 2013: “Recommend completion of the sex-change process, and

27 validate that [inmate/patient] Norsworthy is both psychological [sic] cleared and psychologically

28 and emotionally, and cognitively [sic] to complete this sex change operation”); 56 (April 25, 2013: 8

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1 “As [inmate/patient] has been psychologically cleared, by psychiatry and primary clinicians

2 trained in the trans-sexual process.; [inmate/patient] should complete this process in a timely

3 manner. . . . In my opinion, health, safety, fairness and justice mandate the above recommendation

4 be done.”).

5

Sometime before June 10, 2013, Norsworthy was removed from Reese’s care after seeing

6 him once per week for approximately two years. ECF No. 69 at 2. Norsworthy’s medical records

7 describe this as a “quick, unexpected change of primary clinicians due to a HQs directive.” ECF

8 No. 69 at 2. Norsworthy testified that Reese explained to her that she “was being removed from

9 his caseload because [she] had filed the appeal.” Norsworthy Dep. at 124. Reese told her that “his

10 supervisor had called and that someone from Sacramento had called and suggested” that she be

11 placed on another doctor’s caseload. Id. Norsworthy describes her relationships with her new

12 therapists as “superficial.” Id. at 124-26. She currently sees a psychologist named Dr. Landry,

13 who “just deals with the basics,” such as making sure that she has no suicidal or homicidal

14 ideation, and sees her every ninety days. Id.

15

The third level appeal was initially reviewed on May 22, 2013, by a physician, Dr. T. S.

16 Robinson, who recommended that a mental health consultant review the case. ECF No. 69 at 69;

17 ECF No. 70 at 1. Dr. Cornish, the mental health consultant, concluded that “the progress notes

18 indicate that the [inmate] is psychologically ready for the SRS,” but noted, “I do not know if

19 CDCR is performing SRS,” and “I will defer to medical for the final decision on this appeal.”

20 ECF No. 70 at 4. CDCR then requested that Defendant Dr. Raymond J. Coffin, a psychologist,

21 conduct an evaluation in connection with Norsworthy’s appeal. Coffin Eval. at 1; Deposition of

22 Raymond John Coffin, Psy.D. (“Coffin Dep.”), ECF No. 70 at 5, at 103.

23

Coffin testified that this was the first time he had been asked to conduct an independent

24 evaluation in connection with a third level appeal, and that he understood that he had been selected

25 because CDCR “wanted someone that had been through Dr. [Stephen] Levine’s training.” Coffin

26 Dep. at 108, 120. Dr. Levine’s one-day training on “Assessment and Treatment of Gender

27 Identity Disorder Persons,” held in April 2012, clearly instructed participants that SRS was never

28 an available treatment for incarcerated patients. ECF No. 71 at 2, 44 (an inmate receiving 9

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1 hormonal treatment must understand “that this will not lead to SRS in prison”), 45 (reasons to

2 reject inmates’ requests for SRS include “[s]ocial conditions of prison, limited life opportunities

3 for prisoners, security concerns, sociopathy embedded into criminal careers, the arbitrary

4 declarations in [the Standards of Care], the bizarreness of the opinions of outside experts about

5 prison’s [sic] right to SRS, rhinoplasty, and the inability to assess the patient in the context of a

6 full life”), 46 (“[s]urgical candidates may use experience to decide to have surgery when they are

7 released”).

8

Coffin interviewed Norsworthy on July 1, 2013, and, after consultation with the legal

9 department, completed his evaluation on October 10, 2013. Coffin Eval. at 1, 21; Coffin Dep. at

10 111-12. Coffin’s detailed report reviewed Norsworthy’s personal, medical, and mental health

11 history, and concluded that this history appeared to confirm the accuracy of the gender dysphoria

12 diagnosis. Coffin Eval. at 17. However, he omitted discussion of Norsworthy’s disgust with her

13 male genitalia, anxiety, depression, and suicidal ideation – important indicators of medical

14 necessity that Norsworthy discussed in her interview with him. Coffin Dep. at 124-26. Coffin

15 stated that he found no evidence on the record that Norsworthy’s gender and endocrinology

16 specialists had made specific recommendations regarding SRS, and that although Reese had

17 recommended SRS, he had not directly addressed the issue of medical necessity. Coffin Eval. at

18 12, 18. Coffin concluded that Norsworthy “appears to have developed sufficient resilience to

19 maintain a stable mood,” and that “[w]hile it appears likely that [her] medical consultants would

20 approve [her] as a candidate for SRS as an elective procedure, . . . the available documentation

21 does not establish SRS as medically necessary at this time.” Id. at 18-19. Coffin also expressed

22 concern that Norsworthy’s decision regarding SRS might change after release, and that “the time,

23 energy, and attention required to successfully undergo and recover from such surgery . . . very

24 possibly could undermine [inmate/patient] Norsworthy’s efforts to . . . obtain[] [her] release from

25 prison.” Id. at 19-20.

26

On October 25, 2013, after consulting with the legal department, Defendant Lori Zamora

27 issued her decision denying Norsworthy’s appeal at the third level of review. ECF No. 68 at 2-3;

28 ECF No. 71 at 94. The decision stated, “Your current providers have documented the 10

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1 determination that the subject surgery is not medically necessary for you. Your appeal of that

2 determination does not include a showing that the subject surgery is medically necessary for you.”

3 ECF No. 68 at 3. At her deposition, Zamora defined a “current provider” as “anybody who is

4 involved in the current care of that inmate,” but was unable to identify any support for the

5 statement that Norsworthy’s providers had concluded that SRS was not medically necessary.

6 Deposition of Lori Zamora (“Zamora Dep.”), ECF No. 71 at 52, at 88-91. Zamora did not consult

7 any specialists in the treatment of gender dysphoria or educate herself on the prevailing standards

8 of care before making her decision. Id. at 96-97. Zamora’s decision exhausted Norsworthy’s

9 administrative remedies. ECF No. 68 at 2.

10

On October 22, 2014, after this litigation began and on the advice of her attorney,

11 Norsworthy also submitted a “Health Care Services Request Form,” CDCR Form 7362, requesting

12 SRS. Norsworthy Dep. at 106-07; ECF No. 76-3 at 10-11. She was referred to her primary care

13 provider. Id.

14

E. CDCR Policies Regarding SRS

15

Under CDCR regulations, vaginoplasty, except for cystocele or rectocele (conditions

16 affecting cisgender women), is a surgery that is “not medically necessary” and “shall not be

17 provided.” 15 C.C.R. § 3350.1(b). The regulations create an exception where “[t]he inmate’s

18 attending physician [] prescribes the treatment as clinically necessary” and “[t]he service is

19 approved by . . . the Institutional Utilization Management committee and the Headquarters

20 Utilization Management committee.” Id. § 3350.1(d). In their testimony, Defendants were unable

21 to explain the application of Section 3350.1 to an inmate’s request for SRS as a treatment for

22 gender dysphoria. Zamora Dep. at 149 (“I don’t know that we even looked at this”); Newton Dep.

23 at 86 (“All I know is that our procedures, as far as I know, would have to follow that pathway

24 generated by the primary care provider”); Coffin Dep. at 180 (“With regard to prescribing the

25 treatment, it’s not clear from the policy, in my opinion, how the term [attending physician] is

26 being used with regard to mental health.”); Adams Dep. at 101-103 (“This section is more along

27 the lines of referrals by providers, not necessarily by inmates as far as a 602 [appeal].”).

28

The CDCR’s Department Operations Manual (“DOM”) provides that “Implementation of

11

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1 surgical castration, vaginoplasty, or other such procedures shall be deferred beyond the period of

2 incarceration. Surgical procedure shall not be the responsibility of the Department.” ECF No. 71

3 at 115. Defendants testified that they are required to follow DOM policies. Adams Dep. at 95;

4 Newton Dep. at 78. The DOM position was reaffirmed in Levine’s CDCR training on the

5 assessment and treatment of incarcerated patients with gender dysphoria, as discussed above. See

6 ECF No. 71 at 44-46. Kohler, who ran the CDCR gender clinic at CMF from 1998-2010 and a

7 telemedicine clinic for patients in other facilities from 2007-2010, also testified that, based on

8 discussions with the chief medical officer at CMF and with legal counsel for CDCR, she

9 understood that SRS was “not part of what the State was willing to provide.” Kohler Dep. at 33-

10 34, 41. Although she testified that she was not aware of a written policy barring SRS, she

11 explained that her request that SRS be included in the treatments available to transgender inmates

12 was denied, and that she understood that SRS would not be available to them. Id. at 45, 57-58.

13 She explained, “It was just an understanding. It was more like don’t even think about it. More of

14 just not available.” Id. at 45. Of her 500-600 patients, between 60 and 70 percent inquired about

15 the availability of SRS. Id. at 35, 37. None received it. Id. at 36. Kohler also testified that it is

16 still her understanding that hormone therapy and mental health treatment are the only currently

17 available treatments for incarcerated patients. Id. at 63-64. Norsworthy testified that her

18 providers had indicated to her that CDCR had a policy of not providing SRS to transgender

19 inmates. Norsworthy Dep. at 154-55.

20

F. Expert Reports

21

In connection with this litigation, the parties have consulted various experts in the

22 treatment of individuals with gender dysphoria.

23

1. Dr. Randi Ettner

24

Dr. Randi Ettner, an expert retained by Norsworthy, is a psychologist with extensive

25 experience and expertise in the treatment of patients with gender dysphoria. Ettner Decl. ¶¶ 2-8.

26 She has evaluated and/or treated between 2,500 and 3,000 individuals with gender dysphoria and

27 mental health issues related to gender variance over a period of over thirty-five years, and is a

28 member of the Board of Directors of the WPATH and an author of the WPATH Standards of 12

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1 Care. Id. Her declaration is based upon review of Norsworthy’s medical records, Norsworthy’s

2 deposition testimony, Coffin’s evaluation, and an in-person interview. Id. ¶¶ 12-15. Ettner

3 concludes:

4

Despite fourteen years of feminizing hormone therapy and

counseling, Ms. Norsworthy continues to suffer from gender

5

dysphoria and attendant anxiety. . . . Clearly, after years of

counseling and hormone therapy, Ms. Norsworthy now requires

6

genital surgery. i.e., the reconstruction of primary sex

characteristics. Were Ms. Norsworthy to undergo this surgical

7

procedure, all symptoms would be attenuated or eliminated.

8 Id. ¶¶ 75-76. Ettner concludes that Norsworthy exceeds the WPATH criteria for surgery, and that
9 “[o]wing to the severity of gender dysphoria and resultant clinically significant distress, and its
10 persistence despite years of hormone therapy and counseling, reassignment surgery is the
11 necessary intervention for Ms. Norsworthy, and should be immediately implemented.” Id. ¶¶ 78-
12 79. Ettner notes that although Norsworthy “currently denies suicidal ideation, she is presently
13 optimistic that she will receive surgery as a result of this lawsuit,” and without this “medically
14 necessary surgical intervention,” she is “at risk for emotional destabilization, which may result in
15 renewed suicide attempts given Ms. Norsworthy’s past suicide attempts and family history.” Id.
16 ¶¶ 83-84; see also id. ¶¶ 55, 63 (explaining that Norsworthy’s biological father committed suicide
17 in 1976 and that she has a history of suicidal ideation and two suicide attempts”).
18 Ettner also opines that Coffin’s evaluation and deposition testimony “reveal[] a profound
19 misunderstanding of, and lack of scientific information regarding, the nature, assessment, and
20 treatment of gender dysphoria.” Id. ¶ 86. She critiques Coffin’s use of male pronouns to refer to a
21 female gender dysphoric patient; his suggestion that gender dysphoria is an “alternate lifestyle” or
22 a developmental “disruption”; his conflation of sexual orientation and gender identity; and his lack
23 of familiarity with the Standards of Care and relevant research. Id. ¶¶ 87-94. She expresses
24 particular concern about Coffin’s opinion that self-mutilation, suicidality, and severe mental
25 illness are indicators that SRS is medically necessary, which is contrary to the Standards of Care
26 requirements that significant medical and mental health conditions must be well-controlled and a
27 patient must be capable of giving informed consent before a patient receives SRS. Id. ¶¶ 91-92;
28

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1 see Coffin Dep. at 40-41. Finally, she rejects Coffin’s suggestion that Norsworthy is not able to

2 make an informed decision about SRS until she has the opportunity to live as a woman outside of

3 prison. Ettner Decl. ¶ 93. To the contrary, she explains that patients must engage in twelve

4 continuous months of living in their affirmed gender role, whether or not they are institutionalized:

5 “Patients do not ‘decide’ they have a male gender identity in one ‘community’ and a female

6 gender identity in another.” Id.

7

2. Dr. R. Nick Gorton

8

Dr. R. Nick Gorton, an expert retained by Norsworthy, is a physician with expertise in the

9 treatment of transgender patients. Gorton Decl. ¶¶ 1, 3. He has provided primary care and

10 transgender-related care to over 200 transgender patients, including medical assessments, initiation

11 and monitoring of hormonal treatment, and determinations of whether and when patients meet the

12 criteria for SRS. Id. ¶ 4. His declaration is based on review of Norsworthy’s medical records and

13 deposition testimony, as well as Coffin’s evaluation. Id. ¶¶ 12-14. He states:

14

[B]ased on my review of Ms. Norsworthy’s records and, in

particular, the recommendation from her treating mental health

15

provider that sex reassignment surgery was medically necessary, sex

reassignment should have been performed years ago as a medically

16

necessary treatment for the distress Ms. Norsworthy experiences

from her gender dysphoria. She meets the criteria established by the

17

WPATH Standards of Care for sex reassignment surgery as a

medically necessary treatment and the delay in providing surgery

18

has subjected and continues to subject Ms. Norsworthy to significant

and unnecessary pain. 19

20 Id. ¶ 29. Gorton disagrees with Coffin’s conclusions. Id. ¶ 30. He explains that “[s]evere mental

21 health dysfunction is not necessary to refer patients for medically necessary sex reassignment

22 surgery, and, in fact, a current severe mental impairment is a contraindication for sex reassignment

23 surgery.” Id. ¶ 31. He notes that because of Norsworthy’s hepatitis C, she “continues to receive

24 ineffective hormone therapy that likely will result in continued damage to her liver and a

25 continuous cycle of going on and off the hormone treatments, resulting in unnecessary damage to

26 her liver and continually placing her at risk of worsening dysphoria.” Id. ¶ 35. Worsening

27 dysphoria puts patients at risk of depression, self-harm (including auto-castration), and suicide.

28 Id. ¶ 36. Accordingly, Gorton recommends “[i]mmediate, urgent referral for genital sex 14

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1 reassignment surgery.” Id. ¶ 38.

2

3. Dr. Stephen Levine

3

Dr. Stephen Levine, an expert retained by Defendants, is a psychiatrist who has testified as

4 an expert in three cases involving inmates’ requests for SRS. Levine Report at 1. His opinion is

5 based on his review of Norsworthy’s First Amended Complaint (“FAC”), ECF No. 10, Coffin’s

6 report, and some of Norsworthy’s mental health and other records, as well as an in-person

7 interview. Levine Report at 2, 12. Levine provided opinions concerning the provision of SRS to

8 incarcerated people in general, and to Norsworthy in particular.

9

With respect to SRS for institutionalized people in general, Levine opines that the

10 “Standards of Care assert that a real life experience living in society as a woman should be done

11 for at one year [sic] prior to SRS,” but inmates “have no comparable opportunity to live in free

12 society.” Id. at 6. He states, “I know of only one inmate in the US who has had SRS while in

13 custody. This California inmate’s mental health dramatically deteriorated.” Id. Defendants have

14 conceded, however, that the incident Levine describes could not have occurred, because “NO

15 vaginoplastys have ever been performed on any inmate incarcerated in CDCR.” ECF No. 80-2 at

16 31 (emphasis in original). Perhaps on the same factual basis, Levine further cautions that rather

17 than alleviating pain for incarcerated patients, SRS may in fact “induce a different types [sic] of

18 pain” because “[i]t risks taking away a long term incarcerated inmate’s life purpose, quest, hope

19 for the future, and reason to live.” Levine Report at 8. Levine states that long-term gender

20 dysphoria is “not the same meaning as severe pain,” and “is not comparable to physical pain.” Id.

21 at 11, 22. He suggests that “[l]egal advocates exaggerate the suffering of gender dysphoria

22 through a misunderstanding of its nature.” Id. at 11. Finally, in his view, “SRS is always an

23 elective procedure. There is no immediacy to it.” Id. at 25.

24

With respect to Norsworthy, Levine acknowledges that Reese’s recommendations “can be

25 read as meaning that a qualified mental health professional has made a judgment.” Id. at 10. He

26 also agrees that Norsworthy’s “gender identity was consolidated as feminine and is likely to

27 remain so within or outside of prison because by now it has little to do with genitalia or breast size

28 or clothing and everything to do with her self-concept.” Id. at 15. He states that “SRS would 15

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1 diminish her gender dysphoria,” and “might also benefit Michelle by enabling her to further

2 solidify her already strong female identity.” Id. at 22. He concludes that all of the WPATH

3 eligibility criteria have been met, except that “[s]he does not have any time, let alone 12 months,

4 of continuous living in the female gender role in society,” and “[s]he does not have two separate

5 mental health professionals [sic] letters of recommendation based upon independent evaluations.”

6 Id. at 24. He expresses that, after release, “she may be able to get two recommendations” based on

7 her years of hormone therapy, her persistent female gender identity, and her desire for SRS. Id.

8 He does not address the WPATH Standards of Care’s clear guidance that custodial status is

9 irrelevant to eligibility for SRS.

10

However, in Levine’s opinion, Norsworthy’s “existential distress does not constitute a

11 necessity for immediate SRS.” Id. at 22. He explains

12

Not being granted immediate SRS will likely disappoint Michelle,

usher in despair, temporarily overwhelm her with depression with

13

some suicidal ideation and leave her confused about her future.

When and if this ensues, she will be attended to by the corrections

14

mental health staff who are experienced with disappointed

despairing inmates. 15

16 Id. at 21. Levine also concludes that “[n]o treatment is indicated for her Hepatitis C” because

17 “[t]he deterioration of her liver function has been reversed by lowering her estrogen intake to a

18 reasonable dose,” and “her liver disease [is not] a reason to perform SRS to give her enough

19 estrogen to maintain her breast tissue.” Id.

20

Levine opines that “SRS will not significantly improve Michelle’s ability to function in

21 prison,” because she “is doing better today than ever before.” Id. at 23. Transfer to a women’s

22 prison, on the other hand, would “test her capacity to relate to females.” Id. In his view, “[n]ot

23 having SRS would prevent a possible psychological decompensation, another rape, or a sexually

24 transmitted disease.” Id. at 10. Levine also warns that if Norsworthy were released, “her priorities

25 will change.” Id. at 25. He states, “Clinicians and lawyers alike need to consider that transition to

26 femaleness is an adaptive response to long term incarceration. Once released, she may life [sic]

27 her life differently.” Id.

28 / / / 16

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1

G. CDCR Safety Concerns

2

No CDCR inmate has ever received SRS while in custody. Harrington Decl. ¶ 6. As a

3 result, CDCR has voiced “significant safety and security concerns” with the possibility of

4 Norsworthy receiving SRS. Id. ¶ 8. Kelly Harrington, the Acting Director of the Division of

5 Adult Institutions, cites concerns about arranging for Norsworthy’s surgery, providing security

6 during her hospitalization, and providing an appropriate location for post-operative recovery and

7 placement. Id. ¶ 6. Harrington explains that SRS would preclude Norsworthy from being housed

8 in an all-male facility, but that Norsworthy would be “at significant risk of being assaulted or

9 victimized by female offenders” in a women’s facility because of her history of domestic violence

10 against her girlfriend before her arrest. Id. ¶¶ 4, 7-8. Harrington is also concerned that

11 “Norsworthy might herself victimize female inmates.” Id. ¶ 8. She cites “numerous issues

12 experienced in providing a stable housing environment with a male-to-female transgender person

13 whose surgery took place before her arrival to CDCR.” Id. ¶ 6. Finally, she explains that housing

14 Norsworthy in administrative segregation would not be possible because her mental health

15 classification precludes long-term placement in segregation for non-disciplinary reasons. Id. ¶ 9.

16

H. Procedural History

17

Norsworthy initiated this action by filing a complaint under 42 U.S.C. § 1983 on February

18 14, 2014. ECF No. 1. On March 26, 2014, the Court dismissed her claims with leave to amend,

19 ECF No. 4, and on April 2, 2014, the Court issued an Order Appointing Counsel, ECF No. 7. On

20 April 15, 2014, the Court dismissed a separate but related action, Norsworthy v. Beard, et al., No.

21 3:14-cv-00345-JST, concerning Norsworthy’s request for a name change, without prejudice to

22 Plaintiff reasserting the name change claims in her amended complaint in this action. ECF No. 8

23 at 5.

24

Norsworthy filed her First Amended Complaint on July 2, 2014. ECF No. 10. She sues

25 Defendants Adams, Beard, Coffin, Lozano, Newton, Spearman, Van Leer, Zamora, and Does 1-30

26 under 42 U.S.C. § 1983, seeking injunctive relief based on Defendant’s failure to (1) provide her

27 with medically necessary SRS and (2) allow her to pursue a legal name change. FAC ¶ 1.

28 Norsworthy seeks injunctive relief (1) enjoining Defendants from interfering with the discretion of 17

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1 the mental health and other medical professionals involved in her care; (2) declaring California

2 Code of Regulations, Title 15, Section 3350.1(b)(2) unconstitutional on its face and as applied;

3 (3) enjoining Defendants to provide her with adequate medical care, including SRS; and (4)

4 requiring Defendants to allow her to seek a legal name change. Id. ¶¶ 100-03. She also seeks

5 attorneys’ fees and costs. Id. ¶ 104. On November 18, 2014, the Court granted Defendants’

6 motion to dismiss Norsworthy’s Section 1983 claim based upon deprivation of her Eighth

7 Amendment rights resulting from Defendants’ failure to allow her to pursue a legal name change,

8 and denied the motion to dismiss in all other respects. ECF No. 38.

9

Plaintiff now seeks a preliminary injunction that “Defendants shall provide Plaintiff with

10 access to adequate medical care, including sex reassignment surgery.” ECF No. 62-1 at 1.2

11 Defendants oppose the motion. ECF No. 73.

12

I. Jurisdiction

13

This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 1331, because

14 her Section 1983 claims arise under federal law.

15 II. REQUEST FOR JUDICIAL NOTICE

16

As a preliminary matter, the Court addresses Defendants’ request that the Court take

17 judicial notice of (1) an authenticated copy of the Order Appointing Receiver, Plata et al. v.

18 Schwarzenegger et al., Case No. 01-cv-1351-TEH (N.D. Cal. Feb. 14, 2006); and (2) an

19 authenticated copy of the CDCR Regulatory File pertaining to revisions of the California Code of

20 Regulations, Title 15, Section 3350.1. ECF No. 77. Plaintiff has not opposed this request.

21

Under Federal Rule of Evidence 201(b), the Court may take judicial notice of facts that are

22 “not subject to reasonable dispute” because they “can be accurately and readily determined from

23 sources whose accuracy cannot reasonably be questioned.” A court “must take judicial notice if a

24 party requests it and the court is supplied with the necessary information.” Fed. R. Evid.

25 201(c)(2). A court may properly take notice of its own records in other cases, U.S. v. Wilson, 631

26

27

2 Plaintiff’s proposed order also requests that the Court “enjoin[] [Defendants] from applying the discriminatory policies of denying transgender inmates access to medically necessary sex

28

reassignment surgery on the basis of their transgender status,” but Plaintiff’s motion does not discuss this request, and this order does not address it.

18

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1 F.2d 118, 119 (9th Cir. 1980), and of the official records of the CDCR, Brown v. Valoff, 422 F.3d

2 926, 931 n.7 (9th Cir. 2005). Accordingly, Defendants’ request for judicial notice is granted.

3 III. EVIDENTIARY OBJECTION AND MOTION TO STRIKE

4

Plaintiff objects to portions of Levine’s report and moves to strike them from the record.

5 ECF No. 78-4. Specifically, she seeks an order striking (1) testimony regarding prison culture and

6 the treatment of incarcerated patients; testimony regarding the effects of hormone therapy;

7 (3) testimony regarding the qualifications of Dr. Coffin; and (4) testimony regarding Plaintiff’s

8 sexuality. Id.; see also ECF No. 78-5. Defendants oppose this request. ECF No. 88.

9

A. Legal Standard

10

Federal Rule of Evidence 702 provides:

11

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

12

opinion or otherwise if:

13

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to determine

14

a fact in issue;

15

(b) the testimony is based on sufficient facts or data;

16

(c) the testimony is the product of reliable principles and methods;

and 17

(d) the expert has reliably applied the principles and methods to the

18

facts of the case.

19 Trial courts serve a “gatekeeping” role “to ensure the reliability and relevancy of expert

20 testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (citing Daubert v.

21 Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). They should screen “unreliable nonsense

22 opinions, but not exclude opinions merely because they are impeachable.” City of Pomona v.

23 SQM North America Corp., 750 F.3d 1036, 1044 (9th Cir. 2014). The Daubert test “is not the

24 correctness of the expert’s conclusions but the soundness of his methodology.” Id. “Shaky but

25 admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the

26 burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). The

27 proponent of the expert testimony has the burden of proving admissibility. Lust By & Through

28 Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 19

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1

Federal Rule of Evidence 401 provides that evidence is relevant if “it has any tendency to

2 make a fact more or less probable than it would be without the evidence” and “the fact is of

3 consequence in determining the action.” “Irrelevant evidence is not admissible.” Fed. R. Evid.

4 402. Relevant evidence may be excluded “if its probative value is substantially outweighed by a

5 danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,

6 undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

7

In considering a motion for a preliminary injunction, the Court may “give even

8 inadmissible evidence some weight, when to do so serves the purpose of preventing irreparable

9 harm before trial.” Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984); see

10 also Republic of the Phillippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988).

11

B. Discussion

12

1. Compliance with Rule 26

13

As a preliminary matter, Plaintiff contends that Levine’s report should be excluded for

14 failure to comply with the requirements of Federal Rule of Civil Procedure 26. ECF No. 78-4 at 1

15 n.2. First, she argues that although the report was submitted as a “rebuttal” report, Levine neither

16 reviewed nor responded to Plaintiff’s expert reports. Id. In addition, she argues that Defendants

17 failed to comply with Rule 26(a)(2)(B)’s requirement that expert reports include “the witness’s

18 qualifications, including a list of all publications authored in the previous 10 years.” ECF No. 78-

19 4 at 1 n.2. The CV provided by Defendants is dated December 1, 2008, and does not include all of

20 Levine’s qualifications or publications. ECF No. 80-2 at 9.

21

Rule 26(a)(2) governs disclosure of expert testimony that a party “may use at trial.” But

22 Levine is not currently a trial witness. In view of the streamlined and expedited nature of

23 preliminary injunction proceedings, the Court will not strike Levine’s report for noncompliance

24 with the rules applicable in preparation for trial. See South Yuba River Citizens League v.

25 National Marine Fisheries Service, 257 F.R.D. 607, 615 (E.D. Cal 2009); Midwest Guaranty Bank

26 v. Guaranty Bank, 270 F. Supp. 2d 900, 908 n.2 (E.D. Mich. 2003).

27

2. Testimony Regarding Incarcerated Persons

28

Norsworthy seeks an order striking Levine’s testimony about prison culture and the

20

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1 treatment that incarcerated persons with gender dysphoria should receive. ECF No. 78-4 at 5-11.

2 She argues that Levine is not qualified to testify on this subject because he does not have any

3 “skill, experience, training, or education” in the treatment of incarcerated patients. ECF No. 78-4

4 at 5; see Fed. R. Evid. 702. Furthermore, he does not cite research, experience, or evidence in the

5 record to support his generalized statements about prison culture and Norsworthy’s adaption to it.

6 ECF No. 78-4 at 6. His opinions concerning differential treatment for incarcerated and non-

7 incarcerated persons are unsupported by research (with the exception of one study, which he

8 misrepresents), and are directly contradicted by the Standards of Care. Id. at 7-8. Instead, he

9 relies on two unverified anecdotes: one he now concedes is false, see ECF No. 80-2 at 31, and the

10 other involves a web posting “for diverse companionship,” see Levine Decl. at 11. ECF No. 78-4

11 at 9.

12

Norsworthy’s request that the Court strike this testimony is denied. Levine is a licensed

13 psychiatrist and a Clinical Professor of Psychiatry at Case Western University School of

14 Medicine. Levine Report at 1; ECF No. 51 at 4. His work has focused on issues relating to 15 sexuality and gender, and he served as chairperson of the fifth edition of the Standards of Care.3

16 Levine Report at 1; ECF No. 51 at 4-16. Levine has testified as an expert witness in three other

17 cases involving transgender inmates, including Kosilek. Levine Report at 1. As a psychiatrist, it

18 is appropriate for Levine to base his opinions on his personal experience and on his interview with

19 Norsworthy. See Kumho Tire, 526 U.S. at 156 (“[N]o one denies that an expert might draw a

20 conclusion from a set of observations based on extensive and specialized experience.”); id. at 150

21 (“In [some] cases, the relevant reliability concerns may focus upon personal knowledge or

22 experience.”); see also Fed. R. Evid. 703 (“An expert may base an opinion on facts or data in the

23 case that the expert has been made aware of or personally observed. If experts in the particular

24 field would reasonably rely on those kinds of facts or data in forming an opinion on the subject,

25 they need not be admissible for the opinion to be admitted.”). The Court will consider factors

26 including the lack of citations to research in Levine’s report, the divergence between his opinion

27

28 3 The Standards of Care are currently in their seventh edition. ECF No. 10-1. 21

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1 and the Standards of Care, and his reliance on an anecdote he now admits is false in determining

2 the weight to accord his testimony. It will “not exclude opinions merely because they are

3 impeachable.” City of Pomona, 750 F.3d at 1044.

4

3. Testimony Regarding Plaintiff’s Health

5

Norsworthy also contends that Levine’s opinions concerning the effects of hormone

6 therapy on her physical health should be excluded because Defendants have presented no evidence

7 that Levine has ever practiced general medicine or otherwise obtained any expertise on the effects

8 of hormone therapy on the liver function of a patient with hepatitis C. ECF No. 78-4 at 11.

9 Furthermore, she argues, his opinions are not supported by citations to medical research or the

10 record, are contradicted by Gorton’s report, and were not echoed in the declaration of

11 Norsworthy’s treating endocrinologist, Munir. Id. at 12.

12

Levine’s CV indicates that he is a medical doctor who completed an internship in Internal

13 Medicine at the University Hospitals of Cleveland. ECF No. 51 at 4. The Court concludes that

14 this experience qualifies him to review Norsworthy’s medical records and to offer an opinion

15 about the risk to Norsworthy’s liver function of continuing hormone therapy. Levine’s opinions

16 are not inadmissible on the basis that they differ from Gorton’s and are not explicitly supported by

17 Munir. Disagreements with other experts and witnesses, or differences in the experts’ amounts of

18 experience, go to the weight of Levine’s testimony, not its admissibility.

