PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPHELIA AZRIEL DE’LONTA, 

Plaintiff-Appellant,

v.

GENE JOHNSON, Director of VDOC;

FRED SCHILLING, Director of Health

Services for VDOC; MEREDITH R.

CAREY, Chief Psychiatrist for

VDOC; GARY L. BASS, Chief of

Operations, VDOC; W. P. ROGERS,

Assistant Deputy Director of

Operations, VDOC; GERALD K.

WASHINGTON, Regional Director,  No. 11-7482

Central Regional Office for the

VDOC; EDDIE PEARSON, Warden of

Powhatan Correctional Center,

VDOC; ANTHONY SCOTT, Chief of

Security at Powhatan Correctional

Center; ROBERT L. HULBERT, PhD.,

Mental Health Director for the

VDOC; LARRY EDMONDS, Warden,

Buckingham Correctional Center,

VDOC; MAJOR C. DAVIS, Chief of

Security of Buckingham

Correctional Center; 
LISA LANG, Staff Psychologist; 

TONEY, Counselor at Buckingham

Correctional Center; LOU DIXON,

Registered Nurse Manager,

Buckingham Correctional Center,

Defendants-Appellees. 

DC TRANS COALITION; AMERICAN

CIVIL LIBERTIES UNION; AMERICAN

CIVIL LIBERTIES UNION OF VIRGINIA,

INCORPORATED,

Amici Supporting Appellant. 

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, Senior District Judge.

(7:11-cv-00257-JCT-RSB)

Argued: October 24, 2012

Decided: January 28, 2013

Before MOTZ, KING, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion. Judge Diaz

wrote the opinion, in which Judge Motz and Judge King

joined.

2 DE’LONTA v. JOHNSON
COUNSEL

ARGUED: Bernadette Francoise Armand, VICTOR M.

GLASBERG & ASSOCIATES, Alexandria, Virginia, for

Appellant. Earle Duncan Getchell, Jr., OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,

Virginia, for Appellant. Kenneth T. Cuccinelli, II, Attorney

General of Virginia, Michael H. Brady, Assistant Attorney

General, Charles E. James, Jr., Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Appellees. Jeffrey Light, LAW

OFFICE OF JEFFREY LIGHT, Washington, D.C., for DC

Trans Coalition, Amicus Supporting Appellant. Joshua Block,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

New York, New York; Rebecca K. Glenberg, AMERICAN

CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,

INC., Richmond, Virginia, for American Civil Liberties

Union Inc., and American Civil Liberties Union of Virginia,

Inc., Amici Supporting Appellant. 

OPINION

DIAZ, Circuit Judge:

Virginia inmate Ophelia Azriel De’lonta (born Michael A.

Stokes) filed suit under 42 U.S.C. § 1983 claiming that prison

officials denied her adequate medical treatment in violation of

the Eighth Amendment. The district court dismissed the complaint for failure to state a claim. Because we conclude that

De’lonta’s complaint states a claim for relief that is plausible

on its face, we reverse and remand for further proceedings.

I.

On appeal from a dismissal for failure to state a claim upon

which relief can be granted, we accept as true all the factual

DE’LONTA v. JOHNSON 3
allegations contained in the complaint and construe them in

the light most favorable to the plaintiff. Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir. 1997). 

A.

De’lonta has been in the custody of the Virginia Department of Corrections ("VDOC") since 1983, serving a 73-year

sentence for bank robbery. She is a pre-operative transsexual

suffering from a diagnosed and severe form of a rare, medically recognized illness known as gender identity disorder

("GID"). GID is characterized by a feeling of being trapped

in a body of the wrong gender. This belief has caused

De’lonta to suffer "constant mental anguish" and, on several

occasions, has caused her to attempt to castrate herself in

efforts to "perform[ ] [her] own makeshift sex reassignment

surgery." App. 14, 46, 48. De’lonta has described these ongoing urges to perform self-surgery as "overwhelming." App.

31. 

In 1999, De’lonta filed a § 1983 lawsuit alleging that

VDOC had instituted a policy that wrongfully prevented her

from receiving GID treatment in violation of the Eighth

Amendment. As in the instant case, the district court dismissed De’lonta’s 1999 complaint for failure to state a claim.

We reversed and remanded, holding that De’lonta’s need for

protection against continued self-mutilation constituted an

objectively serious medical need under the Eighth Amendment and that De’lonta had sufficiently alleged VDOC’s

deliberate indifference to that need. De’lonta v. Angelone

("De’lonta I"), 330 F.3d 630, 634 (4th Cir. 2003). The parties

subsequently reached a settlement in which VDOC acknowledged De’lonta’s serious medical need and agreed to provide

continuing treatment. 

