Hood v. Department of Children and Families et al
Filing
33
OPINION AND ORDER granting in part and denying in part 24 motion to dismiss. The Complaint is dismissed with prejudice as to DCF, without prejudice as to Wilkins and Montaldi individually, and denied as to Wilkins and Montaldi in their official capacity for declaratory and injunctive relief. Signed by Judge John E. Steele on 2/26/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RONALD C. HOOD,
Erika Denise Hood
JR.
aka
Plaintiff,
v.
Case No: 2:12-cv-637-FtM-29DNF
DEPARTMENT OF CHILDREN AND
FAMILIES, DAVID E. WILKINS,
Secretary of DCF, and
DANIEL MONTALDI, SVPP
Administrator,
Defendants.
/
OPINION AND ORDER
Plaintiff Ronald C. Hood (“Plaintiff”) initiated this action
by filing a complaint pursuant to 42 U.S.C. § 1983 (Doc. 1).1
This
matter is presently before the Court upon review of the motion to
dismiss filed by Defendants Department of Children and Families
(“DCF”), David E. Wilkins, Secretary of DCF, and Daniel Montaldi,
1
Plaintiff filed this complaint as “Ronald C. Hood, Jr.”,
but periodically refers to himself as Erika Denise Hood and uses
feminine pronouns when referring to himself in the complaint. In
the motion to dismiss, the defendants use masculine pronouns to
refer to Plaintiff (Doc. 24).
Additionally, in the numerous
exhibits attached to the complaint, Plaintiff is referred to as a
male.
Finally, it is the understanding of this Court that
Plaintiff
has
not
undergone
sex
reassignment
surgery.
Accordingly, in order to remain consistent with the majority of
pleadings and documents before this Court and to avoid confusion,
this Order will continue to use masculine pronouns when referring
to Plaintiff.
Administrator of the Sexual Violence Prevention Program (“SVPP”)
at DCF (collectively, “Defendants”) (Doc. 24, filed July 3, 2013).
Plaintiff has filed a response to the motion to dismiss (Doc. 27),
and the motion is now ripe for review.
For the reasons set forth in this Order, Defendants’ motion
to dismiss is GRANTED IN PART AND DENIED IN PART.
I.
Background
At the time he filed this pro se complaint on November 1,
2012, Plaintiff was a resident at the Florida Civil Commitment
Center (“FCCC”) in Arcadia, Florida (Doc. 1).2
2
Plaintiff alleges
The Florida legislature enacted the Sexually Violent
Predators Act, Florida Statute §§ 394.910-394.913, by which a
person determined to be a sexually violent predator is required to
be housed in a secure facility “for control, care, and treatment
until such time as the person’s mental abnormality or personality
disorder has so changed that it is safe for the person to be at
large.” Fla. Stat. § 394.917(2). The Act was promulgated for the
dual purposes “of providing mental health treatment to sexually
violent
predators
and
protecting
the
public
from
these
individuals.”
Westerheide v. State, 831 So. 2d 93, 112 (Fla.
2002); Kansas v. Hendricks, 521 U.S. 346 (1997)(holding that the
Kansas Sexually Violent Predator Act did not establish criminal
proceedings, and involuntary confinement pursuant to the Act was
not punitive). Civil commitment under the Act involves several
steps. First, the Act requires a mental evaluation of any person
who has committed a sexually violent offense and is scheduled for
release from prison or involuntary confinement.
See generally
Fla. Stat. § 394.913.
The evaluation is conducted by a multidisciplinary team of mental health professionals who must
determine whether the individual meets the definition of a
“sexually violent predator.”
After the evaluation, the state
attorney may file a petition with the circuit court alleging that
the individual is a sexually violent predator subject to civil
commitment under the Act. Id.
If the judge determines the
existence of probable cause that the individual is a sexually
- 2 -
that the defendants have violated his rights under the Fifth,
Eighth,
and
Fourteenth
Amendments
to
the
United
States
Constitution by failing to formulate or adopt “a policy for the
treatment
of
Transgender
People
within
Commitment Center.” (Doc. 1 at 2).
the
Florida
Civil
The allegations of, and
attachments to, the complaint state the following:3
Plaintiff had been a resident at the FCCC since October 1,
2000 (Doc. 1 at 1).
grievances
(“GID”).
