De'Lonta v. Johnson, et al.

Filing 1

COMPLAINT against W. P. Rogers, Gary L. Bass, Merideth R. Carey, C. Davis, Larry Edmonds, Robin L. Hulbert, Gene Johnson, Lisa Lang, Fred Schilling, Anthony Scott, Toney, Gerlad K. Washington, filed by De'Lonta Ophelia. (Attachments: # 1 Report Prisoner Data, # 2 Envelope, # 3 Letter, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D)(jwil, ) (Main Document 1 replaced on 3/4/2011) (jwil, ). (Additional attachment(s) added on 3/4/2011: # 8 Exhibit) (jwil, ). (Main Document 1 replaced on 3/4/2011) (jwil, ). [Transferred from Virginia Eastern on 3/18/2011.]

^£1ln(X)

Uj\ FEB - 4 ?01 i
IN THE UNITED STATES DISTRICT COURT

FOR THE EAST***/ DISTRICT OF VTRGbSa
COMPLAINT UNDER CIVIL RIGHTS ACT 42 U.S.C. §1983
Action Number /://s t/ / ? 9

(To be supplied by the Clerk, U.S. District
Court)

Please fill out this complaint form completely The court nP^ *. • <•

order to assure that your complaint is processed asSv

formation requested in

are addressed. Pleaseprince le^Wy or typl *****"P°SSible «* ** aI1 *»*claans
I. PARTIES

A. Piaintiir:
1; a. Ophelia
(name)

De'Lonta

b.

1014174

(inmate number)
c- Buckingham Corr. r+r.
(address)

.

P.O. "Boy Lini n11L

,23936

PlaintiffMUST keep the Clerk of Court notified of
dismissed.
B.

caCQanges; tins action may-be

Defendants):

Plaintiffis advised that only persons actine unrfer ^'i

under section 1983. TheCoiimionwealmofVireSTrnW 0fs!ftelawarePr°P^ defendants
Private parties such as attorneys and other inrnaWmav ZT* "?*?* EleVenth A"****,

addition, liability under section 1983 r^^^S^T^ T^SeCtion 1983' *

harm. Normally, tie Directorofthe e5SS2E* ****** that caused you
liable under section 1983justbecause ^S^S2ri,TOtaM and sheriff* « not
These persons are liable onlyiftheywerep
erS^SdkS*?^ y0Ur^

addition, prisons, jails, and departments within an i££Z^£persons dePriva^n. In
""^ under section 1983.
msniution are not
I __

FEB - 72011 M
CutHK U.S. DISTRICT COURT
RICHMOND. VA

1. a. See Attachment

(name)

(title/job description)

(address)

2. a.

(name)

•-

b.

(title/job description)

(address)

3. a.
b.

(name)

(title/job description)
(address)

•: Ifmere are additional defendants Dleasp iict th«™ «

all identifying information for each defenLrnamed

*^^ ^ °fpapen P^'de
'H ,

;Plamn^MTJBTpfdvldeanM(3ressfo><lpfw^aw\- • =,

complaint. Ifthe plaintiffdoes not pTvfde Z227°°??****** Person may be
^to se*e*e
dismissed as aparty to this action.
*** adefendant> *at
In addition, plaintiffMUST provide acopy ofthe comnlet^
attachments for EACH defendant named.
^ completed complaint and any
n. PREVIOUS LAWSUITS

A, Have you ever begun other lawsuits in any state or federal court relating to your

imprisonment? Yes [Xj No [ j

B. IfyouranswertoAisYES: You must descrih* «m„ i«

*

-.