Since that settlement, VDOC, in consultation with an outside Gender Identity Specialist, has provided De’lonta with

GID treatment consisting of regular psychological counseling

4 DE’LONTA v. JOHNSON
and hormone therapy. De’lonta has also been allowed to dress

and live as a woman to the full extent permitted by VDOC.

Despite these treatments, which have continued since 2004,

De’lonta’s symptoms have persisted. In a series of formal

grievances and letters, De’lonta notified prison officials of her

"extreme distress" with her treatment team. She complained

that although her treatment program had produced "growth

and stability[,]" she was still feeling strong, "imminent" urges

to self-castrate. In July 2010, De’lonta was hospitalized following a self-castration attempt.

In a September 2010 letter, De’lonta asserted that her urges

to self-castrate are particularly overwhelming immediately

following her therapy sessions with VDOC Psychologist Lisa

Lang. J.A. 31. De’lonta asked to stop seeing Lang, and repeatedly requested sex reassignment surgery pursuant to the GID

treatment guidelines established by the "Benjamin Standards

of Care" ("Standards of Care"). 

The Standards of Care, published by the World Professional Association for Transgender Health,1

 are the generally

accepted protocols for the treatment of GID. They establish a

"triadic treatment sequence" comprised of (1) hormone therapy; (2) a real-life experience of living as a member of the

opposite sex; and (3) sex reassignment surgery. App. 15. The

Standards of Care explain that although the first two treatment

options provide sufficient relief for some patients, others with

more severe GID may require sex reassignment surgery. Pursuant to the Standards of Care, after at least one year of hormone therapy and living in the patient’s identified gender

role, sex reassignment surgery may be necessary for some

individuals for whom serious symptoms persist. App. 16. In

these cases, the surgery is not considered experimental or cos1Formerly known as the Harry Benjamin International Gender Dysphoria Association, which is the name to which De’lonta referred in her complaint. 

DE’LONTA v. JOHNSON 5
metic; it is an accepted, effective, medically indicated treatment for GID. 

Responding to De’lonta’s letters and grievances, VDOC’s

Chief Psychiatrist, Dr. Meredith Cary, replied that "in regards

to gender reassignment surgery, I would request that you continue to work with Ms. Lang in individual therapy at this

time." App. 37. Although VDOC consults with an outside

Gender Identity Specialist regarding De’lonta’s care, she has

never been evaluated by a GID specialist concerning her need

for sex reassignment surgery.

B.

In 2011, De’lonta filed suit against Gene Johnson, the former director of VDOC, as well as numerous VDOC administrators and members of her care team (collectively,

"Appellees"). De’lonta’s complaint alleges that, in light of

their knowledge of her ongoing risk of self-mutilation, Appellees’ continued denial of consideration for sex reassignment

surgery constitutes deliberate indifference to her serious medical need in violation of the Eighth Amendment. On screening

pursuant to 28 U.S.C. § 1915A(b)(1), the district court dismissed the complaint without prejudice for failure to state a

claim upon which relief could be granted.2 De’lonta v. Johnson ("De’lonta II"), No. 7:11-CV-00257, 2011 WL 5157262

(W.D. Va. Oct. 28, 2011). 

The district court held that De’lonta failed to allege deliberate indifference on the part of Appellees sufficient to state an

Eighth Amendment claim. The court explained that

2Although a dismissal without prejudice is not normally appealable,

because the grounds provided by the district court for dismissal "clearly

indicate that no amendment in the complaint could cure the defects in the

plaintiff’s case," we conclude that the order dismissing De’lonta’s complaint is an appealable final order. Domino Sugar Corp. v. Sugar Workers

Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993) (alteration &

internal quotation omitted). 

6 DE’LONTA v. JOHNSON
De’lonta’s own allegations contradict the conclusion that

Appellees are "persistently denying her treatment," since

De’lonta acknowledges that VDOC has provided mental

health consultations, hormone therapy, and cross-dressing

allowances in accordance with the Standards of Care.

De’lonta II, 2011 WL 5157262, at *5. "The only treatment

described by the Standards of Care that she has not yet

received," the court observed, "is the sex reassignment surgery." Id. But because De’lonta has not been approved for

that surgery, the district court determined that she is "not entitled to" it. Id. In the view of the district court, Appellees are

permissibly denying De’lonta "only her preferred therapy of

surgery." Id. at *5-6. Since De’lonta has not presented "a situation where there is a total failure to give medical attention or

a policy prohibiting her treatment for GID," the court held

that "her current dissatisfaction with the progress or choice of

treatment" is insufficient to support an Eighth Amendment

claim. Id. at *6. 