Since January of 2001, he has filed numerous
requesting
treatment
for
Gender
Identity
Disorder
Even though DCF knew of Plaintiff's diagnosis of GID
prior to October of 2000, it has ignored Plaintiff's “serious
medical need” and has “refused to provide any form of therapy for
violent predator, then he or she will order the individual to
remain in custody. Id. at § 394.915.
Thereafter, a jury trial,
or a bench trial if neither party requests a jury trial, will
commence. Id. If the jury finds the individual to be a sexually
violent predator by clear and convincing evidence, then the
individual will be committed to the custody of the Department of
Children and Family Services for “control, care, and treatment
until such time as the person’s mental abnormality or personality
disorder has so changed that it is safe for the person to be at
large.” Id. at § 394.917.
3
The court may consider documents attached to the complaint
or directly referenced in the complaint as part of the complaint.
See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.
2000); Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364, 1368-69
(11th Cir. 1997); Solis-Ramirez v. United States Dep't of Justice,
758 F.2d 1426, 1430 (11th Cir. 1985) (Attachments to the complaint
“are considered part of the pleadings for all purposes, including
a Rule 12(b)(6) motion.”); Fed. R. Civ. P. 10(c) (“A copy of a
written instrument filed as an exhibit to a pleading is a part
thereof for all purposes[.]”).
- 3 -
the
Plaintiff's
Serious
Medical
Condition
of
Gender
Identity
Disorder (GID).” Id. at 3 (emphasis in original).
Plaintiff wrote to Defendant Secretary David Wilkins and
inquired
as
to
whether
DCF
had
a
transgender residents (Doc. 1 at 1-2).
policy
for
treatment
of
Defendant Wilkins did not
express concern for Plaintiff's condition. Id.
Rather, Petitioner
received a letter from Defendant Montaldi who informed Plaintiff
that DCF did not have a specific policy for transgender treatment
and services (Ex. A at 26). Plaintiff has sought outside assistance
for his problems (Doc. 1 at 4).
Plaintiff has attached numerous documents to his complaint.
(Ex. A; Ex. B; Ex. C).
Plaintiff submitted grievances to the FCCC
in which he requested that he be placed on anti-androgen treatment
in contemplation of sex reassignment surgery (Ex. A at 1-21).
In
the FCCC’s responses to these requests, Plaintiff was referred to
medical professionals to discuss his concerns. Id. at 1-2, 12, 13,
20, 21.
However, Plaintiff's treatment was delayed due to a
pending charge for possession of child pornography.
The FCCC
determined that it was best not to begin any treatment until the
charges were resolved.4 Id. at 3, 4, 7, 8.
4
A review of the Florida Department of Corrections website
indicates that Plaintiff was sentenced for possession of child
pornography on March 4, 2013. He was released from Desoto Annex
in
Arcadia,
Florida
on
August
21,
2013.
- 4 -
Plaintiff wrote a letter the Department of Children and
Families in which he complained that he wished to begin receiving
hormone therapy; wished to be addressed by his female name; and
wanted the FCCC to hire a therapist who specialized in transgender
issues to aid him in making the transition to a female (Ex. A at
22).
He also requested that the FCCC provide him with the
appropriate hormones, female clothing, and feminine products from
an English company that specialized in transgender products (Ex.
A at 22-23).
treatment
In response, Plaintiff was advised that the hormone
and
therapy
he
requested
was
not
part
comprehensive treatment plan at the FCCC. Id. at 24.
of
the
Plaintiff
was also advised that he had not been diagnosed with gender
identity disorder, and therefore, his request for hormonal therapy
was not considered appropriate. Id.
