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Armstrong v. Mid-Level Practitioner John B. Connally Unit

United States District Court, W.D. Texas, San Antonio Division

January 15, 2020

PERZIA BAKARI ARMSTRONG, TDCJ #717565, Plaintiff,
v.
MID-LEVEL PRACTITIONER JOHN B. CONNALLY UNIT, PATIENCE CAIN, IN HER OFFICIAL AND INDIVIDUAL CAPACITIES, ET AL., Defendants.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE.

         Before the Court are Plaintiff Perzia Bakari Armstrong's (“Armstrong”) Amended Complaint pursuant to 42 U.S.C. § 1983, Defendants Patience Cain, Jolly Herrera, Gloria Cruz, and Debra Gloor's motion for summary judgment, Defendant Dr. Walter J. Meyer's motion for summary judgment, and Armstrong's responses thereto. (ECF Nos. 31, 42, 44-45, 46-48, 54, 63, 71, 91, 98, 108). Based on the analysis set out below, Defendants' motions for summary judgment are GRANTED.

         Factual and Procedural Background

         In 1995, Armstrong pled “no contest” to two counts of aggravated sexual assault and one count of aggravated kidnapping. Armstrong v. State, 911 S.W.2d 133, 134 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd). The trial court sentenced Armstrong to life imprisonment on each count, sentences to run concurrently. Id. Armstrong contends that although she was born with male genitalia, she has identified as female since childhood and has “lived the life of a woman in a compromised form since her childhood.” (ECF No. 31).[1] In July 2016, Defendant Dr. Walter Meyer of the University of Texas Medical Branch (“UTMB”) diagnosed Armstrong with gender dysphoria. (ECF No. 31). The American Psychiatric Association defines “gender dysphoria” as a “marked incongruence between one's experienced/expressed gender and assigned gender of at least 6 months duration, as manifested by” at least two of the six following factors: (1) marked incongruence between one's experienced or expressed gender and primary and/or secondary sex characteristics; (2) a strong desire to be rid of one's primary and/or 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; (5) a strong desire to be treated as the other gender; and (6) a strong conviction that one has the typical feelings and reactions of the other gender. Gibson v. Collier, 920 F.3d 212, 217 (5th Cir. 2019) (quoting Diagnostic and Statistical Manual of Mental Disorders (DSM-5)). Armstrong contends she is in great mental and physical distress due to her gender dysmorphia, threatening self-castration, attempting suicide, and engaging in drug use to deal with her distress. (ECF No. 31).

         After diagnosing Armstrong, Dr. Meyer prescribed hormone therapy to be administered every two weeks. (Id.). From the outset, Armstrong claimed hormone therapy was insufficient and requested that Dr. Meyer and medical personnel at the Connally Unit refer or recommend her for sexual reassignment surgery (“SRS”), but all of her requests were denied. (Id.). The prescribed hormone therapy continued, but there were times when Armstrong's injections were delayed. (Id.).

         In 2018, Armstrong, who is in the custody of the McConnell Unit of the Texas Department of Criminal Justice (“TDCJ”) and was previously in the custody of the Connally Unit, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 31). Armstrong brought suit against Dr. Meyer in his official and individual capacities, four members of the medical staff at the Connally Unit in their official and individual capacities, UTMB, Correctional Managed Health Care[2], and TDCJ. (ECF No. 31). Armstrong alleged the defendants: (1) violated her rights under the Eighth Amendment by denying her request for SRS and by delaying and interrupting her scheduled hormone therapy; (2) violated her right to equal protection guaranteed by the Fourteenth Amendment by denying her request for SRS; and (3) violated her right to equal protection guaranteed by the Fourteenth Amendment by refusing to give her access to “personal items approved and available to inmates in female institutions.” (Id.). Armstrong sought injunctive relief against UTMB, CMHC, and TDCJ, and compensatory and punitive damages against all Defendants. (Id.). In response, all Defendants except TDCJ filed motions to dismiss. (ECF No. 38, 42, 45).

         Upon review, this Court granted UTMB's motion to dismiss, stating Armstrong's claims were barred by Eleventh Amendment immunity. (ECF No. 77); see, e.g., Sissom v. Univ. of Tex. High Sch., 927 F.3d 343, 347 (5th Cir. 2019) (holding that when state agency is named as defendant, Eleventh Amendment bars suits for money damages and injunctive relief unless state has waived immunity). In the Order, the Court found CMHC was not a separate state agency, but merely a unit of UTMB. (Id.). Thus, Armstrong's claims against CMHC were dismissed based on Eleventh Amendment immunity as well. (Id.). As for TDCJ, it did not move for dismissal; however, in response to Armstrong's Motion for Default Judgment Against TDCJ, the Court found that as a state agency, Armstrong's claims against TDCJ were also barred by Eleventh Amendment immunity. (ECF No. 82). Accordingly, the Court denied Armstrong's motion for default judgment and dismissed her claims against TDCJ. (Id.). Thereafter, the Court considered the motions to dismiss filed by Dr. Meyer and medical personnel from the Connally Unit-Nurse Practitioner Patience Cain, Registered Nurse Jolly Herrera, Licensed Vocational Nurse Gloria Cruz, and Senior Practice Manager Debra Gloor. (ECF Nos. 42, 45).