De’lonta appeals, arguing that the district court erred in dismissing her Eighth Amendment claim.3

II.

The sole issue before us is whether De’lonta’s complaint

states a plausible Eighth Amendment claim. We review de

novo a district court’s dismissal under 28 U.S.C. § 1915A for

failure to state a claim, applying the same standards as those

for reviewing a dismissal under Fed. R. Civ. P. 12(b)(6).

Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243, 248 (4th Cir.

2005); cf. De’lonta I, 330 F.3d at 633. To survive a motion

to dismiss under that rule, a complaint must contain "suffi3The district court also dismissed without prejudice an Equal Protection

claim and a separate Eighth Amendment claim asserting that Nurse Lou

Dixon improperly denied De’lonta’s hormone treatment on one occasion.

Because De’lonta does not press these claims on appeal, we do not address

them here. 

DE’LONTA v. JOHNSON 7
cient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’" Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). In assessing the complaint’s plausibility, we

accept as true all the factual allegations contained therein.

Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.

2010), aff’d sub nom. Coleman v. Court of Appeals of Md.,

132 S. Ct. 1327 (2012). Additionally, we afford liberal construction to the allegations in pro se complaints raising civil

rights issues. Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722

(4th Cir. 2010).

A.

De’lonta contends she has stated a valid constitutional

claim because the Appellees’ "denial of consideration for sex

reassignment surgery, when viewed against the backdrop of

her medical history and circumstances, constitutes a deliberate

indifference to her serious medical needs in violation of the

Eighth Amendment." Appellant’s Br. at 13. 

Appellees counter that De’lonta’s complaint fails to satisfy

Twombly’s plausibility requirement. While conceding that

De’lonta’s need for protection from self-mutilation is a serious medical need, Appellees assert that because De’lonta has

never been prescribed sex reassignment surgery, she cannot

allege that sex reassignment surgery is a serious medical need

for the purposes of the Eighth Amendment. Because De’lonta

has no constitutional right to her preferred form of treatment,

Appellees suggest that their refusal to provide her sex reassignment surgery is a matter of discretion that carries no constitutional implications.

Next, Appellees charge that "[b]y alleging that defendants

have actively participated in providing treatment directed to

[De’lonta’s] urges to self-mutilate, [De’lonta] has necessarily

failed to state a plausible claim that defendants were deliberately indifferent to that risk." Appellees’ Br. at 18. In other

8 DE’LONTA v. JOHNSON
words, Appellees contend that because they have provided

some treatment recognized as effective under the Standards of

Care, their conduct cannot be said to rise to the level of deliberate indifference.

Finally, Appellees argue that since De’lonta’s GID treatment is governed by the settlement agreement that arose from

her 1999 lawsuit, she "cannot establish that [Appellees’] acts

or omissions with regard to that treatment rise to the level of

a constitutional violation." Id. at 21. 

B.

As we explained in De’lonta I, "[i]n order to establish that

she has been subjected to cruel and unusual punishment, a

prisoner must prove (1) that the deprivation of [a] basic

human need was objectively sufficiently serious, and (2) that

subjectively the officials act[ed] with a sufficiently culpable

state of mind." 330 F.3d at 634 (internal quotations omitted)

(alterations in original). Only an extreme deprivation, that is,

a "serious or significant physical or emotional injury resulting

from the challenged conditions," or substantial risk thereof,

will satisfy the objective component of an Eighth Amendment

claim challenging the conditions of confinement. Id. The subjective component of such a claim is satisfied by a showing

of deliberate indifference by prison officials. This "entails

something more than mere negligence" but does not require

actual purposive intent. Id. "It requires that a prison official

actually know of and disregard an objectively serious condition, medical need, or risk of harm." Id. (quoting Farmer v.

Brennan, 511 U.S. 825, 837 (1994)).

C.

Applying this two-prong Eighth Amendment standard, we

first resolve that De’lonta has alleged an objectively serious

medical need for protection against continued self-mutilation.

Indeed, we previously held as much in De’lonta I. Id. at 634

DE’LONTA v. JOHNSON 9
("[P]rison officials have a duty to protect prisoners from selfdestruction or self-injury." (quoting Lee v. Downs, 641 F.2d

1117, 1121 (4th Cir. 1981)). In any case, Appellees concede

this point. Appellees’ Br. at 15. 

Next, we conclude that De’lonta’s complaint sufficiently

alleges Appellees’ deliberate indifference to her serious medical need, and consequently, that the district court’s dismissal

was in error. 