Plaintiff was told that
addressing him by his female name would be “clinically unwise” and
that
“any
authentic
female
clothing
found
in
any
possession would be considered as contraband.” Id.
resident
In response
to a follow up letter from Plaintiff, Defendant Montaldi advised
Plaintiff
that
“DCF
does
not
have
a
policy
for
transgender
treatment and services.” Id. at 26.
http://www.dc.state.fl.us/InmateReleases As of the date on this
Order, Plaintiff has not updated his address with this Court.
- 5 -
Also attached to Plaintiff's complaint are numerous medical
reports of his psychiatric evaluations (Ex. B).
Plaintiff's
medical
providers
discussed
his
In these reports,
gender
identity
issues, but determined that “as [Plaintiff] reports he sometimes
feels like a woman and sometimes like a man, this desire [to have
his gender surgically altered] does not seem to meet the criteria
of persistence necessary for [a diagnosis of Gender Identity
Disorder].
Therefore, it may be advisable to consider these
feelings part of an unstable sense of identity associated with
borderline personality traits.” Id. at 18.
Plaintiff's treating
medical professionals also indicated that “there does not seem to
be any indication for the use of anti-androgen therapy.” (Ex. C at
6). Dr. Robert Brotman indicated that Petitioner was “on the verge
of being delusional about his gender dysphoria and his extreme
need for treatment[.]” Id. at 7.
As relief for Defendants’ failure to formulate a specific
policy for the treatment of FCCC residents diagnosed with GID,
Plaintiff seeks a declaration that his constitutional rights have
been violated; an order that Defendants formulate a policy for the
treatment of gender nonconforming people in conjunction with the
World Professional Association for Transgender Health’s Standard
of Care; an order that Plaintiff receive hormone therapy, female
clothing, feminine cosmetics, feminine hygiene items, and any
reasonable transgender accessories he requests; a declaration that
- 6 -
Plaintiff would have been eligible for release from the FCCC had
he received treatment for GID; damages for wages he would have
received had he been released from FCCC at an earlier date; an
order that Plaintiff be allowed to receive, possess, use, and wear
female clothing, feminine cosmetics, feminine hygiene items, and
other transgender accessories; and any other relief this Court
deems just and proper (Doc. 1 at 4).
Defendants filed a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure (Doc. 24, filed July 3,
2013).
Defendants assert that Plaintiff has not sufficiently
alleged a serious medical condition; that formulating a policy for
treatment is a discretionary governmental function; that Plaintiff
is
attempting
impermissible
to
attribute
liability
respondeat superior
to
Defendants
under
an
theory; that Defendants are
entitled to Eleventh Amendment immunity; and that dismissal on
Plaintiff's due process and First Amendment claims is appropriate
because Plaintiff has not explained how Defendants violated his
due process or First Amendment rights (Doc. 24 at 3-11).
II.
Legal Standards
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits its consideration to well-pleaded factual allegations,
documents central to, or referenced in, the complaint, and matters
judicially noticed.
La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004).
The Court must accept all factual
- 7 -
allegations in Plaintiff’s amended complaint as true and take them
in the light most favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008).
Conclusory allegations,
however, are not entitled to a presumption of truth.
Ashcroft v.
Iqbal, 556 U.S. 662 (2009)(discussing a Rule 12(b)(6) dismissal);
Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1036 n.16 (11th Cir.
2001).
The Court employs the Twombly-Iqbal plausibility standard
when reviewing a complaint subject to a motion to dismiss.
v. Scott, 610 F.3d 701, 708, n.2 (11th Cir. 2010).
Randall
A claim is
plausible if the plaintiff alleges facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for
the
misconduct
alleged.”
Iqbal,
556
U.S.
at
678.
The
plausibility standard requires that a plaintiff allege sufficient
facts “to raise a reasonable expectation that discovery will reveal
evidence” that supports the plaintiff’s claim.
Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 556 (2007); Marsh, 268 F.3d at 1036
n.16.
Thus, “the-defendant-unlawfully harmed me accusation” is
insufficient.
Iqbal, 556 U.S. 662, 677.
“Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.”
Id. (internal modifications omitted).
Further,
courts are not "bound to accept as true a legal conclusion couched
as a factual allegation."