         In reviewing the remaining motions to dismiss and Armstrong's responses thereto, the Court found Armstrong's claims against Dr. Meyer and the Connally Unit staff members were barred by Eleventh Amendment immunity. (ECF No. 90); see, e.g., Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 321 (5th Cir. 2015) (holding suit for retrospective relief, including monetary damages, against state official or employee in official capacity is barred by Eleventh Amendment). Accordingly, the Court dismissed Armstrong's claims against Dr. Meyer and the Connally Unit staff members. (ECF No. 90). The Court declined, however, at that time to address Armstrong's claims against these Defendants in their individual capacities. (Id.). In addition, the Court, sua sponte, converted these Defendants' motions to dismiss into motions for summary judgment and ordered Armstrong to show cause with evidence why summary judgment should not be granted in favor of Dr. Meyer and the Connally Unit staff members. (ECF No. 90); see Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (recognizing federal district courts are “widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.”). Thus, the Court must now determine whether Dr. Meyer and the Connally Unit staff members are entitled to summary judgment in their individual capacities or if Armstrong produced evidence precluding it.

         Analysis

         As set out above, Armstrong has three claims remaining against Dr. Meyer and the Connally staff members in their individual capacities: (1) an Eighth Amendment claim based on denial of SRS surgery and delays or interruptions to her hormone therapy; (2) an Equal Protection Clause claim based on denial of access to personal “female” commissary items; and (3) an Equal Protection Clause claim based on denial of SRS surgery. (ECF No. 31). In response, these remaining Defendants contend they are entitled to judgment as a matter of law in their individual capacities on all of Armstrong's claims because she has failed to state a non-frivolous claim. (ECF Nos. 42, 45)

         Standard of Review

         A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Funches v. Progressive Tractor & Implement Co., L.L.C., 905 F.3d 846, 849 (5th Cir. 2018). Where the nonmovant bears the burden of proof at trial, the summary judgment movant must offer evidence that undermines the nonmovant's claim or point out the absence of evidence supporting essential elements of the nonmovant's claim; the movant may, but need not, negate the elements of the nonmovant's case to prevail on summary judgment. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990). A complete failure of proof as to an essential element of the nonmovant's case renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Once the movant shows entitlement to judgment as a matter of law, the nonmovant must bring forward evidence to create a genuine issue of material fact. Giles v. Gen. Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001). Allegations in the nonmovant's complaint are not evidence. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). The nonmovant must go beyond the pleadings, providing actual evidence to show a genuine issue of material fact for trial. Giles, 245 F.3d at 493.

         The court must draw all reasonable inferences in favor of the nonmovant, refraining from making credibility determinations or weighing the evidence. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328-29 (5th Cir. 2017); Hunt v. Pierson, 730 Fed. App'x 210, 212 (5th Cir. 2018) (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). However, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Hunt, 730 Fed. App'x at 212. The Fifth Circuit requires a nonmovant to submit “significant probative evidence” from which the jury could reasonably find for the nonmovant. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). The nonmovant's evidence must raise more than some “metaphysical doubt as to the material facts.” Funches, 905 F.3d at 849. A genuine issue of fact does not exist “if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Hunt, 730 Fed. App'x at 212 (quoting City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014)).

         With regard to claims of qualified immunity asserted in response to civil rights actions such as this one, the standard is different with regard to the burden, i.e., a state official or employee's good faith assertion of qualified immunity defense alters the usual summary judgment burden of proof. See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Once the state official or employee asserts qualified immunity, the nonmovant has the burden to show there is a genuine and material dispute as to whether qualified immunity applies. See Thompson v. Upshur Cty., 245 F.3d 447, 356 (5th Cir. 2001) (“We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.”); Dennis v. Martin, 2:15-CV-0330, 2018 WL 3598770, *2 (N.D. Tex. June 22, 2018) (“A qualified immunity defense, however, alters the usual summary judgment burden of proof, such that governmental employees need only assert the defense in good faith, putting forth no evidence, to shift the burden to the non-movant to show the defense does not apply.”). Despite the shift in the burden of proof, the court must still draw all reasonable inferences in favor of the nonmovant. Brown, 623 F.3d at 253 (“The plaintiff bears the burden of negating qualified immunity, but all inferences are drawn in his favor.”). However, the plaintiff is still required to provide more than mere allegations or unsubstantiated assertions. Mitchell v. Mills, 895 F.3d 365, 370 (5th Cir. 2018).

         Eighth Amendment Claims - Deliberate Indifference

         As to her civil rights claim based on the Eighth Amendment, Armstrong contends Dr. Meyer and the Connally staff members violated her rights by denying SRS and delaying or interrupting her hormone replacement therapy. (ECF No. 31). The defendants contend the evidence shows an absence of deliberate indifference, which is required to establish a civil rights violation under the Eighth Amendment for an inmate's claims of absent or inadequate medical care. (ECF Nos. 42, 45); see, e.g., Gibson, 920 F.3d at 216 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

         1. Applicable Law

         The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const., amend. VIII. It can be cruel and unusual punishment to deny an inmate essential medical care. Gibson, 920 F.3d at 216. As stated by the Supreme Court, “deliberate indifference” to an inmate's serious medical needs violates the Eighth Amendment. Gamble, 429 U.S. at 104. To establish deliberate indifference, an inmate must first demonstrate a serious ...


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