Case 5:15-cv-00050-MTT Document 3 Filed 02/19/15 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

ASHLEY DIAMOND,

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Plaintiff,

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v.

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BRIAN OWENS, Commissioner

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of the Georgia Department of Corrections,

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in his official capacity,

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SHARON LEWIS, Medical Director,

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Georgia Department of Corrections, in her

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individual and official capacities,

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SHAY HATCHER, Warden of Rutledge State )

Prison, in his individual and official capacities, )

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RUTHIE SHELTON, Deputy Warden of

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Care and Treatment, Rutledge State Prison,

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in her individual and official capacities,

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MARTY ALLEN, Warden, Valdosta State

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Prison, in his individual and official capacities, )

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DAVID MCCRACKEN, Mental Health Services )

Director, Valdosta State Prison,

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in his individual and official capacities,

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JOHN THOMPSON & DONNA

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SILVER, in their individual and official capacities )

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Defendants.

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Civ. No. VERIFIED COMPLAINT

PRELIMINARY STATEMENT 1. Plaintiff Ashley Diamond (“Plaintiff” or “Ms. Diamond”) is a transgender woman1 with gender dysphoria, presently in the custody of the Georgia Department of

Corrections (“GDC”). Defendants are individuals who, during the time of Ms. Diamond’s

1 Feminine pronouns are used to refer to Plaintiff, consistent with Plaintiff’s gender identity, modern judicial practice, and the advice of mental health professionals who work with transgender persons.

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incarceration, have had authority and responsibility for her treatment, safety, and care. 2. Despite knowing that gender dysphoria is a serious medical condition that causes
physical injury and mental anguish when left untreated, Defendants have refused to provide Ms. Diamond with medically necessary care.
3. With no exercise of individualized medical judgment whatsoever, Defendants have refused to provide Ms. Diamond the hormone therapy that she requires as treatment for her gender dysphoria, and received consistently for seventeen years prior to her incarceration. Defendants have also barred Ms. Diamond from outwardly expressing her female gender identity, even though it is another medically necessary form of care.
4. Instead of responding to Ms. Diamond’s requests for gender dysphoria treatment, Defendants have subjected Ms. Diamond to harassment and reprimand based on her failure to conform to masculine stereotypes. Ms. Diamond has been thrown into solitary confinement for “pretending to be a woman,” had her female clothing confiscated, and repeatedly been told to look and act like a man.
5. As a result of her continued denial of care, Ms. Diamond’s body has been violently transformed, she has been forced to transition back from a man to a woman, and she has experienced physical symptoms of withdrawal. In addition, Ms. Diamond has repeatedly attempted suicide and engaged in compulsive acts of self-harm, and continues to be at substantial risk of suicide and permanent physical injury.
6. Defendants do not dispute that Ms. Diamond has gender dysphoria requiring treatment; instead, they have denied Ms. Diamond care pursuant to an unconstitutional custom or policy that ignores the treatment recommendations and medical judgments of GDC healthcare personnel who are qualified in the treatment of gender dysphoria, and prevents them
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from following the medically accepted standards of care. 7. In addition to ignoring her serious health needs, Defendants have disregarded
Ms. Diamond’s substantial vulnerability to sexual assault — a problem that is well-documented within GDC, and for which transgender inmates as a group are especially at risk.
8. Since beginning her incarceration, Ms. Diamond, a non-violent offender, has been housed in a series of closed-security facilities for adult male felons considered to be the most violent and dangerous inmates in GDC custody, and become the victim of repeated, unspeakable sexual assaults.
9. Although Ms. Diamond has reported her sexual assaults to Defendants and begged for safer placements within GDC, Defendants have refused to take any reasonable steps to aid in her protection to this day.
10. Ms. Diamond brings this action pursuant to 42 U.S.C. § 1983, after fully exhausting her administrative remedies, to seek redress for Defendants’ deliberate indifference to her serious medical needs and her continued vulnerability to sexual assault, which constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution, made applicable to the State through the Fourteenth Amendment.
11. Ms. Diamond seeks damages and injunctive relief, as well as a declaratory judgment under 28 U.S.C. §§ 2201 and 2202.
JURISDICTION AND VENUE 12. This action arises under 42 U.S.C. § 1983. 13. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3), which confer original jurisdiction to federal district courts in suits seeking to redress the deprivation of rights secured by the Constitution of the United States, in this case the Eighth Amendment.
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14. This Court has personal jurisdiction over each and every Defendant because they are residents of Georgia who were employed in Georgia and acting under color of state law during all relevant times.
15. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to Ms. Diamond’s claims occurred in this District.
PARTIES 16. Plaintiff Ashley Diamond is a transgender woman with gender dysphoria, who has been in GDC custody since March 27, 2012 after violating probation for an earlier theft offense. During that time, Ms. Diamond has been housed at a series of GDC facilities, including Baldwin State Prison, Rutledge State Prison and Valdosta State Prison. Ms. Diamond’s release date is currently November 1, 2023. 17. Defendant Brian Owens was at all relevant times the Commissioner of GDC. Defendant Owens exercised final policy and decision-making authority over GDC and control over its personnel at all relevant times. Defendant Owens had the duty to ensure the provision of adequate medical care to inmates, and to reasonably protect inmates facing a substantial risk of physical harm, including through the implementation of policies and the training and supervision of GDC staff. Defendant Owens is among those responsible for denying Ms. Diamond medically necessary care and failing to reasonably protect Ms. Diamond from sexual assault, and is sued in his official capacity. 18. Defendant Sharon Lewis was at all relevant times the Statewide Medical Director for GDC. Defendant Lewis exercised final policy and decision-making authority regarding the care, treatment, and housing placement of transgender inmates and victims of sexual assault; control over GDC healthcare personnel; and the authority to grant or deny medical care to inmates with gender dysphoria. Defendant Lewis had a duty to ensure the
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provision of adequate medical care to inmates, and to reasonably protect inmates facing a substantial risk of physical harm, including through placement decisions, the implementation of policies, and the training and supervision of GDC staff. Defendant Lewis is among those responsible for denying Ms. Diamond medically necessary care and failing to reasonably protect Ms. Diamond from sexual assault, and is sued in her individual and official capacities.
19. Defendant Marty Allen was at all relevant times the Warden of Valdosta State Prison, and exercised authority, direction, and control over Valdosta State Prison and its personnel during the period of Ms. Diamond’s incarceration there. Defendant Allen had a duty to ensure the provision of adequate medical care to inmates, and to reasonably protect inmates facing a substantial risk of physical harm. Defendant Allen is among those responsible for denying Ms. Diamond medically necessary care and failing to reasonably protect Ms. Diamond from sexual assault, and is sued in his individual and official capacities.
20. Defendant David McCracken was at all relevant times the Director of Mental Health Services at Valdosta State Prison, its Prison Rape Elimination Act (“PREA”) Coordinator, and the leader of its Sexual Assault Response Team. Defendant McCracken had the authority to make decisions regarding the care, treatment, and placement of individuals confined within Valdosta State Prison during the period of Ms. Diamond’s incarceration there. Defendant McCracken also had the duty to ensure the provision of adequate medical care to inmates, and to reasonably protect inmates facing a substantial risk of physical harm. Defendant McCracken is among those responsible for denying Ms. Diamond medically necessary care and failing to reasonably protect Ms. Diamond from sexual assault, and is sued in his individual capacity.
21. Defendant Shay Hatcher is the Warden of Rutledge State Prison, and exercised
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authority, direction, and control over Rutledge State Prison and its personnel during the period of Ms. Diamond’s incarceration there. Defendant Hatcher had the duty to ensure the provision of adequate medical care to inmates, and to reasonably protect inmates facing a substantial risk of physical harm. Defendant Hatcher is among those responsible for denying Ms. Diamond medically necessary care, and is sued in his individual and official capacities.
22. Defendant Ruthie Shelton was at all relevant times the Deputy Warden of Care and Treatment at Rutledge State Prison, and exercised authority, direction and control over its medical and mental health personnel during the period of Ms. Diamond’s incarceration there. Defendant Shelton had a duty to ensure the provision of adequate medical care to inmates, and is among those responsible for denying Ms. Diamond medically necessary care. She is sued in her individual and official capacities.
23. Defendant Donna Silver was at all relevant times employed or retained by GDC to provide treatment and care to inmates at Rutledge State Prison, and acting under the color of state law. Defendant Silver is among those responsible for denying Ms. Diamond medically necessary care. She is sued in her individual and official capacities.
24. Defendant John Thompson was at all relevant times employed or retained by GDC to provide treatment and care to inmates at Rutledge State Prison, and acting under the color of state law. Defendant Thompson is among those responsible for denying Ms. Diamond medically necessary care. He is sued in his individual and official capacities.
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FACTS
Background on Gender Dysphoria
25. Gender dysphoria, also known as gender identity disorder, is a medical condition
in which an individual’s gender identity and gender identification differ from the gender
assigned at birth, causing clinically significant distress. Individuals with gender dysphoria are
referred to as transgender or transsexual.2
26. Gender dysphoria appears in the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders (“DSM-V”), where it is described as “[a] marked
incongruence between one’s experienced/expressed gender and assigned gender, of at least 6
months’ duration,” and clinically significant impairment or distress, as manifested by two or
more of the following:
1. A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics). 2. A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics). 3. A strong desire for the primary and/or secondary sex characteristics of the other gender. 4. A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender). 5. A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender). 6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).
27. There is a consensus among competent medical professionals and medical
associations around the globe that gender dysphoria is a serious medical condition, and that
persons with gender dysphoria have serious medical needs requiring treatment. Left untreated,
2 The terms gender dysphoria, gender identity disorder, and transsexualism are synonyms, and are used interchangeably in GDC records, as well as in the Complaint. The term transgender is also used throughout to refer to individuals with gender dysphoria.
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gender dysphoria is known to lead to serious medical problems, including suicidality and the impulse to engage in self-castration and self-harm. Individuals with untreated gender dysphoria also experience clinically significant depression, anxiety, and mental impairment.
28. The generally accepted standards for the treatment of gender dysphoria are the Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, published by the World Professional Association for Transgender Health (the “Standards of Care”).3
29. The Standards of Care have been recognized as the authoritative and clinically accepted treatment for gender dysphoria by the American Psychiatric Association, the American Medical Association, courts that have considered the issue, and members of the medical community at large.
30. The Standards of Care apply equally to incarcerated and non-incarcerated persons, and have been endorsed by the National Commission on Correctional Healthcare and the U.S. Department of Justice National Institute of Corrections as the medically accepted standard for the treatment of inmates with gender dysphoria.
31. The Standards of Care establish that persons with gender dysphoria must be individually assessed by qualified healthcare providers, and that medically appropriate treatment consists of the following medical interventions, depending on the individual: (1) outwardly conforming one’s gender expression and gender role to match one’s internal sense of gender identity, including through pronoun usage, grooming, and dress; (2) receiving hormone therapy to promote the development of secondary sex characteristics that affirm one’s sense of
3 The Standards of Care were previously known as the Harry Benjamin International Gender Dysphoria Association Standards of Care, and are also commonly referred to as triadic therapy or triadic treatment.
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gender identity; (3) obtaining sex reassignment surgery. 32. The Standards of Care warn that discontinuing hormone therapy in individuals
who have been receiving it is extremely dangerous and can have catastrophic effects. The Standards of Care state “[t]he consequences of abrupt withdrawal of hormones or lack of initiation of hormone therapy when medically necessary include a high likelihood of negative outcomes such as surgical self-treatment by autocastration, depressed mood, dysphoria, and/or suicidality.”
33. Psychotherapy, while recommended to provide affirmation to individuals newly diagnosed with gender dysphoria, is not a substitute for treatments such as hormone therapy where medically required. Because depression, anxiety, suicidality, and emotional distress are symptoms that result when gender dysphoria is not being properly treated, antidepressants and psychotropic medications are ineffective and medically inadequate gender dysphoria treatment.
34. Attempting to treat gender dysphoria with mental health counseling alone, or in combination with psychotropic drugs, is a gross departure from accepted medical practice that puts individuals with gender dysphoria at a severe risk of physical injury, decompensation, and death.
35. In addition, attempting “to cure” a person of gender dysphoria by forcing them to disregard their innate sense of gender identity and live as their assigned gender is dangerous and puts them at substantial risk of serious harm. Ms. Diamond’s Gender Dysphoria and Treatment History
36. Ms. Diamond is a thirty-six year old transgender woman with gender dysphoria. Since childhood, Ms. Diamond has experienced a marked incongruence between her assigned gender and sense of self. Ms. Diamond has also strongly identified as female.
37. In kindergarten, Ms. Diamond went to school dressed as Jem, her favorite 9

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cartoon superhero, to the confusion and chagrin of her teacher and classmates. Ms. Diamond also began styling her hair like female classmates, wearing feminine clothing while at home, and announced to family members that she was a girl.
38. However, Ms. Diamond was reprimanded and forced to continue living as male, which sparked suicidality and anguish. Ms. Diamond was hospitalized for a suicide attempt at the age of fifteen.
39. Following her suicide attempt, Ms. Diamond was diagnosed with gender dysphoria (then called transsexualism) and began to receive treatment. Ms. Diamond began living as a woman and adopted a female gender presentation, female pronouns, and feminine dress.
40. At seventeen, Ms. Diamond also began hormone therapy consisting of estrogen treatments, progestin creams, testosterone blockers, and anti-androgen medications, to bring her gender identity and physical appearance into greater alignment. Through hormone therapy, Ms. Diamond developed full breasts, a feminine shape, soft skin, and other female secondary sex characteristics, and experienced a reduction in male attributes, allowing her to feel more like herself.
41. Under the Standards of Care, hormone therapy and female gender expression are medically necessary treatments for Ms. Diamond’s gender dysphoria. These treatments, unlike psychotherapy, provide Ms. Diamond clinically significant relief from her gender dysphoria and eliminate her suicidality and compulsion to engage in self-harm. Because Ms. Diamond has received these treatments for nearly half her life, they are also critical to her physical and psychological well-being. GDC Policies on Gender Dysphoria Treatment
42. On March 27, 2012, Ms. Diamond entered GDC custody in connection with a 10

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non-violent offense. Prior to being placed in GDC custody, Ms. Diamond had been expressing her female gender identity and receiving regular hormone therapy as treatment for her gender dysphoria for over seventeen years.
43. Defendants, who exercised authority over the care and treatment of inmates, knew that inmates with gender dysphoria have serious medical needs, and that the medically accepted protocol for the treatment of gender dysphoria is the Standards of Care.
44. Defendants were also aware of Ms. Diamond’s gender dysphoria condition and history of hormone treatment at all relevant times: as a result of her hormone therapy, Ms. Diamond had full breasts, a feminine voice, feminine shape, and a feminine appearance. Her gender dysphoria diagnosis was also repeatedly confirmed during medical and mental health evaluations by GDC personnel. Ms. Diamond also informed Defendants that she was a transgender woman with gender dysphoria, discussed her history of hormone therapy, noted that she attempted suicide as a teenager prior to obtaining care, and requested ongoing treatment.
45. However, Ms. Diamond’s female clothing, brassieres, and undergarments were confiscated, and her hormone therapy was terminated for the first time in 17 years.
46. Within GDC, the treatment of gender dysphoria is guided by the Standard Operating Procedure on the Management of Transsexuals, VH47-0006 (the “Transgender SOP”). The Transgender SOP is disseminated to all GDC personnel. Defendants, as GDC employees, were familiar with the Transgender SOP and its guidelines.
47. The Transgender SOP acknowledges that inmates with gender dysphoria have serious medical needs and states that individuals who identify themselves as transgender, including by self-proclamation, should be referred within GDC for special medical evaluations. The Transgender SOP also discusses the treatment regimen described in the Standards of Care,
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and acknowledges the importance of providing inmates with gender dysphoria continuity of treatment, including hormone therapy.
48. However, the Transgender SOP deviates from the medically accepted Standards of Care in important respects. The Transgender SOP limits eligibility for gender dysphoria treatment to inmates who are identified as transgender during their diagnostic intake screenings — even though the GDC personnel who complete these screenings are not required to have any specialized knowledge or training regarding gender dysphoria, and often lack basic familiarity with the condition.
49. The Transgender SOP also restricts the care available to “maintenance” of existing treatments — preventing healthcare personnel from initiating medical treatment that in their judgment is medically required for an inmate based on the Standards of Care.
50. Pursuant to this policy, inmates who are diagnosed with gender dysphoria after their initial diagnostic screening, or who cannot show a history of treatment remain ineligible for treatments such as hormone therapy, even when they constitute medically necessary care. Consequently, there is a widespread and pervasive practice at GDC of inmates with gender dysphoria being refused medically appropriate treatment of any kind, and being subjected to ridicule and reprimand by GDC staff for their gender non-congruence, rather than provided necessary medical care.
51. Defendants were aware of these abuses and the need for staff training, including because a number of GDC inmates have filed complaints or brought lawsuits in recent years regarding their denial of gender dysphoria care. GDC Policies on Transgender Inmates and Sexual Assault
52. The Transgender SOP also discusses the importance of securing proper placements for transgender inmates given their particular vulnerability within custody, and
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outlines a series of procedures to be followed to reduce transgender inmates’ foreseeable risk of harm.
53. Specifically, the GDC Transgender SOP gives Defendant Lewis, in her capacity as the Statewide Medical Director, the responsibility to make decisions regarding the care, treatment and housing placements of transgender inmates. The GDC Transgender SOP also instructs Defendant Lewis to confer and make “informed decisions” regarding the care and assignment of transgender inmates when safety issues arise.
54. Transgender inmate safety is also addressed in the Prison Rape Elimination Act of 2000, 42 U.S.C. § 15601 et seq., its implementing regulations, 28 C.F.R. § 115 et seq., (collectively “PREA”), which apply to GDC and are discussed in GDC’s accompanying Standard Operating Procedure on the Prison Rape Elimination Act and Sexual Assault of /Sexual Misconduct with Offenders, IIA21-0001 (the “PREA SOP”). PREA and the PREA SOP are disseminated to all GDC personnel. Defendants, as GDC employees, were familiar with PREA, the PREA SOP, and their guidelines.
55. PREA recognizes that transgender inmates face a substantial vulnerability to sexual assault and requires GDC personnel to assess whether an inmate “is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming” during their intake screenings or upon their transfer to a new correctional facility. 28 C.F.R. § 115.41(d)(7).
56. PREA also requires that GDC personnel consider the placement of gay, lesbian, bisexual, transgender, intersex, or gender nonconforming inmates on a case-by-case basis, and evaluate whether the inmate should be assigned to a male or female facility, and whether their proposed housing placements will reasonably ensure their health and safety. GDC personnel are also instructed to review these housing placements at least twice a year, or when issues arise,
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and to assess the need for adjustments — giving serious consideration to a transgender inmate’s own views regarding safety. 28 C.F.R. § 115.42(b)-(e).
57. PREA, the PREA SOP, and GDC’s Standard Operating Procedures on the Investigation of Allegations of Sexual Contact, Sexual Abuse, and Sexual Harassment of Offenders (IK01-0006), the Medical and Mental Health Management of Suspected Sexual Abuse, Contact, or Harassment (VG55-0001 and VH85-0002) (collectively the “Sexual Assault SOPs”), provide additional instruction on how GDC personnel should devise housing placements for inmates to prevent sexual assault, and handle instances of sexual assault within GDC facilities.
58. Under PREA and the PREA SOP, GDC personnel are also required to assess inmates for additional sexual assault risk factors, including whether “the inmate has previously been incarcerated;” “the inmate’s criminal history is exclusively nonviolent;” “the inmate has previously experienced sexual victimization;” and the “inmate’s own perception of vulnerability,” and make individualized determinations about how to ensure inmate safety when assigning housing placements. 28 C.F.R. § 115.41(d)(4)-(9); 28 C.F.R. § 115.42(b).
59. GDC personnel are required to perform these risk assessments upon an inmate’s initial arrival in GDC custody and their transfer to different GDC facilities, and to perform a follow-up risk assessment 30 days thereafter, or following a “referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of sexual victimization.” Id. § 115.41(f)-(g).
60. Upon information and belief, the Sexual Assault SOPs also instruct GDC personnel to adopt a zero tolerance and “must tell” policy for sexual assault and sexual misconduct within GDC facilities, whereby personnel must immediately report rumors or
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allegations of inmate sexual assaults, and notify prison wardens, Sexual Assault Response Team (“SART”) personnel, and Defendant Lewis of sexual assault allegations.
61. The Sexual Assault SOPs also give prison wardens and SART personnel specific responsibilities with respect to the handling of sexual assault allegations, which include the responsibility to arrange for medical and mental health examinations of suspected sexual assault victims, and revised housing placements. The Sexual Assault SOPs also state that the identities of sexual assault victims are to be treated with confidentiality.
62. Despite being aware of transgender inmates’ substantial vulnerability to sexual assault, there is a widespread and pervasive practice within GDC of transgender inmates being denied safe or appropriate housing placements, and being sexually victimized as a result. Instead of following PREA’s requirements or taking reasonable steps to prevent transgender inmates from facing ongoing sexual assault or coercion, GDC staff often disregard inmate safety concerns, blame transgender inmates for provoking their sexual assaults on account of their gender identity or sexual orientation, and refuse to process their sexual assault grievances.
63. In recent years, GDC has been confronted with numerous complaints and lawsuits by inmates concerning the failures of staff to protect them from assault. However, upon information and belief, staff training regarding the safety needs of transgender inmates with respect to sexual assault remains perfunctory or non-existent. Ms. Diamond’s Early Incarceration at GDC and Events that Put Defendants on Notice of Her Medical and Safety Needs
64. In March 2012, despite having sizeable breasts, a feminine voice, feminine hips, a feminine appearance, and notifying personnel that she was transgender and on hormone therapy, Ms. Diamond was not evaluated for gender dysphoria, referred for treatment, or given a reasonably safe or appropriate housing placement. Instead, on April 12, 2012, after
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completing her intake processing, Ms. Diamond was assigned to Macon State Prison, a closedsecurity facility for adult male felons.
65. Within GDC, closed-security facilities are the equivalent of maximum security prisons, and house inmates with “assaultive histories” and other serious crimes on file. Because closed-security facilities house inmates considered to be the most violent and dangerous, gang activity and inmate assaults are also frequent.
66. Upon information and belief, there is no penological reason for Ms. Diamond’s confinement in closed-security facilities, rather than medium-security facilities. Such confinement is inconsistent with PREA and GDC’s own policies regarding inmate classification, given Ms. Diamond’s status as a transgender woman, a non-violent offender, and an individual being incarcerated within GDC for the first time.
67. Transgender inmates at closed-security facilities are significantly more prone to sexual assault, in part because they are preyed on by members of gangs.
68. At medium security facilities such as Johnson State Prison and Central State Prison, sexual assaults against transgender inmates — including inmates receiving hormone therapy and access to female grooming standards — are infrequent.
69. Less than a month after arriving at Macon State Prison, Ms. Diamond was brutally sexually assaulted by six members of a gang, punched, stomped, and knocked unconscious. Ms. Diamond reported her sexual assault to GDC personnel, and information concerning Ms. Diamond’s sexual assault was recorded in her GDC records. Upon information and belief, Defendant Lewis was also notified of Ms. Diamond’s assault pursuant to GDC policy.
70. Following her assault, Ms. Diamond advised GDC personnel that she had
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ongoing concerns about her physical safety within closed-security facilities, on account of her being transgender, not affiliated with gangs, and a non-violent offender. Ms. Diamond asked that her placement within closed-security facilities be reviewed. However, even though PREA and GDC policy require GDC personnel to review inmate placements in the event of assault, and give weight to inmate perceptions of safety, on May 24, 2012, Ms. Diamond was transferred to Baldwin State Prison, another closed-security facility housing felons considered to be the most dangerous. Upon entering Baldwin, Ms. Diamond once again became a target for sexual harassment and coercion.
71. Following months of sexual harassment that she reported to staff, in October 2012, and in January 2013, Ms. Diamond was sexually assaulted by Baldwin inmates. Ms. Diamond reported her sexual assaults to Baldwin personnel, who recorded the assaults in her GDC records. Upon information and belief, Defendant Lewis was also notified of the assaults pursuant to GDC policy, but took no action. Baldwin staff were also slow respond, “lost” complaints that Ms. Diamond filed, “lost” the physical evidence of Ms. Diamond’s assaults, failed to conduct an investigation, and told her that she brought her assaults upon herself by being transgender, instead of arranging for safe placement.
72. Thereafter, Ms. Diamond was evaluated by a series of GDC mental health professionals who diagnosed her with post-traumatic stress disorder (“PTSD”), and concluded that the sexual assaults she endured were having a clinically significant effect on her health and well-being. The mental health professionals also concluded that Ms. Diamond faced continued vulnerability to sexual assault at Baldwin given her transgender status, and the dangerous inmate population. They recommended that Ms. Diamond be transferred from a closed-security facility to a medium security facility for her safety, but provided counseling to address Ms.
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Diamond’s PTSD and anxiety in the interim. 73. A series of mental health personnel at Baldwin also diagnosed Ms. Diamond
with gender dysphoria and noted that she had been living as a woman since the age of fifteen, had received hormone therapy prior to her incarceration, had begun engaging in self-harm and attempting auto-castration, and recommended ongoing treatment. However, no action was taken with respect to these recommendations and, increasingly distraught, Ms. Diamond attempted suicide on or about February 28, 2013.
74. On or about April 25, 2013, two months after her suicide attempt, Ms. Diamond was evaluated by GDC mental health personnel who reconfirmed her gender dysphoria diagnosis and history of living as a female. GDC personnel also concluded that Ms. Diamond continued to suffer from PTSD; was feeling fearful and targeted within the prison based on her gender identity; and was experiencing anxiety, fearfulness, nightmares and intrusive thoughts as a result of her sexual assaults. GDC personnel recommended that GDC staff meet with Ms. Diamond regarding her medical needs.
75. Thereafter, Ms. Diamond was given an appointment with Dr. Stephen Sloan, a GDC psychologist with specialized knowledge concerning gender dysphoria. Dr. Sloan performed an individualized assessment of Ms. Diamond under the Standards of Care, and concluded that hormone therapy and female gender expression were the medically necessary treatments for her gender dysphoria, and that Ms. Diamond stood a substantial risk of self-harm and suicide if care was denied.
76. Dr. Sloan recommended that hormone therapy be provided to Ms. Diamond. However, Defendant Lewis, the Statewide Medical Director of GDC, refused to authorize treatment. Ms. Diamond’s visits with Dr. Sloan were also discontinued, and Ms. Diamond was
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transferred to another prison. Denial of Medical Care at Rutledge State Prison
77. On October 1, 2013, Ms. Diamond was transferred from Baldwin to Rutledge State Prison, a medium security facility for inmates like Ms. Diamond, who are non-violent offenders or lack major adjustment problems. Following her transfer to Rutledge, Ms. Diamond ceased being a victim of sexual coercion or assault — despite her feminine appearance, feminine mannerisms, and status as a transgender woman.
78. Upon her arrival, Rutledge personnel including Defendants Hatcher, Silver, and Thompson, received Ms. Diamond’s GDC records and a transfer summary detailing her history of sexual assaults, gender dysphoria diagnosis, history of hormone treatment, past attempts at self-harm, and requests for ongoing care.
79. Ms. Diamond also filed petitions regarding her need for medical treatment, and eventually met with Defendants John Thompson and Donna Silver, two GDC healthcare providers.
80. Ms. Diamond explained that she had received hormone therapy for 17 years prior to arriving at GDC, and had been assessed by Dr. Sloan under the Standards of Care as still requiring hormone treatment. Ms. Diamond also explained that the denial of healthcare was dire to her physical well-being, and that inter alia, she had lost breast mass, was experiencing muscle spasms, chronic pain, and compulsion to engage in self-castration.
81. Defendants Silver and Thompson admitted to Ms. Diamond that they were not qualified in the treatment of gender dysphoria, but denied her request for hormone therapy, without referring her for evaluation or treatment with a qualified professional, in accordance with the Standards of Care. Defendant Silver simply informed Ms. Diamond that she had forfeited the right to receive hormone therapy when she became a prisoner.
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82. On November 18, 2013, Ms. Diamond contacted Defendant Shelton, the Warden of Treatment and Care, regarding her gender dysphoria and previous attempts to access care. Ms. Diamond asked Defendant Shelton to provide her information concerning the availability of needed treatment.
83. In a letter dated November 22, 2013, Defendant Shelton informed Ms. Diamond “the Department does not offer therapy for this at this time.” Upon information and belief, Defendant Shelton also advised healthcare personnel that GDC’s policy was to refuse to initiate gender dysphoria treatment, but that inmates could be referred for general counseling in lieu of gender dysphoria treatment.
84. Shortly after receiving Defendant Shelton’s letter, Ms. Diamond was contacted by Defendants Silver and Thompson regarding her requests for medical treatment. Echoing Defendant Shelton, Defendants Silver and Thompson advised Ms. Diamond that she would not be receiving any gender dysphoria treatment while in custody, but could speak to a mental health counselor regarding any underlying feelings of depression and anxiety.
85. On or about November 25, 2013, Ms. Diamond wrote a letter to Defendant Hatcher concerning her gender dysphoria and denial of treatment. Ms. Diamond told Defendant Hatcher that her physical health and well-being were being jeopardized by the continued denial of medical care, and asked Defendant Hatcher to authorize or refer her for medical treatment.
86. Defendant Shelton responded to Ms. Diamond by letter on her and Defendant Hatcher’s behalf. Defendants’ letter acknowledged that Ms. Diamond was suffering from the denial of medical care, however, instead of referring her for evaluation and treatment, Defendants advised Ms. Diamond to develop better coping mechanisms.
87. Thereafter, Ms. Diamond filed a complaint concerning her continued denial of
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medical care. Ms. Diamond explained that her gender dysphoria was a serious medical need, but that she had been informed by personnel that no gender dysphoria treatment was available.
88. In response, Defendant Hatcher placed Ms. Diamond in solitary confinement on December 4, 2013 for nearly a week, for “pretending to be a woman.” During that time, Ms. Diamond became suicidal and battled a strong compulsion to engage in self-harm.
89. Defendant Hatcher returned Ms. Diamond to solitary for ten more days beginning December 20, 2013, after Ms. Diamond was visited by attorneys who learned of her denial of treatment. Defendant Hatcher visited Ms. Diamond in solitary confinement on or about December 26, 2013, and Ms. Diamond explained that she was not simply “pretending to be a woman,” but had serious medical needs requiring treatment. Ms. Diamond also told Defendant Hatcher that she was suicidal because of the denial of care.
90. Defendant Hatcher refused to release Ms. Diamond from solitary confinement or refer her for treatment. Later that day, Ms. Diamond attempted suicide and tried to sever her penis with a razor. Ms. Diamond was hospitalized on an emergency basis. Upon information and belief, Defendants Hatcher and Lewis were also notified of Ms. Diamond’s suicide and castration attempts.
91. Thereafter, Defendant Lewis wrote a letter informing Ms. Diamond that she had reviewed the actions of the GDC personnel who had refused to provide her with gender dysphoria treatment, and determined that they had handled matters appropriately. Upon information or belief, Defendant Lewis instructed GDC personnel to continue their blanket policy of refusing to initiate gender dysphoria treatment, and offering counseling in lieu of medically necessary treatment called for by the Standards of Care. Failure to Protect and Denial of Medical Care at Valdosta State Prison
92. On December 31, 2013, Ms. Diamond was transferred from Rutledge State 21