There is no dispute that Appellees have, at all relevant

times, been aware of De’lonta’s GID and its debilitating

effects on her. Indeed, since the settlement of De’lonta’s earlier lawsuit, Appellees have provided De’lonta with hormone

treatment, mental health consultations, and have allowed her

to live and dress as a woman. It is also true, as Appellees and

the district court note, that these treatment options do accord

with the first two stages of the triadic protocol established by

the Standards of Care. However, the Standards of Care also

indicate that sex reassignment surgery may be necessary for

individuals who continue to present with severe GID after one

year of hormone therapy and dressing as a woman. App. 16-

17.

De’lonta alleges that, despite her repeated complaints to

Appellees alerting them to the persistence of her symptoms

and the inefficacy of her existing treatment, she has never

been evaluated concerning her suitability for surgery. Instead,

despite their knowledge that De’lonta’s therapy sessions with

Psychologist Lang actually provoked her "overwhelming"

urges to self-castrate, VDOC’s medical staff’s only response

to De’lonta’s requests for surgery was a "request that you

continue to work with Ms. Lang in individual therapy at this

time." These factual allegations, taken as true, state a plausible claim that Appellees "actually kn[e]w of and disregard-

[ed]" De’lonta’s serious medical need in contravention of the

Eighth Amendment. De’lonta I, 330 F.3d at 634 (quoting Farmer, 511 U.S. at 837).

10 DE’LONTA v. JOHNSON
We reject Appellees’ conclusion—one shared by the district court—that "[b]y alleging that [Appellees] have actively

participated in providing treatment directed to [De’lonta’s]

urges to self-mutilate, [De’lonta] has necessarily failed to

state a plausible claim that [Appellees] were deliberately

indifferent to that risk." Appellees’ Br. at 18; see De’lonta II,

2011 WL 5157262, at *5. We do, of course, acknowledge that

Appellees have provided De’lonta with some measure of

treatment to alleviate her GID symptoms. But just because

Appellees have provided De’lonta with some treatment consistent with the GID Standards of Care, it does not follow that

they have necessarily provided her with constitutionally adequate treatment. See De’lonta I, 330 F.3d at 635-36; Langford

v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) ("[A] total deprivation of care is not a necessary condition for finding a constitutional violation: Grossly incompetent or inadequate care

can [also] constitute deliberate indifference . . . ." (internal

quotation omitted) (second alteration in original)). 

By analogy, imagine that prison officials prescribe a

painkiller to an inmate who has suffered a serious injury from

a fall, but that the inmate’s symptoms, despite the medication,

persist to the point that he now, by all objective measure,

requires evaluation for surgery. Would prison officials then be

free to deny him consideration for surgery, immunized from

constitutional suit by the fact they were giving him a painkiller? We think not. Accordingly, although Appellees and the

district court are correct that a prisoner does not enjoy a constitutional right to the treatment of his or her choice,4

 the treat4We have explained that in this context the "essential test is one of medical necessity and not simply that which may be considered desirable,"

Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977). In this vein, Appellees and the district court take pains to point out that, absent a doctor’s

recommendation, De’lonta cannot show a demonstrable need for sex reassignment surgery. However, we struggle to discern how De’lonta could

have possibly satisfied that condition when, as she alleges, Appellees have

never allowed her to be evaluated by a GID specialist in the first place.

DE’LONTA v. JOHNSON 11
ment a prison facility does provide must nevertheless be

adequate to address the prisoner’s serious medical need. 

Likewise, we find no merit to Appellees’ argument that

De’lonta’s previous settlement with VDOC "logically operates to refute subsequent Eighth Amendment claims because

the settlement repels any plausible claim of willful indifference to the condition." Appellees’ Br. at 22. The mere fact

that VDOC has previously acknowledged De’lonta’s condition and agreed to provide treatment in no way forecloses the

possibility that its performance under that agreement later

became constitutionally deficient. See Cooper v. Dyke, 814

F.2d 941, 945 (4th Cir. 1987) (stating that "government officials who ignore indications that a prisoner’s or pretrial

detainee’s initial medical treatment was inadequate can be liable for deliberate indifference to medical needs."). 

We wish to be clear about our holding. We hold only that

De’lonta’s Eighth Amendment claim is sufficiently plausible

to survive screening pursuant to 28 U.S.C. § 1915A. We do

not decide today the merits of De’lonta’s claim. Nor, for that

matter, do we mean to suggest what remedy De’lonta would

be entitled to should she prevail. In our view, the answers to

those questions have no bearing on whether De’lonta has

stated a claim that Appellees have been deliberately indifferent to her serious medical need by refusing to evaluate her for

surgery, consistent with the Standards of Care. 

III.

For the reasons set forth above, we reverse the district

court’s dismissal of De’lonta’s Eighth Amendment claim and

remand the case for further proceedings. 

REVERSED AND REMANDED

12 DE’LONTA v. JOHNSON