Papasan v. Allain, 478 U.S. 265, 286
(1986).
- 8 -
Because Plaintiff is proceeding pro se, the Court construes
his complaint more liberally than had it been drafted by an
attorney. See Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.
1990).
III. Analysis
a.
Plaintiff's claims for damages against the
Department of Children and Families and
Defendants Wilkins and Montaldi in their
official capacities are barred by Eleventh
Amendment Immunity
Plaintiff seeks monetary damages from the defendants for the
wages he may have earned over the past ten years had he been
treated for GID and released from the FCCC as a result of the
treatment (Doc. 1 at 4).
In addition to being wholly speculative,
damages against defendants as a state agency and state officials
acting in their official capacities are barred by the Eleventh
Amendment to the United States Constitution.
When filing a suit under 42 U.S.C. § 1983, a person is limited
with respect to whom he or she may sue.
The Eleventh Amendment
states that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States[.]” U.S. Const. amend.
XI.
The Eleventh Amendment is an absolute bar to a suit by an
individual against a state or its agencies in federal court.
Edelman v. Jordan, 415 U.S. 651 (1974).
- 9 -
Plaintiff sues the Florida
Department of Children and Families, Secretary Wilkins, and SVPP
Administrator Montaldi.5
The Florida Department of Children and Family Services (DCF)
is a state agency, see Fla. Stat. § 20.19, which is the redesignation of the Florida Department of Health and Rehabilitative
Services, an agency of the State of Florida.
Doe, 1-13 ex rel.,
Doe Sr. 1-13 v. Bush, 261 F.3d 1037, 1042 n.2 (11th Cir. 2001),
cert. denied, 534 U.S. 1104 (2002).
Accordingly, Plaintiff may
not bring this § 1983 action against the Florida Department of
Children and Families.
See Will v. Mich. Dep't of State Police,
491 U.S. 58, 66 (1989) (“Section 1983 provides a federal forum to
remedy many deprivations of civil liberties, but it does not
provide a federal forum for litigants who seek a remedy against a
State for alleged deprivations of civil liberties.
The Eleventh
Amendment bars such suits unless the State has waived its immunity,
or unless Congress has exercised its undoubted power under § 5 of
the Fourteenth Amendment to override that immunity.”)(citations
5
Plaintiff does not state whether he sues Defendants Wilkins
and Montaldi in their individual or official capacities. A review
of the complaint and the relief sought indicates that Plaintiff
intended to sue these defendants in both their official and
individual capacities. See Kentucky v. Graham, 473 U.S. 159, 167
n.14 (1985) (“In many cases, the complaint will not clearly specify
whether officials are sued personally, in their official capacity,
or both. The course of proceedings in such cases typically will
indicate the nature of the liability sought to be imposed.”
(internal citations omitted)).
- 10 -
omitted).
The
Eleventh
Circuit
has
held
that
the
Florida
Department of Health and Rehabilitative Services is immune under
the Eleventh Amendment from a damage suit in federal court.
Gamble
v. Fla. Dep’t of Health & Rehabilitative Servs., 779 F.2d 1509,
1513 (11th Cir. 1986).
Accordingly, the Motion to Dismiss will
be granted with prejudice as to the Department of Children and
Family Services because the claims for damages are barred by the
Eleventh Amendment.
Moreover, under federal law, suing a person in his official
capacity is simply an alternative method of suing the government
entity itself.
“Obviously, state officials literally are persons.
But a suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against
the official's office.” Will, 491 U.S. at 71.
Thus, if a suit
against the government entity is barred, the suit against the
official in his official capacity is also barred.
Accordingly,
the Motion to Dismiss will be granted as to claims for damages
against
defendants
Wilkins
and
Montaldi
in
their
official
capacities.
b. Plaintiff's
claims
for
declaratory
and
injunctive relief are barred by Eleventh
Amendment Immunity against the Department of
Children and Families but are not barred by the
Eleventh Amendment against Defendants Wilkins
and Montaldi in their official capacities
- 11 -
Plaintiff
also
seeks
declaratory
relief
as
to
the
unlawfulness of the lack of an official policy, and seeks various
mandatory injunctive relief.