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Prison to Valdosta State Prison, another closed-security facility housing felons with assaultive histories considered to be the most dangerous. Upon her arrival at Valdosta, personnel, including Defendants Allen and McCracken, received Ms. Diamond’s GDC records and a transfer summary detailing her history of sexual assaults, gender dysphoria diagnosis, history of hormone treatment, past attempts at self-harm, and requests for ongoing care.
93. During her intake, Ms. Diamond was warned by Valdosta personnel that Valdosta lacked the means to safely house transgender persons like Ms. Diamond, and that she stood a high likelihood of being sexually assaulted based on the inmate population, which included many gang members. However, Ms. Diamond was not offered any safety accommodations. She was simply told by staff to “guard your booty” and be prepared to fight.
94. On or about January 1, 2014, just one day after her arrival, Ms. Diamond was sexually assaulted by an inmate at Valdosta. Ms. Diamond reported her sexual assault to personnel, and notified them that she continued to be housed with her perpetrator. Upon information and belief, Defendant Lewis was notified of Ms. Diamond’s assault, as were Defendants Allen and McCracken in their respective capacities as the Valdosta Warden and SART team leader. However, Defendants Lewis, Allen, and McCracken did not make adjustments to Ms. Diamond’s housing placement or take other steps to safeguard her, despite having the authority to do so. Instead, Ms. Diamond continued to be housed in a cell with her perpetrator, who subjected her to continued sexual harassment and coercion.
95. On January 19, 2014, Ms. Diamond requested an appointment with GDC medical staff concerning her ongoing safety issues and need for gender dysphoria treatment. Thereafter, in late January and early February 2014, Ms. Diamond was evaluated by Drs. Raymond Moody and Heather Harrison, GDC mental health professionals at Valdosta.
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96. As did Dr. Sloan, Drs. Moody and Harrison performed individualized assessments of Ms. Diamond, and concluded that she should be receiving hormone therapy as treatment for her gender dysphoria under the Standards of Care. Drs. Moody and Harrison also concluded that Ms. Diamond was experiencing withdrawal based on the discontinuation of her medical treatment, and stood a high risk for suicide and self-harm, should medical care be denied.
97. Upon information and belief, Dr. Moody advised Defendant Lewis of their conclusions regarding Ms. Diamond’s ongoing need for hormone therapy, and sought to initiate treatment. However, Defendant Lewis denied the request for hormone therapy without evaluating Ms. Diamond, or performing any independent assessment of her need for treatment. Upon information and belief, Drs. Moody and Harrison were told that hormone treatment could not be initiated under the Transgender SOP, even if treatment was considered necessary under the Standards of Care, but inmates could be provided general mental health counseling in lieu of gender dysphoria treatment.
98. Upon information and belief, Dr. Harrison also advised Defendants Allen and McCracken of Ms. Diamond’s ongoing safety issues and need for a transfer to a safer facility, based on her conclusion that Ms. Diamond stood a substantial risk of continued sexual assault at Valdosta based on the inmate composition. However, Defendants Allen and McCracken deferred and delayed on her recommendations to provide Ms. Diamond with a revised placement.
99. On or about February 9, 2014, Ms. Diamond was sexually assaulted by a gang member at Valdosta. Ms. Diamond reported her sexual assault to personnel, and explained that she had ongoing fears for her safety. Upon information and belief, Defendants Lewis, Allen,
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and McCracken were also notified of Ms. Diamond’s assault pursuant to GDC policy. However, despite having the authority to revise Ms. Diamond’s placement and arrange for safe-keeping, no action was taken.
100. On February 11, 2014, Ms. Diamond contacted Defendant Owens individually concerning her placement and health and safety concerns. Ms. Diamond notified Defendant Owens that she had been repeatedly sexually assaulted when housed at closed-security facilities with inmates prone to violence. Ms. Diamond told Defendant Owens that following her transfer from Rutledge, a medium security facility, to Valdosta, a closed-security facility, she had renewed fears for her safety.
101. Ms. Diamond also informed Defendant Owens that GDC personnel were not acting to protect her from continued assault, or considering her gender dysphoria or rape victim status when choosing her placements, as required by PREA and GDC policy. Ms. Diamond also requested that she be transferred from Valdosta to a medium security facility like Central or Johnson, where transgender inmates could be housed more safely. However, no action was taken.
102. On or about February 26, 2014, Ms. Diamond personally contacted Defendant McCracken regarding her safety. Ms. Diamond informed Defendant McCracken that she was a transgender woman with gender dysphoria, in need of medical care. Ms. Diamond explained that she had been receiving hormone therapy for years, and was in the process of developing a treatment plan for hormone therapy with Dr. Sloan prior to her transfer from Baldwin. Ms. Diamond also explained that she a victim of repeated sexual assaults since entering GDC custody, and had ongoing fears for her safety due to continued sexual harassment and coercion from inmates at Valdosta.
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103. Ms. Diamond asked Defendant McCracken to review her placement and arrange for her transfer to a safer facility, or a facility where she could at least receive gender dysphoria care. However, despite knowing of Ms. Diamond’s health and safety needs, Defendant McCracken deferred and delayed action on Ms. Diamond’s requests to be afforded reasonable safety and care.
104. Ms. Diamond continued to experience suicide ideation and impulses for selfharm as a result of her denial of gender dysphoria treatment and in or around March 2014, Ms. Diamond was hospitalized for suicidality and attempting self-castration.
105. On or about April 2014, Ms. Diamond personally contacted Defendant Allen regarding her safety concerns at Valdosta. Ms. Diamond explained that she was a transgender woman who had been sexually assaulted and had ongoing fears for her safety. She asked Defendant Allen to review her placement and arrange for her transfer to a safer facility. However, despite having the authority to do so, Defendant Allen refused to act on Ms. Diamond’s request for safe placement.
106. In April 2014 Ms. Diamond was sexually assaulted two more times by inmates at Valdosta with gang affiliations. On each occasion, Ms. Diamond reported her sexual assaults to GDC personnel, and renewed her requests for a transfer to a safer facility. Upon information and belief, Defendants Lewis, Allen, and McCracken were notified of each of Ms. Diamond’s assaults pursuant to GDC policy. However, despite having the authority to arrange for safe placement, Defendants took no action. Instead, the GDC personnel who processed Ms. Diamond’s complaints told her that she was asking to be sexually assaulted because she was transgender, and would continue to be targeted for sexual abuse and coercion.
107. On May 13, 2014, Ms. Diamond contacted Defendant Owens once again,
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through counsel. Ms. Diamond explained that she was being sexually assaulted, but her requests for protection were being ignored. Ms. Diamond also explained that hormone therapy was a medically necessary treatment for her gender dysphoria, that she had been receiving hormone therapy for many years, and had been harmed by GDC’s refusal to provide her gender dysphoria treatment.
108. Defendant Owens knew there was a widespread practice among GDC personnel of denying gender dysphoria treatment to inmates who needed it, stemming in part from their lack of training. Defendant Owens also knew that enforcement of the Transgender SOP was preventing inmates from receiving treatment in accordance with the Standards of Care based on the individualized judgments of their healthcare providers, regarding their need for medical care.
109. Defendant Owens responded to Ms. Diamond’s letter through counsel, but refused to authorize hormone therapy for Ms. Diamond’s gender dysphoria or refer her for evaluation or treatment. Instead, Defendant Owens continued to enforce the Transgender SOP, and adopted, ratified, or instructed his subordinates to continue their policy of denying medically necessary treatment.
110. On or about May 2014, Ms. Diamond personally contacted Defendant Allen again regarding her gender dysphoria and ongoing need for treatment but, in response, Defendant Allen began subjecting Ms. Diamond to harassment on account of her being transgender.
111. Defendant Allen ridiculed Ms. Diamond for her female gender identity and feminine mannerisms, and began referring to Ms. Diamond as a “he-she-thing” in front of GDC inmates and personnel. Defendant Allen also began reprimanding Ms. Diamond when her
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gender presentation deviated from male stereotypes. On May 15, 2014, Defendant Allen disciplined Ms. Diamond for shaping her eyebrows in a feminine manner, and informed her that she was expected to look and dress like a man. Defendant Allen encouraged his staff to ridicule Ms. Diamond for her female gender expression, and to instruct her to act and appear male.
112. Ms. Diamond complained about Defendant Allen’s conduct and her ongoing denial of medical care. She explained that female grooming, expression, and identification were components of her gender dysphoria. Ms. Diamond’s complaint was reviewed and rejected by GDC personnel on grounds that Ms. Diamond was “clearly a man, not a woman.”
113. Ms. Diamond was also told there was “no medically indicated reason” for her female gender presentation, even though female gender expression is a form of medical treatment under the Standards of Care. Ms. Diamond was also warned that she would remain subject to continued discipline for her female gender expression, because “[her] gender was male.”
114. In May and June 2014, Ms. Diamond spoke with Defendant McCracken again regarding her placement at Valdosta and need for care. Ms. Diamond reminded Defendant McCracken that she was a transgender woman with gender dysphoria, and a victim of repeated sexual assaults since entering GDC custody. Ms. Diamond explained that she continued to face sexual harassment and coercion at Valdosta, and had ongoing fears for her safety.
115. Ms. Diamond asked Defendant McCracken to review her placement, and to arrange her transfer to a safer facility, but he delayed and deferred any action on Ms. Diamond’s behalf, and she continued to be a constant target for sexual harassment and coercion.
116. In May and June 2014, Ms. Diamond was reevaluated by Dr. Harrison, who had previously been advised that hormone therapy was not available under GDC Policy. Dr.
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Harrison observed that Ms. Diamond’s PTSD symptoms and anxiety had worsened due to ongoing issues of personal safety, and concluded that Ms. Diamond should be transferred to a medium security prison for her safety. Dr. Harrison also noted that Ms. Diamond was “being forced to transform from a woman back to a man” as a result of her continued denial of medical care, and was attempting auto-castration as a result.
117. In August and September 2014, Ms. Diamond was evaluated by GDC healthcare personnel again, who confirmed Ms. Diamond’s gender dysphoria and PTSD diagnoses, and noted that Ms. Diamond’s condition was deteriorating, that Ms. Diamond was experiencing withdrawal and physiological side effects, was manifesting hopelessness, and engaging in further attempts at self-castration and self-harm based on her continued denial of care. The medical professionals noted that Ms. Diamond had a history of hormone therapy and was requesting ongoing treatment, but stated that hormone therapy for Ms. Diamond was not being provided because it had not been authorized by “ATL” — or Defendants Owens and Lewis.
118. Thereafter, Ms. Diamond’s suicidality and impulses to engage in self-harm intensified, and Ms. Diamond attempted to castrate herself once again. Ms. Diamond was referred for emergency medical treatment, and told that she faced a risk of permanent injury or death if her castration attempts continued.
119. In September 2014, Ms. Diamond filed a pro se lawsuit against Defendants Allen and McCracken regarding her ongoing safety concerns at Valdosta. Ms. Diamond also began writing letters and publicizing her ongoing sexual assaults. After commencing her lawsuit against Defendants Allen and McCracken, Ms. Diamond was finally transferred from Valdosta State Prison.
120. However, instead being sent to a medium security facility where she could enjoy
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reasonable safety, she was transferred back to Baldwin State Prison, the closed-security facility where she had previously been a victim of multiple sexual assaults.
121. On January 22, 2015, Plaintiff was assessed by Dr. Randi C. Ettner, a forensic psychologist who is an expert in the diagnosis and treatment of gender dysphoria. Dr. Ettner confirmed that Plaintiff suffers from severe and persistent gender dysphoria, and that hormone therapy and female gender expression are the medically necessary treatment for her gender dysphoria. Dr. Ettner also determined that Plaintiff was experiencing severe physical and psychological harm due to her lack of gender dysphoria treatment, including clinically significant depression, suicidality, hopelessness, anxiety, desperation, and a regression of hormonally-induced physical effects. Dr. Ettner also noted that Plaintiff attempted suicide and auto-castration multiple times following the withdrawal of gender dysphoria care, and expressed an ongoing intention to end her life if forced to continue living as male.
122. Dr. Ettner concluded that unless hormone therapy for Plaintiff was resumed to treat her gender dysphoria and accompanying suicide ideation, the consequences would be predictable and dire. Dr. Ettner also concluded that attempting to treat Plaintiff’s gender dysphoria with psychotherapy or anti-psychotics instead of hormone therapy would substantially depart from accepted medical practice and would place Plaintiff in ongoing peril of suicide and self-harm.
123. Ms. Diamond remains without safe placement or care for her gender dysphoria to this day, and continues to suffer from suicide ideation and the compulsion to engage in selfcastration and self-harm on an almost daily basis.
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CLAIM FOR RELIEF Count One:
Refusal to Provide Medically Necessary Care in Violation of the Eighth Amendment to the Constitution
(As to All Defendants) 124. Ms. Diamond incorporates and realleges herein the allegations of the foregoing paragraphs. 125. At all relevant times, Defendants knew that Ms. Diamond had gender dysphoria, a serious medical need that jeopardizes an individual’s physical health and mental well-being when left untreated. 126. Defendants knew that the medically accepted standards for the treatment of gender dysphoria are the Standards of Care, and that hormone therapy and female gender expression, not psychotherapy, were medically necessary treatments for Ms. Diamond’s gender dysphoria. Defendants knew that Ms. Diamond had been receiving these therapies for nearly two decades prior to her incarceration, and that discontinuing Ms. Diamond’s hormone therapy placed her at a substantial risk of suicide, self-castration, and physical harm. 127. Despite this knowledge and despite Ms. Diamond’s repeated requests for care, Defendants, while acting under color of state law, have refused to provide Ms. Diamond with any medically necessary treatment for her gender dysphoria, in deliberate indifference to her serious medical needs, and in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. 128. Alternately, Defendants provided Ms. Diamond care that was so poor, cursory, grossly inadequate, and out of step with accepted professional norms that it constitutes a wanton infliction of pain, not medical treatment at all. 129. Each of the Defendants directly participated in the Constitutional deprivations
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alleged. 130. Defendants Hatcher and Allen showed deliberate indifference to Ms. Diamond’s
serious medical needs by, inter alia, disciplining Ms. Diamond and subjecting her to punishment for expressing her female gender, a medically necessary form of treatment.
131. Defendants Silver and Thompson showed deliberate indifference to Ms. Diamond’s serious medical needs by, inter alia, denying her care for her gender dysphoria, refusing to refer her for treatment in accordance with the Standards of Care and informing Ms. Diamond that she lost the right to receive gender dysphoria treatment when she entered prison.
132. Defendant McCracken showed deliberate indifference to Ms. Diamond’s serious medical needs by, inter alia, knowing of her need treatment, but disregarding her requests for medical care and refusing to refer her for medical treatment.
133. Defendants Owens, Lewis and Shelton showed deliberate indifference to Ms. Diamond’s serious medical needs by, inter alia, refusing to authorize gender dysphoria treatment in accordance with the Standards of Care with no exercise of individualized medical judgment whatsoever, including when treatment had been recommended by qualified GDC healthcare personnel, who performed actual assessments of Ms. Diamond.
134. Defendant Owens, Lewis, and Shelton showed deliberate indifference to Ms. Diamond’s serious medical needs by, inter alia, ratifying or condoning the unconstitutional actions of their subordinates, and/or failing to take steps to prevent them from continuing to disregard inmates’ need for medically necessary treatment, while fully aware of the constitutional deprivations complained of here.
135. Defendant Owens, Lewis, and Shelton also showed deliberate indifference to Ms. Diamond’s serious medical needs by, inter alia, instructing GDC healthcare personnel to
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refuse requests to initiate or refer inmates or gender dysphoria treatment, and to ignore their professional medical judgment regarding whether treatment was required under the Standards of Care.
136. Each of the Defendants also implemented, followed, enforced, and continue to enforce a policy or custom, having the force of law, of refusing requests to initiate gender dysphoria treatment, irrespective of an inmate’s medical need, and providing counseling alone when they knew it was grossly inadequate care, that placed inmates at a substantial risk of mental and physical deterioration.
137. As a direct and proximate result of Defendants’ actions, Ms. Diamond has suffered and continues to suffer irreparable physical injury and emotional harm.
138. Ms. Diamond’s body has been violently transformed due to the denial of hormone therapy: Ms. Diamond has lost breast tissue and her female secondary sex characteristics have diminished. Ms. Diamond has also experienced and continues to experience physical injury in the form of chest pain, muscle spasms, heart palpitations, severe vomiting, dizziness, hot flashes, withdrawal symptoms, weight loss, diarrhea, fatigue and hyperhidrosis.
139. The therapeutic effects of Ms. Diamond’s seventeen year history of gender dysphoria treatment have also been reversed. As a result of her denial of treatment, Ms. Diamond has attempted suicide and self-castration on multiple occasions, engaged in cutting and other forms of self-harm. Ms. Diamond’s suicidality and compulsion to engage in castration and self-harm persist to this day. She has also suffered and continues to suffer severe depression, anxiety, and mental anguish.
140. Ms. Diamond remains without medically necessary care and continues to be at a substantial risk of suicide, self-harm, and physical injury. Ms. Diamond will continue to suffer
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substantial and irreparable harm absent immediate relief. Count Two:
Policy or Custom Regarding the Treatment of Gender Dysphoria in Violation of the Eighth Amendment to the Constitution
(As to Defendants Owens and Lewis) 141. Ms. Diamond incorporates and realleges herein the foregoing paragraphs. 142. Defendants Owens and Lewis, who are final policy and decision makers for GDC, have enforced and continue to enforce an unconstitutional freeze-frame policy — the Transgender SOP — that removes decisionmaking regarding the treatment of gender dysphoria from healthcare professionals and prevents them from initiating medically necessary care. The policy subjects inmates like Ms. Diamond to a substantial risk of serious injury and harm in violation of the Eighth Amendment to the U.S. Constitution. 143. Under the Transgender SOP,4 which has been and continues to be implemented by Defendant Owens, Lewis, and their agents, officials, employees, and all persons acting in concert with them under color of state law, in their official capacities, Ms. Diamond has been denied all medically appropriate treatment for her gender dysphoria, in violation of the prohibition on cruel and unusual punishment in the Eighth Amendment, even though no dispute exists regarding her gender dysphoria diagnosis or need for treatment. 144. As a direct and proximate cause of Defendants’ enforcement of the Transgender SOP, Ms. Diamond has suffered and continues to suffer irreparable physical injury and emotional harm and the deprivation of her constitutional rights. She will continue to suffer substantial and irreparable harm absent immediate relief.
Count Three: Failure to Protect Against Foreseeable Sexual Assault in Violation of the Eighth Amendment to the Constitution 4 Discuss whether there is a way to clarify where the policy goes wrong.
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(As to Defendants Owens, Lewis, Allen, and McCracken) 145. Ms. Diamond incorporates and realleges herein the foregoing paragraphs. 146. At all relevant times, Defendants knew that Ms. Diamond, as a transgender woman, faced an extreme and substantial vulnerability to sexual assault and harm in GDC custody. Due to the severity and obviousness of the risks facing transgender inmates like Ms. Diamond, PREA and the Transgender SOP advised that the placements of transgender inmates be carefully considered by Defendants and other GDC personnel. 147. Defendants knew that at closed-security facilities, which house inmates considered to be the most dangerous, with assaultive histories and gang affiliations, Ms. Diamond as a transgender woman and non-violent offender, stood an even greater risk of harm. 148. Defendants also knew that Ms. Diamond suffered repeated sexual assaults at the closed-security facilities where she was housed, and that her placement at Valdosta, yet another closed-security facility, exposed her to continued risks of great harm. 149. Defendants were notified of Ms. Diamond’s ongoing sexual assaults, and Ms. Diamond’s repeated requests to be housed in safer conditions. However, despite having the authority to do so, and while acting under the color of state law, Defendants deferred, delayed, and refused to take reasonable steps to protect Ms. Diamond from harm — contrary to their obligations under PREA and GDC policy — in deliberate indifference to her substantial risk of sexual assault, and contrary to the Eighth Amendment and contemporary standards of decency. 150. Each of the abovementioned Defendants directly participated in the Constitutional deprivations alleged. 151. Defendant Lewis showed deliberate indifference to Ashley’s safety needs by, inter alia, disregarding her obligations under PREA and GDC policy to assess the needs of transgender inmates and provide appropriate placements, and failing to take action after
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receiving notification of Ashley’s ongoing sexual assaults. 152. Defendants Allen and McCracken showed deliberate indifference to Ashley’s
safety needs by, inter alia, disregarding their obligations under PREA and the Sexual Assault SOPs to assess the needs of sexual assault victims and provide appropriate placements; failing to take action after receiving notification of Ashley’s ongoing sexual assaults; and unreasonably denying, delaying, or deferring Ashley’s requests for protection.
153. Defendant Owens and Lewis also showed deliberate indifference to Ms. Diamond’s serious medical needs by, inter alia, ratifying or condoning the unconstitutional actions of their subordinates, and/or failing to take reasonable steps to prevent them from continuing to disregard the safety needs of transgender inmates like Ms. Diamond, who faced a substantial and foreseeable risk of sexual assault, while fully aware of the deprivations complained of here.
154. As a direct and proximate result of Defendants’ intentional actions, Ms. Diamond has suffered and continues to suffer irreparable physical injury and emotional harm.
155. Ms. Diamond has been sexually assaulted on more than half a dozen occasions, continues to be subjected to near-daily sexual harassment and coercion. Ms. Diamond has also been diagnosed with anxiety and PTSD.
156. Due to Defendants’ actions, Ms. Diamond’s extreme vulnerability to sexual assault will continue indefinitely, absent relief.
Count Four: Failure to Train and Supervise Staff Regarding Inmate Safety or Serious Inmate Medical Needs
(As to Defendants Owens and Lewis) 157. Ms. Diamond incorporates and realleges herein the foregoing paragraphs. 158. Defendants Owens and Lewis, who are final policy and decision-makers for
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GDC, failed to properly train their staff concerning the medical and safety needs of transgender inmates and inmates with gender dysphoria, despite knowing of a widespread and pervasive pattern of abuse by GDC personnel that was likely to continue absent training.
159. Defendants knew that, based on their failure to train GDC personnel, GDC staff had repeatedly denied inmates with gender dysphoria treatment of any kind, and subjected them to discipline and reprimand in lieu of treatment, including by taunting them, calling them names, placing them in solitary confinement, and insisting they act and identify as their assigned gender — in Ms. Diamond’s case, male.
160. Defendants also knew that, based on their failure to train GDC personnel, there was a widespread and pervasive custom of GDC staff disregarding the safety needs of transgender inmates, failing to provide them reasonably safe placements, delaying, deferring, or refusing to reassess the placements of transgender inmates when sexual assaults occur, blaming transgender inmates for their assaults, and refusing to process their sexual assault grievances.
161. As a direct and foreseeable consequence of Defendants’ conscious disregard of the obvious need to train personnel, Ms. Diamond has been denied medically necessary care for her gender dysphoria and reasonable protection from foreseeable sexual assault, in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment, and fundamental notions of decency.
162. Ms. Diamond has suffered and continues to suffer irreparable physical injury and emotional harm as a result of Defendants’ failure to supervise and train personnel, and will continue to suffer substantial and irreparable harm absent immediate relief.
PRAYER FOR RELIEF 163. WHEREFORE, Plaintiff Ashley Diamond respectfully prays that this Court enter judgment in her favor and against Defendants, providing the following relief:
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A. A declaration that Defendants’ refusal to provide medically necessary treatment for gender dysphoria violates the Eighth Amendment to the United States Constitution;
B. A declaration that the Transgender SOP, both on its face and as applied to Plaintiff, violates the Eighth Amendment to the United States Constitution;
C. A declaration that Defendants Lewis, Allen and McCracken’s failure to protect Plaintiff from foreseeable sexual assault violates the Eighth Amendment to the United States Constitution;
D. A preliminary and permanent injunction directing Defendant Owens and Lewis to provide Plaintiff medically necessary treatment for her gender dysphoria under the Standards of Care, including but not limited to hormone therapy, and permitting Plaintiff to express her female gender identity through grooming, pronoun use, and dress;
E. A preliminary and permanent injunction requiring Defendant Owens and Lewis to train GDC personnel regarding the medical and safety needs of transgender inmates with gender dysphoria;
F. A preliminary and permanent injunction enjoining the enforcement of the Transgender SOP by each Defendant sued in their official capacity;
G. A preliminary and permanent injunction directing Defendants Owens and Lewis to provide Plaintiff reasonably safe placement, including but not limited to through transfer to a medium security or transitional facility;
H. Compensatory damages against each Defendant named in his or her individual capacity, in an amount adequate to compensate Plaintiff for her harms and losses;
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I. Punitive damages against each Defendant named in his or her individual capacity, in an amount to be determined at trial;
J. Reasonable attorneys’ fees and costs, including expert fees, under 42 U.S.C. § 1988; and
K. All other relief that the Court deems just and proper.

Dated: February 19, 2015

Respectfully submitted,

/s/ James M. Knoepp James M. Knoepp, GA Bar No. 366241 Southern Poverty Law Center 1989 College Ave. NE Atlanta, GA 30317 Tel: (404) 521-6700 jim.knoepp@splcenter.org
A. Chinyere Ezie,* NY Bar No. 496774 David Dinielli,* CA Bar. No. 177904 Samuel Wolfe,* AL Bar No. 2945E63W Southern Poverty Law Center 400 Washington Ave Montgomery, AL 36104 Tel: (334) 956-8200 chinyere.ezie@splcenter.org david.dinielli@splcenter.org sam.wolfe@splcenter.org
Counsel for Plaintiff
*Applications for admission pro hac vice forthcoming

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 </s> IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

ASHLEY A. DIAMOND, Plaintiff,
v. BRIAN OWENS, et al.,
Defendants.

) ) ) ) ) CIVIL ACTION NO. 5:15-CV-50 (MTT) ) ) ) ) )

ORDER Plaintiff Ashley Diamond alleges she1 is a transgender woman with gender

dysphoria. She alleges the Defendants, in various ways, violated her constitutional

rights while she was an inmate in various Georgia prisons by failing to provide her with

medical treatment and by failing to protect her from sexual assault. Some of the

Defendants have moved to dismiss some of Diamond’s claims. (Docs. 35; 38). For the

reasons discussed in detail below, the motions are DENIED.

I. INTRODUCTION

When she filed her complaint, Ashley Diamond was a “nonviolent” Georgia prison

inmate who had been incarcerated after violating probation imposed after a theft

conviction. (Doc. 3, ¶¶ 8, 16). In her 163 paragraph, 38 page verified complaint,

Diamond alleges that officials in four different prisons repeatedly violated her

constitutional rights by failing to provide her with medical treatment for her gender

dysphoria and by failing to protect her from sexual assaults. As a result, she alleges

1 All parties refer to Diamond with feminine pronouns. Consequently, the Court does the same. This should suggest nothing other than consistency.

that on many different occasions she attempted suicide, attempted to castrate herself, was raped, and was otherwise sexually assaulted by inmates at the maximum security prisons in which she was housed. Her complaint attacks in particular the Georgia Department of Corrections’ Standard Operating Procedure on the Management of Transsexuals (the “Transgender SOP”). Diamond claimed that although the Transgender SOP recognized that gender dysphoria is a serious medical need requiring special medical evaluations and appropriate treatment, the Transgender SOP nevertheless limited treatment to specific inmates, specifically those inmates who had been identified as transgender during their intake screenings, and even then treatment was limited to “‘maintenance.’” (Doc. 3, ¶¶ 47-49). She calls this type of policy a “freeze-frame policy.” (Doc. 3, ¶ 142).
Shortly after Diamond filed her complaint, the Department of Justice filed a Statement of Interest of the United States. (Doc. 29). “[T]o assist the Court in evaluating” Diamond’s motion to enjoin the enforcement of the Transgender SOP, the United States argued that “proscriptive freeze-frame policies are facially unconstitutional under the Eighth Amendment because they do not provide for individualized assessment and treatment.” (Id. at 2). Shortly after that, during a hearing on Diamond’s motion for a temporary restraining order, defense counsel announced, to the surprise of Plaintiff’s counsel and the Court, that the freeze-frame policy had been “rescinded, I want to say, two days ago.” (Doc. 40 at 33). The Court has heard nothing further from the United States so it assumes that the rescission of the policy has satisfied the United States “interests.” It did not, however, resolve Diamond’s claims for injunctive and declaratory relief unrelated to the freeze-frame policy. Then, on August
- 2 -

31, 2015, the Georgia Department of Corrections released Diamond from custody. That

resolved Diamond’s remaining claims for injunctive and declaratory relief. (Docs. 67;

68). The Court now turns to the Defendants’ remaining issues raised by the motions to

dismiss.

II. BACKGROUND2

A. Gender Dysphoria

Ashley Diamond suffers from gender dysphoria. Gender dysphoria “is a medical

condition in which an individual’s gender identity and … identification differ from the

gender assigned at birth.” (Doc. 3, ¶ 25). Diamond alleges medical professionals agree

that gender dysphoria is a serious medical condition requiring treatment conforming to the “Standards of Care.”3 (Doc. 3, ¶¶ 27-28). These standards provide that

transgender persons should be assessed individually and given appropriate treatment,

which may consist of outward expression of “one’s internal sense of gender identity,”

hormone therapy, and/or sex reassignment surgery, but not psychotropic drugs or

counseling alone. (Doc. 3, ¶¶ 31-34). If left untreated or if treatment is discontinued,

there is a “severe risk” the individual will experience “suicidality[,] the impulse to engage

in self-castration and self-harm, … clinically significant depression, anxiety, and mental

impairment.” (Doc. 3, ¶¶ 27, 32, 34).

