United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
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.
and Procedural Background
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). 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).
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.).
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, 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).
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).
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.
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)
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).
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.
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)).
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).
Amendment Claims - Deliberate Indifference
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
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