PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPHELIA AZRIEL DE’LONTA, a/k/a M. 

Stokes,

Plaintiff-Appellant,

v.

RONALD J. ANGELONE; M. V. SMITH;

R. HULBERT, Dr.; COLIN C.J.  No. 01-8020

ANGLIKER, Dr.; DOCTOR WRAY,

Defendants-Appellees,

and

DONALD SWETTER, M.D.,

Defendant. 

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, Senior District Judge.

(CA-99-642-7)

Argued: April 3, 2003

Decided: May 27, 2003

Before WILKINS, Chief Judge, and MOTZ and

KING, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkins

wrote the opinion, in which Judge Motz and Judge King joined. 

COUNSEL

ARGUED: Kelly Marie Baldrate, VICTOR M. GLASBERG &

ASSOCIATES, Alexandria, Virginia, for Appellant. Peter Duane
Vieth, WOOTENHART, P.C., Roanoke, Virginia, for Appellees. ON

BRIEF: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia; Rebecca K. Glenberg, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for Appellant. George W. Wooten, WOOTENHART,

P.C., Roanoke, Virginia; William W. Muse, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees. 

OPINION

WILKINS, Chief Judge: 

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

appeals a district court order dismissing for failure to state a claim,

see 28 U.S.C.A. § 1915(e)(2)(B)(ii) (West Supp. 2002), her complaint

under 42 U.S.C.A. § 1983 (West Supp. 2002) claiming prison officials have denied her adequate medical treatment in violation of the

Eighth Amendment. Because we conclude that it does not appear

beyond doubt that De’lonta cannot prove facts to support her claim,

we reverse and remand for further proceedings. 

I.1

De’lonta suffers from gender identity disorder (GID) (also known

as gender dysphoria or transsexualism), a disorder characterized by a

feeling of being trapped in a body of the wrong gender. She2 has

undergone various procedures to make herself appear more feminine,

including dermabrasions and a chemical face peel. She has also

1Because the district court dismissed De’lonta’s complaint for failure

to state a claim, we accept all of the allegations in her complaint as true,

construing her pro se complaint liberally. See Estelle v. Gamble, 429

U.S. 97, 99, 106 (1976); DeWalt v. Carter, 224 F.3d 607, 611-12 (7th

Cir. 2000) (stating that same standards apply to dismissals under

§ 1915(e)(2)(B)(ii) as apply to dismissals under Fed. R. Civ. P. 12(b)(6)).

2We use feminine pronouns to refer to De’lonta, as did the district

court. 

2 DE’LONTA v. ANGELONE
received estrogen treatment to slow hair growth, soften her skin, and

develop breasts and other female characteristics.

De’lonta has been in the custody of the Virginia Department of

Corrections (VDOC) since 1983. Since the beginning of her imprisonment, VDOC doctors have consistently diagnosed her as suffering

from GID, and De’lonta received estrogen therapy for the disorder in

1993 while in Greensville Correctional Center. This treatment continued until 1995, when De’lonta was transferred to Mecklenburg Correctional Center and her hormone treatment was terminated pursuant

to a then-recently created VDOC policy ("the Policy"). The Policy is

outlined in a memo dated September 19, 1995, from VDOC Chief

Physician M. Vernon Smith:

It is the policy of the Department of Corrections[ ] that neither medical nor surgical interventions related to gender or

sex change will be provided to inmates in the management

of [GID] cases. 

If an inmate has come into prison and/or is currently receiving hormone treatment, he is to be informed of the department[’s] policy and the medication should be tapered

immediately and thence discontinued. 

Inmates presenting with [GID] should be referred to the

institution[’]s mental health staff for further evaluation. 

J.A. 28. 

In contravention of the directive that hormone treatment be tapered

off, De’lonta’s hormone treatment was terminated abruptly, causing

De’lonta to suffer nausea, uncontrollable itching, and depression. 

The most harmful effect of the cessation of the hormone treatment,

however, was that De’lonta developed an uncontrollable urge to mutilate her genitals. Although she had engaged in some self-mutilation

previously, it had consisted primarily of cutting her arms and hands.

Since termination of the hormone treatment, however, she has stabbed

or cut her genitals on more than 20 occasions. She has repeatedly

DE’LONTA v. ANGELONE 3
requested resumption of the hormone therapy and treatment by a gender specialist. To date, however, her requests have been denied, and

her self-mutilation has continued. 

In 1999, De’lonta filed suit against Dr. Smith, other Virginia prison

doctors, and VDOC Director Ron Angelone (collectively, "Appellees"), alleging that Appellees have inflicted cruel and unusual punishment on her, in violation of her Eighth Amendment rights, by

denying her adequate medical treatment for her GID. She sought an

injunction requiring Appellees to arrange for her to be treated by a

doctor with expertise in transsexualism and to allow her to resume her

hormone therapy until that treatment commenced. She also requested

declaratory and monetary relief, including punitive damages. 