2 The facts are taken from the allegations in the complaint (Doc. 3) and accepted as true for purposes of the motions.
3 The Standards of Care are published by the World Professional Association of Transgender Health and recognized as “the authoritative and clinically accepted treatment … by the American Psychiatric Association, the American Medical Association, courts that have considered the issue, and members of the medical community at large.” (Doc. 3, ¶¶ 28-29).
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B. GDOC’s Policies on Transgender Inmates GDOC’s now rescinded “Transgender SOP” recognized gender dysphoria as a serious medical condition and “discusse[d] the treatment regimen described in the Standards of Care.” (Doc. 3, ¶¶ 46-47). However, only inmates identified as transgender at intake were eligible for treatment. (Doc. 3, ¶ 48). Even if an inmate was classified at intake as transgender, the Transgender SOP limited treatment to “‘maintenance’ of existing treatments—preventing healthcare personnel from initiating medical treatment that in their judgment is medically required for an inmate based on the Standards of Care.” (Doc. 3, ¶ 49). Pursuant to the Transgender SOP, “inmates who [were] diagnosed with gender dysphoria after their initial diagnostic screening[ ] or who cannot show a history of treatment” were ineligible for treatments. (Doc. 3, ¶ 50). This policy, described as a “freeze-frame policy,” prevented medical professionals from initiating treatment for gender dysphoria. (Doc. 3, ¶¶ 48-49, 142). The Transgender SOP also discussed “securing proper placements for transgender inmates” and outlined procedures to reduce the risk of harm. (Doc. 3, ¶ 52). The SOP obligated the Statewide Medical Director, Defendant Sharon Lewis, to address housing placements for transgender inmates, particularly when safety issues arose. (Doc. 3, ¶¶ 52-53). The Prison Rape Elimination Act (“PREA”) and GDOC’s policies on PREA and sexual assault (the “Sexual Assault SOPs”) also provide guidelines to ensure transgender inmates’ safety from sexual assault.4 (Doc. 3, ¶ 54). Pursuant to the Sexual Assault SOPs, personnel must immediately notify wardens, Sexual Assault Response Team (“SART”) personnel, and Defendant Lewis when sexual
4 Diamond alleges that the Transgender SOP, PREA, and GDOC’s Sexual Assault SOPs are provided to all GDOC personnel, and thus the Defendants were familiar with them. (Doc. 3, ¶¶ 46, 54).
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abuse allegations are reported. (Doc. 3, ¶ 60). Finally, the Sexual Assault SOPs impose on wardens and SART personnel the “responsibility to arrange for medical and mental health examinations of suspected sexual assault victims[ ] and revised housing placements.” (Doc. 3, ¶ 61).
C. Diamond’s Background and Incarceration Since childhood, Diamond has “strongly identified” as female rather than her “assigned [male] gender.” (Doc. 3, ¶ 36). After attempting suicide at the age of 15, Diamond was diagnosed with gender dysphoria. (Doc. 3, ¶¶ 38-39). Since then, she has lived and expressed herself as female. (Doc. 3, ¶ 39). At 17, she began hormone treatments, and that treatment continued for over 17 years. (Doc. 3, ¶¶ 40, 42). As a result, she has developed female secondary sex characteristics, including “full breasts, a feminine shape, soft skin, and … a reduction in male attributes.” (Doc. 3, ¶ 40). On March 27, 2012, Diamond’s hormone therapy and “female expression”5 were terminated after she was placed in GDOC’s custody for a non-violent offense. (Doc. 3, ¶¶ 42, 45). At intake, despite her female characteristics and GDOC’s knowledge that she was a transgender woman on hormone therapy, “Diamond was not evaluated for gender dysphoria, referred for treatment, or given a reasonably safe or appropriate housing placement.” (Doc. 3, ¶ 64). Despite her non-violent offender status, GDOC housed Diamond at Macon State Prison—a “closed-security facility for adult male felons” with frequent gang activity and assaults.6 (Doc. 3, ¶¶ 64-66). Within a month, Diamond was “brutally sexually assaulted” by six gang members. (Doc. 3, ¶ 69).
5 Female expression means just what it suggests—dressing and otherwise presenting oneself as a woman. 6 A closed-security facility is what GDOC calls its maximum security facilities. (Doc. 3, ¶ 65).
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GDOC then transferred her to Baldwin State Prison, which is also a closed-security
facility. (Doc. 3, ¶ 70). There, inmates again sexually assaulted Diamond. (Doc. 3, ¶
71). Diamond reported these assaults, but personnel were slow to respond, lost her
complaints and physical evidence of the assaults, failed to investigate, and told her she
“brought her assaults upon herself” because she was transgender. (Doc. 3, ¶ 71). Pursuant to GDOC policies, Lewis was notified after each assault but “took no action.”7
(Doc. 3, ¶¶ 60, 71).
GDOC mental health professionals diagnosed Diamond with post-traumatic
stress disorder (“PTSD”) and recommended a transfer to a medium-security facility
because her transgender status made her more vulnerable to sexual assaults at a closed-security facility.8 (Doc. 3, ¶ 72). They also diagnosed Diamond with gender
dysphoria, noted her history of treatment and self-harm attempts, and recommended
ongoing treatment. (Doc. 3, ¶ 73). No treatment was provided. (Doc. 3, ¶ 73).
Diamond attempted suicide on February 28, 2013. (Doc. 3, ¶ 73). Two months later,
GDOC healthcare providers reconfirmed Diamond’s gender dysphoria and PTSD.
(Doc. 3, ¶ 74). GDOC psychologist Stephen Sloan also performed an individualized
assessment of Diamond pursuant to the Standards of Care. (Doc. 3, ¶ 75). He
7 Several of Diamond’s allegations are prefaced by “upon information and belief.” The Defendants do not specifically contend these allegations are conclusory because they are based “upon information and belief.” Rather, they consistently argue Diamond’s allegations are generally conclusory. Allegations based on information and belief can be problematic if they are merely conclusory. But Diamond’s information and belief allegations are buttressed by specific facts and otherwise supported by inferences derived from other well-pled allegations, which make the “upon information and belief” allegations plausible. See Sneed v. SEI/Aaron’s, Inc., 2013 WL 6669276, at *2 (N.D. Ga.). For example, Diamond alleges that, upon information and belief, Lewis was notified after each incident of sexual assault pursuant to GDOC policy. (Doc. 3, ¶¶ 69, 71). This allegation is buttressed by Diamond’s specific allegation that GDOC’s sexual assault policies require personnel to immediately notify Lewis about sexual assault allegations. (Doc. 3, ¶ 60). 8 Diamond alleges that sexual assaults against transgender inmates are infrequent at medium-security facilities, which house non-violent offenders. (Doc. 3, ¶¶ 68, 77).
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concluded Diamond “stood a substantial risk of self-harm and suicide” without treatment and recommended Diamond receive hormone therapy and be permitted female gender expression. (Doc. 3, ¶ 75). Lewis “refused to authorize treatment,” and Diamond’s visits with Dr. Sloan were discontinued. (Doc. 3, ¶ 76).
D. Rutledge State Prison On October 1, 2013, Diamond was transferred to Rutledge State Prison, a medium-security facility for non-violent inmates. (Doc. 3, ¶ 77). Upon Diamond’s arrival, Defendants Warden Shay Hatcher, Deputy Warden of Care and Treatment Ruthie Shelton, and John Thompson and Donna Silver, healthcare providers at Rutledge, received her records of “sexual assaults, gender dysphoria diagnosis, history of hormone treatment, past attempts at self-harm, and requests for ongoing care.” (Doc. 3, ¶ 78). Diamond informed Thompson and Silver about her prior hormone therapy, Dr. Sloan’s assessment, and her “muscle spasms, chronic pain, and compulsion to engage in self-castration” from lack of treatment. (Doc. 3, ¶¶ 79-80). They denied her request for hormone treatments. (Doc. 3, ¶¶ 81, 84). In November 2013, Diamond contacted Shelton about the availability of treatment for gender dysphoria. (Doc. 3, ¶ 82). Shelton replied that “the Department does not offer therapy for this at this time” and also advised personnel that GDOC’s policy permits counseling but not the initiation of hormone therapy. (Doc. 3, ¶ 83). Diamond then contacted Warden Hatcher and requested treatment. (Doc. 3, ¶ 85). Shelton, on Hatcher’s behalf, wrote a letter acknowledging Diamond “was suffering from the denial of medical care” but only advised her “to develop better coping mechanisms.” (Doc. 3, ¶ 86).
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After Diamond filed a grievance about the denial of treatment, Hatcher placed her in solitary confinement twice: once for “pretending to be a woman” and then again after attorneys visited her. (Doc. 3, ¶¶ 88-89). Hatcher visited Diamond in solitary in December 2013, and Diamond told him she was suicidal from lack of treatment. (Doc. 3, ¶ 89). When Hatcher left her in solitary, Diamond attempted suicide and selfcastration, and she was “hospitalized on an emergency basis.” (Doc. 3, ¶ 90). Diamond alleges Hatcher and Lewis were told of her suicide and castration attempts. (Doc. 3, ¶ 90). Lewis subsequently informed Diamond that GDOC personnel “had handled matters appropriately” and instructed personnel “to continue their blanket policy of refusing to initiate gender dysphoria treatment[ ] and offering counseling in lieu of medically necessary treatment called for by the Standards of Care.” (Doc. 3, ¶ 91).
E. Valdosta State Prison On December 31, 2013, Diamond was transferred to Valdosta State Prison, a closed-security facility. (Doc. 3, ¶ 92). Upon her arrival, Defendants Warden Marty Allen and David McCracken, the Director of Mental Health Services and PREA coordinator at the prison, received records “detailing her history of sexual assaults, gender dysphoria diagnosis, history of hormone treatment, past attempts at self-harm, and requests for ongoing care.” (Doc. 3, ¶¶ 20, 92). In January and February 2014, Drs. Moody and Harrison, medical personnel at Valdosta State Prison, concluded Diamond “stood a high risk for suicide and self-harm” if she did not receive hormone therapy. (Doc. 3, ¶¶ 95-96). Dr. Moody advised Lewis of their conclusions and “sought to initiate treatment.” (Doc. 3, ¶ 97). But, adhering to the Transgender SOP, Lewis only permitted counseling. (Doc. 3, ¶ 97). Diamond was
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hospitalized in March 2014 after again attempting suicide and self-castration. (Doc. 3, ¶ 104). Diamond then contacted GDOC Commissioner Brian Owens,9 Allen, and McCracken regarding her lack of treatment. Diamond explained to the Commissioner her medical history and GDOC’s repeated denial of treatment, but he refused to authorize treatment and continued to enforce GDOC’s policy. (Doc. 3, ¶¶ 107, 109, 135). Allen responded with ridicule, disciplined her for her female expression, and “encouraged his staff to ridicule” her. (Doc. 3, ¶ 111). McCracken “deferred and delayed any action.” (Doc. 3, ¶ 103).
In addition, GDOC personnel at Valdosta State Prison failed to provide Diamond with “safety accommodations.” (Doc. 3, ¶ 93). Rather, she was simply told at intake that the prison “lacked the means to safely house transgender persons” and that she should “guard [her] booty” because she “stood a high likelihood of being sexually assaulted based on the inmate population, which included many gang members.” (Doc. 3, ¶ 93).
The day after her transfer to Valdosta State Prison, Diamond was sexually assaulted by her cellmate. (Doc. 3, ¶ 94). Still, no action was taken, and she remained housed with the perpetrator who continued to sexually harass and coerce her. (Doc. 3, ¶ 94). Diamond was sexually assaulted again on February 9, 2014, and she was twice sexually assaulted in April 2014. (Doc. 3, ¶¶ 99, 106).
Lewis, Allen, and McCracken were notified after each report of sexual assault pursuant to GDOC’s policy, but they did not adjust Diamond’s placement or take other
9 Homer Bryson replaced Brian Owens as Commissioner after Diamond filed her complaint. Because Owens was sued only in his official capacity, Bryson was automatically substituted for Owens. In this Order, Owens is referred to as the Commissioner. The Commissioner has been dismissed from this action. (Doc. 68).
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safeguarding measures. (Doc. 3, ¶¶ 60, 94, 99). Specifically, Dr. Harrison told Allen and McCracken that Diamond should be transferred because she stood a high risk of sexual assault given Valdosta’s inmate population. (Doc. 3, ¶ 98). Diamond also personally contacted Allen and McCracken about her safety. In April 2014, Diamond told Allen of the assaults, but he “refused to act.” (Doc. 3, ¶ 105). In February, May, and June of 2014, Diamond told McCracken about the assaults and requested a transfer. (Doc. 3, ¶¶ 102-103, 114). But McCracken “deferred and delayed any action,” resulting in further “sexual harassment and coercion.” (Doc. 3, ¶¶ 103, 114-15). Diamond also contacted the Commissioner twice about her repeated sexual assaults at closed-security prisons and requested a transfer to a medium-security facility, but Diamond remained at Valdosta State Prison. (Doc. 3, ¶¶ 101, 107). After filing a pro se lawsuit against Allen and McCracken, Diamond was transferred back to Baldwin, where she had previously been sexually assaulted. (Doc. 3, ¶¶ 119-20).
III. DISCUSSION Diamond asserts four claims in her complaint. (Doc. 3). She alleges (1) all defendants were deliberately indifferent to her serious medical needs by denying her medically necessary treatment for her gender dysphoria; (2) Lewis violated her Eighth Amendment rights by enacting and enforcing an unconstitutional “freeze-frame policy” regarding gender dysphoria treatment; (3) Lewis, Allen, and McCracken failed to protect her from a substantial risk of sexual assault; and (4) Lewis failed to train GDOC personnel regarding transgender inmates’ health and safety. Hatcher, Allen, and McCracken argue Diamond failed to exhaust her administrative remedies with respect to Count 1. Allen and McCracken argue Diamond failed to exhaust her administrative
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remedies with respect to Count 3. Allen, Shelton, McCracken, Thompson, and Silver move to dismiss Count 1 for failure to state a claim, and Allen, Shelton, Lewis, and Hatcher argue they are entitled to qualified immunity. Lewis and McCracken move to dismiss Count 3 for failure to state a claim, and Lewis argues she is entitled to qualified immunity. Lewis moves to dismiss Count 4 for failure to state a claim and asserts qualified immunity.
A. Failure to Exhaust Administrative Remedies 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” “[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here, an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (internal quotation marks and citation omitted). Grievances should provide prison officials with fair notice of a problem and thus an opportunity to address the problem before a lawsuit is filed. Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004). In determining whether a plaintiff has exhausted administrative remedies, the Court can resolve factual disputes using evidence from outside the pleadings. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). The resolution of a failure-to-exhaust administrative remedies defense typically involves two steps. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). The court first looks to the parties’ factual allegations. Id. If they conflict, the court takes the
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plaintiff's version of the facts as true. Id. “If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id. If the complaint is not subject to dismissal under the plaintiff's version of the facts, the court must proceed to the second step, making specific findings of fact to resolve the disputed factual issues related to exhaustion. Id. At this step, the Defendants have the burden to prove Diamond failed to exhaust her administrative remedies. Id. Here, however, the Parties mostly do not dispute the facts relevant to Diamond’s grievances. Rather, the Defendants contend these facts establish that Diamond failed to exhaust. In the absence of factual disputes, the Court will simply determine whether the allegations establish Diamond exhausted her administrative remedies as to the specific claims against the Defendants. However, in some instances, the Defendants disagree with Diamond’s interpretation of the facts, and, where necessary, the Court will treat their disagreement as a factual dispute and resolve that dispute as required by step two of the Turner analysis. See Toenninges v. Ga. Dep’t of Corr., 600 F. App’x 645, 649 (11th Cir. 2015).
GDOC’s grievance procedure requires inmates to follow a two-step process to exhaust their administrative remedies. They must (1) file an original grievance no later than 10 days from the date of the incident giving rise to the grievance; and (2) if the original grievance is rejected, file an appropriate appeal within seven days of receiving the rejection. (Doc. 35-3, ¶¶ 6-17). The untimeliness of a grievance may be waived for good cause. (Doc. 35-2 at 15). As discussed more fully below, when a grievance alleges sexual assault, “the grievance process is terminated and the matter is forwarded
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to the Internal Investigation Unit and/or the PREA coordinator for review.” (Docs. 35-2 at 18; 35-3, ¶ 20).
1. Whether Diamond Exhausted Her Claims for Deliberate Indifference to Medical Needs
Diamond contends Grievance #163506, which she filed at Rutledge State Prison and which the Court will call the “Rutledge grievance,” exhausted her claims for deliberate indifference to medical needs against Hatcher at Rutledge State Prison and Allen and McCracken at Valdosta State Prison. Diamond also contends Grievance #173610, which she filed at Valdosta State Prison, exhausted her claims for deliberate indifference against Allen and McCracken. Diamond fully exhausted both grievances pursuant to GDOC’s two-step grievance process. Hatcher, Allen, and McCracken, however, contend those grievances did not exhaust Diamond’s administrative remedies because they did not raise the same issues Diamond alleges against them in her complaint.
Diamond’s deliberate indifference claims against Hatcher, Allen, and McCracken are based on the following allegations. Diamond alleges that Hatcher, Allen, and McCracken were aware from GDOC’s Transgender SOP that gender dysphoria is a serious medical condition that can require hormone therapy and female gender expression. (Doc. 3, ¶¶ 46-47). Upon Diamond’s transfer to Rutledge State Prison on October 1, 2013, Hatcher received records detailing Diamond’s gender dysphoria diagnosis, history of hormone treatment, and requests for ongoing care. (Id. at ¶¶ 7778). After being denied gender dysphoria treatment by medical professionals and being told by them and by Defendant Shelton that she would receive no treatment for gender dysphoria at Rutledge, Diamond wrote a letter to Hatcher explaining her gender
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dysphoria and her ongoing need for treatment. (Id. at ¶¶ 79-85). Shelton, on Hatcher’s behalf, responded that they “acknowledged [she] was suffering from the denial of medical care” and advised her “to develop better coping mechanisms” instead of referring her for treatment. (Id. at ¶ 86). Thereafter, Diamond filed the Rutledge grievance in which she grieved the “denial of treatment for her serious medical needs.” (Docs. 3, ¶ 87; 49-4 at 9). “In response” to the grievance, Hatcher put Diamond in solitary confinement for nearly a week for “‘pretending to be a woman.’” (Doc. 3, ¶ 88). Hatcher again put Diamond in solitary confinement after she was visited by attorneys who learned of her denial of treatment. (Id. at ¶ 89). During that period of confinement, Diamond told Hatcher “she was not simply ‘pretending to be a woman,’ but had serious medical needs requiring treatment.” (Id.). Diamond also told Hatcher she was suicidal because she had been denied the care. (Id.). Still, Hatcher refused to refer Diamond for treatment. (Id. at ¶ 90). Immediately after that, Diamond attempted suicide and tried to sever her penis. (Id.).
Diamond was then transferred to Valdosta State Prison where Allen and McCracken were provided with “a transfer summary detailing [Diamond’s] history of sexual assaults, gender dysphoria diagnosis, history of hormone treatment, past attempts at self-harm, and requests for ongoing care.” (Id. at ¶ 92). Mental health professionals at Valdosta State Prison performed individualized assessments of Diamond and concluded that she should receive treatment for her gender dysphoria and that she was experiencing withdrawal because treatment had been denied. (Id. at ¶ 96). Further, they concluded the denial of medical care created a “high risk for suicide and self-harm.” (Id.). However, she does not allege that Allen and McCracken were
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aware of these conclusions. She does allege that she told McCracken about her gender dysphoria and that she needed medical care. (Id. at ¶ 102). She asked McCracken to transfer her to a facility where she could receive gender dysphoria care. (Id. at ¶ 103). In May 2014, Diamond “personally contacted Defendant Allen again regarding her gender dysphoria and ongoing need for treatment, but, in response, Defendant Allen began subjecting Ms. Diamond to harassment on account of her being transgender.” (Id. at ¶ 110).10 Specifically, Allen ridiculed Diamond and encouraged staff to ridicule her for her female gender expression. (Id. at ¶ 111). On May 15, 2014, he disciplined her for her gender expression. (Id.). Diamond then alleges she complained about “Allen’s conduct and her ongoing denial of medical care.” (Id. at ¶ 112). This is an apparent reference to Grievance #173610. In May and June 2014, Diamond continued to speak with McCracken about her need for care. (Id. at ¶ 114).
a. The Rutledge grievance
In the Rutledge grievance, Diamond stated: I met with the [psychologist] Dr. Thomson and [psychiatrist] Dr. Silver in regards to treatment for [gender dysphoria]. They told me that they weren[’]t going to treat [gender dysphoria] at Rutledge. I am grieving the denial of treatment for my serious medical needs. I also the same day received a letter from the Warden of Care and [T]reatment saying the same. (49-4 at 9). For relief, she requested “[t]reatment for my Disorder by transferring me to a facility that has [doctors qualified] to treat me.” (Id.). During the grievance investigation, Defendant Shelton characterized Diamond’s allegations as follows: “Inmate alleges that he is not receiving proper treatment for his serious medical needs. He says he met with [Dr. Silver] and Dr. Thompson in regards to receiving treatment for
10 Despite Diamond’s suggestion that she again asked Allen about the denial of medical care, there is no evidence of an earlier communication with Allen about medical care. She does allege she contacted Allen about safety concerns. (Id. at ¶ 105).
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[gender dysphoria] and he was told that that type of treatment is not done here.” (Id. at 5). The grievance coordinator similarly characterized Diamond’s grievance: “Inmate alleges that he is not receiving proper treatment for his medical needs. He says that he met with Dr. Silver and Dr. Thompson in regards to receiving treatment for [gender dysphoria] and was told that this treatment is not done at this facility.” (Id. at 4). Hatcher denied the grievance, and Lewis denied Diamond’s appeal. (Id. at 2-3).
Seizing on a single paragraph in Diamond’s complaint, Hatcher and Allen argue that the deliberate-indifference-to-medical-needs claim against them is based on their alleged punishment of Diamond for “expressing her female gender, a medical necessary form of treatment.” (Doc. 3, ¶ 130). Based on this interpretation of Diamond’s claim, they argue the Rutledge grievance does not involve “the exact same issue,” and thus the grievance could not have exhausted her claim for their conduct subsequent to the filing of the Rutledge grievance. (Doc. 56 at 3). McCracken claims that the Rutledge grievance did not exhaust the claim against him because it concerned treatment by other medical providers at another prison. (Doc. 57 at 5). Citing Parzyck v. Prison Health Services, Inc., 627 F.3d 1215 (11th Cir. 2010), Diamond contends that the Rutledge grievance exhausted her deliberate indifference claims against all three.
In Parzyck, the plaintiff grieved that he was being denied consultations for severe back pain. 541 F.3d at 1218. During the pendency of his grievance appeal, a new doctor assumed responsibility for the plaintiff’s care. Id. The plaintiff requested a consultation with the new doctor, but he denied the request just as the previous doctor had done. Id. After the denial of his appeal, the plaintiff sued. Id. The Eleventh Circuit reversed the district court’s conclusion that the plaintiff failed to exhaust any claim
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based on the second doctor’s denial of treatment. Id. at 1218-19. The Eleventh Circuit reasoned the first grievance accomplished the exhaustion requirement’s purpose to alert prison officials to a problem because the issue raised in the first grievance was the “exact same issue” the plaintiff alleged against the second doctor. Id. at 1219 (“Parzyck was not required to initiate another round of the administrative grievance process on the exact same issue each time another request for an orthopedic consultation was denied.”). The court further noted that “[n]othing in the [agency’s] grievance procedures requires inmates to file new grievances addressing every subsequent act by a prison official that contributes to the continuation of a problem already raised in an earlier grievance.” Id.
As in Parzyck, nothing in GDOC’s grievance procedures “requires inmates to file new grievances addressing every subsequent act by a prison official that contributes to the continuation of a problem already raised in an earlier grievance.” Id. Further, GDOC’s grievance procedure does not require a particular level of factual specificity for inmates’ grievances or that each defendant implicated by the grievance be named. “[A] grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought” and gives prison officials an opportunity to resolve it. Doe v. Wooten, 2010 WL 2821795, at *2 (N.D. Ga.); see also Parzyck, 627 F.3d at 1218-19; Chandler, 379 F.3d at 1287; Brown v. Sikes, 212 F.3d 1205, 1210 (11th Cir. 2000). Therefore, if a grievance alerts a prison official to an issue, the prisoner need not again grieve the “exact same issue.” Parzyck, 627 F.3d at 1218-19.
However, and directly contrary to Hatcher’s assertion, Diamond’s claim against him is not based only on his disciplining of her after she filed the Rutledge grievance.
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Before she filed the grievance, she wrote Hatcher regarding her ongoing request for
treatment. (Doc. 3, ¶¶ 79-85). Shelton, on Hatcher’s behalf, acknowledged Diamond’s
letter, but prison officials at Rutledge still refused to refer her for treatment. (Id. at ¶ 86).
Thus, Diamond alleges that Hatcher was directly involved in the conduct she complains
about in the Rutledge grievance. He was not, as in Parzyck, an actor who only entered
the picture after Diamond filed the Rutledge grievance. Thus, it is not necessary to turn
to Parzyck to find that the grievance alerted prison officials at Rutledge State Prison,
including Hatcher, to her deliberate indifference claims.
That Diamond alleges that Hatcher, while the grievance process was ongoing,
placed her in solitary for “pretending to be a woman” and personally told her she would
receive no treatment even though she was suicidal (Id. at ¶ 89) certainly buttresses
Diamond’s claim against Hatcher. But those allegations do not raise a new claim
raising an issue different than the issue she raised in the Rutledge grievance.11 Indeed,
it was Hatcher himself who denied Diamond’s grievance shortly after he visited her in
solitary. (Doc. 49-4 at 3). Hatcher’s alleged conduct during the grievance process that
contributed to the ongoing denial of gender dysphoria treatment constitutes subsequent
“harmful incident[s] in a string of related occurrences.” See Toenninges, 600 F. App’x at
11 The Eleventh Circuit in Parzyck relied on the Fifth Circuit’s decision in Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004). In discussing whether inmates are obligated to file subsequent grievances regarding the same issue, the Fifth Circuit cites to authority recognizing that “[r]igid ‘issue exhaustion’” is “inappropriate when the fundamental issue is one of medical care from the same injury.” Sulton v. Wright, 265 F. Supp. 2d 292, 298 (S.D.N.Y. 2003), abrogated on other grounds by Scott v. Gardner, 287 F. Supp. 2d 477 (S.D.N.Y. 2003). Other persuasive authority addressing the same have also refused to break down allegations involving different “aspects” of the defendant’s conduct that serve as the basis of a single deliberate indifference claim against him. See Gomez v. Wilson, 177 F. Supp. 2d 977, 982 (N.D. Cal. 2001) (refusing to divide allegations of inadequate treatment into distinct claims requiring separate grievances where the allegations are aspects of the single claim); Torrence v. Pelkey, 164 F. Supp. 2d 264, 277-78 (D. Conn. 2001) (“[T]he failure to disclose, monitor[,] or treat plaintiff’s HCV status was part of the same conduct and temporally congruent with his other deliberate indifference claims against Dr. Stein, and fairly encompassed in the pro se allegation [in his grievance] that ‘medical neglect … has caused damage to my … liver.’” (citation omitted)).
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649. Thus, the Court easily finds that the Rutledge grievance exhausted Diamond’s claim against Hatcher for deliberate indifference to her serious medical needs.
Diamond’s deliberate indifference claims against Allen and McCracken, however, are based on events at Valdosta State Prison. Obviously, the Rutledge grievance complained only of the denial of treatment at Rutledge, and prison officials who investigated the grievance characterized the issue as the denial of treatment at Rutledge. Relying on Parzyck, Diamond argues the Rutledge grievance covered all staff indifference to Diamond’s medical needs at subsequent prisons. The Court disagrees. Parzyck cannot reasonably be extended to allow an inmate to use a single grievance, complaining of a condition of confinement at a specific prison, as an “umbrella grievance” to cover all similar conditions of confinement at any subsequent prison the inmate is housed during the duration of his confinement within GDOC facilities.
Indeed, cases from the Tenth and Fifth Circuits on which the Eleventh Circuit relied in Parzyck limit their holdings to continuing violations of the same issue raised in an earlier grievance where the inmate remained in the same situation or where the subsequent conduct at the same prison occurred within a short duration after the grievance was filed. See Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008) (holding a grievance exhausted continuing violations of the issue occurring within the inmate’s housing wing up until he was transferred out of the prison, but when he was transferred back to the prison to a different housing wing, the earlier grievance did not exhaust continuing violations within the different wing); Johnson, 385 F.3d at 521 n.13 (“We pause to observe that we do not here hold that a grievance filed in response to
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one particular incident automatically exhausts claims that arise from future incidents of the same general type.”); see also Pinson v. St. John, 2013 WL 765639, at *1 (N.D. Ala.) (“Since one of the purposes of the grievance process is to place the prison administration on notice of the problem and to give the administration the opportunity to resolve the issue without the need for litigation, it is axiomatic that the plaintiff cannot now claim exhaustion by referring to a grievance process that occurred at a wholly different location and involved individuals other than those named as defendants in the complaint herein.”).
While the Fifth Circuit in Johnson v. Johnson acknowledged the notice-purpose of exhaustion, the court stated that “at the same time, the grievance must provide administrators with a fair opportunity under the circumstances to address the problem that will later form the basis of the suit, and for many types of problems this will often require, as a practical matter, that the prisoner's grievance identify individuals who are connected with the problem.” 385 F.3d at 522. Here, although conduct of the same general type also occurred at Valdosta State Prison, the Rutledge grievance did not provide facts connecting prison officials at Valdosta State Prison with the problem or otherwise put prison officials on notice of an internal problem at Valdosta State Prison. See Goebert v. Lee Cty., 510 F.3d 1312, 1324 (11th Cir. 2007) ( “[T]he exhaustion requirement in the PLRA seeks to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case” (internal quotation marks and citation omitted)). Thus, the Rutledge grievance did not provide prison officials with a fair opportunity to address the problem that later formed the basis of the claims against Allen and McCracken. Accordingly, the Court finds the Rutledge
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grievance did not exhaust Diamond’s administrative remedies with respect to the deliberate indifference claims against Allen and McCracken.
b. Grievance #173610 Diamond also contends Grievance #173610 exhausted her administrative remedies with respect to her deliberate indifference claims against Allen and McCracken. In this grievance, she complained that on May 15, 2014, she was told by the warden, presumably Allen, “that he didn’t like my eyebrows and we aren[’]t going to do that[.] ‘This is a man’s facility.’” (Doc. 49-5 at 4). Citing her “well-documented” transgender status, Diamond asked for a transfer to a facility “that can house ‘my kind’ efficiently and safely.” (Id.). She noted that she had requested transfer for safety and medical reasons numerous times. (Id.). She contended gender dysphoria is a serious condition and that she “deserve[d] fair impartial treatment [and] respect.” (Id.). She specifically requested transfer to a facility better equipped to handle transgender inmates, claiming that she was entitled “to have GDC staff respect trans[gender] community by [referring] to them as proper pronoun and treating [their] disorder.” (Id.). When the “Warden/Superintendent” rejected the grievance, Diamond appealed claiming “there is a medical reason for my eyebrow adornment[.] It is called Gender Identity Disorder. (Id. at 3). Valdosta State Prison is providing me [with] no treatment.” (Id.). Allen and McCracken contend that Grievance #173610 raises only the issue of a purportedly offensive comment by Allen about Diamond’s eyebrows. (Docs. 35-1 at 7-8 n.5; 38-1 at 7-8). This is not a fair reading of Grievance #173610. While the grievance addressed gender expression, Diamond claimed that she was entitled to treatment for her disorder. In her appeal, she explained “[t]here is a medical reason for my eyebrow
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adornment. It is called Gender Identity Disorder. Valdosta State Prison is providing me [with] no treatment ….” (Doc. 49-5 at 3). In response to her grievance, either Allen or the superintendent12 (1) quoted the policy that facial adornments are prohibited unless medically indicated and attached the policy with the response; (2) stated Diamond had no medical need for her facial adornments; and (3) told Diamond she was male and had to follow the rules. (Id. at 5). In her appeal, Diamond further explains that her medical condition is the reason for her feminine eyebrows. (Id. at 3). The response to Diamond’s appeal acknowledged the policy permitting facial adornments when medically necessary but denied the appeal. (Id. at 2).
The Court finds Grievance #173610 alerted prison officials to the fact that (1) Diamond is an inmate with gender dysphoria requesting treatment for her disorder; (2) Valdosta State Prison allegedly cannot adequately treat this disorder; and (3) Allen prohibits female gender expression, which Diamond alleges is a treatment for gender dysphoria, because “we aren’t going to do that[.] ‘This is a man’s facility.’” (Id. at 4). Diamond alleges the same in her complaint. Specifically, Diamond alleges she is a transgender inmate who requires gender dysphoria treatment including hormone therapy and the expression of her female gender. (Doc. 3, ¶¶ 2-3). But Allen and McCracken refused to provide gender dysphoria treatment, and Allen ridiculed and disciplined her for her gender expression. (Id. at ¶¶ 97, 102, 110-14). Given that Grievance #173610 alerted prison officials to the same issues that underlie the deliberate indifference claims against Allen and McCracken, the Court finds Grievance #173610 exhausted Diamond’s deliberate indifference claims against them.
12 It is unclear whose signature is on the “Warden’s/Superintendent’s Grievance Response” form. (Doc. 49-5 at 5).
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Accordingly, Hatcher, Allen, and McCracken’s motions to dismiss Count I for failure to exhaust are DENIED.
2. Whether Diamond Exhausted Her Failure-to-Protect Claims against Allen and McCracken
Diamond contends Grievance #180025, filed at Valdosta State Prison (“the Valdosta failure-to-protect grievance”13), and Grievances #189277, #189275, and #189273, filed at Baldwin State Prison (“the Baldwin grievances”), exhausted her failure-to-protect claims against Allen and McCracken.14 Allen and McCracken argue the Valdosta failure-to-protect grievance did not put prison officials on notice of the problems underlying Diamond’s failure-to-protect claims against them. They argue the Baldwin grievances were untimely.
Diamond first contends the Valdosta failure-to-protect grievance sufficiently put prison officials on notice of the allegations underlying her failure-to-protect claims arising from events at Valdosta State Prison. In support of that claim, Diamond alleges that upon her transfer to Valdosta State Prison on December 31, 2013, Allen and McCracken received records detailing her history of sexual assaults. (Doc. 3, ¶ 92). The next day Diamond was sexually assaulted by her cellmate. (Id. at ¶ 94). She reported the assault and alleges that Allen, as warden, and McCracken, as the leader of the Sexual Assault Response Team (“SART”), were made aware of the assault. (Id.). Nevertheless, she remained housed with the perpetrator “who subjected her to continued sexual harassment and coercion.” (Id.). Medical personnel advised Allen
13 Of course, calling it this does not establish that the grievance was a proper failure to protect grievance. This is simply a way to avoid confusing references to multiple grievances by six digit numbers. 14 Diamond also contends Grievance #173610 exhausted her failure-to-protect claims against Allen and McCracken. As discussed below, the Valdosta failure-to-protect grievance and the Baldwin grievances exhausted her failure-to-protect claims against these Defendants, and thus the Court does not address Grievance #173610.
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and McCracken of Diamond’s “ongoing safety issues and need for a transfer to a safer facility, based on [the] conclusion that Ms. Diamond stood a substantial risk of continued sexual assault at Valdosta based on the inmate composition.” (Id. at ¶ 98). Nevertheless, Allen and McCracken “deferred and delayed” action on the recommendations to revise Diamond’s placement. (Id. at ¶ 103).
Diamond was again assaulted on February 9, 2014, and she alleges that Allen and McCracken were notified of the assault. (Id. at ¶ 99). They again refused to revise Diamond’s placement. (Id.).
On February 26, 2014, “Diamond personally contacted Defendant McCracken regarding her safety.” (Id. at ¶ 102). She told McCracken that she had been repeatedly sexually assaulted and that she feared for her safety. (Id.). Diamond asked McCracken to arrange for her transfer to a safer facility, but again McCracken “deferred and delayed action.” (Id. at ¶ 103).
In April 2014 Diamond contacted Allen about her safety concerns. (Id. at ¶ 105). She told Allen about the sexual assaults and her “ongoing fears for her safety” and asked to be transferred to a safer facility. (Id.). Allen refused. (Id.). Also in April 2014, Diamond was sexually assault two more times. (Id. at ¶ 106). These assaults were also reported, and Allen and McCracken were notified of the assaults “pursuant to GDC policy.” (Id.). They still took no action. (Id.)
In May and June 2014, Diamond again spoke with McCracken about the repeated sexual assaults and the continued sexual harassment and coercion that she was experiencing. (Id. at ¶ 114). She again asked McCracken to arrange for her transfer, but he again “delayed and deferred any action.” (Id. at ¶ 115).
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Diamond incorporates these allegations in her failure-to-protect claim against Allen and McCracken and generally alleges that they along with certain other defendants were aware of her many assaults and their obligations under PREA and GDOC policy to take reasonable steps to protect her from such assaults. She specifically alleges that Allen and McCracken were deliberately indifferent to her “safety needs by, inter alia, disregarding their obligations under PREA and the Sexual Assault SOPs to assess the needs of sexual assault victims and provide appropriate placements; failing to take action after receiving notification of [Diamond’s] ongoing sexual assaults; and unreasonably denying, delaying, or deferring [her] requests for protection.” (Id. at ¶ 152).
a. The Valdosta failure-to-protect grievance Diamond filed the Valdosta failure-to-protect grievance on August 20, 2014,15 after placing what she called “videos for help” on YouTube. (Doc. 49-6 at 6). According to Diamond, the YouTube video series documented “her and other inmates’ pleas for help regarding sexual abuse and sexual assault.” (Doc. 49 at 37-38). Her grievance stated: I am grieving my personal safety and mental health being housed at Valdosta State Prison, “pending investigation but because of staff involv[ement] w[ith] making videos to supposedly” help us[.] The safety of me (all) is a big concern as well as retaliation for disclosing info[rmation] about staff involvement in filming. There can be fatal consequences for all involved unless Internal Affairs moves me and does a full investigation on our pleas for help. (Doc. 49-6 at 6). The grievance coordinator acknowledged that Diamond “is grieving his personal safety while being housed at Valdosta SP and fears retaliation because of the pending investigations of the video on you tube. Inmate stated there can be fatal
15 Allen and McCracken do not contend the grievance was untimely. - 25 -

