Haverkamp v. Penn et al

Filing 123

ORDER entered: The Court DECLINES TO ADOPT the Memorandumand Recommendation 99 . After considering the objections, 102, 111, 112,114, 116, 118, reviewing the record and the applicable law the Court herebyDENIES Defendants' motion to dismiss 90 . (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DAVID ALLEN HAVERKAMP; aka
BOBBIE LEE HAVERKAMP,
Plaintiff,
VS.
JOSEPH PENN, et al,
Defendants.

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April 03, 2020
David J. Bradley, Clerk

CIVIL NO. 2:17-CV-18

ORDER
The Court is in receipt of the Magistrate Judge’s Memorandum and
Recommendation to Grant Defendants’ Motion to Dismiss (“M&R”), Dkt. No. 99.
The Court is in receipt of the Amended Order Granting Defendants’ Motion and
Amended Memorandum and Recommendation, Dkt. No. 106. The Court is also in
receipt of Plaintiff Bobbie Lee Haverkamp’s (aka David Allen Haverkamp)
(“Haverkamp”) objections to the (“M&R”), Dkt. Nos. 102, 111, 112, 114, 116, 118.
For the following reasons, the Court DECLINES TO ADOPT the M&R, Dkt. No.
99.
I.

M&R
Haverkamp is an inmate incarcerated at the Stiles Unit of the Texas

Department of Criminal Justice. Dkt. No. 62. Haverkamp complains she has been
discriminated against because she has been diagnosed with gender identity
disorder, but officials are refusing to provide gender reassignment surgery. Id. She
raises Equal Protection claims regarding the denial of surgery. Id. at 21. She also
raises Equal Protection claims regarding a denial of access to medication and other
items she was prescribed for the treatment of her gender-identity disorder. Id. at
15-17, 34-36. The M&R recommends granting Defendants motion to dismiss. Dkt.
No. 99. The M&R states that the reasoning of two unreported District Court cases
Williams v. Kelly, and Campbell v. Kallas serve to dispense with Haverkamp’s

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claims. Williams v. Kelly No. 17-12993, 2018 WL 4403381 (E.D. La. Aug. 27, 2018);
Campbell v. Kallas, No. 16-cv-261, 2018 WL 2089351 (W.D. Wis. May 4, 2018),
overruled on other grounds, Campbell v. Kallas, 936 F.3d 536 (7th Cir. 2019). The
Magistrate Judge states that the common thread to all of Haverkamp’s claims is the
allegation that Defendants treat cisgender of non-transgender women more
favorable than transgender women. Dkt. No. 99 at 14. “In applying the reasoning
set forth in Williams and Campbell, however, the undersigned finds that Plaintiff is
not similarly situated to cisgender female inmates. Plaintiff as a transgender
female seeks different types of medical procedures and therapy compared to
procedures and related therapy for cisgender female inmates.” Id. The Court
DECLINES TO ADOPT this recommendation.
The Fifth Circuit has made clear that Equal Protection’s “similarly situated”
element is not a one-size-fits-all analysis. Lindquist v. City of Pasadena Texas, 669
F.3d 225, 233 (5th Cir. 2012). “The legal requirement that a class-of-one plaintiff's
comparators be ‘similarly situated’ is not a requirement susceptible to rigid,
mechanical application—'[t]here is no precise formula to determine whether an
individual is similarly situated to comparators.’” Id. “In short, the inquiry is casespecific and requires us to consider ‘the full variety of factors that an objectively
reasonable ... decisionmaker would have found relevant in making the challenged
decision.’” Id. Defendants’ motion to dismiss does not perform a case-specific
similarly-situated analysis and one is not present in the M&R. See Dkt. Nos. 90, 99.
A review of Haverkamp’s complaint demonstrates the underlying facts are different
than those in the unreported District Court cases Williams and Campbell. See Dkt.
No. 62; Williams, 12993, 2018 WL 4403381 at *3; Campbell, 2018 WL 2089351.
Haverkamp states that she received treatment for gender dysphoria and was
“chemically castrated, by the defendants.” Dkt. No. 24.
An action may be dismissed for failure to state a claim when the complaint does
not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A claim has facial plausibility when the plaintiff pleads factual content that
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allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 678. The complaint must be liberally
construed in favor of the plaintiff and assume the truth of all pleaded facts. Oliver v.
Scott, 276 F.3d 736, 740 (5th Cir. 2002). Pro se complaints are also held to a less
stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972).
Reading the complaint liberally, Haverkamp alleges that Defendants helped her
undergo gender transition, including chemical castration, making her similarly
situated to cis-gendered female inmates and resulting in a violation of the Equal
Protection clause when her surgery request was denied. See Dkt. No. 62. Assuming
the truth of the pleaded facts, such a claim has facial plausibility, is more than
labels and conclusions, and has not been shown to be implausible by law or
reasoning cited by the Defendants. See Dkt. No. 90;

Iqbal, 556 U.S. at 678;

Twombly, 550 U.S. 544; Oliver, 276 F.3d at 740; Haines, 404 U.S. 520. Accordingly,
the Court DENIES Defendants’ motion to dismiss Haverkamp’s Equal Protection
claims. Because the Court is retaining the Equal Protection claims, the Court also
exercises supplemental jurisdiction over Haverkamp’s state law contract claim and
DECLINES TO ADOPT the M&R’s recommendation regarding the contract
claims.
II.

CONCLUSION
For the foregoing reasons, the Court DECLINES TO ADOPT the Memorandum

and Recommendation, Dkt. No. 99. After considering the objections, 102, 111, 112,
114, 116, 118, reviewing the record and the applicable law the Court hereby
DENIES Defendants’ motion to dismiss, Dkt. No. 90.
SIGNED this 2nd day of April, 2020.
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Hilda Tagle
Senior United States District Judge

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