FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP WALKER ROSATI,

Plaintiff-Appellant,

v.

IGBINOSO, Chief Medical Officer, 

Pleasant Valley State Prison; SUSAN 

L. HUBBARD, Director of California 

Department of Corrections,

Defendants-Appellees.

No. 13-15984

D.C. No.

1:12-cv-01213-

RRB

OPINION

Appeal from the United States District Court

for the Eastern District of California

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

June 8, 2015—San Francisco, California

Filed June 26, 2015

Before: Barry G. Silverman, Ronald M. Gould,

and Andrew D. Hurwitz, Circuit Judges.

Per Curiam Opinion
2 ROSATI V. IGBINOSO

SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s dismissal of a pro 

se complaint brought by a California state prisoner pursuant 

to 42 U.S.C. § 1983 alleging that prison officials were 

deliberately indifferent to the prisoner’s serious medical 

needs, in violation of the Eighth Amendment, when they 

refused to provide sexual reassignment surgery.

The panel held that the allegations in the complaint were 

sufficient to state a claim. The panel held that plaintiff 

plausibly alleged that her symptoms (including repeated 

efforts at self-castration) were so severe that prison officials 

recklessly disregarded an excessive risk to her health by 

denying sexual reassignment surgery solely on the 

recommendation of a physician’s assistant with no 

experience in transgender medicine. The panel expressed no 

opinion on whether sexual reassignment surgery was 

medically necessary for plaintiff or whether prison officials 

have other legitimate reasons for denying her that treatment. 

The panel further held that on remand, the district court 

should address the merits of plaintiff’s Equal Protection 

Claim in the first instance.

 * This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.

 
ROSATI V. IGBINOSO 3

COUNSEL

Jon W. Davidson, Peter C. Renn (argued), Lambda Legal 

Defense and Education Fund, Inc., Los Angeles, California; 

Alison Hardy, Prison Law Office, Berkeley, California, for 

Plaintiff-Appellant.

Kamala D. Harris, Attorney General, Jonathan L. Wolff, 

Senior Assistant Attorney General, Thomas S. Patterson, 

Supervising Deputy Attorney General, Jose A. ZelidonZepeda and Neah Huynh (argued), Deputy Attorneys 

General, San Francisco, California, for DefendantsAppellees.

Cori A. Lable, Daniel V. McCaughey, Michael T. Packard, 

and Kevin P. Budris, Ropes & Gray LLP, Boston, 

Massachusetts, for Amicus Curiae World Professional 

Association for Transgender Health.

OPINION

PER CURIAM:

Philip Walker Rosati (now known as Mia Rosati) is a 

transgender inmate in the California prison system.1

 Rosati 

filed a pro se 42 U.S.C. § 1983 complaint claiming that 

prison officials violated the Eighth Amendment through 

deliberate indifference to her serious medical needs. Rosati 

alleges that she suffers from severe gender dysphoria for 

 1 Like the parties, we refer to Rosati in the feminine.

 
4 ROSATI V. IGBINOSO

which sexual reassignment surgery (“SRS”) is the medically 

necessary treatment, but that prison officials refuse to 

provide the surgery. The district court dismissed the 

complaint at screening without leave to amend for failure to 

state a claim. Rosati, now represented by counsel, appeals. 

We have jurisdiction under 28 U.S.C. § 1291; we reverse the 

dismissal and remand for further proceedings.

In determining whether a complaint should be dismissed 

for failure to state a claim under the Prison Litigation Reform 

Act, 28 U.S.C. § 1915(e)(2)(B)(ii), we apply the familiar 

standard of Federal Rule of Civil Procedure 12(b)(6). See

Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 

“[A] complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on 

its face.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 

2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) 

(internal quotation marks omitted).

Deliberate indifference to the serious medical needs of 

an inmate is “cruel and unusual punishment” under the 

Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 

104–06 (1976). To demonstrate deliberate indifference, 

“plaintiffs must show that [prison officials] were 

(a) subjectively aware of the serious medical need and 

(b) failed to adequately respond.” Conn v. City of Reno, 591 

F.3d 1081, 1096 (9th Cir. 2010), vacated, 131 S. Ct. 1812 

(2011), reinstated in relevant part, 658 F.3d 897 (9th Cir. 

2011). An inmate challenging denial of treatment must 

allege that the denial “was medically unacceptable under the 

circumstances,” and made “in conscious disregard of an 

excessive risk to [the inmate]’s health.” Jackson v. 