19

4. Testimony Regarding Dr. Coffin’s Qualifications

20

Levine’s report states that Coffin was “qualified to opine on the medical necessity of SRS”

21 for Norsworthy. Levine Report at 9. Norsworthy contends that this opinion should be stricken

22 because Levine did not review Coffin’s CV or deposition testimony; did not provide any support

23 for the criteria he uses to evaluate Coffin’s experience, which are contrary to the Standards of

24 Care; relied on Coffin’s attendance at his own CDCR presentation, which did not address medical

25 necessity determinations; and did not respond to Ettner and Gorton’s criticisms of Coffin. ECF

26 No. 78-4 at 12-14.

27

As discussed above, Levine is a psychiatrist who focuses on gender and sexuality, and who

28 has been involved in the development of the Standards of Care. He reviewed Coffin’s report and 22

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1 parts of Norsworthy’s medical records, and personally interviewed Norsworthy. Under these

2 circumstances, the Court concludes that his opinion about Coffin’s qualifications is sufficiently

3 reliable to pass muster under Daubert.

4

5. Testimony Regarding Plaintiff’s Sexuality

5

Finally, Norsworthy contends that Levine’s repeated suggestions that her sexual

6 preferences and conduct are to blame for her victimization in prison, and specifically the gang rape

7 in 2009, should be stricken. Norsworthy contends that these statements are “extremely hurtful and

8 offensive,” “totally irrelevant to Plaintiff’s claims,” “highly prejudicial against Plaintiff,” and

9 “serve[] no purpose but to confuse issues and waste time.” ECF No. 78-4 at 14-15.

10

“It is well established that trial courts can consider otherwise inadmissible evidence in

11 deciding whether or not to issue a preliminary injunction.” Rubin ex rel. N.L.R.B. v. Vista Del

12 Sol Health Services, Inc., No. 14-cv-09534, 2015 WL 294101, at *6 (C.D. Cal. Jan. 21, 2015)

13 (citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Flynt Distrib. Co., 734 F.2d

14 at 1394; Republic of the Philippines, 862 F.2d at 1363). Moreover, although the statements in

15 question undermine Levine’s credibility, it is not clear that they are inadmissible.

16

The Court will not strike Levine’s observations as irrelevant or prejudicial at this stage in

17 the proceedings, where the risk of misleading or confusing a jury does not exist.

18 IV. MOTION FOR PRELIMINARY INJUNCTION

19

A. Legal Standard

20

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

21 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

22 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

23 Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). “[S]erious questions going to the

24 merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a

25 preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable

26 injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell,

27 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation marks omitted)..

28

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter,

23

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1 555 U.S. at 24. It may take two forms. “A prohibitory injunction prohibits a party from taking

2 action and preserves the status quo pending a determination of the action on the merits.” Marlyn

3 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009) (internal

4 alterations and quotation marks omitted). A mandatory injunction orders a party to take action.

5 Id. at 879. Because a mandatory injunction “goes well beyond simply maintaining the status quo

6 pendente lite [it] is particularly disfavored.” Id. (internal alterations omitted). “In general,

7 mandatory injunctions ‘are not granted unless extreme or very serious damage will result and are

8 not issued in doubtful cases or where the injury complained of is capable of compensation in

9 damages.’” Id. (quoting Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1980)).

10

Under the Prison Litigation Reform Act (“PLRA”):

11

In any civil action with respect to prison conditions, to the extent

otherwise authorized by law, the court may enter a temporary

12

restraining order or an order for preliminary injunctive relief.

Preliminary injunctive relief must be narrowly drawn, extend no

13

further than necessary to correct the harm the court finds requires

preliminary relief, and be the least intrusive means necessary to

14

correct that harm. The court shall give substantial weight to any

adverse impact on public safety or the operation of a criminal justice

15

system.

16 18 U.S.C. § 3626(a)(2).

17

B. Discussion

18

1. Likelihood of Success on the Merits

19

To obtain a preliminary injunction requiring Defendants to provide her SRS, Norsworthy

20 must first establish that she is likely to succeed on the merits of her SRS claims. She contends that

21 Defendants violated 42 U.S.C. § 1983 by denying her medically necessary treatment for gender

22 dysphoria in violation of the Eighth’s Amendment’s prohibition against cruel and unusual

23 punishment and the Fourteenth Amendment’s Equal Protection Clause.

24

a. Deliberate Medical Indifference

25

i. Legal Standard

26

“[D]eliberate indifference to serious medical needs of prisoners constitutes the

27 ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.

28 Gamble, 429 U.S. 97, 104 (1976) (internal citation omitted). Such indifference may be 24

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1 “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in

2 intentionally denying or delaying access to medical care or intentionally interfering with the

3 treatment once prescribed.” Id. In the Ninth Circuit, a plaintiff alleging deliberate indifference

4 must first “show a serious medical need by demonstrating that failure to treat a prisoner’s

5 condition could result in further significant injury or the unnecessary and wanton infliction of

6 pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle, 429 U.S. at 104)

7 (internal quotation marks omitted). Second, she “must show the defendant’s response to the need

8 was deliberately indifferent.” Id. This second prong “is satisfied by showing (a) a purposeful act

9 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

10 indifference.” Id. An inadvertent or negligent failure to provide adequate medical care does not

11 suffice to state a claim under Section 1983. Estelle, 429 U.S. at 105-06. “Medical malpractice

12 does not become a constitutional violation merely because the victim is a prisoner.” Id. at 106.

13 “However, the Supreme Court has also recognized that while ‘deliberate indifference’ under

14 Estelle requires more than a showing of mere negligence, ‘something less than [a showing of] acts

15 or omissions for the very purpose of causing harm or with knowledge that harm will result’ will

16 suffice.” Mandala v. Coughlin, 920 F. Supp. 342, 353 (E.D.N.Y. 1996) (citing Farmer v. Brennan,

17 511 U.S. 825, 835 (1994)).

18

ii. Serious Medical Need

19

Norsworthy is likely to succeed in establishing a serious medical need. She has presented

20 extensive and consistent evidence that, notwithstanding years of treatment in the form of hormone

21 therapy and counseling, she continues to experience severe symptoms of gender dysphoria. See

22 Norsworthy Dep. at 20-21, 87-88, 133; Ettner Decl. ¶¶ 69, 75. The “psychological and emotional

23 pain” Norsworthy experiences as a result of her gender dysphoria means that she is “unable to []

24 complete [her] existence or complete who [she is].” Norsworthy Dep. at 21. See Lopez v. Smith,

25 203 F.3d 1122, 1131 (9th Cir. 2000) (“chronic and substantial pain” is an example of a serious

26 medical need).

27

The WPATH Standards of Care explain that some individuals are unable to obtain relief

28 from gender dysphoria without surgical intervention, and describes SRS as “essential and 25

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1 medically necessary” for this group of patients. Standards of Care at 36. Defendants do not

2 challenge Norsworthy’s credibility or dispute that the WPATH Standards are the accepted

3 standards of care for the treatment of transgender patients like Norsworthy. See De’lonta v.

4 Johnson, 708 F.3d 520, 522-23 (4th Cir. 2013) (describing the Standards of Care as “the generally

5 accepted protocols” for the treatment of gender dysphoria); Soneeya v. Spencer, 851 F. Supp. 2d

6 228, 231 (D. Mass. 2012) (“the course of treatment for Gender Identity Disorder generally

7 followed in the community is governed by the ‘Standards of Care’”); O’Donnabhain v. Comm’r of

8 Internal Revenue, 134 T.C. 34, 65 (U.S. Tax Ct. 2010) (the Standards of Care are “widely

9 accepted in the psychiatric profession”). Indeed, Defendants argue that a preliminary injunction is

10 inappropriate in part because, in their view, Norsworthy does not meet the WPATH eligibility

11 criteria. ECF No. 73 at 26.

12

Norsworthy’s treating mental health care provider, Reese, who established a relationship

13 with her over two years, unequivocally determined that she is in the group of patients for whom

14 SRS is medically necessary. He explicitly stated that SRS is a “clinical and medical necessity for

15 her health and well-being.” ECF No. 68 at 14. Defendant’s expert, Levine, agrees with Plaintiff

16 that Reese is a “qualified mental health professional” for the purpose of making this assessment,

17 and that a treating provider is better suited to evaluate a patient’s level of distress over time than a

18 visiting independent expert. Levine Report at 10; ECF No. 71 at 34; see also Zamora Dep. at 107.

19 The reports of experts Ettner and Gorton, each of whom has extensive experience in treating

20 gender dysphoric patients, confirm Reese’s assessment and recommend that SRS should be

21 provided immediately. Ettner Decl. ¶ 79; Gorton Decl. ¶ 38.

22

It seems that Ettner’s recommendation means that Norsworthy has satisfied all of the

23 eligibility criteria for SRS, as the record demonstrates: (1) her persistent gender dysphoria; (2) her

24 capacity to make a fully informed decision and consent to treatment; (3) her majority; (4) that

25 significant medical and mental health concerns are well controlled; (5) that she has received

26 twelve continuous months of hormone therapy; (6) that she has lived in a female gender role for

27 twelve continuous months; and (7) that two qualified mental health professionals have

28 26

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1 recommended SRS after independent evaluations.4 See Standards of Care at 39.

2

Defendants do not dispute that untreated symptoms of gender dysphoria can constitute a

3 serious medical need. See Kosilek v. Spencer, 774 F.3d 63, 86 (1st Cir. 2014) (en banc). Rather,

4 Defendants argue that the hormone therapy and mental health treatment provided by CDCR since

5 2000 has alleviated Norsworthy’s distress, and that she is not entitled to “any particular type of

6 treatment” for her gender dysphoria. ECF No. 73 at 13-14 (citing Meriwether v. Faulkner, 821

7 F.2d 408, 413 (7th Cir. 1987)). Furthermore, Defendants argue, Norsworthy has not demonstrated

8 that SRS is medically necessary at the present time, because she has not shown that she will suffer

9 severe emotional distress or resort to self-mutilative behavior if she is denied SRS. ECF No. 73 at

10 14. In support of these arguments, Defendants rely on Levine’s report and, in particular, his

11 opinion that “sex reassignment surgery is always an elective procedure.” Levine Report at 25.

12

The Court is not persuaded by these arguments. “Just because [defendants] have provided

13 [a prisoner] with some treatment consistent with the [] Standards of Care, it does not follow that

14 they have necessarily provided her with constitutionally adequate treatment.” De’lonta, 708 F.3d

15 at 526 (emphasis in original); see also Fields v. Smith, 653 F.3d 550, 556 (7th Cir. 2011); Ortiz v.

16 City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (a plaintiff alleging deliberate medical

17 indifference “need not prove complete failure to treat”). As the Fourth Circuit has explained:

18

By analogy, imagine that prison officials prescribe a painkiller to an

19

inmate who has suffered a serious injury from a fall, but that the

inmate’s symptoms, despite the medication, persist to the point that

20

he now, by all objective measure, requires evaluation for surgery.

Would prison officials then be free to deny him consideration for

21

surgery, immunized from constitutional suit by the fact that they

were giving him a painkiller? We think not. Accordingly, although

22

. . . a prisoner does not enjoy a constitutional right to the treatment

of his or her choice, the treatment a prison facility does provide must

23

nevertheless be adequate to address the prisoner’s serious medical

need. 24

25

26 4 The First Circuit has opined that there is “no material difference” between a provider’s letter

27

confirming eligibility, but not recommending SRS, and “what the Standards of Care refers to as a letter of recommendation.” Kosilek v. Spencer, 774 F.3d 63, 88 (1st Cir.) (en banc). Under this

28

view, providers who have confirmed that Norsworthy is ready for surgery but have stopped short of recommending it as necessary might also be viewed as recommenders.

27

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1 De’Lonta, 708 F.3d at 526.

2

Moreover, Defendants have provided no credible support for the idea that Norsworthy

3 must demonstrate that she is likely to commit suicide or attempt auto-castration in order to

4 demonstrate a serious medical need, or that her claim fails because she has survived for decades

5 without SRS. A plaintiff demonstrates a “serious medical need” when she establishes that failure

6 to treat her condition could result in further significant injury or the unnecessary and wanton

7 infliction of pain. See Estelle, 429 U.S. at 104; Jett, 439 F.3d at 1096. She is not required to

8 demonstrate that she is at risk of death or imminent self-harm, or that her risk of injury or pain is

9 new. Norsworthy is likely to succeed in establishing that she has experienced decades of severe

10 psychological pain because SRS is the only way to treat her persistent symptoms of gender

11 dysphoria. The fact that she has not yet received SRS does not lessen her need for it now.

12

The Court gives very little weight to the opinions of Levine, whose report misrepresents

13 the Standards of Care; overwhelmingly relies on generalizations about gender dysphoric prisoners,

14 rather than an individualized assessment of Norsworthy; contains illogical inferences; and

15 admittedly includes references to a fabricated anecdote. With respect to the Standards of Care,

16 Levine represents that they “assert that a real life experience living in society as a woman should

17 be done for at [least] one year prior to SRS” and suggests that the Standards do not “govern the

18 treatment of long term inmates who consolidate a female gender identity.” Levine Report at 6, 24.

19 In his view, while some experts “interpret” the Standards to mean that “institutionalized

20 individuals should have the same right to treatment for Gender Dysphoria that community

21 dwelling individuals possess,” this is not an accurate interpretation. Id. at 6. But the Standards of

22 Care require “12 continuous months of living in a gender role that is congruent with the patient’s

23 identity,” which Levine concedes that Norsworthy has experienced, not a year of living in society

24 as a woman. Standards of Care at 39; Levine Report at 24. Furthermore, the Standards explicitly

25 apply “in their entirety” to all transsexual people, “irrespective of their housing situation,” and

26 “including institutional environments such as prisons.” Standards of Care at 43. They make clear

27 that “[d]enial of needed changes in gender role or access to treatments, including sex reassignment

28 surgery, on the basis of residence in an institution are not reasonable accommodations.” Id. at 44. 28

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1

Levine’s report concludes generally that “SRS is always an elective procedure,” that

2 “[g]ender dysphoria is not comparable to physical pain,” and that “severe” gender dysphoria “is

3 not the same meaning as severe pain.” Levine Report at 11, 22, 25. He also suggests that because

4 incarcerated people do not have the “opportunity to live in free society” in a gender role congruent

5 with their gender identity; because they often have “psychiatric co-morbidity” (i.e. other diagnoses

6 relevant to their mental health”); and because SRS might “induce a different types [sic] of pain”

7 by “taking away a long term incarcerated inmate’s life purpose, quest, hope for the future, and

8 reason to live,” it would never be medically prudent to provide SRS to an inmate. Id. at 5-6, 8.

9 To the extent that Levine’s apparent opinion that no inmate should ever receive SRS

10 predetermined his conclusion with respect to Norsworthy, his conclusions are unhelpful in

11 assessing whether she has established a serious medical need for SRS.

12

Setting aside these general concerns with Levine’s report, the Court concludes that his

13 opinion is not credible because of illogical inferences, inconsistencies, and inaccuracies in the

14 report. For example, Levine states that one reason that Norsworthy should not receive SRS is that

15 “[n]ot having SRS would prevent . . . another rape, or a sexually transmitted disease.” Id. at 10.

16 Levine reports that Norsworthy has been raped on six occasions, including one 2009 incident in

17 which nine inmates assaulted her over a period of six hours, and that she has hepatitis C,

18 apparently from the 2009 gang rape. Levine Report at 18, 20. It seems clear that denying

19 Norsworthy SRS is not protecting her from rape or sexually transmitted diseases. In another part

20 of the report, Levine suggests that “transition to femaleness is an adaptive response to long term

21 incarceration,” and speculates that if she is released, Norsworthy’s gender identity might change.

22 Id. 25. But in describing his interview with Norsworthy, he reports, “We agreed that her gender

23 identity was consolidated as feminine and is likely to remain so within or outside of prison.” Id. at

24 15. Levine offers no explanation for this discrepancy. Perhaps most concerningly, Levine bases

25 his opinions about the prudence of providing SRS to incarcerated patients in part on his statement

26 that, “I know of only one inmate in the US who has had SRS while in custody. This California

27 inmate’s mental health dramatically deteriorated.” Id. at 6. In a footnote, Levine explains, “The

28 inmate was presented to me when I gave a workshop to CDCR mental health professionals in 29

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1 2012.” Id. at 6 n.3. But, as Levine has now confirmed, no CDCR inmate has ever received SRS.

2 ECF No. 80-2 at 31.

3

The Court concludes that these serious weaknesses in Levine’s report undermine his

4 credibility as an expert and foreclose the conclusion that his opinions refute Norsworthy’s

5 compelling evidence of her serious medical need for SRS.

6

iii. Deliberate Medical Indifference

7

Norsworthy is also likely to succeed in establishing that prison officials were deliberately

8 indifferent to her serious medical need. “[D]eliberate indifference to medical needs may be shown

9 by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually

10 knew of a risk of harm.” Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (citing

11 Farmer, 511 U.S. at 842).

12

Here, Norsworthy has presented compelling evidence suggesting that prison officials

13 deliberately ignored her continuing symptoms of gender dysphoria and the recognized standards of

14 care; that they were deliberately indifferent to the recommendations of her treating health care

15 provider; that CDCR’s reasons for denying SRS are pretextual; and that CDCR has a blanket

16 policy against providing SRS for transgender inmates.

17

Norsworthy’s appeal stated that she required SRS to “alleviate [her] pain and suffering,”

18 and that she “suffers greatly w/out gender reassignment surgery.” ECF No. 68 at 5, 6. She

19 attached documents from her medical file confirming her ongoing symptoms, and Defendants had

20 access to her entire medical file. See id. at 2-53. Defendants also had access to information

21 relating to Norsworthy’s hepatitis C status. Norsworthy included materials in her appeal that

22 referred Defendants to the WPATH Standards of Care and the Kosilek decision, in which a district

23 court judge in Massachusetts had found that prison officials violated a transgender inmate’s Eighth

24 Amendment rights by failing to provide SRS when it was medically indicated under the WPATH 25 Standards.5 Id. Despite access to the relevant Standards of Care and evidence that SRS was

26 medically necessary for Norsworthy, Defendants failed to provide her SRS, or to refer her to a

27

28

5 The First Circuit’s decision reversing the district court was not issued until December 2014, after Defendants’ denial of Norsworthy’s appeal.

30

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1 specialist for further evaluation. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982).

2

In addition, Norsworthy has established that Defendants chose to ignore the clear

3 recommendations of her mental health provider, Reese, that SRS was medically necessary. Instead

4 of following his recommendations, they removed her from his care. “[A] prison official acts with

5 deliberate indifference when he ignores the instructions of the prisoner’s treating physician or

6 surgeon.” Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999); see also Estelle, 429

7 U.S. at 104-05 (prison officials act with deliberate indifference when they intentionally interfere

8 with treatment once prescribed); Lopez, 203 F.3d at 1132 (a prisoner “can establish deliberate

9 indifference by showing that officials intentionally interfered with his medical treatment”).

10

Norsworthy is likely to succeed in establishing that CDCR’s stated reasons for denying her

11 SRS are pretextual. First, the evidence suggests that Coffin’s evaluation was designed to support

12 the denial of SRS. Coffin was chosen to perform the evaluation because he had attended a training

13 at which Levine instructed participants that SRS should never be provided to incarcerated patients.

14 Coffin omitted several important indicators of medical necessity in his report and reached

15 conclusions that are at odds with the Standards of Care. Specifically, he expressed that SRS

16 would not be appropriate for Norsworthy because although she had been living “as much as a

17 female as permitted in a male institution in CDCR, it is unclear whether or not [her] decision

18 regarding SRS would change following release.” Coffin Eval. at 19. The implication that an

19 incarcerated person should never receive SRS because she has not had the opportunity to live

20 outside prison in a gender role that is congruent with her gender identity is inconsistent with the

21 Standards’ explicit rejection of the idea that SRS should be denied to a patient on the basis that she

22 lives in an institutional environment. Standards of Care at 44. See Hamilton v. Endell, 981 F.2d

23 1062, 1067 (9th Cir. 1992) (“By choosing to rely upon a medical opinion which a reasonable

24 person would likely determine to be inferior, the prison officials took actions which may have

25 amounted to the denial of medical treatment, and the ‘unnecessary and wanton infliction of

26 pain.’”), overruled in part on other grounds as recognized in Colwell v. Bannister, 763 F.3d 1060,

27 1069 (9th Cir. 2014). As Ettner convincingly explains in her declaration, it is clear from Coffin’s

28 deposition that he has “a profound misunderstanding of, and lack of scientific information 31

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1 regarding, the nature, assessment, and treatment of gender dysphoria.” Ettner Decl. ¶ 86; see id.

2 ¶¶ 87-94 (describing Coffin’s use of male pronouns to refer to a female gender dysphoric patient;

3 implication that gender dsyphoria is an “alternate lifestyle” or the result of a developmental

4 disruption; conflation of gender identity and sexual orientation; opinion that self-mutilation,

5 suicidality, and severe mental illness are indicators that SRS is medically necessary; and lack of

6 familiarity with the WPATH Standards of Care and relevant research).

7

Second, Zamora denied Norsworthy’s appeal at the third level of review on the basis that

8 her “current providers have documented the determination that the subject surgery is not medically

9 necessary for you.” ECF No. 68 at 3. There is no support for this statement in the record. There

10 is no evidence that any provider, as distinguished from an independent evaluator, has ever

11 determined that SRS is not medically necessary for Norsworthy. Zamora, who has no health care

12 training, was unable to identify any other occasion in which a primary care provider’s treatment

13 plan was overridden by the appeals process. Zamora Dep. at 39-43.

14

The evidence suggests that Norsworthy’s request for SRS was denied because CDCR has a

15 blanket policy barring SRS as a treatment for transgender inmates. See Colwell, 763 F.3d at 1071

16 (defendants not entitled to summary judgment where “[a] reasonable jury could find that [prison]

17 officials denied treatment because [plaintiff’s] medical need conflicted with a prison policy, not

18 because non-treatment was a medically acceptable option.”). The Department Operations Manual,

19 which Defendants indicate is a source considered in the appeals process, indicates that “[s]urgical

20 procedure shall not be the responsibility of the Department.” ECF No. 71 at 115. Norsworthy

21 testified that she was repeatedly informed by her health care providers that SRS was not available

22 to inmates. Norsworthy Dep. at 154-55. Kohler testified that there was an “understanding” that it

23 would not be available. Kohler Dep. at 45. This “understanding” is reflected in CDCR’s

24 guidelines for treating transgender inmates, which do not mention SRS as a treatment option, and

25 the 2012 training provided to CDCR staff by Levine, which indicated that SRS should never be

26 provided to incarcerated patients. See ECF No. 68 at 46-52; ECF No. 71 at 44-46.

27

Defendants point to Section 3350.1, which, they contend, authorizes vaginoplasty when it

28 is determined to be “clinically necessary” after individualized review. ECF No. 73 at 20-21. This 32

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1 regulation, they argue, supersedes any contrary policies in the Department Operations Manual,

2 which does not have the force of law, and establishes that CDCR’s governing policy is to provide

3 any surgery that is clinically necessary, prescribed by an appropriate treating health care

4 professional, and approved by a medical committee. But the evidence suggests that, in practice,

5 health providers and administrative reviewers understood that SRS was not available, and that

6 their decisions about Norsworthy’s care were informed by this understanding rather than an

7 individualized assessment of her medical need for SRS.

8

Defendants rely heavily on Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc), in

9 which the First Circuit, sitting en banc, reversed the decisions of the trial court and a panel of the

10 First Circuit finding that denial of SRS violated the plaintiff’s Eighth Amendment rights. Kosilek

11 is not binding on this Court. In any event, the First Circuit acknowledged in Kosilek that “any

12 [blanket] policy [barring SRS] would conflict with the requirement that medical care be

13 individualized based on a particular prisoner’s serious medical needs.” 774 F.3d at 91. And

14 although the court in Kosilek held that the defendants were not deliberately indifferent to a

15 transgender inmate’s medical needs where they chose between “two alternative courses of medical

16 treatment” that “both alleviate negative effects within the boundaries of modern medicine,” 774

17 F.3d at 90, the evidence does not suggest that, in this case, Defendants made a professional

18 medical judgment in choosing between two possibilities or that there was a difference of opinion

19 between a prisoner and her provider or between providers. See Sanchez v. Vild, 891 F.2d 240,

20 242 (9th Cir. 1989) (“A difference of opinion does not amount to a deliberate indifference to []

21 serious medical needs.”). Rather, it appears the CDCR overrode the recommendation of

22 Norsworthy’s treating mental health provider by deliberately seeking out a contrary opinion. This

23 approach is not endorsed by Kosilek. See Kosilek, 774 F.3d at 90 n. 12 (“This holding in no way

24 suggests that correctional administrators wishing to avoid treatment need simply to find a single

25 practitioner willing to attest that some well-accepted treatment is not necessary. We do not 26 establish here a per se rule allowing a dissenting medical opinion to carry the day.”).6

27

28

6 The Court expresses no view now as to whether Kosilek was otherwise correctly decided on its facts.

33

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1

Although Defendants characterize this as a case where CDCR physicians have so far

2 determined that SRS is not medically necessary, or even necessarily advisable, the evidence

3 presented does not support their position. Indeed, there is no evidence that any treating medical or

4 mental health provider has ever determined that SRS is not medically necessary for Norsworthy.

5 Defendants rely on the opinions of Coffin and Levine (both of whom agree that SRS would

6 alleviate Norsworthy’s symptoms, although they conclude that it is not necessary), but these

7 opinions are inconsistent with the Standards of Care, based on the unsupported assumption that

8 SRS should never be available to incarcerated patients, and convincingly refuted by Plaintiff’s

9 experts. The weight of the evidence demonstrates that for Norsworthy, the only adequate medical

10 treatment for her gender dysphoria is SRS, that the decision not to address her persistent

11 symptoms was medically unacceptable under the circumstances, and that CDCR denied her the

12 necessary treatment for reasons unrelated to her medical need. See Toguchi v. Chung, 391 F.3d

13 1051, 1058 (9th Cir. 2004) (“[T]o prevail on a claim involving choices between alternative courses

14 of treatment, a prisoner must show that the chosen course of treatment was medically unacceptable

15 under the circumstances, and was chosen in conscious disregard of an excessive risk to [the

16 prisoner’s] health.” (internal quotation marks omitted)). This is not a “doubtful case[].”

17 Anderson, 612 F.2d at 1115.

18

b. Equal Protection

19

Norsworthy also contends that Defendants violated her rights under the Equal Protection

20 Clause by treating her differently from similarly situated cisgender inmates seeking vaginoplasty.

21 ECF No. 62 at 24. Because the Court concludes that Norsworthy is likely to succeed on the merits

22 of her Eighth Amendment deliberate medical indifference claim and that a preliminary injunction

23 enjoining Defendants to provide SRS is appropriate on that basis, the Court need not consider her

24 likelihood of success on the Equal Protection claim.

25

2. Irreparable Harm

26

Norsworthy has also established that she is currently suffering irreparable harm and that it

27 will likely continue in the absence of a preliminary injunction. Norsworthy testified that she

28 suffers continued and “excruciating” “psychological and emotional pain” as a result of her gender 34

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1 dysphoria. Norsworthy Dep. at 20, 87-88. Emotional distress, anxiety, depression, and other

2 psychological problems can constitute irreparable injury. See Chalk v. U.S. Dist. Ct. Cent. Dist.

3 of California, 840 F.2d 701, 709 (9th Cir. 1988); Stanley v. University of Southern California, 13

4 F.3d 1313, 1324 n.5 (9th Cir. 1994). Norsworthy is at risk of significant worsening of her gender

5 dysphoria in the event that her hormone therapy must again be modified or discontinued because

6 of liver complications. The combination of Norsworthy’s severe gender dysphoria and hepatitis C

7 means that her current treatment plan creates serious risk for both her physical and psychological

8 health.

9

Furthermore, the deprivation of Norsworthy’s constitutional rights under the Eighth

10 Amendment is itself sufficient to establish irreparable harm. See Elrod v. Burns, 427 U.S. 347,

11 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time,

12 unquestionably constitutes irreparable injury.”); Nelson v. Nat’l Aeronautics & Space Admin, 530

13 F.3d 865, 882 (9th Cir. 2008), rev’d on other grounds, 562 U.S. 134 (2011) (“Unlike monetary

14 injuries, constitutional violations cannot be adequately remedied through damages and therefore

15 generally constitute irreparable harm.”); Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1282

16 (N.D. Cal. 2014) (“Irreparable harm is presumed if plaintiffs are likely to succeed on the merits

17 because a deprivation of constitutional rights always constitutes irreparable harm.”).

18

Defendants’ contention that Norsworthy cannot establish irreparable injury because “she

19 can point to no relevant circumstances that make the provision of [SRS] suddenly urgent” is

20 unpersuasive. ECF No. 73 at 25. Defendants cite no authority for the proposition that a patient

21 denied medically necessary treatment is not suffering “irreparable harm” when her serious

22 condition is not properly treated over a period of years or decades. See McNearney v. Washington

23 Department of Corrections, No. 11-cv-5930 RBL/KLS, 2012 WL 3545267, at *14 (W.D. Wash.

24 2012) (finding a likelihood of irreparable injury where plaintiff’s medical condition predated her

25 incarceration and had not worsened, but the evidence showed that she continued to suffer

26 unnecessary pain due to defendants’ inadequate treatment plan). Indeed, the record supports the

27 conclusion that Norsworthy’s need for SRS has been a matter of long-standing, not sudden,

28 urgency. The continuation of this suffering constitutes irreparable injury, whether this is the first 35

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1 month she has suffered it or the hundredth.

2

3. Balance of the Equities

3

In considering the equities of a preliminary injunction, courts “must balance the competing

4 claims of injury and must consider the effect on each party of the granting or withholding of the

5 requested relief.” Winter, 555 U.S. at 24. “ In exercising their sound discretion, courts of equity

6 should pay particular regard for the public consequences in employing the extraordinary remedy

7 of injunction.” Id. The balance of the equities favors Norsworthy’s requested relief. She has

8 established that she is suffering and is likely to continue to suffer unnecessary pain if she is denied

9 SRS. None of the considerations raised by Defendants outweigh her interest.

10

Defendants first argue that the balance tips in their favor because Norsworthy has not

11 shown that her distress has increased from the distress she has experienced over the past fifteen

12 years. As explained above, a plaintiff’s irreparable injury does not need to be new to be relevant.

13

Furthermore, the evidence contradicts Defendants’ contention that Norsworthy does not

14 meet the WPATH eligibility criteria for SRS. ECF No. 73 at 26. Defendants state that

15 Norsworthy has not had any time, let alone twelve months, of continuous living in the female

16 gender role in society, but this is not a requirement. The Standards of Care clearly state that

17 patients should have “12 continuous months of living in a gender role that is congruent with the

18 patient’s identity.” Standards of Care at 39. Norsworthy exceeds this requirement because she

19 has lived as a woman since the 1990’s. The standards “in their entirety apply to all transsexual,

20 transgender, and gender-nonconforming people, irrespective of their housing situation,” and

21 “including institutional environments such as prisons.” Id. at 43. There is no requirement that a

22 transsexual patient live for twelve months in his or her gender role outside of prison before

23 becoming eligible for SRS. It also appears that Norsworthy now satisfies the requirement that she

24 must receive two independent clinical evaluations recommending SRS, as SRS has been

25 unequivocally recommended by both Reese and Ettner.