,

closed, fa fl>«sp.ce below. [IftarekSSEZEZ?' "^"^^pmdi*«
on

1. Parties to previous lawsuitPlaintiff(s)

Ophelia

De'Lnnt-a

Defendant (s) Ronald Angelone, et al (1999)
_

Gene Johnson, et al (2005) & 2010

2. Court [iffederal court, name the district; ifstate court, name the county]Eastern District

3. Date lawsuit filed: 1999 &2005 &2010 respectfully

4" P^ketnumber: 1999 - (nnk) - cite: 330 F.?H 630

2005 - Action IJu- liU/cv^; 2011) - Action No. UWcvHST

5. Name ofJudge to whom case was.assigned:

l:10cv838 (TSE) JFA)

1999 case was assigned to .Judge Turk -2005 r^..,.^ to

•6 ™ff'hpT"case2Q1Q ; l:09cvll67 assigned to Judge Ellis
- dismissed? ADDealprf? Te ,♦ «^ii j- « „o. Disposition [Was

granted, ifany?]:

Appealed? Is it still pending? What reliefwas:p .
t

all cases reached settlement.- 1:10cv838<TSE) JFA)-was dismissed.
HI. GRIEVANCE PROCEDURE

l;09cvll67 is. still pending

A. A^what institution did the events concerning yourcurrent complaint take place? _
Buckingham Corr. Ctr., Powhatan

B. Does the institution listed inAhave agrievance procedure? Yes [X] No []
C. If your answer to B is YES:

1. Did you file agrievance based on this complaint? Yes [y] No [1
2. If so, where and when:

•3. What was the result?

Buckingham Corr. Ctr.

expired filing period, and repetitive

AJDidyQu.appeaI?_Yes.[.yJ.No-E-l...

-%

5. Result of appeal:
•
D.

uphold
see exhibit D - Dl

If there

a mere was no prison grievance
inctJh,^ j •.,
prison authorities? Yes [ ]No [procedure in thP mstitution, did you complain to the
]

Ifyour answer is YES: What steps did you take?
E.

IV.

Ifyou answer is NO, explain why you did not c„w*

authorities.

.

,

WQy y°u aid not submit your complaint to the prison

STATEMENT OF CLAIM:

,:• [State here as briefly as possible the facts nf™«». „„

tn

involved and how youw
Jhanned byTeltto^aT™, ^^how eaoh deftd»»*i»
persons involved, dates and places oW^jJS ^ *?""""* °ftoy"***
allege were violated, tat do not giveX,™ m"y,CIt<!°?>lst""tional amendments yo*

/Ifyoumtendtoallegrse^toXa^r^0^^"^'63separateparagraph. (Attach addiSE££££j)7 *?"*"*^ " V
a

See Attachment

;.'

;,
'•—"

:

'4s-

V. RELIEF

I understand that in asection 1983 action, the Court cmrint ,.w„

custody or restore good time. Iunderstand hhouM fil c^gemy sentence, release me from

desire, this typeofrelief.

JS^^^*
^™for a"*ofhabeas corpusifI

The plaintiffwants the Court to: [check the remedies you seek]
award money damages in the amount ofS

See Attachment

•_ grant injunctive reliefby

Other

'

VI. PLACES OF INCARCERATION

Please list the institutions at which you were incarcerated Hn™B a i *
,

Buckingham Corr. Ctr.

y . . '

-&-•

VII. CONSENT

.••'•••'.-'.'.•'

• '?•;

right, pursuant to 28 U.S.C. §636(c), to have aUS M^™f* V? PaT&eS ** advised of**

appedto.meU.S.Cou.t.ofAppJsSeS

Do you consent to proceed before aUS. Magistrate Jud«?e- v*= r i^ V, „

consent at any time; however, an earlyconsentis pS«S^ " WNd[ ^W .
Vm. SIGNATURE

Ifthere is more than onejpjamtiff, each plaintiffmust sign for himselfofherself
Signed this lgth day of JfiuuujW
Plaintiff

701^

yfTJ^t/Ja Dd/rtfy

IN FORMA PAUPERIS AFFIDAVIT

Ihereby apply for leave to proceed with this complaint without prepayment offees or
1.

Iam the plaintiffin this complaint, and Ibelieve that Iam entitled to redress,

liableto prepaythe costs ofsaid action orgive security therefore, because:

3.