consequences for all involved unless [Internal Affairs] move him and do a full investigation of their pleas for help.” (Id. at 8). In his response to the grievance, Allen stated: “You are housed in Tier I at this time. [Y]ou have not provided the names of any staff involved in the making of the YouTube videos. We would be happy to provide any information you wish to give to Internal Affairs for their review and investigation.” (Id. at 7). In her appeal of the grievance denial, Diamond reiterated her safety concerns and emphasized that “Internal Investigations should have been involved from the beginning” and that “Valdosta State Prison failed to respond to any and all sexual abuse allegations, and even returned grievances involving sexual abuse allegations.” (Id. at 5). She wrote that the grievance intake officer only asked her why she “got the inmates in trouble.” (Id.).
The appeal was denied without any specific mention of Diamond’s sexual assault allegations. (Id. at 2). Rather, the response suggested that Diamond’s safety concerns were based upon her fear of “retaliation for disclosing information about staff involvement in the making of the videos.” (Id.). Noting that the grievance intake officer said Diamond did not provide information “about staff who allegedly aided in the videos or any specific safety concerns,” the grievance was denied because there was no evidence “that staff placed your safety and mental health at risk due to you allegedly disclosing staff involvement in the making of videos that were placed on youtube.” (Id.)
Accusing Diamond of “plucking select phrases out of context,” Allen asserts that the Valdosta failure-to-protect grievance did not complain about sexual assault but rather “in Plaintiff’s own words, [expressed] a concern for her ‘personal safety and mental health’ at Valdosta ‘because of staff involvement in making videos to supposedly
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help us.’” (Doc. 56 at 4). In even more conclusory fashion, McCracken simply argues that the Valdosta failure-to-protect grievance addressed only YouTube videos and Diamond’s fear of retaliation for staff involvement in the videos. (Doc. 38-1 at 8).
It is apparent that it is Allen and McCracken who have plucked words out of context. The Valdosta failure-to-protect grievance does not say that Diamond is grieving her personal safety because of staff involvement with the YouTube videos. While Diamond acknowledged that she had been placed in isolation “pending investigation for phone activity,” she grieved “my personal safety and mental health being housed at Valdosta State Prison, “pending investigation but because of staff involv[ement] w[ith] making videos to supposedly ‘help us.’” (Doc. 49-6 at 6). She says her safety is “a big concern, as well as retaliation for disclosing info about staff involvement in filming.” (Id.). The grievance coordinator read Diamond’s grievance to grieve her personal safety and fear of retaliation because of investigations of the YouTube videos. He understood Diamond to be asking for an Internal Affairs investigation of “their pleas for help.” (Id. at 8). The reference to Internal Affairs by Diamond and the grievance coordinator is significant because grievances involving sexual assault “are automatically forwarded … to Internal Investigation Unit.” (Doc. 352 at 18).
Based on these facts, the Court concludes that the Valdosta failure-to-protect grievance was sufficient to put prison officials on notice of Diamond’s allegations that the prison officials at Valdosta State Prison failed to protect her from sexual assault. That prison officials for some reason ultimately decided to treat the grievance as one for
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fear of retaliation does not establish that Diamond did not complain in her grievance about sexual assaults. That, after all, was the entire point of the YouTube videos.
The only facts offered by Allen and McCracken to counter Diamond’s allegations regarding the Valdosta failure-to-protect grievance is an affidavit from the warden of care and treatment at Valdosta State Prison who testifies that Diamond never filed a grievance regarding incidents of sexual assault. (Doc. 35-3, p. 10 at ¶ 30). With regard to the Valdosta failure-to-protect grievance specifically, the warden simply says that Diamond “complained that he was concerned for his health and safety and feared retaliation in connection with his disclosure of information about staff involvement in inmate Diamond’s making of videos posted on YouTube.” (Doc. 35-3, p. 8 at ¶ 25). The affidavit provides no new facts but rather, like Allen and McCracken, argues that the grievance did not raise sexual assault allegations. Nevertheless, treating these arguments as facts, the Court easily draws the factual conclusion that the grievance raised Diamond’s concern for her safety as a result of “sexual abuse and sexual assaults,” which Diamond maintains were “documented in the YouTube video series.” (Doc. 49 at 38). While prison officials may have been more concerned about improper phone use that apparently involved prison staff, the clear fact remains that Diamond was complaining about sexual assaults.
Accordingly, the Valdosta failure-to-protect grievance placed prison officials on notice of the safety and sexual assault problems underlying Diamond’s failure-to-protect claims against Allen and McCracken.16
16 Based on their interpretation of the Valdosta failure-to-protect grievance – that it grieved a fear of retaliation for phone activity – the Defendants argue that if the grievance is also read to grieve the failure to protect from sexual assault, then the grievance raised multiple issues. As discussed, the Court agrees the Valdosta failure-to-protect grievance raised Diamond’s fears for her safety and sexual assault at
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b. The Baldwin grievances
After Diamond was transferred from Valdosta State Prison to Baldwin State
Prison, she filed the three Baldwin grievances alleging she was sexually assaulted at
Valdosta State Prison on multiple occasions. Allen and McCracken contend these
grievances were untimely and thus did not exhaust Diamond’s failure to protect claims
against them.17
Diamond argues that pursuant to PREA there is no time limit to file grievances for
sexual assault and, she says, GDOC officials conceded this point in their testimony
during a hearing on her motion for a preliminary injunction. (Doc. 49-11 at 100:5-10,
105:19-106:2). Further, Diamond argues the grievance coordinator waived any time bar
by accepting and reviewing the grievances on the merits. (Doc. 39 at 30-31). Treating
these arguments as allegations that the Court must take as true for the purpose of the
Turner analysis, Allen and McCracken are not entitled to the dismissal of Diamond’s
failure to protect claims in step one of the Turner analysis.
Valdosta State Prison which she maintains she “documented” in the YouTube video. An appeal that further explains her fears for safety cannot be said to include a “new” issue. However, even if the grievance raised multiple issues, prison officials nevertheless reviewed the grievance on its merits, denied it on its merits, and then again on appeal. (Doc. 49-6). Diamond’s grievance and appeal were not denied because of a procedural deficiency, and the Defendants have produced no evidence to the contrary. See Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (“When prison officials decline to enforce their own procedural requirements and opt to consider otherwise-defaulted claims on the merits, so as a general rule will we.”). Accordingly, the Court remains unpersuaded the grievance failed to exhaust the failure to protect claims. 17 The Defendants also argue these grievances failed to put the prison officials on notice of Diamond’s safety issues at Valdosta State Prison that serve as the basis for her failure-to-protect claims against Allen and McCracken. The Court is unpersuaded by this argument. These grievances specifically referenced multiple incidents of sexual assault at Valdosta State Prison, and Diamond’s claims center around the Defendants’ failure to protect her from sexual assault. Further, because the time limit may be waived, a transfer to another prison does not prevent an inmate from grieving an incident that occurred at a prison where the inmate was previously housed. See Bryant, 530 F.3d at 1373 (“We recognize that a grievance filed after Priester’s transfer to GSP would have been untimely. But the relevant grievance procedures provide inmates with the opportunity to request consideration of untimely grievances for good cause. Thus, Priester could have exhausted his administrative remedies by filing a grievance at GSP and then by showing good cause for its tardiness.”).
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Pointing to GDOC’s general requirement that grievances must be filed within ten days the inmate “knew, or should have known, of the facts giving rise to the grievance,” Allen and McCracken argue the Court should find as a matter of fact that the Baldwin grievances were untimely. But, as noted, GDOC officials testified there is no time limit for filing grievances for sexual assault. Allen and McCracken do not object to this testimony on the grounds that it constitutes a legal conclusion, or any other ground for that matter, and the Court does not take the testimony as a legal interpretation of PREA’s requirements. Rather, the GDOC officials testified, as a matter of fact and without any contradiction by the Defendants, that GDOC’s grievance procedures do not impose a deadline for filing grievances alleging sexual assaults. Consequently, Allen and McCracken have not carried their burden to establish that the Baldwin grievances were untimely.
Moreover, the evidence Allen and McCracken offer in support of their timeliness argument establishes that GDOC waived any deadline that may have existed. When Diamond filed the Baldwin grievances, she acknowledged they were not filed within ten days of the assaults. (Docs. 49-8 at 4; 49-9 at 4; 49-10 at 4). She explained that she suffered from post-traumatic stress disorder and argued that there was no time limit to file sexual assault grievances. (Id.). Instead of denying the grievances as untimely, the grievance coordinator determined that each grievance involved an alleged incident of sexual assault and thus forwarded the grievances to internal affairs. This was pursuant to GDOC’s procedures.18 (Docs. 35-2; 49-8; 49-9; 49-10). Referring the grievances to
18 Pursuant to GDOC procedure, [a]t any time before the Warden’s Grievance decision is delivered to the offender, the Warden may refer the matter to the Internal Investigations Unit. If an offender files a grievance involving sexual assault … [,] such actions automatically end the grievance - 30 -

internal affairs was the “final action … taken on the [g]rievance[s] and terminate[d] the
grievance procedure.” (Doc. 35-2 at 18). In other words, the grievance coordinator accepted and reviewed the grievances on the merits.19 Given these facts, GDOC waived any deadline for filing the Baldwin grievances.20
Accordingly, Allen’s and McCracken’s motions to dismiss Count III for failure to
exhaust is DENIED.
B. Failure to State a Claim and Qualified Immunity
1. Motion to Dismiss Standard
To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most favorable
to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)
(internal quotation marks and citation omitted). However, “where the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
process. These grievances are automatically forwarded … to the Internal Investigations Unit and/or the PREA Coordinator for review and whatever action is deemed appropriate. (Doc. 35-2 at 18). 19 Pursuant to GDOC procedure, the grievance coordinator’s actions ended the grievance process, relieving Diamond of the obligation to take further action. (Doc. 35-2). Further, GDOC procedure does not require the grievance coordinator to explicitly state that untimeliness has been waived. 20 The grievance coordinator’s handling of the Baldwin grievances is entirely consistent with the testimony of GDOC officials that there is no time limit for filing sexual assault grievances. It is also consistent with Diamond’s argument that PREA bars prisons from imposing such a deadline. See 28 CFR § 115.52(b)(1). GDOC’s grievance procedure incorporates PREA’s guidelines that inmates do not have a time limit to submit a grievance regarding sexual assault. “If an offender files a grievance involving sexual assault …[,] such actions automatically end the grievance process. These grievances are automatically forwarded … to Internal Investigation Unit and/or the PREA Coordinator for review.” (Doc. 35-2 at 18). This is what happened in Diamond’s case, and this closed the grievance process.
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complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). The complaint must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). Where there are dispositive issues of law, a court may dismiss a claim regardless of the alleged facts. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
2. Qualified Immunity Standard “Qualified immunity offers complete protection for individual public officials performing discretionary functions ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “‘Once discretionary authority is established, the burden then shifts to the plaintiff to show that qualified immunity should not apply.’”21 Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). To meet this burden, a plaintiff must establish that “the officer’s conduct amounted to a constitutional violation” and “the right violated was ‘clearly established’ at the time of the violation.” Lewis, 561 F.3d at
21 For each assertion of qualified immunity, there is no dispute the Defendants were acting within their discretionary authority. Accordingly, the Court assumes for each assertion of qualified immunity that the Defendants have established they were acting within their discretionary authority.
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1291. This two-step analysis may be done in whatever order is deemed most appropriate for the case. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
The clearly established law22 must provide a defendant with “fair warning” that her conduct deprived the plaintiff of a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-41 (2002). A plaintiff “can demonstrate that the contours of the right were clearly established in several ways.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). First, a plaintiff can show that “a materially similar case has already been decided.” Id. (internal quotation marks and citations omitted). Second, a plaintiff can point to a “broader, clearly established principle [that] should control the novel facts [of the] situation.” Id. (internal quotation marks and citation omitted). “Finally, the conduct involved in the case may ‘so obviously violate[ ] th[e] constitution that prior case law is unnecessary.’” Id. (citation omitted). “Exact factual identity with a previously decided case is not required, but the unlawfulness of the conduct must be apparent from preexisting law.” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011).
3. Deliberate Indifference to a Serious Medical Need Diamond alleges that all Defendants were deliberately indifferent to her serious medical needs by refusing to provide or refer her for gender dysphoria treatment they knew was medically necessary. Allen, Shelton, McCracken, Thompson, and Silver argue that Diamond failed to sufficiently allege they violated her Eighth Amendment rights. Allen and Shelton further maintain they are entitled to qualified immunity. Lewis
22 Clearly established law in this circuit means decisions of the United States Supreme Court, the Eleventh Circuit, and the highest court of the pertinent state. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).
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and Hatcher do not contend Diamond failed to state a claim against them but argue they
are entitled to qualified immunity.23
a. Whether Diamond Has Alleged a Constitutional Violation
Allen, Shelton, McCracken, Thompson, and Silver argue Diamond’s deliberate
indifference claims against them fail because she has not sufficiently alleged they had
subjective knowledge of a substantial risk of serious harm. (Docs. 35-1 at 11; 38-1 at
11-12, 14). “‘[D]eliberate indifference to [the] serious medical needs of [a] prisoner[ ]
constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth
Amendment.’” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). “[A] prisoner must shoulder three burdens” to bring
a claim for deliberate indifference. Goebert, 510 F.3d at 1326. First, the prisoner must
satisfy an objective component by alleging there was a serious medical need. Id. (citing
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)). Second, he must satisfy the
subjective component by alleging that the prison official was deliberately indifferent to
23 A comment about Lewis, Allen, Hatcher and Shelton’s joint brief is appropriate. (Doc. 35-1). They jointly filed a one paragraph motion to dismiss in which they argue Diamond’s complaint should be dismissed “on the basis of failure to state a claim, qualified immunity, and other grounds as set forth in the brief filed herewith.” (Doc. 35). In their joint brief, Lewis and Hatcher do not argue that Count 1 fails to state a claim for deliberate indifference against them. Allen does not argue that Count 3 fails to state a failure-to-protect claim against him, nor does he argue that he is entitled to qualified immunity for that claim. Naturally enough, this led Diamond, when summarizing the motions in her brief, to acknowledge that Lewis and Hatcher did not contend Count 1 failed to state a claim and that Allen did not contend that Count 3 failed to state a claim or that he was entitled to qualified immunity for that claim. (Doc. 49 at 8-9). Lewis, Hatcher and Allen have never challenged this characterization. The Court does not think for a moment that counsel have attempted to “sandbag” Diamond or the Court. Still, the Court notes that the joint brief states that Diamond’s allegations establish that the Defendants were acting in their discretionary authority and that the “burden thus shifts to the Plaintiff to show that Defendants are not entitled to qualified immunity.” (Doc. 35-1 at 25). It would not be plausible for Lewis, Hatcher, and Allen to now argue that this assertion should have alerted Diamond that she had to address the two prongs of qualified immunity as to Lewis, Hatcher, and Allen that they never raised. Nevertheless, the Court notes that the allegations against Lewis and Hatcher in Count 1, as summarized in footnotes 26 and 27, are clearly sufficient to state a claim. Further, the allegations against Allen in Count 3, as summarized in Section III.A.2, are clearly sufficient to state a claim against him. Additionally, as discussed in Section III.B.4.b., clearly established law provided Allen, like Lewis, with fair warning his conduct violated Diamond’s Eighth Amendment right to be protected from assaults by other inmates.
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the serious medical need. Id. (citing Bozeman, 422 F.3d at 1272). Third, the prisoner must allege that the defendant’s wrongful conduct caused the injury. Id. (citing Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995)).
GDOC medical professionals diagnosed Diamond with gender dysphoria while incarcerated, and the Defendants do not deny that gender dysphoria constitutes a serious medical need.24 (Doc. 3, ¶¶ 74-75). Accordingly, Diamond’s allegations satisfy the objective inquiry. See Farrow, 320 F.3d at 1243. To satisfy the subjective inquiry, Diamond must sufficiently allege three elements: “‘(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross] negligence.’” Bozeman, 422 F.3d at 1272 (quoting Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004)). Ultimately, “[t]he facts alleged must do more than contend medical malpractice, misdiagnosis, accidents, and poor exercise of medical judgment.” Simpson v. Holder, 200 F. App’x. 836, 839 (11th Cir. 2006) (citing Estelle, 429 U.S. at 104–07). Subjective knowledge requires that a defendant “was ‘both [ ] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [ ] must also [have] draw[n] the inference.’” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008) (alteration added by Eleventh Circuit) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A defendant cannot be held liable for a constitutional violation for failing to alleviate a significant risk that he should have perceived but did not. Id. at 1331 (citing Farmer, 511 U.S. at 837). However, a factfinder may infer from circumstantial evidence or from “‘the very fact that the risk was obvious’” that the
24 While Allen and Shelton do not deny that gender dysphoria constitutes a serious medical need in their discussion of the elements of a claim for deliberate indifference to medical needs, in a footnote in their qualified immunity argument, they say they are unaware of any binding authority establishing that “transsexualism or GID is a serious medical need.” (Doc. 35-1 at 26 n.10). That, of course, is a different issue than whether Diamond has sufficiently alleged gender dysphoria is a serious medical need, which, again, the Defendants do not dispute.
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defendant had subjective knowledge. Goebert, 510 F.3d at 1327 (quoting Farmer, 511 U.S. at 842).
Here, Diamond alleges: (1) all Defendants were aware of the medically accepted and recognized treatment for gender dysphoria pursuant to the Standards of Care, which includes hormone therapy and gender expression; (2) all Defendants knew psychotropic drugs and counseling alone were medically inadequate pursuant to the Standards of Care; (3) Allen, Shelton, McCracken, Thompson, and Silver received Diamond’s records detailing her gender dysphoria diagnosis, history of hormone treatment, and requests for ongoing care; (4) Diamond personally contacted Allen about the denial of treatment, and he responded with discipline and ridicule for her female expression; (5) Shelton recognized Diamond “suffer[ed] from the denial of medical care” but refused to provide gender dysphoria treatment; (6) Diamond explained her lack of treatment to McCracken who “deferred or delayed any action”; (7) Diamond told Thompson and Silver about her prior history, Dr. Sloan’s assessment, and her physical and psychological harm, but they denied her treatment or a referral for an evaluation; and (8) all Defendants were aware of her repeated attempts to commit suicide and selfcastration while she was without treatment. (Doc. 3, ¶¶ 33-34, 46-47, 78-81, 83, 86, 92, 103, 111).
In their own conclusory fashion, the Defendants argue Diamond’s allegations are merely conclusory. However, her allegations, taken as true, sufficiently show the Defendants were subjectively aware of a substantial risk of serious harm should Diamond remain without medically adequate treatment. Indeed, in Kothmann v. Rosario, the Eleventh Circuit held similar allegations to be sufficient to state a claim for
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deliberate indifference to the medical needs of a transgender inmate. 558 F. App’x 907 (11th Cir. 2014). There, the inmate alleged (1) “the medically-accepted and appropriate treatment” for gender dysphoria included hormone treatment, gender expression, and sex reassignment surgery; (2) the defendant was “aware of the medically necessary treatment”; (3) the defendant knew about the inmate’s hormone treatment history and the symptoms he suffered from lack of treatment; but (4) the defendant denied him hormone treatment or a referral to staff who could prescribe treatment. Id. at 908. The Eleventh Circuit held these allegations were sufficient to satisfy the subjective inquiry. Id. at 911.
Similarly, Diamond has alleged the Defendants knew the medically accepted and recognized gender dysphoria treatment pursuant to the Standards of Care; knew about Diamond’s diagnosis, treatment history, and attempts to commit suicide and self-harm; and communicated with her directly about her gender dysphoria. But they knowingly and repeatedly refused her requested treatment, refused to refer her for treatment, and, at most, prescribed or authorized treatment—psychotropic drugs and counseling—they knew was medically inadequate. See McElligott v. Foley, 182 F.3d 1248, 1256 (11th Cir. 1999) (holding that “knowingly provid[ing] grossly inadequate care, and at times no care” while knowing of a substantial risk of harm constitutes deliberate indifference); Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985) (“Deliberate indifference … is shown when prison officials have prevented an inmate from receiving recommended treatment or when an inmate is denied access to medical personnel capable of evaluating the need for treatment.” (internal quotation marks and citation omitted)).
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Diamond alleges this repeated denial of treatment resulted in suicide ideation
and compulsion to castrate herself, multiple suicide and castration attempts, clinically
significant depression, anxiety, mental anguish, and a “regression of hormonally-
induced physical effects,” as well as “chest pain, muscle spasms, heart palpitations,
severe vomiting,” and other physical symptoms. (Doc. 3, ¶¶ 73, 90, 104, 121, 138-39).
Clearly, Diamond has sufficiently alleged Allen, Shelton, McCracken, Thompson, and
Silver were deliberately indifferent to Diamond’s serious medical needs by their
repeated refusal to provide, authorize, or refer her for treatment they knew was
medically necessary, thus causing and perpetuating psychological and physical harm.25
b. Whether the Constitutional Right was Clearly Established
Allen, Shelton, Lewis,26 and Hatcher27 contend they are entitled to qualified
immunity because no clearly established law gave them fair warning their conduct
25 Thompson, Silver, and McCracken also contend the deliberate indifference claims against them fail because they were adhering to policy and had no “means to cure the alleged risk.” (Doc. 38-1 at 12-15). The Court is not persuaded by this “simply following orders” defense. Following the Transgender SOP does not insulate them from potential liability. Diamond alleges that despite their knowledge of her medical condition and her compulsion to castrate and harm herself, they did not exercise any independent medical judgment, inform any competent authorities about Diamond’s need for care, or make a referral or recommendation for treatment, as other GDOC medical providers, such as Drs. Sloan, Moody, and Harrison, had done. See Waldrop v. Evans, 871 F.2d 1030, 1036 (11th Cir. 1989) (holding there was a genuine issue of fact whether a doctor who treated the plaintiff’s medical needs was deliberately indifferent to the plaintiff’s psychiatric needs by failing to notify competent authorities about such needs because “prison officials have an obligation to take action or to inform competent authorities once the officials have knowledge of a prisoner’s need for medical or psychiatric care.”). The Court also rejects Thompson and Silver’s argument that Diamond’s claim fails because they prescribed her counseling and psychotropic drugs and thus did not disregard her medical needs. At this stage in the litigation, Diamond has sufficiently alleged the Defendants knew psychotropic drugs and counseling alone were inadequate treatments pursuant to the Standards of Care. (Doc. 3, ¶¶ 33-34, 46-47). See also Kothmann, 558 F. App’x at 910-12 (rejecting the same argument at the motion to dismiss stage). It can also reasonably be inferred they were aware that in Diamond’s specific case, drugs and counseling had not alleviated her compulsion to commit self-harm. (Doc. 3, ¶¶ 78, 80).
26 Although Lewis does not contend Diamond failed to state a claim against her, the allegations pertaining to her are relevant to whether Lewis violated a clearly established right. Diamond alleges Lewis: (1) knew the medically accepted and recognized gender dysphoria treatment, as well as what medical care was inadequate, pursuant to the Standards of Care; (2) “refused to authorize treatment” despite medical professionals’ recommendations to provide Diamond with hormone treatment and permit her female gender expression; (3) approved the conduct of GDOC personnel after Hatcher placed Diamond in
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violated Diamond’s right to constitutionally adequate care for her serious medical needs.
The Eleventh Circuit has “consistently held that knowledge of the need for medical care
and an intentional refusal to provide that care constitutes deliberate indifference.”
Adams v. Poag, 61 F.3d 1537, 1543-44 (11th Cir. 1995) (citing Carswell v. Bay Cty.,
854 F.2d 454, 457 (11th Cir. 1988); see also H.C. by Hewett v. Jarrard, 786 F.2d 1080,
1086 (11th Cir. 1986) (“[T]he failure to provide diagnostic care and medical treatment
known to be necessary [i]s deliberate indifference.”); Ancata, 769 F.2d at 704. Put
another way, “[a] core principle of Eighth Amendment jurisprudence … is that prison
officials with knowledge of the need for [medical] care may not, by failing to provide
care, delaying care, or providing grossly inadequate care, cause a prisoner to
needlessly suffer the pain resulting from his or her illness.” McElligott, 182 F.3d at
1257. Diamond, citing the Eleventh Circuit’s unpublished opinion in Kothmann, argues
these clearly established “core” principles gave the Defendants fair warning that their
refusal to provide Diamond with treatment they knew was medically necessary for her
gender dysphoria violated her constitutional right to adequate medical care. See
Kothmann, 558 F. App’x at 912 (reasoning the same).
Although “mindful of Kothmann,” the Defendants argue the Eleventh Circuit
denied qualified immunity because of the case’s specific facts which they contend are
solitary where she continued to complain about the denial of treatment and her suicidal impulses and actually attempted suicide and self-castration; and (4) continued to enforce the Transgender SOP despite the recommendations of medical professionals and Diamond’s suicide attempts. (Doc. 3, ¶¶ 33-34, 4647, 76, 90-91, 97). 27 The allegations as to Hatcher, who also does not contend Diamond failed to state a claim against him, are relevant to whether he violated a clearly established right. Diamond alleges Hatcher: (1) knew the medically accepted and recognized gender dysphoria treatment, as well as what medical care was inadequate, pursuant to the Standards of Care; (2) received Diamond’s records detailing her gender dysphoria diagnosis, history of hormone treatment, and requests for ongoing care; (3) was contacted by Diamond about her gender dysphoria and suicidal impulses; (4) refused to refer Diamond for treatment after he visited Diamond in solitary where she explained her gender dysphoria and suicidal impulses without treatment. (Doc. 3, ¶¶ 33-34, 46-47, 78, 85, 88-90).
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distinguishable from Diamond’s, and at a minimum, “nothing in Kothmann, or in any binding authority … suggests that ‘gender expression’ is a necessary treatment for gender dysphoria.” (Doc. 35-1 at 27-28). This argument misconstrues the Eleventh Circuit’s qualified immunity analysis. As discussed, Kothmann, like Diamond, alleged the defendant (1) knew “hormone treatment was the recognized, accepted, and medically necessary treatment” for gender dysphoria; (2) knew Kothmann’s hormone treatment history and continued need for it; but (3) knowingly refused to provide this treatment. Kothmann, 558 F. App’x at 911-12. The Eleventh Circuit held these allegations sufficiently stated the violation of a clearly established constitutional right. Id. Specifically, the court rejected the defendant’s argument that she did not violate a clearly established right because no prior binding precedent had recognized that transgender inmates have a right to hormone treatment. Id. Relying on binding precedent,28 the Eleventh Circuit reasoned “the state of the law was sufficiently clear to put [the defendant] on notice that refusing to provide [the transgender inmate] with what she knew to be medically necessary hormone treatments was a violation of the Eighth Amendment.” Id. at 912.
Here, for the same reasons, the law was sufficiently clear to give the Defendants fair warning that their refusal to provide Diamond with treatment they knew was medically necessary or to refer her for treatment violated Diamond’s Eighth Amendment right to adequate medical care. And, as noted in Kothmann, binding precedent establishing that transgender inmates have a right to receive the specific treatment at issue—in this case, hormone therapy and female gender expression—is not required to
28 McElligot, 182 F.3d at 1255; Jarrard, 786 F.2d at 1086; Ancata, 769 F.2d at 704.
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overcome the Defendants’ qualified immunity defense.29 Id. at 911-12. Accordingly, Allen, Shelton, Lewis, and Hatcher are not entitled to qualified immunity from Diamond’s deliberate-indifference-to-medical-needs claim.
4. Failure to Protect Diamond alleges Lewis, Allen, and McCracken were deliberately indifferent to a substantial risk of serious harm Diamond faced in closed-security facilities. Lewis and McCracken argue Diamond failed to state a claim against them. Lewis also contends she is entitled to qualified immunity.30
a. Whether Diamond Has Alleged a Constitutional Violation Under the Eighth Amendment, prison officials have a duty to “take reasonable measures to guarantee the safety of the inmates.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014) (quoting Farmer, 511 U.S. at 832). More to the point, they “have a duty to protect prisoners from violence at the hands of other prisoners.” Id. (quoting Farmer, 511 U.S. at 833) (internal quotation marks omitted). Of course, not every injury an inmate suffers at the hands of another inmate gives rise to constitutional liability. “A prison official violates the Eighth Amendment ‘when a substantial risk of serious harm, of which the official is subjectively aware, exists[,] the official does not respond reasonably to the risk,’” and the official’s actions or inaction causes the injury. Id. (quoting Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir.
29 As also noted in Kothmann, at this stage in the litigation, the Court need not decide whether “hormone treatment [and gender expression] in fact [were] medically necessary to treat” Diamond’s gender dysphoria or whether the Defendants “knew in fact” that these treatments were medically necessary for Diamond. Id. at 911. Rather, the Court need only decide whether Diamond has sufficiently alleged a plausible violation of a clearly established constitutional right, which she has. See id. at 911-12. 30 Allen does not contend Diamond failed to state a claim against him and does not assert qualified immunity.
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2003)); see also Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013) (internal quotation marks omitted). The prison official must be both aware of the risk and draw the inference. Farmer, 511 U.S. at 837; Caldwell, 748 F.3d at 1099-1100.
Here, Diamond alleges (1) she was sexually assaulted numerous times at three closed-security facilities which housed violent offenders and had a history of frequent assaults;31 (2) Lewis and McCracken were aware Diamond, as a non-violent, transgender female inmate, faced a substantial risk of sexual assault at closed-security facilities because the risk was obvious; (3) Lewis and McCracken were aware from PREA and the Transgender SOP that “transgender inmates face a substantial vulnerability to sexual assault”; (4) Lewis, as Statewide Medical Director, and McCracken, as PREA Coordinator at Valdosta State Prison, were notified after each sexual assault which obligated them to review Diamond’s housing placement pursuant to the Transgender SOP, the Sexual Assault SOPs, and PREA; (5) Lewis was aware from notifications and McCracken was aware from Diamond’s GDOC records that she was repeatedly sexually assaulted at two other closed-security facilities before being transferred to Valdosta State Prison; (6) Lewis and McCracken took no action after Diamond was sexually assaulted by her cellmate the day after intake at Valdosta State Prison, by gang members in February 2014, and twice in April 2014; (7) Dr. Harrison specifically told McCracken that Diamond stood a high risk of sexual assault at Valdosta State Prison given its population; and (8) in February, May, and June of 2014, Diamond
31 The Court notes that Diamond was not sexually assaulted at Rutledge State Prison, a medium-security facility which houses non-violent inmates, before the filing of her complaint. (Doc. 3, ¶ 77). Diamond alleges generally that sexual assaults against transgender inmates at medium-security facilities are infrequent. (Doc. 3, ¶ 68).
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told McCracken about her sexual assaults. (Doc. 3, ¶¶ 18, 20, 52-55, 60-61, 65-67, 69,
71, 92, 94, 98-99, 102-03, 106, 114-15, 146).
Lewis and McCracken contend these allegations are insufficient to demonstrate
they had the requisite “subjective knowledge required by the deliberate indifference
standard.”32 (Docs. 35-1 at 19; 38-1 at 15-16). Lewis specifically argues the allegations
that she failed to follow policy33 and that she was notified after each assault are
insufficient to establish subjective awareness.34 The Supreme Court in Farmer held that
circumstantial evidence and the obviousness of the substantial risk of harm, not just
32 The Defendants do not contend Diamond failed to allege a substantial risk of serious harm. Nor could they. Diamond has alleged she is a transgender inmate who has been continually sexually harassed and sexually assaulted at closed-security facilities. Diamond has easily satisfied the objective inquiry. See Farmer, 511 U.S. at 833 (“[G]ratuitously allowing the beating or rape of one prisoner by another serves no ‘legitimate penological objectiv[e].’” (citation omitted) (alteration in original)).
33 Lewis’s argument that she cannot be held liable simply because she disregarded her obligations under PREA and GDOC policy is based on a misreading of Diamond’s allegations. She does not allege Lewis is liable simply because she violated rules and policies, but rather alleges that these rules and policies were among the many factors and facts upon which she bases her claims.
34 In her motion, Lewis also argues Diamond’s “apparent attempt to impose supervisory liability” based on an alleged widespread pattern of abuse fails. (Doc. 35-1 at 20-21). In her reply brief, Lewis argues Diamond waived any argument regarding Lewis’s contention that Diamond’s allegations are insufficient to “state a supervisory claim against her.” (Doc. 56 at 10 n.5). In her response brief, Diamond states that she is alleging Lewis had actual knowledge, not constructive knowledge. (Doc. 49 at 14). This response does not amount to a waiver. It is true supervisors cannot be held liable under § 1983 “for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (internal quotation marks and citation omitted). A supervisor can only be held liable if the supervisor participated directly in the unconstitutional conduct or if a causal connection exists between the supervisor’s actions and the alleged constitutional violations. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
[C]ausal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. Alternatively, the causal connection may be established when a supervisor’s custom or policy … result[s] in deliberate indifference to constitutional rights or when facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.
Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (quoting Cottone, 326 F.3d at 1360). The
Court interprets Diamond’s argument to be that sufficient facts support an inference Lewis knew subordinates would act unlawfully and failed to stop them from doing so. To the extent Diamond has alleged Lewis was aware Diamond faced a substantial risk of harm based on a widespread pattern of abuse, that claim is subsumed by the failure-to-train claim against Lewis in her individual capacity and is addressed below.
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actual notification, may be used to establish subjective awareness. 511 U.S. at 842-44. Further, allegations suggesting the substantial risk was “long-standing, pervasive, [or] well-documented” and the defendants “had been exposed to information concerning the risk and thus must have known about it … could be sufficient … to find that [the defendants] had actual knowledge of the risk.” Id. at 842-43 (internal quotation marks and citation omitted). When analyzing subjective awareness, courts have considered the obviousness of the risk to inmate safety, the defendant’s knowledge about the vulnerability of certain types of inmates to risk of harm, prison policies pertaining to such inmates, and their housing placements. See Greene v. Bowles, 361 F.2d 290, 294 (6th Cir. 2004); Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81-82 (6th Cir. 1995); Green v. Hooks, 2013 WL 4647493, at *2-*3 (S.D. Ga.); Shaw v. District of Columbia, 944 F. Supp. 2d 43, 59-60 (D.D.C. 2013) (“Plaintiff … points … to [reports, regulations, and professional guidelines] … to provide factual grounding to support the inference that the risk to transgender detainees was obvious, well-documented, and known to [d]efendants.” (internal quotation marks and citation omitted)); Newsome v. Higham, 2010 WL 1258013, at *3-*4 (M.D. Ga.); Farmer v. Carlson, 685 F. Supp. 1335, 1342 (M.D. Penn. 1988) (“Clearly, placing plaintiff, a twenty-one year old transsexual, into the general population at … a [high-]security institution, could pose a significant threat to internal security in general and to plaintiff in particular.”).
In her complaint, Diamond has covered the waterfront with her allegations tending to prove subjective awareness. She has alleged that a transgender inmate’s vulnerability to assault at a closed-security male facility was obvious to Lewis and McCracken and that PREA and GDOC policies made clear transgender inmates are
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highly vulnerable to sexual assault. Further, she alleges Lewis and McCracken spoke with her directly about her transgender status and were aware from notifications and records35 she was repeatedly sexually assaulted at three different closed-security facilities. Diamond met with McCracken at least three times about her sexual assaults, and Dr. Harrison contacted him directly about Diamond’s vulnerability to assault at Valdosta State Prison given its population of violent offenders.36
Diamond’s allegations paint a picture dramatically different than the typical failure-to-protect claim asserted by inmates. The usual failure-to-protect claim involves a single assault. Thus, the inmate must allege facts tending to establish the requisite subjective awareness before that single assault occurred. As the cases cited by the Defendants illustrate, this can be a difficult task. But here Diamond alleges a series of assaults. While she does not concede that Lewis and McCracken did not have subjective awareness of the risk of harm before the first assault that occurred on their respective watches, she alleges that after they received notice of that assault, and then the next, and the next, and so on, they clearly had subjective awareness of the risk of harm she faced as a transgender inmate housed with violent offenders. Repeatedly, she alleges, they continued to receive notice of her sexual assaults. Clearly, at this stage of the litigation, these facts are sufficient to establish that Lewis and McCracken were subjectively aware of the risk of harm Diamond faced. See Farmer, 511 U.S. at 842-43; Bugge v. Roberts, 430 F. App’x 753, 761 (11th Cir. 2011) (“[T]he pervasive and
35 Diamond alleges only McCracken received Diamond’s GDOC records detailing Diamond’s history of sexual assault. 36 McCracken argues Diamond does not allege “Dr. McCracken was subjectively aware of this particularized risk prior to the subject incident.” (Doc. 38-1 at 16). However, taking the allegations as true, the Court disagrees. Indeed, Diamond alleges she was sexually assaulted at least two more times in April 2014 after her February meeting with McCracken. (Doc. 3, ¶¶ 102, 106).
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widespread nature of the conditions … suggest [the defendant] ‘had been exposed to information concerning the risk and thus must have known about it.’” (quoting Farmer, 511 U.S. at 842-43)).
In sum, these allegations are not threadbare recitations of the subjective awareness element. Rather, Diamond alleges the full gamut of facts Farmer contemplated to show subjective awareness. Yet, despite being aware of the risk of sexual assault and despite having the authority and obligation to take reasonable safety measures after each incident, Lewis and McCracken, according to Diamond, failed to take any action. As a result, the substantial risk of harm remained unabated, and Diamond suffered further sexual assaults. Clearly, Diamond has sufficiently alleged a plausible failure-to-protect claim against Lewis and McCracken.
b. Whether the Constitutional Right was Clearly Established Lewis is not entitled to qualified immunity if clearly established law gave her fair warning her conduct violated Diamond’s Eighth Amendment right to be protected from assault by other inmates. “A prisoner has a right, secured by the eighth … amendment[], to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates[.]” Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313, 1320 (11th Cir. 2005) (internal quotation marks and citation omitted); see also Farmer, 511 U.S. at 833-34. Diamond argues Farmer gave Lewis fair warning that her failure to take any action to protect Diamond from the substantial risk of sexual assault she faced violated her Eighth Amendment right to be reasonably protected from sexual assault. (Doc. 49 at 23 n.10). There, a transgender inmate, allegedly known to be vulnerable to sexual assault, complained prison officials were deliberately indifferent
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to a substantial risk of sexual assault by placing her in general population at a “higher
security facility” known for its violent environment and history of assaults. Farmer, 511
U.S. at 825. The Supreme Court emphasized the constitutional right of prisoners to be
reasonably protected from the violence of other inmates. Id. at 833 (“[G]ratuitously
allowing the beating or rape of one prisoner by another serves no ‘legitimate penological
objectiv[e].’” (citation omitted)). The Supreme Court ultimately held that “a prison official
may be held liable under the Eighth Amendment … if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847.37
Again, Diamond alleges Lewis was aware Diamond was a transgender female,
knew she had been repeatedly sexually assaulted at closed-security male facilities, and
knew she continued to be repeatedly sexually assaulted at Valdosta State Prison. Still,
Lewis took no action. Therefore, Lewis, being aware of the substantial risk of sexual
assault, had fair warning that her failure to take reasonable measures to abate that risk
violated Diamond’s clearly established right to be protected from sexual assault. Id. at
833-34, 837. Accordingly, Lewis is not entitled to qualified immunity from Diamond’s
failure-to-protect claim.
37 In cases involving the protection of inmates (or pretrial detainees) from rape or sexual assault, numerous courts have relied on Farmer when analyzing the second prong of qualified immunity. See, e.g., Walton v. Dawson, 752 F.3d 1109, 1118 (8th Cir. 2014) (“There is no doubt the right at issue—a pretrial detainee’s right to be protected from sexual assault by another inmate—is clearly established.”); Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (“[T]he constitutional right to be free from deliberate indifference to assault and sexual abuse was clearly established at the time of the alleged constitutional violation.”); Howard, 534 F.3d at 1242 (“The Supreme Court [in Farmer] and the Tenth Circuit have repeatedly and unequivocally established an inmate’s Eighth Amendment right to be protected from substantial risks of sexual assault by fellow prisoners.”); Velez v. Johnson, 395 F.3d 732, 736 (7th Cir. 2005) (“Although Velez and Johnson disagree over how the constitutional right at issue here should be characterized, we believe it is plainly the right to be free from deliberate indifference to rape and assault. There can be no debate that this right was clearly established at the time.” (citing Farmer, 511 U.S. at 833)).
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5. Failure to Train Diamond alleges Lewis failed to adequately train subordinates regarding the medical treatment and safety of transgender inmates. Lewis contends Diamond failed to sufficiently allege a failure-to-train claim, and she is entitled to qualified immunity.
a. Whether Diamond Has Alleged a Constitutional Violation Diamond alleges Lewis, as GDOC’s Statewide Medical Director, was a final policy- and decision-maker regarding the care and safety of transgender inmates and responsible for implementing policies and providing training regarding the same. (Doc. 3, ¶18). “[U]nder § 1983, a supervisor can be held liable for failing to train his or her employees only where the failure to train amounts to deliberate indifference to the rights of persons with whom the officers come into contact.” Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1052 (11th Cir. 2014) (alteration, citation, and internal quotation marks omitted). To sufficiently allege a supervisor violated a plaintiff’s constitutional rights for failing to train subordinates, a plaintiff “must demonstrate that the supervisor had ‘actual or constructive notice that a particular omission in their training program causes [his or her] employees to violate citizens' constitutional rights,’ and that armed with that knowledge the supervisor chose to retain that training program.” Id. (quoting Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011)). A plaintiff establishes a supervisor’s notice when the need for more or different training is obvious—such as when there has been a history of widespread abuse by subordinates that has put the supervisor on notice of the need for corrective measures, or when the failure to train is likely to result in a constitutional violation. See Williams v. Limestone Cty. Ala., 198 F. App’x 893, 896 (11th Cir. 2006); Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985).
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Diamond premises her failure-to-train claims against Lewis on two alleged deficiencies in training. Diamond alleges Lewis: (1) inadequately trained subordinates to provide constitutionally adequate gender dysphoria treatment to transgender inmates, and (2) inadequately trained subordinates to reasonably protect and safely house transgender inmates. Specifically, Diamond contends Lewis was aware of these inadequacies from a widespread pattern of abuse by subordinates. Lewis argues that Diamond’s allegations are formulaic recitation of the elements for a failure-to-train claim and that case law requires more than Diamond’s own experiences to establish a “pattern” or “widespread abuse.” (Docs. 35-1 at 23; 56 at 11).
The Court is unaware of any Supreme Court or Eleventh Circuit authority, and Lewis cites none, requiring a plaintiff to establish a widespread pattern of abuse based on prior incidents involving other inmates who suffered the same abuse. It is true that in cases involving an inmate alleging a widespread pattern of abuse at a prison, the Eleventh Circuit has looked to whether the plaintiff points to the experiences of other inmates to determine whether the plaintiff’s experience was simply an isolated occurrence. See, e.g., Goebert, 510 F.3d at 1332; Craig v. Floyd, 643 F.3d 1306, 131011 (11th Cir. 2011). These cases often involve a prisoner alleging a single isolated incident at a specific prison or occasional, isolated occurrences within a single prison. See, e.g., Harrison v. Culliver, 746 F.3d 1288, 1299-1300 (11th Cir. 2014); Goebert, 510 F.3d at 1332; Craig, 643 F.3d at 1310-11.
But Diamond’s complaint is different. Diamond’s allegations involve repeated incidents alleging failure-to-protect from sexual assaults at multiple GDOC prison facilities over a continued duration by specifically identified individuals. Regardless of
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whether the alleged pattern involves single or multiple inmates or single or multiple facilities, the critical inquiry here is whether Diamond has sufficiently alleged a widespread pattern of abuse by prison officials that put Lewis on notice. See, e.g., Belcher, 30 F.3d at 1397-98 (“Failure to train can amount to deliberate indifference … when there exists a history of abuse by subordinates that has put the supervisor on notice of the need for corrective measures.” (italics added)); Thornton v. El-Amin, 2012 WL 529998, at *13 (N.D. Ga.) (“Plaintiff has not submitted any evidence of a widespread pattern of abuse by officers of the DeKalb County Police Department.” (italics added)). That the pattern of abuse involved only Diamond does not mean the pattern was insufficient to put Lewis on notice of the problem.
“The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant[,] and of continued duration, rather than isolated occurrences.” West v. Tillman, 496 F.3d 1321, 1329 (11th Cir. 2007). For example, at the motion to dismiss stage, allegations of multiple incidents of abuse may sufficiently demonstrate a pattern. See Buckley v. Barbour Cty., Ala., 624 F. Supp. 2d 1335, 1344 (M.D. Ala. 2008). Also, where a plaintiff alleges a defendant was aware of allegedly inadequate supervision from a prior incident, from complaints related to the inadequate supervision, and from information the plaintiff faced a risk of harm from the inadequacy, the Eleventh Circuit has held the plaintiff sufficiently alleged the official “acted with deliberate indifference toward [the plaintiff’s] rights in failing to ensure that competent officials took steps to protect [the plaintiff].” Greason v. Kemp, 891 F.2d 829, 837 & n.18, 838 (11th Cir. 1990). In contrast, where the need for training is not “so obvious” and where the plaintiff bases her failure-to-train claim on a single incident,
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courts have held the plaintiff failed to sufficiently allege a widespread pattern of abuse. See, e.g., Weiland, ___F.3d___, 2015 WL 4098270, at *10 (11th Cir.).
With this precedent in mind, the Court will address the allegedly inadequate training regarding the medical treatment of transgender inmates and the reasonable protection of transgender inmates in turn.
1) Inadequate training regarding the medical treatment for transgender inmates
Diamond alleges Lewis was aware of inadequate training as a result of the widespread pattern of abuse by prison officials who “repeatedly denied inmates with gender dysphoria treatment of any kind” but took no corrective action. (Doc. 3, ¶¶ 15859). Contrary to Lewis’s assertion, Diamond’s allegations are not a formulaic recitation. Rather, with factual specificity, she alleges “numerous instances of abuse …, separated in time, involving distinct [GDOC] officials and personnel at four different [GDOC] facilities, all based on her status as a transgender woman.” (Doc. 49 at 26). Specifically, Diamond alleges the Standards of Care and GDOC’s own policies, all of which GDOC personnel were aware, recognize that inmates with gender dysphoria require treatment, which may include hormone therapy and female gender expression. (Doc. 3, ¶¶ 31-32, 41, 43, 46-47). Despite this, GDOC personnel across four facilities repeatedly denied Diamond adequate treatment. (Doc. 3, ¶¶ 64, 73-76, 81, 85-86, 97, 102, 107, 109-13, 116-17). Some, such as Defendants Hatcher and Allen, expressly forbade female gender expression, and Allen did so by disciplining and ridiculing her. (Doc. 3, ¶¶ 87-90, 110-113). Also, GDOC officials flatly ignored the recommendations of multiple medical professionals at different facilities that Diamond needed treatment. (Doc. 3, ¶¶ 73, 75-76, 96-97, 110-111, 116-17). Because of this inadequate training,
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Diamond alleges she went without treatment at each facility and experienced intensifying suicide ideation and impulses to commit self-harm, among other physical and psychological harm. (Doc. 3, ¶¶ 5, 73, 75, 90, 96, 104, 118, 121-22). See Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1189 (11th Cir. 2011) (“[A] plaintiff must also demonstrate that constitutional violations were likely to recur without training.”).
These allegations are not simply threadbare recitations there was a widespread pattern of abuse that resulted in deliberate indifference or allegations based on a single incident of abuse. Rather, Diamond has provided specific factual support to allege a widespread pattern that GDOC personnel over a period of three years repeatedly denied her gender dysphoria treatment based on her status as a transgender woman. Thus, Diamond has sufficiently alleged Lewis was aware of the need “to remedy an unconstitutional condition” but failed to do so. Cf. Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1037 (11th Cir. 2001) (“Unless a policymaker knows of the need [to remedy an unconstitutional condition], no liability can arise from failure [to do so].”), abrogated on other grounds, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
Diamond has also sufficiently alleged Lewis deliberately chose not to remedy the inadequate training or otherwise take institutive corrective measures. According to Diamond, Lewis repeatedly directed subordinates to refuse treatment and only offer counseling based on a blanket practice to deny gender dysphoria treatment to transgender inmates, even if GDOC medical professionals have confirmed an inmate suffers from gender dysphoria. (Doc. 3, ¶¶ 76, 91, 97, 117). See Valdes v. Crosby, 450 F.3d 1231, 1236 (11th Cir. 2006) (“Supervisory liability under 1983 occurs … when
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there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation. … A causal connection may be established when … facts support an inference the supervisor directed subordinates to act unlawfully.” (internal quotation marks and citations omitted)). Accordingly, at this stage in the litigation, Diamond has sufficiently alleged a plausible claim that Lewis failed to train subordinates to provide adequate medical treatment to transgender inmates and that this failure led to the deliberate indifference to Diamond’s medical needs.
2) Inadequate training regarding the safety and placement of transgender inmates
Diamond alleges that Lewis, as a final policy- and decision-maker, inadequately trained subordinates regarding the safety and protection of transgender inmates. Diamond argues a widespread pattern of abuse by prison officials put Lewis on notice of the deficiency in training. Lewis contends Diamond’s allegations are a formulaic recitation of the elements of a failure-to-train claim. But contrary to Lewis’s assertion, Diamond alleges “numerous instances of abuse …, separated in time, involving distinct [GDOC] officials and personnel at [three] different [GDOC] facilities, all based on her status as a transgender woman.” (Doc. 49 at 26). Specifically, Diamond alleges Lewis was aware from GDOC’s own policies that transgender inmates are highly vulnerable to sexual assaults and that their housing placements are to be reviewed by personnel when safety issues arise. (Doc. 3, ¶¶ 52-61). Despite these policies, Diamond alleges she was placed at three closed-security facilities and was repeatedly sexually assaulted at each one. (Doc. 3, ¶¶ 65-71). Diamond alleges at least six specific incidents of sexual assault across three of GDOC’s facilities and persistent sexual harassment and coercion over the duration of her confinement within these facilities.
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Diamond then alleges GDOC personnel repeatedly failed to reasonably respond to the substantial risk of sexual assault: they failed to review her placement pursuant to PREA and Sexual Assault SOP guidelines, delayed and deferred any action after the incidents of assault, ignored her sexual assault complaints and requests to transfer, and disregarded mental health professionals’ conclusions she “faced continued vulnerability to sexual assault” at closed-security facilities. (Doc. 3, ¶¶ 70-72, 92-94, 98-103, 106107, 119-120). Indeed, Diamond alleges that intake personnel at Valdosta State Prison directly told her the prison could not “safely house transgender persons” and that she “stood a high likelihood of being sexually assaulted based on the inmate population.” (Doc. 3, ¶ 93). In sum, these allegations are not simply threadbare recitations there was a widespread pattern of abuse. Rather, Diamond has provided sufficient factual support to show a widespread, flagrant, obvious pattern of a continued duration that GDOC officials failed to reasonably respond to multiple incidents of sexual assaults or to the substantial risk of assault Diamond faced at closed-security facilities.
Further, Diamond has sufficiently alleged Lewis deliberately chose not to remedy this inadequate training despite her responsibility to review the placement of transgender inmates and train subordinates regarding their safety. According to Diamond, Lewis was notified pursuant to GDOC policy that Diamond had been repeatedly sexually assaulted at each closed-security facility where she had been housed. (Doc. 3, ¶¶ 60, 69, 71, 94, 100, 106, 149). But Diamond continued to be transferred to closed-security facilities where she experienced sexual assault, and Lewis otherwise failed to institute corrective measures to ensure that subordinates took steps to protect Diamond from the risk of sexual assault. See Am. Fed’n of Labor &
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Cong. of Indus. Orgs., 637 F.3d at 1189 (“[A] plaintiff must also demonstrate that constitutional violations were likely to recur without training.”).
Accordingly, at this stage in the litigation, Diamond has sufficiently alleged a plausible claim that Lewis failed to train subordinates regarding the safety of transgender inmates and that this failure resulted in deliberate indifference to Diamond’s constitutional right to reasonable protection.
b. Whether the Constitutional Right was Clearly Established Lewis is not entitled to qualified immunity if clearly established law gave her fair warning her failure to train subordinates was unlawful. Lewis simply argues she is “unaware of any clearly established law holding that [officials] such as … Lewis can be held liable for a failure to train despite an absence of widespread abuse or repeated violations of which [Lewis was] aware.” (Doc. 35-1 at 25). As discussed, Diamond has sufficiently alleged a pattern of widespread abuse of which Lewis was aware. In Valdes, the Eleventh Circuit held that it was clearly established that a supervisor “charged with directing the governance, discipline, and policy of the prison and enforcing its orders, rules, and regulations” could “face liability under § 1983 predicated on his failure to take reasonable steps in the face of a history of widespread abuse or his adoption of custom or policies which result in deliberate indifference.” 450 F.3d at 1244. Again, Diamond alleges Lewis, as Statewide Medical Director for GDOC, is the final policy- and decision-maker regarding the care, treatment, and housing decisions for transgender inmates and victims of sexual assault; has the authority to grant or deny medical care to inmates with gender dysphoria; and is responsible for the implementation of policies and the training of subordinates regarding the same. (Doc.
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3, ¶ 18). Thus, Lewis was responsible for “directing … the policy” and “enforcing [the] orders, rules, and regulations” that apply to all facilities within GDOC. See Valdes, 450 F.3d at 1244.
With respect to the allegedly inadequate training regarding the medical treatment of transgender inmates, it was clearly established Lewis’s failure to adequately train subordinates or otherwise take reasonable institutive corrective measures “in the face of a history of widespread abuse” was unlawful. See id. at 1244. As discussed, Diamond has sufficiently alleged that Lewis was on notice from a widespread pattern of abuse that GDOC personnel across multiple facilities were denying gender dysphoria treatment in a deliberately indifferent manner. But despite her notice from this pattern and despite her responsibilities as supervisor, Lewis failed to train subordinates or otherwise take institutive corrective action. See Greason, 891 F.2d at 838-39 (holding the supervisor liable where after staff abruptly terminated an inmate’s psychiatric care, the supervisor took no corrective action despite notice of a prior incident where staff similarly denied psychiatric care and being specifically put on notice of inadequacies leading to this termination of care). Indeed, as discussed, Lewis repeatedly enforced the blanket practice to deny gender dysphoria treatment. Accordingly, Lewis is not entitled to qualified immunity from the failure-to-train claim regarding medical treatment.
Likewise, with respect to the allegedly inadequate training regarding the safety and placement of transgender inmates, it was clearly established Lewis’s failure to take reasonable institutive corrective procedures “in the face of a history of widespread abuse” was unlawful. See Valdes, 450 F.3d at 1244. As discussed, Diamond has sufficiently alleged that Lewis was on notice that GDOC personnel across multiple
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facilities repeatedly ignored the substantial risk of harm Diamond faced as a transgender inmate at closed-security facilities with violent offenders, continued to place her at such facilities, ignored her sexual assault reports, and otherwise delayed action and review when safety issues arose. But despite her notice from this pattern and despite her responsibilities as a supervisor, Lewis failed to train subordinates or enact institutive corrective action. See LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993) (holding a supervisor’s conduct unlawful when he failed to take institutive corrective measures after receiving numerous reports that inmates were subjected to a continuous threat of violence, including sexual assault); see also Brown v. Smith, 2006 WL 1890192, at *7 (M.D. Ga.) (“After the Eleventh Circuit recognized in LaMarca that a prison supervisor can be held liable for his failure to train and supervise his employees to prevent inmate violence, any reasonable prison or jail supervisor would conclude that his failure to implement training and supervisory measures to prevent sexual assaults by his own employees could also subject him to supervisory liability under § 1983.”). Accordingly, Lewis is not entitled to qualified immunity on the failure-to-train claim regarding the safety and placement of transgender inmates.
IV. CONCLUSION For the reasons stated above, the Defendants’ motions to dismiss are DENIED. (Docs. 35; 38). SO ORDERED, this 14th day of September, 2015.
S/ Marc T. Treadwell MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
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 </s> Case 5:15-cv-00050-MTT Document 29 Filed 04/03/15 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