The Eleventh Amendment also bars
suits for declaratory and injunctive relief against a state and
its agencies. Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 100-03 (1984).
Therefore, this aspect of the Complaint
against the DCF will also be dismissed with prejudice.
A significant exception to this Eleventh Amendment immunity
was announced in Ex Parte Young, 209 U.S. 123 (1908).
In Young,
the Supreme Court determined that a plaintiff may seek to enjoin
ongoing unconstitutional state action by naming the responsible
state officer in the complaint and requesting that the officer be
enjoined from further unconstitutional conduct. Gamble, 779 F.2d
at 1511.
The inquiry as to whether the suit lies under Ex parte
Young does not include an analysis of the merits of the claim.
Verizon Maryland, Inc. v. Public Service Comm’n of Maryland, 535
U.S. 635, 646 (2002).
prospective
Therefore, to the extent that he seeks only
injunctive
and
declaratory
relief,
Plaintiff's
official capacity claims against Defendants Wilkins and Montaldi
are not barred by the Eleventh Amendment.
The Motion to Dismiss
is denied as to this ground.
c. Plaintiff's Eighth and Fourteenth Amendment
claims against Defendants Wilkins and Montaldi
are dismissed for failure to state a claim upon
which relief may be granted
- 12 -
Plaintiff's right to receive adequate health care derives
from a prisoner's constitutional rights embodied in the Eighth
Amendment's prohibition against cruel and unusual punishment. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994); Estelle v. Gamble,
429 U.S. 97 (1976).
The Supreme Court has concluded that, as a
general rule, civil detainees are “entitled to more considerate
treatment
and
conditions
of
confinement
than
criminals
whose
conditions of confinement are designed to punish.” Youngberg v.
Romero, 457 U.S. 307, 322 (1982).
Indeed, the involuntarily
civilly committed have liberty interests under the due process
clause of the Fourteenth Amendment to reasonably safe conditions
of confinement, freedom from unreasonable bodily restraints, and
such minimally adequate training as might be required to ensure
safety and freedom from restraint. Id.
The Eleventh Circuit
similarly has held that “Youngberg establishes that the due process
rights of the involuntarily civilly committed are ‘at least as
extensive’ as the Eighth Amendment ‘rights of the criminally
institutionalized,’
and
therefore,
‘relevant
case
law
in
the
Eighth Amendment context also serves to set forth the contours of
the due process rights of the civilly committed.’” Lavender v.
Kearney,
206
F.
App’x
860,
*2
(11th
Cir.
2006)
(footnote
omitted)(quoting Dolihite v. Maughon, 74 F.3d 1027, 1041 (11th
Cir. 1996)).
Therefore, the case law that has developed under the
- 13 -
Eighth Amendment sets forth the contours of the due process rights
of the civilly committed. Id.
The prohibition against cruel and unusual punishment has been
interpreted by the Supreme Court as prohibiting “the unnecessary
and wanton infliction of pain[.]” Hudson v. McMillian, 503 U.S. 1
(1992) (reversing decision of court of appeals, which held that
inmate
could
not
prevail
on
his
claim
punishment against corrections officers).
of
cruel
and
unusual
Under this standard,
an inmate who claims a violation of the Eighth Amendment on the
basis
of
an
official’s
failure
to
provide
necessary
medical
treatment must show that (1) his medical needs were serious;6 and
(2) the defendants' failure to attend to his medical needs rose to
the level of deliberate indifference. McElligott v. Foley, 182
F.3d 1248, 1254 (11th Cir. 1999).
Plaintiff does not allege a constitutional violation based on
Wilkins’ or Montaldi’s personal refusals to treat his GID.
To the
extent Plaintiff complains that the medical professionals at the
6
A serious medical need is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor's
attention.” Monmouth County Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987). For the sake of this Order only,
the Court will assume, without deciding that Gender Identity
Disorder is a serious medical need that would pose a substantial
risk of serious harm if left untreated. See Praylor v. Texas Dep’t
of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005)(acknowledging
that transsexualism may be a serious medical condition).