26

The Court is not persuaded that CDCR’s safety and security concerns override

27 Norsworthy’s interest in receiving constitutionally adequate care. CDCR may not have experience

28 housing an inmate undergoing SRS, but it does have experience housing inmates who require 36

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1 surgery and housing one post-operative male-to-female transsexual individual. Any suggestion

2 that housing a female inmate with a history of violence against women would be a novel security

3 challenge is hard to square with the fact that CDCR already houses many women with a history of

4 violence, including violence against their female partners.

5

The Court takes seriously Defendants’ concern that a preliminary injunction providing

6 SRS potentially deprives them of appellate review. However, Norsworthy has established that she

7 is likely to succeed on the merits of her claims and that she is suffering from irreparable injury as a

8 result of the deprivation of her Eighth Amendment rights. Consequently, the Court concludes that

9 the balance of hardships tips heavily in her favor.

10

4. Public Interest

11

The Court concludes that an injunction is in the public interest. “[I]t is always in the

12 public interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio,

13 695 F.3d 990, 1002 (9th Cir. 2012); see also United States v. Raines, 362 U.S. 17, 27 (1960)

14 (“[T]here is the highest public interest in the due observance of all the constitutional guarantees.”).

15 “In addition, ‘the public has a strong interest in the provision of constitutionally-adequate health

16 care to prisoners.’” McNearney, 2012 WL 3545267, at *16 (quoting Flynn v. Doyle, 630 F. Supp.

17 2d 987, 993 (E.D. Wis. 2009)). There is no public interest in Norsworthy’s continued suffering

18 during the pendency of this litigation.

19

The evidence in this case belies Defendants’ claim that an injunction is not in the public

20 interest because Norsworthy is asking the Court “to disregard the reasoned opinion of medical and

21 mental health professionals most familiar with her care.” ECF No. 73 at 27. The only people who

22 have determined that SRS is not medically necessary are Coffin and Levine, each of whom met

23 Norsworthy on one occasion and can hardly be described as the health care professionals “most

24 familiar with her care.” Norsworthy is not seeking to “short-circuit the prison’s internal processes

25 for medical treatment.” Id. She is seeking access to the medical treatment prescribed by her

26 treating provider and denied for administrative, rather than medical, reasons. As discussed above,

27 Defendants’ security concerns are unpersuasive. The Court therefore also disagrees that “[t]he

28 public’s interest in orderly prison administration dictates that Norsworthy’s motion should be 37

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1 denied.” ECF No. 73 at 28.

2

5. PLRA

3

Norsworthy has established that she is likely to succeed on the merits of her Eighth

4 Amendment claim, that she is likely to suffer irreparable harm without an injunction, that the

5 balance of the equities tips in her favor, and that an injunction is in the public interest. An

6 injunction granting her access to adequate medical care, including referral to a qualified surgeon

7 for SRS, is narrowly drawn, extends no further than necessary to correct the constitutional

8 violation, and is the least intrusive means necessary to correct the violation. See 18 U.S.C.

9 § 3626. There is no evidence that granting this relief will have “any adverse impact on public

10 safety or the operation of the criminal justice system.” 18 U.S.C. § 3626(a)(2).

11 V. CONCLUSION

12

For the foregoing reasons, Plaintiff’s motion for a preliminary injunction is granted.

13 Defendants are ordered to provide Plaintiff with access to adequate medical care, including sex

14 reassignment surgery. Defendants shall take all of the actions reasonably necessary to provide

15 Norsworthy sex reassignment surgery as promptly as possible. Defendant’s request for judicial

16 notice is granted. Plaintiff’s evidentiary objection and motion to strike is denied.

17

The Court also sets the matter for a further Case Management Conference on Wednesday,

18 May 13, 2015, at 2:00 p.m. The parties must file a Joint Case Management Statement by May 6,

19 2015.

20

IT IS SO ORDERED.

21 Dated: April 2, 2015 22 23 24

______________________________________ JON S. TIGAR
United States District Judge

25

26

27

28 38

 
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1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
MICHELLE-LAEL B. NORSWORTHY, 7
Plaintiff, 8
v. 9
JEFFREY BEARD, et al., 10
Defendants. 11

Case No. 14-cv-00695-JST
ORDER DENYING MOTION TO STAY ORDER GRANTING PRELIMINARY INJUNCTION Re: ECF No. 99

12

Before the Court is a Motion to Stay Order Granting Preliminary Injunction filed by

13 Defendants J. Beard, M. Spearman, R. Coffin, J. Lozano, A. Adams, A. Newton, D. Van Leer, and

14 L. Zamora. ECF No. 99. For the reasons set forth below, the Court will deny the motion.

15 I. BACKGROUND

16

In this action under 42 U.S.C. § 1983, Plaintiff Michelle-Lael B. Norsworthy, a California

17 Department of Corrections and Rehabilitation (“CDCR”) inmate, seeks injunctive relief based on

18 Defendants’ failure to (1) provide her with medically necessary sex reassignment surgery (“SRS”)

19 and (2) allow her to pursue a legal name change. First Amended Complaint, ECF No. 10 ¶ 1.

20

On April 2, 2015, the Court granted Norsworthy’s motion for a preliminary injunction and

21 ordered Defendants to provide Plaintiff with access to adequate medical care, including SRS.

22 Order Granting Motion for Preliminary Injunction, Granting Request for Judicial Notice, and

23 Denying Motion to Strike (“Order”), ECF No. 94 at 38. The Court concluded that Norsworthy has

24 shown that she is likely to succeed on the merits of her deliberate medical indifference claim, that

25 she is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

26 hardships tips in her favor, and that an injunction is in the public interest. Id. at 34, 37; see Winter

27 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Court ordered Defendants to take

28 all of the actions reasonably necessary to provide Norsworthy SRS as promptly as possible.

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1 Order at 38.

2

On April 10, 2015, Defendants filed the instant motion to stay the Court’s order pending

3 review by the Ninth Circuit. ECF No. 99. Plaintiff opposes the motion. ECF No. 115.

4 II. LEGAL STANDARD

5

Federal Rule of Civil Procedure 62(c) authorizes the Court to suspend an order granting an

6 injunction pending appeal. A stay is “an exercise of judicial discretion, and the propriety of its

7 issue is dependent upon the circumstances of the particular case. The party requesting a stay bears

8 the burden of showing that the circumstances justify an exercise of that discretion.” Nken v.

9 Holder, 556 U.S. 418, 433-34 (2009) (internal alterations, citations, and quotation marks omitted).

10 A stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant.”

11 Id. at 427.

12

“The standard for determining whether to grant a stay pending appeal is similar to the

13 standard for issuing a preliminary injunction.” Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 12-

14 cv-00630-LHK, 2012 WL 2576136, at *1 (N.D. Cal. July 3, 2012) (citing Tribal Vill. of Akutan v.

15 Hodel, 859 F.2d 662, 663 (9th Cir. 1988); Winter, 555 U.S. at 20). In making this determination,

16 a court balances four factors: (1) whether the movant has made a strong showing that it is likely to

17 succeed on the merits; (2) whether the movant will be irreparably injured absent a stay;

18 (3) whether a stay will substantially injure the other parties interested in the proceeding; and

19 (4) where the public interest lies. Nken, 556 U.S. at 434; see also Leiva-Perez v. Holder, 640 F.3d

20 962, 964-66 (9th Cir. 2011). The standard for granting a stay is a continuum. “[I]f there is a

21 ‘probability’ or ‘strong likelihood’ of success on the merits, a relatively low standard of hardship

22 is sufficient,” but “if the balance of hardships tips sharply in . . . favor’ of the party seeking the

23 stay, a relatively low standard of likelihood of success on the merits is sufficient.” Golden Gate

24 Restaurant Ass’n v. City and County of San Francisco, 512 F.3d 1112, 1119 (9th Cir. 2008)

25 (quoting Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)); see also Leiva-Perez, 640 F.3d

26 at 965-67, 970. The first two factors “are the most critical.” Nken, 556 U.S. at 434.

27

28 2

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1 III. DISCUSSION

2

A. Likelihood of Success on the Merits

3

Courts use different formulations to describe the first Nken factor, including “reasonable

4 probability,” “fair prospect,” “substantial case on the merits,” and “serious legal questions . . .

5 raised.” Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir. 2012). These formulations “are largely

6 interchangeable,” and “indicate that, ‘at a minimum,’ a petitioner must show that there is a

7 ‘substantial case for relief on the merits.’” Id. (quoting Leiva-Perez, 640 F.3d at 968). “The

8 standard does not require the petitioners to show that ‘it is more likely than not that they will win

9 on the merits.’” Id. (quoting Leiva-Perez, 640 F.3d at 966).

10

Defendants argue that they meet this prong for two reasons. First, Defendants contend that

11 their appeal of this Court’s order granting a preliminary injunction implicates a serious legal

12 question of first impression in the Ninth Circuit: “whether a treatment plan involving hormone

13 therapy, counseling, and other non-surgical treatments for gender dysphoria meets the

14 constitutional minimum in cases where, as here, it purportedly fails to alleviate the inmate’s

15 mental distress.” ECF No. 99 at 4. Second, Defendants contend that they are likely to succeed on

16 the merits because a mandatory injunction requiring them to provide surgery to Norsworthy

17 should not have issued. Id. at 4-5.

18

The Court agrees that Defendants’ appeal raises a “serious legal question” that satisfies

19 that formulation of the likelihood of success prong of the stay analysis. See United States v. 2366

20 San Pablo Ave., No. 13-cv-02027-JST, 2015 WL 525711, at *2 (N.D. Cal. Feb. 6, 2015). Plaintiff

21 argues that the Court’s decision to grant a preliminary injunction is based on well-established legal

22 principles, and that Defendants’ motion merely asserts that the Court misapplied the facts in this

23 case to those legal standards. ECF No. 115 at 5. But Defendants’ argument that CDCR need not

24 provide SRS to patients with gender dysphoria, even where other treatment options fail to alleviate

25 an inmate’s suffering, suggests a distinct standard for the treatment of gender dysphoria, and has 26 not yet been addressed by the Ninth Circuit.1

27

28

1 Plaintiff’s argument that the First Circuit has rejected any bright line rule denying SRS to inmates who receive counseling and hormone therapy simply underscores the fact that the

3

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1

Defendants have not, however, established that they are likely to succeed on the merits of

2 their appeal. In granting a mandatory preliminary injunction requiring surgery, this Court

3 recognized that mandatory injunctions are “particularly disfavored,” and “are not granted unless

4 extreme or very serious damage will result and are not issued in doubtful cases.” Order at 24

5 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.

6 2009)). The Court granted the preliminary injunction only after concluding that Norsworthy was

7 likely to succeed on the merits of her deliberate indifference claim, Order at 34 (“This is not a

8 doubtful case” (quotation marks and alterations omitted)); and that she is suffering serious

9 psychological and emotional harm, id. at 25, 28, 34-36.

10

Defendants argue that Norsworthy has received sufficient treatment for her gender

11 dysphoria, relying on the opinions of Dr. Coffin and Dr. Levine; that Dr. Reese’s opinions are

12 unsupported; that Norsworthy has failed to demonstrate that her condition has worsened such that

13 she requires SRS immediately; and that Norsworthy’s difference of opinion with prison medical

14 staff does not give rise to a Section 1983 claim. ECF No. 99 at 5-8. The Court already considered

15 these arguments in deciding Plaintiff’s motion for a preliminary injunction, and reached a

16 reasoned conclusion rejecting them. See Order at 25-34. As explained in the Court’s April 2,

17 2015, order, it is Norsworthy, and not Defendants, who has established that she is likely to prevail

18 on the merits.

19

B. Irreparable Injury to the Moving Party

20

Defendants argue that they will suffer irreparable harm absent a stay because the Court’s

21 order forces CDCR to perform “a procedure that is wholly undefined in the order and that several

22 doctors have specifically advised against;” and because it could require CDCR to perform any

23 number of procedures on any transgender inmate who has undergone twelve months of hormone

24 therapy and asserts that the procedure is necessary to alleviate his or her gender dysphoria,

25 notwithstanding CDCR’s safety and security concerns. ECF No. 99 at 8-9. These arguments are

26

27 question has not been resolved in our circuit. See Kosilek v. Spencer, 774 F.3d 63, 91 (1st Cir.

28

2014) (en banc) (“[A]ny such [blanket] policy would conflict with the requirement that medical care be individualized based on a particular prisoner’s serious medical needs.”).

4

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1 unpersuasive.

2

First, Defendants have repeatedly used the term SRS in their briefing, declarations, and

3 oral presentations to the Court without raising any argument about its ambiguity. Their argument

4 that “sex reassignment surgery” is ambiguous will not be considered for the first time here. Cf.

5 Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (a motion for

6 reconsideration may not be used to raise arguments for the first time when they could reasonably

7 have been raised earlier in the litigation); In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th

8 Cir. 2000) (absent exceptional circumstances, the Court of Appeals generally will not consider

9 arguments raised for the first time on appeal). To the extent that Defendants find the Court’s order

10 unclear, they may file a motion for clarification.

11

Second, the Court has already found the opinions of Dr. Coffin and Dr. Levine, who

12 concluded that SRS is not medically necessary for Norsworthy, to be unreliable and convincingly

13 refuted by Plaintiff’s experts. Order at 28-30, 31-32, 37. The Court has also weighed Defendants’

14 safety and security concerns, noting that CDCR has relevant experience housing inmates who

15 require surgery, one post-operative male-to-female transsexual inmate, and female inmates with a

16 history of violence against women. Order at 36-37.

17

Third, the Court explicitly granted a preliminary injunction only as to Plaintiff Michelle

18 Norsworthy. See, e.g., Order at 25 (“She has presented extensive and consistent evidence that,

19 notwithstanding years of treatment in the form of hormone therapy and counseling, she continues

20 to experience severe symptoms of gender dysphoria.”); 30 (“Norsworthy is also likely to succeed

21 in establishing that prison officials were deliberately indifferent to her serious medical need.”); 34

22 (“The weight of the evidence demonstrates that for Norsworthy, the only adequate medical

23 treatment for her gender dysphoria is SRS, that the decision not to address her persistent

24 symptoms was medically unacceptable under the circumstances, and that CDCR denied her the

25 necessary treatment for reasons unrelated to her medical need.”); 38 (“Defendants are ordered to

26 provide Plaintiff with access to adequate medical care, including sex reassignment surgery.”). The

27 order cannot reasonably be read to require CDCR to perform any surgical procedures, undefined

28 or otherwise, on any other inmate. 5

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1

Defendants also assert that they will be injured absent a stay because the Court has

2 effectively disposed of the entire case without a final judgment of liability and because the

3 injunction potentially deprives Defendants of appellate review. ECF No. 99 at 9. As noted in the

4 April 2, 2015, order, the Court takes this concern seriously, and weighed it in considering whether

5 to grant a preliminary injunction. Order at 37 (concluding that the balance of hardships tips

6 heavily in Norsworthy’s favor). Furthermore, the Court notes that denial of the requested stay as

7 to Norsworthy will not deprive Defendants of the opportunity to present their arguments

8 concerning constitutionally adequate care for patients with gender dysphoria to the Ninth Circuit,

9 because Norsworthy is not the only CDCR inmate seeking SRS. See, e.g., Quine v. Beard, No.

10 14-cv-02726-JST (N.D. Cal. filed June 12, 2014); Rosati v. Igbinoso, No. 13-15984 (9th Cir. filed

11 Mar. 16, 2013).

12

C. Substantial Injury to Other Parties

13

The Court rejects any suggestion that Norsworthy “will not suffer any substantial injury if

14 the order is stayed” and that “[t]here is no evidence that Norsworthy is in serious, immediate

15 physical or emotional danger.” ECF No. 99 at 9-10. To the contrary, the Court’s order granting

16 an injunction was explicitly based on the finding that Norsworthy is likely to succeed on the

17 merits and that she is suffering from irreparable injury as a result of the deprivation of her Eighth

18 Amendment rights. Order at 37. As explained in the order, Norsworthy has shown that she

19 suffers continuing psychological and emotional pain as a result of her gender dysphoria and that

20 she is at risk of significant worsening of her condition in the event that her hormone therapy must

21 again be modified or discontinued because of liver complications. Order at 34-35; see also Fyock

22 v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1282 (N.D. Cal. 2014) (“Irreparable harm is presumed

23 if plaintiffs are likely to succeed on the merits because a deprivation of constitutional rights

24 always constitutes irreparable harm.”). Plaintiff also presented evidence that she is at risk of

25 renewed suicide attempts because of her past attempts and family history. See Order at 13 (citing

26 ECF No. 63 ¶¶ 55, 63, 83-84). The Court concludes that a stay of the order granting a preliminary

27 injunction would result in substantial injury to Norsworthy.

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United States District Court Northern District of California

1

D. The Public Interest

2

Defendants argue that the public interest favors a stay because: (1) “[t]he public has a

3 strong interest in having this case resolved on the merits, rather than having a decision issued on

4 an incomplete record and misapplication of the law;” (2) having federal courts make ad hoc

5 decisions concerning the treatment of single prisoners undermines the public’s interest in

6 penological order; and (3) the Court’s order takes no account of relevant administrative and

7 security issues. ECF No. 99 at 10-11.

8

The Court has concluded that an injunction is in the public interest, as it “is always in the

9 public interest to prevent the violation of a party’s constitutional rights” and the “public has a

10 strong interest in the provision of constitutionally-adequate health care to prisoners.” Order at 37

11 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012); McNearney v. Wash. Dep’t of

12 Corr., No. 11-cv-5930-RBL/KLS, 2012 WL 3545267, at *16 (W.D. Wash. June 15, 2012)). The

13 injunction does not inappropriately inject the federal courts into treatment decisions − it is based

14 on this Court’s conclusion that Norsworthy is likely to establish that Defendants have violated the

15 Eighth Amendment’s prohibition on cruel and unusual punishment by disregarding her health care

16 provider’s recommendations for administrative, rather than medical, reasons. See Estelle v. 17 Gamble, 429 U.S. 97, 104 (1976).2 And, as discussed above, the Court has considered and

18 weighed Defendants’ safety and security concerns. Order at 36-37.

19

Defendants’ argument that the Court reached its conclusion on an inadequate record is not

20 supported by the facts. As Plaintiff explains, the parties engaged in extensive discovery, including

21 the production of thousands of documents and the taking of seven depositions, before the

22 preliminary injunction hearing, and stipulated to one continuance of the hearing in order to allow

23 for additional discovery. ECF No. 48. Defendants did not seek any further extension of discovery

24

25 2 The cases Defendants cite in support of this argument do not involve deliberate medical indifference claims. See Kelly v. Merrill, No. 14-cv-2322, 2014 WL 7740025 (M.D. Pa. Dec. 11,

26 2014) (involving inmate discipline, denial of parole, access to legal resources, mail service, and

alleged verbal harassment and intimidation); Wylie v. Mont. Women’s Prison, No. 13-cv-5327 BLG-SEH, 2014 WL 6685983 (D. Mont. Nov. 25, 2014) (involving a request that the Court order

28

a prison to return property, allow plaintiff an alternate means to retain legal work, and replace lost or destroyed documents).

7

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United States District Court Northern District of California

1 for the purpose of deposing the parties’ experts or Dr. Reese, and explicitly opposed any

2 additional continuances of the hearing. ECF No. 71 at 119. And although the Court invited the

3 parties to request an evidentiary hearing if necessary, ECF Nos. 33, 48, Defendants did not seek

4 such a hearing. Defendants cannot now be heard to complain that the record is inadequate.

5

In summary, the Court concludes that Defendants have not shown that they are likely to

6 succeed on the merits of their appeal, but agrees that the appeal of the Court’s order granting a

7 preliminary injunction does raise a serious legal question. Further, Defendants have shown that

8 they may suffer irreparable injury if the stay is denied to the extent they argue that denial of a stay

9 potentially deprives them of appellate review. On the other hand, the Court concludes that

10 Norsworthy has established that she is likely to prevail on the merits of her deliberate indifference

11 claim, and that she is suffering from irreparable injury as a result of the deprivation of her Eighth

12 Amendment rights. Consequently, the balance of hardships tips heavily in her favor. Finally, the

13 public interest weighs against a stay. Balancing these factors, the Court concludes that the motion

14 for a stay must be denied. See Leiva-Perez, 640 F. 3d at 970 (“a petitioner seeking a stay of

15 removal must show that irreparable harm is probable and either: (a) a strong likelihood of success

16 on the merits and that the public interest does not weigh heavily against a stay; or (b) a substantial

17 case on the merits and that the balance of hardships tips sharply in the petitioner’s favor.”).

18 IV. CONCLUSION

19

For the foregoing reasons, the motion to stay is denied. In light of this Court’s denial of

20 the motion, Defendants may move for a stay in the court of appeals pursuant to Federal Rule of

21 Appellate Procedure 8(a)(2).

22

IT IS SO ORDERED.

23 Dated: April 27, 2015 24 25 26

______________________________________ JON S. TIGAR
United States District Judge

27

28 8

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8 JEFFREY B. NORSWORTHY, aka,
9 MICHELLE-LAEL B. NORSWORTHY,

10

Plaintiff,

11

v.

12 JEFFREY BEARD, et al.,

13

Defendants.

Case No. 14-cv-00345-JST (PR)
ORDER OF DISMISSAL WITHOUT PREJUDICE

United States District Court Northern District of California

14

15

INTRODUCTION

16

On January 23, 2014, plaintiff, a California prisoner then incarcerated at the Correctional

17 Training Facility ("CTF") and proceeding pro se, filed the above-titled civil rights action under 42 18 U.S.C. §1983.1 She2 seeks an injunction requiring the California Department of Corrections and

19 Rehabilitation ("CDCR") to permit her a legal name change. Her complaint is now before the

20 Court for review under 28 U.S.C. § 1915A.

21

DISCUSSION

22 1. Standard of Review

23

A federal court must engage in a preliminary screening of any case in which a prisoner

24 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28

25 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any

26

1 Plaintiff currently is incarcerated at Mule Creek State Prison. 27

28

2 According to the complaint, plaintiff is a pre-operation, transgender individual. Plaintiff refers to herself using female pronouns in her filings; therefore, the Court will do so in this Order.

1 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or

2 seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

3 Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

4 699 (9th Cir. 1990).

5

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

6 claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the

7 statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon

8 which it rests.'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although in

9 order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's

10 obligation to provide the grounds of his 'entitle[ment] to relief' requires more than labels and

11 conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

United States District Court Northern District of California

12 Factual allegations must be enough to raise a right to relief above the speculative level." Bell

13 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint

14 must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974.

15

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

16 right secured by the Constitution or laws of the United States was violated; and (2) that the

17 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

18 U.S. 42, 48 (1988).

19 2. Plaintiff's Allegations

20

The following allegations are taken from the complaint. Plaintiff began serving a life

21 sentence within the CDCR in 1987. In 1999, plaintiff was referred to the Department of Mental

22 Health within the California Medical Facility. In January 2000, Ph.D. C.R. Viesti, a specialist in

23 gender/sexual dysphorias and disorders, concluded that plaintiff is a transsexual suffering from

24 severe Gender Identity Disorder ("GID").

25

Following the diagnosis, plaintiff started a feminizing endocrine therapy and

26 psychotherapy. She has remained at pre-operation dosages and intensity over the last 14 years.

27 She has also undergone castration and "has developed and evolved into an extremely feminized,

28 2

1 female, and womanly person in form and stature." (Compl. at 8.3) According to "several doctors,"

2 plaintiff "Presents-as-Female." (Id.)

3

Plaintiff has filed a separate action currently before this Court, seeking Sex Reassignment

4 Surgery ("SRS"). (See Norsworthy v. Beard, Case No. C 14-00695 JST (PR). The Court recently

5 appointed counsel in C 14-00695 JST (PR) and has issued a schedule for the filing of an amended

6 complaint in that action.

7

In this action, plaintiff “is not seeking an order for SRS, but a legal name change prior to

8 SRS.” (Compl. at 9.) Plaintiff asserts that, according to the guidelines set by the World

9 Professional Association for Transgender Health, Inc. ("WPATH"), name changes "are a very

10 necessary component of the pre-surgical process; delay of document/name changes can have a

11 deleterious impact on a patient's mental health and social integration." (Id.)

United States District Court Northern District of California

12

Plaintiff asserts that, pursuant to CDCR policy, a prisoner "can only change their name

13 with the consent of a Warden, Parole Officer or the Secretary of the CDCR." (Compl. at 6.) "The

14 request should be denied when there is reason to believe the name change request is for

15 criminal/nefarious motives to conceal connection to past criminal history." (Id. (citing Cal. Code

16 Regs. tit. 15, § 3294.5)) Plaintiff asserts she is not seeking a name change for criminal reasons.

17 "Plaintiff is seeking a name change based on a state documented medical condition that defines

18 her as a woman/biological female." (Compl. at 7.)

19

Plaintiff states she requested a legal name change "using proper CDCR procedure, and

20 quoting CDCR policy." (Compl. at 6.) She "was denied at each level of administrative review."

21 (Id.) Plaintiff names as defendants CDCR Secretary Jeffrey Beard, CTF Warden M.E. Spearman,

22 CDCR Appeals Examiner D. Van Leer, and CDCR Appeals Chief J.D. Lozano.

23 3. Analysis

24

The allegations fail to state a claim under § 1983. There is no federal subject matter

25 jurisdiction to entertain a petition for change of name. Said requests are generally made to the

26 state courts, which have either statutory or common law jurisdiction to entertain such requests.

27

28

3 The page numbers used herein for this document refer to those affixed to the top of the page by the court's electronic filing program.

3

1 See Cal. Civ. Proc. Code §§ 1275-1279.5. Even where a state confers a common law right to

2 change one's name, prison officials may require an inmate to follow statutory procedure for

3 changing one's name in order to have prison authorities recognize the new name and prevent

4 "capricious, incessant, casual, sudden, harassing, on-the-spot name changes." Azeez v. Fairman,

5 795 F.2d 1296, 1299 (7th Cir. 1986).

6

Plaintiff's allegations that defendants are violating CDCR policy, and thereby preventing

7 her from petitioning for a legal name change in state court, do not alter the Court's analysis.

8 Failing to follow internal procedures does not violate any constitutional right or other provision of

9 federal law cited by plaintiff or known to the Court. California prison policy is not federal law

10 and no federal constitutional right or other federal law cited by plaintiff or known to the Court

11 requires prison officials to entertain petitions for a name change. If plaintiff believes that prison

United States District Court Northern District of California

12 officials are not adhering to their own policies, her remedy is to seek enforcement of those policy

13 in an administrative grievance; if these policies have the force of state law, then her remedy is in

14 the state courts.

15

Plaintiff's reliance on the First Amendment and Equal Protection Clause of the Fourteenth

16 Amendment is unavailing. Because plaintiff is seeking a name change for personal rather than

17 religious reasons, defendants' alleged actions do not implicate a First Amendment right. See

18 Wolfe v. Beard, 2010 WL 5173199, 5 (E.D. Pa.) (E.D.Pa., 2010) (holding First Amendment not

19 implicated where prison officials refused to recognize prisoner's new name, which was changed

20 for personal reasons); Ali v. Stickman, 206 Fed. Appx. 184 (3rd Cir. 2006) (holding prisoner's

21 desire to use legally changed name did not implicate First Amendment where not adopted or used

22 for religious purposes); Spies v. Voinovich, 173 F.3d 398, 406 (6th Cir. 1999) (finding no First

23 Amendment right to have prison records reflect legally changed name).

24

Plaintiff also asserts an Equal Protection violation as follows: "The 14th Amendment,

25 promises equality and equal protection for all U.S. citizens, including the incarcerated." (Compl.

26 at. 12.) "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

27 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a

28 direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne 4

1 Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982). A

2 plaintiff alleging denial of equal protection under § 1983, therefore, must prove purposeful

3 discrimination by demonstrating that he "receiv[ed] different treatment from that received by

4 others similarly situated," and that the treatment complained of was under color of state law. Van

5 Pool v. City and County of San Francisco, 752 F. Supp. 915, 927 (N.D. Cal. 1990) (citations

6 omitted).

7

Plaintiff's equal protection claim is based on the premise that incarcerated U.S. citizens are

8 denied the same name change rights as non-incarcerated citizens. The claim is fatally flawed.

9 Allegations that a prisoner is being treated differently from non-prisoners fail to state an equal

10 protection claim as there is a "'fundamental difference between normal society and prison

11 society,"' Glouser v. Parratt, 605 F.2d 419, 420 (8th Cir. 1979) (quoting Meyers v. Alldredge, 429

United States District Court Northern District of California

12 F.2d 296, 310 (3d Cir. 1974)), and "[r]ules designed to govern those functioning in a free society

13 cannot be automatically applied to the very different situation presented in a state prison," id.

14 (citations omitted). Simply stated, prisoners and non-prisoners are not similarly situated. Hrbek

15 v. Nix, 787 F.2d 414, 417 (8th Cir. 1986).

16

CONCLUSION

17

For the foregoing reasons, the complaint is DISMISSED. The dismissal is without

18 prejudice to plaintiff re-asserting the claims brought herein in her amended complaint in her now

19 pending SRS action (C 14-00695 JST (PR)) if she can, in good faith, remedy the deficiencies

20 discussed above. It appears that the name change claims and SRS claims are sufficiently related

21 that they should be decided in the same action, see Fed. R. Civ. P. 18(a), 20(a)(2), so long as

22 plaintiff can establish that the Court has subject matter jurisdiction.

23

If plaintiff no longer wishes to pursue the name change claims in this Court, she may

24 simply omit them from the amended complaint in C 14-00695 JST (PR). If counsel in C 14-00695

25 JST (PR) determines that the name change claims and SRS claims should or must be maintained

26 in separate actions, counsel shall so inform the Court prior to filing the amended complaint in C

27 14-00695 JST (PR).

28

Nothing in this order precludes plaintiff from filing an action in state court to petition for a

5

1 name change and/or assert any state law claims she may have. Further, nothing in this order

2 precludes plaintiff from seeking a name change by petitioning the warden at her current place of

3 confinement.

4

The Clerk is instructed to file a copy of this order in C 14-00695 JST (PR).

5

The Clerk shall close the file.

6

IT IS SO ORDERED.

7 Dated: April 15, 2014 8 9

______________________________________
JON S. TIGAR United States District Judge

10

11

United States District Court Northern District of California

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 Case3:14-cv-00695-JST Document38 Filed11/18/14 Page1 of 22

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6 JEFFREY B. NORSWORTHY (a/k/a
7 MICHELLE-LAEL B. NORSWORTHY),

8

Plaintiff,

9

v.

