Levy v. Wexford Medical Health Care Provider et al

Filing 132

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 8/9/2017. (c/m 8/9/2017 tds, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

SHA WNTE ANNE LEVY, a/k/a
EL SOUDANI EL WAHHABI,
Prisoner Identification No. 416369,
Plaintiff,
v.
Civil Action No. TDC-14-3678
WEXFORD MEDICAL SOURCES, INC.;
FRANKB. BISHOP, WARDEN; and
GREGG L. HERSHBERGER,
COMMISSIONER;
Defendants.

MEMORANDUM OPINION
Plaintiff Shawnte Anne Levy, previously known as EI Soudani EI Wahhabi, is currently
incarcerated at North Branch Correctional Institution ("NBCI") in Cumberland, Maryland.

Levy

has been diagnosed with Gender Dysphoria ("GD"), formerly referred to as Gender Identity
Disorder, a condition under which a person feels strongly that he or she is not the gender of his
or her birth.

Levy! filed a Complaint under 42 U.S.C.

S

1983 against former Division of

Correction Commissioner Gregg L. Hershberger;2 NBCI Warden Frank Bishop (collectively, the
"Correctional Defendants"); Wexford Health Sources, Inc. ("Wexford"), the health care provider
under contract to provide certain medical services to Maryland state prisoners; and the Maryland

Because Levy identifies as female, the Court will use the feminine pronoun to refer to her.
2

Dayena Corcoran has replaced Hershberger
Correction.

as the Commissioner

of the Division of

Department of Public Safety and Correctional

Services ("DPSCS"),

which has since been

dismissed as a defendant. Levy alleged several causes of action, the only remaining of which is
her allegation that Defendants violated her rights under the Eighth and Fourteenth Amendments
to the United States Constitution and under the Maryland Declaration of Rights by not providing
her with hormone therapy and psychotherapy

as treatment forGD.3

Memorandum

Defendants'

Opinion and Order resolving

In a March 7, 2016

Motions to Dismiss

or, in the

Alternative, for Summary Judgment and Levy's Motion for Partial Summary Judgment, the
Court found that Levy's claim for GD treatment was likely moot because Defendants conceded
that Levy was entitled to treatment. In an abundance of caution, the Court instituted a six-month
monitoring period to ensure full implementation of that treatment.

That compliance period has

ended, and Defendants have each filed a renewed Motion for Summary Judgment. Also pending
are Levy's Motion to Appoint Counsel, her Motion to Amend the Complaint, her Motion for a
Preliminary Injunction, and her Motion for Partial Summary Judgment.

Having reviewed the

parties' submissions, the Court finds no hearing necessary. See D. Md. Local R. 105.6. For the
reasons set forth below, Wexford's Motion for Summary Judgment is granted, the Correctional
Defendants' Motion for Summary Judgment is granted, Levy's Motion to Appoint Counsel is
denied, her Motion to Amend the Complaint is denied, her Motion for a Preliminary Injunction is
denied, and her Motion for Partial Summary Judgment is denied.

The Maryland Declaration of Rights is in pari materia with the United States Constitution and
its Amendments. See Evans v. State, 914 A.2d 25, 67 (2006) (stating that the parallel provisions
of the Maryland Declaration of Rights should not be "read more broadly (or narrowly)" than the
Eighth and Fourteenth Amendments to the U.S. Constitution). Levy's Maryland Declaration of
Rights claim thus essentially folds into her federal constitutional claims. For ease of reference,
the Court discusses Levy's claims only in the federal constitutional context.
3

2

BACKGROUND
The prior factual background of this case is set forth in the Court's March 7, 2016
Memorandum Opinion. Levy v. Wexford, No. TDC-14-3678, 2016 WL 865364 at *1-3 (D. Md.
Mar. 7, 2016).

The Court therefore summarizes such background as necessary and sets forth

subsequent facts and procedural history relevant to the pending Motions.
Shortly after her arrival at NBCI in September 2013, Levy informed prison medical staff
that she suffered from GD and asked for treatment.

She was refused. Medical staff told her that

NBCI had no record of any GD diagnosis such that, under DPSCS policy, she would receive no
treatment.

That policy was contained in a February 22, 2012 DPSCS Office of Clinical

Services/Inmate Health Services Medical Evaluations Manual, in effect at the time Levy entered
NBCI, and stated that DPSCS will provide transgender treatment only to inmates who have
either a trans gender diagnosis prior to entering the prison or prior enrollment in a certified
transgender

program.

Wexford, as the primary medical contractor to DPSCS prisons, is

contractually obligated to follow DPSCS policy.
On March 24, 2014, Levy filed a Request for Administrative

Remedy under the

Administrative Remedy Procedure ("ARP") in which she asserted that she had been diagnosed
with GD prior to her incarceration at NBCI and asked to receive estrogen hormone therapy and
trans gender counseling for her condition.