^"^^^coMto^^tolo****^
(Write "none" above it you have nothing; otherwise, list" your assets)
. . '

SignatureofPlaintiff

"I declare under penalty ofperjury that the foregoing is true and correct.":
Executed on this 19thday-0f •rTanuiilhu.

201<|

Sipature-ofP4aintiff

^

IT IS NO LONGER NECESSARYTO HAVE YOURPETITION NOTARIZED.
CERTIFICATE

Ihereby certify that the petitioner herein has the sum of$

too his credit at the penal institution where he is confined. IfurL certifv that A. 0"»CC0UDt

hkewise has the following suretiesto his creditaccordingto SSSSSSSKSS-l

Authorized Officer of Penal
Institution

IN THE
UNITED STATES DISTRICT COURT
FOR THE

EASTERN DISTRICT OF VIRGINIA
Alexandria Division

OPHELIA AZRIEL DE'LONTA,
Plaintiff,

)
)

v.

GENE JOHNSON, Director,
Virginia Department of
Corrections, et al.,
Defendants.

)

Civil Action No. I'-f/rx/ J.19 T^htt

)
)
)

NATURE OF THIS ACTION

1.

This is a civil rights action under U.S.C. § 1983 arising

out of the deliberately indifferent denial of adequate medical
treatment, alleging cruel and unusual punishment and denial of

due process, in violation of the Eighth and Fourteenth Amendments
to the Constitution of the United States.

2.

Plaintiff Ophelia Azriel De'lonta ("De'lonta") is in the

custody of the Virginia Department of Corrections ("VADOC") under
the control of defendant Gene Johnson ("Johnson").

3.

De'lonta has been diagnosed with Gender Identity Disorder

("GID"), a condition which in her case has created a serious need
for medical treatment.

PARTIES

4.

At all times relevant hereto, plaintiff Ophelia Azriel

De'lonta has been a prisoner in the custody of the Virginia
Department of Corrections.

5.

Defendant Gene Johnson was, at all times relevant hereto,

Director of the Virginia Department of Corrections.

6.

Defendant Fred Schilling was, at all times relevant

hereto, the Director of Health Services for VADOC and final policy
maker.

7.

Defendant Meredith R. Carey was, at all times relevant

hereto, the Chief Psychiatrist for VADOC, primary caregiver for
De'lonta, and final policy maker.

8.

Defendant Gary L. Bass was, at all times relevant hereto,

the Chief of Operations for VADOC and final policy maker.

9.

Defendant W.P. Rogers was, at all times relevant hereto,

Assistant Deputy Director of Operations for VADOC and final
policy maker.

10.

Defendant Gerald K. Washington was, at all times relevant

hereto, Regional Director Central Regional Office for VADOC and
final policy maker.

11.

Defendant Eddie Pearson was, at all times relevant hereto,

the Warden of Powhatan Correctional Center of VADOC and is a
final policy maker.

12.

Defendant Anthony Scott was, at all times relevant

hereto, Chief of Security of Powhatan Correctional Center and a
final policy maker.

13.

Defendant Robin L. Hulbert, PhD, was, at all times

relevant hereto, the Mental Health Director for VADOC and final
policy maker.

14.

Defendant Larry Edmonds was, at all times relevant hereto,

the warden of Buckingham Correctional Center of VADOC and is a
final policy maker.

15.

Defendant C. Davis was, at all times relevant hereto,

Major Chief of Security of Buckingham Correctional Center.

Major

Davis was also a member of De'lonta*s treatment team, of VADOC
and is a final policy maker.

16.

Defendant Lisa Lang was, at all times relevant hereto,

a staff psychologist and a member of De'lonta's treatment team as

De'lonta's primary therapist.

17.

Defendant Toney was, at all times relevant hereto,

a counselor at Buckingham Correctional Center and a member of
De'lonta's treatment team.

18.

All defendants herein are sued in their individual and

official capacities.

