Norsworthy v. Beard et al

Filing 7

ORDER OF DISMISSAL WITHOUT PREJUDICE. Signed by Judge Jon S. Tigar on April 15, 2014. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 4/15/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEFFREY B. NORSWORTHY, aka,
MICHELLE-LAEL B. NORSWORTHY,

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Plaintiff,

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ORDER OF DISMISSAL WITHOUT
PREJUDICE

v.

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United States District Court
Northern District of California

Case No. 14-cv-00345-JST (PR)

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JEFFREY BEARD, et al.,

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Defendants.

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INTRODUCTION

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On January 23, 2014, plaintiff, a California prisoner then incarcerated at the Correctional

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Training Facility ("CTF") and proceeding pro se, filed the above-titled civil rights action under 42

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U.S.C. §1983.1 She2 seeks an injunction requiring the California Department of Corrections and

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Rehabilitation ("CDCR") to permit her a legal name change. Her complaint is now before the

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Court for review under 28 U.S.C. § 1915A.

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DISCUSSION
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Standard of Review
A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any

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Plaintiff currently is incarcerated at Mule Creek State Prison.

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.

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claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or

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seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696,

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699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the

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claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the

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statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although in

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order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's

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obligation to provide the grounds of his 'entitle[ment] to relief' requires more than labels and

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United States District Court
Northern District of California

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level." Bell

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Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint

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must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

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right secured by the Constitution or laws of the United States was violated; and (2) that the

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).

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2.

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Plaintiff's Allegations
The following allegations are taken from the complaint. Plaintiff began serving a life

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sentence within the CDCR in 1987. In 1999, plaintiff was referred to the Department of Mental

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Health within the California Medical Facility. In January 2000, Ph.D. C.R. Viesti, a specialist in

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gender/sexual dysphorias and disorders, concluded that plaintiff is a transsexual suffering from

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severe Gender Identity Disorder ("GID").

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Following the diagnosis, plaintiff started a feminizing endocrine therapy and

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psychotherapy. She has remained at pre-operation dosages and intensity over the last 14 years.

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She has also undergone castration and "has developed and evolved into an extremely feminized,

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female, and womanly person in form and stature." (Compl. at 8.3) According to "several doctors,"

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plaintiff "Presents-as-Female." (Id.)
Plaintiff has filed a separate action currently before this Court, seeking Sex Reassignment

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Surgery ("SRS"). (See Norsworthy v. Beard, Case No. C 14-00695 JST (PR). The Court recently

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appointed counsel in C 14-00695 JST (PR) and has issued a schedule for the filing of an amended

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complaint in that action.
In this action, plaintiff “is not seeking an order for SRS, but a legal name change prior to

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SRS.” (Compl. at 9.) Plaintiff asserts that, according to the guidelines set by the World

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Professional Association for Transgender Health, Inc. ("WPATH"), name changes "are a very

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necessary component of the pre-surgical process; delay of document/name changes can have a

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United States District Court
Northern District of California

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deleterious impact on a patient's mental health and social integration." (Id.)
Plaintiff asserts that, pursuant to CDCR policy, a prisoner "can only change their name

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with the consent of a Warden, Parole Officer or the Secretary of the CDCR." (Compl. at 6.) "The

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request should be denied when there is reason to believe the name change request is for

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criminal/nefarious motives to conceal connection to past criminal history." (Id. (citing Cal. Code

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Regs. tit. 15, § 3294.5)) Plaintiff asserts she is not seeking a name change for criminal reasons.

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"Plaintiff is seeking a name change based on a state documented medical condition that defines

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her as a woman/biological female." (Compl. at 7.)
Plaintiff states she requested a legal name change "using proper CDCR procedure, and

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quoting CDCR policy." (Compl. at 6.) She "was denied at each level of administrative review."

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(Id.) Plaintiff names as defendants CDCR Secretary Jeffrey Beard, CTF Warden M.E. Spearman,

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CDCR Appeals Examiner D. Van Leer, and CDCR Appeals Chief J.D. Lozano.

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Analysis
The allegations fail to state a claim under § 1983. There is no federal subject matter

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jurisdiction to entertain a petition for change of name. Said requests are generally made to the

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state courts, which have either statutory or common law jurisdiction to entertain such requests.