She also asked to be allowed to wear women's

clothing, to wear makeup, and to shave three times a week. The ARP was denied the next day as
frivolous.

Levy appealed that denial to the Inmate Grievance Office ("IGO").

On December 8,

2014, the IGO instructed Levy to provide within 30 days the medical records substantiating her
claims of a GD diagnosis. Levy failed to submit any records, so the IGO administratively closed
her appeal. That IGO appeal was the only one filed by Levy in 2014.

3

Meanwhile, on November 20, 2014, Levy filed suit in this Court alleging that she was
receiving constitutionally inadequate treatment for her GD and seeking injunctive relief in the
form of hormone therapy and psychotherapy.

Levy attached her original ARP to her Complaint.

At some point in May 2015, DPSCS received copies of Levy's mental health records from the
Clifton T. Perkins Hospital Center, a psychiatric hospital where she had previously
confined.

been

Those records confirmed that Levy had been diagnosed with GD prior to her

incarceration at NBC!.

As a result, Levy, in accordance with prison policy, was sent to a

University of Maryland endocrinologist

for an evaluation to begin hormone treatment.

On

January 28, 2016, Levy was placed on a hormone treatment plan consisting of the provision of
spironolactone and estradiol.
With the start of Levy's treatment for GD, the Wexford and the Correctional Defendants
moved for dismissal or summary judgment, arguing primarily that Levy's claims were moot.
Levy opposed those Motions, asserting that although she had been prescribed hormone therapy,
she was not yet reliably receiving her treatment. In a March 7, 2016 Memorandum Opinion, this
Court concluded that dismissal of Levy's claims on the basis of mootness was premature and
thus denied the motions without prejudice to renewal at the end of a six-month compliance
period. The Court ordered Defendants during that six-month compliance period to provide status
reports every 60 days, to which Levy would be permitted to respond.
In the first of those three reports, submitted in May 2016, Defendants provided records
establishing that as of February 25, 2016, Levy was regularly receiving hormone therapy, with
only a handful of missed doses. Specifically, she was receiving a daily dose of 50 milligrams of
spironolactone and was receiving 0.1 milligram transdermal patches of estradiol twice a week.
On April

14, 2016,

Levy had

another

appointment

4

with

a University

of Maryland

endocrinologist,
develop breasts.

who observed that, as a result of the hormone therapy, Levy had begun to
At an April 26, 2016 appointment

at NBCI, the provider

authorization for a follow-up appointment with the endocrinologist in three months.
point prior to May 6, 2016, Levy received female undergarments.

requested
At some

Throughout this period, Levy

received mental health treatment for her GD.
In her response to Defendants' reports, Levy did not dispute that she had been receiving
hormone treatment and women's undergarments.

She did, however, assert that in April 2016,

she submitted a written request to be allowed to have makeup but had not yet received a
response.
In the second report, filed in July 2016, Defendants noted that on May 6, 2016, Levy's
laboratory results were sent to her endocrinologist.

Those results showed that Levy's estrogen

level had increased and her testosterone level had decreased.

On May 11, 2016, prison medical

staff reviewed those results with Levy. At a May 24, 2016 appointment at NBCI, Levy asked to
have her estrogen dose increased. Medical staff informed her that her laboratory results had been
sent to her endocrinologist, who had not yet provided updated treatment recommendations.

On

May 31, 2016, Levy again went to prison medical services asking for her estrogen dose to be
increased, expressing disappointment with how long her gender transition was taking.
staff explained that transgender

treatment is a slow process.

Medical

On June 10, 2016, Levy's

endocrinologist acknowledged receipt of Levy's test results and instructed Wexford to continue
Levy's hormone treatment at the same levels. Throughout this period, Levy regularly received
both hormone treatment and mental health treatment.

5

In her response to Defendants' report, Levy did not dispute that she had been receiving
hormone treatment as prescribed, but asserted that she was not provided with certain mental
health and psychiatric records as part of Defendants' report.
In the third report, filed in September 2016, Defendants noted that Levy was seen by her
endocrinologist on July 14, 2016 for her three-month follow up appointment.

Based on that visit,

Levy's hormone doses were doubled to 100 milligrams of spironolactone daily and 0.2 milligram
trans dermal patches of estradiol twice a week.
prescriptions accordingly.