Angelone responded by filing a summary judgment motion with an

attached affidavit. The other Appellees moved to dismiss for failure

to state a claim. The district court dismissed De’lonta’s claims against

all Appellees pursuant to 28 U.S.C.A. § 1915(e)(2)(B)(ii), concluding

that the record demonstrated beyond doubt that she could not plead

facts that would state a valid Eighth Amendment claim. Regarding

De’lonta’s entitlement to adequate treatment for her GID, the court

ruled that the record was clear that De’lonta was receiving some treatment. The court concluded that the gravamen of De’lonta’s claim was

simply a disagreement with the medical judgment concerning what

treatment was appropriate and that such a disagreement did not state

a claim under the Eighth Amendment. The court also concluded that

the failure of the VDOC to follow its tapering policy in 1995 did not

rise to the level of an Eighth Amendment violation. The court further

ruled that any claim for equitable relief from that conduct had become

moot, and any legal claim was time-barred. 

In addition, the court denied a motion by De’lonta to amend her

complaint, concluding that amendment would be futile. Finally,

although the court stated that it was "unable to conceive of any set of

facts under which the Eighth Amendment would entitle" De’lonta to

relief, the court dismissed her complaint without prejudice "[t]o avoid

complicating any future actions with issues of collateral estoppel or

claim preclusion."3 J.A. 183, 188. 

3Although a dismissal without prejudice is not normally appealable,

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

4 DE’LONTA v. ANGELONE
II.

De’lonta has not challenged the district court ruling that the abruptness of the termination of her hormone therapy did not violate the

Eighth Amendment. She does argue, however, that the district court

erred in dismissing her remaining claims. The standards for reviewing

a dismissal under § 1915(e)(2)(B)(ii) are the same as those for

reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6).

See DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). Thus, we

review a § 1915(e)(2)(B)(ii) dismissal de novo. See id. "A complaint

should not be dismissed for failure to state a claim upon which relief

may be granted unless after accepting all well-pleaded allegations in

the plaintiff’s complaint as true and drawing all reasonable factual

inferences from those facts in the plaintiff’s favor, it appears certain

that the plaintiff cannot prove any set of facts in support of his claim

entitling him to relief." Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.

2002) (internal quotation marks omitted). Additionally, the allegations in pro se complaints should be liberally construed.4

See Hughes

v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam). 

De’lonta’s claim arises under the Eighth Amendment. Scrutiny

under the Eighth Amendment is not limited to those punishments

authorized by statute and imposed by a criminal judgment. See Wilson

v. Seiter, 501 U.S. 294, 297 (1991). The Amendment also provides

protection with respect to "the treatment a prisoner receives in prison

and the conditions under which he is confined." Helling v. McKinney,

509 U.S. 25, 31 (1993). Those conditions include the adequacy of the

medical care that the prison provides. See Estelle v. Gamble, 429 U.S.

97, 103 (1976). 

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 marks omitted). 

4

In dismissing this action, the district court considered all documents

attached to De’lonta’s complaint and to her proposed amended complaint. Because the parties agree that such consideration was appropriate,

we have also used the materials to the extent that they clarify the allegations in the complaint. 

DE’LONTA v. ANGELONE 5
The showing necessary to demonstrate that particular conduct by

prison officials is sufficiently serious to constitute cruel and unusual

punishment "varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992). In 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.’" Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (second alteration in original) (quoting Wilson, 501 U.S. at 298). Only

extreme deprivations are adequate to satisfy the objective component

of an Eighth Amendment claim regarding conditions of confinement.

See Hudson, 503 U.S. at 8-9. In order to demonstrate such an extreme

deprivation, a prisoner must allege "a serious or significant physical

or emotional injury resulting from the challenged conditions," Strickler, 989 F.2d at 1381, or demonstrate a substantial risk of such serious

harm resulting from the prisoner’s exposure to the challenged conditions, see Helling, 509 U.S. at 33-35. The subjective component of an

Eighth Amendment claim challenging the conditions of confinement

is satisfied by a showing of deliberate indifference by prison officials.

See Farmer v. Brennan, 511 U.S. 825, 834 (1994). "[D]eliberate

indifference entails something more than mere negligence . . . [but]

is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. at

835. It requires that a prison official actually know of and disregard

an objectively serious condition, medical need, or risk of harm. See

id. at 837; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). 

Here, De’lonta contends that her complaint, when liberally construed, alleges facts sufficient to establish that the denial of treatment

for her compulsion to mutilate herself constitutes deliberate indifference to her medical needs. In particular, she claims she could prove

that (1) Appellees know that she suffers from GID; (2) she was

receiving treatment until 1995, when it was abruptly terminated for

no legitimate reason; (3) the termination of the therapy has resulted

in compulsive, repeated self-mutilation of her genitals; and (4) after

Appellees terminated the hormone treatment, they have refused to

provide any treatment to prevent her from mutilating herself, leaving

her at continued risk for serious, self-inflicted injuries. We agree with

De’lonta that such allegations adequately state a claim for relief and

6 DE’LONTA v. ANGELONE
that the record does not demonstrate beyond doubt that De’lonta

could not prove those allegations. 

