Haverkamp v. Penn et al

Filing 212

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: denying 152 Joint MOTION to Stay , 201 Memorandum and Recommendations, denying 195 MOTION To Dismiss Defendants, denying 158 Joint MOTION to Dismiss 62 Amended Complaint/Counterclaim/Crossclaim etc., Pursuant to Fed. R. Civ. P. 12(b)(1) & 12(b)(6) (Signed by Judge Hilda G Tagle) Parties notified.(mperez, 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
HAVERKAMP,
Plaintiffs,
VS.
JOSEPH PENN, et al,
Defendants.

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September 23, 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 (“M&R”). Dkt. No. 201. The Court is also in receipt of Defendants’
Objections to the M&R. Dkt. No. 207.
I.

Background

Bobbie Lee Haverkamp (aka David Allen Haverkamp) (“Haverkamp”) is
incarcerated in Beaumont, Texas with the Texas Department of Criminal Justice
(“TDCJ”) and alleges a violation of her constitutional rights based on TDCJ’s failure
to provide adequate medical care for her gender dysphoria/gender identity disorder.
Dkt. No. 62. Haverkamp’s claims are based on an equal protection legal theory, and
she seeks an injunction ordering Defendants to provide gender reassignment
surgery and a declaratory judgment affirming her rights to necessary treatment
and care. Id. On April 3, 2020 this Court denied Defendants’ motion to dismiss. Dkt.
No. 123. Defendants F. Parker Hudson (“Hudson”), Cynthia Jumper (“Jumper”),
Philip

Keiser

(“Keiser”)

and

Lannette

Linthicum

(“Linthicum”)

filed

an

interlocutory appeal from the denial of the motion to dismiss. Dkt. No. 144. The
Fifth Circuit declined to stay the district court proceeding pending appeal on June
19, 2020. David Haverkamp v. Joseph Penn, et al, 20-40337, Document
00515459616.

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Defendants Linthicum, Jumper, Hudson and Keiser move to stay this case
pending appeal. Dkt. No. 152. Defendants Rodney Burrow (“Burrow”), Preston
Johnson, Jr. (“Johnson”), John Burruss, (“Burruss”), Erin Wyrick (“Wyrick”), Jeffrey
Beeson (“Beeson”) and Dee Budgewater (“Budgewater”) and Keiser have filed a
motion to dismiss for lack of jurisdiction and failure to state a claim. Dkt. No. 158.
Haverkamp has also filed a motion to dismiss defendants based on representations
that certain defendants could not provide injunctive relief. Dkt. No. 195.
II.

Recommendations and Objections

The Magistrate Judge recommends:


Denying Defendants’ motion to stay pending appeal because discovery
has already been stayed and Defendants may renew their motion when
discovery deadlines are set. Dkt. No. 201 at 19-20.



Denying Defendants’ motion to dismiss for lack of jurisdiction and
failure to state a claim because:
o Defendants have not provided a case-specific inquiry that
demonstrates the inadequacy of Haverkamp’s equal protection
claim. Id. at 15.
o It is unclear which Defendants can provide Haverkamp with her
requested injunctive relief. Id. at 11.
o Haverkamp has stated an equal protection claim and the Ex
parte Young exception to Eleventh Amendment immunity
applies to her suit. Id. at 16.



Denying Haverkamps’s motion to dismiss Defendants because the
Defendants have provided vague and conflicting assertions as to the
identity of the proper defendants. Id. at 12.

Defendants object to the M&R on numerous grounds including:
1. The exercise of Article III jurisdiction is improper against some Defendants.
2. Members of the Correctional Managed Healthcare Committee (“CMHCC”) do
not have capacity to sue or be sued.
3. Plaintiff has not carried her burden to establish subject matter jurisdiction
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4. The Defendants provide a case-specific analysis that shows Haverkamp fails
to state an equal protection claim.
5. Deference should be given on equal protection based penological issues.
6. The Ex parte Young exception to Eleventh Amendment Immunity does not
apply.
7. The Prison Litigation Reform Act (“PLRA”) limits the Court’s ability to
fashion injunctive relief.
8. Plaintiff’s contract claim should be dismissed for failure to state a claim.
9. A stay should be granted in this case.
III.