On July 21, 2016, Wexford updated Levy's

Levy was instructed to get blood work done in six weeks and to

return for a follow~up appointment in three to four months. During this period, Levy received all
prescribed hormone medications and continued to receive mental health treatment for her GD.
At one of those mental health appointments, she expressed her eagerness for sex-reassignment
surgery.
On August 15, 2016, DPSCS issued a revised policy on the treatment of inmates with
GD. That policy commits DPSCS not only to the treatment of inmates diagnosed with GD prior
to incarceration, as in Levy's case and as required under the previous policy, but also to the
treatment of inmates first diagnosed with GD during incarceration.
requires

a GD-diagnosed

individualized
DPSCS's

inmate's

prison mental health

As relevant here, that policy

clinician

to develop

an initial

treatment plan in consultation with (1) the inmate's treating psychiatrist,

(2)

Regional Director of Mental Health, (3) any other clinicians providing relevant

treatment, and (4) the Regional Treatment Team ("RTT"), which consists of the Regional
Director or a designee, the Regional Psychiatrist, the Regional Medical Director, prison staff as
needed, and any other medical staff as needed. That initial plan is then to be sent to the RTT for
approval and, if warranted, for referral of the inmate to a specialist for treatment.

6

Levy submitted no rebuttal to Defendants' third status report.

Instead, she submitted a

Motion for Partial Summary Judgment in which she confirmed that she has been receiving her
hormone therapy, that she is being allowed to wear female undergarments, and that she is being
proyided with regular mental health counseling.

She complained, however, that she was not

allowed to purchase eyeliner or a hair relaxer kit from the NBCI commissary.

She also asserted

that she has not yet had sex-reassignment surgery and argues that the failure of Defendants to
schedule that procedure amounts to cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution.

In support of the latter contention, Levy asserts

that on May 18, 2016, she asked to be referred to a GD specialist for a surgical consultation, but
that such consultation never took place. Levy also asserts that on August 16, 2016, a member of
the Wexford medical staff speculated that Levy would not receive sex-reassignment surgery.
Levy has made several additional filings, each of which will be discussed in tum. As part
of those filings and Defendants' responses to them, the following additional medical history has
been submitted to the Court.

On October 18, 2016, Levy was examined by prison medical

personnel for genital bleeding as result of her tying up her genitals.

She also complained of

headaches related to the change in her spironolactone dose. On November 9, 2016, Levy filed a
request that this Court, pursuant to Federal Rule of Civil Procedure 35, order an examination by
a GD specialist relating to sex reassignment surgery, but provided no factual basis or legal
support for that request.

The next day, November 10, 2016, at a visit to her endocrinologist,

Levy asked that her spironolactone dose be doubled to 200 mg per day and also asked for the
names of doctors who could perform sex-reassignment

surgery.

Levy's endocrinologist noted

that Levy's estrogen levels were above the therapeutic goal but, after reviewing with Levy the
risks of elevated

estrogen

levels, made no adjustment

7

to the daily

100 milligrams

of

spironolactone and twice weekly 0.2 milligram patches of estradiol that had previously been
prescribed.

The endocrinologist

recommended that Levy continue to receive psychological

counseling in tandem with her hormone therapy. The endocrinologist further recommended that
Levy be referred to a urologist for an evaluation of an inguinal hernia, as well as for a possible
orchiectomy, a surgical procedure to remove one or both testicles.
orchiectomy was noted.

No medical basis for the

That urology consultation was ordered by the prison on December 5,

2016.
Following the endocrinologist's

report, on December 6, 2016, Defendants convened a

meeting with Levy and a number of her medical providers, including Dr. Mulugeta B. Akal, the
DPSCS Regional Medical Director; Bruce Liller, her mental health counselor; and Krista Bilak,
her primary Nurse Practitioner, to discuss the possibility of an orchiectomy.

At that meeting,

Liller suggested that any consideration of body-altering surgery be approached cautiously in light
of the fact that Levy has not only GD but also schizoaffective disorder and psychosis.

Liller

remarked as well that Levy had been undergoing hormone therapy for only about six months,
noting that literature on GD recommends that patients undergo hormone therapy for at least a
year before progressing to sex-reassignment

surgery.

Liller suggested that the question of an

orchiectomy be put before the RTT for further discussion. After a therapy session with Levy the
following day, Liller noted that there was a need for a reassessment of her other mental health
diagnoses based on divergences between those diagnoses and her symptoms, a need to better
understand the triggers to her psychosis, and a need to further discuss the nature of sexreassignment surgery and ensure that Levy understood that some individuals with GD obtain no
relief from symptoms even after sex reassignment.

Liller also increased the frequency of Levy's

therapy sessions from once a month to twice a month.

8

On January 23, 2017, Levy filed what she titled an "Order to Show Cause for a
Preliminary Injunction," which the Court construes as a Motion for a Preliminary Injunction,
seeking an order requiring that Levy receive sex-reassignment

surgery.

In that Motion, Levy

asserts that Defendants are wrongfully denying her an orchiectomy, which she characterizes as
medically necessary, in violation of her Eighth Amendment right to be free from cruel and
unusual punishment.
On January 31, 2017, Levy was examined by Dr. Akal, who determined that Levy's
inguinal hernia was stable and treated Levy for continuing ulcerations on her penis resulting
from her tying back her genitals. On February 3, 2017, Levy's RTT convened to discuss her GD
treatment.