First, De’lonta’s need for protection against continued selfmutilation constitutes a serious medical need to which prison officials

may not be deliberately indifferent. See Lee v. Downs, 641 F.2d 1117,

1121 (4th Cir. 1981) (explaining that "prison officials have a duty to

protect prisoners from self-destruction or self-injury"). And, nothing

in the record refutes the allegation that Appellees know that

De’lonta’s compulsive self-mutilation began after the discontinuation

of her hormone therapy. Nor does the limited record before us demonstrate any justification (although there may be one not yet disclosed)

for either the policy requiring termination of De’lonta’s hormone

treatment or the alleged denial of any other treatment to prevent her

continuing self-inflicted injuries. 

In dismissing De’lonta’s suit, the district court incorrectly determined, based on the limited record before it, that the suit was nothing

more than a challenge to the medical judgment of VDOC doctors.

This conclusion was based largely on a memorandum to Appellee

Smith, the VDOC Chief Physician, in which a Dr. Rob Marsh

reported that De’lonta had requested a referral to a gender specialist

at the Medical College of Virginia (MCV) for the purpose of discussing hormone replacement. The memo states that De’lonta "was

advised that [Dr. Marsh] did not feel it was a medical necessity or

indication," but that Dr. Marsh would forward the request to Dr.

Smith for further review. J.A. 87. Based on this memo, the district

court concluded that the prison medical staff "did not feel that hormone therapy or a special consultation were appropriate," id. at 185,

and therefore that the suit amounted to nothing more than a challenge

to this medical judgment. For this reason, the court concluded that

De’lonta’s remedy could lie only in a state medical malpractice action

and not in an Eighth Amendment claim. See Russell v. Sheffer, 528

F.2d 318, 319 (4th Cir. 1975) (per curiam) (holding that "[q]uestions

of medical judgment are not subject to judicial review" under § 1983).

We conclude that the district court was in error. Even assuming

that Dr. Marsh advised De’lonta as the memo states, nothing in the

record suggests that Dr. Marsh’s opinion was a basis for the denial of

De’lonta’s requested treatment. In fact, Dr. Smith’s response to the

DE’LONTA v. ANGELONE 7
memo, which states that there was no gender specialist at MCV and

that VDOC’s policy is not to provide hormone therapy to prisoners,

supports the inference that Appellees’ refusal to provide hormone

treatment to De’lonta was based solely on the Policy rather than on

a medical judgment concerning De’lonta’s specific circumstances. Cf.

Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (holding that

prisoner who had engaged in self-mutilation was not entitled to hormone treatment for gender dysphoria because denial of such treatment

was based on "an informed [medical] judgment"). 

Moreover, Dr. Marsh’s memo is at most only a comment on the

appropriateness of one possible treatment and does not refute

De’lonta’s claim that she has not received any treatment to suppress

her compulsion to mutilate herself. Cf. id. ("This case . . . does not

present a situation where there was a total failure to give medical

attention."); id. at 967 (Seymour, J., dissenting) (concluding that

deliberate indifference claim "was plainly not unfounded" when "record contain[ed] no proof that prison physicians ever addressed

whether [prisoner’s] self-mutilation might have been . . . in need of

treatment"). But cf. Maggert v. Hanks, 131 F.3d 670, 672 (7th Cir.

1997) (holding that prisoner was not constitutionally entitled to curative treatment for gender dysphoria, but not indicating that prisoner

was at risk for self-mutilation or other serious bodily harm). At oral

argument, Appellees argued that even if Dr. Marsh’s memo does not

show that De’lonta received treatment for her GID, De’lonta’s other

submissions demonstrate that she has been housed at a facility for

inmates who need special attention to mental health issues and that

De’lonta has received counseling and anti-depressants. Appellees

pointed specifically to a mental health evaluation stating that De’lonta

had "been receiving Prozac and . . . Doxepin which appear to assist

h[er] in h[er] mood symptoms" and that "[De’lonta states] that the

Prozac helps h[er] with h[er] urges to cut on h[er]self." J.A. 90. These

submissions, however, only indicate that some treatment De’lonta

received may have alleviated her compulsion to mutilate herself; they

do not clearly demonstrate that the treatment was provided for that

purpose or that it was deemed to be a reasonable method of preventing further mutilation. 

For all of these reasons, we conclude that it does not appear beyond

doubt at this early stage of the litigation that De’lonta cannot prove

8 DE’LONTA v. ANGELONE
facts sufficient to support her claim that she has not received constitutionally adequate treatment to protect her from her compulsion to

mutilate herself. We therefore reverse the district court order dismissing De’lonta’s suit and remand to the district court for further proceedings. In so doing, we make no comment on the merits of any

issues not yet addressed by the district court, and we specifically

make no comment on the type of treatment, if any, to which De’lonta

is entitled. 

III.

In sum, we reverse the dismissal of De’lonta’s § 1983 suit and

remand to the district court for further proceedings consistent with

this opinion.5

REVERSED AND REMANDED

5Appellees argue that Angelone should be dismissed from this suit

even if De’lonta has stated a valid Eighth Amendment claim against

other Appellees. Because the district court has yet to rule on this issue,

we decline to do so in this appeal. 

De’lonta’s motions to supplement the record are denied. 

DE’LONTA v. ANGELONE 9