ASHLEY DIAMOND, Plaintiff,
v.
BRIAN OWENS, et al., Defendants.

Case No. 5:15-cv-50-MTT-CHW

STATEMENT OF INTEREST OF THE UNITED STATES Failure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria1 violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Kothmann v. Rosario, 558 F. App’x 907, 910 (11th Cir. 2014); Fields v. Smith, 653 F.3d 550, 554-55 (7th Cir. 2011); Lynch v. Lewis, No. 7:14-CV-24, 2014 WL 1813725, at *2 (M.D. Ga. May 7, 2014). In her first Motion for Preliminary Injunction (ECF No. 1), Plaintiff Ashley Diamond alleges that the Georgia Department of Corrections (“GDOC”) violated the Eighth Amendment by withholding treatment for Ms. Diamond’s gender dysphoria against the advice and recommendations of her treating clinicians. Ms. Diamond alleges that GDOC withheld this care pursuant to an unconstitutional “freeze-frame” policy. A “freeze-frame” policy impermissibly prohibits individualized
1 The terms “gender dysphoria,” “gender identity disorder,” and “transsexualism” are used interchangeably in the case law and the record in this case. The United States uses the term “gender dysphoria” in this Statement of Interest except when quoting case law or other parts of the record.

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assessment and treatment of individuals with gender dysphoria. Instead, prisoners may only receive the same level of care they received in the community. Under GDOC’s policy, if an inmate is not identified as transgender and referred for treatment at intake, he or she may receive no treatment at all. According to Ms. Diamond, because GDOC did not identify her as transgender at intake and refer her for additional evaluation, GDOC officials continue to deny Ms. Diamond treatment pursuant to GDOC’s freeze-frame policy.
Without taking a position on the factual accuracy of Plaintiff’s claims, the United States files this Statement of Interest to assist the Court in evaluating Ms. Diamond’s Motion. In particular, the United States files this Statement to bring the Court’s attention to the standards used to evaluate appropriate medical care for gender dysphoria under the Eighth Amendment and the unconstitutionality of freeze-frame policies that may prevent such treatment. In cases like Ms. Diamond’s, gender dysphoria constitutes a serious medical need requiring appropriate treatment. For that reason, proscriptive freeze-frame policies are facially unconstitutional under the Eighth Amendment because they do not provide for individualized assessment and treatment.
INTEREST OF THE UNITED STATES The United States has authority to file this Statement of Interest pursuant to 28 U.S.C § 517, which permits the Attorney General to attend to the interests of the United States in any case pending in a federal court.2 The United States enforces the rights of incarcerated individuals pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. CRIPA authorizes the Attorney General to investigate conditions of confinement in
2 The full text of 28 U.S.C. § 517 is as follows: “The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
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correctional facilities and bring a civil action against a State or local government that, pursuant to a “pattern or practice” of conduct, “is subjecting persons residing in or confined to an institution . . . to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 1997(a).
The United States has a broad interest in ensuring that conditions of confinement in state and local correctional facilities are consistent with the Constitution and federal law. To that end, the Department of Justice has previously exercised its CRIPA authority to investigate jurisdictions for issues similar to those presented in this case, such as access to adequate medical and mental health care and protection from harm for lesbian, gay, bisexual, transgender, and intersex prisoners.3
The United States also has a strong interest in protecting the rights of lesbian, gay, bisexual, and transgender individuals more broadly. Accordingly, the United States is active in litigation involving employment discrimination against transgender individuals under Title VII of the Civil Rights Act; discrimination and harassment of transgender students in schools under
3 See, e.g., Letter from Loretta King, Acting Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Marlin N. Gusman, Sheriff, Orleans Parish Sheriff’s Office (Sept. 11, 2009), available at http://www.justice.gov/crt/about/spl/documents/parish_findlet.pdf (finding that the Orleans Parish Sheriff’s Office failed to provide Orleans Parish Prison detainees with constitutional levels of medical and mental health care); Letter from Thomas Perez, Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Carlos A. Gimenez, Mayor, Miami-Dade Cnty. (Aug. 24, 2011), available at http://www.justice.gov/crt/about/spl/documents/MiamiDade_findlet_8-24-11.pdf (finding that the Miami-Dade County Jail failed to provide detainees with appropriate medical and mental health care, including screening, chronic care, and access to services for acute needs); Letter from Jocelyn Samuels, Acting Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Robert Bentley, Governor, State of Ala. (Jan. 17, 2014), available at http://www.justice.gov/crt/about/spl/documents/tutwiler_findings_1-17-14.pdf (raising concerns regarding the treatment of lesbian, gay, bisexual, transgender, and intersex prisoners at Julia Tutwiler Prison for Women).
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Title IX of the Education Amendments of 1972; and discrimination against transgender individuals in violation of the Fair Housing Act.4
FACTUAL BACKGROUND
Ms. Diamond’s Complaint (ECF No. 3) and the supporting materials for her Motion for
Preliminary Injunction (ECF No. 2) detail the factual background concerning Ms. Diamond’s
medical history and treatment while incarcerated in the GDOC. Rather than repeat these
allegations in full, the United States summarizes the general factual allegations upon which this Statement of Interest relies.5
Ms. Diamond suffers from gender dysphoria. Gender dysphoria is listed in the
Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-V) as a major mental
illness and characterized by a marked incongruence between one’s experienced/expressed gender
and assigned gender at birth. Gender dysphoria involves a persistent physical and emotional
discomfort with one’s biological sex. Left untreated, that discomfort can become so painful that
individuals consider or attempt suicide, self-castration, or self-mutilation. The accepted course of
treatment to alleviate these symptoms often involves allowing the individual to live as his or her
chosen gender, through one or more of the following treatments: changes in gender expression
4 See, e.g., Statement of Interest of the United States, Jamal v. SAKS & Co., No. 4:14-CV-2782 (S.D. Tex. 2015), ECF No. 1, available at http://www.justice.gov/crt/about/emp/documents/jamalsoi.pdff (Title VII’s prohibition of discrimination on the basis of sex proscribes discrimination because of transgender status); Statement of Interest of the United States, Tooley v. Van Buren Pub. Sch., et al., No. 2:14-CV-13466 (E.D. Mich. 2015), ECF No. 64-1, available at http://www.justice.gov/crt/about/edu/documents/tooleysoi.pdf (discrimination based on transgender status constitutes discrimination based on sex for purposes of Title IX and Equal Protection Clause of the Fourteenth Amendment, regardless of whether there is evidence of sex stereotyping); see also Mediated Settlement Order, United States v. Toone, No. 6:13-CV-744 (E.D. Tex. 2014), ECF No. 45, available at http://www.justice.gov/crt/about/hce/documents/toonesettle.pdf (settling action brought by United States against owner of a trailer park in Texas for discrimination against renter based on transgender status in violation of the Fair Housing Act). 5 As noted above, the United States does not take a position on the accuracy of the facts asserted in Ms. Diamond’s Complaint and Motion for Preliminary Injunction. The United States assumes those facts to be true for the purposes of this Statement of Interest.
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and role; dressing, grooming, and otherwise outwardly presenting in a manner consistent with
one’s gender identity; hormone therapy; and, in some cases, surgery to change primary and/or
secondary sex characteristics.6
Ms. Diamond states that she was first diagnosed with gender dysphoria when she was a
teenager, nearly twenty years ago.7 Ms. Diamond also states that she lived as a female in the
community prior to incarceration, and took feminizing hormones for seventeen years, which
caused her to develop female secondary sex characteristics such as breasts and soft skin.8 When
GDOC processed Ms. Diamond through intake, she presented as female; identified as
transgender; and discussed her medical history, including her diagnosis of gender dysphoria and
hormone therapy.9 However, for reasons not explained in the current pleadings, GDOC did not
refer Ms. Diamond for additional evaluation or treatment. Instead, GDOC terminated Ms.
Diamond’s hormone therapy and confiscated her female clothing and undergarments before
placing her in a male facility.10 This had a profound physical and emotional impact on Ms.
6 Compl. ¶¶ 28-31 (discussing the World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 9-10 (7th ed. 2011), available at http://admin.associationsonline.com/uploaded_files/140/files/Standards%20of%20Care%20V7%20%202011%20WPATH.pdf). 7 Compl. ¶¶ 38-39. 8 Compl. ¶ 40. 9 Compl. ¶ 44. 10 See Compl. ¶¶ 45, 64. Ms. Diamond’s complaint and recently-filed Emergency Motion for a Temporary Restraining Order and Preliminary Injunction (ECF No. 25) raise additional allegations concerning her placement in a maximum security male facility and GDOC’s failure to protect her from sexual abuse and harassment. Because those issues were not covered in Ms. Diamond’s Motion for Preliminary Injunction (ECF No. 1), the United States does not address them in this Statement of Interest. The United States may choose to weigh in on the constitutionality of GDOC’s conduct on those issues at a later date. The United States has previously investigated jurisdictions pursuant to CRIPA for failure to protect prisoners from sexual abuse. See generally Letter from Jocelyn Samuels, Acting Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Robert Bentley, Governor, State of Ala. (Jan. 17, 2014), available at http://www.justice.gov/crt/about/spl/documents/tutwiler_findings_1-17-14.pdf (concluding that administrators at the Julia Tutwiler Prison for Women failed to keep women prisoners safe from harm due to sexual abuse and harassment from correctional staff); Letter from Thomas E. Perez, Assistant Att’y Gen. of the United States, U.S. Dep’t of Justice, to Samuel Brownback, Governor, State of Kan. (Sept. 6, 2012), available at
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Diamond. Terminating her hormone therapy created painful side effects, including chest pains, heart palpitations, clinically significant depression, and increased thoughts of suicide, hopelessness and anxiety.11 According to Ms. Diamond, her gender dysphoria is so severe that she has attempted suicide and self-castration on multiple occasions during her incarceration.12
Multiple GDOC clinicians later confirmed Ms. Diamond’s gender dysphoria. Those GDOC clinicians recommended treatment, including hormone therapy and allowing Ms. Diamond to outwardly express her female gender identity through dress and adherence to female grooming standards.13 GDOC never provided this recommended treatment.14 When Ms. Diamond requested treatment consistent with her clinician’s recommendations, GDOC officials told her that such treatment was either not available or prohibited by GDOC’s freeze-frame policy.15 That policy prohibits initiating new treatments for gender dysphoria for prisoners who either did not receive such treatments in the community, or who were not identified as transgender and referred for such treatment during the intake process.16 Ms. Diamond filed this suit to combat this policy and obtain the treatment recommended by her GDOC clinicians.
DISCUSSION Ms. Diamond claims that the GDOC violated her constitutional right to be free from cruel and unusual punishment under the Eighth Amendment by failing to provide her with adequate treatment for her gender dysphoria. Ms. Diamond is challenging both the individual treatment
http://www.justice.gov/crt/about/spl/documents/topeka_findings_9-6-12.pdf (concluding that administrators at the Topeka Correctional Facility fail to protect women prisoners from harm due to sexual abuse and misconduct). 11 See generally Compl. ¶¶ 5, 96, 121, 138-39. 12 See generally Compl. ¶¶ 38-39, 44, 73-76, 90, 96-97, 104, 116-18. 13 See Compl. ¶¶ 75, 96. 14 See Compl. ¶¶ 75-76, 95-97. 15 See Compl. ¶¶ 74-76, 79-91, 95-97, 107-10, 117-18. 16 Compl. ¶¶ 48-50.
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she received, and the constitutionality of the GDOC policy that she believes prevented her treatment. Accordingly, Ms. Diamond is currently seeking two preliminary injunctions: one directing Defendants to provide her with medically necessary treatment for her gender dysphoria, including hormone therapy and allowing her to express her female gender through grooming, pronouns, and dress, and the second enjoining Defendants from enforcing their freeze-frame policy, which Ms. Diamond asserts contributes to the on-going violation of her Eighth Amendment Rights.17
The Court should grant Ms. Diamond’s request for a preliminary injunction if it finds that (1) she has a strong likelihood of success on the merits of her underlying claims; (2) she will suffer irreparable injury unless the injunction issues; (3) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329 (11th Cir. 2014). Although the United States believes that the facts alleged in Ms. Diamond’s Motion, if true, would be sufficient to satisfy each of the four elements,18 it limits its Statement of Interest to the first prong – whether Ms. Diamond has a substantial likelihood of success on the merits of her two Eighth Amendment claims. The United States asserts that, under the facts alleged, Ms. Diamond will be successful in showing that she has thus far received a constitutionally inadequate level of medical care for her gender dysphoria, and that the policy preventing her from receiving more appropriate and individualized treatment – the “freeze-frame” policy – is facially unconstitutional.
17 Pl.’s Mot. for Prelim. Inj. 1, ECF No. 1. 18 In particular, the facts as alleged indicate that Ms. Diamond will experience irreparable harm if a preliminary injunction is not granted. Ms. Diamond continues to experience significant distress as a result of being forced to live as a man, and medical personnel familiar with gender dysphoria who evaluated Ms. Diamond indicated that she is at an “extremely high risk of continued decompensation and suicide.” Mem. in Supp. of Prelim. Inj. 18, ECF No. 2.
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I. GDOC Violates the Eighth Amendment by Failing to Provide Ms. Diamond with Adequate Medical Treatment for her Serious Medical Needs Ms. Diamond must meet two elements to prevail on an Eighth Amendment claim for
inadequate medical care. First, Ms. Diamond must show that she has an objectively serious medical need. See Estelle, 429 U.S. at 104. Second, Ms. Diamond must show that prison officials were “deliberately indifferent” to that need, meaning they knew there was a substantial risk of harm to Ms. Diamond if the need was not met, yet they disregarded that risk by conduct that amounted to more than mere negligence. See Farmer v. Brennan, 511 U.S. 825, 837 (1970); Kothmann, 558 F. App’x at 910; Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1425 (11th Cir. 1997).
a. Ms. Diamond’s gender dysphoria and risk of self-harm constitute serious medical needs under the Eighth Amendment
The first element is easily met in this case. An “objectively serious medical need” is considered “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.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)). Courts have routinely held that gender dysphoria is a serious medical need under the Eighth Amendment. Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011); Allard v. Gomez, 9 F. App’x 793, 794 (9th Cir. 2001) (citing Meriwether v. Faulkner, 821 F.2d 408, 412-13 (7th Cir. 1987)); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Soneeya v. Spencer, 851 F. Supp. 2d 228, 243 (D. Mass. 2012); Wolfe v. Horn, 130 F. Supp. 2d 648, 652 (E.D. Pa. 2001).19 Here, GDOC clinicians diagnosed Ms. Diamond with gender dysphoria
19 These courts’ conclusions are consistent with the views of the preeminent medical and professional associations that gender dysphoria is a serious medical condition for which treatment is necessary and effective. See, e.g.,
8