After ordering another endocrinology consultation, the RTT noted that although the

urological consultation requested on December 5, 2016 had been approved, the consulting
physician had since stopped accepting NBCI inmates as patients.

Instead of the outside

consultation, the prison scheduled a January 31, 2017 onsite evaluation with Dr. Akal, who
concluded that surgical repair of Levy's hernia was not necessary.

As for an orchiectomy, the

RTT recommended a consultation with Dr. Chris Kraft, the Director of Clinical Services for the
Johns Hopkins Hospital Sexual Behaviors Consultation Unit.

On March 3, 2017, DPSCS's

Regional Committee on Gender Dysphoria met to discuss Levy's case and their efforts to recruit
Dr. Kraft to join the Committee.
At a March 7, 2017 primary care visit, Nurse Practitioner Bilak informed Levy that her
consultation

with Dr. Kraft had been approved and that she had another endocrinology

appointment coming up.

Levy asked to be provided with sanitary napkins, explaining, when

pressed, that she was continuing to tie back her genitals, which was causing bleeding. Levy was
provided gauze pads and ointment, and she was cautioned about the dangers of tying her

9

genitals. Beginning at that appointment and over the ensuing months, Levy became increasingly
insistent

in her requests to prison medical

staff, her mental health counselor,

and her

endocrinologist for an orchiectomy and sex-reassignment surgery.
After an April 27, 2017 appointment, Levy's endocrinologist recommended that Levy's
estradiol dose be reduced to 0.3 milligrams per week, from 0.4 milligrams per week, based on
Levy's continued high levels of estrogen. The reduction was implemented on May 3, 2017. The
endocrinologist also noted that there was no medical reason that Levy could not undergo an
orchiectomy, but deferred to prison policy on whether such surgery should proceed.
On May 26, 2017, Levy filed correspondence

with the Court complaining about the

reduction in her estradiol dose and asserting that no one had explained to her the reason for the
change.

In that correspondence, Levy also requested that she be given intramuscular hormone

injections and contended that, despite her repeated requests, she has not been referred to a GD
specialist.

She also complained that she has not yet had an orchiectomy.

She asserted that each

of the specified medical treatments is medically necessary to treat her GD and that without the
treatments she is suffering from the mental anguish caused by GD as well as physical distress
arising from her reduced hormone dose. Levy again argued that Defendants' failure to provide
the requested treatments violates her Eighth Amendment right to be free of cruel and unusual
punishment.
That same day, Levy also filed a Motion to Amend the Complaint seeking to amend her
allegations to request as relief that a special master be appointed to oversee her hormone therapy
and that sex-reassignment

surgery be scheduled, as well as $20,000 in damages.

2017, Levy moved for appointment of counsel.

10

On July 10,

Defendants oppose Levy's Motion to Amend and her Motion for Partial Summary
Judgment, and they have each renewed their Motion for Summary Judgment.

In their Motions,

Defendants assert that Levy's claims for GD treatment are moot in light of clear DPSCS policy
on GD treatment and their record of providing Levy with that policy-mandated

care. The

Correctional Defendants also assert that they are entitled to summary judgment on Levy's claims
that she was denied certain commissary items because Levy never administratively

exhausted

that grievance.
DISCUSSION
I.

Motion to Appoint Counsel
Levy asks that the Court appoint counsel to represent her because she has been unable to

find a private attorney willing to take her case, she has limited access to legal materials through
the prison library, and her case presents complex issues of law requiring significant research.
"The court may request an attorney to represent any person" proceeding in forma pauperis who
is "unable to afford counsel."

28 U.S.C.

S

1915(e)(l) (2012).

Court appoints counsel only in exceptional circumstances.

In civil actions, however, the

Cook v. Bounds, 518 Fold 779, 780

(4th Cir. 1975). In doing so, the Court considers "the type and complexity of the case," whether
the plaintiff has a colorable claim, and the plaintiff s ability to prosecute the claim.

See

Whisenant v. Yuam, 739 Fold 160, 163 (4th Cir. 1984) (internal quotation marks and citations
omitted), abrogated on other grounds by Mallard v.
U.S. 296 (1989).

us. Dist.

Court for the S. Dist. of Iowa, 490

Exceptional circumstances include a litigant who "is barely able to read or

write," id. at 162, or clearly "has a colorable claim but lacks the capacity to present it," Berry v.
Gutierrez, 587 F. Supp. 2d 717, 723 (E.D. Va. 2008); see also Altevogt v. Kirwan, No. WDQ-111061, 2012 WL 135283, at *2 (D. Md. Jan. 13, 2012).

