Goninan v. Washington Department of Corrections et al
Filing
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ORDER that Defendants will file supplemental briefing on or before July 13, 2018. **SEE ORDER FOR DETAILS ON BRIEFING** Plaintiff may file a supplemental reply on or before July 27, 2018. The Clerk is directed to renote plaintiff's 48 motion for partial summary judgment to 7/27/2018. Signed by Magistrate Judge J Richard Creatura. (CMG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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NATHAN ROBERT GONINAN,
Plaintiff,
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ORDER FOR SUPPLEMENTAL
BRIEFING
v.
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CASE NO. 3:17-cv-05714-BHS-JRC
WASHINGTON DEPARTMENT OF
CORRECTIONS, et al.,
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Defendants.
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The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States
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Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local
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Magistrate Judge Rules MJR1, MJR3 and MJR4. Before the Court is a motion for partial
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summary judgment (Dkt. 48) filed by plaintiff Nathan Robert Goninan, a.k.a. Nonnie Marcella
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Lotusflower.
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Plaintiff’s motion for summary judgment argues that the Department of Corrections
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(“DOC”) has a policy, known as the Offender Health Plan (“OHP”), banning all gender
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affirming surgery for all transgender prisoners, regardless of medical necessity, in violation of
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ORDER FOR SUPPLEMENTAL BRIEFING - 1
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the Eighth Amendment. Dkt. 48. Defendants have responded, stating that the OHP was updated
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on March 16, 2018. Dkt. 52 at p. 3. They note that the update “included removal of the language
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which considered gender conforming surgery Level III (not medically necessary) under the
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plan.” Dkt. 52 (citing Dkt. 53-1 at p.2). Plaintiff replied, noting that, though gender affirming
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surgery is no longer categorized as Level III, the guidance offered by the OHP still incorporates
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by reference the DOC’s Gender Dysphoria Protocol, which maintains the blanket ban. Dkt. 55.
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The Court notes that the OHP has indeed been amended to remove “[s]urgical or other
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treatment of Gender Dysphoria” from Level III (Dkt. 53-1 at p. 2) and treatment for gender
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dysphoria is included in the OHP at Level II (medically necessary under some circumstances)
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(Dkt. 54-1 at p. 170). However, its listing in Level II reads: “Treatment of Gender Dysphoria.
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See, Gender Dysphoria Protocol.” Id. In turn, the Gender Dysphoria Protocol states: “Offenders
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with [gender dysphoria] and [transgender] identification are NOT eligible for: Cosmetic or
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elective surgical procedures for the purpose of reassignment. Such interventions are considered
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Level III by the [OHP].” Dkt. 50-1 at p. 3. This is the Gender Dysphoria Protocol’s only mention
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of reassignment surgery. Thus, it is unclear whether the OHP will allow medically necessary
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gender affirming surgery, or whether, pursuant to the Gender Dysphoria Protocol to which the
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OHP refers, “surgical procedures for the purpose of reassignment” are still prohibited.
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Therefore, it is ORDERED:
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1) Defendants will file supplemental briefing on or before July 13, 2018.
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2) In their supplemental briefing, defendants should address:
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a. Whether the language of the Gender Dysphoria Protocol prohibits medically
necessary gender affirming surgery; and
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ORDER FOR SUPPLEMENTAL BRIEFING - 2
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b. Whether the OHP, despite removing surgery to address gender dysphoria from
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Level III, nonetheless continues to prohibit gender affirming surgery because
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it relies exclusively on the Gender Dysphoria Protocol for treatment of gender
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dysphoria.
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3) Plaintiff may file a supplemental reply on or before July 27, 2018.
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4) The Clerk is directed to renote plaintiff’s motion for partial summary judgment (Dkt.
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48) to July 27, 2018.
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Dated this 13th day of June, 2018.
A
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J. Richard Creatura
United States Magistrate Judge
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ORDER FOR SUPPLEMENTAL BRIEFING - 3
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