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during her first few years of incarceration. Those with training on gender dysphoria recommended hormone therapy and allowing Ms. Diamond to express her female gender identity. Ms. Diamond’s gender dysphoria therefore constitutes a serious medical need deserving of adequate treatment under the Eighth Amendment.
Further, Ms. Diamond has a documented risk of engaging in self-harm, which may constitute a serious medical need separate from the underlying gender dysphoria deserving of treatment under the Eighth Amendment. See De’lonta v. Angelone (De’lonta I), 330 F.3d 630, 634 (4th Cir. 2003) (“De’lonta’s need for protection against continued self-mutilation constitutes a serious medical need to which prison officials may not be deliberately indifferent.”) (citing Lee v. Downs, 641 F.2d 1117, 1121 (4th Cir. 1981) (explaining that “prison officials have a duty to protect prisoners from self-destruction or self-injury”)). Ms. Diamond’s extensive history of attempting suicide and self-castration demonstrate that she has a second serious medical need, distinct from her diagnosis of gender dysphoria – the need to be kept safe from self-harm.
b. GDOC knew of Ms. Diamond’s serious medical needs and the risk they posed to her health and safety, yet unconstitutionally disregarded that risk
The second element of an Eighth Amendment claim is also clear in this case. Ms. Diamond has shown that GDOC officials’ conduct amounts to deliberate indifference, because they knew of and disregarded her serious medical needs that created a risk to Ms. Diamond’s health and safety. Under the facts as alleged, GDOC officials knew of Ms. Diamond’s gender
American Medical Association, Resolution: Removing Financial Barriers to Care for Transgender Patients (2008), available at http://www.tgender.net/taw/ama_resolutions.pdf; American Psychological Association, Transgender, Gender Identity & Gender Expression Non-Discrimination (2008), available at http://www.apa.org/about/policy/transgender.pdf; World Professional Association of Transgender Health, WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide (2008), available at http://www.wpath.org/uploaded_files/140/files/Med%20Nec%20on%202008%20Letterhead.pdf.
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dysphoria, past suicide attempts, self-mutilation, and attempts at self-castration. The issue then becomes whether GDOC officials impermissibly disregarded Ms. Diamond’s medical needs and the risks they posed.
Under any rubric, GDOC did not provide Ms. Diamond with adequate care. Although prisoners do not have the right to the medical treatment of their choice, the important consideration under the Eighth Amendment is not whether any care was provided, but rather whether the level of care provided was constitutionally adequate. See Estelle, 429 U.S. at 10306; Kothmann, 558 F. App’x at 910; De’lonta v. Johnson (De’lonta II), 708 F.3d 520, 526 (4th Cir. 2013) (holding that “just because [Defendants] have provided [Plaintiff] with some treatment consistent with the [WPATH Standards of Care], it does not follow that they have necessarily provided her with constitutionally adequate treatment.”) (emphasis in original); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007) (“plaintiff’s receipt of some medical care does not automatically defeat a claim of deliberate indifference”). Indifference to a serious medical need can occur in many forms, “whether . . . manifested by prison doctors in response to the prisoner’s needs” or by officials “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once proscribed.” Estelle, 429 U.S. at 105-06. “Delays, poor explanations, missteps, changes in position, and rigidities” which result in the delay or denial of adequate treatment may be sufficient to prove deliberate indifference. Battista, 645 F.3d at 455.
In assessing Ms. Diamond’s Eighth Amendment claim, the Court should determine whether the current course of treatment is medically adequate, which may be informed by current professional standards of care. Estelle, 429 U.S. at 102 (courts should look to the
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“evolving standards of decency that mark the progress of a maturing society.”); United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987) (the Eighth Amendment requires medical care “at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards.”) (cited with approval in Fernandez v. United States, 941 F.2d 1488, 1493-4 (11th Cir. 1991); see also Kosilek v. Maloney, 221 F. Supp. 2d 156, 180 (D. Mass. 2002); Barrett v. Coplan, 292 F. Supp. 2d 281, 285 (D.N.H. 2003) (“‘Adequate medical care’ requires treatment by qualified medical personnel who provide services that are of a quality acceptable when measured by prudent professional standards in the community, tailored to an inmate's particular medical needs, and that are based on medical considerations.”).20
Two things are clear from the record in this case: one, the generally accepted standards for treatment of gender dysphoria require treatment decisions be individualized; and two, Ms. Diamond did not receive individualized care. As other courts have recognized, the World Professional Association for Transgender Health (WPATH) is “an association of medical, surgical and mental health professionals specializing in the understanding and treatment of [gender dysphoria].” See, e.g., O’Donnabhain v. Comm’r, 134 T.C. 34, 36 (2010). Since the 1970s, WPATH has published “Standards of Care,” which set forth WPATH’s recommendations
20 The United States recognizes that in the corrections context additional considerations may weigh against implementing certain medical recommendations. However, officials must be able to articulate those considerations with specificity and substantiate that the recommended treatment would give rise to concerns that cannot otherwise be adequately addressed. General, amorphous security concerns cannot be grounds for refusing to provide medically recommended treatment. See, e.g., Soneeya, 851 F. Supp. 2d at 250 (finding deliberate indifference where DOC failed to engage in individualized inquiry into prisoner’s medical needs and security implications of various treatments, and instead relied on blanket prohibitions and “amorphous security concerns” as grounds to refuse treatment). Specific security concerns must be balanced against the medical need. And, importantly, officials cannot deny treatment merely because it is expensive or controversial. See Kosilek, 221 F. Supp. 2d at 192; Barrett, 292 F. Supp. 2d at 286 (“[T]he Eighth Amendment does not permit necessary medical care to be denied to a prisoner because the care is expensive or because it might be controversial or unpopular.”).
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for the treatment of gender dysphoria and the research supporting those recommendations.21 The Standards, which were most recently updated in 2011, make clear that a variety of therapeutic interventions may be appropriate, and that the necessary course of treatment must be determined on an individual basis.22 Importantly, however, the Standards of Care recognize that the appropriate course of treatment should be decided after evaluation by a qualified medical professional who has specific knowledge of and training in the diagnosis and treatment of gender dysphoria.23 Here, GDOC displayed deliberate indifference by ignoring its clinicians’ individualized treatment recommendations for Ms. Diamond. GDOC clinicians with training on gender dysphoria reconfirmed Ms. Diamond’s gender dysphoria diagnosis. Based on their individualized assessments and clinical training, these doctors recommended hormone therapy and permission to express female gender identity as the appropriate course of treatment for Ms. Diamond, given the severity of her symptoms and the recommendations contained in the Standards of Care. Yet, GDOC never provided any part of this treatment. Instead, GDOC officials told Ms. Diamond that GDOC does not provide treatment for gender dysphoria beyond antipsychotic medication and/or basic counseling, and that further treatment would be denied pursuant to GDOC policy. GDOC delayed referrals to appropriate health care providers, denied the care recommended by Ms. Diamond’s treating clinicians, and otherwise refused to acknowledge Ms. Diamond’s serious medical needs. These delays and failures to follow medical determinations amount to deliberate indifference. Battista, 645 F.3d at 455.
21 World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th ed. 2011), available at http://admin.associationsonline.com/uploaded_files/140/files/Standards%20of%20Care%20V7%20%202011%20WPATH.pdf. 22 Id. at 8. 23 See generally id. at 22-23.
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Indeed, Ms. Diamond’s assertion that she was on feminizing hormones in the community for seventeen years and that GDOC abruptly discontinued this treatment upon intake is especially troubling in the Eighth Amendment context. As noted by WPATH, grave consequences are associated with a sudden withdrawal of hormones, including self-castration and increased risk of suicide.24 Ms Diamond’s case was no exception. Abruptly terminating Ms. Diamond’s medical treatment caused her condition to deteriorate and reversed the years of therapeutic benefits she experienced by taking hormones in the community. As recognized by one court, “taking measures which actually reverse the effects of years of healing medical treatment . . . is measurably worse” than merely failing to provide inmates with care that would improve their medical state, thereby “making the cruel and unusual determination much easier.” Phillips v. Mich. Dep’t of Corr., 731 F. Supp. 792, 800 (W.D. Mich. 1990); see also Wolfe, 130 F. Supp. 2d at 653 (“abrupt termination of prescribed hormonal treatments by a prison official with no understanding of [Plaintiff’s] condition, and failure to treat her severe withdrawal symptoms or after-effects, could constitute ‘deliberate indifference’”); Fields, 653 F.3d at 554 (“When hormones are withdrawn from a patient who has been receiving hormone treatment, severe complications may arise. The dysphoria and associated psychological symptoms may resurface in more acute form.”). Terminating Ms. Diamond’s hormone therapy at intake caused her great suffering: she has lost breast mass and other female secondary sex characteristics, and continues to experience physical pain, muscle spasms, heart palpitations, vomiting, dizziness, hot flashes, and other symptoms of hormone withdrawal.25
24 Id. at 68. 25 Compl. ¶ 138.
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Based on the facts alleged in the Complaint, GDOC did not provide Ms. Diamond with constitutionally adequate treatment for her gender dysphoria. Ignoring Ms. Diamond’s need for such treatment and her history of self-harm and multiple suicide attempts, GDOC made no efforts to provide Ms. Diamond with anything beyond general counseling and antipsychotic medication – therapies that were well below the level of treatment that was medically indicated and recommended by the qualified GDOC medical personnel who evaluated Ms. Diamond. For these reasons, GDOC was and remains deliberately indifferent to Ms. Diamond’s serious medical needs. II. “Freeze-Frame” policies do not adequately address the individualized medical needs
of inmates and therefore violate the Eighth Amendment Ms. Diamond’s Motion for Preliminary Injunction not only challenges her individual treatment – it also addresses the facial constitutionality of GDOC’s policy regarding the treatment of all individuals with gender dysphoria in GDOC custody. Because GDOC’s policy amounts to a blanket prohibition of certain treatments for certain inmates, without regard to an individual’s medical needs or their progression over time, it does not pass constitutional muster, and must be struck down. GDOC Standard Operating Procedure VH47-0006, “Management of Transsexuals,” states that prisoners identified as transgender at intake should be referred for medical evaluation.26 However, the policy also states that GDOC will only provide “maintenance” of a prisoner’s “transgender status,”27 meaning that GDOC will not begin new treatments or advance the level of care for transgender prisoners beyond that which they received in the community.
26 GDOC Standard Operating Procedure VH47-0006, “Management of Transsexuals,” Mem. in Supp. of Mot. Prelim. Inj. 2, Ex. 3, ECF No. 2-3. 27 Id.
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Under this policy, prisoners must be identified as transgender at intake and referred for further evaluation in order to receive any treatment, and the treatment they may receive is decidedly limited.28 As a result, many prisoners – including those not identified at intake, or those whose gender dysphoria worsens during their incarceration – are denied the medical care necessary to protect their health and safety.
Such a policy cannot stand under the Eighth Amendment. Courts have continuously struck down similar policies that place a blanket prohibition on certain kinds of medical care. In Fields v. Smith, 653 F.3d 550, 557-58 (7th Cir. 2011), the Seventh Circuit considered a Wisconsin state statute that prohibited the Wisconsin Department of Corrections from providing hormone therapy or sexual reassignment surgery to prisoners. The district court found the statute to be facially unconstitutional because “[t]he statute applies irrespective of an inmate’s serious medical need or the DOC’s clinical judgment.” Id. at 559 (citing Fields v. Smith, 712 F. Supp. 2d 830, 867 (E.D. Wisc. 2010)). In upholding the district court’s determination, the Circuit noted that “[j]ust as the legislature cannot outlaw all effective cancer treatments for prison inmates, it cannot outlaw the only effective treatment for a serious condition like [gender dysphoria.” Id. at 557. Other courts to consider similar blanket prohibitions on treatment for gender dysphoria have reached the same conclusions. See, e.g., De’lonta I, 330 F.3d at 635 (terminating hormone treatment based on blanket policy may amount to Eighth Amendment
28 As Ms. Diamond points out, this is especially problematic if intake personnel are not trained on gender dysphoria. See Compl. ¶ 48. Under GDOC policy, intake personnel are the only line of defense for transgender prisoners in need of treatment for gender dysphoria. If intake personnel are untrained or unaware on the basic of this condition, prisoners in need of such treatment will not be referred and will subsequently be denied necessary care. For example, it is unclear why Ms. Diamond herself was not referred for evaluation for gender dysphoria after presenting as transgender at intake; presumably, Ms. Diamond should have been referred pursuant to GDOC policy given her self-identification as transgender, her medical history, and her use of hormones in the community. Yet, because she was not referred and properly diagnosed at the initial intake stage, Ms. Diamond continued to be denied treatment pursuant to GDOC policy throughout her incarceration.
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violation); Allard, 9 F. App’x at 795 (denial of hormone therapy based on blanket rule rather than individualized medical evaluation constitutes deliberate indifference).
Blanket prohibitions on all gender dysphoria treatment are identical to freeze-frame policies for the purposes of the Eighth Amendment; both types of policies strike an arbitrary line that preclude individualized medical evaluations and proscribe physician’s ability to provide appropriate care. Soneeya, 851 F. Supp. 2d at 243-44; Kosilek, 221 F. Supp. 2d at 193 (presumptive freeze-frame policies are constitutionally permissible only if exceptions are made when necessary, as determined by sound medical judgment and adherence to prudent professional standards); Barrett, 292 F. Supp. at 286 (“A blanket policy that prohibits a prison's medical staff from making a medical determination of an individual inmate's medical needs and prescribing and providing adequate care to treat those needs violates the Eighth Amendment.”).
For example, in Brooks v. Berg, a district court considered the constitutionality of the New York Department of Correctional Services’ (NYDOCS) freeze-frame policy. Brooks v. Berg, 270 F. Supp. 2d 302, 312 (N.D.N.Y. 2003) vacated in part on other grounds, 289 F. Supp. 2d 286 (N.D.N.Y. 2003). Under that policy, NYDOCS provided treatment for gender dysphoria only to those prisoners who could prove they received such treatment prior to incarceration. Id. at 305. There was no dispute that the plaintiff in Brooks was denied treatment for her GID; rather, defendants claimed qualified immunity on the grounds that they were following NYDOCS policy. Id. at 312. The district court rejected the defendants’ immunity argument and held that NYDOCS’ freeze-frame policy was facially unconstitutional. Id. In reaching this conclusion, the district court noted that the Eighth Amendment requires adequate treatment for all serious medical needs, and that “[t]here is no exception to this rule for serious medical needs
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that are first diagnosed in prison.” Id. This Court should reach a similar conclusion in the instant
case.
Recognizing the need to treat prisoners according to their needs, rather than blanket rigid
policies, the Federal Bureau of Prisons recently adopted a policy requiring an individualized assessment of the health needs of transgender prisoners.29 The current policy, Federal Bureau of
Prisons Program Statement 6031.04 (“Patient Care”), provides that prisoners in Bureau custody
with a possible diagnosis of gender dysphoria “will receive a current individualized assessment
and evaluation” and “[t]reatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.”30
For the above stated reasons, freeze-frame policies are facially unconstitutional. Ms.
Diamond did not receive the treatment she needed because GDOC administrators purportedly
followed GDOC’s unconstitutional freeze-frame policy to determine the level of care to provide
to Ms. Diamond. The United States therefore urges the Court to find that Ms. Diamond will
have a strong likelihood of success on the merits of her facial challenge to GDOC’s current
policy governing the treatment of gender dysphoria.
CONCLUSION Failure to provide adequate treatment for transgender inmates with gender dysphoria
constitutes cruel and unusual punishment under the Eighth Amendment. Freeze-frame policies
29 This policy came about as a result of litigation similar to the instant case. In 2009, Vanessa Adams, a Bureau prisoner, sued the Bureau for the Bureau’s failure to treat her gender dysphoria. At the time, the Bureau followed a “freeze-frame” policy, similar to GDOC’s policy, which allowed prisoners with gender dysphoria to receive only the level of treatment they received in the community prior to incarceration. In 2011, Ms. Adams and the Bureau settled Ms. Adams claims – the Bureau reformed its policy and agreed to provide Ms. Adams with medically necessary treatment for her gender dysphoria. See generally Adams v. Federal Bureau of Prisons, No. 09-CV-10272 (D. Mass.). 30 U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program Statement 6031.04 (“Patient Care”) at 42, June 3, 2014, available at http://www.bop.gov/policy/progstat/6031_004.pdf.
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and other policies that apply blanket prohibitions to such treatment are facially unconstitutional

because they fail to provide individualized assessment and treatment of a serious medical need.

Accordingly, the United States urges the Court to (1) find that Ms. Diamond has a substantial

likelihood of success on the merits of her claims, (2) declare that GDOC’s freeze-frame policy is

facially unconstitutional under the Eighth Amendment, and (3) issue appropriate injunctive

relief.

Respectfully submitted,

MICHAEL J. MOORE United States Attorney Middle District of Georgia

VANITA GUPTA Acting Assistant Attorney General Civil Rights Division United States Department of Justice

BERNARD SNELL (GA 665692) Assistant United States Attorney Middle District of Georgia 300 Mulberry Street, Suite 400 Macon, GA 31201 (478) 752-3511

MARK KAPPELHOFF Deputy Assistant Attorney General Civil Rights Division
JUDY PRESTON Acting Chief Civil Rights Division Special Litigation Section

JULIE ABBATE Deputy Section Chief Civil Rights Division Special Litigation Section

/s SHARON BRETT (NY 5090279) Trial Attorney Civil Rights Division Special Litigation Section Telephone: (202) 353-1091 Sharon.Brett@usdoj.gov

Attorneys for the United States of America 18

Case 5:15-cv-00050-MTT Document 29 Filed 04/03/15 Page 19 of 19 CERTIFICATE OF SERVICE
I hereby certify that on April 3, 2015, a copy of the foregoing was filed electronically. Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
__/s/_________________________ SHARON BRETT (NY 5090279) Trial Attorney Civil Rights Division Special Litigation Section Telephone: (202) 353-1091 Sharon.Brett@usdoj.gov Attorney for the United States of America
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 </s> Case 5:15-cv-00050-MTT Document 2 Filed 02/20/15 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA

ASHLEY DIAMOND, Plaintiff, v. BRIAN OWENS, et al., Defendants.

)

)

)

)

)

No. 5:15-cv-00050-MTT-CHW

)

)

)

)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

James M. Knoepp, GA Bar No. 366241 Southern Poverty Law Center 1989 College Ave. NE Atlanta, GA 30317 Tel: (404) 521-6700 jim.knoepp@splcenter.org
A. Chinyere Ezie,* NY Bar No. 496774 David Dinielli,* CA Bar. No. 177904 Samuel Wolfe,* AL Bar No. 2945E63W Southern Poverty Law Center 400 Washington Ave. Montgomery, AL 36104 Tel: (334) 956-8200 chinyere.ezie@splcenter.org david.dinielli@splcenter.org sam.wolfe@splcenter.org
Counsel for Plaintiff
*Applications for admission pro hac vice forthcoming
February 20, 2015

Case 5:15-cv-00050-MTT Document 2 Filed 02/20/15 Page 2 of 26

TABLE OF CONTENTS

INTRODUCTION

1

FACTS

2

I. Background on Gender Dysphoria

2

II. Plaintiff’s Gender Dysphoria and History of Treatment

3

III. Plaintiff’s Custody in GDC and GDC’s Policies on Gender Dysphoria

Treatment

3

A. GDC Personnel Initially Confirm Plaintiff’s Need for Hormone Therapy 3

B. Defendants Repeatedly Refuse To Provide Plaintiff Medically Necessary

Care

5

C. GDC Healthcare Professionals and a Gender Dysphoria Expert Confirm

Plaintiff’s Urgent Need for Hormone Therapy

7

D. Consequences of Defendants’ Refusal to Provide Treatment

9

ARGUMENT

9

I. Plaintiff Is Substantially Likely To Succeed On the Merits

9

A. Plaintiff’s Gender Dysphoria and Risk of Self-Harm Are Objectively

Serious Medical Needs

10

B. Defendants Have Shown Deliberate Indifference to Plaintiff’s Serious

Medical Needs

11

C. Plaintiff’s Request for Relief Is Not Moot

17

II. Plaintiff Will Suffer Irreparable Injury Absent an Injunction

18

III. The Balance of Harms Strongly Favors Plaintiff

19

IV. An Injunction is in the Public Interest

19

CONCLUSION

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Case 5:15-cv-00050-MTT Document 2 Filed 02/20/15 Page 3 of 26
CASES
Allard v. Gomez, 9 F. App’x 793 (9th Cir. 2001) ................................................................................................ 15
Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985) ........................................................................................... 12, 13
Barrett v. Coplan, 292 F. Supp. 2d 281 (D.N.H. 2003)......................................................................................... 15
Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011) .................................................................................................... 10
Belcher v. City of Foley, Ala., 30 F.3d 1390 (11th Cir. 1994) ..................................................................................... 11, 13, 14
BellSouth Telecomm., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964 (11th Cir. 2005) ................................................................................................. 20
Brooks v. Berg, 270 F. Supp. 2d 302 (N.D.N.Y. 2003) ..................................................................................... 15
Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004) ............................................................................. 11, 12, 13, 16
Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995) ................................................................................................... 10
Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014) ................................................................................................. 14
Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000)....................................................................................................... 10
De’lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003) ............................................................................................. 11, 14
Estelle v. Gamble, 429 U.S. 97 (1976)............................................................................................................ passim
Farmer v. Brennan, 511 U.S. 825 (1994)................................................................................................................. 12
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Fields v. Smith, 712 F. Supp. 2d 830 (E.D. Wis. 2010), aff’d, 653 F.3d 550 (7th Cir. 2011)........................... 10
Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) ................................................................................................... 14
Gammett v. Idaho State Bd. of Corr., No. CV05-257-S-MHW, 2007 WL 2186896 (D. Idaho July 27, 2007) ............................ 18, 19
Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005) ................................................................................................... 16
H.C. v. Jarrard, 786 F.2d 1080 (11th Cir. 1986) ............................................................................................... 13
Helling v. McKinney, 509 U.S. 25 (1993)................................................................................................................... 10
KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006) ..................................................................................... 9, 19, 20
Konitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010)............................................................................... 10, 16
Kothmann v. Rosario, 558 F. App’x 907 (11th Cir. 2014) .............................................................................. 10, 15, 16
Kuhne v. Fla. Dep’t of Corr., 745 F.3d 1091 (11th Cir. 2014) ......................................................................................... 10, 11
Laube v. Haley, 234 F. Supp. 2d 1227 (M.D. Ala. 2002) .................................................................................. 19
League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155 (N.D. Fla. 2012).................................................................................... 19
Lynch v. Lewis, No. 7:14-CV-24(HL), 2014 WL 1813725 (M.D. Ga. May 7, 2014) ....................................... 15
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ............................................................................................... 19
O’Donnabhain v. Comm’r, 134 T.C. 34 (2010)................................................................................................................... 10
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Phillips v. Mich. Dep’t of Corr., 731 F. Supp. 792 (W.D. Mich. 1990) .................................................................... 10, 13, 18, 20
Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011) ................................................................................................... 14
Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010) ................................................................................... 18, 19, 20
Soneeya v. Spencer, 851 F. Supp. 2d 228 (D. Mass. 2012) ...................................................................................... 14
Spellman v. Hopper, 142 F. Supp. 2d 1323 (M.D. Ala. 2000) .................................................................................. 17
Steele v. Shah, 87 F.3d 1266 (11th Cir. 1996) ................................................................................................. 17
Strickland v. Alexander, 772 F.3d 876 (11th Cir. 2014) ................................................................................................. 17
White v. Farrier, 849 F.2d 322 (8th Cir. 1988) ................................................................................................... 10 RULES
Fed. R. Civ. P. 65 ...................................................................................................................... 1, 20
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INTRODUCTION This case concerns the refusal of the Georgia Department of Corrections (“GDC”), by and through the named Defendants and their agents to provide Plaintiff, a transgender woman with gender dysphoria, urgently needed medical care. Despite being aware of her gender dysphoria diagnosis, seventeen-year history of hormone treatment, and ongoing need for care, Defendants have refused Plaintiff all medically necessary care. Defendants have also maintained an unconstitutional “freeze frame policy” that categorically prohibits prison healthcare officials from initiating gender dysphoria treatment to inmates in need. Defendants have also subjected Plaintiff to punishment for expressing her female gender identity and “pretending to be a woman,” in deliberate indifference to her serious medical needs. Plaintiff seeks a preliminary injunction because she is suffering severe and irreparable physical and psychological harm, based on Defendants’ refusal to provide care. Plaintiff’s body has been violently transformed by the withdrawal of hormone therapy; she has effectively been forced to transition back to a man from a woman. Plaintiff has also attempted suicide, self-harm, and auto-castration multiple times, and continues to experience a compulsion to castrate herself and end her life — harms that would be remediated with proper gender dysphoria treatment. Because Plaintiff remains at a substantial risk of irreparable harm, including ongoing mental anguish, bodily injury or death, Plaintiff moves for a preliminary injunction (1) enjoining Defendants from enforcing the policies that operate as a moving force behind their constitutional violations; and (2) requiring Defendants to provide Plaintiff with medically adequate treatment for her gender dysphoria, including, but not limited to, hormone therapy and allowing Plaintiff to express her female gender identity through grooming, pronoun use, and dress.
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FACTS I. Background on Gender Dysphoria
Gender dysphoria, also known as gender identity disorder (“GID”) or transsexualism, is a condition in which a person’s gender identity — or innate sense of being male or female — differs from the sex assigned at birth. See Declaration of Dr. Randi C. Ettner (“Ettner Decl.”) ¶¶ 13-14. Gender dysphoria appears in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”). Id. Individuals with untreated gender dysphoria experience clinically significant depression, anxiety, and mental impairment, and, when left untreated, additional serious medical problems including suicidality and the compulsion to engage in self-castration and self-harm. Id. ¶¶ 15-18. The clinically accepted standards for the treatment of gender dysphoria are the World Professional Association for Transgender Health’s Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People (the “Standards of Care”). Id. ¶¶ 20-21. The Standards of Care apply in incarcerated and non-incarcerated settings, and are recognized as the authoritative treatment protocol for gender dysphoria by medical and mental health professionals worldwide. Id.
The Standards of Care establish that persons with gender dysphoria should be individually assessed by qualified healthcare providers and referred for treatment that can consist of medical interventions including: (1) changes in gender expression and role, such as living full time in another gender role that is consistent with one’s internal sense of gender identity; (2) hormone therapy to feminize or masculinize the body; and/or (3) surgery to change primary and/or secondary sex characteristics. Id. ¶¶ 22-30. Counseling can also provide support for some individuals, but it is not a substitute for medical intervention, and exclusive reliance on it constitutes a gross departure from medically accepted practice. Id. ¶¶ 31-33.
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The Standards of Care also recognize that hormone therapy, in particular, is fundamental to the treatment of gender dysphoria, and that the cessation of hormone treatment leads to significant deterioration and impairment in patients, including a high likelihood of depression, suicide ideation, and surgical self-treatment by auto-castration (removal of the testicles) or autopenectomy (removal of the penis). Id. ¶¶ 22-27, 66. II. Plaintiff’s Gender Dysphoria and History of Treatment
Plaintiff has experienced gender dysphoria since childhood. Diamond Verified Complaint (“Compl.”) ¶¶ 36-37. After attempting suicide and being hospitalized at the age of fifteen, Plaintiff began to receive treatment for her gender dysphoria. Id. ¶¶ 38-39. Plaintiff began living as a woman full time and adopted a female gender presentation, female pronouns, and feminine dress. Id. Plaintiff also began taking feminizing hormones, which caused her to develop breasts, soft skin, and other female secondary sex characteristics, while suppressing the development of male sex characteristics such as facial hair. Id. ¶ 40. Hormone therapy and female gender expression are the medically required treatments for Plaintiff’s gender dysphoria — treatments Plaintiff has received for almost half her life — and together they provide her clinically significant relief from her gender dysphoria. Id. ¶ 41; see also Ettner Decl. ¶¶ 48-49. III. Plaintiff’s Custody in GDC and GDC’s Policies on Gender Dysphoria Treatment
Plaintiff entered GDC custody on March 27, 2012 with full breasts and a feminine voice, shape, and appearance. Compl. ¶¶ 42-44. Plaintiff informed each of the Defendants that she was a transgender woman with gender dysphoria, discussed her history of medical care, and requested ongoing treatment. Id. However, Plaintiff’s hormone therapy was terminated for the first time in 17 years, and her female garments were confiscated. Id. ¶ 45.
A. GDC Personnel Initially Confirm Plaintiff’s Need for Hormone Therapy 3

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Plaintiff has repeatedly been diagnosed with gender dysphoria by GDC personnel, who have noted her need for continued treatment, and the fact that the withdrawal of care was causing Plaintiff to attempt suicide, auto-castration, auto-penectomy, and other forms of self-harm. Compl. ¶¶ 44, 73-76, 95-96, 116-17; Ettner Decl. ¶¶ 47, 63. In early 2013, Plaintiff’s need for hormone therapy and access to female grooming standards as medically necessary care was also confirmed by Dr. Steven Sloan, a GDC psychologist qualified and experienced in the treatment of gender dysphoria. Compl. ¶¶ 75-76. Dr. Sloan performed an individual assessment of Plaintiff and concluded that hormone therapy and female gender expression were the medically necessary treatments under the Standards of Care. Id. Dr. Sloan also concluded that GDC’s failure to provide these treatments was jeopardizing Plaintiff’s physical and psychological health. Id. Dr. Sloan recommended that GDC resume hormone therapy as treatment for Plaintiff. Id.
The treatment of gender dysphoria within GDC is guided by the Standard Operating Procedure on the Management of Transsexuals (“Transgender SOP” or “Freeze Frame Policy”). Id. ¶ 46. The Transgender SOP recognizes that gender dysphoria is a serious medical need requiring the treatments outlined by the Standards of Care — including hormone therapy, changes in gender role and expression, and at times sex reassignment surgery. Id. ¶ 47; Declaration of A. Chinyere Ezie (“Ezie Decl.”) Ex. A. However, as a “freeze frame policy,” the policy deviates from the Standards of Care by preventing healthcare personnel from initiating treatment they believe in their judgment to be medically necessary unless (1) inmates are identified during diagnostic intake screenings; and (2) a history of prior treatment can be shown. Compl. ¶¶ 48-50; Ezie Decl. Ex. A. Pursuant to this policy, Dr. Sloan’s recommendation that Plaintiff receive hormone therapy as medically necessary care was rejected by Defendant Lewis and Plaintiff was transferred out of Dr. Sloan’s care. Compl. ¶ 76.
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B. Defendants Repeatedly Refuse to Provide Plaintiff Medically Necessary Care Plaintiff was next placed at a GDC facility called Rutledge State Prison, and Rutledge personnel received records detailing Plaintiff’s gender dysphoria diagnosis, history of hormone treatment, past attempts at self-harm, and requests for ongoing care. Compl. ¶¶ 77-78. Plaintiff also filed petitions regarding her need for medical treatment and eventually met with Defendants Thompson and Silver, GDC healthcare providers, with whom she discussed her 17-year history of receiving hormone therapy, Dr. Sloan’s assessment, and her current condition. Id. ¶¶ 79-80. Defendants Silver and Thompson told Plaintiff they were not qualified in the treatment of gender dysphoria, but denied her request for hormone therapy without referring her for evaluation by a qualified professional. Id. ¶ 81. Instead, Plaintiff was informed that she forfeited the right to receive hormone therapy when she entered GDC. Id. Plaintiff then contacted Defendant Shelton, the Warden of Treatment and Care at Rutledge. Id. ¶ 82; Ezie Decl. Ex. B. Plaintiff asked Defendant Shelton for information concerning her options for treatment, but Defendant Shelton replied “the Department does not offer therapy for this at this time.” Ezie Decl. Ex. C. Thereafter, Defendants Silver and Thompson informed Plaintiff once again that she would not be receiving any gender dysphoria treatment while in custody. Compl. ¶ 84. On or about November 25, 2013, Plaintiff wrote a letter to Defendant Hatcher, the Warden of Rutledge. Id. ¶ 85. Plaintiff explained that her physical health and well-being were jeopardized by the continued denial of medical care, and asked to be referred for medical treatment. Id. Defendant Shelton responded on her and Defendant Hatcher’s behalf and instructed Plaintiff to develop better coping mechanisms. Id. ¶ 86. Thereafter, Plaintiff filed a complaint concerning the denial of appropriate care. Id. ¶ 87. In response, Defendant Hatcher placed Plaintiff in solitary confinement for almost a week for
5