11

Inherent in this analysis is that one's

indigence is insufficient to establish exceptional circumstances.

Nor do Levy's other proffered

reasons show exceptional circumstances that would warrant appointment of counsel. Despite her
enumerated constraints, Levy has vigorously pursued this litigation, filing multiple motions and
providing evidence to support her claims. Levy has thus been able to articulate the facts of her
case and her legal claims without assistance, so there are no exceptional circumstances that
warrant appointment of counsel.
II.

Levy's Motion for Appointment of Counsel is denied.

Motion to Amend the Complaint
In her Motion to Amend the Complaint, Levy appears to assume that her original

Complaint sought relief in the form of sex-reassignment surgery and thus seeks to amend her
Complaint to request that a special master be appointed to oversee that process and that she be
awarded money damages for the delay in that treatment.

However, nowhere in Levy's original

Complaint or her two amendments did she seek sex-reassignment surgery. The Court therefore
construes Levy's Motion as a request, after three years of litigation and three previously filed
versions of the Complaint, to amend her Complaint to add a claim that she is entitled to sexreassignment surgery.
Federal Rule of Civil Procedure 15 instructs that leave to amend should be "freely give(n]
when justice so requires."

Fed. R. Civ. P. 15(a)(2). Courts should thus deny a motion to amend

only when an amendment would be prejudicial to the opposing party, the moving party has acted
in bad faith, or the amendment would be futile. Equal Rights etr. v. Niles Bolton Assoc., 602
F.3d 597,603 (4th Cir. 2010).
A proposed amendment is prejudicial to the opposing party if it is belated and would
change the nature of the litigation. Id. at 604; see Deasy v. Hill, 833 F.2d 38, 42 (4th Cir. 1987)
("Belated claims which change the character of litigation are not favored. "). That is the situation

12

here. Levy seeks to amend her Complaint after this litigation had been pending for nearly three
years, after she twice previously amended her Complaint, after the parties went through a prior
round of briefing on summary judgment, after the institution and successful completion of a sixmonth compliance period, and after Defendants renewed their Motions for Summary Judgment.
Against that long litigation history, Levy seeks to widen her suit to encompass an entirely new
medical treatment, moving from medication and therapy to irreversible surgical intervention.
Levy offers no explanation for her delay, instead asserting, incorrectly, that sex-reassignment
surgery has been part of her claim since the outset of this litigation.

Based on Levy's own

understanding that her desired treatment encompassed sex-reassignment surgery, there was no
reason she could not have included sex-reassignment surgery in her original claim for relief. Her
attempt to alter her Complaint now is thus a belated effort. See Deasy, 833 F.2d at 41 (holding
that the district court did Ilot err in denying a motion to amend where the plaintiff offered no
reason for the delay in filing the motion because "a motion to amend should be made as soon as
the necessity for altering the pleading becomes apparent").
Because sex-reassignment surgery is a qualitatively different treatment, Levy's proposed
amendment would change the character of this long-pending litigation. The proposed expanded
claim would require new medical experts-as
appropriate and physically viable-and

to whether such treatment is both mentally

would largely return this case to the starting point,

because the record thus far adduced has been centered on implementation of hormone and mental
health treatment.

As a result, Defendants would find themselves unduly prejudiced by having

"to spend additional time, money, and energy laboring in this Court's trenches," despite having
fulfilled their obligations during the compliance period. Smith v. Angelone, 111 F.3d 1126, 1134
(4th Cir. 1997).

13

Levy's Motion to Amend must also be denied because it would be futile. See Perkins v.
United States, 55 F.3d 910,917 (4th Cir. 1995); Frank M McDermott, Ltd v. Moretz, 898 F.2d
418, 420-21 (4th Cir. 1990); Glick v. Koenig, 766 F.2d 265, 268-69 (7th Cir. 1985) ("The liberal
amendment rules under Rule 15(a) do not require the courts to indulge in futile gestures.").
Eighth Amendment prohibits cruel and unusual punishment.

The

U.S. Const. amend. VIII. A prison

official violates the Eighth Amendment when the official shows "deliberate indifference to
serious medical needs of prisoners."

Estelle v. Gamble, 429 U.S. 97, 104 (1976); Jackson v.

Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). To be "serious," the condition must be "one that
has been diagnosed by a physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor's attention." Jackson, 775 F.3d at
178 (quoting fko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)).

"An official is deliberately

indifferent to an inmate's serious medical needs only when he or she subjectively knows of and
disregards an excessive risk to inmate health or safety." fd (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)). "(I]t is not enough that an official should have known of a risk; he or she
must have had actual subjective knowledge of both the inmate's serious medical condition and
the excessive risk posed by the official's action or inaction." fd (citations omitted).