- 14 -
FCCC failed to adequately diagnose and treat his GID, the claim is
based on the actions and decisions of the FCCC staff who are not
named as defendants in this action.
Any attempt to hold Wilkins
and Montaldi liable for the actions of their subordinates is
insufficient to state a claims under § 1983.
A defendant cannot be held liable under § 1983 based solely
on the theory of respondeat superior or vicarious liability. Hyland
v. Kolhage, 267 F. App’x 836, 841 (11th Cir. 2008); Brown v.
Crawford,
906
F.2d
667,
671
(11th
Cir.
1990).
Supervisory
liability can be established only “when the supervisor personally
participates in the alleged constitutional violation or when there
is a causal connection between the actions of the supervising
official and the alleged constitutional deprivation.” Mathews v.
Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007)(internal quotations
omitted).
When determining whether there is a causal connection
between a defendant's action and the alleged deprivation of a
constitutional right, mere knowledge of a potential deprivation is
not sufficient to impose liability on a supervisor. Iqbal, 556
U.S. at 677.
Rather, in order to state a claim against the
supervisor, the plaintiff must allege purposeful action by the
supervisor to deprive plaintiff of a constitutional right. Id.
At
no point in his complaint does Plaintiff allege that Wilkins or
Montaldi personally participated in an active plan to deny him
treatment for GID.
- 15 -
Because Plaintiff cannot state a claim against Wilkins or
Montaldi by showing purposeful participation, he attempts to show
a causal connection to his constitutional deprivation through
other means.
A plaintiff can do this by demonstrating either that
“a history of widespread abuse puts the responsible supervisor on
notice of the need to correct the alleged deprivation, and he fails
to do so” or that “a supervisor's custom or policy results in
deliberate indifference to constitutional rights or when facts
support an inference that the supervisor directed the subordinates
to
act
unlawfully
or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing so.” Cottone v.
Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
Plaintiff attempts to attribute liability to Wilkins and
Montaldi based upon the fact that DCF does not have a formal policy
for the treatment of transgender residents at the FCCC.
In order
to establish deliberate indifference on the part of a defendant,
a plaintiff must show subjective knowledge of a risk of serious
harm and disregard of that risk by conduct that is more than gross
negligence. Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th
Cir. 2010) (internal quotation marks and alteration omitted).
establish
the
“subjective
knowledge”
component
of
To
this
requirement, the Eleventh Circuit has recognized that a defendant
must be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must
- 16 -
actually draw the inference. Bozeman v. Orum, 422 F.3d at 1265,
1272 (11th Cir. 2005).
Plaintiff has failed to sufficiently plead
the “subjective knowledge” portion of his Eighth Amendment claim.
In order for a substantial risk of serious harm to exist, the
conditions must be “sure or very likely to cause serious illness
and needless suffering” and give rise to “sufficiently imminent
dangers.” Baze v. Rees, 553 U.S. 35, 49–50 (2008).
to
have
a
formal
policy
for
the
treatment
DCF’s failure
of
transgender
individuals does not, alone, pose a significant danger to a
resident’s health and safety, and does not amount to a condition
that causes “unquestioned and serious deprivation of basic human
needs.”
Rhodes
v.
Chapman,
452
U.S.
337,
347-48
(1981).
Significantly, Plaintiff does not allege that DCF or the FCCC had
a policy of refusing to treat transgender individuals if a resident
was so diagnosed or that treatment for his condition would not
have been approved had a treating specialist ordered it.
Rather,
the documents attached to the complaint show that medical providers
at the FCCC did not feel that such treatment was indicated for
Plaintiff.
See Ex. C at 5-7 (Progress notes of treating physician
Robert K. Brotman from August 20, 2010 through October 26, 2010,
stating
that
Plaintiff);
anti-androgen
Ex.