JURISDICTION AND VENUE

19.

This court has jurisdiction over the claims presented

herein pursuant to 43 U.S.C. §§ 1331(a) and 1343.
20.

This court has supplemental jurisdiction over De'lonta's

state law tort claims pursuant to 28 U.S.C. § 1367.

STATEMENT OF FACTS

21.

Plaintiff Ophelia Azriel De'lonta is a pre-operative

transsexual female, who is serving a 73 year sentence with the

possibility of parole for bank robbery.

22.

De'lonta is also suffering from a severe form of a rare,

medically recognized major illness known as Gender Identity
Disorder ("GID").

23.

De'lonta has believed that she is actually a female who

has been cruelly trapped in a male's body ever since she was a
little girl.

24.

This belief has caused De'lonta to suffer constant mental

anguish and, at times, abuse.

25.

While incarcerated, it has also caused De'lonta, on

several occasions, to attempt to castrate herself.

26.

De'lonta has received hormone therapy for GID.

De'lonta's

treatment also consists of regular psychological counseling.

27.

The hormone treatment has resulted in various physical

changes to De'lonta's body, including enlargement of breasts,
decreased body hair and change of voice intonation.

28.

As a result of a civil action, 330 F.3d 630 (1999), and

according to the settlement thereof, the VADOC has provided, and
continue to provide, limited treatment.

That lawsuit culminated

in a settlement agreement which put Director Gene Johnson "on

notice that De'lonta has a serious medical need which is currently

not being properly treated." Therefore he has a responsibility
to respond reasonably to it.

29.

De'lonta has a serious medical need based on her

diagnosis of GID.

GID is defined as a major mental illness by

the Diagnostic and Statistical Manual, Fourth Edition Text

Revision ("DSM-IV-TR").

A transsexual, as the Supreme Court has

described it, suffers from:

"[a] rare psychiatric disorder in

which a person feels persistently uncomfortable about her or his

anatomical sex, and who typically seeks medical treatment,

including hormone therapy and surgery, to bring about a permanent
sex change."

30.

De'lonta has had GID since her earliest memories.

Substantial long-term history supports De'lonta's diagnosis with
VADOC.

31.

The agents and employees of VADOC, including defendants

herein and medical professionals under contract to the VADOC,
have acknowledged her diagnosis.

Nonetheless, defendants have

persistently denied De'lonta treatment.

32.

De'lonta persistently feels like a woman trapped in a

man's body.

The failure to provide medical treatment to her will

lead to serious bodily harm, untreated mental illness, depression,
self-mutilation, and suicide.

33.

The appropriate, generally accepted treatment for

De'lonta includes treatment pursuant to "Standards of Care"

published by the Harry Benjamin International Gender Dysphoria
Association, Inc.

The Standards of Care establish a "triadic

treatment sequence" for treatment. This triadic treatment sequence
is comprised of: (1) hormone therapy; (2) a real-life experience
of living as a member of the opposite sex; and, (3) sex
reassignment surgery.

34.

The Standards of Care state that cross-sex hormones are

"often medically necessary" for "properly selected adults with
gender identity disorders."

"They improve the quality of life

and limit the psychiatric comorbidity, which often accompanies
lack of treatment."

The administration of hormones to a transsexual

typically diminishes co-existing serious psychological problems
such as depression and suicidality.

explain:

As the Standards of Care

"Hormone therapy can provide significant comfort to

gender patients who do not wish to cross live or undergo surgery,

or who are unable to do so.

In some patients, hormone therapy

alone may provide sufficient symptomatic relief to abviate the
need for cross living or surgery."

35.

Pursuant to the Standards of Care, after at least one

year of a real-life experience, including hormones, sex reassignment
surgery is medically indicated in some individuals.

of Care state that:

The Standards

"Sex reassignment is effective and medically

indicated in severer GID in persons diagnosed with transsexualism
or profound GID.

Sex reassignment surgery, along with hormone

therapy and real-life experience, is a treatment that has proven
to be effective.

