Rosati v. Igbinoso et al

Filing 15

DISMISSAL ORDER, signed by Chief Judge Ralph R. Beistline on 4/26/2013. CASE CLOSED.(Fahrney, E)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
PHILIP ROSATI,
Case No. 1:12-cv-01213-RRB
Plaintiff,
vs.
DISMISSAL ORDER
IGBINOSO, Chief Medical
Officer, California Department
of Corrections and
Rehabilitation; and SUSAN
HUBBARD, Secretary, California
Department of Corrections and
Rehabilitation,
Defendants.

Philip Rosati, a state prisoner appearing pro se and in forma
pauperis, filed a civil rights Complaint under 42 U.S.C. § 1983.1
Rosati is currently in the custody of the California Department of
Corrections and Rehabilitation, incarcerated at the R. J. Donovan
Prison, Facility 3, San Diego.
I.

SCREENING REQUIREMENTS
This

Court

is

required

to

screen

complaints

brought

by

prisoners seeking relief against a governmental entity or officer
or employee of a governmental entity.2 This Court must dismiss a
1

This case was incorrectly originally filed in the
Southern District of California, Case No. 3:12-cv-01769-JLS-WVG,
and transferred to this District on July 25, 2012.
2

28 U.S.C. § 1915A(a).

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complaint or portion thereof if the prisoner has raised claims that
are legally “frivolous or malicious,” that “fails to state a claim
on which relief may be granted,” or that “seeks monetary relief
against a defendant who is immune from such relief.”3 Likewise, a
prisoner

must

exhaust

all

administrative

remedies

as

may

be

available,4 irrespective of whether those administrative remedies
provide for monetary relief.5
In determining whether a complaint states a claim, the Court
looks

to

the

pleading

standard

under

Federal

Rule

of

Civil

Procedure 8(a). Under Rule 8(a), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”6 “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

accusation.”7 Failure to state a claim under § 1915A incorporates
the familiar standard applied in Federal Rule of Civil Procedure
12(b)(6), including the rule that complaints filed by pro se
3

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see
Lopez v. Smith, 203 F.3d 1122, 1126 & n.7 (9th Cir. 2000) (en
banc).
4

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81,
93–95 (2006) (“proper exhaustion” under § 1997e(a) is mandatory and
requires proper adherence to administrative procedural rules).
5

See Booth v. Churner, 532 U.S. 731, 734 (2001).

6

Fed. R. Civ. P. 8(a)(2).

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
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prisoners are to be liberally construed, affording the prisoner the
benefit of any doubt, and dismissal should be granted only where it
appears beyond doubt that the plaintiff can plead no facts in
support of his claim that would entitle him or her to relief.8
This

requires

the

presentation

of

factual

sufficient to state a plausible claim for relief.9

allegations

“[A] complaint

[that] pleads facts that are ‘merely consistent with’ a defendant’s
liability . . . ‘stops short of the line between possibility and
plausibility of entitlement to relief.’”10 Further, although a court
must

accept

as

true

all

factual

allegations

contained

in

a

complaint, a court need not accept a plaintiff’s legal conclusions
as true.11 “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”12
II.

GRAVAMEN OF THE COMPLAINT
Rosati alleges that he is a transsexual male suffering from

Gender Identity Disorder (“GID). Rosati further alleges that he

8

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

9

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting and applying
Iqbal and Twombly).
10

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

557).
11

Id.

12

Id. (quoting Twombly, 550 U.S. at 555).

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requested gender reassignment surgery,13 but was refused because
CDCR policy precludes evaluation of the extent of GID and, if
considered

medically

necessary,

gender

surgery.14

reassignment

According to Rosati his GID causes him to suffer serious adverse
psychological

distress.

Rosati

complains

that

the

refusal

to

complete his gender reassignment surgery constitutes deliberate
indifference

to

a

serious

medical

condition.

Rosati

seeks

a

psychiatric examination by a GID expert to assist in determining
whether his GID condition is extreme and, if considered medically
necessary, sexual reassignment surgery.
III. DISCUSSION
In denying relief at the final level of administrative review
the Director held:
DIRECTOR'S LEVEL DECISION:
Appeal is denied.
ISSUES:
Your CDCR 602-HC indicated you were diagnosed with Gender
Identity Dysphoria (GID) and you were a transgender (male
to female) individual; you stated on July 19, 2010, you
submitted a CDC 7362, Health Care Services Request Form,
requesting to see your primary care provider (PCP) to
request sex reassignment surgery (SRS) or surgery to
remove your penis and reposition your urethra so you
could sit to urinate without making a mess; you indicated
your request was ignored; as of July 29, 2010, you had
not seen a nurse or a PCP; you also reported a history of