10 JEFFREY BEARD, et al.,

11

Defendants.

Case No. 14-cv-00695-JST
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTION TO STAY DISCOVERY
Re: ECF Nos. 20, 23

12

13

Before the Court is Defendants A. Adams, R. Coffin, J. Lozano, M. Spearman, and L.

14 Zamora’s Motion to Dismiss Plaintiff’s First Amended Complaint. ECF No. 20, which

15 Defendants A. Newton and D. Van Leer subsequently joined, ECF Nos. 24, 26. Defendants

16 Adams, Coffin, Lozano, Newton, Spearman, and Zamora have also moved for a protective order

17 to stay discovery until the Court rules on Defendants’ Motion to Dismiss. ECF No. 23. The Court

18 now GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss, and DENIES

19 Defendants’ Motion for a Protective Order to Stay Discovery.

20 I. BACKGROUND

21

A. Factual History

22

For purposes of the Motion to Dismiss, the Court assumes the following facts, pursuant to

23 the allegations of Plaintiff’s First Amended Complaint (“FAC”), ECF No. 10. See Knievel v.

24 ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

25

Plaintiff Norsworthy is a California Department of Corrections and Rehabilitation

26 (“CDCR”) prisoner currently incarcerated at Mule Creek State Prison in Ione, California.1 FAC

27

28

1 Plaintiff Norsworthy is a transsexual woman. The parties refer to her using female pronouns in their filings, and the Court does the same in this Order.

Case3:14-cv-00695-JST Document38 Filed11/18/14 Page2 of 22

United States District Court Northern District of California

1 ¶ 2. She has been in the custody of CDCR since on or around April 15, 1987. Id. Norsworthy is a

2 transsexual woman who has experienced gender dysphoria and significant distress resulting from

3 the incongruence between her male physical features and her female gender identity since at least

4 adolescence. Id. ¶¶ 2, 17. She identifies and has been living as a woman since the 1990s. Id. ¶

5 59. In 1999, after several weeks of testing at a CDCR facility, a psychologist, Dr. Viesti,

6 diagnosed Norsworthy with gender identity disorder, “the only DSM-IV diagnosis available for

7 this condition.” Id. ¶ 18. The American Psychiatric Association has since published a revised

8 version of its Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”), which replaced

9 the “gender identity disorder” diagnosis with “gender dysphoria.” Id. Plaintiff has received 10 feminizing hormone therapy and injections to accomplish chemical castration since January 2000.2

11 Id. ¶ 19. As a result of these treatments, Norsworthy’s physical features and voice have

12 feminized. Id. ¶ 20. Her prison records state that she is a “biological female” based on her

13 estrogen and testosterone levels and describe her as “a pleasant-looking woman, slender and

14 coiffed in a pony tail” who “walk[s] the yard as a woman.” Id.

15

The final step of Norsworthy’s treatment is sex reassignment surgery, which would bring

16 her primary and secondary sex characteristics into conformity with her female gender identity and

17 therefore treat the severe mental anguish she experiences as a result of her gender dysphoria. Id.

18 ¶¶ 21-22. The surgery would also allow Norsworthy to reduce the high dosages of hormones she

19 receives, which put her at increased risk for heart and vascular conditions and certain types of

20 cancer, conditions that would be particularly dangerous for Norsworthy because she contracted

21 Hepatitis C after being gang raped while in CDCR custody in 2009. Id. ¶ 22. In 2012,

22 Norsworthy’s treating psychologist, Dr. Reese, expressly prescribed sexual reassignment surgery

23 as medically necessary, finding that “it is clear that clinical medical necessity suggest[s] and

24 mandate[s] a sex change medical operation before normal mental health can be achieved for this

25

26 2 In her Reply to Defendant’s Motion for a Protective Order to Stay Discovery, Norsworthy states
that she has recently been taken off hormone treatment completely as a result of “recent health 27 complications.” ECF No. 29 at 5. There is no suggestion that this treatment was discontinued

28

due to any change in her treatment plan for her gender dysphoria. In any event, for the purpose of deciding the Motion to Dismiss, the Court will consider only the facts pleaded in the FAC.

2

Case3:14-cv-00695-JST Document38 Filed11/18/14 Page3 of 22

United States District Court Northern District of California

1 female patient.” Id. ¶ 23. Dr. Reese repeatedly renewed his opinion over the following six

2 months. Id. CDCR then removed Plaintiff from his care. Id.

3

Dr. Reese’s finding is supported by leading medical research and standards of care,

4 including the World Professional Association for Transgender Health (“WPATH”) Standards of

5 Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, which state

6 that sex reassignment surgery is an “essential and medically necessary” treatment for gender

7 dysphoria in certain cases. Id. ¶¶ 24-36. In California, both Medicaid and private health insurance

8 plans offer coverage for health care treatment related to gender transition, including sex

9 reassignment surgery. Id. ¶ 30.

10

On September 16, 2012, Norsworthy filed a Patient/Inmate Health Care Appeal seeking

11 sex reassignment surgery as a medically necessary treatment for her gender dysphoria. Id. ¶ 37.

12 Her request was denied at three levels of review: by Defendant Newton on or around September

13 28, 2012; by Defendant Adams on or around November 27, 2012; and by Defendant Zamora on

14 October 25, 2013, based on the recommendation of Defendant Coffin that, “[w]hile it appears

15 likely that [Norsworthy’s] medical consultants would approve [her] as a candidate for [sex

16 reassignment surgery] as an elective procedure, in the opinion of this evaluator the available

17 documentation does not establish [sex reassignment surgery] as medically necessary at this time.”

18 Id. ¶¶ 37-52. Defendant Beard has ultimate authority over Norsworthy’s Health Care Appeal and

19 for the implementation of CDCR policy with regard to medically necessary treatment. Id. ¶ 53.

20

Norsworthy alleges that because her medical records demonstrate that, under prevailing

21 standards of care and research, sex reassignment surgery is medically necessary, Defendants were

22 fully aware that she faces a serious medical need for sex reassignment surgery and failed to take

23 any reasonable measures to address her ongoing anguish. Id. ¶¶ 38-39, 43, 49, 51. Furthermore,

24 each Defendant regarded and applied California Code of Regulations (“C.C.R.”) Title 15, Section

25 3350.1 — which identifies vaginoplasty as a “[s]urgery not medically necessary [that] shall not be

26 provided” except for specified conditions involving damage to the vaginal wall, unless the

27 patient’s attending physician prescribes the treatment and “[t]he service is approved by the

28 medical authorization review committee and the health care review committee,” 15 C.C.R. 3

Case3:14-cv-00695-JST Document38 Filed11/18/14 Page4 of 22

United States District Court Northern District of California

1 § 3350.1(b)(2); 15 C.C.R. § 3350.1(d) — as a de facto bar to Norsworthy’s request for sex

2 reassignment surgery, solely because of her status as a transgender woman. FAC, ¶¶ 54-57.

3

As part of Norsworthy’s treatment for gender dysphoria, she has changed her name from

4 Jeffrey Bryan Norsworthy to Michelle-Lael Bryanna Norsworthy. Id. ¶ 59. Since the mid-1990s,

5 she has used the name “Michelle” in all settings in which she has the ability to do so. Id. Her

6 treating doctors generally refer to her as “Michelle.” Id. ¶ 61. Use of the name “Jeffrey” is a

7 painful reminder of the discrepancy between Norsworthy’s female gender identity and the male

8 sex assigned to her at birth, and causes her severe distress and anxiety. Id. ¶ 60. WPATH’s

9 Standards of Care recognize name changes as an important part of treatment for gender dysphoria.

10 Id. ¶ 60.

11

A person under the supervision of CDCR is required to obtain the permission of the

12 warden of the facility in which she is housed in order to obtain a change of name from a California

13 Superior Court. Cal. Code Civ. Proc. § 1279.5. To minimize the use of the name “Jeffrey” and

14 the associated pain and distress she experiences, Norsworthy submitted a request for approval for

15 a legal name change to Defendant Spearman, the warden of the CDCR facility to which she was

16 then assigned. FAC, ¶ 64. Although Spearman acknowledged that Norsworthy “is in the process

17 of ‘trans-sexualism,’” the request was denied on the basis “that it would not be appropriate to

18 approve a name change to the feminine until the appellant is determined to meet the criteria to be

19 assigned to an institution for female offenders.” Id. ¶ 65. At the third level of review, Defendants

20 Van Leer and Lozano found the warden’s denial “appropriate as the appellant is still incarcerated

21 in an institution for men.” Id. ¶ 68. Defendant Beard has ultimate authority over Norsworthy’s

22 request for a legal name change and for the implementation of CDCR policy with regard to inmate

23 name changes. Id. ¶ 71.

24

B. Procedural History

25

Norsworthy initiated this action by filing a complaint under 42 U.S.C. § 1983 on February

26 14, 2014. ECF No. 1. On March 26, 2014, the Court dismissed her claims with leave to amend,

27 ECF. No. 4, and on April 2, 2014, the Court issued an Order Appointing Counsel, ECF. No. 7. On

28 April 15, 2014, the Court dismissed a separate but related action, Norsworthy v. Beard, et al., No. 4

Case3:14-cv-00695-JST Document38 Filed11/18/14 Page5 of 22

United States District Court Northern District of California

1 3:14-cv-00345-JST, concerning Norsworthy’s request for a name change, without prejudice to

2 Plaintiff reasserting the name change claims in her amended complaint in this action. ECF No. 8

3 at 5.

4

Norsworthy filed her First Amended Complaint on July 2, 2014. ECF No. 10. She sues

5 Defendants Adams, Beard, Coffin, Lozano, Newton, Spearman, Van Leer, Zamora, and Does 1-30

6 under 42 U.S.C. § 1983, seeking injunctive relief based on Defendants’ failure to provide her with

7 medically necessary sex reassignment surgery in violation of the Eighth and Fourteenth

8 Amendments to the United States Constitution and failure to allow her to pursue a legal name

9 change, also in violation of the Eighth and Fourteenth Amendments. FAC, ¶ 1. Norsworthy

10 claims that Defendants Adams, Beard, Coffin, Newton, and Zamora were deliberately indifferent

11 to her medical needs and deprived her of her right to equal protection under the laws when they

12 denied her sex reassignment surgery. Id. ¶¶ 74-88. She claims that Defendants Beard, Lozano,

13 Spearman, and Van Leer were deliberately indifferent to her medical needs and deprived her of

14 her right to equal protection under the laws when they failed to allow her to seek a legal name

15 change. Id. ¶¶ 89-99.

16

Norsworthy seeks injunctive relief 1) enjoining Defendants from interfering with the

17 discretion of the mental health and other medical professionals involved in her care; 2) declaring

18 C.C.R. Title 15, § 3350.1(b)(2) unconstitutional on its face and as applied; 3) enjoining

19 Defendants to provide her with adequate medical care, including sex reassignment surgery; and 4)

20 requiring Defendants to allow her to seek a legal name change in the Superior Court of California.

21 Id. ¶¶ 100-03. She also seeks attorneys’ fees and costs. Id. ¶ 104.

22

On July 9, 2014, the Court determined that the FAC “contains sufficient factual allegations

23 to state a claim under the Eighth and Fourteenth Amendments,” and ordered that Norsworthy’s 24 complaint should be served on each Defendant.3 ECF No. 12.

25

26 3 The issuance of a screening order under the Prison Litigation Reform Act finding that
27 Norsworthy has stated a cognizable claim does not foreclose Defendants from moving to dismiss

28

the complaint. See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007); see also Kunamneni v. Gutierrez, No. 08-cv-5154-PJH, 2009 WL 909831, at *2 (N.D. Cal. April 2, 2009).

5

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1

C. Jurisdiction

2

The Court has jurisdiction over this action under 28 U.S.C. § 1331.

3 II. MOTION TO DISMISS

4

A. Legal Standard

5

A pleading must contain “a short and plain statement of the claim showing that the pleader

6 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) tests the

7 legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

8 2001). 9 10 11 12

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

14 “Dismissal is proper when the complaint does not make out a cognizable legal theory or does not

15 allege sufficient facts to support a cognizable legal theory.” Cervantes v. Countrywide Home

16 Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).

17

B. Analysis

18

In their Motion to Dismiss, Defendants argue that: (1) Norsworthy fails to state an

19 injunctive relief claim because she fails to demonstrate a deprivation of a right under an official

20 state policy; (2) Norsworthy fails to state a claim against Defendants Adams, Coffin, Lozano, and

21 Zamora in their official capacity; (3) Norsworthy fails to state a claim for medical deliberate

22 indifference with respect to her sex reassignment surgery claim; (4) Norsworthy fails to state an

23 equal protection claim; and (5) Norsworthy fails to state a claim for deliberate indifference

24 regarding her name change. The Court considers these arguments in turn.

25

1. Deprivation of a Right under an Official State Policy

26

Defendants argue that this action must be dismissed because a state official may be sued in

27 his or her official capacity for prospective injunctive relief from a continuing or impending state

28 action that violates the Constitution or a federal statute only if the plaintiff demonstrates that “the 6

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1 entity itself is a ‘moving force’ behind the deprivation.” Kentucky v. Graham, 473 U.S. 159, 166

2 (1985). “Because the real party in interest in an official-capacity suit is the governmental entity

3 and not the named official, ‘the entity’s policy or custom must have played a part in the violation

4 of federal law.’” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Graham, 473 U.S. at 166); see

5 also Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004). Here, Defendants argue, Norsworthy has

6 failed to identify a CDCR policy or custom that was the “moving force” behind a deprivation of

7 her constitutional rights. ECF No. 20 at 9.

8

With respect to sex reassignment surgery, Defendants argue, Norsworthy alleges that

9 Defendants independently determined that surgery was not medically necessary based on their

10 own conclusions or those of non-specialized individuals, not based on any CDCR policy. Id. at

11 10. Defendants note that the allegations demonstrate that Norsworthy’s physicians, as distinct

12 from her treating psychologist, never determined that sex reassignment surgery was medically

13 necessary. Id. at 9. Defendants reject Norsworthy’s allegation that Defendants applied § 3350.1

14 as a de facto bar in denying her administrative grievance as an unreasonable inference that should

15 be disregarded. Id. at 10-11 (citing Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.

16 2010) (holding that the court need not accept as true “allegations that are merely conclusory,

17 unwarranted deductions of fact, or unreasonable inferences”)).

18

Defendants further contend that Norsworthy has failed to identify a state policy or custom

19 that denies name change requests to transsexual women. Id. at 11. Rather, she alleges that CDCR

20 officials denied her request because they determined that “it would not be appropriate” to approve

21 a name change while Norsworthy was incarcerated in an institution for men. Id.

22

Norsworthy responds that claims against state officials for prospective injunctive relief

23 under Ex Parte Young, 209 U.S. 123 (1908), do not require allegations of a policy or custom and,

24 in any event, she has sufficiently alleged a policy or custom to categorically deny transgender

25 inmates sex reassignment surgery and name changes. ECF No. 27 at 18-23. She argues that

26 official capacity actions against state officials for prospective relief “are not treated as actions

27 against the State,” Will v. Michigan Department of State Police, 491 U.S. 58, 71 n.10 (1989);

28 Graham, 473 U.S. at 167 n.14, and that the policy or custom requirement applies only to claims 7

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1 for damages against state officers and claims against municipal or state entities. ECF No. 27 at

2 19-20. She contends that the Supreme Court’s analysis in Graham and Hafer is limited to the

3 context of suits for damages, and that the cases relied upon by Defendants do not involve official

4 capacity actions against state officials for injunctive relief. Id.

5

Norsworthy argues that even assuming that she must allege that she was deprived of a

6 constitutional right pursuant to a policy or custom to state a claim against Defendants in their

7 official capacities, she has sufficiently alleged a CDCR policy or custom to categorically deny sex

8 reassignment surgery and name changes for transgender inmates. Id. at 20. She maintains that she

9 is not required to identify any formal policy, and that whether an unofficial policy or custom

10 exists, whether a constitutional tort was committed by an official with final policy-making

11 authority, and whether an official with final policy-making authority ratified a subordinate’s

12 unconstitutional decision or action and the basis for it, see Gillette v. Delmore, 979 F.2d 1342,

13 1346-47 (9th Cir. 1992), are all questions of fact not properly resolved on a motion to dismiss.

14 ECF No. 27 at 21.

15

Here, Norsworthy alleges that sex reassignment surgery was denied at every level of

16 review despite Defendants’ knowledge that it was medically necessary; that each Defendant

17 applied 15 C.C.R. § 3350.1 as a de facto bar to Norsworthy’s request; and that Defendants

18 disregarded the recommendation of Norsworthy’s treating health care professional, terminated her

19 relationship with this professional, and appointed a non-treating, non-specialized professional to

20 create a pretextual report finding sex reassignment surgery unnecessary. Id. at 22. Drawing all

21 reasonable inferences in Norsworthy’s favor, she contends that these allegations sufficiently allege

22 that prison officials were acting in accordance with a policy or custom to categorically deny sex

23 reassignment surgery for transgender inmates. Id. As for denial of a name change, Norsworthy

24 argues that she has alleged that Defendants Spearman, Lozano, and Van Leer denied her request

25 based on a policy or custom to deny transgender women prisoners name changes until they are

26 deemed eligible for or have been assigned to a female institution. Id. at 22-23.

27

Defendants’ argument that in this official-capacity action against state officials for

28 injunctive relief, CDCR “policy or custom” must have played a part in the violations is well taken. 8

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1 In Graham, the Supreme Court stated that “in an official-capacity suit the entity’s ‘policy or

2 custom’ must have played a part in the violation of federal law.” 473 U.S. at 166. Although

3 Norsworthy is correct that Graham involved an action for damages, the Supreme Court’s statement

4 that “implementation of state policy or custom may be reached in federal court only because

5 official-capacity actions for prospective relief are not treated as actions against the State” suggests

6 that it contemplated that the “policy or custom” requirement should apply in actions for

7 prospective relief. Id. at 167 n.14; cf. Los Angeles Cnty. v. Humphries, 562 U.S. 29 (2010)

8 (holding that, in actions against municipal entities, the requirement that civil rights plaintiffs show

9 that their injury was caused by municipal policy or custom is equally applicable, irrespective of

10 whether the remedy sought is money damages or prospective relief). Furthermore, in a case cited

11 by neither party, the Ninth Circuit stated that Idaho Department of Corrections administrators sued

12 for injunctive relief were “liable in their official capacities only if policy or custom played a part

13 in the violation of federal law.” Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001); see also

14 Dunsmore v. California, No. 11-cv-7141-DOC (JCG), 2012 WL 3809413, at *3-4 (C.D. Cal. July

15 26, 2012) (recommending dismissal of inmate’s official-capacity claim for failure to plausibly

16 connect policies to the specific conduct that allegedly violated his rights), report &

17 recommendation adopted, 2012 WL 3810255 (C.D. Cal. Sept. 4, 2012), aff’d sub nom. Dunsmore

18 v. Cash, 549 F. App’x 680 (9th Cir. 2013).

19

This conclusion does not, however, require that Norsworthy’s claims be dismissed. The

20 Court finds that Norsworthy has adequately alleged that a policy or custom played a part in the

21 constitutional violations she alleges. In analogous municipal liability cases, the Ninth Circuit

22 permits § 1983 plaintiffs to establish liability in one of three ways: (1) by proving that an

23 employee committed the violation pursuant to a formal policy or longstanding practice or custom

24 that constitutes the standard operating procedure of the governmental entity; (2) by establishing

25 that the individual who committed the constitutional tort was an official with final policy-making

26 authority; or (3) by proving that an official with final policy-making authority ratified a

27 subordinate’s unconstitutional decision or action and the basis for it. Gillette, 979 F.2d at 1346-

28 47. Norsworthy has alleged that the Defendants involved in the denial of her request for sex 9

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1 reassignment surgery were uniformly aware of her serious medical need for sex reassignment

2 surgery and were deliberately indifferent to this need, id. ¶¶ 39, 43, 49, 51, 76; that they applied 15

3 C.C.R. § 3350.1 as a de facto bar to her request, id. ¶¶ 56, 82; and that she pursued her claim

4 through the final level of administrative review, id. ¶ 52. With respect to her name change claims,

5 Norsworthy has alleged that she pursued her request through the final level of administrative

6 review and that Defendants denied the request based upon a policy that inmates in CDCR facilities

7 for men should not be allowed to legally adopt a normatively feminine name until they meet the

8 criteria for transfer to a women’s institution. Id. ¶¶ 65-66, 68, 70, 96. Drawing all reasonable

9 inferences in favor of Norsworthy, the Court finds that she has pleaded sufficient facts to allow the

10 Court to reasonably infer that official policies or customs played a part in the constitutional

11 violations she alleges.

12

2. Official Capacity Claims Against Defendants Adams, Coffin, Lozano,

13

and Zamora4

14

Defendants argue that Norsworthy has failed to state a claim under § 1983 against

15 Defendants Adams, Coffin, Lozano, and Zamora because she has not alleged that they could

16 provide the relief she requests. ECF No. 20 at 12. “[T]he exception to Eleventh Amendment

17 immunity applicable to prospective injunctive relief . . . applies only to state officials with the

18 ability to provide injunctive relief in their official capacities.” Roberts v. Cal. Dep’t of Corr., No.

19 04-cv-3861-JF, 2007 WL 951289, at *2 (N.D. Cal. Mar. 27, 2007) (citing Graham, 472 U.S. at

20 167 n.14; Young, 209 U.S. at 159-60); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

21 61 (1992) (holding that, for a plaintiff to have standing, it must be likely that the injury will be

22 redressed by a favorable decision). Defendants argue that these officials were only responsible for

23 reviewing Norsworthy’s administrative grievances and that Norsworthy has not alleged that they

24 could ensure that her constitutional rights are not violated, rescind sections of the California Code

25

26 4 Defendants Newton and Van Leer joined this argument after the Motion to Dismiss was filed and
contend that it “appl[ies] equally” to them. ECF Nos. 24, 26. Norsworthy notes that it is 27 “unclear” whether these Defendants also contend that they lack the authority to provide the relief

28

requested, but she notes that the arguments in her Opposition apply equally to Newton and Van Leer. ECF No. 27 at 23 n.17.

10

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1 of Regulations, or ensure the implementation of new CDCR policies. ECF No. 20 at 12-13. As a

2 result, Defendants urge that Norsworthy’s claim for injunctive relief against these Defendants

3 should be dismissed as a matter of law.

4

Norsworthy responds that Defendants’ argument is misplaced because she has sufficiently

5 alleged that each Defendant was personally involved in denying either her request for sex

6 reassignment surgery, her request for a name change, or both. ECF No. 27 at 23 (citing Starr v.

7 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may be held liable as a supervisor under

8 § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or

9 (2) a sufficient causal connection between the supervisor’s wrongful conduct and the

10 constitutional violation.”) (internal quotation marks omitted)). In addition, Norsworthy seeks not

11 only a revision of prison policy, but also an injunction preventing Defendants from interfering

12 with the discretion of her medical care providers and ordering sex reassignment surgery and a

13 name change. ECF No. 27 at 24. Based on each Defendant’s involvement in depriving

14 Norsworthy of her constitutional rights, she contends that each is in a position to correct the harm.

15 Id. Whether Defendants have authority to provide any of the requested injunctive relief is, at

16 most, a disputed issue of fact. Id. Finally, Norsworthy contends that, at the pleading stage, a

17 plaintiff need not bring suit against the exact officials ultimately responsible for enforcement,

18 because further discovery may lead to amendments to name more appropriate officials. Id.

19

The Court rejects Defendants’ argument that Defendants Adams, Coffin, Lozano, Newton,

20 Van Leer, and Zamora must be dismissed at this stage. The FAC alleges that each Defendant was

21 personally involved in the administrative denial of Norsworthy’s requests for medically necessary

22 sex reassignment surgery and for a name change. Norsworthy asks the Court to enter injunctive

23 relief “enjoining Defendants from interfering with the discretion of the mental health and other

24 medical professionals involved in Plaintiff’s care” and “enjoining Defendants to provide Plaintiff

25 with adequate medical care, including [sex reassignment surgery].” FAC, ¶¶ 100, 102. Even if

26 Defendants are correct that these named officials are not in a position to change CDCR policies or

27 amend the California Code of Regulations, their role in reviewing Norsworthy’s administrative

28 requests for sex reassignment surgery and a name change suggest that they are in a position to 11

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1 approve administrative requests, including the provision of “adequate medical care” as

2 recommended by Norsworthy’s health care providers, going forward. The Court finds that, at this

3 stage, Defendants Adams, Coffin, Lozano, Newton, Van Leer, and Zamora are proper parties to

4 this case.

5

3. Medical Deliberate Indifference Regarding Sex Reassignment Surgery

6

Defendants next argue that Norsworthy has failed to state a claim for deliberate

7 indifference because her allegations establish only a difference of medical opinion between

8 Norsworthy and her psychologist, Dr. Reese, and Defendants Newton, Adams, Coffin, and

9 Zamora, not “acts or omissions sufficiently harmful to evidence deliberate indifference to serious

10 medical needs” in violation of the Eighth Amendment. ECF No. 20 at 14 (citing Estelle v.

11 Gamble, 429 U.S. 97, 106 (1976)). Even assuming that Norsworthy has a serious medical need,

12 Defendants argue, she cannot meet the subjective prong of the deliberate indifference test, which

13 requires a showing that a prison official knew of facts from which the inference could be drawn

14 that a substantial risk of serious harm existed, actually drew that inference, and then disregarded

15 an excessive risk to the inmate’s health. Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

16

Here, Defendants contend, Norsworthy has not shown that any Defendant possessed a

17 sufficiently culpable state of mind to substantiate an Eighth Amendment deliberate indifference

18 claim. Id. at 16. Norsworthy’s allegations that Defendants should have known that sex

19 reassignment surgery was medically necessary based on her medical history and research are

20 inadequate to state a claim for deliberate indifference. Id. Defendants contend that Norsworthy

21 has not alleged that she ever requested sex reassignment surgery from any of her treating

22 physicians or psychologists prior to filing her administrative grievance at the third level of review;

23 that the named Defendants knew that sex reassignment surgery was medically necessary; that any

24 medical doctor ever prescribed surgery or recommended it as a treatment option; or that

25 Defendants knew of the research cited in the FAC. Id.5 She alleges only a disagreement about

26

27 5 Defendants also state that Norsworthy has failed to allege that she meets the WPATH

28

preconditions for sex reassignment surgery because she has not obtained two referral letters from qualified mental health professionals. ECF No. 20 at 17. Since Norsworthy is incarcerated, the

12

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1 treatment options between her caregivers. Id. at 15. In this situation, she must demonstrate that

2 the chosen course of treatment was “medically unacceptable under the circumstances” and chosen

3 “in conscious disregard of an excessive risk” to her health. Id. at 14-15 (citing Toguchi v. Chung,

4 391 F.3d 1051, 1060 (9th Cir. 2004)). In Defendants’ view, the fact that prison staff provided

5 Norsworthy with mental health care and feminizing hormone and chemical castration treatments

6 belies any claim that they were deliberately indifferent to her gender dysphoria or acted in

7 conscious disregard of her health. Id. at 15.

8

The Court is not persuaded by this argument. The FAC does not allege that there was a

9 genuine difference of medical opinion; rather, it alleges that Defendants’ purported reliance on the

10 opinions of non-specialized, inexperienced health care providers was clearly unreasonable and

11 pretextual and thus evidence of deliberate indifference. ECF No. 27 at 2-3 (citing Snow v.

12 McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (“Based on the unchallenged medical records and

13 inferences drawn in favor of Snow, a reasonable jury could conclude that the decision of the non-

14 treating, non-specialist physicians to repeatedly deny the recommendations for surgery was

15 medically unacceptable under all of the circumstances.”), overruled on other grounds by Peralta v.

16 Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014); Colwell v. Bannister, 763 F.3d 1060, 1069 (9th Cir.

17 2014) (denying summary judgment where the record indicated that prison officials “ignored the

18 recommendations of treating specialists and instead relied on the opinions of non-specialist and

19 non-treating medical officials who made decisions based on an administrative policy”); Hamilton

20 v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992) (denying summary judgment where Hamilton

21 alleged that an expert opinion “was not solicited in good faith, and that it was sought simply as a

22 device to allow the prison official [sic] to proceed with their predetermined decision”), overruled

23 on other grounds by Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002)).

24

Here, Norsworthy has alleged that Dr. Coffin, a non-treating medical professional with no

25

26

Court cannot assume that Norsworthy would be able to obtain such referrals without Defendants’ 27 assistance, particularly in light of her allegation that Defendants removed from her care the one

28

mental health professional who repeatedly opined that sex reassignment surgery was medically necessary. FAC at ¶ 23.

13

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1 significant experience or training in the treatment of transsexual patients, created a pretextual

2 report to support denial of sex reassignment surgery and that each Defendant denied the surgery

3 even though they knew it to be medically necessary based on Norsworthy’s records and prevailing

4 medical standards. ECF No. 27 at 3-4. The Court agrees with Norsworthy’s contention that she

5 should have the opportunity to explore the Defendants’ motives and the extent and nature of their

6 knowledge through discovery. Id. at 4-5. Defendants’ argument that Norsworthy’s medical

7 indifference claim must fail because she received some treatment for her gender dysphoria is also

8 unconvincing, as a prisoner need not prove that she was completely denied medical care in order

9 to prevail. Id. at 6-7; see Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (“A prisoner need

10 not prove that he was completely denied medical care. Rather, he can establish deliberate

11 indifference by showing that officials intentionally interfered with his medical treatment.”)

12 (citation omitted).

13

In reply, Defendants note that Defendants Newton and Adams reviewed Norsworthy’s

14 grievance before Reese had issued his opinion recommending sex reassignment surgery, and that

15 Coffin acknowledged that Norsworthy’s gender dysphoria caused her distress but noted that no

16 physician had ever found surgery medically necessary. ECF No. 30 at 6-7. Defendants

17 distinguish cases in which defendants ignored the recommendations of plaintiff’s treating

18 physicians, see Colwell, 763 F.3d at 1069-70; Hamilton, 981 F.2d at 1067, on the basis that

19 Defendants explicitly took into account that none of Norsworthy’s treating physicians

20 recommended sex reassignment surgery as medically necessary treatment and Defendant Coffin

21 personally examined Norsworthy before issuing his opinion. ECF No. 30 at 7. Defendants also

22 rely on Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014), for the proposition that prison staff are

23 not deliberately indifferent when they simply review the medical care provided by others. ECF

24 No. 30 at 7. In this case, Defendants argue, Norsworthy has alleged that CDCR provided her

25 treatment by gender and endocrinology specialists and denied her grievance on the basis that these

26 specialists had not recommended sex reassignment surgery as medically necessary, not because of

27 animus, improper motive, or medical deliberate indifference. Id. at 8. They reject the suggestion

28 that the filing of this lawsuit has placed Defendants on notice. Id. at 10 (citing Peralta, 744 F.3d at 14

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1 1087 (“Peralta argues that the lawsuit itself put Dillard on notice, but he cites no cases holding that

2 the mere filing of a lawsuit can create independent liability under section 1983.”)).