Such a therapeutic regimen, when prescribed or

recommended by qualified practitioners, is medically indicated

and medically necessary.

Sex reassignment is not "experimental",

"investigational", "elective", "cosmetic", or optional in any
meaningful sense.

It constitutes very effective and appropriate

treatment for transsexualism or profound GID.

36.

Mental health services are provided by VADOC as well

under contract with Dr. Codispoti, Gender Identity Specialist.

37.

Nearly six years after the settlement in the Western

District Court, the VADOC has been giving De'lonta limited
treatment for GID.

During the course of treatment, medical and

mental health staff informed De'lonta if she stopped self-injury
she would receive surgery.

De'lonta began treatment with hormones

during the winter of 2004, commencing the one year "real-life

test" required by the Standards of Care.

She has been dressing

and living as a woman to the full extent permitted by VADOC.

She

has developed breasts as a result of hormone treatment.

38.

Under Standards of Care, De'lonta should have been

evaluated for sex reassignment surgery after a one year real-life
test.

At the conclusion of one year on hormones, nothing occurred.

De'lonta's mental health professional, Chief Psychiatrist Meredith
R. Cary, and also Mental Health Director Dr. Robin L- Hulbert,

were unwilling to give any information regarding her treatment plan,

despite De'lonta's persistent requests.
39.

(See Exhibit A

)

Despite repeated requests from De'lonta and intervention

by her counsel, De'lonta has not received an evaluation concerning
readiness for sex reassignment surgery.

40.

The defendants, by failing to provide adequate medical

treatment for De'lonta, have disregarded her serious medical need
and placed her at a substantial risk of serious medical harm.

De'lonta has been diagnosed by physicians retained by the VADOC
as having a serious medical need.

She has been denied adequate

medical care - the very care recommended by the VADOC retained
experts - for her serious medical need.

41.

The defendants, who are officials responsible for making

the relevant decisions regarding D'lonta's care, are aware, based

on information they have received from recommendations of experts,
that a serious risk of harm exists, and the defendants have drawn

the inference that such a risk exists.

Nonetheless, the defendants

have behaved wantonly by failing to provide adequate medical care.

(See Exhibits
42.

Q

).

The defendants are acting in bad faith and do not perceive

any genuine conflict between providing adequate medical treatment

and "security" concerns.

43.

The defendants' treatment decisions regarding De'lonta

were not based on her unique circumstances or an individualized

medical evaluation of De'lonta, but rather were based on a choice
made for political rather than medical reasons.

The defendants'

reasons for denying medical treatment are not rooted in legitimate
penological concerns.

44.

The defendants have knowingly and unreasonably disregarded

an intolerable risk of harm to De'lonta and will continue to do

so unless injunctive relief is entered.

(See Exhibits £) c

A)•

De'lonta has written each defendant personally, expressing her
fear of self-castration and noting that she will remain at serious
risk of harm if treatment is not forthcoming.

COUNT I

DENIAL OF ADEQUATE MEDICAL TREATMENT WITH DELIBERATE INDIFFERENCE

TO SERIOUS MEDICAL NEED IN VIOLATION OF THE EIGHTH AMENDMENT.

45.

The plaintiff repeats and realleges the allegations of

Paragraphs 1 through 43 as if fully set forth herein.

46.

De'lonta has a serious medical need for full treatment

in accordance with the discretion of her treating physician and

medical personnel, including the recommendations of consulting
physicians in the treatment of GID.

47.

De'lonta's serious medical need has not been treated and

she has been denied full treatment, including sex reassiginment
surgery.

48.

Defendants have been deliberately indifferent to De'lonta's

serious medical needs and have denied her treatment for reasons

that are unrelated to her medical needs or to legitimate security
concerns.

Defendants know that medical experts consider De'lonta

to be at risk for serious medical harm and have knowingly
disregarded that risk.

49.