13

Consisting of surgical removal of the male genitalia and
surgical reconstruction with female genitalia.
14

Prior to being imprisoned Rosati partially emasculated
himself by surgically removing his testicles.
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prior self-mutilation attempts and you felt having male
genitalia while having other physical characteristics of
a woman, had led to significant psychological distress;
you believed SRS, along with hormonal treatment, and
living as a female was the only appropriate measures for
GID; and you claimed you were being denied key aspects of
therapy for you condition; and you believed CDCR policy
was discriminatory against transgender individuals.
You requested the following:
•
An immediate appointment with a PCP and
documentation of your request for SRS.
•
A consultation with a surgeon regarding SRS.
•
The Medical Authorization Review Committee
(MARC) evaluates your request and you receive
an answer on this matter.
PRIOR APPEAL HISTORY:
Informal Level:
The informal level was bypassed and the appeal was
elevated from the informal level to the first level of
review.
First Level:
At the first level, submitted on July 29, 2010, you
stated your issues and requests as noted above.
The First Level Response (FLR) stated your appeal was
denied and indicated:
•
Your request was considered cosmetic and not
medically necessary; therefore, your request
for a consultation and SRS was denied.
Second Level:
At the second level, submitted on October 31, 2010, you
disagreed with the FLR; you claimed SRS was not cosmetic;
and you believed treatment, including SRS was medically
necessary for your condition.
The Second Level Response (SLR) stated your appeal was
partially granted and indicated:
•
You received an appointment with your PCP
regarding your request for SRS.
•
Your PCP evaluated you and thoroughly reviewed
your UHR and indicated SRS or a consultation
with a provider who performed this surgery was
not medically indicated, as this was a
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•
•
•

cosmetic procedure which could not be carried
out while in prison per the California Code of
Regulations, Title 15.
Review by MARC was not medically necessary.
The Chief Medical Officer agreed with the
PCP's decision.
Your appeal was accepted and filed.

BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review (DLR), submitted on
January 4, 2011, you stated you clearly cited (in all
your writings) SRS was not elective nor cosmetic, but
rather medically necessary, and the only recognized
treatment for patients with extreme GID; and you believed
denying you this treatment was deliberate indifference
towards your medical needs.
A review of the appeal file was performed and revealed
the following:
•
Your recent and current treatment for GID
included mental health follow-up, Delestrogen
(estradiol
valerate)
injections
and
Spironolactone (Aldactone), an anti-androgen
medication.
•
None of your providers involved in your
management documented you as having a profound
or severe case of GID, and/or required
consideration for SRS to appropriately manage
your condition.
•
Documentation indicated your status was stable
and you were exhibiting symptom control.
•
A consultation with the endocrinologist for
GID management was approved in December 2010;
the appointment was pending.
The Department shall provide only medical services for
patient-inmates that are based on medical necessity and
supported by outcome data as effective medical care. In
the absence of available outcome data for a specific
case, treatment will be based on the judgment of the
physician that the treatment is considered effective for
the purpose and is supported by diagnostic information.
Inmates may not demand particular medication, diagnostic
evaluation, or course of treatment. The California Code
of Regulations (CCR), Title 15, Section 3354, Health Care
Responsibilities and limitations, (a) Authorized Staff,
states, "Only facility-employed health care staff,
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contractors paid to perform health services for the
facility, or persons employed as health care consultants
shall be permitted within the scope of their licensure,
to diagnose illness or, prescribe medication and health
care treatment for inmates. No other personnel or inmate
may do so."
You are considered an active partner and participant in
the health care delivery system. You are encouraged to
cooperate with your clinicians in order to receive the
proper care and management of your condition. You will
continue to be evaluated and treatment will be provided
based on your clinician's evaluation, diagnosis, and
recommended
treatment
plan,
in
accordance
with
appropriate policies and procedures.
You may request the services of an outside consultant by
following the directions in the California Code of
Regulations, Title 15, Section 3354 (c). However, be
advised
all
costs
associated
with
an
outside
consultation, including evaluations, tests, custodial
supervision, transportation, etc., are the responsibility
of the person requesting the outside evaluation.
After review, there is no compelling evidence that
warrants intervention at the Director's Level of Review
as your medical condition has been evaluated by licensed
clinical staff and you have received and/or are receiving
adequate medical care.
RULES AND REGULATIONS:
The rules governing these issues are: California Code of
Regulations, Title 15; Inmate Medical Services Program
Policies and Procedures (2006); Mental Health Services
Delivery System (MHSDS); and the Department Operations
Manual.
ORDER:
No changes or
institution.