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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.
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See Cal. Civ. Proc. Code §§ 1275-1279.5. Even where a state confers a common law right to

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change one's name, prison officials may require an inmate to follow statutory procedure for

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changing one's name in order to have prison authorities recognize the new name and prevent

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"capricious, incessant, casual, sudden, harassing, on-the-spot name changes." Azeez v. Fairman,

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795 F.2d 1296, 1299 (7th Cir. 1986).

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Plaintiff's allegations that defendants are violating CDCR policy, and thereby preventing
her from petitioning for a legal name change in state court, do not alter the Court's analysis.

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Failing to follow internal procedures does not violate any constitutional right or other provision of

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federal law cited by plaintiff or known to the Court. California prison policy is not federal law

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and no federal constitutional right or other federal law cited by plaintiff or known to the Court

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United States District Court
Northern District of California

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requires prison officials to entertain petitions for a name change. If plaintiff believes that prison

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officials are not adhering to their own policies, her remedy is to seek enforcement of those policy

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in an administrative grievance; if these policies have the force of state law, then her remedy is in

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the state courts.

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Plaintiff's reliance on the First Amendment and Equal Protection Clause of the Fourteenth

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Amendment is unavailing. Because plaintiff is seeking a name change for personal rather than

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religious reasons, defendants' alleged actions do not implicate a First Amendment right. See

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Wolfe v. Beard, 2010 WL 5173199, 5 (E.D. Pa.) (E.D.Pa., 2010) (holding First Amendment not

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implicated where prison officials refused to recognize prisoner's new name, which was changed

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for personal reasons); Ali v. Stickman, 206 Fed. Appx. 184 (3rd Cir. 2006) (holding prisoner's

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desire to use legally changed name did not implicate First Amendment where not adopted or used

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for religious purposes); Spies v. Voinovich, 173 F.3d 398, 406 (6th Cir. 1999) (finding no First

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Amendment right to have prison records reflect legally changed name).

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Plaintiff also asserts an Equal Protection violation as follows: "The 14th Amendment,

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promises equality and equal protection for all U.S. citizens, including the incarcerated." (Compl.

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at. 12.) "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

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'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a

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direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne
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Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982). A

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plaintiff alleging denial of equal protection under § 1983, therefore, must prove purposeful

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discrimination by demonstrating that he "receiv[ed] different treatment from that received by

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others similarly situated," and that the treatment complained of was under color of state law. Van

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Pool v. City and County of San Francisco, 752 F. Supp. 915, 927 (N.D. Cal. 1990) (citations

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omitted).

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Plaintiff's equal protection claim is based on the premise that incarcerated U.S. citizens are

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denied the same name change rights as non-incarcerated citizens. The claim is fatally flawed.

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Allegations that a prisoner is being treated differently from non-prisoners fail to state an equal
protection claim as there is a "'fundamental difference between normal society and prison

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United States District Court
Northern District of California

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society,"' Glouser v. Parratt, 605 F.2d 419, 420 (8th Cir. 1979) (quoting Meyers v. Alldredge, 429

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F.2d 296, 310 (3d Cir. 1974)), and "[r]ules designed to govern those functioning in a free society

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cannot be automatically applied to the very different situation presented in a state prison," id.

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(citations omitted). Simply stated, prisoners and non-prisoners are not similarly situated. Hrbek

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v. Nix, 787 F.2d 414, 417 (8th Cir. 1986).

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CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED. The dismissal is without

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prejudice to plaintiff re-asserting the claims brought herein in her amended complaint in her now

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pending SRS action (C 14-00695 JST (PR)) if she can, in good faith, remedy the deficiencies

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discussed above. It appears that the name change claims and SRS claims are sufficiently related

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that they should be decided in the same action, see Fed. R. Civ. P. 18(a), 20(a)(2), so long as

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plaintiff can establish that the Court has subject matter jurisdiction.

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If plaintiff no longer wishes to pursue the name change claims in this Court, she may

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simply omit them from the amended complaint in C 14-00695 JST (PR). If counsel in C 14-00695

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JST (PR) determines that the name change claims and SRS claims should or must be maintained

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in separate actions, counsel shall so inform the Court prior to filing the amended complaint in C

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14-00695 JST (PR).

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Nothing in this order precludes plaintiff from filing an action in state court to petition for a
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name change and/or assert any state law claims she may have. Further, nothing in this order

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precludes plaintiff from seeking a name change by petitioning the warden at her current place of

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confinement.

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The Clerk is instructed to file a copy of this order in C 14-00695 JST (PR).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: April 15, 2014
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JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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