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“pretending to be a woman,” and then returned her to solitary or ten more days when she was visited by attorneys who learned of her mistreatment. Id. ¶¶ 88-89.
When Defendant Hatcher visited Plaintiff in solitary confinement, Plaintiff explained that she was not simply “pretending to be a woman,” but had serious medical needs requiring treatment, and was suicidal based on the denial of care. Id. ¶ 89. Defendant Hatcher nonetheless continued to punish Plaintiff for her female gender identity and refused to refer her for treatment. Id. ¶ 90. Distraught, Plaintiff attempted to remove her penis and end her life and was hospitalized on an emergency basis. Id.; Ezie Decl. Ex. D. Thereafter, Defendant Lewis wrote to inform Plaintiff that she had reviewed the actions of the GDC personnel who refused to provide her gender dysphoria treatment, and determined that they handled matters appropriately. Compl. ¶ 91; Ezie Decl. Ex. E.
On December 31, 2013, Plaintiff was transferred to a GDC facility called Valdosta State Prison. Compl. ¶ 92. Upon her arrival, GDC personnel received records detailing Plaintiff’s medical history, including her gender dysphoria diagnosis and need for medical treatment. Id. Plaintiff requested an appointment with GDC healthcare staff regarding her medical condition and need to resume treatment. Id. ¶ 95. Plaintiff was evaluated by Drs. Raymond Moody and Heather Harrison, GDC mental health professionals who performed individualized assessments of Plaintiff, and concluded that she should be receiving hormone therapy as treatment and noted her high risk of suicide and auto-castration. Id. ¶¶ 96-97. Dr. Moody sought to commence hormone therapy; however, the request was denied based on GDC’s Freeze Frame Policy, which bars the “initiation” of hormone therapy. Id.
In February 2014, and again in May 2014, Plaintiff contacted Defendants McCracken and Owens, the Commissioner of GDC, concerning her gender dysphoria and need for care. Id. ¶¶
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100-04; Ezie Decl. Exs. F, G. Plaintiff explained that she had been harmed by GDC’s refusal to provide her with treatment, but Defendants Owens and McCracken refused to authorize treatment, even though treatment had been recommended by Drs. Moody, Harrison, and Sloan, and continued to enforce the Freeze Frame Policy. Compl. ¶¶ 103, 107-09.
In April and again in May 2014, Plaintiff contacted Defendant Allen, the Valdosta Warden, regarding her gender dysphoria and need for medical treatment. Id. ¶¶ 105, 110. Plaintiff requested that Defendant Allen refer her for treatment for her gender dysphoria, but Defendant Allen refused and instead began subjecting Plaintiff to harassment and reprimand for her gender identity and feminine mannerisms. Id. ¶¶ 110-11. Defendant Allen began referring to Plaintiff as a “he-she-thing,” and informed her that she was expected to look and dress as a man. Id. Defendant Allen encouraged his staff to ridicule Plaintiff and instruct her to act male. Id.
Plaintiff complained about Defendant Allen’s conduct, and explained that female grooming, expression, and identification were components of the treatment for her gender dysphoria. Id. ¶ 112; Ezie Decl. Ex. H. Plaintiff’s complaint was reviewed and rejected on grounds that Plaintiff was “clearly a man, not a woman.” Ezie Decl. Ex. H. Plaintiff was also told there was “no medically indicated reason” for her female gender presentation, even though female gender expression is a form of medical treatment under the Standards of Care. Id.; Ettner Decl. ¶ 28. Finally, Plaintiff was warned that she would remain subject to continued discipline for her female gender expression, because “[her] gender was male.” Ezie Decl. Ex. H.
C. GDC Healthcare Professionals and a Gender Dysphoria Expert Confirm Plaintiff’s Urgent Need for Hormone Therapy
In May and June 2014, Plaintiff was reevaluated by Dr. Harrison, who had previously recommended hormone therapy for Plaintiff. Compl. ¶ 116. Dr. Harrison noted that Plaintiff was
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“being forced to transform from a woman back to a man” as a result of her continued denial of medical care. Id. In August and September 2014, Plaintiff was also evaluated by GDC healthcare personnel who noted that Plaintiff’s condition was deteriorating, that Plaintiff was experiencing physiological side effects from the withdrawal of hormones, manifesting hopelessness, and engaging in further attempts at self-castration and self-harm. Id. ¶ 117. The professionals noted that Plaintiff had a history of hormone therapy and was requesting ongoing treatment, but stated that hormone therapy was not being provided to Plaintiff because Defendants Lewis and Owens had refused to authorize it. Id.
In recent months, Dr. Sloan has reevaluated Plaintiff and renewed his concerns about the negative effect of GDC’s failure to provide gender dysphoria treatment. Ezie Decl. Ex. I. Dr. Sloan noted that suicide is “a persistent thought” for Plaintiff, and that she is once again binding her testicles, in an attempt to castrate herself. Id. Dr. Sloan also repeated his recommendation that Plaintiff receive hormone therapy in accordance with the Standards of Care. Id. However, Dr. Sloan’s treatment recommendations have once again been ignored.
In January 2015, Plaintiff was assessed by Dr. Randi C. Ettner, a forensic psychologist who is an expert in the diagnosis and treatment of gender dysphoria. Ettner Decl. ¶ 34. Dr. Ettner confirmed that Plaintiff suffers from severe and persistent gender dysphoria, and that hormone therapy and female gender expression are the medically necessary treatment. Id. ¶¶ 46-49. Dr. Ettner also determined that Plaintiff was experiencing severe physical and psychological harm due to her lack of appropriate treatment, including clinically significant depression, suicidality, hopelessness, anxiety, desperation, and a regression of hormonally-induced physical effects. Id. ¶¶ 52-60, 67. Dr. Ettner noted that Plaintiff had attempted suicide and auto-castration multiple times and expressed an intention to end her life if forced to continue living as male. Id. ¶¶ 52-53,
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67. Dr. Ettner concluded that unless hormone therapy for Plaintiff was resumed, Plaintiff would stand an extremely high risk of continued decompensation and suicide. Id. ¶¶ 67-75. Dr. Ettner also concluded that attempting to treat Plaintiff’s gender dysphoria with psychotherapy or antipsychotics instead of hormone therapy would be a gross departure from accepted medical practice and would place Plaintiff in ongoing peril. Id. ¶¶ 69-71.
D. Consequences of Defendants’ Refusal to Provide Treatment Plaintiff continues to experience severe anxiety, depression, and mental anguish. Compl. ¶¶ 137-140. Plaintiff has engaged in self-harm and attempted suicide and self-castration on multiple occasions, prompting emergency hospitalizations. Id. ¶ 139; Ezie Decl. Ex. D. Plaintiff’s suicide ideation and her compulsion to engage in self-harm, which would be remediated with proper treatment for her gender dysphoria, persist to this day. Compl. ¶ 123; Ettner Decl. ¶¶ 57, 67-69. Plaintiff has also lost breast tissue, her female secondary sex characteristics have diminished, and she continues to experience physical injury in the form of chest pain, muscle spasms, heart palpitations, vomiting, dizziness, hot flashes, vascular dilation, withdrawal symptoms, weight loss, diarrhea, fatigue, and hyperhidrosis. Compl. ¶¶ 138-39.
ARGUMENT A preliminary injunction should issue here because Plaintiff meets all four of the traditional factors considered in the Eleventh Circuit: “(1) [she] has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006). I. Plaintiff Is Substantially Likely To Succeed On the Merits
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“The Eighth Amendment’s prohibition against cruel and unusual punishments protects a prisoner from deliberate indifference to serious medical needs.” Kuhne v. Fla. Dep’t of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “[D]eliberate indifference to serious medical needs of prisoners violates the [Eighth] Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” Helling v. McKinney, 509 U.S. 25, 32 (1993) (citing Estelle, 429 U.S. at 104 (quotation marks omitted)). To prevail, a plaintiff must demonstrate “an objectively serious [medical] need, an objectively insufficient response to that need, subjective awareness of facts signaling the need, and an actual inference of required action from those facts.” Kuhne, 745 F.3d at 1094 (citations omitted). Each of these elements has been met here.
A. Plaintiff’s Gender Dysphoria and Risk of Self-Harm Are Objectively Serious Medical Needs
It is well-established that gender dysphoria (traditionally referred to as “gender identity disorder” or “GID”) constitutes a serious medical need. See O’Donnabhain v. Comm’r, 134 T.C. 34, 61-62 (2010) (noting consensus exists among “every U.S. Court of Appeals that has ruled on the question,” and collecting cases); see also Kothmann v. Rosario, 558 F. App’x 907, 910 n.4 (11th Cir. 2014) (assuming gender dysphoria as serious medical need for purposes of appeal).1 Gender dysphoria has all of the hallmarks of a serious medical need: it is a diagnosable condition, codified in the DSM-V, that requires medical treatment, and one where treatment
1 Indeed, courts to consider the issue have uniformly reached this conclusion. See, e.g., Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011); Fields v. Smith, 712 F. Supp. 2d 830, 862 (E.D. Wis. 2010), aff’d, 653 F.3d 550 (7th Cir. 2011); Konitzer v. Frank, 711 F. Supp. 2d 874, 905 (E.D. Wis. 2010); Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995); White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Phillips v. Mich. Dep’t of Corr., 731 F. Supp. 792, 799 (W.D. Mich. 1990).
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delays “worsen[] the condition” by leading to clinically significant impairment and distress. Kuhne, 745 F.3d at 1096 (defining serious medical need for purposes of Eighth Amendment); see also Ettner Decl. ¶¶ 14-30 (discussing gender dysphoria and protocol for medical treatment).
Plaintiff’s suicidality and propensity to engage in auto-castration as a result of her denial of care are likewise serious medical needs. See Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir. 1994) (“prisoners have . . . a right to be protected from self-inflicted injuries, including suicide.”) (citations omitted); see also De’lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (transgender inmate’s “compulsive, repeated self-mutilation of her genitals” following the termination of hormone therapy constituted a serious medical need). Accordingly, Plaintiff has two objectively serious medical needs: gender dysphoria and an attendant “need for protection against continued self-mutilation.” De’lonta, 330 F.3d at 634.
B. Defendants Have Shown Deliberate Indifference to Plaintiff’s Serious Medical Needs
Prison officials act with deliberate indifference when they fail to provide inmates medically necessary care, “whether the indifference is manifested by prison doctors in their response to the prisoner’s needs . . . or by prison guards in intentionally denying or delaying access to medical care . . . or intentionally interfering with treatment once proscribed.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (citing Estelle, 429 U.S. at 104-05). Defendants in this case have shown deliberate indifference because they (1) had subjective knowledge of Plaintiff’s risk of serious harm if treatment were denied; and (2) disregarded that risk “by conduct that is more than mere negligence.” Id.
1. Defendants Had Subjective Knowledge of Plaintiff’s Risk of Serious Harm. “Whether a prison official had the requisite knowledge of a substantial risk is a question
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of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). Here, the record is replete with evidence that Defendants had actual knowledge of Plaintiff’s gender dysphoria, suicidality, and attempts at self-harm, need for hormone treatment, and her substantial risk of continued harm if medical treatment was withheld. Compl. ¶¶ 42-44, 73-76, 95-97, 103-04, 107-10, 116-18; Ezie Decl. Ex. D. Defendants knew that gender dysphoria was a serious medical need requiring treatment under the Standards of Care, based on GDC’s own policies which discuss the treatment regimen outlined by the Standards of Care, and the importance of providing continuity of treatment. Compl. ¶¶ 46-48; Ezie Decl. Ex. A. Plaintiff has also been repeatedly diagnosed with gender dysphoria by GDC’s own staff who repeatedly noted her history of hormone therapy, her compulsion to engage in self-harm, and ongoing need for hormone therapy in accordance with the Standards of Care. Compl. ¶¶ 73-76, 95-97, 116-18; Ezie Decl. Ex. I. The subjective knowledge requirement has been more than met on these facts.
2. Defendant’s Disregarded Plaintiff’s Risk of Harm by Conduct that Is More Than Mere Negligence a. Defendants Knowingly Refused to Provide Plaintiff Medically Necessary Care
“The knowledge of the need for medical care and intentional refusal to provide that care has consistently been held to surpass negligence and constitute deliberate indifference.” Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985). Here, despite knowing of Plaintiff’s medical needs, Defendants terminated her gender dysphoria treatment and delayed, deferred, and denied her requests for care or a referral to healthcare providers qualified in the treatment of gender dysphoria. These are textbook examples of deliberate indifference. See, e.g., Brown, 387 F.3d at 1351 (finding inmate stated claim under Eighth Amendment where
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defendants were aware of his HIV and hepatitis diagnosis “but completely withdrew the prescribed treatment”); Estelle, 429 U.S. at 104-05 (prison officials show deliberate indifference by “intentionally denying or delaying access to medical care”); H.C. v. Jarrard, 786 F.2d 1080, 1086 (11th Cir. 1986) (officials show deliberate indifference by refusing to refer inmates with serious medical needs for diagnostic treatment or specialty care); Ancata, 769 F.2d at 704 (same).
In Phillips v. Michigan Department of Corrections, the court held that prison officials who terminated a plaintiff’s hormone therapy, made her “the subject of ridicule and offensive remarks,” and “reversed the therapeutic effects of previous treatment” violated the Eighth Amendment. 731 F. Supp. 792, 800 (W.D. Mich. 1990), aff’d, 932 F.2d 969 (6th Cir. 1991). Here, too, instead of continuing Plaintiff’s gender dysphoria treatment, Defendants have subjected her to degradation and punishment for her condition, in disregard to her serious medical needs, and the suicidality and physical and mental anguish she is experiencing. Compl. ¶¶ 85-90, 110-13. See Belcher, 30 F.3d at 1396 (“Prison guards who display . . . deliberate indifference to a ‘strong likelihood’ that a prisoner will take his own life, violate the Eighth Amendment”).
Tellingly, this is not a case in which competing medical judgments exist about Plaintiff’s need for hormone therapy. To the contrary, when Plaintiff was finally evaluated by GDC healthcare providers experienced in the treatment of gender dysphoria, they unanimously confirmed her medical need for hormones. Compl. ¶¶ 95-97; Ezie Decl. Ex. I. Defendants have simply ignored these recommendations and continued to deny care, without any exercise of individualized medical judgment whatsoever. See Brown, 387 F.3d at 1351 (deliberate indifference includes “intentionally interfering with treatment once proscribed”) (citing Estelle,
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429 U.S. at 104-05). b. Defendants Maintained an Unconstitutional Freeze Frame Policy that Disregards Individualized Medical Judgment
In refusing to provide Plaintiff medically necessary care, Defendants also enforced a Freeze Frame Policy that unconstitutionally forecloses gender dysphoria care to certain inmates without regard to their medical needs. Constitutionally adequate care under the Eighth Amendment is care that is “based on an individualized assessment of an inmate’s medical needs in light of relevant medical considerations.” Soneeya v. Spencer, 851 F. Supp. 2d 228, 242 (D. Mass. 2012); accord De’lonta, 330 F.3d at 634. Prison policies which prevent inmates from receiving individualized medical care thus inflict cruel and unusual punishment in violation of the Eighth Amendment. See, e.g., Colwell v. Bannister, 763 F.3d 1060, 1068-70 (9th Cir. 2014) (prison policy which categorically denied cataract surgery to inmates who had at least one “good eye” violated the Eighth Amendment); Roe v. Elyea, 631 F.3d 843, 862 (7th Cir. 2011) (prison policy which conditioned treatment for Hepatitis C on administrative factors such as an inmate’s expected length of incarceration violated the Eighth Amendment).
These principles apply fully in the context of gender dysphoria treatment. In Fields v. Smith, the Seventh Circuit struck down as unconstitutional on its face a state law that barred prison officials from providing hormone therapy or sex reassignment surgery to inmates with gender dysphoria. 653 F.3d 550, 559 (7th Cir. 2011). Similarly, in De’lonta v. Angelone, the Fourth Circuit found that a prisoner with gender dysphoria stated a claim under the Eighth Amendment to the extent prison officials withheld hormone therapy pursuant to prison policy. 330 F.3d at 634-35. Other courts to consider the issue have concluded the same. See, e.g., Soneeya, 851 F. Supp. 2d at 249 (prison policy precludes exercise of medical judgment violates
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Eighth Amendment); Allard v. Gomez, 9 F. App’x 793, 795 (9th Cir. 2001) (blanket rule restricting hormone therapy violates Eighth Amendment); Barrett v. Coplan, 292 F. Supp. 2d 281, 286 (D.N.H. 2003) (same).
GDC’s Freeze Frame Policy likewise is constitutionally infirm because it forbids the initiation of hormone treatment even where, as here, it is medically indicated. Ettner Decl. ¶¶ 4849; Ezie Decl. Ex. I. As this Court previously held, the line that the Freeze Frame Policy attempts to draw — between (1) inmates with gender dysphoria, identified during their intake health screening, who received medically-supervised hormone therapy prior to their incarceration, and (2) everyone else — is not defensible. See Lynch v. Lewis, No. 7:14-CV-24 (HL), 2014 WL 1813725, at *2-3 (M.D. Ga. May 7, 2014) (Eight Amendment violation to deny gender dysphoria treatment because inmate was not receiving it prior to incarceration); accord Brooks v. Berg, 270 F. Supp. 2d 302, 312 (N.D.N.Y. 2003) (holding prison officials cannot limit treatment for gender dysphoria to inmates who received medical treatment prior to their incarceration), vacated in part on other grounds, 289 F. Supp. 2d 286 (N.D.N.Y. 2003). Simply put, “there is no exception to [the Eighth Amendment] for serious medical needs that are first diagnosed in prison.” Brooks, 270 F. Supp. 2d at 312. Therefore, GDC’s Freeze Frame Policy is unconstitutional on its face and as applied to Plaintiff, whose serious medical needs remain untreated as a result.
c. Any Care Plaintiff Received Was Constitutionally Inadequate Defendants may claim they complied with their constitutional obligations by offering Plaintiff anti-psychotic medications and counseling sessions, but the relevant inquiry under the Eighth Amendment is whether an inmate was provided “constitutionally adequate medical treatment,” not whether she was denied all treatment whatsoever. Kothmann, 558 F. App’x at
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910-11; accord Estelle, 429 U.S. at 103-06. “Deliberate indifference may be established by a showing of grossly inadequate care as well as by a decision to take an easier but less efficacious course of treatment,” Brown, 387 F.3d at 1351 (citation omitted). Here, counseling and antipsychotic medications are grossly inadequate and ineffective treatments for Plaintiff’s gender dysphoria — according to experts, and the very GDC healthcare professionals charged with providing such care. Ezie Decl. Ex. I (GDC mental health counselor, stating “[Plaintiff] continues to require hormone therapy and gender role change if she is to receive adequate care”); Ettner Decl. ¶¶ 49, 71. Defendants also failed to abate Plaintiff’s risk of suicide, auto-castration, and self-harm — harms that would be abated with adequate gender dysphoria care. See Ettner Decl. ¶¶ 61-71; Ezie Decl. Ex. I; Konitzer v. Frank, 711 F. Supp. 2d 874, 908 (E.D. Wis. 2010) (treatment is “arguably inadequate” where an inmate “keeps exhibiting the behavior seen in [gender dysphoria] sufferers, repeated castration attempts”); see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (prison officials show deliberate indifference when they “doggedly persist[] in a course of treatment known to be ineffective.”).
Courts have repeatedly held that limiting treatment for gender dysphoria to psychotherapy where hormone therapy is medically indicated violates the Eighth Amendment. In Kothmann, the Eleventh Circuit held that prison officials could be held liable where they refused to provide an inmate with gender dysphoria medically necessary hormone therapy, but administered treatments consisting of “anti-anxiety and anti-depression medications, mental health counseling, and psychotherapy.” 558 F. App’x at 910-11. Similarly, in Fields, the Seventh Circuit found that a state hormone therapy ban violated the Eighth Amendment even though prisoners were still given access to “psychotherapy as well as antipsychotics and antidepressants.” 653 F.3d at 556.
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GDC’s purported treatments for Plaintiff also constitute a substantial departure from the medically accepted Standards of Care — and one that has put Plaintiff at a substantial risk of suicide and physical and mental anguish. See Ettner Decl. ¶¶ 31-33, 71; see also Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996) (“[T]he quality of psychiatric care one receives can be so substantial a deviation from accepted standards as to evidence deliberate indifference to those psychiatric needs.”).
C. Plaintiff’s Request for Relief Is Not Moot Plaintiff’s request for injunctive relief is ripe for review because she remains in GDC custody under the control of Defendants Lewis and Owens, and because this case presents issues that are “capable of repetition, yet evading review” with respect to the remaining defendants. Strickland v. Alexander, 772 F.3d 876, 887 (11th Cir. 2014) (discussing doctrine). In a three year span, Plaintiff has been transferred between GDC facilities five times, returned to the same facility on two occasions, and is currently scheduled to remain in GDC custody for eight more years. Compl. ¶ 16. Defendants have also indicated their intention to continue to enforce the Freeze Frame Policy and to continue denying Plaintiff medically necessary care. See generally Compl. Therefore, there is “a reasonable expectation that the same complaining party would be subjected to the same action again” — absent injunctive relief. Strickland, 772 F.3d at 887 (citation omitted). Given Defendants’ repeated transfer of Plaintiff — and the exhaustion requirements which are prerequisites to filing suit —the challenged conduct here is also “too short to be fully litigated prior to its cessation or expiration,” id., or more specifically, before Plaintiff’s receipt of another housing transfer. Thus, the capable of repetition, yet evading review doctrine is plainly applicable here. See Spellman v. Hopper, 142 F. Supp. 2d 1323, 1325 n.1 (M.D. Ala. 2000) (applying doctrine to inmate challenging conditions of his administrative
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confinement where its duration “was not sufficient for this litigation to be concluded, and may not be sufficient for another similar lawsuit, should he be returned”). II. Plaintiff Will Suffer Irreparable Injury Absent an Injunction
Plaintiff has suffered and is likely to continue to suffer irreparable harm in the absence of an injunction. Defendants’ refusal to provide Plaintiff hormone therapy has reversed the therapeutic effects of her 17-year history of gender dysphoria treatment. Plaintiff’s body has been violently transformed due to the denial of hormone therapy. Compl. ¶ 138 (discussing physical effects). Plaintiff is also suffering from severe depression, and has attempted suicide and auto-castration on multiple occasions in an effort to end her pain and mental anguish at being forced to transition back from female to male. See generally Compl.; Ettner Decl. ¶¶ 52-57. Plaintiff’s suicide ideation and compulsion to engage in self-harm and auto-castration persist to this day and place her at an exceedingly high risk of death or serious bodily injury absent an injunction. See Ettner Decl. ¶¶ 56-57(noting that hopelessness and prior suicide attempts are strong predictors of fatal suicide attempts). These are not harms that can be “undone through monetary remedies.” Scott v. Roberts, 612 F.3d 1279, 1295 (11th Cir. 2010). Rather, they are the very definition of irreparable injury; thus, courts have repeatedly issued injunctions enjoining the conduct at issue here. See, e.g., Fields, 653 F.3d at 559 (enjoining enforcement of a state law ban on hormone therapy); Gammett v. Idaho State Bd. of Corr., No. CV05-257-S-MHW, 2007 WL 2186896, at *18 (D. Idaho July 27, 2007) (requiring that hormone therapy be provided to inmate with gender dysphoria); Phillips, 731 F. Supp. at 800 (stating that irreparable harm was clear because the denial of hormone therapy would “wreak havoc on plaintiff’s physical and emotional state,” and “[s]uch harm is neither compensable nor speculative.”).
Absent an injunction, Plaintiff will suffer an additional form of irreparable harm: the 18

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continued deprivation of her constitutional rights. “The existence of a continuing constitutional violation constitutes proof of an irreparable harm.” Laube v. Haley, 234 F. Supp. 2d 1227, 1251 (M.D. Ala. 2002) (citations omitted); accord Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). Because Defendants have made clear their intention to continue refusing Plaintiff medically necessary care, an injunction is warranted to protect Plaintiff from continued denial of her constitutional right to be free from cruel and unusual punishment. III. The Balance of Harms Strongly Favors Plaintiff
The balance of harms substantially weighs in favor of granting injunctive relief. Defendants’ refusal to provide Plaintiff medically necessary care has placed Plaintiff’s mental health and physical health in extreme peril: Plaintiff has repeatedly attempted suicide, autocastration, and self-harm, and remains at a substantial ongoing, risk of permanent physical injury or death. See Gammett, 2007 WL 2186896, at *15-16 (finding balance of harms “sharply” favored plaintiff, who would experience suicidality and mental harm without gender dysphoria treatment). Defendants, in contrast, will not suffer any harm — much less irreparable harm — from complying with their legal obligation to provide inmates constitutionally adequate care. See generally Scott, 612 F.3d at 1297 (injunctions that target unconstitutional laws or conduct do not harm the state but serve the public interest); KH Outdoor, LLC, 458 F.3d at 1272 (same). IV. An Injunction Is In the Public Interest
The public interest also favors injunctive relief here because Plaintiff seeks to vindicate her right to medically adequate treatment secured by the Eighth Amendment’s prohibition on cruel and unusual punishment. The public interest is always served when constitutional rights are vindicated. See, e.g., League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla. 2012) (“The vindication of constitutional rights and the enforcement of a federal
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statute serve the public interest almost by definition.”); KH Outdoor, LLC, 458 F.3d at 1272 (injunctions targeting unconstitutional policies or conduct are “plainly [] not adverse to the public interest”); accord Phillips, 731 F. Supp. at 800-01 (finding “the public interest will be served by safeguarding Eighth Amendment rights” of prisoners with gender dysphoria). The public interest is likewise served by enjoining enforcement of the Freeze Frame Policy, which hampers the provision of medically adequate care to inmates, because “the public . . . has no interest in enforcing an unconstitutional law.” Scott, 612 F.3d at 1297.
CONCLUSION For the foregoing reasons, this Court should issue a preliminary injunction (1) directing Defendants to provide Plaintiff with medically appropriate treatment for her gender dysphoria under the Standards of Care, including, but not limited to providing Plaintiff hormone therapy and allowing her to express her female gender through grooming, pronouns, and dress; (2) enjoining Defendants’ continued enforcement of the Freeze Frame Policy. The Court should require no bond or at most a nominal bond under Fed. R. Civ. P. 65(c). It is well within the discretion of the Court to require “no security at all.” BellSouth Telecomm., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005). Plaintiff has no ability to pay a bond under her current circumstances. That should be no bar to the relief requested.

Dated: February 20, 2015

Respectfully submitted,
/s/ James M. Knoepp James M. Knoepp, GA Bar No. 366241 Southern Poverty Law Center 1989 College Ave. NE Atlanta, GA 30317 Tel: (404) 521-6700 jim.knoepp@splcenter.org
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CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the foregoing document will be served on

the Defendants in this action, along with copies of the Summons and Complaint. Plaintiff agrees

to file a notice with the Court upon completion of Service.

Dated: February 20, 2015

/s/ James M. Knoepp James M. Knoepp, GA Bar No. 366241 Southern Poverty Law Center 1989 College Ave. NE Atlanta, GA 30317 Tel: (404) 521-6700 jim.knoepp@splcenter.org

A. Chinyere Ezie,* NY Bar No. 496774 David Dinielli,* CA Bar. No. 177904 Samuel Wolfe,* AL Bar No. 2945E63W Southern Poverty Law Center 400 Washington Ave Montgomery, AL 36104 Tel: (334) 956-8200 chinyere.ezie@splcenter.org david.dinielli@splcenter.org sam.wolfe@splcenter.org

Counsel for Plaintiff

*Applications for admission pro hac vice forthcoming

 </s> Case 5:15-cv-00050-MTT Document 68 Filed 09/14/15 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

ASHLEY A. DIAMOND, Plaintiff,
v. BRIAN OWENS, et al.,
Defendants.

) ) ) ) ) CIVIL ACTION NO. 5:15-CV-50 (MTT) ) ) ) ) )

ORDER

Ashley Diamond’s complaint seeks, among other things, injunctive and

declaratory relief because of the alleged violation of her constitutional rights while in the

custody of the Georgia Department of Corrections (“GDOC”). On August 31, 2015,

Diamond was released. (Doc. 67). An inmate’s release from prison moots claims for

injunctive and declaratory relief. Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir.

1986). In recognition of this, Diamond moved to withdraw her motion for preliminary

injunction (Doc. 1) and moved to amend her complaint to strike paragraphs A through G

of the Prayer for Relief which request injunctive and declaratory relief. (Doc. 67). In the

alternative to amending her complaint, Diamond asks the Court to dismiss the claims for

injunctive and declaratory relief without prejudice.

Diamond’s motion to withdraw her motion for a preliminary injunction is

GRANTED, and her requests for injunctive and declaratory relief are DISMISSED

without prejudice. Because the claims against the Defendants in their official

capacities are only for prospective injunctive relief, all claims against Defendants sued

in their official capacities are DISMISSED as moot. Regarding specific claims, in Count

Case 5:15-cv-00050-MTT Document 68 Filed 09/14/15 Page 2 of 2
2 Diamond has asserted claims against Brian Owens and Sharon Lewis for GDOC’s allegedly unconstitutional (and former) freeze-frame policy on transgender inmates. As Diamond concedes, the requests for declaratory and injunctive relief regarding this policy are now moot. Thus, the claims in Count 2 against Owens and Lewis in their official capacities are DISMISSED as moot. Count 2 remains pending against Lewis in her individual capacity. In Count 4, Diamond has asserted failure-to-train claims against Owens and Lewis. The failure-to-train claims against Owens and Lewis in their official capacities are DISMISSED as moot. The failure-to-train claim against Lewis in her individual capacity remains pending. Because Diamond sued Owens only in his official capacity, he is DISMISSED as a Defendant.
SO ORDERED, this 14th day of September, 2015. S/ Marc T. Treadwell MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
-2-

 </s> Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 1 of 11
U.S. District Court [LIVE AREA] Middle District of Georgia (Macon) CIVIL DOCKET FOR CASE #: 5:15−cv−00050−MTT

MKW

DIAMOND v. OWENS et al Assigned to: US DISTRICT JUDGE MARC THOMAS TREADWELL Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 02/19/2015 Date Terminated: 02/12/2016 Jury Demand: Defendant Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question

ASHLEY A DIAMOND

represented by A CHINYERE EZIE 400 WASHINGTON AVE MONTGOMERY, AL 36104 334−956−8200 Email: chinyere.ezie@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID DINIELLI 400 WASHINGTON AVE MONTGOMERY, AL 36104 334−956−8200 Email: david.dinielli@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

JAMES M KNOEPP Southern Poverty Law Center 1989 COLLEGE AVE NE ATLANTA, GA 30317 404−521−6700 Email: jim.knoepp@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

SAMUEL WOLFE 400 WASHINGTON AVE MONTGOMERY, AL 36104 334−956−8200 Email: sam.wolfe@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Commissioner BRIAN OWENS Georgia Department of Corrections, in his official capacity

represented by DEBORAH NOLAN GORE STATE OF GEORGIA DEPARTMENT OF LAW 40 CAPITOL SQ SW ATLANTA, GA 30034−1300 404−463−8850 Fax: 404−651−6920 Email: dgore@law.ga.gov ATTORNEY TO BE NOTICED
ELIZABETH MCRARY CROWDER 40 CAPITOL SQ SW ATLANTA, GA 30334

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 2 of 11

404−463−8850 Email: ecrowder@law.ga.gov ATTORNEY TO BE NOTICED

Defendant
SHARON LEWIS Medical Director, Georgia Department of Corrections, in her individual and official capacities

represented by DEBORAH NOLAN GORE (See above for address) ATTORNEY TO BE NOTICED
ELIZABETH MCRARY CROWDER (See above for address) ATTORNEY TO BE NOTICED

Defendant
Warden SHAY HATCHER Rutledge State Prison, in his individual and official capacities

represented by DEBORAH NOLAN GORE (See above for address) ATTORNEY TO BE NOTICED

ELIZABETH MCRARY CROWDER (See above for address) ATTORNEY TO BE NOTICED

Defendant
RUTHIE SHELTON Deputy Warden of Care and Treatment, Rutledge State Prison, in her individual and official capacities

represented by DEBORAH NOLAN GORE (See above for address) ATTORNEY TO BE NOTICED
ELIZABETH MCRARY CROWDER (See above for address) ATTORNEY TO BE NOTICED

Defendant
Warden MARTY ALLEN Valdosta State Prison, in his individual and official capacities

represented by DEBORAH NOLAN GORE (See above for address) ATTORNEY TO BE NOTICED

ELIZABETH MCRARY CROWDER (See above for address) ATTORNEY TO BE NOTICED

Defendant
DAVID MCCRACKEN Mental Health Services Director, Valdosta State Prison, in his individual and official capacities

represented by DAVID V JOHNSON INSLEY RACE 181 14TH ST NE STE 200 ATLANTA, GA 30309 404−876−9818 Email: dj@insleyrace.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELIZABETH MCRARY CROWDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

BRETT A TARVER 181 14TH ST NE STE 200 ATLANTA, GA 30309 404−876−9818 Email: btarver@insleyrace.com ATTORNEY TO BE NOTICED

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 3 of 11

SHARONDA BOYCE 181 14TH ST NE STE 200 ATLANTA, GA 30309 404−969−1235 Email: sboyce@insleyrace.com TERMINATED: 08/17/2015 ATTORNEY TO BE NOTICED

Defendant
JOHN THOMPSON in his individual and official capacities

represented by DAVID V JOHNSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELIZABETH MCRARY CROWDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

BRETT A TARVER (See above for address) ATTORNEY TO BE NOTICED

SHARONDA BOYCE (See above for address) TERMINATED: 08/17/2015 ATTORNEY TO BE NOTICED

Defendant
DONNA SILVER in her individual and official capacities

represented by DAVID V JOHNSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELIZABETH MCRARY CROWDER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

BRETT A TARVER (See above for address) ATTORNEY TO BE NOTICED

SHARONDA BOYCE (See above for address) TERMINATED: 08/17/2015 ATTORNEY TO BE NOTICED

Notice
UNITED STATES DEPARTMENT OF JUSTICE

represented by BERNARD SNELL US ATTORNEY'S OFFICE PO BOX 1702 MACON, GA 31202−1702 478−752−3511 Email: bernard.snell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

SHARON I BRETT US DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 202−353−1091

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 4 of 11
Email: sharon.brett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/19/2015 02/20/2015
02/20/2015 02/20/2015
02/20/2015 02/20/2015 02/20/2015 02/20/2015 02/20/2015 02/20/2015 02/20/2015 02/20/2015 02/20/2015 02/20/2015 02/27/2015
02/27/2015