3

The Court finds that Norsworthy has adequately stated a claim for medical indifference

4 within the meaning of Estelle v. Gamble, 429 U.S. 97 (1976). Prison officials violate their

5 constitutional obligation only through “deliberate indifference to serious medical needs of

6 prisoners,” including by “intentionally denying or delaying access to medical care.” Estelle, 429

7 U.S. at 104-05. Neither negligence nor gross negligence is sufficient to warrant liability under the

8 Eighth Amendment. See Farmer, 511 U.S. at 837. But the FAC does not allege that Defendants

9 “should have known” that sex reassignment surgery was medically necessary. Rather, it alleges

10 that Defendants were fully aware that Norsworthy faces a serious medical need for sex

11 reassignment surgery and failed to address her ongoing anguish. FAC, ¶¶ 39, 43, 49, 51. It

12 further alleges that after Norsworthy’s treating psychologist explicitly recommended sex

13 reassignment surgery, Norsworthy was removed from his care and Defendant Coffin was assigned

14 to prepare a pretextual report recommending that sex reassignment surgery be denied. Id. ¶¶ 23,

15 45, 49.

16

Defendants’ suggestion that Norsworthy was denied sex reassignment surgery based on “a

17 disagreement between her various caregivers,” ECF No. 20 at 15, is unpersuasive. The FAC states

18 that Norsworthy’s treating psychologist concluded that sex reassignment surgery is medically

19 necessary and that Defendant Coffin, who examined Norsworthy but was not involved in her care,

20 came to a contrary conclusion. FAC, ¶¶ 23, 47. It does not state that any medical professional

21 treating Norsworthy concluded that sex reassignment surgery was not medically necessary, or

22 issued any opinion other than the recommendations made by Reese. Because there is no

23 recommendation by a treating physician or other medical provider against sex reassignment

24 surgery, this is not a case in which prison staff have simply reviewed and affirmed medical

25 decisions made by others. See Peralta, 744 F.3d at 1085-86. Instead, drawing all inferences in her

26 favor, Norsworthy has alleged that Defendants deliberately denied her necessary medical

27 treatment. Whether Defendants in fact had the requisite mental state to support an Eighth

28 Amendment deliberate indifference claim is a question suitable for exploration in discovery. 15

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1

4. Equal Protection

2

To state an equal protection claim under § 1983, Norsworthy must allege that “the

3 defendants acted with an intent or purpose to discriminate against [her] based upon membership in

4 a protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). The essence of the

5 Equal Protection Clause is a requirement that similarly situated persons be treated alike. Ariz.

6 Dream Act Coal. v. Brewer, 757 F.3d 1053, 1063 (9th Cir. 2014).

7

Defendants argue that Norsworthy fails to state an equal protection claim because the

8 California regulations concerning surgeries that are not medically necessary, 15 C.C.R. §

9 3350.1(b), (d), and requiring that inmates’ requests for a legal name change must be reviewed by

10 the warden, 15 C.C.R. § 3294.5(a), (b), do not discriminate based on classes of individuals. ECF

11 No. 20 at 18. Rather, the regulations concerning surgeries make distinctions based on specific

12 medical conditions and necessary treatments, and incorporate important procedural safeguards to

13 ensure that permanent, life-changing surgery is not undertaken without appropriate medical

14 approval. ECF No. 30 at 13-15. Defendants also contend that the FAC fails to allege that these

15 facially neutral regulations have a disparate impact and that this disparate impact is the result of a

16 discriminatory purpose. ECF No. 20 at 19 (citing PMG Int’l Div. LLC v. Rumsfeld, 303 F.3d

17 1163, 1172-73 (9th Cir. 2002) (noting that, in the Fifth Amendment context, “a disparate impact

18 claim challenging a facially neutral statute requires a showing of discriminatory intent or of a stark

19 pattern of racially disparate enforcement”) (internal quotation marks and citations omitted)).

20 Finally, Defendants contend that Norsworthy fails to allege membership in a protected class. Id.

21 (citing Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663-64 (9th Cir. 1977)).

22

As an initial matter, Holloway is no longer good law. Schwenk v. Hartford, 204 F.3d

23 1187, 1201 (9th Cir. 2000). Defendants state that Schwenk overruled Holloway “on other

24 grounds,” ECF No. 20 at 19, but even a casual reading of Schwenk shows that it overruled

25 precisely the conclusions in Holloway on which Defendants rely. Defendants quote Holloway for

26 the propositions that “transsexuals are not necessarily ‘a discrete and insular minority’ . . . nor has

27 it been established that transsexuality is an ‘immutable characteristic determined solely by the

28 accident of birth’ like race or national origin;” and “the complexities involved in merely defining 16

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1 the term ‘transsexual’ would prohibit a determination of suspect classification for transsexuals.”

2 Id. (quoting Holloway, 566 F.2d at 663-64 (citations omitted)). Schwenk unmistakably overruled

3 those holdings.

4

In Schwenk, the Ninth Circuit explained that gender means “an individual’s sexual

5 identity,” and that, under the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 6 228 (1989),6 when a defendant’s action is based upon the fact that the plaintiff fails to “conform to

7 socially-constructed gender expectations,” the defendant has engaged in gender-based

8 discrimination. Schwenk, 204 F.3d at 1201-02. Schwenk also explicitly rejected Holloway’s

9 reasoning. Id. at 1201. Although Schwenk was decided in the context of a transgender woman

10 seeking to bring a claim under the Violence Against Women Act, its reasoning applies equally to

11 discrimination alleged to violate the Equal Protection Clause and therefore discrimination against

12 transgender individuals is a form of gender-based discrimination subject to intermediate scrutiny.

13 Applying Schwenk here, the Court concludes that discrimination based on transgender status

14 independently qualifies as a suspect classification under the Equal Protection Clause because

15 transgender persons meet the indicia of a “suspect” or “quasi-suspect classification” identified by

16 the Supreme Court. As the Eleventh Circuit observed in Glenn v. Brumby, 663 F.3d 1312 (11th

17 Cir. 2011), “[a] person is defined as transgender precisely because of the perception that his or her

18 behavior transgresses gender stereotypes. . . . There is thus a congruence between discriminating

19 against transgender and transsexual individuals and discrimination on the basis of gender-based

20 behavioral norms.” Id. at 1316. And as the Ninth Circuit said in Schwenk, albeit outside the

21 context of the Equal Protection Clause, “what matters . . . is that in the mind of the perpetrator the

22 discrimination is related to the sex of the victim: here, for example, the perpetrator’s actions stem

23 from the fact that he believed that the [transsexual] victim was a man who ‘failed to act like’ one.”

24 Schwenk, 204 F.3d at 1202. For these reasons, the Court concludes that discrimination on the

25 basis of transgender status is subject to intermediate scrutiny. Glenn at 1320; cf. SmithKline

26

27 6 In Price Waterhouse, the Supreme Court held that discrimination on the basis of gender

28

stereotyping is sex-based discrimination. 490 U.S. at 250–51 (plurality op.); id. at 258–61 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring).

17

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United States District Court Northern District of California

1 Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (holding that United States v.

2 Windsor, 133 S. Ct. 2675 (2013) “requires that heightened scrutiny be applied to equal protection 3 claims involving sexual orientation”). 7

4

In support of her Equal Protection Clause claim under 42 U.S.C. § 1983, Norsworthy

5 alleges that Defendants acted with an intent or purpose to discriminate against her based upon her

6 membership in a protected class. See Furnace, 705 F.3d at 1030. Specifically, she alleges that

7 “Defendants intentionally treat Plaintiff differently from non-transgender female inmates seeking

8 vaginoplasty due to her gender and transgender status” by barring her from such treatment or, at a

9 minimum, holding her to a more onerous standard, and that Defendants “discriminated against

10 Plaintiff by refusing to permit her to seek a legal name change as a result of her gender and

11 transgender status.” FAC, ¶¶ 84, 96. Norsworthy further contends that 15 C.C.R. § 3350.1 is

12 facially discriminatory because it explicitly distinguishes between treatment for transsexual

13 women that is designated as presumptively “not medically necessary” (i.e. castration and

14 vaginoplasty for treatment of gender dysphoria) and the same treatments for non-transgender

15 women (i.e. vaginoplasty for treatment of cystocele or rectocele), which are explicitly exempted

16 from this bar. ECF No. 27 at 16-17. Because all persons affected by these exclusions are

17 transgender women, Norsworthy argues, the regulation is facially discriminatory. Id. at 17.

18

The application of intermediate scrutiny requires the government to show that its gender

19 classification is substantially related to an important governmental interest, “requiring an

20 exceedingly persuasive justification.” Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 702 (9th

21 Cir. 1997), as amended on denial of reh'g and reh'g en banc (Aug. 21, 1997), as amended (Aug.

22 26, 1997) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985)).

23

24

25 7 The Ninth’s Circuit’s conclusion that heightened scrutiny should be applied to Equal Protection

26 claims involving discrimination based on sexual orientation, see SmithKline, 740 F.3d at 481;

Latta v. Otter, Nos. 14-35420, 14-35421, 12-17668, 2014 WL 4977682, at *4 (9th Cir. Oct. 7, 27 2014), applies with at least equal force to discrimination against transgender people, whose

28

identity is equally immutable and irrelevant to their ability to contribute to society, and who have experienced even greater levels of societal discrimination and marginalization.

18

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United States District Court Northern District of California

1

Here, Norsworthy has alleged that each Defendant discriminated against her on the basis of

2 her transgender status. She alleges that, in considering her need for medically necessary surgery,

3 and vaginoplasty in particular, Defendants treated her differently from a similarly situated non-

4 transgender woman in need of medically necessary surgery. With respect to her request for a

5 name change, she has alleged that the Defendants’ rationale for denying her request — that a name

6 change to a normatively feminine name is inappropriate until she is eligible to be housed in a

7 women’s facility — evidences a clear difference in treatment with regard to name changes based

8 on transgender status. Defendants argue that Norsworthy is not a member of a protected class, but

9 otherwise offer nothing to defend the regulation or alleged policies and conduct at issue from an

10 equal protection challenge. ECF No. 20 at 18-19. They articulate no important governmental

11 interest, much less describe how their gender classification ‒ which makes it more difficult for a 12 transgender person to receive gender reassignment surgery than it is for a cisgender woman8 ‒ is

13 substantially related to that interest.

14

The Court concludes that Norsworthy has adequately stated a claim under 42 U.S.C.

15 § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment. See Furnace,

16 705 F.3d at 1030. At this early stage in the litigation, before Norsworthy has had the opportunity

17 to develop her claims through discovery, she must plead “factual content that allows the court to

18 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

19 U.S. at 678. The Court concludes that Norsworthy’s allegations meet this standard with respect to

20 her equal protection claims.

21

5. Deliberate Medical Indifference Regarding Norsworthy’s Name

22

Change

23

Finally, Defendants contend that Norsworthy’s allegations that prison officials did not

24 permit her to pursue a legal name change fail to state a claim under § 1983 because although

25 Norsworthy claims that she suffers from mental and emotional harm when the name “Jeffrey” is

26

27 8 “Cisgender is a term describing individuals whose gender corresponds with the legal sex that

28

they were assigned at birth.” Olga Tomchin, Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans* People, 101 Cal. L. Rev. 813, 862 (2013).

19

Case3:14-cv-00695-JST Document38 Filed11/18/14 Page20 of 22

United States District Court Northern District of California

1 used, conduct that amounts to verbal abuse is not cruel and unusual punishment. ECF No. 20 at

2 20 (citing Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004)). Moreover, Norsworthy

3 fails to allege that the name change is an objectively serious medical need because she has not

4 alleged that any doctor has determined or even commented that she needs to change her name for

5 medical reasons or that use of her legal name has seriously affected her daily activities. Id. at 21

6 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)). Finally, regarding the

7 subjective prong of the analysis, Norsworthy fails to allege that prison officials were deliberately

8 indifferent to her medical need in refusing her name change because she has failed to allege that

9 the Defendants involved in denying her request were medical professionals or knew that a legal

10 name change was an effective treatment for her gender dysphoria. Id.

11

Norsworthy responds that she is not required to “establish” that a legal name change is an

12 objectively serious medical need at the pleading stage. ECF No. 27 at 8. She need only provide

13 allegations sufficient to give Defendants fair notice of what the claim is and the grounds on which

14 it rests. Norsworthy has alleged that the use of her name is a “painful reminder” of her condition

15 that causes her “mental anguish and suffering,” “pain and distress,” and “severe emotional and

16 psychological stress and anxiety,” and she contends that further resolution of the nature and extent

17 of the suffering she experiences requires further factual development. Id. at 9. She distinguishes

18 the exacerbation of her mental health condition from the “verbal abuse” at issue in Austin v.

19 Terhune, and notes that Austin was decided at summary judgment. Id. at 10. With respect to the

20 subjective prong of the deliberate indifference analysis, Norsworthy argues that she has alleged

21 that Defendants were aware of her gender dysphoria and the associated mental anguish resulting

22 from the use of her legal name. Id. The extent of Defendants’ knowledge, she argues, must be

23 developed through discovery. Id.

24

The Court concludes that Norsworthy’s claim for violation of the Eighth Amendment

25 based on Defendants’ failure to allow her to pursue a legal name change is insufficiently pleaded

26 and should be dismissed. Prison officials violate their constitutional obligation only through

27 “deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 104-05. This indifference

28 may be manifested “by prison doctors in their response to the prisoner’s needs or by prison guards 20

Case3:14-cv-00695-JST Document38 Filed11/18/14 Page21 of 22

United States District Court Northern District of California

1 in intentionally denying or delaying access to medical care or intentionally interfering with the

2 treatment once prescribed.” Id. In the Ninth Circuit, to maintain an Eighth Amendment claim

3 based on prison medical treatment, an inmate must show a “serious medical need” and that “the

4 defendant’s response to the need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091,

5 1096 (9th Cir. 2006). The second prong “is satisfied by showing (a) a purposeful act or failure to

6 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.

7 Indifference may appear when prison officials deny, delay or intentionally interfere with medical

8 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id.

9 (internal citations and quotation marks omitted). An inadvertent or negligent failure to provide

10 adequate medical care does not state a claim under § 1983. Estelle, 429 U.S. at 105-06.

11

Norsworthy does not allege that any of the Defendants involved in denying her request for

12 a legal name change are medical professionals, or allege facts sufficient for this Court to

13 reasonably infer that these Defendants knew that Norsworthy had a medical need for a legal name

14 change. She states that Defendants Spearman, Van Leer, and Lozano were aware of her gender

15 dysphoria, but she does not allege that they reviewed her medical records, consulted with her

16 treating health care providers, were familiar with standards of care for the treatment of gender

17 dysphoria, or were otherwise aware that their decision to deny her request for a legal name change

18 would have ramifications for her medical care. Norsworthy therefore has not sufficiently alleged

19 that these Defendants were deliberately indifferent to her medical needs.

20 III. MOTION TO STAY DISCOVERY

21

Defendants move to stay discovery “on the ground that it would be unduly burdensome to

22 respond to discovery requests regarding claims that should be dismissed.” ECF No. 23 at 1. The

23 Court having found Counts One, Two, and Four of Plaintiff’s FAC to be viable, the Motion to

24 Stay is DENIED.

25

CONCLUSION

26

The Court hereby GRANTS IN PART and DENIES IN PART Defendants’ Motion to

27 Dismiss and DENIES Defendants’ Motion to Stay Discovery. Plaintiff’s § 1983 claim based upon

28 deprivation of her Eighth Amendment rights resulting from Defendants’ failure to allow her to 21

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United States District Court Northern District of California

1 obtain a legal name change is DISMISSED WITHOUT LEAVE TO AMEND. In all other

2 respects, Defendants’ Motion to Dismiss is DENIED.

3

IT IS SO ORDERED.

4 Dated: November 18, 2014

5

______________________________________

6

JON S. TIGAR

7

United States District Judge

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4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6 JEFFREY B. NORSWORTHY (a/k/a
7 MICHELLE-LAEL B. NORSWORTHY),

8

Plaintiff,

9

v.

10 JEFFREY BEARD, et al.,

11

Defendants.

Case No. 14-cv-00695-JST
AMENDED ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTION TO STAY DISCOVERY1
Re: ECF Nos. 20, 23

United States District Court Northern District of California

12

13

Before the Court is Defendants A. Adams, R. Coffin, J. Lozano, M. Spearman, and L.

14 Zamora’s Motion to Dismiss Plaintiff’s First Amended Complaint. ECF No. 20, which

15 Defendants A. Newton and D. Van Leer subsequently joined, ECF Nos. 24, 26. Defendants

16 Adams, Coffin, Lozano, Newton, Spearman, and Zamora have also moved for a protective order

17 to stay discovery until the Court rules on Defendants’ Motion to Dismiss. ECF No. 23. The Court

18 now GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss, and DENIES

19 Defendants’ Motion for a Protective Order to Stay Discovery.

20 I. BACKGROUND

21

A. Factual History

22

For purposes of the Motion to Dismiss, the Court assumes the following facts, pursuant to

23 the allegations of Plaintiff’s First Amended Complaint (“FAC”), ECF No. 10. See Knievel v.

24 ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

25

Plaintiff Norsworthy is a California Department of Corrections and Rehabilitation

26

27

28

1 This amended order is substantively identical to the order issued on November 18, 2014, except for the correction of two syntax errors.

1 (“CDCR”) prisoner currently incarcerated at Mule Creek State Prison in Ione, California.2 FAC

2 ¶ 2. She has been in the custody of CDCR since on or around April 15, 1987. Id. Norsworthy is a

3 transsexual woman who has experienced gender dysphoria and significant distress resulting from

4 the incongruence between her male physical features and her female gender identity since at least

5 adolescence. Id. ¶¶ 2, 17. She identifies and has been living as a woman since the 1990s. Id. ¶

6 59. In 1999, after several weeks of testing at a CDCR facility, a psychologist, Dr. Viesti,

7 diagnosed Norsworthy with gender identity disorder, “the only DSM-IV diagnosis available for

8 this condition.” Id. ¶ 18. The American Psychiatric Association has since published a revised

9 version of its Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”), which replaced

10 the “gender identity disorder” diagnosis with “gender dysphoria.” Id. Plaintiff has received 11 feminizing hormone therapy and injections to accomplish chemical castration since January 2000.3

United States District Court Northern District of California

12 Id. ¶ 19. As a result of these treatments, Norsworthy’s physical features and voice have

13 feminized. Id. ¶ 20. Her prison records state that she is a “biological female” based on her

14 estrogen and testosterone levels and describe her as “a pleasant-looking woman, slender and

15 coiffed in a pony tail” who “walk[s] the yard as a woman.” Id.

16

The final step of Norsworthy’s treatment is sex reassignment surgery, which would bring

17 her primary and secondary sex characteristics into conformity with her female gender identity and

18 therefore treat the severe mental anguish she experiences as a result of her gender dysphoria. Id.

19 ¶¶ 21-22. The surgery would also allow Norsworthy to reduce the high dosages of hormones she

20 receives, which put her at increased risk for heart and vascular conditions and certain types of

21 cancer, conditions that would be particularly dangerous for Norsworthy because she contracted

22 Hepatitis C after being gang raped while in CDCR custody in 2009. Id. ¶ 22. In 2012,

23 Norsworthy’s treating psychologist, Dr. Reese, expressly prescribed sexual reassignment surgery

24

25 2 Plaintiff Norsworthy is a transsexual woman. The parties refer to her using female pronouns in their filings, and the Court does the same in this Order.
26 3 In her Reply to Defendant’s Motion for a Protective Order to Stay Discovery, Norsworthy states

that she has recently been taken off hormone treatment completely as a result of “recent health 27 complications.” ECF No. 29 at 5. There is no suggestion that this treatment was discontinued

28

due to any change in her treatment plan for her gender dysphoria. In any event, for the purpose of deciding the Motion to Dismiss, the Court will consider only the facts pleaded in the FAC.

2

1 as medically necessary, finding that “it is clear that clinical medical necessity suggest[s] and

2 mandate[s] a sex change medical operation before normal mental health can be achieved for this

3 female patient.” Id. ¶ 23. Dr. Reese repeatedly renewed his opinion over the following six

4 months. Id. CDCR then removed Plaintiff from his care. Id.

5

Dr. Reese’s finding is supported by leading medical research and standards of care,

6 including the World Professional Association for Transgender Health (“WPATH”) Standards of

7 Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, which state

8 that sex reassignment surgery is an “essential and medically necessary” treatment for gender

9 dysphoria in certain cases. Id. ¶¶ 24-36. In California, both Medicaid and private health insurance

10 plans offer coverage for health care treatment related to gender transition, including sex

11 reassignment surgery. Id. ¶ 30.

United States District Court Northern District of California

12

On September 16, 2012, Norsworthy filed a Patient/Inmate Health Care Appeal seeking

13 sex reassignment surgery as a medically necessary treatment for her gender dysphoria. Id. ¶ 37.

14 Her request was denied at three levels of review: by Defendant Newton on or around September

15 28, 2012; by Defendant Adams on or around November 27, 2012; and by Defendant Zamora on

16 October 25, 2013, based on the recommendation of Defendant Coffin that, “[w]hile it appears

17 likely that [Norsworthy’s] medical consultants would approve [her] as a candidate for [sex

18 reassignment surgery] as an elective procedure, in the opinion of this evaluator the available

19 documentation does not establish [sex reassignment surgery] as medically necessary at this time.”

20 Id. ¶¶ 37-52. Defendant Beard has ultimate authority over Norsworthy’s Health Care Appeal and

21 for the implementation of CDCR policy with regard to medically necessary treatment. Id. ¶ 53.

22

Norsworthy alleges that because her medical records demonstrate that, under prevailing

23 standards of care and research, sex reassignment surgery is medically necessary, Defendants were

24 fully aware that she faces a serious medical need for sex reassignment surgery and failed to take

25 any reasonable measures to address her ongoing anguish. Id. ¶¶ 38-39, 43, 49, 51. Furthermore,

26 each Defendant regarded and applied California Code of Regulations (“C.C.R.”) Title 15, Section

27 3350.1 — which identifies vaginoplasty as a “[s]urgery not medically necessary [that] shall not be

28 provided” except for specified conditions involving damage to the vaginal wall, unless the 3

1 patient’s attending physician prescribes the treatment and “[t]he service is approved by the

2 medical authorization review committee and the health care review committee,” 15 C.C.R.

3 § 3350.1(b)(2); 15 C.C.R. § 3350.1(d) — as a de facto bar to Norsworthy’s request for sex

4 reassignment surgery, solely because of her status as a transgender woman. FAC, ¶¶ 54-57.

5

As part of Norsworthy’s treatment for gender dysphoria, she has changed her name from

6 Jeffrey Bryan Norsworthy to Michelle-Lael Bryanna Norsworthy. Id. ¶ 59. Since the mid-1990s,

7 she has used the name “Michelle” in all settings in which she has the ability to do so. Id. Her

8 treating doctors generally refer to her as “Michelle.” Id. ¶ 61. Use of the name “Jeffrey” is a

9 painful reminder of the discrepancy between Norsworthy’s female gender identity and the male

10 sex assigned to her at birth, and causes her severe distress and anxiety. Id. ¶ 60. WPATH’s

11 Standards of Care recognize name changes as an important part of treatment for gender dysphoria.

United States District Court Northern District of California

12 Id. ¶ 60.

13

A person under the supervision of CDCR is required to obtain the permission of the

14 warden of the facility in which she is housed in order to obtain a change of name from a California

15 Superior Court. Cal. Code Civ. Proc. § 1279.5. To minimize the use of the name “Jeffrey” and

16 the associated pain and distress she experiences, Norsworthy submitted a request for approval for

17 a legal name change to Defendant Spearman, the warden of the CDCR facility to which she was

18 then assigned. FAC, ¶ 64. Although Spearman acknowledged that Norsworthy “is in the process

19 of ‘trans-sexualism,’” the request was denied on the basis “that it would not be appropriate to

20 approve a name change to the feminine until the appellant is determined to meet the criteria to be

21 assigned to an institution for female offenders.” Id. ¶ 65. At the third level of review, Defendants

22 Van Leer and Lozano found the warden’s denial “appropriate as the appellant is still incarcerated

23 in an institution for men.” Id. ¶ 68. Defendant Beard has ultimate authority over Norsworthy’s

24 request for a legal name change and for the implementation of CDCR policy with regard to inmate

25 name changes. Id. ¶ 71.

26

B. Procedural History

27

Norsworthy initiated this action by filing a complaint under 42 U.S.C. § 1983 on February

28 14, 2014. ECF No. 1. On March 26, 2014, the Court dismissed her claims with leave to amend, 4

1 ECF. No. 4, and on April 2, 2014, the Court issued an Order Appointing Counsel, ECF. No. 7. On

2 April 15, 2014, the Court dismissed a separate but related action, Norsworthy v. Beard, et al., No.

3 3:14-cv-00345-JST, concerning Norsworthy’s request for a name change, without prejudice to

4 Plaintiff reasserting the name change claims in her amended complaint in this action. ECF No. 8

5 at 5.

6

Norsworthy filed her First Amended Complaint on July 2, 2014. ECF No. 10. She sues

7 Defendants Adams, Beard, Coffin, Lozano, Newton, Spearman, Van Leer, Zamora, and Does 1-30

8 under 42 U.S.C. § 1983, seeking injunctive relief based on Defendants’ failure to provide her with

9 medically necessary sex reassignment surgery in violation of the Eighth and Fourteenth

10 Amendments to the United States Constitution and failure to allow her to pursue a legal name

11 change, also in violation of the Eighth and Fourteenth Amendments. FAC, ¶ 1. Norsworthy

United States District Court Northern District of California

12 claims that Defendants Adams, Beard, Coffin, Newton, and Zamora were deliberately indifferent

13 to her medical needs and deprived her of her right to equal protection under the laws when they

14 denied her sex reassignment surgery. Id. ¶¶ 74-88. She claims that Defendants Beard, Lozano,

15 Spearman, and Van Leer were deliberately indifferent to her medical needs and deprived her of

16 her right to equal protection under the laws when they failed to allow her to seek a legal name

17 change. Id. ¶¶ 89-99.

18

Norsworthy seeks injunctive relief 1) enjoining Defendants from interfering with the

19 discretion of the mental health and other medical professionals involved in her care; 2) declaring

20 C.C.R. Title 15, § 3350.1(b)(2) unconstitutional on its face and as applied; 3) enjoining

21 Defendants to provide her with adequate medical care, including sex reassignment surgery; and 4)

22 requiring Defendants to allow her to seek a legal name change in the Superior Court of California.

23 Id. ¶¶ 100-03. She also seeks attorneys’ fees and costs. Id. ¶ 104.

24

On July 9, 2014, the Court determined that the FAC “contains sufficient factual allegations

25 to state a claim under the Eighth and Fourteenth Amendments,” and ordered that Norsworthy’s 26 complaint should be served on each Defendant.4 ECF No. 12.

27

28

4 The issuance of a screening order under the Prison Litigation Reform Act finding that Norsworthy has stated a cognizable claim does not foreclose Defendants from moving to dismiss

5

1

C. Jurisdiction

2

The Court has jurisdiction over this action under 28 U.S.C. § 1331.

3 II. MOTION TO DISMISS

4

A. Legal Standard

5

A pleading must contain “a short and plain statement of the claim showing that the pleader

6 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) tests the

7 legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

8 2001). 9 10 11 12

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

United States District Court Northern District of California

13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

14 “Dismissal is proper when the complaint does not make out a cognizable legal theory or does not

15 allege sufficient facts to support a cognizable legal theory.” Cervantes v. Countrywide Home

16 Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).

17

B. Analysis

18

In their Motion to Dismiss, Defendants argue that: (1) Norsworthy fails to state an

19 injunctive relief claim because she fails to demonstrate a deprivation of a right under an official

20 state policy; (2) Norsworthy fails to state a claim against Defendants Adams, Coffin, Lozano, and

21 Zamora in their official capacity; (3) Norsworthy fails to state a claim for medical deliberate

22 indifference with respect to her sex reassignment surgery claim; (4) Norsworthy fails to state an

23 equal protection claim; and (5) Norsworthy fails to state a claim for deliberate indifference

24 regarding her name change. The Court considers these arguments in turn.

25 / / /

26 / / /

27

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the complaint. See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007); see also Kunamneni v. Gutierrez, No. 08-cv-5154-PJH, 2009 WL 909831, at *2 (N.D. Cal. April 2, 2009).

6

1

1. Deprivation of a Right under an Official State Policy

2

Defendants argue that this action must be dismissed because a state official may be sued in

3 his or her official capacity for prospective injunctive relief from a continuing or impending state

4 action that violates the Constitution or a federal statute only if the plaintiff demonstrates that “the

5 entity itself is a ‘moving force’ behind the deprivation.” Kentucky v. Graham, 473 U.S. 159, 166

6 (1985). “Because the real party in interest in an official-capacity suit is the governmental entity

7 and not the named official, ‘the entity’s policy or custom must have played a part in the violation

8 of federal law.’” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Graham, 473 U.S. at 166); see

9 also Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004). Here, Defendants argue, Norsworthy has

10 failed to identify a CDCR policy or custom that was the “moving force” behind a deprivation of

11 her constitutional rights. ECF No. 20 at 9.

United States District Court Northern District of California

12

With respect to sex reassignment surgery, Defendants argue, Norsworthy alleges that

13 Defendants independently determined that surgery was not medically necessary based on their

14 own conclusions or those of non-specialized individuals, not based on any CDCR policy. Id. at

15 10. Defendants note that the allegations demonstrate that Norsworthy’s physicians, as distinct

16 from her treating psychologist, never determined that sex reassignment surgery was medically

17 necessary. Id. at 9. Defendants reject Norsworthy’s allegation that Defendants applied § 3350.1

18 as a de facto bar in denying her administrative grievance as an unreasonable inference that should

19 be disregarded. Id. at 10-11 (citing Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.

20 2010) (holding that the court need not accept as true “allegations that are merely conclusory,

21 unwarranted deductions of fact, or unreasonable inferences”)).

22

Defendants further contend that Norsworthy has failed to identify a state policy or custom

23 that denies name change requests to transsexual women. Id. at 11. Rather, she alleges that CDCR

24 officials denied her request because they determined that “it would not be appropriate” to approve

25 a name change while Norsworthy was incarcerated in an institution for men. Id.

26

Norsworthy responds that claims against state officials for prospective injunctive relief

27 under Ex Parte Young, 209 U.S. 123 (1908), do not require allegations of a policy or custom and,

28 in any event, she has sufficiently alleged a policy or custom to categorically deny transgender 7

1 inmates sex reassignment surgery and name changes. ECF No. 27 at 18-23. She argues that

2 official capacity actions against state officials for prospective relief “are not treated as actions

3 against the State,” Will v. Michigan Department of State Police, 491 U.S. 58, 71 n.10 (1989);

4 Graham, 473 U.S. at 167 n.14, and that the policy or custom requirement applies only to claims

5 for damages against state officers and claims against municipal or state entities. ECF No. 27 at

6 19-20. She contends that the Supreme Court’s analysis in Graham and Hafer is limited to the

7 context of suits for damages, and that the cases relied upon by Defendants do not involve official

8 capacity actions against state officials for injunctive relief. Id.