Thus, a

deliberate indifference claim has both an objective component, that there objectively exists a
serious medical condition and an excessive risk to the inmate's health and safety, and a
subjective component, that the official subjectively knew of the condition and risk. Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (holding that an official must have "knowledge" of a risk of
harm, which must be "objectively, sufficiently serious").
Deliberate indifference is an "exacting standard" that requires more than a showing of
"mere negligence or even civil recklessness, and as a consequence, many acts or omissions that

14

would constitute medical malpractice will not rise to the level of deliberate indifference." Id.
(citations omitted); Rich v. Bruce, 129 F.3d 336, 339 (4th Cir. 1997) (finding that even when
prison authorities are "too stupid" to realize the excessive risk their actions cause, there is no
deliberate indifference).

To constitute deliberate indifference to a serious medical need, the

defendant's actions "must be so grossly incompetent, inadequate, or excessive as to shock the
. conscience or to be intolerable to fundamental fairness." Miltier v. Beam, 896 Fold 848, 851 (4th
Cir. 1990).
Here, there is no dispute that Levy suffers from an objectively serious medical condition,
nor is there a dispute that Levy is receiving treatment for that condition. What Levy seeks to
dispute through her amendment is the nature and extent of that treatment. She asserts that proper
treatment of her GD requires sex-reassignment surgery.

However, Levy provides no basis for

that assertion beyond her own belief in the necessity of those treatments.

To date, no physician

has determined that an orchiectomy is medically necessary to treat Levy's GD. Although Levy
contends that an orchiectomy has been mandated by her endocrinologist, the medical records
reveal that in November 2016, the endocrinologist made no determination whether Levy should
have an orchiectomy, only that she should be referred to a urologist for an evaluation for that
procedure, and that in April 2017, the endocrinologist determined that there was no medical
contraindication

to an orchiectomy-meaning

procedure could not be performed-not

that there was no medical reason that such a

that such a procedure was medically necessary.

The

medical records also reveal that Levy's psychologist, relying on literature about the appropriate
treatment of GD, has expressed concern that any irreversible surgical treatment at this juncture
would be premature, particularly in light of Levy's other, serious psychological diagnoses of
schizophrenia and psychosis.

As for Levy's hormone treatment, the medical records reveal that

15

the endocrinologist

reduced her estradiol dose because Levy's estrogen levels were elevated

beyond the acceptable range.
In light of this uncontradicted evidence, Levy cannot plausibly assert that in not yet
having arranged for Levy to receive sex-reassignment

surgery, Defendants have subjectively

known of and disregarded an excessive risk to Levy's health. See Jackson, 775 F.3d at 178.
Rather, the undisputed record evidence establishes that in pursuing these paths, Defendants have
diligently

pursued

recommendation

treatment

of Levy's

for Levy's

GD and have acted

medical professionals.

cautioned against sex-reassignment

in accordance

with

the

Indeed, her treating psychologist

has

surgery at this point because of Levy's

other serious

psychological conditions, the relatively short time she has been on hormone therapy, and the
possibility that the surgery will not alleviate her feelings of dysmorphia. Although Levy may
disagree with the current pace of her GD treatment, a disagreement between an inmate and a
physician over proper medical care is not sufficient to show deliberate indifference.

See

id; Wright v. Collins, 766 Fold 841, 849 (4th Cir. 1985). Levy's proposed amendment to her
Complaint would thus be futile. Levy's Motion to Amend is therefore denied.
III.

Motion for a Preliminary Injunction
In her Motion for a Preliminary Injunction, Levy asserts that Defendants are purposefully

denying or delaying her sex-reassignment surgery and thereby acting with deliberate indifference
to her serious medical needs. She asks that the Court enjoin them from any continued denial or
delay.
To obtain a preliminary injunction, moving parties must establish that (1) they are likely
to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the

16

public interest.

Winter v. Nat. Res. De! Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v.

Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). A moving party must satisfy each
requirement as articulated.

Real Truth About Obama, Inc. v. Fed. Election Comm 'n, 575 F.3d

342, 347 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).

Because a

preliminary injunction is "an extraordinary remedy," it "may only be awarded upon a clear
showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22.
Here, Levy's Motion fails at the first hurdle. For the reasons discussed above, Levy is
not likely to succeed on her claim that Defendants are denying or delaying her sex-reassignment
surgery as a result of deliberate indifference to her serious medical needs and in violation of her
Eighth Amendment rights.4 The Motion for a Preliminary Injunction is therefore denied.

IV.

Motions for Summary Judgment
Defendants have renewed their Motions for Summary Judgment, asserting that because

Levy is receiving the hormone therapy and psychotherapy she originally sought, this case no
longer presents any controversy for the Court to adjudicate.