A
at
3,
4,
therapy
7
is
not
(informing
appropriate
Plaintiff
that
for
his
uncertain legal status made him a poor candidate for hormone
- 17 -
therapy because his treatment was likely to be interrupted). 7
Accordingly, Petitioner has not alleged facts from which the
defendants should have inferred that their failure to formulate a
policy for the treatment of GID would result in substantial risk
of serious harm to Plaintiff.
Moreover,
although
Plaintiff
alleges
that
he
has
been
diagnosed with GID “since before [his] arrival at the FCCC on
October 1, 2000,” the numerous documents attached to Plaintiff's
complaint indicate that the mental health practitioners at the
FCCC disagreed with that diagnosis.
In a May 11, 2005 report by
clinical therapist Larry Zolman, it was recommended that based
upon the information from the clinical interview, Department of
Correction
observations,
files,
psychological
Plaintiff
should
assessments,
participate
in
a
and
sex
direct
offender
specific group intervention to discuss Plaintiff's reports of
gender dysphoria.
The report noted that “[t]he fact that Mr. Hood
reports sometimes feeling like a man and sometimes like a woman
rather than like a woman all the time seems to indicate that his
symptoms may be more a function of a[n] unstable sense of self
commonly associated with Borderline personality traits rather than
7
When there is a conflict between the allegations in a
pleading and exhibits thereto, it is well settled that the exhibits
control. Crenshaw v. Lister, 556 F.3d 1283 (11th Cir. 2009).
- 18 -
an actual Gender Identity Disorder.” (Ex. C at 21).
On December
22, 2011, Plaintiff was informed by a spokesperson for DCF’s
Sexually Violent Predator Program that Plaintiff had not been
diagnosed with gender identity disorder and therefore, his request
for hormonal therapy was not considered appropriate (Ex. A at 24).
The
exhibits
submitted
with
the
complaint
indicate
that
the
defendants did not actually draw an inference that Plaintiff
suffered from GID or was at risk of a substantial risk of serious
harm.
Finally, even if the defendants should have inferred that
Plaintiff was at a substantial risk of serious harm if they did
not develop a formal policy for the treatment of transgender
residents
at
the
FCCC,
Plaintiff
has
not
alleged
that
the
defendant's actions were more blameworthy than mere negligence.
Farmer, 511 U.S. at 836 n. 4 (stating that even gross negligence
does not rise to the level of deliberate indifference).
An action
by a defendant with no signs of malevolence or a culpable state of
mind does not give rise to an Eighth Amendment violation. Baze,
553 U.S. at 50.
Petitioner has failed to establish deliberate indifference on
the parts of Defendants Wilkins or Montaldi, and the Eighth and
Fourteenth Amendment claims against these defendants are dismissed
for failure to state a claim upon which relief may be granted.
Fed. R. Civ. P. 12(b)(6).
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d.
Plaintiff's
First
Amendment
claims
are
dismissed for failure to state a claim upon
which relief may be granted
Plaintiff asserts that his First Amendment right to freedom
of expression has been violated (Doc. 1 at 3).
Plaintiff does not
elaborate on this allegation, but construing the pro se complaint
liberally, the Court will interpret the claim as one asserting
that Plaintiff's First Amendment right to freedom of expression
have been violated because of the FCCC’s restriction on male
residents wearing female clothing, feminine cosmetics, feminine
hygiene items, and other “transgender accessories.” Id. at 4.
As
discussed,
Defendants
Wilkins
and
Montaldi
are
not
responsible on a theory of respondeat superior for the allegedly
unconstitutional actions of the staff at the FCCC. See discussion
supra Part III(b).
Wilkins
and
To the extent that Plaintiff now alleges that
Montaldi
were
responsible
for
an
FCCC
policy
prohibiting transgender residents from wearing female clothing and
cosmetics, the claim fails.
While prisoners do not lose their First Amendment rights upon
incarceration, see Meachum v. Fano, 427 U.S. 215, 225 (1976), an
inmate’s rights are subject to restriction.8
8
“[A] prison inmate
Although Plaintiff is not a prisoner, the Court finds the
context in which he is civilly detained should be afforded
significant consideration in this case.