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
ROSATI V. IGBINOSO 5

1. “A district court should not dismiss a pro se complaint 

without leave to amend unless ‘it is absolutely clear that the 

deficiencies of the complaint could not be cured by 

amendment.’” Akhtar, 698 F.3d at 1212 (quoting Schucker 

v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per 

curiam)). At oral argument, the state defendants conceded 

that the district judge erred by dismissing without leave to 

amend. This concession alone justifies reversal. But, even 

absent the concession, we conclude that the complaint, 

although not drafted with the skill and brevity expected of 

counsel, stated an Eighth Amendment claim upon which 

relief could be granted. See id. (noting that the court has “an 

obligation where the petitioner is pro se, particularly in civil 

rights cases, to construe the pleadings liberally and to afford 

the petitioner the benefit of any doubt” (internal quotation 

marks omitted)).

2. Rosati’s complaint plausibly alleges that she has 

severe gender dysphoria, citing repeated episodes of 

attempted self-castration despite continued hormone 

treatment.2

 Rosati also alleges that the medically accepted 

treatment for her dysphoria is SRS, supporting that 

allegation with copious citations to the World Professional 

Association for Transgender Health (“WPATH”) Standards 

of Care.3

 Rosati plausibly alleges that prison officials were 

 2 For purposes of this appeal, the state conceded that gender dysphoria 

is a serious medical condition.

 3 The state’s argument that the WPATH standards are not fully 

accepted by the medical community is unavailing because it relies on 

matters outside the complaint. “When reviewing a motion to dismiss, 

 
6 ROSATI V. IGBINOSO

aware of her medical history and need for treatment, but 

denied the surgery because of a blanket policy against SRS. 

Indeed, the state acknowledged at oral argument that no 

California prisoner has ever received SRS. See, e.g., Colwell 

v. Bannister, 763 F.3d 1060, 1063 (9th Cir. 2014) (holding 

that the “blanket, categorical denial of medically indicated 

surgery solely on the basis of an administrative policy that 

one eye is good enough for prison inmates is the paradigm 

of deliberate indifference” (internal quotation marks 

omitted)).

Even absent such a blanket policy, Rosati plausibly 

alleges her symptoms (including repeated efforts at selfcastration) are so severe that prison officials recklessly 

disregarded an excessive risk to her health by denying SRS 

solely on the recommendation of a physician’s assistant with 

no experience in transgender medicine. See Pyles v. Fahim, 

771 F.3d 403, 412 (7th Cir. 2014) (explaining that “if the 

need for specialized expertise . . . would have been obvious 

to a lay person, then the ‘obdurate refusal’ to engage 

specialists permits an inference that a medical provider was 

deliberately indifferent to the inmate’s condition”); 

Hoptowit v. Ray, 682 F.2d 1237, 1252–53 (9th Cir. 1982) 

(“Access to the medical staff has no meaning if the medical 

staff is not competent to deal with the prisoners’ 

problems.”), abrogated on other grounds by Sandin v. 

Conner, 515 U.S. 472 (1995).

Although Rosati lacks a medical opinion recommending 

SRS, she plausibly alleges that this is because the state has 

we consider only allegations contained in the pleadings, exhibits 

attached to the complaint, and matters properly subject to judicial 

notice.” Akhtar, 698 F.3d at 1212 (internal quotation marks omitted).

 
ROSATI V. IGBINOSO 7

failed to provide her access to a physician competent to 

evaluate her. See De’lonta v. Johnson, 708 F.3d 520, 526 

n.4 (4th Cir. 2013) (“Appellees . . . 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 

[gender dysphoria] specialist in the first place.”).

3. We express no opinion on whether SRS is medically 

necessary for Rosati or whether prison officials have other 

legitimate reasons for denying her that treatment. But, like 

other courts that have considered similar actions, we hold 

that the allegations in Rosati’s complaint are sufficient to 

state a claim. See, e.g., Kosilek v. Spencer, 774 F.3d 63, 91 

(1st Cir. 2014) (en banc); De’lonta, 708 F.3d at 525–27; 

Norsworthy v. Beard, 2015 WL 1478264, at *7–9 (N.D. Cal. 

Mar. 31, 2015); Soneeya v. Spencer, 851 F. Supp. 2d 228, 

245–52 (D. Mass. 2012); see also Fields v. Smith, 653 F.3d 

550, 554–59 (7th Cir. 2011) (affirming a district court’s 

determination that a statute barring hormone treatment and 

gender reassignment surgery for prisoners was 

unconstitutional).

4

REVERSED AND REMANDED.

 4 Rosati also asserted an Equal Protection claim, which the district 

court dismissed without explanation. That court should address the 

merits of this claim in the first instance on remand. See Akhtar, 698 F.3d 

at 1212–13 (“To comply with the law of this circuit, the district court 

was required to explain the deficiencies in Akhtar’s first amended 

complaint.”).