9

Norsworthy argues that even assuming that she must allege that she was deprived of a

10 constitutional right pursuant to a policy or custom to state a claim against Defendants in their

11 official capacities, she has sufficiently alleged a CDCR policy or custom to categorically deny sex

United States District Court Northern District of California

12 reassignment surgery and name changes for transgender inmates. Id. at 20. She maintains that she

13 is not required to identify any formal policy, and that whether an unofficial policy or custom

14 exists, whether a constitutional tort was committed by an official with final policy-making

15 authority, and whether an official with final policy-making authority ratified a subordinate’s

16 unconstitutional decision or action and the basis for it, see Gillette v. Delmore, 979 F.2d 1342,

17 1346-47 (9th Cir. 1992), are all questions of fact not properly resolved on a motion to dismiss.

18 ECF No. 27 at 21.

19

Here, Norsworthy alleges that sex reassignment surgery was denied at every level of

20 review despite Defendants’ knowledge that it was medically necessary; that each Defendant

21 applied 15 C.C.R. § 3350.1 as a de facto bar to Norsworthy’s request; and that Defendants

22 disregarded the recommendation of Norsworthy’s treating health care professional, terminated her

23 relationship with this professional, and appointed a non-treating, non-specialized professional to

24 create a pretextual report finding sex reassignment surgery unnecessary. Id. at 22. Drawing all

25 reasonable inferences in Norsworthy’s favor, she contends that these allegations sufficiently allege

26 that prison officials were acting in accordance with a policy or custom to categorically deny sex

27 reassignment surgery for transgender inmates. Id. As for denial of a name change, Norsworthy

28 argues that she has alleged that Defendants Spearman, Lozano, and Van Leer denied her request 8

1 based on a policy or custom to deny transgender women prisoners name changes until they are

2 deemed eligible for or have been assigned to a female institution. Id. at 22-23.

3

Defendants’ argument that in this official-capacity action against state officials for

4 injunctive relief, CDCR “policy or custom” must have played a part in the violations is well taken.

5 In Graham, the Supreme Court stated that “in an official-capacity suit the entity’s ‘policy or

6 custom’ must have played a part in the violation of federal law.” 473 U.S. at 166. Although

7 Norsworthy is correct that Graham involved an action for damages, the Supreme Court’s statement

8 that “implementation of state policy or custom may be reached in federal court only because

9 official-capacity actions for prospective relief are not treated as actions against the State” suggests

10 that it contemplated that the “policy or custom” requirement should apply in actions for

11 prospective relief. Id. at 167 n.14; cf. Los Angeles Cnty. v. Humphries, 562 U.S. 29 (2010)

United States District Court Northern District of California

12 (holding that, in actions against municipal entities, the requirement that civil rights plaintiffs show

13 that their injury was caused by municipal policy or custom is equally applicable, irrespective of

14 whether the remedy sought is money damages or prospective relief). Furthermore, in a case cited

15 by neither party, the Ninth Circuit stated that Idaho Department of Corrections administrators sued

16 for injunctive relief were “liable in their official capacities only if policy or custom played a part

17 in the violation of federal law.” Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001); see also

18 Dunsmore v. California, No. 11-cv-7141-DOC (JCG), 2012 WL 3809413, at *3-4 (C.D. Cal. July

19 26, 2012) (recommending dismissal of inmate’s official-capacity claim for failure to plausibly

20 connect policies to the specific conduct that allegedly violated his rights), report &

21 recommendation adopted, 2012 WL 3810255 (C.D. Cal. Sept. 4, 2012), aff’d sub nom. Dunsmore

22 v. Cash, 549 F. App’x 680 (9th Cir. 2013).

23

This conclusion does not, however, require that Norsworthy’s claims be dismissed. The

24 Court finds that Norsworthy has adequately alleged that a policy or custom played a part in the

25 constitutional violations she alleges. In analogous municipal liability cases, the Ninth Circuit

26 permits § 1983 plaintiffs to establish liability in one of three ways: (1) by proving that an

27 employee committed the violation pursuant to a formal policy or longstanding practice or custom

28 that constitutes the standard operating procedure of the governmental entity; (2) by establishing 9

1 that the individual who committed the constitutional tort was an official with final policy-making

2 authority; or (3) by proving that an official with final policy-making authority ratified a

3 subordinate’s unconstitutional decision or action and the basis for it. Gillette, 979 F.2d at 1346-

4 47. Norsworthy has alleged that the Defendants involved in the denial of her request for sex

5 reassignment surgery were uniformly aware of her serious medical need for sex reassignment

6 surgery and were deliberately indifferent to this need, id. ¶¶ 39, 43, 49, 51, 76; that they applied 15

7 C.C.R. § 3350.1 as a de facto bar to her request, id. ¶¶ 56, 82; and that she pursued her claim

8 through the final level of administrative review, id. ¶ 52. With respect to her name change claims,

9 Norsworthy has alleged that she pursued her request through the final level of administrative

10 review and that Defendants denied the request based upon a policy that inmates in CDCR facilities

11 for men should not be allowed to legally adopt a normatively feminine name until they meet the

United States District Court Northern District of California

12 criteria for transfer to a women’s institution. Id. ¶¶ 65-66, 68, 70, 96. Drawing all reasonable

13 inferences in favor of Norsworthy, the Court finds that she has pleaded sufficient facts to allow the

14 Court to reasonably infer that official policies or customs played a part in the constitutional

15 violations she alleges.

16

2. Official Capacity Claims Against Defendants Adams, Coffin, Lozano,

17

and Zamora5

18

Defendants argue that Norsworthy has failed to state a claim under § 1983 against

19 Defendants Adams, Coffin, Lozano, and Zamora because she has not alleged that they could

20 provide the relief she requests. ECF No. 20 at 12. “[T]he exception to Eleventh Amendment

21 immunity applicable to prospective injunctive relief . . . applies only to state officials with the

22 ability to provide injunctive relief in their official capacities.” Roberts v. Cal. Dep’t of Corr., No.

23 04-cv-3861-JF, 2007 WL 951289, at *2 (N.D. Cal. Mar. 27, 2007) (citing Graham, 472 U.S. at

24 167 n.14; Young, 209 U.S. at 159-60); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

25

26 5 Defendants Newton and Van Leer joined this argument after the Motion to Dismiss was filed and
contend that it “appl[ies] equally” to them. ECF Nos. 24, 26. Norsworthy notes that it is 27 “unclear” whether these Defendants also contend that they lack the authority to provide the relief

28

requested, but she notes that the arguments in her Opposition apply equally to Newton and Van Leer. ECF No. 27 at 23 n.17.

10

1 61 (1992) (holding that, for a plaintiff to have standing, it must be likely that the injury will be

2 redressed by a favorable decision). Defendants argue that these officials were only responsible for

3 reviewing Norsworthy’s administrative grievances and that Norsworthy has not alleged that they

4 could ensure that her constitutional rights are not violated, rescind sections of the California Code

5 of Regulations, or ensure the implementation of new CDCR policies. ECF No. 20 at 12-13. As a

6 result, Defendants urge that Norsworthy’s claim for injunctive relief against these Defendants

7 should be dismissed as a matter of law.

8

Norsworthy responds that Defendants’ argument is misplaced because she has sufficiently

9 alleged that each Defendant was personally involved in denying either her request for sex

10 reassignment surgery, her request for a name change, or both. ECF No. 27 at 23 (citing Starr v.

11 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may be held liable as a supervisor under

United States District Court Northern District of California

12 § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or

13 (2) a sufficient causal connection between the supervisor’s wrongful conduct and the

14 constitutional violation.”) (internal quotation marks omitted)). In addition, Norsworthy seeks not

15 only a revision of prison policy, but also an injunction preventing Defendants from interfering

16 with the discretion of her medical care providers and ordering sex reassignment surgery and a

17 name change. ECF No. 27 at 24. Based on each Defendant’s involvement in depriving

18 Norsworthy of her constitutional rights, she contends that each is in a position to correct the harm.

19 Id. Whether Defendants have authority to provide any of the requested injunctive relief is, at

20 most, a disputed issue of fact. Id. Finally, Norsworthy contends that, at the pleading stage, a

21 plaintiff need not bring suit against the exact officials ultimately responsible for enforcement,

22 because further discovery may lead to amendments to name more appropriate officials. Id.

23

The Court rejects Defendants’ argument that Defendants Adams, Coffin, Lozano, Newton,

24 Van Leer, and Zamora must be dismissed at this stage. The FAC alleges that each Defendant was

25 personally involved in the administrative denial of Norsworthy’s requests for medically necessary

26 sex reassignment surgery and for a name change. Norsworthy asks the Court to enter injunctive

27 relief “enjoining Defendants from interfering with the discretion of the mental health and other

28 medical professionals involved in Plaintiff’s care” and “enjoining Defendants to provide Plaintiff 11

1 with adequate medical care, including [sex reassignment surgery].” FAC, ¶¶ 100, 102. Even if

2 Defendants are correct that these named officials are not in a position to change CDCR policies or

3 amend the California Code of Regulations, their role in reviewing Norsworthy’s administrative

4 requests for sex reassignment surgery and a name change suggest that they are in a position to

5 approve administrative requests, including the provision of “adequate medical care” as

6 recommended by Norsworthy’s health care providers, going forward. The Court finds that, at this

7 stage, Defendants Adams, Coffin, Lozano, Newton, Van Leer, and Zamora are proper parties to

8 this case.

United States District Court Northern District of California

9

3. Medical Deliberate Indifference Regarding Sex Reassignment Surgery

10

Defendants next argue that Norsworthy has failed to state a claim for deliberate

11 indifference because her allegations establish only a difference of medical opinion between

12 Norsworthy and her psychologist, Dr. Reese, and Defendants Newton, Adams, Coffin, and

13 Zamora, not “acts or omissions sufficiently harmful to evidence deliberate indifference to serious

14 medical needs” in violation of the Eighth Amendment. ECF No. 20 at 14 (citing Estelle v.

15 Gamble, 429 U.S. 97, 106 (1976)). Even assuming that Norsworthy has a serious medical need,

16 Defendants argue, she cannot meet the subjective prong of the deliberate indifference test, which

17 requires a showing that a prison official knew of facts from which the inference could be drawn

18 that a substantial risk of serious harm existed, actually drew that inference, and then disregarded

19 an excessive risk to the inmate’s health. Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

20

Here, Defendants contend, Norsworthy has not shown that any Defendant possessed a

21 sufficiently culpable state of mind to substantiate an Eighth Amendment deliberate indifference

22 claim. Id. at 16. Norsworthy’s allegations that Defendants should have known that sex

23 reassignment surgery was medically necessary based on her medical history and research are

24 inadequate to state a claim for deliberate indifference. Id. Defendants contend that Norsworthy

25 has not alleged that she ever requested sex reassignment surgery from any of her treating

26 physicians or psychologists prior to filing her administrative grievance at the third level of review;

27 that the named Defendants knew that sex reassignment surgery was medically necessary; that any

28 medical doctor ever prescribed surgery or recommended it as a treatment option; or that 12

1 Defendants knew of the research cited in the FAC. Id.6 She alleges only a disagreement about

2 treatment options between her caregivers. Id. at 15. In this situation, she must demonstrate that

3 the chosen course of treatment was “medically unacceptable under the circumstances” and chosen

4 “in conscious disregard of an excessive risk” to her health. Id. at 14-15 (citing Toguchi v. Chung,

5 391 F.3d 1051, 1060 (9th Cir. 2004)). In Defendants’ view, the fact that prison staff provided

6 Norsworthy with mental health care and feminizing hormone and chemical castration treatments

7 belies any claim that they were deliberately indifferent to her gender dysphoria or acted in

8 conscious disregard of her health. Id. at 15.

9

The Court is not persuaded by this argument. The FAC does not allege that there was a

10 genuine difference of medical opinion; rather, it alleges that Defendants’ purported reliance on the

11 opinions of non-specialized, inexperienced health care providers was clearly unreasonable and

United States District Court Northern District of California

12 pretextual and thus evidence of deliberate indifference. ECF No. 27 at 2-3 (citing Snow v.

13 McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (“Based on the unchallenged medical records and

14 inferences drawn in favor of Snow, a reasonable jury could conclude that the decision of the non-

15 treating, non-specialist physicians to repeatedly deny the recommendations for surgery was

16 medically unacceptable under all of the circumstances.”), overruled on other grounds by Peralta v.

17 Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014); Colwell v. Bannister, 763 F.3d 1060, 1069 (9th Cir.

18 2014) (denying summary judgment where the record indicated that prison officials “ignored the

19 recommendations of treating specialists and instead relied on the opinions of non-specialist and

20 non-treating medical officials who made decisions based on an administrative policy”); Hamilton

21 v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992) (denying summary judgment where Hamilton

22 alleged that an expert opinion “was not solicited in good faith, and that it was sought simply as a

23 device to allow the prison official [sic] to proceed with their predetermined decision”), overruled

24

25 6 Defendants also state that Norsworthy has failed to allege that she meets the WPATH preconditions for sex reassignment surgery because she has not obtained two referral letters from

26 qualified mental health professionals. ECF No. 20 at 17. Since Norsworthy is incarcerated, the

Court cannot assume that Norsworthy would be able to obtain such referrals without Defendants’ 27 assistance, particularly in light of her allegation that Defendants removed as her care provider the

28

one mental health professional who repeatedly opined that sex reassignment surgery was medically necessary. FAC at ¶ 23.

13

1 on other grounds by Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002)).

2

Here, Norsworthy has alleged that Dr. Coffin, a non-treating medical professional with no

3 significant experience or training in the treatment of transsexual patients, created a pretextual

4 report to support denial of sex reassignment surgery and that each Defendant denied the surgery

5 even though they knew it to be medically necessary based on Norsworthy’s records and prevailing

6 medical standards. ECF No. 27 at 3-4. The Court agrees with Norsworthy’s contention that she

7 should have the opportunity to explore the Defendants’ motives and the extent and nature of their

8 knowledge through discovery. Id. at 4-5. Defendants’ argument that Norsworthy’s medical

9 indifference claim must fail because she received some treatment for her gender dysphoria is also

10 unconvincing, as a prisoner need not prove that she was completely denied medical care in order

11 to prevail. Id. at 6-7; see Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (“A prisoner need

United States District Court Northern District of California

12 not prove that he was completely denied medical care. Rather, he can establish deliberate

13 indifference by showing that officials intentionally interfered with his medical treatment.”)

14 (citation omitted).

15

In reply, Defendants note that Defendants Newton and Adams reviewed Norsworthy’s

16 grievance before Reese had issued his opinion recommending sex reassignment surgery, and that

17 Coffin acknowledged that Norsworthy’s gender dysphoria caused her distress but noted that no

18 physician had ever found surgery medically necessary. ECF No. 30 at 6-7. Defendants

19 distinguish cases in which defendants ignored the recommendations of plaintiff’s treating

20 physicians, see Colwell, 763 F.3d at 1069-70; Hamilton, 981 F.2d at 1067, on the basis that

21 Defendants explicitly took into account that none of Norsworthy’s treating physicians

22 recommended sex reassignment surgery as medically necessary treatment and Defendant Coffin

23 personally examined Norsworthy before issuing his opinion. ECF No. 30 at 7. Defendants also

24 rely on Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014), for the proposition that prison staff are

25 not deliberately indifferent when they simply review the medical care provided by others. ECF

26 No. 30 at 7. In this case, Defendants argue, Norsworthy has alleged that CDCR provided her

27 treatment by gender and endocrinology specialists and denied her grievance on the basis that these

28 specialists had not recommended sex reassignment surgery as medically necessary, not because of 14

1 animus, improper motive, or medical deliberate indifference. Id. at 8. They reject the suggestion

2 that the filing of this lawsuit has placed Defendants on notice. Id. at 10 (citing Peralta, 744 F.3d at

3 1087 (“Peralta argues that the lawsuit itself put Dillard on notice, but he cites no cases holding that

4 the mere filing of a lawsuit can create independent liability under section 1983.”)).

5

The Court finds that Norsworthy has adequately stated a claim for medical indifference

6 within the meaning of Estelle v. Gamble, 429 U.S. 97 (1976). Prison officials violate their

7 constitutional obligation only through “deliberate indifference to serious medical needs of

8 prisoners,” including by “intentionally denying or delaying access to medical care.” Estelle, 429

9 U.S. at 104-05. Neither negligence nor gross negligence is sufficient to warrant liability under the

10 Eighth Amendment. See Farmer, 511 U.S. at 837. But the FAC does not allege that Defendants

11 “should have known” that sex reassignment surgery was medically necessary. Rather, it alleges

United States District Court Northern District of California

12 that Defendants were fully aware that Norsworthy faces a serious medical need for sex

13 reassignment surgery and failed to address her ongoing anguish. FAC, ¶¶ 39, 43, 49, 51. It

14 further alleges that after Norsworthy’s treating psychologist explicitly recommended sex

15 reassignment surgery, Norsworthy was removed from his care and Defendant Coffin was assigned

16 to prepare a pretextual report recommending that sex reassignment surgery be denied. Id. ¶¶ 23,

17 45, 49.

18

Defendants’ suggestion that Norsworthy was denied sex reassignment surgery based on “a

19 disagreement between her various caregivers,” ECF No. 20 at 15, is unpersuasive. The FAC states

20 that Norsworthy’s treating psychologist concluded that sex reassignment surgery is medically

21 necessary and that Defendant Coffin, who examined Norsworthy but was not involved in her care,

22 came to a contrary conclusion. FAC, ¶¶ 23, 47. It does not state that any medical professional

23 treating Norsworthy concluded that sex reassignment surgery was not medically necessary, or

24 issued any opinion other than the recommendations made by Reese. Because there is no

25 recommendation by a treating physician or other medical provider against sex reassignment

26 surgery, this is not a case in which prison staff have simply reviewed and affirmed medical

27 decisions made by others. See Peralta, 744 F.3d at 1085-86. Instead, drawing all inferences in her

28 favor, Norsworthy has alleged that Defendants deliberately denied her necessary medical 15

1 treatment. Whether Defendants in fact had the requisite mental state to support an Eighth

2 Amendment deliberate indifference claim is a question suitable for exploration in discovery.

United States District Court Northern District of California

3

4. Equal Protection

4

To state an equal protection claim under § 1983, Norsworthy must allege that “the

5 defendants acted with an intent or purpose to discriminate against [her] based upon membership in

6 a protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). The essence of the

7 Equal Protection Clause is a requirement that similarly situated persons be treated alike. Ariz.

8 Dream Act Coal. v. Brewer, 757 F.3d 1053, 1063 (9th Cir. 2014).

9

Defendants argue that Norsworthy fails to state an equal protection claim because the

10 California regulations concerning surgeries that are not medically necessary, 15 C.C.R. §

11 3350.1(b), (d), and requiring that inmates’ requests for a legal name change must be reviewed by

12 the warden, 15 C.C.R. § 3294.5(a), (b), do not discriminate based on classes of individuals. ECF

13 No. 20 at 18. Rather, the regulations concerning surgeries make distinctions based on specific

14 medical conditions and necessary treatments, and incorporate important procedural safeguards to

15 ensure that permanent, life-changing surgery is not undertaken without appropriate medical

16 approval. ECF No. 30 at 13-15. Defendants also contend that the FAC fails to allege that these

17 facially neutral regulations have a disparate impact and that this disparate impact is the result of a

18 discriminatory purpose. ECF No. 20 at 19 (citing PMG Int’l Div. LLC v. Rumsfeld, 303 F.3d

19 1163, 1172-73 (9th Cir. 2002) (noting that, in the Fifth Amendment context, “a disparate impact

20 claim challenging a facially neutral statute requires a showing of discriminatory intent or of a stark

21 pattern of racially disparate enforcement”) (internal quotation marks and citations omitted)).

22 Finally, Defendants contend that Norsworthy fails to allege membership in a protected class. Id.

23 (citing Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663-64 (9th Cir. 1977)).

24

As an initial matter, Holloway is no longer good law. Schwenk v. Hartford, 204 F.3d

25 1187, 1201 (9th Cir. 2000). Defendants state that Schwenk overruled Holloway “on other

26 grounds,” ECF No. 20 at 19, but even a casual reading of Schwenk shows that it overruled

27 precisely the conclusions in Holloway on which Defendants rely. Defendants quote Holloway for

28 the propositions that “transsexuals are not necessarily ‘a discrete and insular minority’ . . . nor has 16

1 it been established that transsexuality is an ‘immutable characteristic determined solely by the

2 accident of birth’ like race or national origin;” and “the complexities involved in merely defining

3 the term ‘transsexual’ would prohibit a determination of suspect classification for transsexuals.”

4 Id. (quoting Holloway, 566 F.2d at 663-64 (citations omitted)). Schwenk unmistakably overruled

5 those holdings.

6

In Schwenk, the Ninth Circuit explained that gender means “an individual’s sexual

7 identity,” and that, under the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 8 228 (1989),7 when a defendant’s action is based upon the fact that the plaintiff fails to “conform to

9 socially-constructed gender expectations,” the defendant has engaged in gender-based

10 discrimination. Schwenk, 204 F.3d at 1201-02. Schwenk also explicitly rejected Holloway’s

11 reasoning. Id. at 1201. Although Schwenk was decided in the context of a transgender woman

United States District Court Northern District of California

12 seeking to bring a claim under the Violence Against Women Act, its reasoning applies equally to

13 discrimination alleged to violate the Equal Protection Clause and therefore discrimination against

14 transgender individuals is a form of gender-based discrimination subject to intermediate scrutiny.

15 Applying Schwenk here, the Court concludes that discrimination based on transgender status

16 independently qualifies as a suspect classification under the Equal Protection Clause because

17 transgender persons meet the indicia of a “suspect” or “quasi-suspect classification” identified by

18 the Supreme Court. As the Eleventh Circuit observed in Glenn v. Brumby, 663 F.3d 1312 (11th

19 Cir. 2011), “[a] person is defined as transgender precisely because of the perception that his or her

20 behavior transgresses gender stereotypes. . . . There is thus a congruence between discriminating

21 against transgender and transsexual individuals and discrimination on the basis of gender-based

22 behavioral norms.” Id. at 1316. And as the Ninth Circuit said in Schwenk, albeit outside the

23 context of the Equal Protection Clause, “what matters . . . is that in the mind of the perpetrator the

24 discrimination is related to the sex of the victim: here, for example, the perpetrator’s actions stem

25 from the fact that he believed that the [transsexual] victim was a man who ‘failed to act like’ one.”

26

27 7 In Price Waterhouse, the Supreme Court held that discrimination on the basis of gender

28

stereotyping is sex-based discrimination. 490 U.S. at 250–51 (plurality op.); id. at 258–61 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring).

17

1 Schwenk, 204 F.3d at 1202. For these reasons, the Court concludes that discrimination on the

2 basis of transgender status is subject to intermediate scrutiny. Glenn at 1320; cf. SmithKline

3 Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (holding that United States v.

4 Windsor, 133 S. Ct. 2675 (2013) “requires that heightened scrutiny be applied to equal protection 5 claims involving sexual orientation”). 8

6

In support of her Equal Protection Clause claim under 42 U.S.C. § 1983, Norsworthy

7 alleges that Defendants acted with an intent or purpose to discriminate against her based upon her

8 membership in a protected class. See Furnace, 705 F.3d at 1030. Specifically, she alleges that

9 “Defendants intentionally treat Plaintiff differently from non-transgender female inmates seeking

10 vaginoplasty due to her gender and transgender status” by barring her from such treatment or, at a

11 minimum, holding her to a more onerous standard, and that Defendants “discriminated against

United States District Court Northern District of California

12 Plaintiff by refusing to permit her to seek a legal name change as a result of her gender and

13 transgender status.” FAC, ¶¶ 84, 96. Norsworthy further contends that 15 C.C.R. § 3350.1 is

14 facially discriminatory because it explicitly distinguishes between treatment for transsexual

15 women that is designated as presumptively “not medically necessary” (i.e. castration and

16 vaginoplasty for treatment of gender dysphoria) and the same treatments for non-transgender

17 women (i.e. vaginoplasty for treatment of cystocele or rectocele), which are explicitly exempted

18 from this bar. ECF No. 27 at 16-17. Because all persons affected by these exclusions are

19 transgender women, Norsworthy argues, the regulation is facially discriminatory. Id. at 17.

20

The application of intermediate scrutiny requires the government to show that its gender

21 classification is substantially related to an important governmental interest, “requiring an

22 exceedingly persuasive justification.” Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 702 (9th

23 Cir. 1997), as amended on denial of reh'g and reh'g en banc (Aug. 21, 1997), as amended (Aug.

24

25 8 The Ninth’s Circuit’s conclusion that heightened scrutiny should be applied to Equal Protection

26 claims involving discrimination based on sexual orientation, see SmithKline, 740 F.3d at 481;

Latta v. Otter, Nos. 14-35420, 14-35421, 12-17668, 2014 WL 4977682, at *4 (9th Cir. Oct. 7, 27 2014), applies with at least equal force to discrimination against transgender people, whose

28

identity is equally immutable and irrelevant to their ability to contribute to society, and who have experienced even greater levels of societal discrimination and marginalization.

18

1 26, 1997) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985)).

2

Here, Norsworthy has alleged that each Defendant discriminated against her on the basis of

3 her transgender status. She alleges that, in considering her need for medically necessary surgery,

4 and vaginoplasty in particular, Defendants treated her differently from a similarly situated non-

5 transgender woman in need of medically necessary surgery. With respect to her request for a

6 name change, she has alleged that the Defendants’ rationale for denying her request — that a name

7 change to a normatively feminine name is inappropriate until she is eligible to be housed in a

8 women’s facility — evidences a clear difference in treatment with regard to name changes based

9 on transgender status. Defendants argue that Norsworthy is not a member of a protected class, but

10 otherwise offer nothing to defend the regulation or alleged policies and conduct at issue from an

11 equal protection challenge. ECF No. 20 at 18-19. They articulate no important governmental

United States District Court Northern District of California

12 interest, much less describe how their gender classification ‒ which makes it more difficult for a 13 transgender person to receive vaginoplasty than it is for a cisgender woman9 ‒ is substantially

14 related to that interest.

15

The Court concludes that Norsworthy has adequately stated a claim under 42 U.S.C.

16 § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment. See Furnace,

17 705 F.3d at 1030. At this early stage in the litigation, before Norsworthy has had the opportunity

18 to develop her claims through discovery, she must plead “factual content that allows the court to

19 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

20 U.S. at 678. The Court concludes that Norsworthy’s allegations meet this standard with respect to

21 her equal protection claims.

22

5. Deliberate Medical Indifference Regarding Norsworthy’s Name

23

Change

24

Finally, Defendants contend that Norsworthy’s allegations that prison officials did not

25 permit her to pursue a legal name change fail to state a claim under § 1983 because although

26

27 9 “Cisgender is a term describing individuals whose gender corresponds with the legal sex that

28

they were assigned at birth.” Olga Tomchin, Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans* People, 101 Cal. L. Rev. 813, 862 (2013).

19

1 Norsworthy claims that she suffers from mental and emotional harm when the name “Jeffrey” is

2 used, conduct that amounts to verbal abuse is not cruel and unusual punishment. ECF No. 20 at

3 20 (citing Austin v. Terhune, 367 F.3d 1167, 1171-72 (9th Cir. 2004)). Moreover, Norsworthy

4 fails to allege that the name change is an objectively serious medical need because she has not

5 alleged that any doctor has determined or even commented that she needs to change her name for

6 medical reasons or that use of her legal name has seriously affected her daily activities. Id. at 21

7 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)). Finally, regarding the

8 subjective prong of the analysis, Norsworthy fails to allege that prison officials were deliberately

9 indifferent to her medical need in refusing her name change because she has failed to allege that

10 the Defendants involved in denying her request were medical professionals or knew that a legal

11 name change was an effective treatment for her gender dysphoria. Id.

United States District Court Northern District of California

12

Norsworthy responds that she is not required to “establish” that a legal name change is an

13 objectively serious medical need at the pleading stage. ECF No. 27 at 8. She need only provide

14 allegations sufficient to give Defendants fair notice of what the claim is and the grounds on which

15 it rests. Norsworthy has alleged that the use of her name is a “painful reminder” of her condition

16 that causes her “mental anguish and suffering,” “pain and distress,” and “severe emotional and

17 psychological stress and anxiety,” and she contends that further resolution of the nature and extent

18 of the suffering she experiences requires further factual development. Id. at 9. She distinguishes

19 the exacerbation of her mental health condition from the “verbal abuse” at issue in Austin v.

20 Terhune, and notes that Austin was decided at summary judgment. Id. at 10. With respect to the

21 subjective prong of the deliberate indifference analysis, Norsworthy argues that she has alleged

22 that Defendants were aware of her gender dysphoria and the associated mental anguish resulting

23 from the use of her legal name. Id. The extent of Defendants’ knowledge, she argues, must be

24 developed through discovery. Id.

25

The Court concludes that Norsworthy’s claim for violation of the Eighth Amendment

26 based on Defendants’ failure to allow her to pursue a legal name change is insufficiently pleaded

27 and should be dismissed. Prison officials violate their constitutional obligation only through

28 “deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 104-05. This indifference 20

1 may be manifested “by prison doctors in their response to the prisoner’s needs or by prison guards

2 in intentionally denying or delaying access to medical care or intentionally interfering with the

3 treatment once prescribed.” Id. In the Ninth Circuit, to maintain an Eighth Amendment claim

4 based on prison medical treatment, an inmate must show a “serious medical need” and that “the

5 defendant’s response to the need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091,

6 1096 (9th Cir. 2006). The second prong “is satisfied by showing (a) a purposeful act or failure to

7 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.

8 Indifference may appear when prison officials deny, delay or intentionally interfere with medical

9 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id.

10 (internal citations and quotation marks omitted). An inadvertent or negligent failure to provide

11 adequate medical care does not state a claim under § 1983. Estelle, 429 U.S. at 105-06.

United States District Court Northern District of California

12

Norsworthy does not allege that any of the Defendants involved in denying her request for

13 a legal name change are medical professionals, or allege facts sufficient for this Court to

14 reasonably infer that these Defendants knew that Norsworthy had a medical need for a legal name

15 change. She states that Defendants Spearman, Van Leer, and Lozano were aware of her gender

16 dysphoria, but she does not allege that they reviewed her medical records, consulted with her

17 treating health care providers, were familiar with standards of care for the treatment of gender

18 dysphoria, or were otherwise aware that their decision to deny her request for a legal name change

19 would have ramifications for her medical care. Norsworthy therefore has not sufficiently alleged

20 that these Defendants were deliberately indifferent to her medical needs.