Analysis

The Court reviews non-frivolous objections de novo and may accept, reject, or
modify the findings and recommendations of a magistrate judge. 28 U.S.C. §
636(b)(1)(C).
a. Objections 1, 2, 3
Defendants contend that members of the CMHCC have no authority to order
or obtain funding for a particular treatment and even when it adopts a policy the
CMHCC cannot compel the TDCJ to abide by it. Dkt. No. 207 at 2-3. Defendants
argue therefore it is an improper exercise of Article III jurisdiction to hear Plaintiffs
against defendants who cannot provide relief. Defendants’ principal cases for this
proposition are Okpalobi v Foster, 244 F.3d 405, 426-427 (5th Cir. 2001) (en banc)
and Summers v. Earth Island Ins., 555 U.S. 488, 493 (2009).
Okpalobi indicates a plaintiff should be able to state 1) how defendants play a
causal role in plaintiff’s injury and 2) how defendants can redress the injury.
Okpalobi, 244 F.3d at 426-27. Similarly, Summers states it must be likely a
favorable judicial decision will prevent or redress the injury. Summers, 555 U.S. at
493.
Here, the Magistrate Judge indicates she arrived at her decision to not
dismiss defendants due to factual uncertainty about the roles and powers of specific
members of the CMHCC, their causal role in Haverkamp’s alleged injury and
whether they can redress that injury. Dkt. No. 201 at 12. The Magistrate Judge
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stated that Haverkamp plausibly alleged how CMHCC members may directly
impact her treatment plan, and instead of clarifying the issue Defendants “provided
vague and sometimes conflicting guidance as to the identity of the proper
defendants.” Dkt. No. 201 at 12-13. The Magistrate Judge does not conclude the
CMHCC can sue and be sued but instead concludes that she “is reluctant at this
time to recommend dismissal of any defendants named as CMHCC defendants, as
these individuals play a role in determining treatment policy and may or may not
otherwise be employed with the UTMB or any other medical division servicing the
TDCJ.” Dkt. No. 201 at 12-13.
Contrary to Okpalobi, where the Governor was obviously powerless to redress
injuries under a new law, Defendants have not shown they have no causal role or
power to redress Haverkamp’s alleged harm. See Okpalobi, 244 F.3d 426. The
Magistrate Judge identified plausible allegations of causation and redressability
and then determined there was an unclear factual issue inappropriate for resolution
at this stage of the litigation. Dkt. No. 201 at 12-13; See Okpalobi, 244 F.3d at 426;
Summers, 555 U.S. at 493. Accordingly, the Court OVERRULES objections 1, 2,
and 3.
b. Objections 4, 5, 6
Defendants argue Haverkamp has failed to state an equal protection claim.
This Court previously ruled that Haverkamp previously stated a plausible equal
protection claim upon which relief could be granted and the Court will not revisit its
prior decision. Dkt. No 123; see Coliseum Square Ass'n, Inc. v. Jackson, 465 F.3d
215, 246 (5th Cir. 2006) (stating the law of the case doctrine and a court’s general
refusal to reopen what has been decided). When the Court held Haverkamp stated a
plausible equal protection claim, it also identified the elements she alleged that met
the Ex Parte Young exception to Eleventh Amendment immunity: 1) she stated a
valid claim for violation of federal law against a state official responsible for
enforcing the law at issue; 2) she seeks only prospective injunctive relief; and 3) the
allegations address a continuing violation of federal law in the denial of medical
treatment for an ongoing condition. See Dkt. No. 123; Seminole Tribe of Florida v.
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Florida, 517 U.S. 44, 73 (1996) Accordingly, the Court OVERRULES objections 4,
5, and 6.
c. Objection 7
Defendants contend that Haverkamp seeks a remedy beyond the scope of the
PLRA. Dkt. No. 207 at 12. Defendants invite the Court to review facts about the
frequency of sexual reassignment surgery in TDCJ, the effects of sexual
reassignment surgery on “public safety and the criminal justice system.” Dkt. No.
207 at 12-13. Defendants object because the Magistrate Judge did not convert the
motion to a summary judgment motion or attempt to look behind the pleadings. Id.
The Court finds no error in failing to perform a discretionary conversion of a 12(b)
motion into a summary judgment motion. The Court OVERRULES objection 7.
d. Objection 8
Defendants object that the M&R did not recommend dismissal of
Haverkamp’s state law contract claim on the grounds that she fails to identify a
contract. Dkt. No. 207 at 14. Defendants claim in a single paragraph that CMHC
Policy G-51.11 is a policy which “is not a contract with TDCJ inmates” but provide
no other support for this conclusion. Dkt. No. 207 at 13-14. Haverkamp’s amended
complaint effectively argues both contractual breach and detrimental reliance. Dkt.
No. 62 at 27. Defendants cite no law or fact that demonstrates Haverkamp has
failed to state a claim upon which relief can be granted. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The Court OVERRULES objection 8.
e. Objection 9
Defendants object that the M&R did not recommend a stay. Dkt. No. 207 at
14-15. Defendants state discovery will be burdensome but cite no case supporting
their objection. Id. The Magistrate Judge recommended denial without prejudice to
renew the motion to stay. The Court finds no error in the M&R regarding the stay
and OVERRULES objection 9.
IV.

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Conclusion

After review of the law, briefs and relevant filings the Court ADOPTS the
M&R in its entirety, Dkt. No. 201, and OVERRULES Defendants’ objections, Dkt.
No. 207. The Court hereby:
 DENIES Defendants’ Motion to Dismiss, Dkt. No. 158.
 DENIES Defendants’ Motion to Stay, Dkt. No. 152.
 DENIES Plaintiffs Motion to Dismiss Defendants, Dkt. No. 195.

SIGNED this 23rd day of September, 2020.
___________________________________
Hilda Tagle
Senior United States District Judge

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