# Docket Text
3 COMPLAINT against All Defendants Filing Fee $ 400, Receipt Number 113G−2020328,filed by ASHLEY A DIAMOND. (Attachments: # 1 Civil Cover Sheet)(cal) (Entered: 02/20/2015)
NOTICE TO COUNSEL A CHINYERE EZIE, DAVID DINIELLI − Counsel is notified that they do not show in the court records that they meet the required attorney admissions policies of this court. If within 14 days of this notice all requirements, including the payment of Pro Hac Vice or admissions fees, have not been met, a show cause hearing will be scheduled. (cma) (Entered: 02/20/2015)
1 MOTION for Preliminary Injunction by ASHLEY A DIAMOND filed by JAMES M KNOEPP.. Motion(s) referred to CHARLES H WEIGLE.(KNOEPP, JAMES) (Entered: 02/20/2015)
2 MEMORANDUM in Support filed by ASHLEY A DIAMOND re: 1 MOTION for Preliminary Injunction (Attachments: # 1 Affidavit Declaration of Dr. Randi C. Ettner, # 2 Affidavit Declaration of A. Chinyere Ezie, # 3 Exhibit Exhibit A to Ezie Declaration (GA DOC SOP on Management of Transsexuals), # 4 Exhibit B to Ezie Declaration (Letter from Diamond to Shelton 11/18/2013), # 5 Exhibit C to Ezie Declaration (Letter from Shelton to Diamond 11/22/13), # 6 Exhibit D to Ezie Declaration (GA DOC Notice re Suicide Attempt), # 7 Exhibit E to Ezie Declaration (GA DOC Response to Grievance and Appeal), # 8 Exhibit F to Ezie Declaration (Letter from Diamond to Owens 2/11/14), # 9 Exhibit G to Ezie Declaration (Letter from Diamond to Owens 5/13/14), # 10 Exhibit H to Ezie Declaration (GA DOC Response to Grievance and Appeal), # 11 Exhibit I to Ezie Declaration (GA DOC Mental Health Progress Notes))(KNOEPP, JAMES) (Entered: 02/20/2015)
US Magistrate Judge CHARLES H WEIGLE no longer assigned to case, Per Chambers. (cma) (Entered: 02/20/2015)
4 Consent Form (28 USC 636(c)(1)) sent to ASHLEY A DIAMOND (cal) (Entered: 02/20/2015)
5 Summons Issued as to MARTY ALLEN on 2/20/2015. (cal) (Entered: 02/20/2015)
6 Summons Issued as to JOHN THOMPSON on 2/20/2015. (cal) (Entered: 02/20/2015)
7 Summons Issued as to SHAY HATCHER on 2/20/2015. (cal) (Entered: 02/20/2015)
8 Summons Issued as to BRIAN OWENS on 2/20/2015. (cal) (Entered: 02/20/2015)
9 Summons Issued as to SHARON LEWIS on 2/20/2015. (cal) (Entered: 02/20/2015)
10 Summons Issued as to RUTHIE SHELTON on 2/20/2015. (cal) (Entered: 02/20/2015)
11 Summons Issued as to DONNA SILVER on 2/20/2015. (cal) (Entered: 02/20/2015)
12 Summons Issued as to DAVID MCCRACKEN on 2/20/2015. (cal) (Entered: 02/20/2015)
13 NOTICE of Attorney Appearance by DAVID V JOHNSON on behalf of DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON Attorney DAVID V JOHNSON added to party DAVID MCCRACKEN(pty:dft), Attorney DAVID V JOHNSON added to party DONNA SILVER(pty:dft), Attorney DAVID V JOHNSON added to party JOHN THOMPSON(pty:dft) (JOHNSON, DAVID) (Entered: 02/27/2015)
14 NOTICE of Attorney Appearance by SHARONDA BOYCE on behalf of DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON Attorney SHARONDA BOYCE added to party DAVID MCCRACKEN(pty:dft), Attorney SHARONDA BOYCE added to party DONNA SILVER(pty:dft), Attorney SHARONDA BOYCE added to party JOHN THOMPSON(pty:dft) (BOYCE, SHARONDA) (Entered:

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 5 of 11

03/02/2015 03/04/2015 03/10/2015
03/13/2015
03/13/2015 03/27/2015 03/27/2015 03/27/2015 03/27/2015 03/27/2015 03/27/2015 03/27/2015 03/27/2015 03/31/2015 03/31/2015 03/31/2015

02/27/2015)
Attorney Admission Fee Met by A CHINYERE EZIE as of 3/2/2015. (nop) (Entered: 03/02/2015)
Attorney Admission Fee Met by SAMUEL WOLFE as of 3/4/2015. (nop) (Entered: 03/04/2015)
15 MOTION for Extension of Time to File Responsive Pleadings as to 1 MOTION for Preliminary Injunction, 2 Memorandum in Support,,, 3 Complaint by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON filed by DEBORAH NOLAN GORE.(GORE, DEBORAH) (Entered: 03/10/2015)
16 ORDER GRANTING 15 Motion for Extension of Time to File Response/Reply. The
Defendants have through and including April 10, 2015, to file their responsive pleadings and to respond to the Plaintiffs motion for a preliminary injunction. The Court will convene a telephone conference on April 13, 2015, at 2:30 p.m. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 3/13/2015. (tlh) (Entered: 03/13/2015)
NOTICE OF SETTING HEARING: Telephone Conference set for 4/13/2015 at 2:30 PM in Macon before U.S. District Judge MARC THOMAS TREADWELL. Teleconferencing instructions emailed to counsel. (tlh) (Entered: 03/13/2015)
17 SUMMONS Returned Executed by ASHLEY A DIAMOND as to JOHN THOMPSON. (Attachments: # 1 Affidavit Proof of Service to John Thompson)(WOLFE, SAMUEL) (Entered: 03/27/2015)
18 SUMMONS Returned Executed by ASHLEY A DIAMOND as to DONNA SILVER. (Attachments: # 1 Affidavit Proof of Service to Donna Silver)(WOLFE, SAMUEL) (Entered: 03/27/2015)
19 SUMMONS Returned Executed by ASHLEY A DIAMOND as to RUTHIE SHELTON. (Attachments: # 1 Affidavit Proof of Service to Ruthie Shelton)(WOLFE, SAMUEL) (Entered: 03/27/2015)
20 SUMMONS Returned Executed by ASHLEY A DIAMOND as to BRIAN OWENS. (Attachments: # 1 Affidavit Proof of Service to Brian Owens)(WOLFE, SAMUEL) (Entered: 03/27/2015)
21 SUMMONS Returned Executed by ASHLEY A DIAMOND as to DAVID MCCRACKEN. (Attachments: # 1 Affidavit Proof of Service to David McCracken)(WOLFE, SAMUEL) (Entered: 03/27/2015)
22 SUMMONS Returned Executed by ASHLEY A DIAMOND as to SHARON LEWIS. (Attachments: # 1 Affidavit Proof of Service to Sharon Lewis)(WOLFE, SAMUEL) (Entered: 03/27/2015)
23 SUMMONS Returned Executed by ASHLEY A DIAMOND as to SHAY HATCHER. (Attachments: # 1 Affidavit Proof of Service to Shay Hatcher)(WOLFE, SAMUEL) (Entered: 03/27/2015)
24 SUMMONS Returned Executed by ASHLEY A DIAMOND as to MARTY ALLEN. (Attachments: # 1 Affidavit Proof of Service to Marty Allen)(WOLFE, SAMUEL) (Entered: 03/27/2015)
25 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by ASHLEY A DIAMOND filed by A CHINYERE EZIE. (Attachments: # 1 Memorandum in Support of Plaintiff's Emergency Motion for a Temporary Restraining Order and Preliminary Injunction)(EZIE, A) (Entered: 03/31/2015)
26 AFFIDAVIT re 25 MOTION for Temporary Restraining OrderMOTION for Preliminary Injunction Declaration of Ashley Diamond by ASHLEY A DIAMOND (EZIE, A) (Entered: 03/31/2015)
27 AFFIDAVIT re 25 MOTION for Temporary Restraining OrderMOTION for Preliminary Injunction Second Declaration of A. Chinyere Ezie by ASHLEY A DIAMOND (Attachments: # 1 Exhibit J − U.S. Department of Justice, Bureau of

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 6 of 11

04/01/2015 04/03/2015 04/03/2015 04/03/2015 04/06/2015
04/06/2015 04/07/2015 04/07/2015
04/08/2015

Justice Statistics, Sexual Victimization in Prisons and Jails Reported by Inmates, 201112, Supplemental Tables: Prevalence of Sexual Victimization Among Transgender Adult Inmates, # 2 Exhibit K − American Jail Association, Report on PREA and Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Rights, # 3 Exhibit L − Georgia Department of Corrections Mental Health Progress Notes of Jodi Braddock, # 4 Exhibit M − Georgia Department of Corrections Statement on the Prison Rape Elimination Act, # 5 Exhibit N − Georgia Department of Corrections, Standard Operating Procedures, Prison Rape Elimination Act (PREA)−Sexual Assault of/Sexual Misconduct with Offenders, # 6 Exhibit O − Georgia Department of Corrections, Monthly PREA Report, # 7 Exhibit P − Georgia Department of Corrections, Report concerning Macon State Prison Assault (Redacted), # 8 Exhibit Q − Declaration of Jeremy Brooks dated August 5, 2014, # 9 Exhibit R − Declaration of Gordon Berry dated August 6, 2014, # 10 Exhibit S − Declaration of Christopher Leach dated November 23, 2013, # 11 Exhibit T − Declaration of James Moore dated November 23, 2013, # 12 Exhibit U − Georgia Department of Corrections Mental Health Progress Notes of Dr. Stephen Sloan, # 13 Exhibit V − Georgia Department of Corrections, Warden/Superintendents Grievance Response, # 14 Exhibit W − Georgia Department of Corrections, Suicide Precaution Notification to Warden/Superintendent)(EZIE, A) (Entered: 03/31/2015)
28 MOTION for Leave to File Excess Pages for Brief in Support of Motion to Dismiss by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON filed by DEBORAH NOLAN GORE. (Attachments: # 1 Text of Proposed Order)(GORE, DEBORAH) (Entered: 04/01/2015)
This is a text only entry; no document issued. ORDER GRANTING 28 Motion for
Leave to File Excess Pages. The Defendants' brief may not exceed 30 pages. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 4/3/2015.(abv) (Entered: 04/03/2015)
29 NOTICE Statement of Interest of the United States by UNITED STATES DEPARTMENT OF JUSTICE re 1 MOTION for Preliminary Injunction (BRETT, SHARON) (Entered: 04/03/2015)
30 CERTIFICATE OF SERVICE re 26 Affidavit, 27 Affidavit,,,,,, 25 MOTION for Temporary Restraining OrderMOTION for Preliminary Injunction (EZIE, A) (Entered: 04/03/2015)
This is a text only entry; no document issued.ORDER GRANTING Plaintiff's
request for a hearing on his Emergency Motion for a Temporary Restraining Order and Preliminary Injunction. (Doc. 25). The hearing will commence at 9:00 a.m. on April 9, 2015. The Defendants shall produce at the hearing all documents relating to the Plaintiff's transfer to Georgia State Prison, including all communications concerning the transfer, i.e., emails, correspondence, messages, etc. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 4/6/2015. (abv) (Entered: 04/06/2015)
NOTICE OF SETTING HEARING on 25 Emergency Motion for a Temporary Restraining Order and Preliminary Injunction set for 4/9/2015 at 9:00 AM in Macon before U.S. District Judge MARC THOMAS TREADWELL. (tlh) (Entered: 04/06/2015)
31 RESPONSE filed by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON re 25 MOTION for Temporary Restraining OrderMOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1 − Affidavit of Javaka Johnson)(GORE, DEBORAH) (Entered: 04/07/2015)
32 AFFIDAVIT in Support filed by ASHLEY A DIAMOND re 25 MOTION for Temporary Restraining OrderMOTION for Preliminary Injunction (Attachments: # 1 Affidavit Third Declaration of A. Chinyere Ezie dated April 7, 2015, # 2 Exhibit Exhibit X, Letters to Ashley Diamond received from inmates following transfer to Georgia State Prison, # 3 Exhibit Exhibit Y, Declaration of James C. Brady dated March 28, 2015)(EZIE, A) (Entered: 04/07/2015)
33 AFFIDAVIT re 31 Response to Motion by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON (GORE, DEBORAH) (Entered: 04/08/2015)

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 7 of 11

04/09/2015 04/09/2015 04/10/2015
04/10/2015 04/10/2015 04/10/2015 04/14/2015
04/15/2015
04/15/2015 04/15/2015 04/15/2015 04/16/2015 04/20/2015

34 Minute Entry for proceedings held before U.S. District Judge MARC THOMAS TREADWELL: TRO Hearing held on 4/9/2015. Court Reporter: Tammy Fletcher. (tlh) (Entered: 04/09/2015)
NOTICE OF CANCELLATION OF TELEPHONE CONFERENCE scheduled for 4/13/2015. (tlh) (Entered: 04/09/2015)
35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Pre−Answer) by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON filed by DEBORAH NOLAN GORE. (Attachments: # 1 Brief of Defendants in Support of Their Pre−Answer Motion to Dismiss Plaintiff's Complaint, # 2 Exhibit 1 − Affidavit of Gloria Turnage, # 3 Exhibit 2 − Affidavit of Shawn Emmons, # 4 Exhibit 3 − Affidavit of Tracey Lumpkin)(GORE, DEBORAH) (Entered: 04/10/2015)
36 RESPONSE filed by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON re 1 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1 − Affidavit of Roy Sabine, # 2 Exhibit 2 − Declaration of James I. Maish, Ph.D., # 3 Exhibit 3 − Affidavit of Stephen Upton, # 4 Exhibit 4 − Affidavit of Stephen Upton)(GORE, DEBORAH) (Entered: 04/10/2015)
37 RESPONSE filed by DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON re 1 MOTION for Preliminary Injunction (JOHNSON, DAVID) (Entered: 04/10/2015)
38 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON filed by DAVID V JOHNSON. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − Affidavit of Shawn Emmons, # 3 Text of Proposed Order)(JOHNSON, DAVID) (Entered: 04/10/2015)
39 NOTICE of Attorney Appearance by ELIZABETH MCRARY CROWDER on behalf of MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON Attorney ELIZABETH MCRARY CROWDER added to party MARTY ALLEN(pty:dft), Attorney ELIZABETH MCRARY CROWDER added to party SHAY HATCHER(pty:dft), Attorney ELIZABETH MCRARY CROWDER added to party SHARON LEWIS(pty:dft), Attorney ELIZABETH MCRARY CROWDER added to party BRIAN OWENS(pty:dft), Attorney ELIZABETH MCRARY CROWDER added to party RUTHIE SHELTON(pty:dft) (CROWDER, ELIZABETH) (Entered: 04/14/2015)
40 TRANSCRIPT of Proceedings held on 4−9−15, before Judge Treadwell. Court Reporter Tammy W. Fletcher. Volume Number: 1 of 1 TRO hearing. The transcript may be inspected at the court or purchased through the court reporter for a period of 90 days. After 90 days, the transcript may be obtained via PACER. REDACTION OF TRANSCRIPTS: Complete redaction policy available on the courts website. (Tammy W. Fletcher) (Entered: 04/15/2015)
41 ORDER to Produce State Prisoner Ashley Alton Diamond, GDC 1000290565 for
Federal Hearing on 4/20/2015 at 10:00 am in 475 Mulberry Street, Macon, Georgia. Ordered by U.S. District Judge MARC THOMAS TREADWELL. (tlh) (Entered: 04/15/2015)
NOTICE OF SETTING HEARING (continuation) on 25 Emergency Motion for a Temporary Restraining Order and Preliminary Injunction set for 4/20/2015 at 10:00 AM in Macon before U.S. District Judge MARC THOMAS TREADWELL. (tlh) (Entered: 04/15/2015)
42 Minute Entry for proceedings held before U.S. District Judge MARC THOMAS TREADWELL: Telephone Conference held on 4/15/2015. Court Reporter: Tammy Fletcher. (tlh) (Entered: 04/15/2015)
43 NOTICE Notice of Issuance of Subpoena to James Maish by ASHLEY A DIAMOND (Attachments: # 1 Exhibit A − Subpoena to James Maish)(EZIE, A) (Entered: 04/16/2015)
44 Minute Order. Proceedings held before U.S. District Judge MARC THOMAS TREADWELL: Hearing held on 4/20/2015. The Court DENIED 25 Plaintiff's

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 8 of 11

04/21/2015 04/24/2015 04/28/2015
05/05/2015 05/08/2015 05/11/2015 05/12/2015 05/18/2015
05/19/2015 05/20/2015 05/21/2015 05/21/2015

Emergency Motion for TRO and Preliminary Injunction. Plaintiff given a 14 day extension to file responses to Defendants' motions to dismiss. (Court Reporter Tammy Fletcher.) (tlh) (Entered: 04/20/2015)
45 MOTION to Stay Proceedings on Plaintiff's Motion for a Preliminary Injunction re 1 MOTION for Preliminary Injunction by ASHLEY A DIAMOND filed by A CHINYERE EZIE.(EZIE, A) (Entered: 04/21/2015)
Attorney Admission Fee Met by DAVID DINIELLI as of 4/23/2015. (nop) (Entered: 04/24/2015)
46 TRANSCRIPT of Proceedings held on 4−20−15, before Judge Treadwell. Court Reporter Tammy W. Fletcher. Volume Number: 1 of 1 TRO hearing. The transcript may be inspected at the court or purchased through the court reporter for a period of 90 days. After 90 days, the transcript may be obtained via PACER. REDACTION OF TRANSCRIPTS: Complete redaction policy available on the courts website. (Tammy W. Fletcher) (Entered: 04/28/2015)
This is a text only entry; no document issued. ORDER GRANTING 45 motion to
stay proceedings related to the Plaintiff's 1 motion for a preliminary injunction until May 25, 2015. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/5/2015. (abv) (Entered: 05/05/2015)
47 Discovery Status Report (CROWDER, ELIZABETH) (Entered: 05/08/2015)
48 MOTION for Leave to File Excess Pages for Brief in Opposition to Motions to Dismiss by ASHLEY A DIAMOND filed by A CHINYERE EZIE.(EZIE, A) (Entered: 05/11/2015)
This is a text only entry; no document issued. ORDER GRANTING 48 Motion for
Leave to File Excess Pages. The Plaintiff's brief in response to the Defendants' motions to dismiss shall not exceed 35 pages. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/12/2015. (abv) (Entered: 05/12/2015)
49 RESPONSE filed by ASHLEY A DIAMOND re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Pre−Answer), 38 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 Affidavit Declaration of Ashley Diamond, # 2 Affidavit Declaration of Dr. Randi C. Ettner, # 3 Declaration of A. Chinyere Ezie, # 4 Exhibit Exhibit A, Grievance No. 163506 and Related Documents, # 5 Exhibit Exhibit B, Grievance No. 173610 and Related Documents, # 6 Exhibit Exhibit C, Grievance No. 180025 and Related Documents, # 7 Exhibit Exhibit D, Grievance No. 141823 and Related Documents, # 8 Exhibit Exhibit E, Grievance No. 189277 and Related Documents, # 9 Exhibit Exhibit F, Grievance No. 189275 and Related Documents, # 10 Exhibit Exhibit G, Grievance No. 189275 and Related Documents, # 11 Exhibit Exhibit H, Excerpts of the Transcript of the April 20, 2015 Hearing on Plaintiffs Emergency Motion for a Temporary Restraining Order, Diamond v. Owens et al, 5:15−cv−00050 (MTT), # 12 Exhibit Exhibit I, Excerpts of the Transcript of the April 9, 2015 Hearing on Plaintiffs Emergency Motion for a Temporary Restraining Order, Diamond v. Owens et al, 5:15−cv−00050 (MTT), # 13 Exhibit Exhibit J, Grievance No. 184215 and Related Documents, # 14 Exhibit Exhibit K, Georgia Department of Corrections Mental Health Progress Notes of Dr. Stephen Sloan)(EZIE, A) (Entered: 05/18/2015)
50 CERTIFICATE OF SERVICE re 49 Response to Motion,,,,, (EZIE, A) (Entered: 05/19/2015)
51 CERTIFICATE OF SERVICE re 50 Certificate of Service (EZIE, A) (Entered: 05/20/2015)
52 MOTION for Extension of Time to File Briefing on Plaintiff's Motion for Preliminary Injunction. by ASHLEY A DIAMOND filed by A CHINYERE EZIE.(EZIE, A) (Entered: 05/21/2015)
53 This is a text only entry; no document issued. ORDER GRANTING 52 Motion for
Extension of Time. Plaintiff's response to Defendants' Oppositions to Plaintiff's Motion for Preliminary Injunction [36, 37] shall be filed with the Court no later than July 27, 2015. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 9 of 11

05/28/2015 05/28/2015 06/01/2015 06/01/2015 06/02/2015 06/02/2015 07/09/2015 07/23/2015 07/27/2015
07/29/2015 08/05/2015 08/11/2015 08/12/2015 08/14/2015
08/14/2015

on 5/21/2015. (tlh) (Entered: 05/21/2015)
54 MOTION for Leave to File Excess Pages for reply briefs by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON filed by DEBORAH NOLAN GORE.(GORE, DEBORAH) (Entered: 05/28/2015)
55 MOTION for Leave to File Excess Pages for reply briefs by DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON filed by DAVID V JOHNSON.(JOHNSON, DAVID) (Entered: 05/28/2015)
56 REPLY to Response filed by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, BRIAN OWENS, RUTHIE SHELTON re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Pre−Answer) (GORE, DEBORAH) (Entered: 06/01/2015)
57 REPLY to Response filed by DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON re 38 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (JOHNSON, DAVID) (Entered: 06/01/2015)
This is a text only entry; no document issued. ORDER GRANTING 54 Motion for
Leave to File Excess Pages. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/2/2015. (abv) (Entered: 06/02/2015)
This is a text only entry; no document issued. ORDER GRANTING 55 Motion for
Leave to File Excess Pages. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/2/2015. (abv) (Entered: 06/02/2015)
58 STATUS REPORT by ASHLEY A DIAMOND (EZIE, A) (Entered: 07/09/2015)
59 CONSENT MOTION for Extension of Time to File Briefing on Plaintiff's Motion for A Preliminary Injunction. by ASHLEY A DIAMOND filed by A CHINYERE EZIE. (Attachments: # 1 Text of Proposed Order Proposed Order)(EZIE, A) (Entered: 07/23/2015)
60 This is a text only entry; no document issued. ORDER: The Court DENIES the
Plaintiff's 59 motion for extension of time until October 27, 2015, to reply to the Defendants' 36 37 responses to the 1 motion for preliminary injunction, but the Court GRANTS the Plaintiff 30 days until and including August 26, 2015, to file her reply. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/27/2015. (abv) (Entered: 07/27/2015)
61 MOTION for Status Conference and RESPONSE in Support re 58 Status Report (Attachments: # 1 Affidavit Declaration of David Dinielli, # 2 Exhibit Exhibit A to Declaration, Retaliation Letter)(EZIE, A) Modified on 7/30/2015 (ggs). (Entered: 07/29/2015)
NOTICE OF SETTING HEARING: Telephone Conference set for 8/11/2015 at 11:30 AM in Macon before US DISTRICT JUDGE MARC THOMAS TREADWELL. Teleconferencing instructions emailed to counsel. (tlh) (Entered: 08/05/2015)
62 Minute Entry for proceedings held before US DISTRICT JUDGE MARC THOMAS TREADWELL: Telephone Conference held on 8/11/2015. Defendants are to provide the Court with the plan prepared by the medical professionals by Friday (8/14/2015). Court Reporter: Darlene Fuller. (tlh) (Entered: 08/11/2015)
63 This is a text only entry; no document issued. ORDER: Defendants are to provide
the Court with the plan prepared by the medical professionals by Friday, 8/14/2015. Defendants may file the plan under seal. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/12/2015. (tlh) (Entered: 08/12/2015)
64 NOTICE of Attorney Appearance by BRETT A Tarver on behalf of DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON Attorney BRETT A Tarver added to party DAVID MCCRACKEN(pty:dft), Attorney BRETT A Tarver added to party DONNA SILVER(pty:dft), Attorney BRETT A Tarver added to party JOHN THOMPSON(pty:dft) (Tarver, BRETT) (Entered: 08/14/2015)
65 SEALED DOCUMENT filed pursuant to 63 text only order(ans) (Entered: 08/14/2015)

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 10 of 11

08/26/2015
09/02/2015 09/14/2015
09/14/2015 09/25/2015 09/28/2015 10/12/2015 10/13/2015 10/21/2015 11/23/2015
11/23/2015

66 REPLY to Response filed by ASHLEY A DIAMOND re 1 MOTION for Preliminary Injunction (Attachments: # 1 Affidavit Declaration of Ashley Diamond, # 2 Affidavit Third Declaration of Dr. Randi C. Ettner, # 3 Affidavit Declaration of Samuel Wolfe, # 4 Exhibit Wolfe Decl. Ex. A − Decl. of Leach, # 5 Exhibit Wolfe Decl. Ex. B − Housing/Treatment Plan, # 6 Exhibit Wolfe Decl. Ex. C − Mental Health Progress Notes of Sloan, # 7 Exhibit Wolfe Decl. Ex. D − Selected Medical Records for Diamond, # 8 Exhibit Wolfe Decl. Ex. E − Selected Mental Health Records for Diamond, # 9 Exhibit Wolfe Decl. Ex. F − Selected PREA Reports for Diamond, # 10 Exhibit Wolfe Decl. Ex. G − Termination Records for Hatcher, # 11 Exhibit Wolfe Decl. Ex. H − Decl. of Berry, # 12 Exhibit Wolfe Decl. Ex. I − Decl. of Moore)(WOLFE, SAMUEL) (Entered: 08/26/2015)
67 MOTION to Dismiss Plaintiff's Claims for Preliminary Injunction and Requests for Declaratory and Injunctive Relief re 1 MOTION for Preliminary Injunction, 3 Complaint by ASHLEY A DIAMOND filed by A CHINYERE EZIE.(EZIE, A) Modified on 9/2/2015 (ggs). Modified on 9/2/2015 (ggs). (Entered: 09/02/2015)
68 ORDER GRANTING 67 Motion to Dismiss. Plaintiff's requests for injunctive and
declaratory relief are DISMISSED without prejudice. Because the claims against the Defendants in their official capacities are only for prospective injunctive relief, all claims against Defendants sued in their official capacities are DISMISSED as moot. The claims in Count 2 against Owens and Lewis in their official capacities are DISMISSED as moot. Count 2 remains pending against Lewis in her individual capacity. In Count 4, Diamond has asserted failure−to−train claims against Owens and Lewis. The failure−to−train claims against Owens and Lewis in their official capacities are DISMISSED as moot. The failure−to−train claim against Lewis in her individual capacity remains pending. Because Diamond sued Owens only in his official capacity, he is DISMISSED as a Defendant. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/14/2015. (tlh) (Entered: 09/14/2015)
69 ORDER DENYING 35 Motion to Dismiss for Failure to State a Claim and
DENYING 38 Motion to Dismiss for Failure to State a Claim. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/14/2015. (tlh) (Entered: 09/14/2015)
70 JOINT MOTION for Extension of Time to File Answer by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, DAVID MCCRACKEN, RUTHIE SHELTON, DONNA SILVER, JOHN THOMPSON filed by ELIZABETH MCRARY CROWDER.(CROWDER, ELIZABETH) (Entered: 09/25/2015)
71 This is a text only entry; no document issued. ORDER GRANTING 70 Motion for
Extension of Time to Answer Complaint. All Defendants have until and including October 12, 2015, to answer the complaint. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/28/2015. (abv) (Entered: 09/28/2015)
72 ANSWER to 3 Complaint with Jury Demand by DAVID MCCRACKEN, DONNA SILVER, JOHN THOMPSON.(JOHNSON, DAVID) (Entered: 10/12/2015)
73 ANSWER to 3 Complaint by MARTY ALLEN, SHAY HATCHER, SHARON LEWIS, RUTHIE SHELTON.(GORE, DEBORAH) (Entered: 10/13/2015)
74 RULES 16/26 ORDER: Proposed Scheduling/Discovery order due by
11/20/2015. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/21/2015. (Attachments: # 1 Required Form, # 2 The Security National Bank of Sioux City, Iowa v. Abbott Laboratories, 2014 WL 3704277 (N.D. Iowa)). (tlh) (Entered: 10/21/2015)
***DISREGARD − FILED IN ERROR*** NOTICE Late Scheduling/Discovery Order: The joint, proposed Scheduling/Discovery Order requested from the parties by the Court's Rules 16/26 Order is now PAST DUE. Unless the proposed order is received within 14 days from this date, the case file will be referred to the district judge for possible sanctions. Proposed Scheduling/Discovery order due by 12/7/2015. Related document: 74 Rules 16/26 Order. (ggs) Modified on 11/24/2015 (ggs). (Entered: 11/23/2015)
REMARK: Scheduling/Discovery Order Deadline extended to 1/29/2016 per Judge Treadwell. (ggs) (Entered: 11/23/2015)

Case 5:15-cv-50 As of: 10/08/2017 02:38 PM EDT 11 of 11

12/16/2015
12/16/2015 01/29/2016 02/11/2016 02/12/2016
09/05/2017 09/05/2017

75 Letter from JAMI NATURALITE regarding requesting copies of the Court's Order of 9/14/2015 and the docket sheet for this case re 69 Order on Motion to Dismiss for Failure to State a Claim. (Attachments: # 1 Envelope)(ggs) (Entered: 12/16/2015)
76 Letter from G. Sellers in response re 75 Letter (ggs) (Entered: 12/16/2015)
Proposed Scheduling/Discovery Order Received and forwarded to Chambers (ggs) (Entered: 01/29/2016)
77 STIPULTIO OF DISMISSALl by ASHLEY A DIAMOND (EZIE, A) Modified on 2/12/2016 (ggs). (Entered: 02/11/2016)
Notice of Deficiency; Wrong event used − the correct event is STIPULATION OF DISMISSAL − NO NEED TO REFILE, DOCKET TEXT HAS BEEN EDITED − (related document(s): 77 Notice of Voluntary Dismissal filed by ASHLEY A DIAMOND ). (ggs) (Entered: 02/12/2016)
78 Letter from DAVID CHRIS KELLY, JR. regarding FOIA Request for all documents contained in file (Attachments: # 1 Envelope)(ggs) (Entered: 09/05/2017)
79 Letter from G. Sellers regarding in response re 78 Letter (ggs) (Entered: 09/05/2017)


[CONTENT]  |||  |||  |||  ||| the Middle District | Georgia | February 19, 2015 | 42 | 1983 | the Georgia Department of Corrections | Rutledge State Prison | Valdosta State ||| Eighth Amendment ||| the Southern Poverty Law Center | the Georgia Department of Corrections ||| 2012 ||| the first month | six ||| more than half a dozen | three-year |||  |||  |||  ||| April 20, 2015 ||| the Georgia Department of Corrections ||| 131 ||| 3d 1353 ||| Less than five months later ||| only three years | an eight year | August 31, 2015 ||| September 14, 2015 ||| First |||  |||  ||| Diamond ||| February 11, 2016 ||| the Georgia Department of Corrections ||| Georgia |||  |||  |||  [SUMMARY] The plaintiff in this case is a transgender female. She was denied medically necessary healthcare and suffered repeated sexual assault and harassment throughout her incarceration. The plaintiff suffered from gender dysphoria and—despite her feminine appearance—the defendant assigned her to a maximum-security male prison. In these facilities, transgender inmates often face the highest risk of sexual violence. 

The plaintiff brought this action in the Middle District of Georgia on February 19, 2015 under 42 U.S.C. § 1983 against the defendant staff at the Georgia Department of Corrections, Rutledge State Prison, and Valdosta State prison. The plaintiff claimed deliberate indifference to her medical needs in denying medically necessary treatment for gender dysphoria, violations of her Eighth Amendment right against cruel and unusual punishment, failure of guards to protect her from serious sexual assault, and failure to train prison personnel regarding transgender inmates' health and safety. Represented by the Southern Poverty Law Center and private counsel, the plaintiff requested declaratory relief, compensatory and punitive damages, attorneys’ fees, and a preliminary and permanent injunction requiring the Georgia Department of Corrections to adhere to professional standards of care in treating inmates that suffer from gender dysphoria. 

The plaintiff was first imprisoned in 2012. Within the first month of her imprisonment, the plaintiff was sexually assaulted by six gang members. The plaintiff was sexually assaulted by other inmates more than half a dozen times throughout her three-year incarceration. The defendants also denied her medically necessary hormone treatment. But the defendants filed a motion to dismiss for the plaintiff's failure to exhaust administrative remedies and failure to state a claim. They also asserted qualified immunity defenses. 

In the meantime, the court denied the plaintiff’s motion for a temporary restraining order, on April 20, 2015. At this hearing, the court put consideration of her preliminary injunction on hold to investigate new policies that the Georgia Department of Corrections had implemented since the beginning of the suit. 131 F. Supp. 3d 1353. 

Less than five months later, the plaintiff was released from prison. She was only three years into an eight year sentence on August 31, 2015. The court then ruled on the defendants' various motions to dismiss on September 14, 2015. First, the plaintiff's claims for injunctive and declaratory relief were mooted and dismissed without prejudice as a result of her release from prison. The court denied the defendants' motion to dismiss the plaintiff's deliberate indifference to a serious medical need claim and failure-to-protect claim because the plaintiff failed to exhaust administrative remedies. Further, the court held that defendant prison personnel were not entitled to qualified immunity on the plaintiff's deliberate indifference to a serious medical need claim and that the defendant medical director was not entitled to qualified immunity on the failure-to-protect claim. Finally, the court held that the plaintiff sufficiently pleaded that defendant medical director failed to train subordinates regarding the safety of transgender inmates and that this failure resulted in deliberate indifference to Diamond’s constitutional right to reasonable protection—the defendant medical director was not entitled to qualified immunity on this claim.  

The parties reached an undisclosed monetary settlement and filed a stipulated dismissal on February 11, 2016. 

As a result of the lawsuit, the Georgia Department of Corrections no longer uses the “freeze frame” policy that prohibited transgender inmates from receiving treatment or updating treatment plans as needed. Many transgender inmates in Georgia now receive hormone therapy. Moreover, the defendants have adopted a sexual assault prevention policy that adheres to federal standards. These prevention policies are supplemented by training programs for prison staffers that address the unique needs of transgender inmates. The case is now closed. 