21 III. MOTION TO STAY DISCOVERY

22

Defendants move to stay discovery “on the ground that it would be unduly burdensome to

23 respond to discovery requests regarding claims that should be dismissed.” ECF No. 23 at 1. The

24 Court having found Counts One, Two, and Four of Plaintiff’s FAC to be viable, the Motion to

25 Stay is DENIED.

26

CONCLUSION

27

The Court hereby GRANTS IN PART and DENIES IN PART Defendants’ Motion to

28 Dismiss and DENIES Defendants’ Motion to Stay Discovery. Plaintiff’s § 1983 claim based upon 21

1 deprivation of her Eighth Amendment rights resulting from Defendants’ failure to allow her to

2 obtain a legal name change is DISMISSED WITHOUT LEAVE TO AMEND. In all other

3 respects, Defendants’ Motion to Dismiss is DENIED.

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IT IS SO ORDERED.

5 Dated: March 31, 2015

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______________________________________

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JON S. TIGAR

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United States District Judge

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United States District Court Northern District of California

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHELLE-LAEL B. NORSWORTHY, Plaintiff-Appellee,
v.
JEFFREY BEARD, CDCR Secretary; M. E. SPEARMAN, CTF Warden; RAYMOND J. COFFIN; JARED LOZANO; A. ADAMS, Chief Medical Executive of CTF, Soledad, CA; A. NEWTON; DAVID VAN LEER; L. D. ZAMORA, CDCR Appeals Chief, Sacramento, CA,
Defendants-Appellants.

No. 15-15712 D.C. No.
3:14-cv-00695JST
OPINION

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding
Submitted August 13, 2015* San Francisco, California
Filed October 5, 2015

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

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NORSWORTHY V. BEARD

Before: Stephen Reinhardt, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge Callahan

SUMMARY**

Prisoner Civil Rights
The panel dismissed as moot an appeal from the district court’s issuance of a preliminary injunction ordering the California Department of Corrections and Rehabilitation to provide plaintiff, a transgendered woman, with sex reassignment surgery, and remanded with directions.
While the appeal was pending—one day prior to oral argument—plaintiff was released on parole from the California prison system. Because plaintiff did not seriously dispute that the case became moot upon her release, the panel dismissed the appeal. The panel remanded to the district court so that it could determine whether the appeal became moot through happenstance or the defendants’ own actions. The panel stated that if the latter was the case, the district court should consider the factors under Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982), to determine whether to vacate its preliminary injunction order. The panel also remanded for

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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3

the district court to consider the question of the award of attorneys’ fees.

Concurring in the dismissal and dissenting from the remand, Judge Callahan stated that in addition to dismissing the appeal, the panel should vacate the mandatory preliminary injunction ordering the California Department of Corrections to provide plaintiff with sex reassignment surgery.

COUNSEL
Jose A. Zelidon-Zepeda, Deputy Attorney General; Thomas S. Patterson; Supervising Deputy Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, San Francisco, California, for Defendants-Appellants.
Herman J. Hoying and Christopher J. Banks, Morgan Lewis & Bockius LLP, San Francisco, California; Ilona M. Turner, Jennifer Orthwein, and Shawn T. Meerkamper, Transgender Law Center, Oakland, California, for Plaintiff-Appellee.
Paul R.Q. Wolfson and Thomas C. Kost, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Alan E. Schoenfeld and Adriel I. Cepeda Derieux, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Felicia H. Ellsworth, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts, for Amici Curiae American Civil Liberties Union et al.
Sanford Jay Rosen and Aaron J. Fischer, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Amici Curiae Bay Area Lawyers for Individual Freedom.

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Barry Levenstam, Jenner & Block LLP, Chicago, Illinois; Lisa J. Kohn, Jenner & Block LLP, Los Angeles, California; Devi M. Rao, Jenner & Block LLP, Washington, D.C., for Amici Curiae Medical and Mental Health Professionals: World Professional Association for Transgender Health and GLMA: Health Professionals Advancing LGBT Equality.

OPINION
PER CURIAM:
Plaintiff Michelle Norsworthy, a transgendered woman, has been incarcerated in the California prison system since 1987. In 2000, she was diagnosed with gender dysphoria and, several years thereafter, petitioned the California Department of Corrections and Rehabilitation (“CDCR”) for sex reassignment surgery, a procedure that would transform her sex characteristics from male to female. After CDCR denied the petition, Norsworthy sued, alleging that the denial amounted to cruel and unusual punishment under the Eighth Amendment. The district court issued a preliminary injunction ordering the defendants to provide Norsworthy with sex reassignment surgery. CDCR appealed under 28 U.S.C. § 1292(a)(1). This court stayed the preliminary injunction pending appeal.
While this appeal was pending—one day prior to oral argument—Norsworthy was released on parole from the California prison system. The defendants contend that the case became moot once CDCR released Norsworthy. We agree. “An inmate’s release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison’s policies unless the suit has been

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classified as a class action.” Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995). Norsworthy does not seriously dispute that the case became moot upon her release.

Here, the district court entered a mandatory injunction requiring CDCR to perform sex reassignment surgery. Although automatic vacatur is “the ‘established practice’ . . . whenever mootness prevents appellate review,” an exception to this practice exists when a case is mooted “not due to ‘happenstance’ but ‘when the appellant has by his own act caused the dismissal of the appeal.’” Dilley, 64 F.3d at 1369–70 (quoting Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir.1982)). Defendants argue that vacatur is appropriate as to the entirety of the district court’s determination because an “independent parole suitability review process” mooted the case. Where “the facts surrounding” a prisoner’s release “are not sufficiently developed in the record . . . to determine” whether the release occurred through happenstance or the defendants’ actions, the appropriate course is to remand to the district court to determine whether to vacate its order. Id. at 1371. We therefore remand to the district court so that it can determine whether this appeal became moot through happenstance or the defendants’ own actions.1 If the latter

1 The dissent charges that our decision to remand because it is unclear whether defendants’ actions mooted the case “approaches sophistry.” Our precedent, however, requires that we remand in such circumstances. See Dilley, 64 F.3d at 1371. Moreover, although our dissenting colleague may be willing to accept the defendants’ assertions regarding the independence of the parole review process, we are not so convinced. Before Norsworthy filed this suit, a panel of the parole board had on several prior occasions denied her parole. It last did so in March 2013 for a three-year term, meaning that Norsworthy’s next parole hearing should in the ordinary course have come in March 2016. Four months after Norsworthy filed

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is the case, the district court should consider the factors under Ringsby to determine whether to vacate its preliminary injunction order.

this suit in February 2014, however, the parole board decided to advance the date of her next parole hearing. That hearing was then delayed and, in the meantime, the district court granted the motion for a preliminary injunction in April 2015. A little over a month later, Norsworthy finally had a parole hearing, at which point a parole board panel approved her application.
By statute, both the full parole review board and governor can review a panel decision within a certain time. See Cal. Penal Code §§ 3041, 3041.2. Here, if both the full parole board and governor had let these statutory periods lapse without action, the parole determination would have become final on October 18, 2015. As it happened, this court asked the parties on July 20 to provide an update regarding Norsworthy’s parole and address whether the parole board panel’s decision mooted the case. In their response, defendants informed us for the first time that the full parole board had at some point approved the panel’s decision and that defendants “anticipate[d]” a final decision from the governor by August 7 that, if favorable to Norsworthy, would insure that she would “be released from prison in August.” The governor did indeed approve Norsworthy’s parole on August 7. Nevertheless, Norsworthy argued that oral argument should proceed as scheduled on August 13 because CDCR planned to release her on August 14, meaning that she would still be incarcerated on the date of oral argument. Defendants reply—filed on August 12, the eve of oral argument—informed us that Norsworthy had in fact been released that very morning. The reply did not divulge why Norsworthy’s release date had changed.
Far from “sophistry,” these coincidences indicate that there is at least some chance that defendants influenced the parole process. At this point, however, all we can say is that the circumstances of Norsworthy’s release are somewhat unusual. Because we can say no more, we are unwilling to express a view of what happened without full knowledge of all the facts that the district court should consider in the first instance.

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Accordingly, this appeal is dismissed as moot, and we remand this case to the district court so that it can determine whether to vacate its preliminary injunction order, as well as to consider the question of the award of attorneys’ fees.

DISMISSED and REMANDED with directions.

CALLAHAN, Circuit Judge, concurring in the dismissal and dissenting from the remand:
Everyone agrees that this appeal is moot. Ms. Norsworthy has been released from custody by the California Department of Corrections and Rehabilitation (“CDCR”). Accordingly, in addition to dismissing this appeal we should vacate the mandatory preliminary injunction ordering CDCR to provide Ms. Norsworthy with sex reassignment surgery.
The majority’s remand is based on legal error and unnecessarily prolongs this litigation. The majority admits that vacatur is appropriate unless “the appellant has by his own act caused the dismissal of the appeal.” Dilley v. Gunn, 64 F.3d 1365, 1369–70 (9th Cir. 1995). The majority does not say that this has happened; it only protests that the facts surrounding Ms. Norsworthy’s release “are not sufficiently developed.”
This approaches sophistry. The process by which the Parole Board determined that Ms. Norsworthy’s confinement was no longer required and the Governor’s review of that decision are set forth fully in the documents that have been submitted to the Court. There is no real doubt that the Parole

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Board and the Governor are not subject to or responsible to the CDCR.1

Moreover, the remand simply encourages unnecessary litigation over a mandatory preliminary injunction that everyone agrees is moot. In contrast, the vacatur of the injunction would have no effect on Ms. Norsworthy’s assertion that she remains entitled to attorney’s fees.

The mandatory preliminary injunction should be vacated.

1 Accepting the majority’s characterization of the facts concerning Ms. Norsworthy’s release, it only shows influence and not that “the appellant has by his own act caused the dismissal of the appeal.” Dilley, 64 F.3d at 1369–70 (quoting Ringsby Truck Lines v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982)).

 
 Case 3:14-cv-00695-JST Document 139 Filed 02/23/16 Page 1 of 2

1 KAMALA D. HARRIS Attorney General of California
2 ]AY C. RUSSELL
Supervising Deputy Attorney General 3 PREETI K. BAJWA
Deputy Attorney General
4 State Bar No. 232484 455 Golden Gate Avenue, Suite 11000
5 San Francisco, CA 94102-7004 Telephone: (415) 703-1621
6 Facsimile: (415) 703-5843 E-mail: Preeti.Bajwa@doj.ca.gov
7 Attorneys for Defendants Kernan, Spearman, Lozano, Coffin, Adams, Newton, Van Leer, and Zamora
8

9

IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO

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Case No. C 14-00695 JST (PR)

13 MICHELLE-LAEL NORSWORTHY

STIPULATION FOR VOLUNTARY

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Plaintiff, DISMISSAL WITH PREJUDICE (Fed. R.

Civ. P. 41(a)(l)(A)(ii))

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v.

16 SCOTT KERNAN, et al.,
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19 Ill
20 Ill
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Defendants.

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1
Stin. Volmitarv Disl'nissal [Fed.R.Civ;P. 4Ila)(l)(A')(ii)l (C 14-00695 JST (PRJ)

Case 3:14-cv-00695-JST Document 139 Filed 02/23/16 Page 2 of 2

1

Plaintiff Michelle-Lael Norsworthy and Defendants Kernan1, Spearman, Lozano, Coffin,

2 Adams, Newton, Van Leer, and Zamora (Defendants) have resolved this case in its entirety.

3 Therefore; the parties stipulate to a dismiss·at of this action with prejudice under Federal Rule of

4 . Civil .Procedure 41 (a)(l)(A)(ii).

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It is so stipulated.

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Dated:

;2 / {) 8' / / b

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'il.ERMAN . HOYirJ0 Ad Astra Law Group, LLP :Attomeyfor P!ainq[f Mii::belle Np7~'llvorthy

12 13 Dated: 14 15 16 17

~/u/tiJ

Pre ti · .. aj
Deputy Attorney General .Attorneyfor Defendants Kernan, Spearman, Lozano, Coffin, Adams, Newton, Van Leer, and Zamora

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20 SF20!4409242
CLS Stip for Disrnissal.rtf
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1 Defendant Beard, the former Secretary of CDCR, was sued in his official capacity. Upon 27 Mr. Beard's retirement on December 31,2015, Mr. Kernan was appointed as the new Secretary
and is being substituted in his official capacity under Federal Rule of Civil Procedure 25(d). 28

2
Stip. Voluntary Dismissal rFed.R.Civ.P. 41(a)(!)(A)(ii)l (C 14-00695 JST fPR))

 
 Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 1 of 16
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:14−cv−00695−JST

CLOSED

Norsworthy v. Beard et al Assigned to: Judge Jon S. Tigar Demand: $0 Case in other court: USCA #:15−15712 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Michelle−Lael B. Norsworthy #:D−54100 Mule Creek State Prison (MCSP) (a/k/a: Jeffrey B. Norsworthy) P.O. Box 409099 Ione, CA 95640 also known as Jeffrey B. Norsworthy

Date Filed: 02/14/2014 Date Terminated: 02/24/2016 Jury Demand: None Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question
represented by Herman Joseph Hoying Ad Astra Law Group 582 Market Street, 17th Floor San Francisco, CA 94104 415−795−3579 Fax: 415−276−1976 Email: hhoying@astralegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J. Banks Morgan Lewis & Bockius LLP One Market, Spear Street Tower San Francisco, CA 94105 415−442−1000 Fax: 415−442−1001 Email: cbanks@morganlewis.com ATTORNEY TO BE NOTICED
Ian Thompson Long Gibson, Dunn & Crutcher LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 415−393−8269 Fax: 415−393−8306 Email: ilong@gibsondunn.com TERMINATED: 02/26/2015
Ilona Margaret Turner Transgender Law Center 1629 Telegraph Avenue, Suite 400 Oakland, CA 94612 415−865−0176 Fax: 877−847−1278 Email: iturner@nclrights.org ATTORNEY TO BE NOTICED
Jennifer Harris Orthwein Medina Orthwein LLP 1322 Webster St. Ste 200 Oakland, CA 94612 5108230240 Fax: 5102173580 Email: Jennifer.Orthwein@gmail.com ATTORNEY TO BE NOTICED
Megan Dy Lin Morgan Lewis and Bockius LLP One Market, Spear Tower San Francisco, CA 94105

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 2 of 16
415−442−1137 Fax: 415−442−1001 Email: mlin@morganlewis.com ATTORNEY TO BE NOTICED
Shawn Thomas Meerkamper Transgender Law Center 1629 Telegraph Avenue, Suite 400 Oakland, CA 94612 415−865−0176 Fax: 877−847−1278 Email: shawn@transgenderlawcenter.org TERMINATED: 08/17/2015

V. Defendant Jeffrey Beard CDCR Secretary
Defendant Clark Kelso Medical Receiver TERMINATED: 07/02/2014

represented by Preeti Kaur Bajwa California State Attorney General's Office California Department of Justice 1515 Clay Street, 20th Floor Oakland, CA 94612 510−879−0980 Fax: 510−622−2270 Email: preeti.bajwa@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Rheem Fluet California State Attorney General's Office Correctional Law Section 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−703−5836 Fax: 415−703−5843 Email: nfluet@lakinspears.com ATTORNEY TO BE NOTICED
Jay Craig Russell Office of the Attorney General Correctional Law Section 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5717 Fax: 415−703−5843 Email: jay.russell@doj.ca.gov ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda California State Attorney General's Office Department of Justice 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−510−3879 Fax: 415−703−5843 Email: Jose.ZelidonZepeda@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Martin H. Dodd Futterman Dupree Dodd Croley Maier LLP 601 Montgomery St., Suite 333

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 3 of 16

San Francisco, CA 94111 (415) 399−3840 Fax: (415) 399−3838 Email: mdodd@fddcm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
M. E. Spearman CTF Warden

represented by Edward Rheem Fluet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Preeti Kaur Bajwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED

Defendant
A. Adams Chief Medical Executive of CTF, Soledad, CA

represented by Edward Rheem Fluet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Preeti Kaur Bajwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED

Defendant
L.D. Zamora CDCR Appeals Chief, Sacramento, CA

represented by Edward Rheem Fluet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Preeti Kaur Bajwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 4 of 16

Defendant A. Newton
Defendant Raymond J. Coffin
Defendant David Van Leer
Defendant Jared Lozano

represented by Preeti Kaur Bajwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Rheem Fluet (See above for address) ATTORNEY TO BE NOTICED
Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Rheem Fluet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Preeti Kaur Bajwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED
represented by Preeti Kaur Bajwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Rheem Fluet (See above for address) ATTORNEY TO BE NOTICED
Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED
Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Rheem Fluet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Preeti Kaur Bajwa

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 5 of 16

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Jose A Zelidon−Zepeda (See above for address) ATTORNEY TO BE NOTICED

Defendant Scott Kernan

represented by Preeti Kaur Bajwa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/14/2014
02/14/2014 03/14/2014 03/25/2014 03/26/2014
03/26/2014 03/26/2014 04/02/2014 04/03/2014 04/15/2014

# Docket Text
1 COMPLAINT Under The Civil Rights Act (42 U.S.C. Section 1983) − [No Summons Issued] against A. Adams, Jeffrey Beard, Clark Kelso, M. E. Spearman & L.D. Zamora, [Filing Fee: Ifpp entered on 2/14/2014] Filed by Jeffrey B. Norsworthy.(tnS) (Filed on 2/14/2014) (tnS, ). (Additional attachment(s) added on 2/18/2014: # 1 Points & Authorities) (tnS, ). (Additional attachment(s) added on 2/18/2014: # 2 Exhibit A) (tnS, ). (Additional attachment(s) added on 2/18/2014: # 3 Exhibit B − (part 1)) (tnS, ). (Additional attachment(s) added on 2/18/2014: # 4 Exhibit B − (part 2)) (tnS, ). (Additional attachment(s) added on 2/18/2014: # 5 Exhibit C) (tnS, ). (Additional attachment(s) added on 2/18/2014: # 6 Exhibit D) (tnS, ). (Entered: 02/18/2014)
2 Prisoner's Application for Leave to Proceed in Forma Pauperis iled by Jeffrey B. Norsworthy. (tnS) (Filed on 2/14/2014) (Entered: 02/18/2014)
3 ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS by Judge Jon S. Tigar, granting 2 Motion for Leave to Proceed in forma pauperis. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 3/14/2014) (Entered: 03/14/2014)
5 MOTION for Appointment of Counsel filed by Jeffrey B. Norsworthy.(tnS) (Filed on 3/25/2014) (Entered: 03/26/2014)
4 ORDER OF DISMISSAL WITH LEAVE TO AMEND; REFERRING MATTER TO FEDERAL PRO BONO PROJECT AND STAYING PROCEEDINGS PENDING APPOINTMENT OF COUNSEL. Signed by Judge Jon S. Tigar on March 26, 2014. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 3/26/2014) (Entered: 03/26/2014)
Copy of re 4 Order of Dismissal with Leave to Amend, re 1 Civil Rights Complaint & a Docket Entries Forwarded to the Federal Pro Bono Project. (tnS) (Filed on 3/26/2014) (Entered: 03/26/2014)
6 NOTICE of Change of Address filed by Jeffrey B. Norsworthy. (tnS) (Filed on 3/26/2014) (Entered: 03/27/2014)
7 ORDER APPOINTING COUNSEL. Signed by Judge Jon S. Tigar on April 2, 2014. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 4/2/2014) (Entered: 04/02/2014)
Copy of re 7 Order Appointing Counsel forwarded to the Federal Pro Bono Project. (tnS) (Filed on 4/3/2014) (Entered: 04/03/2014)
8 ORDER OF DISMISSAL WITHOUT PREJUDICE re: 3:14−cv−00345−JST Norsworthy v. Beard et al. Signed by Judge Jon S. Tigar on April 15, 2014. (wsn, COURT STAFF) (Filed on 4/15/2014) (Entered: 04/15/2014)

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 6 of 16

04/16/2014 04/21/2014 07/02/2014 07/02/2014 07/09/2014 07/10/2014 07/24/2014 08/29/2014 09/26/2014 09/26/2014 09/26/2014 09/29/2014 09/30/2014
09/30/2014
09/30/2014

9 REQUEST filed by Jeffrey B. Norsworthy. (tnS) (Filed on 4/16/2014) (Entered: 04/16/2014)
Copy of docket mailed to Plaintiff. Remark (dljsec, COURT STAFF) (Filed on 4/21/2014) (Entered: 04/21/2014)
10 FIRST AMENDED COMPLAINT; First Amended Complaint against A. Adams, Jeffrey Beard, M. E. Spearman, L.D. Zamora, A. Newton, Raymond J. Coffin, David Van Leer, Jared Lozano. Filed by Jeffrey B. Norsworthy. (Attachments: # 1 Exhibit 1)(Hoying, Herman) (Filed on 7/2/2014) (Entered: 07/02/2014)
11 Certificate of Interested Entities filed by Jeffrey B. Norsworthy; −Certification of Interested Entities or Persons (Hoying, Herman) (Filed on 7/2/2014) (Entered: 07/02/2014)
12 ORDER REQUIRING MARSHAL TO ISSUE AND SERVE PROCESS re 10 Amended Complaint, filed by Jeffrey B. Norsworthy. Signed by Judge Jon S. Tigar on July 9, 2014. (wsn, COURT STAFF) (Filed on 7/9/2014) (Entered: 07/09/2014)
13 Summons Issued as to Defendants A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer & L.D. Zamora.(tnS) (Filed on 7/10/2014) (Additional attachment(s) added on 7/10/2014: # 1 USM Form 285) (tnS, ). (Entered: 07/10/2014)
14 Acknowledgment of Receipt from the United States Marshals Service of Summons and Complaint. (tnS) (Filed on 7/24/2014) (Entered: 07/25/2014)
15 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. An Initial Case Management Conference is set for 10/15/2014 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. This is a text only entry. There is no document associated with this notice. (wsn, COURT STAFF) (Filed on 8/29/2014) (Entered: 08/29/2014)
16 MOTION for Administrative Relief to Continue Initial Case Management Conference filed by A. Adams, Raymond J. Coffin, Jared Lozano, M. E. Spearman, L.D. Zamora. Responses due by 10/10/2014. Replies due by 10/17/2014. (Fluet, Edward) (Filed on 9/26/2014) (Entered: 09/26/2014)
17 Declaration of Edward R. Fluet in Support of 16 MOTION for Administrative Relief to Continue Initial Case Management Conference filed byA. Adams, Raymond J. Coffin, Jared Lozano, M. E. Spearman, L.D. Zamora. (Related document(s) 16 ) (Fluet, Edward) (Filed on 9/26/2014) (Entered: 09/26/2014)
18 Proposed Order re 16 MOTION for Administrative Relief to Continue Initial Case Management Conference by A. Adams, Raymond J. Coffin, Jared Lozano, M. E. Spearman, L.D. Zamora. (Fluet, Edward) (Filed on 9/26/2014) (Entered: 09/26/2014)
Set/Reset Deadlines as to 16 MOTION for Administrative Relief to Continue Initial Case Management Conference. Responses due by 9/30/2014. No Reply due. (Civil Local Rule 7−11). (wsn, COURT STAFF) (Filed on 9/29/2014) (Entered: 09/29/2014)
19 RESPONSE (re 16 MOTION for Administrative Relief to Continue Initial Case Management Conference ) Opposition to Motion for Administrative Relief to Continue Initial Case Management Conference filed byJeffrey B. Norsworthy. (Attachments: # 1 Proposed Order [Proposed] Order Denying Defendants' Motion for Administrative Relief to Continue Initial Case Management Conference)(Hoying, Herman) (Filed on 9/30/2014) (Entered: 09/30/2014)
20 MOTION to Dismiss Plaintiff's First Amended Complaint filed by A. Adams, Raymond J. Coffin, Jared Lozano, M. E. Spearman, L.D. Zamora. Responses due by 10/28/2014. Replies due by 11/12/2014. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Fluet, Edward) (Filed on 9/30/2014) (Entered: 09/30/2014)
Set/Reset Deadlines as to 20 MOTION to Dismiss Plaintiff's First Amended Complaint. Responses due by 10/14/2014. Replies due by 10/21/2014. Motion Hearing set for 11/6/2014 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. (wsn, COURT STAFF) (Filed on 9/30/2014) (Entered: 09/30/2014)

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 7 of 16

09/30/2014 10/01/2014 10/02/2014
10/02/2014 10/03/2014
10/08/2014 10/14/2014 10/15/2014 10/16/2014 10/21/2014 10/22/2014 11/06/2014
11/06/2014

21 JOINT CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Jeffrey B. Norsworthy. (Hoying, Herman) (Filed on 9/30/2014) (Entered: 09/30/2014)
22 ORDER DENYING DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE INITIAL CASE MANAGEMENT CONFERENCE by Judge Jon S. Tigar denying 16 Motion to Continue Initial Case Management Conference. (wsn, COURT STAFF) (Filed on 10/1/2014) (Entered: 10/01/2014)
23 MOTION to Stay Discovery filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, L.D. Zamora. Motion hearing set for 11/6/14 at 2:00 pm. Responses due by 10/30/2014. Replies due by 11/13/2014. (Attachments: # 1 Declaration of Edward R. Fluet in Support, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Fluet, Edward) (Filed on 10/2/2014) Modified on 10/3/2014 (mclS, COURT STAFF). (Entered: 10/02/2014)
24 Joinder To Defendants' 20 Motion to Dismiss Plaintiff's First Amended Complaint filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, L.D. Zamora. (Fluet, Edward) (Filed on 10/2/2014) Modified on 10/3/2014 (wsn, COURT STAFF). (Entered: 10/02/2014)
25 CLERK'S NOTICE Correcting Motion Briefing Schedule as to 23 MOTION to Stay Discovery. Per Local Rule 7−3, briefing for this motion is set as follows: Responses due by 10/16/2014. Replies due by 10/23/2014. The Motion Hearing remains set for 11/6/2014 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. This is a text only entry. There is no document associated with this notice. (wsn, COURT STAFF) (Filed on 10/3/2014) (Entered: 10/03/2014)
26 Joinder in Defendants' 20 Motion to Dismiss Plaintiff's First Amended Complaint filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Fluet, Edward) (Filed on 10/8/2014) Modified on 10/9/2014 (wsn, COURT STAFF). (Entered: 10/08/2014)
27 RESPONSE to (re 20 MOTION to Dismiss Plaintiff's First Amended Complaint); Opposition to Defendants' Motion to Dismiss filed by Jeffrey B. Norsworthy. (Attachments: #(1) Proposed Order)(Hoying, Herman) (Filed on 10/14/2014) (Entered: 10/14/2014)
28 Minute Entry: Initial Case Management Conference held on 10/15/2014 before Judge Jon S. Tigar (Date Filed: 10/15/2014). (Court Reporter: Not reported.) (wsn, COURT STAFF) (Date Filed: 10/15/2014) (Entered: 10/15/2014)
29 RESPONSE to (re 23 MOTION to Stay Discovery); Opposition to Motion for Protective Order to Stay Discovery filed by Jeffrey B. Norsworthy. (Attachments: #(1) Proposed Order)(Hoying, Herman) (Filed on 10/16/2014) (Entered: 10/16/2014)
30 REPLY (re 20 MOTION to Dismiss Plaintiff's First Amended Complaint ) filed byA. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Fluet, Edward) (Filed on 10/21/2014) (Entered: 10/21/2014)
31 REPLY (re 23 MOTION to Stay Discovery) filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Fluet, Edward) (Filed on 10/22/2014) (Entered: 10/22/2014)
32 Minute Entry: Motion Hearing held on 11/6/2014 before Judge Jon S. Tigar (Date Filed: 11/6/2014) re 23 MOTION to Stay Discovery filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, L.D. Zamora, Raymond J. Coffin, 20 MOTION to Dismiss Plaintiff's First Amended Complaint filed by Jared Lozano, A. Adams, M. E. Spearman, L.D. Zamora, Raymond J. Coffin. (Court Reporter: Kelly Polvi.) (wsn, COURT STAFF) (Date Filed: 11/6/2014) (Entered: 11/06/2014)
33 SCHEDULING ORDER REGARDING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION. Motion Hearing set for 3/4/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Signed by Judge Jon S. Tigar on November 6, 2014. (wsn, COURT STAFF) (Filed on 11/6/2014) (Entered: 11/06/2014)

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 8 of 16

11/14/2014 11/14/2014 11/14/2014 11/14/2014 11/18/2014
11/18/2014 11/24/2014 11/24/2014 12/10/2014
12/10/2014
12/15/2014 12/16/2014 12/18/2014 12/31/2014 01/02/2015
01/02/2015 01/02/2015

34 Summons Returned Unexecuted as to Defendant Jeffrey Beard. (tnS) (Filed on 11/14/2014) (Entered: 11/14/2014)
35 SUMMONS Returned Executed Upon Defendants A. Newton & David Van Leer, Served on 10/10/2014, and Notice and Acknowledgment of Receipt of Summons and Complaint by Mail. (tnS) (Filed on 11/14/2014) (Entered: 11/14/2014)
36 SUMMONS Returned Executed Upon Defendants Raymond J. Coffin, Jared Lozano & L.D. Zamora, Served on 8/21/2014, and Notice and Acknowledgment of Receipt of Summons and Complaint by Mail. (tnS) (Filed on 11/14/2014) (Entered: 11/14/2014)
37 SUMMONS Returned Executed Upon Defendants A. Adams & M. E. Spearman, Served on 8/21/2014, and Notice and Acknowledgment of Receipt of Summons and Complaint by Mail. (tnS) (Filed on 11/14/2014) (Entered: 11/14/2014)
38 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTION TO STAY DISCOVERY by Judge Jon S. Tigar; denying 23 Motion to Stay; granting in part and denying in part 20 Motion to Dismiss. (wsn, COURT STAFF) (Filed on 11/18/2014) (Entered: 11/18/2014)
41 "Document Filed Under Seal". (tnS) (Filed on 11/18/2014) (tnS, ). (Entered: 11/25/2014)
39 CERTIFICATE OF SERVICE by Michelle−Lael B. Norsworthy re 10 Amended Complaint, 13 Summons Issued (Hoying, Herman) (Filed on 11/24/2014) (Entered: 11/24/2014)
40 "Document Filed Under Seal". (tnS) (Filed on 11/24/2014) (tnS, ). (Entered: 11/25/2014)
42 STIPULATION WITH [PROPOSED] ORDER to Permit Deposition of Plaintiff filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Fluet, Edward) (Filed on 12/10/2014) (Entered: 12/10/2014)
43 STIPULATION AND ORDER re 42 STIPULATION WITH PROPOSED ORDER to Permit Deposition of Plaintiff filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin, David Van Leer. Signed by Judge Jon S. Tigar on December 10, 2014. (wsn, COURT STAFF) (Filed on 12/10/2014) (Entered: 12/10/2014)
44 ORDER. Signed by Judge Jon S. Tigar on December 15, 2014. (Attachments: # 1 Email sent to Court 12/11/2014)(wsn, COURT STAFF) (Filed on 12/15/2014) (Entered: 12/15/2014)
45 DOCUMENT FILED UNDER SEAL. (tnS) (Filed on 12/16/2014) (tnS, ). (Entered: 12/16/2014)
46 Defendants' ANSWER to First Amended Complaint filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Fluet, Edward) (Filed on 12/18/2014) (Entered: 12/18/2014)
47 STIPULATION WITH [PROPOSED] ORDER Revising Schedule for Plaintiff's Motion for Preliminary Injunction filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 12/31/2014) (Entered: 12/31/2014)
48 STIPULATION AND ORDER re 47 STIPULATION WITH PROPOSED ORDER Revising Schedule for Plaintiff's Motion for Preliminary Injunction filed by Michelle−Lael B. Norsworthy. Signed by Judge Jon S. Tigar on January 2, 2015. (wsn, COURT STAFF) (Filed on 1/2/2015) (Entered: 01/02/2015)
Set Deadlines/Hearings: Motion Hearing set for 4/1/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. (wsn, COURT STAFF) (Filed on 1/2/2015) (Entered: 01/02/2015)
49 ASSOCIATION of Counsel for Defendants by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Zelidon−Zepeda, Jose) (Filed on 1/2/2015) (Entered: 01/02/2015)