Defendants' denial of medically necessary care for

De'lonta constitutes deliberate indifference to her serious medical
needs and cruel and unusual punishment, in violation of De'lonta's

rights under 42 U.S.C. § 1983 and the Eighth Amendment to the
United States Constitution.

50.

De'lonta faces a substantial and imminent risk of serious

medical harm.

COUNT II

DENIAL OF DUE PROCESS AND DELIBERATE INDIFFERENCE TO DENIAL OF
EQUAL PROTECTION IN VIOLATION OF THE FOURTEENTH AMENDMENT.

51.

The plaintiff repeats and realleges the allegations of

Paragraphs 1 through 50 as if fully set forth herein.

52.

De'lonta's complaints are brought pursuant to the

Fourteenth Amendment, to deny access to any such service to any

individual, or to differentiate adversely in relation to any
individual, on a prohibited ground of discrimination.
53.

There is no dispute that discrimination on the basis of

transsexualism constitutes sex discrimination as well as

discrimination on the basis of a disability.

54.

VADOC policy requiring that anatomically male prisoners

be held in male institutions clearly has an adverse, differential
effect on pre-operative male to female transsexual inmates.

Non-

transsexual inmates are placed in prisons in accordance with both

their anatomical sex and their gender.

Transsexual inmates,

however, are placed in accordance with their anatomical sex, but
not their gender.

55.

VADOCs justification for its refusal to allow pre

operative transsexuals to be placed in institutions in accordance

with their target gender is highly impressionistic.

The VADOC

contention that pre-operative male to female transsexuals cannot

be placed in female prisons because of the reaction of female

inmates is extremely troubling, as it gives legitimacy to the

prejudicial attitudes of others, which attitudes are based upon
fear and misinformation.

56.

Insofar as the risk that would be posed to female inmates

if they were required to share facilities with a pre-operative
male to female transsexual is concerned, non-consensual sexual
activities occur now in both male and female institutions.

57.

Transsexuals in transition who are living as members of

the desired sex should be considered to be members of that sex

for the purposes of human rights protected by the Equal Protection

Clause of the Fourteenth Amendment.

Pre-operative male to female

transsexuals should be treated as women and housed accordingly.

58.

VADOC has, and continues its practice of discriminating

attitudes of female inmates to preclude the placement of pre
operative male to female transsexuals in female prisons, is one

which accords with a line of human rights jurisprudence concerning
customer preference as a defense to an allegation of discrimination.

59.

It is, however, indeed no defense to a complaint of

discrimination that an employer or service provider acted in a
discriminatory fashion because of the demands of his or her
customers•

60.

Accordingly, VADOC does not provide transsexual inmates

the level of health care provided to other inmates.

61.

VADOC has failed to recogtnize the special vulnerability

of the pre-operative transexual inmate population within the

various types of facilities available in the male prison system.
62.

As the Director and final policy maker, defendants

Johnson, Mental Health Services Robin Hulbert, and Chief

Psychiatrist Cary have known, and continue to know yet disregard
an excessive risk to De'lonta's health and safety by intentionally
providing an easier or cheaper, but much less effective, course
of treatment.

PRAYERS FOR RELIEF

WHEREFORE, plaintiff requests that this court:

1)

Enter injunctive relief against the defendants enjoining

them from interfering with the discretion of the mental health
and other medical professionals involved in her care.

2)

Enter injunctive relief against defendants enjoining them

to provide adequate medical care to De'lonta, following the

Benjamin Standard of Care, guided by a gender certified specialist,
experienced in treating gender identity disorder, including sex
reassignment surgery.

3)

Award monetary damages against all defendants herein for

compensatory and punitive purposes in the amount of One Hundred
Thousand Dollars each.

4)

Award such other relief as shall be requested in the

interests of justice.

DECLARATION

Plaintiff hereby declares under penalty of perjury that the
statements of the foregoing action are true and correct to the

best of plaintiff's knowledge and belief.

Executed on(: /iCLklMaA''

l^Joil

I

ia Azrielme'lonta