The Correctional Defendants also

argue that Levy's allegations that she was denied certain commissary items must fail because
Levy was required, but failed, to exhaust her claims through the prison grievance process. In her
Motion for Partial Summary Judgment, Levy again argues that she is entitled to, but has not

In her Motion for a Preliminary Injunction, Levy makes the brief assertion that Defendants are
also violating her rights under the Equal Protection Clause of the United States Constitution "by
treating her differently from similarly situated cisgender inmates seeking vaginoplasty." Mot.
Prelim. Inj. at 5, ECF No. 111. Levy has neither pleaded an equal protection claim relating to
her GD treatment nor sought to amend her Complaint to include such a claim. Because such a
claim is not before the Court, Levy necessarily cannot demonstrate that she is likely to succeed
on its merits. Even if such a claim were properly before the Court, Levy's Motion would still not
succeed. Other than the bare assertion in the motion, Levy has made no allegations and provided
no evidence that suggests that her GD treatment in any way differs from the GD treatment
afforded to other inmates.
4

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received, sex-reassignment surgery, and that she has been unable to order a hair relaxer kit and
eyeliner

from the commissary.

Levy reiterates

those complaints

in her Opposition

to

Defendants' Motions.
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light
most favorable to the nonmoving party, with all justifiable

inferences drawn in its favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts
supported in the record, not simply assertions in the pleadings.

Felty v. Grave Humphreys Co.,

818 F.2d 1126, 1128 (4th Cir. 1987). The nonmoving party has the burden to show a genuine
dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986).

"A material fact is one that might affect the outcome of the suit under the

governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting
Anderson, 477 U.S. at 248). A dispute of material fact is only "genuine" if sufficient evidence
favoring the nonmoving party exists for the trier of fact to return a verdict for that party.
Anderson, 477 U.S. at 248-49.
A.

Hormone Therapy and Psychotherapy

Defendants argue that because in her original Complaint Levy sought injunctive relief
requiring that she receive hormone therapy and psychotherapy, and she is now receiving both,
that claim is now moot.

Article III of the Constitution limits the judicial power to "actual,

ongoing cases or controversies."

Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)

(citations omitted). A case becomes moot when the issues presented are "no longer 'live' or the

18

parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M, 529 U.S ..
277,287 (2000) (quoting Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). "A defendant
claiming that its voluntary compliance moots a case bears a formidable burden of showing that it
is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs. (TOC), Inc., 528 U.S. 167, 190 (2000).
Defendants have made this showing.
It is undisputed that DPSCS policy has required that an inmate with a pre-incarceration
GD diagnosis be provided treatment, and Defendants have acknowledged that they initially
failed to provide that treatment to Levy. because they had no record that she had been diagnosed
with the condition.

Although Defendants initiated that treatment in January 2016 and sought

dismissal of the case as moot, the Court declined to do so and instead required Defendants,
beginning in March 2016, to report on their treatment of Levy for a monitoring period of six
months.

During that period and in the ensuing months, Defendants assert, and the medical

records substantiate, that they have consistently provided Levy with GD treatment.

Although

Levy complains about the recent reduction in her estradiol dose, Levy does not dispute that from
early 2016 to the present,
psychotherapy,

she has received

consistent

hormone

the two requests for relief she made in her Complaint.

therapy

and regular

The uncontradicted

medical records further establish that the recent reduction in Levy's estradiol dose was made at
the express recommendation

of Levy's endocrinologist and in response to Levy's unacceptably

elevated estrogen levels.
Because Defendants

concede that they were and continue to be bound to provide

treatment to Levy under DPSCS policy, this case does not present the issue courts have found
worrisome in voluntary cessation cases:

that a defendant has only temporarily

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ceased an

unlawful practice or changed a policy so as to evade judicial review. See Porter v. Clarke, 852
F.3d 358, 364 (4th Cir. 2017).

Rather, here, Defendants acknowledge that their own policy

compels the result that Levy seeks.

Indeed, while in Porter the defendants "repeatedly ...

refused to rule out a return to the challenged policies," 852 F.3d at 360, DPSCS has actually
adopted a more robust policy, issued during the pendency of this case in August 2016, that
extends GD treatment to inmates diagnosed since arriving in a DPSCS facility and establishes
more formal guidelines and procedures for providing such treatment.
Defendants'

That fact, coupled with

18-month history, during and after the Court's monitoring period, of implementing

the requested hormone therapy and psychotherapy, firmly establishes that Levy's prior denial of
treatment "could not reasonably be expected to recur." See id. at 364. Levy makes no argument
to the contrary, instead focusing her opposition on additional treatments she wishes to receive,
none of which were pleaded in her Complaint and none of which have been deemed medically
necessary by her treating physicians.

Because Defendants concede that their own policy

obligates them to provide Levy treatment, and because Levy has now been receiving for over 18
months the hormone therapy and psychotherapy

treatment she originally sought, the Court

concludes that this case presents no active controversy for adjudication
Defendants'

Motions for Summary Judgment are granted.

and is thus moot.