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 9 of 16

01/15/2015
01/15/2015
01/15/2015 01/15/2015 01/16/2015 02/11/2015
02/11/2015 02/13/2015 02/18/2015 02/25/2015 02/26/2015 02/26/2015 02/26/2015

50 MOTION for a Mental Examination of Plaintiff Under Federal Rule of Civil Procedure 35; REQUEST that the Court Decide this MOTION on Shortened Time Under Local Rule 6−3 filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, David Van Leer, L.D. Zamora. Responses due by 1/29/2015. Replies due by 2/5/2015. (Zelidon−Zepeda, Jose) (Filed on 1/15/2015) (Entered: 01/15/2015)
51 Declaration of Jose A. Zelidon−Zepeda in Support of 50 MOTION for a Mental Examination of Plaintiff Under Federal Rule of Civil Procedure 35; REQUEST that the Court Decide this MOTION on Shortened Time Under Local Rule 6−3, with Exhibit 1 filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, David Van Leer, L.D. Zamora. (Related document(s) 50 ) (Zelidon−Zepeda, Jose) (Filed on 1/15/2015) (Entered: 01/15/2015)
52 [Proposed] Order Granting re 50 MOTION for a Mental Examination of Plaintiff Under Federal Rule of Civil Procedure 35; REQUEST that the Court Decide this MOTION on Shortened Time Under Local Rule 6−3 filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, David Van Leer, L.D. Zamora. (Zelidon−Zepeda, Jose) (Filed on 1/15/2015) (Entered: 01/15/2015)
53 STIPULATION WITH [PROPOSED] ORDER for Rule 35 Independent Medical Examination of Plaintiff filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Fluet, Edward) (Filed on 1/15/2015) (Entered: 01/15/2015)
54 STIPULATION AND ORDER re 53 STIPULATION WITH PROPOSED ORDER for Rule 35 Independent Medical Examination of Plaintiff filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin, David Van Leer. Signed by Judge Jon S. Tigar on January 16, 2015. (wsn, COURT STAFF) (Filed on 1/16/2015) (Entered: 01/16/2015)
55 CLERK'S NOTICE SETTING TELEPHONIC CASE MANAGEMENT CONFERENCE. A telephonic case management conference is set for 2/13/2015 at 2:00 PM. No later than 24 hours prior to the conference, the parties shall provide the Courtroom Deputy Clerk a single number at which all counsel can be reached. Please email the contact information to: jstcrd@cand.uscourts.gov. This is a text only entry. There is no document associated with this notice. (wsn, COURT STAFF) (Filed on 2/11/2015) (Entered: 02/11/2015)
56 NOTICE of Appearance by Preeti Kaur Bajwa (Attachments: # 1 Certificate/Proof of Service)(Bajwa, Preeti) (Filed on 2/11/2015) (Entered: 02/11/2015)
57 Minute Entry for proceedings held before Hon. Jon S. Tigar: Telephonic Case Management Conference held on 2/13/2015. Court Reporter: Not reported. (wsn, COURT STAFF) (Date Filed: 2/13/2015) (Entered: 02/13/2015)
58 DISCOVERY ORDER. Signed by Judge Jon S. Tigar on February 18, 2015. (Attachments: # 1 Exhibit A)(wsn, COURT STAFF) (Filed on 2/18/2015) (Entered: 02/18/2015)
59 STIPULATION WITH [PROPOSED] ORDER; Stipulation and [Proposed] Order to Extend Page Limits for Motions Regarding Preliminary Injunction filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 2/25/2015) (Entered: 02/25/2015)
60 STIPULATION AND ORDER re 59 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order to Extend Page Limits for Motions Regarding Preliminary Injunction filed by Michelle−Lael B. Norsworthy. Signed by Judge Jon S. Tigar on February 26, 2015. (wsn, COURT STAFF) (Filed on 2/26/2015) (Entered: 02/26/2015)
61 NOTICE of Change In Counsel by Ian Thompson Long (Long, Ian) (Filed on 2/26/2015) (Entered: 02/26/2015)
62 MOTION for Preliminary Injunction; Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof filed by Michelle−Lael B. Norsworthy. Motion Hearing set for 4/1/2015 02:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Responses due by

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 10 of 16

02/26/2015 02/26/2015 02/26/2015 02/26/2015
02/26/2015 02/26/2015 02/26/2015 02/26/2015 02/26/2015 03/12/2015 03/12/2015 03/12/2015 03/12/2015

3/12/2015. Replies due by 3/19/2015. (Attachments: #(1) Proposed Order)(Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
63 Declaration of Dr. Randi C. Ettner in Support of 62 MOTION for Preliminary Injunction; Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof filed by Michelle−Lael B. Norsworthy. (Related document(s) 62 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
64 Declaration of Dr. R. Nick Gorton in Support of 62 MOTION for Preliminary Injunction; Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof filed by Michelle−Lael B. Norsworthy. (Related document(s) 62 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
65 Declaration of Dr. Marci L. Bowers in Support of 62 MOTION for Preliminary Injunction; Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof filed by Michelle−Lael B. Norsworthy. (Related document(s) 62 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
66 Declaration of Herman J. Hoying in Support of 62 MOTION for Preliminary Injunction; Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof filed by Michelle−Lael B. Norsworthy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 62 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
67 EXHIBITS re 66 Declaration in Support, Exhibits E, F to Declaration of Herman J. Hoying filed byMichelle−Lael B. Norsworthy. (Related document(s) 66 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
68 EXHIBITS re 66 Declaration in Support, Exhibits G−H to Declaration of Herman J. Hoying filed byMichelle−Lael B. Norsworthy. (Related document(s) 66 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
69 EXHIBITS re 66 Declaration in Support, Exhibits I through L part 1 to Declaration of Herman J. Hoying filed byMichelle−Lael B. Norsworthy. (Related document(s) 66 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
70 EXHIBITS re 66 Declaration in Support, Exhibits L part 2 through N to Declaration of Herman J. Hoying filed byMichelle−Lael B. Norsworthy. (Related document(s) 66 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
71 EXHIBITS re 66 Declaration in Support, Exhibits O through W to Declaration of Herman J. Hoying filed byMichelle−Lael B. Norsworthy. (Related document(s) 66 ) (Hoying, Herman) (Filed on 2/26/2015) (Entered: 02/26/2015)
72 Administrative Motion to File Under Seal Exhibit G to Bajwa Declaration (Levine Report) filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, David Van Leer, L.D. Zamora. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Certificate/Proof of Service, # 4 Exhibit)(Bajwa, Preeti) (Filed on 3/12/2015) (Entered: 03/12/2015)
73 RESPONSE to (re 62 MOTION for Preliminary Injunction; Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof) filed byA. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Bajwa, Preeti) (Filed on 3/12/2015) (Entered: 03/12/2015)
74 Declaration of Dr. I. Munir in Support of 73 Opposition/Response to Motion filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Related document(s) 73 ) (Bajwa, Preeti) (Filed on 3/12/2015) (Entered: 03/12/2015)
75 Declaration of Kelly Harrington in Support of 73 Opposition/Response to Motion filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Related document(s) 73 ) (Bajwa, Preeti)

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 11 of 16

03/12/2015 03/12/2015 03/19/2015 03/19/2015 03/19/2015
03/23/2015
03/24/2015 03/25/2015 03/26/2015 03/27/2015

(Filed on 3/12/2015) (Entered: 03/12/2015)
76 Declaration of Preeti K. Bajwa in Support of 73 Opposition/Response to Motion, filed byA. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit H)(Related document(s) 73 ) (Bajwa, Preeti) (Filed on 3/12/2015) (Entered: 03/12/2015)
77 Request for Judicial Notice in Support of re 73 Opposition/Response to Motion filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Attachments: # 1 Exhibit A, # 2 Exhibit B − PART 1 OF 2, # 3 Exhibit B − PART 2 OF 2)(Related document(s) 73 ) (Bajwa, Preeti) (Filed on 3/12/2015) (Entered: 03/12/2015)
78 Administrative Motion to File Under Seal Plaintiff's Unredacted Evidentiary Objection and Motion to Strike Portions of Expert Declaration of Dr. Stephen Levine and Appendix A thereto filed by Michelle−Lael B. Norsworthy. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Redacted Objections and Motion to Strike, # 4 Unredacted Objections and Motion to Strike, # 5 Appendix A to Objections and Motion to Strike, # 6 Certificate/Proof of Service)(Hoying, Herman) (Filed on 3/19/2015) (Entered: 03/19/2015)
79 REPLY (re 62 MOTION for Preliminary Injunction; Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof); −Plaintiff's Reply Memorandum in Support of Motion for Preliminary Injunction filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 3/19/2015) (Entered: 03/19/2015)
80 OBJECTIONS to re 62 MOTION for Preliminary Injunction; −Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof; −Redacted Evidentiary Objection and Motion to Strike Portions of Expert Declaration of Dr. Stephen Levine in Support of Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction filed by Michelle−Lael B. Norsworthy. (Attachments: # 1 Notice of Filing Under Seal, Appendix A, # 2 Declaration, # 3 Proposed Order)(Hoying, Herman) (Filed on 3/19/2015) (Entered: 03/19/2015)
81 NOTICE OF MOTION & MOTION to Strike PLAINTIFFS EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE PORTIONS OF EXPERT DECLARATION OF DR. STEPHEN LEVINE IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. Motion Hearing set for 4/1/2015 02:00 PM in Courtroom 7, 19th Floor, San Francisco before Hon. Jon S. Tigar. Responses due by 4/6/2015. Replies due by 4/13/2015. (Attachments: #(1) Proposed Order)(Bajwa, Preeti) (Filed on 3/23/2015) (Entered: 03/23/2015)
82 RESPONSE to (re 81 MOTION to Strike; PLAINTIFFS EVIDENTIARY OBJECTIONS; ETC); −Plaintiff's Opposition to Defendants' Motion to Strike Plaintiff's Evidentiary Objections and Motion to Strike Portions of Expert Declaration of Dr. Stephen Levine filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 3/24/2015) (Entered: 03/24/2015)
83 ORDER DENYING MOTION TO STRIKE EVIDENTIARY OBJECTIONS AND GRANTING REQUEST FOR ADDITIONAL BRIEFING by Judge Jon S. Tigar; denying 81 Motion to Strike. (wsn, COURT STAFF) (Filed on 3/25/2015) (Entered: 03/25/2015)
84 ORDER GRANTING ADMINISTRATIVE MOTIONS TO FILE UNDER SEAL by Judge Jon S. Tigar; granting 72 Administrative Motion to File Under Seal; granting 78 Administrative Motion to File Under Seal. (wsn, COURT STAFF) (Filed on 3/26/2015) (Entered: 03/26/2015)
85 MOTION for Administrative Relief for Oral Argument and to Bring Into the Federal Courthouse Certain Electronic Equipment and Materials, and [Proposed] Order filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 3/27/2015) (Entered: 03/27/2015)

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 12 of 16

03/30/2015 03/30/2015 03/30/2015 03/31/2015
03/31/2015 03/31/2015
04/01/2015
04/02/2015 04/02/2015
04/02/2015 04/03/2015 04/06/2015

86 ORDER RE MOTION FOR ADMINISTRATIVE RELIEF re 85 MOTION for Leave to Appear Motion for Administrative Relief for Oral Argument and to Bring Into the Federal Courthouse Certain Electronic Equipment and Materials filed by Michelle−Lael B. Norsworthy. Signed by Judge Jon S. Tigar on March 30, 2015. (wsnS, COURT STAFF) (Filed on 3/30/2015) (Entered: 03/30/2015)
87 Response to re 86 Order; −Defendants' Opposition to Plaintiffs Motion for Administrative Relief for Oral Argument and to Bring into the Federal Courthouse Certain Electronic Equipment and Materials filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Bajwa, Preeti) (Filed on 3/30/2015) (Entered: 03/30/2015)
88 Response to re 83 Order on Motion to Strike; −Defendants' Opposition to Plaintiff's Motion to Strike Expert Report of Dr. Stephen Levine filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Bajwa, Preeti) (Filed on 3/30/2015) (Entered: 03/30/2015)
89 AMENDED ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTION TO STAY DISCOVERY re 23 MOTION to Stay Discovery filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, L.D. Zamora, Raymond J. Coffin; 20 MOTION to Dismiss Plaintiff's First Amended Complaint filed by Jared Lozano, A. Adams, M. E. Spearman, L.D. Zamora, Raymond J. Coffin. Signed by Judge Jon S. Tigar on March 31, 2015. (wsn, COURT STAFF) (Filed on 3/31/2015) (Entered: 03/31/2015)
90 RESPONSE to re 86 Order; −Response to Court's Order Re Motion for Administrative Relief filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 3/31/2015) (Entered: 03/31/2015)
91 ORDER GRANTING MOTION FOR PERMISSION TO BRING CERTAIN ELECTRONIC EQUIPMENT AND MATERIALS INTO THE FEDERAL COURTHOUSE re 85 MOTION for Leave to Appear Motion for Administrative Relief for Oral Argument and to Bring Into the Federal Courthouse Certain Electronic Equipment and Materials filed by Michelle−Lael B. Norsworthy. Signed by Judge Jon S. Tigar on March 31, 2015. (wsn, COURT STAFF) (Filed on 3/31/2015) (Entered: 03/31/2015)
92 Minute Entry for proceedings held before Hon. Jon S. Tigar: Motion Hearing held on 4/1/2015 re 62 MOTION for Preliminary Injunction Plaintiff's Notice of Motion and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof filed by Michelle−Lael B. Norsworthy, 78 Motion to Strike Portions of Expert Declaration of Dr. Stephen Levine and Appendix A thereto filed by Michelle−Lael B. Norsworthy. Court Reporter: Kathy Sullivan. (wsn, COURT STAFF) (Date Filed: 4/1/2015) (Entered: 04/01/2015)
93 TRANSCRIPT ORDER by Michelle−Lael B. Norsworthy for Court Reporter Katherine Sullivan. (Lin, Megan) (Filed on 4/2/2015) (Entered: 04/02/2015)
94 ORDER Granting Motion for Preliminary Injunction, Granting Request for Judicial Notice, and Denying Motion to Strike Signed by Judge Jon S. Tigar; granting 62 Motion for a Preliminary Injunction; granting 77 Request for Judicial Notice; denying 80 Evidentiary Objection and Motion to Strike; Joint Case Management Statement due 5/6/2015 & Further Case Management Conference set for 5/13/2015 at 2:00 p.m.. (tnS) (Filed on 4/2/2015) (Entered: 04/02/2015)
95 TRANSCRIPT ORDER by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora for Court Reporter Katherine Sullivan. (Bajwa, Preeti) (Filed on 4/2/2015) (Entered: 04/02/2015)
Set Deadlines/Hearings: Case Management Statement due by 5/6/2015. Further Case Management Conference set for 5/13/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. (wsn, COURT STAFF) (Filed on 4/3/2015) (Entered: 04/03/2015)
96 Transcript of Proceedings held on 4/1/15, before Judge Jon S. Tigar. Court Reporter/Transcriber Katherine Sullivan, Telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 13 of 16

04/06/2015 04/10/2015 04/10/2015 04/10/2015 04/10/2015 04/10/2015 04/10/2015 04/10/2015
04/13/2015 04/13/2015

only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 93 Transcript Order ) Redaction Request due 4/27/2015. Redacted Transcript Deadline set for 5/7/2015. Release of Transcript Restriction set for 7/6/2015. (Related documents(s) 93 ) (Sullivan, Katherine) (Filed on 4/6/2015) (Entered: 04/06/2015)
97 Declaration of Herman J. Hoying Regarding Transcripts of Deposition Excerpts Played at Hearing on Plaintiff's Motion for Preliminary Injunction filed by Michelle−Lael B. Norsworthy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Hoying, Herman) (Filed on 4/6/2015) (Entered: 04/06/2015)
98 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. Appeal of Order on Motion for Preliminary Injunction 94 ; (Appeal Fee of $505.00, receipt number 0971−9434272 paid) (Zelidon−Zepeda, Jose) (Filed on 4/10/2015) (Entered: 04/10/2015)
99 MOTION to Stay re 94 Order on Motion for Preliminary Injunction, filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. Responses due by 4/24/2015. Replies due by 5/1/2015. (Zelidon−Zepeda, Jose) (Filed on 4/10/2015) (Entered: 04/10/2015)
100 [Proposed] Order Granting re 99 MOTION to Stay re 94 Order on Motion for Preliminary Injunction filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Zelidon−Zepeda, Jose) (Filed on 4/10/2015) (Entered: 04/10/2015)
101 ADMINISTRATIVE MOTION to Shorten Time under Local Rule 6−3 on re 99 Defendants' Motion for a Stay of the Order Granting a Preliminary Injuction filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Zelidon−Zepeda, Jose) (Filed on 4/10/2015) (Entered: 04/10/2015)
102 Declaration of Preeti K. Bajwa in Support of 101 ADMINISTRATIVE MOTION to Shorten Time under Local Rule 6−3 on re 99 Defendants' Motion for a Stay of the Order Granting a Preliminary Injuction filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Related document(s) 101 ) (Zelidon−Zepeda, Jose) (Filed on 4/10/2015) (Entered: 04/10/2015)
103 [Proposed] Order Granting re 101 ADMINISTRATIVE MOTION to Shorten Time under Local Rule 6−3 on re 99 Defendants' Motion for a Stay of the Order Granting a Preliminary Injuction filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Zelidon−Zepeda, Jose) (Filed on 4/10/2015) (Entered: 04/10/2015)
104 ORDER RE DEFENDANTS' MOTION FOR ORDER SHORTENING TIME Plaintiff is ordered to file a Response to the Defendants' Motion to Shorten Time, ECF No. 102, if she opposes that relief, by Monday, April 13, 2015. The response should address solely the question of an appropriate schedule for Defendants' stay motion, and not the propriety of a stay itself. (This is a text−only entry generated by the court. There is no document associated with this entry). (Entered by Judge Jon S. Tigar) (Filed on 4/10/2015) (Entered: 04/10/2015)
105 RESPONSE to (re 101 ADMINISTRATIVE MOTION to Shorten Time under Local Rule 6−3 on re 99 Defendants' Motion for a Stay of the Order Granting a Preliminary Injuction); Plaintiff's Response to Defendants' Motion for an Order Shortening Time on Their Motion for a Stay of the Order Granting a Preliminary Injunction filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 4/13/2015) (Entered: 04/13/2015)
106 TRANSCRIPT ORDER by Michelle−Lael B. Norsworthy for Court Reporter Kelly Polvi. (Lin, Megan) (Filed on 4/13/2015) (Entered: 04/13/2015)

Case: 3:14-cv-695 As of: 11/15/2018 01:19 PM PST 14 of 16

04/13/2015
04/14/2015 04/14/2015
04/15/2015 04/15/2015 04/15/2015 04/17/2015 04/21/2015
04/22/2015 04/27/2015

107 ORDER re 101 ADMINISTRATIVE MOTION to Shorten Time under Local Rule 6−3 on re 99 Defendants' Motion for a Stay of the Order Granting a Preliminary Injuction filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin, David Van Leer. Based upon the complexity of the issues raised in Defendants' motion to stay, ECF No. 99, the Court concludes that the Plaintiff's proposed schedule, ECF No. 105, is the more reasonable. Plaintiff's response to Defendants' motion to stay is due on April 22, 2015. At that time, the motion will be under submission. Signed by Judge Jon S. Tigar on April 13, 2015. This is a text−only order; there is no document associated with this entry. (jstlc3S, COURT STAFF) (Filed on 4/13/2015) (Entered: 04/13/2015)
108 MOTION for Extension of Time; −Plaintiff's Administrative Motion to Enlarge Time to File Motion for Costs and Attorney's Fees filed by Michelle−Lael B. Norsworthy. (Attachments: #(1) Declaration Declaration of Herman J. Hoying in Support of Plaintiff's Motion to Enlarge Time, #(2) [Proposed] Order) (Hoying, Herman) (Filed on 4/14/2015) (Entered: 04/14/2015)
109 ORDER RE PLAINTIFF'S REQUEST TO ENLARGE TIME TO FILE MOTION FOR ATTORNEY'S FEES AND COSTS The Court is in receipt of Plaintiff's Administrative Motion to Enlarge Time to File Motion for Costs and Attorney's Fees, ECF No. 108. So that the Court has the opportunity to rule on Plaintiff's administrative motion to enlarge time before the underlying motion for fees might otherwise be due, Defendants are ordered to file either an opposition or a statement of non−opposition to the motion by April 15, 2015 at 4:00 p.m. (This is a text−only entry generated by the court. There is no document associated with this entry) (Entered by Judge Jon S. Tigar) (Filed on 4/14/2015) (Entered: 04/14/2015)
110 Statement of Non−Opposition re 108 MOTION for Extension of Time to File Plaintiff's Administrative Motion to Enlarge Time to File Motion for Costs and Attorney's Fees filed byA. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Attachments: # 1 Certificate/Proof of Service)(Related document(s) 108 ) (Bajwa, Preeti) (Filed on 4/15/2015) (Entered: 04/15/2015)
111 Declaration of Preeti K. Bajwa in Support of 110 Statement of Non−Opposition, filed byA. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Attachments: # 1 Exhibit A)(Related document(s) 110 ) (Bajwa, Preeti) (Filed on 4/15/2015) (Entered: 04/15/2015)
112 ORDER GRANTING ADMINISTRATIVE MOTION TO ENLARGE TIME TO FILE MOTION FOR COSTS AND ATTORNEY'S FEES by Judge Jon S. Tigar; granting 108 Motion for Extension of Time to File. (wsn, COURT STAFF) (Filed on 4/15/2015) (Entered: 04/15/2015)
113 USCA Case Number 15−15712 for re 98 Notice of Appeal filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin & David Van Leer. (tnS) (Filed on 4/17/2015) (Entered: 04/17/2015)
114 Transcript of Proceedings held on 11/06/14, before Judge Jon S. Tigar. Court Reporter Kelly Polvi, Telephone number 503.779.7406; email kpolvi@comcast.net. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 106 Transcript Order ) Release of Transcript Restriction set for 7/20/2015. (Related documents(s) 106 ) (Polvi, Kelly) (Filed on 4/21/2015) (Entered: 04/21/2015)
115 RESPONSE to (re 99 MOTION to Stay re 94 Order on Motion for Preliminary Injunction); Plaintiff's Opposition to Defendants' Motion to Stay Order Granting Preliminary Injunction filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 4/22/2015) (Entered: 04/22/2015)
116 ORDER DENYING MOTION TO STAY ORDER GRANTING PRELIMINARY INJUNCTION by Judge Jon S. Tigar; denying 99 Motion to Stay. (wsn, COURT

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05/06/2015 05/08/2015
05/13/2015
05/14/2015 05/15/2015
05/15/2015 05/27/2015
05/28/2015 08/14/2015 08/21/2015 08/28/2015
10/07/2015 10/13/2015

STAFF) (Filed on 4/27/2015) (Entered: 04/27/2015)
117 JOINT CASE MANAGEMENT STATEMENT filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Bajwa, Preeti) (Filed on 5/6/2015) (Entered: 05/06/2015)
118 ORDER RE CASE MANAGEMENT CONFERENCE re 117 Joint Case Management Statement filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin, David Van Leer. Signed by Judge Jon S. Tigar on May 8, 2015. (wsn, COURT STAFF) (Filed on 5/8/2015) (Entered: 05/11/2015)
119 Minute Entry for proceedings held before Hon. Jon S. Tigar: Further Case Management Conference held on 5/13/2015. Case Management Statement due by 6/1/2015. Further Case Management Conference set for 6/3/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco.Court Reporter: Pam Batalo. (wsn, COURT STAFF) (Date Filed: 5/13/2015) (Entered: 05/14/2015)
120 STIPULATION WITH [PROPOSED] ORDER to File Document Under Seal filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Attachments: #(1) Certificate/Proof of Service) (Bajwa, Preeti) (Filed on 5/14/2015) (Entered: 05/14/2015)
121 STIPULATION AND ORDER re 120 STIPULATION WITH PROPOSED ORDER to File Document Under Seal filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, L.D. Zamora, Raymond J. Coffin, David Van Leer. Signed by Judge Jon S. Tigar on May 15, 2015. (wsn, COURT STAFF) (Filed on 5/15/2015) (Additional attachment(s) added on 5/19/2015: # 1 Sealed Exhibit) (tnS, ). (Entered: 05/15/2015)
122 STATUS REPORT − RECEIVER J. CLARK KELSO'S REPORT TO THE COURT REGARDING PLAINTIFF'S ANTICIPATED SURGERY filed by Clark Kelso. (Dodd, Martin) (Filed on 5/15/2015) (Entered: 05/15/2015)
123 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Further Case Management Conference previously set for 6/3/2015 is continued to 9/8/2015 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. A Joint Case Management Statement is due by 9/1/2015. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 5/27/2015) (Entered: 05/27/2015)
124 ORDER of USCA as to re 98 Notice of Appeal filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin & David Van Leer (tnS) (Filed on 5/28/2015) (Entered: 05/28/2015)
125 NOTICE of Change In Counsel by Shawn Thomas Meerkamper (Meerkamper, Shawn) (Filed on 8/14/2015) (Entered: 08/14/2015)
126 ORDER of USCA as to 98 Notice of Appeal filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin, David Van Leer. (tnS) (Filed on 8/21/2015) (Entered: 08/21/2015)
127 ORDER CONTINUING CASE MANAGEMENT CONFERENCE re 123 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 3/9/2016 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge Jon S. Tigar on August 28, 2015. (wsn, COURT STAFF) (Filed on 8/28/2015) (Entered: 08/28/2015)
128 USCA OPINION as to 98 Notice of Appeal filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin & David Van Leer. (tnS) (Filed on 10/7/2015) (Entered: 10/07/2015)
129 CASE MANAGEMENT STATEMENT; −Joint Case Management Statement Regarding Ninth Circuit Decision filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Russell, Jay) (Filed on 10/13/2015) (Entered: 10/13/2015)

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10/22/2015 10/30/2015 10/30/2015 11/03/2015
11/18/2015 12/02/2015 12/02/2015
12/09/2015 12/10/2015 02/23/2016 02/23/2016
02/23/2016 02/24/2016

130 NOTICE of Change of Address by Herman Joseph Hoying (Hoying, Herman) (Filed on 10/22/2015) (Entered: 10/22/2015)
131 MANDATE of USCA as to 98 Notice of Appeal filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, Jeffrey Beard, L.D. Zamora, Raymond J. Coffin, David Van Leer. (tnS) (Filed on 10/30/2015) (Entered: 10/30/2015)
132 CLERK'S Letter Spreading USCA Mandate to Counsel. (tnS) (Filed on 10/30/2015) (Entered: 10/30/2015)
133 ORDER ADVANCING CASE MANAGEMENT CONFERENCE re 127 ORDER CONTINUING CASE MANAGEMENT CONFERENCE; 129 Case Management Statement. Case Management Statement due by 11/18/2015. Further Case Management Conference set for 12/2/2015 at 9:30 AM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge Jon S. Tigar on November 3, 2015. (wsn, COURT STAFF) (Filed on 11/3/2015) (Entered: 11/03/2015)
134 JOINT CASE MANAGEMENT STATEMENT filed by Michelle−Lael B. Norsworthy. (Hoying, Herman) (Filed on 11/18/2015) (Entered: 11/18/2015)
135 Minute Entry for proceedings held before Hon. Jon S. Tigar: Further Case Management Conference held on 12/2/2015. Status Report due by 12/9/2015. Further Case Management Conference set for 12/10/2015 at 09:30 AM in Courtroom 9, 19th Floor, San Francisco. Court Reporter: Rhonda Aquilina. (wsn, COURT STAFF) (Date Filed: 12/2/2015) (Entered: 12/02/2015)
136 SCHEDULING ORDER. Discovery plan due by 12/9/2015. Further Case Management Conference set for 12/10/2015 at 9:30 AM in Courtroom 9, 19th Floor, San Francisco. Discovery cut off 7/1/2016. Opening brief due 7/22/2016. Responses due 8/12/2016. Replies due 8/26/2016. Motion Hearing set for 9/12/2016 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Signed by Judge Jon S. Tigar on December 2, 2015. (wsn, COURT STAFF) (Filed on 12/2/2015) (Entered: 12/02/2015)
137 JOINT CASE MANAGEMENT STATEMENT; −Joint Discovery Plan filed by A. Adams, Jeffrey Beard, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora. (Bajwa, Preeti) (Filed on 12/9/2015) (Entered: 12/09/2015)
138 CLERK'S NOTICE VACATING HEARING. The case management conference set for 12/10/2015 is vacated. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 12/10/2015) (Entered: 12/10/2015)
139 STIPULATION for Voluntary Dismissal with Prejudice (Fed.R.Civ.P.41(a)(1)(A)(ii) filed by A. Adams, Raymond J. Coffin, Jared Lozano, A. Newton, M. E. Spearman, David Van Leer, L.D. Zamora, Scott Kernan. (Attachments: # 1 Certificate/Proof of Service)(Bajwa, Preeti) (Filed on 2/23/2016) (Entered: 02/23/2016)
140 SCHEDULING ORDER A telephonic Case Management Conference is hereby scheduled for Tuesday, March 1, 2016 at 2:00 p.m. The parties shall provide to the Clerk one number at which all parties appearing by telephone can be reached. Please email the conference call number to: jstcrd@cand.uscourts.gov. Unless a contrary request is made by February 25, 2016, this conference will be unreported. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jstlc3, COURT STAFF) (Filed on 2/23/2016) (Entered: 02/23/2016)
Set Deadlines/Hearings: Telephonic Case Management Conference set for 3/1/2016 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. (wsn, COURT STAFF) (Filed on 2/23/2016) (Entered: 02/24/2016)
141 MINUTE ORDER NOTING DISMISSAL re 139 STIPULATION for Voluntary Dismissal with Prejudice, filed by Jared Lozano, A. Newton, A. Adams, M. E. Spearman, L.D. Zamora, Raymond J. Coffin, Scott Kernan, David Van Leer. Signed by Judge Jon S. Tigar on February 24, 2016. (wsn, COURT STAFF) (Filed on 2/24/2016) (Entered: 02/24/2016)