The law generally
requires a careful balancing of the rights of individuals who are
detained for treatment, not punishment, against the state's
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retains those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological
objectives of the corrections system.” Pell v. Procunier, 417 U.S.
817,
822
(1974).
“Maintaining
institutional
security
and
preserving internal order and discipline are essential goals that
may
require
limitation
or
retraction
of
the
retained
constitutional rights[.]” Bell v. Wolfish, 441 U.S. 520, 547
(1979).
Federal
judges
may
not
interfere
in
the
daily
administration of state prisons barring substantial evidence that
they have acted disproportionately to correctional needs. Pell,
417 U.S. at 827.
Plaintiff does not point to any specific clothing policy at
the FCCC.
However, for the purposes of this opinion, the Court
will assume that some policy exists and that the policy prohibits
male residents at the FCCC from wearing or possessing clothing
designed
for
females.
When
a
challenged
prison
regulation
impinges on an inmate's constitutional rights, the regulation is
valid if it is “reasonably related” to legitimate penological
interests. Turner v. Safley, 482 U.S. 78, 89 (1987); Pesci v. Budz,
interests in institutional security and the safety of those housed
at the facility. Thus, while Plaintiff as a civil detainee may not
be subjected to conditions that amount to punishment, Bell v.
Wolfish, 441 U.S. 520, 536(1979), he nonetheless may be subjected
to conditions within the bounds of professional discretion that
place restrictions on his personal freedoms. Youngberg, 457 U.S.
at 321–22.
- 21 -
730 F.3d 1291 (11th Cir. 2013) (finding that the Supreme Court’s
Turner test applicable to the FCCC).
When Plaintiff requested that the FCCC “purchase and allow
[him] to wear all of the female clothing and feminine products” he
wanted (Ex. A at 23), Plaintiff was informed that it was clinically
unwise for him to be addressed by a female name and that, because
all the residents at the FCCC were male, female clothing was
prohibited (Ex. A at 24).
Plaintiff was provided a rational, non-
arbitrary basis for regulating resident attire and restricting
Plaintiff to the use of his legal name.
Moreover, accommodation
of Plaintiff's right to wear female clothing and cosmetics would
be unduly burdensome for FCCC officials.
Even assuming that Plaintiff has been diagnosed with GID, an
assumption that is not supported by the exhibits attached to
Plaintiff's complaint, the Court has no found authority indicating
that a transgender person has the right to choose the clothing
worn while confined or that the facility is constitutionally
obligated to purchase all the clothing and feminine products
requested.
In fact, generally, federal courts have held the
opposite. See, e.g., Murray v. United States Bureau of Prisons,
106 F.3d 401 (6th Cir. 1997) (transsexual prisoner not entitled to
wear clothing of his choice and prison officials do not violate
the Constitution simply because the clothing is not aesthetically
pleasing); Star v. Gramley, 815 F. Supp. 276 (C.D. Ill. 1993)
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(noting that provision of female clothing to transsexual prisoner
would be unduly burdensome for prison officials and would make
little fiscal sense); Jones v. Warden of Stateville Corr. Ctr.,
918 F. Supp. 1142 (N.D. Ill. 1995) (“Neither the Equal Protection
Clause nor the First Amendment arguably accord [Plaintiff] the
right of access to women’s clothing while confined in a state
prison.”).
The First Amendment claims against Defendants Wilkins
and Montaldi are dismissed for failure to state a claim upon which
relief may be granted. Fed. R. Civ. P. 12(b)(6).
Accordingly, it is hereby ORDERED:
The defendants’ motion to dismiss Plaintiff's complaint (Doc.
24) is GRANTED IN PART AND DENIED IN PART.
The Complaint is
dismissed with prejudice as to the Department of Children and
Families; without prejudice as to David E. Wilkins and Daniel
Montaldi in their individual capacities; and is denied as to David
E. Wilkins and Daniel Montaldi in their official capacity in
connection with the request for declaratory and injunctive relief.
DONE and ORDERED in Fort Myers, Florida on February 26th,
2014.
SA: OrlP-4 11/29
Copies: Ronald C. Hood
Counsel of Record
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