modifications

are

required

by

the

This decision exhausts your available administrative
remedy within the CDCR.15
15

Docket 1 at 56–58. The Decision was signed by L. Zamora,
Chief, California Prison Health Care Services, on behalf of the
Director, CDCR.
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It is unquestionably the law that the deliberate indifference
to the serious medical needs of a prisoner violates the Eighth
Amendment.16 To make a claim, Rosati must show that Defendants
exhibited “deliberate indifference to serious medical needs.”17
Where a plaintiff has failed to allege a physical injury, he may
not bring an action for mental or emotional injury.18 While the
physical injury need not be significant, it must be more than de
minimis.19
In

Estelle

indifference

to

the

Supreme

serious

Court

medical

distinguished

needs

of

“deliberate

prisoners,”

from

“negligen[ce] in diagnosing or treating a medical condition,”
holding that only the former violates the Constitution.20 In short,
Eighth Amendment liability requires “more than ordinary lack of due
care for the prisoner's interests or safety.”21 In determining
deliberate indifference, the court scrutinizes the particular facts
and looks for substantial indifference in the individual case,
indicating more than mere negligence or isolated occurrences of

16

Estelle v. Gamble 429 U.S. 97, 104–105 (1976); Whitley v.
Albers, 475 U.S. 312, 319 (1986).
17

Estelle, 429 U.S. at 105.

18

42 U.S.C. § 1997e(e).

19

See Oliver v. Keller, 289 F.3d 623, 626–27 (9th Cir.

2002).
20

Estelle, 429 U.S. at 106.

21

Whitley, 475 U.S. at 319.

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neglect.22 The Ninth Circuit has spoken to the subject of the
appropriate test under Estelle:
In the Ninth Circuit, the test for deliberate
indifference consists of two parts. First, the plaintiff
must show a serious medical need by demonstrating that
failure to treat a prisoner's condition could result in
further significant injury or the unnecessary and wanton
infliction of pain. Second, the plaintiff must show the
defendant's response to the need was deliberately
indifferent. This second prong—defendant's response to
the need was deliberately indifferent—is satisfied by
showing (a) a purposeful act or failure to respond to a
prisoner's pain or possible medical need and (b) harm
caused by the indifference. Indifference may appear when
prison officials deny, delay or intentionally interfere
with medical treatment, or it may be shown by the way in
which prison physicians provide medical care. Yet, an
inadvertent [or negligent] failure to provide adequate
medical care alone does not state a claim under § 1983.
A prisoner need not show his harm was substantial;
however, such would provide additional support for the
inmate’s claim that the defendant was deliberately
indifferent to his needs. If the harm is an isolated
exception to the defendant’s overall treatment of the
prisoner [it] ordinarily militates against a finding of
deliberate indifference.23
In this case, neither Defendant has deliberately ignored or
failed to respond to Rosati’s medical needs.

At most, Rosati’s

Complaint establishes a disagreement with the prescribed course of
treatment, which is “insufficient as a matter of law, to establish
deliberate indifference.”24 “To prevail on a claim involving choices
22

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

23

Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006)
(internal quotation marks and citations omitted).
24

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996);
see Franklin v. State of Or., State Welfare Div., 662 F.2d 1337,
1344 (9th Cir. 1981) (noting that a disagreement between a prisoner
and a medical professional over the most appropriate course of
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between alternative course of treatment, a prisoner must show that
the chosen course of treatment ‘was medically unacceptable under
the circumstances,’ and was chosen ‘in conscious disregard of an
excessive risk to [the prisoner’s] health.’”25

Rosati’s claim does

not meet this standard.
IV.

CONCLUSION/ORDER
Because

it

does

not

appear

that

Rosati

can

plead

facts

sufficient to state a colorable claim of deliberate indifference,
the complaint is properly dismissed without leave to amend. To the
extent that the Complaint may raise state-law claims, this Court
declines to exercise its supplemental jurisdiction over them.26
Accordingly, it is therefore ORDERED that the Complaint on
file herein is DISMISSED without prejudice and the Clerk of the
Court is directed to enter judgment dismissing the Complaint.
IT IS SO ORDERED this 26th day of April, 2013.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

treatment cannot
difference).

give

rise

to

a

viable

claim

of

deliberate

25

Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)
(quoting Jackson v. McIntosh).
26

“The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if— . . . (3) the
district court has dismissed all claims over which it has original
jurisdiction . . . .” 28 U.S.C. § 1367(c).
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