In tum, Levy's Motion for Partial

Summary Judgment is denied as to Defendants' alleged failure to provide GD treatment.
B.

Purchase of Commissary Items

In her Motion for Partial Summary Judgment, Levy alleges that her commissary order for
a hair relaxer kit and eyeliner was rejected. In the body of her original Complaint, Levy nowhere
asserts that she has been prevented from purchasing women's items from the commissary or that
she seeks injunctive or other relief related to any such claim. Nor was Levy's ability to purchase

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such items before this Court on the prior Motions for Summary Judgment.

The Court has thus

had no occasion to determine whether Levy's pleaded claim extends to allegations about her
commissary purchases.

Although Levy made no mention of commissary items in the four

comers of her Complaint, she did attach to her Complaint her March 2014 ARP in which she
asked to be allowed to wear female undergarments, to purchase makeup, and to shave three times
a week. See generally Fed. R. Civ. P. 10(c) ("A copy ofa written instrument that is an exhibit to
a pleading is a part of the pleading for all purposes.").

Because Levy proceeds pro se, her

Complaint should be "liberally construed" and "held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Even assuming, pursuant to this standard, that Levy has pleaded a claim relating to her
inability to purchase women's grooming products from the NBCI commissary, that claim would
fail because, as the Correctional Defendants contend, Levy did not exhaust administrative
remedies, as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-71,
as amended, 42 U.S.C. ~ 1997e(a).

Exhaustion of administrative remedies is an affirmative

defense, which is most properly considered on a motion for summary judgment.

See Jones v.

Bock, 549 U.S. 199,216 (2007).
The PLRA provides: "No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted."
U.S.C. ~ 1997e(a).

Exhaustion is mandatory.

42

Ross v. Blake, 136 S.Ct. 1850, 1857 (2016);

Jones, 549 U.S. at 219. Courts therefore may not excuse an inmate's failure to exhaust. Ross,
136 S. Ct. at 1856. This exhaustion requirement serves a valuable function by "allowing a prison
to address complaints about the program it administers before being subjected to suit, reducing

21

litigation to the extent complaints are satisfactorily resolved, and improving litigation that does
occur by leading to the preparation of a useful record." Jones, 549 U.S. at 219. Inmates must
exhaust administrative remedies before they bring any "suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force or
some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
An inmate does not exhaust administrative remedies "simply by failing to follow the
required steps so that remedies that once were available to him no longer are."

Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
Thus, an inmate must complete the prison's internal appeals process, if possible, before bringing
suit. Chase v. Peay, 286 F. Supp. 2d 523,529-30 (D. Md. 2003), aff'd, 98 F. App'x 253 (4th Cir.
2004).
One way for inmates in Maryland state prisons to present their complaints to prison
officials is through the ARP.

The ARP has three steps: an initial request for relief from the

warden, an appeal of the warden's denial to the Commissioner of Corrections, and an appeal of
the

Commissioner's

denial

Regs. 12.07.01.04(B)(9)(a);

to

the

Inmate

Grievance

Office

("IGO").

Md.

Code

Ross, 136 S.Ct. at 1860. Inmates may seek judicial review of the

IGO's final determinations in a Maryland Circuit Court. Md. Code Ann., Corr. Servs.,

S

10-210

(2008).
Here, as Levy does not dispute, she did not complete all of the steps of the grievance
process.

On March 24, 2014, Levy filed an ARP seeking to be permitted to purchase women's

items from the commissary.

When that ARP was denied, she appealed to the IGO. The IGO

responded to that appeal on December 8, 2014, instructing Levy to provide medical records of
her GD diagnosis.

However, on November 20, 2014, even before receiving that response from

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the IGO, Levy filed this suit. Thus, even if Levy's allegation that she has not been permitted to
purchase a hair relaxer kit or eyeliner can be construed as part of her request in her ARP to be
allowed to purchase female commissary items, that grievance was not exhausted and therefore
cannot proceed in this Court. Alternatively, if considered to be a new grievance based on events
occurring after the onset of this case, Levy has not been given permission to amend her
Complaint to include those allegations, and there is no evidence that she has exhausted such a
grievance through the ARP process.

Accordingly, the Correctional Defendants will be granted

summary judgment on Levy's commissary claims.
CONCLUSION
For the foregoing reasons, Levy's Motion to Appoint Counsel is DENIED, her Motion to
Amend the Complaint is DENIED, her Motion for a Preliminary Injunction is DENIED, and her
Motion for Partial Summary Judgment is DENIED.

Wexford's Motion for Summary Judgment

is GRANTED, and the Correctional Defendants' Motion for Summary Judgment is GRANTED.
A separate Order shall issue.

Date:

August 9,2017
THEODORE D. CHUA
United States District Ju

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