Pernell v. Does 1-7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ARYA MILAN PERNELL,

also known as Aaron Pernell,

#17601-035,

Case No. 23-cv-00374-SPM

Plaintiff,

v.

JOHN DOES #1-7, Members of the

Transgender Executive Council,

DAN SPROUL,

COLETTE PETERS,

IAN CONNORS,

ANDRE MATEVOUSIAN, and

JOHN DOE #8, Medical Director,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Arya Milan Pernell is an inmate in the custody of the Federal Bureau of Prisons

and currently incarcerated at United States Penitentiary in Marion, Illinois (“USP Marion”).

Plaintiff filed this lawsuit pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)

and the Rehabilitation Act, 29 U.S.C. §§ 794–94e, alleging inadequate medical care at the United

States Penitentiary in Marion, Illinois (“USP Marion”). Plaintiff seeks declaratory, injunctive, and

monetary relief. This case is now before the Court for preliminary review of the Complaint under

28 U.S.C. § 1915A, which requires the Court to screen and dismiss any portion that is legally

frivolous or malicious, fails to state a claim for relief, or requests money damages from an immune

defendant. 28 U.S.C. § 1915A(b).

THE COMPLAINT

Plaintiff states that she entered the custody of the Federal Bureau of Prisons (“BOP”) in

2016. (Doc. 1, p. 3). That same year, she began identifying as a transgender woman and informed

BOP staff. On September 1, 2016, a psychologist diagnosed Plaintiff “as being a male to female

transgender.” In April 2019, Plaintiff was diagnosed with gender dysphoria. (Id.). Plaintiff began

receiving hormone therapy in August 2019. (Doc. 1, p. 4). Plaintiff states that she lives as a female

as much as permitted while in custody. She wears makeup and female undergarments and has

developed secondary female sex characteristics. (Id.).

Because of her appearance, Plaintiff asserts that she has been subjected to unwanted sexual

advances and attention from other inmates. (Doc. 1, p. 4). Prior to her transfer to USP Marion,

Plaintiff was housed at Federal Correctional Institution Fairton in New Jersey (“Fairton”). At

Fairton, Plaintiff was the victim of three separate “Prison Rape Elimination Act incidents.”

Plaintiff and staff at Fairton communicated to the BOP Transgender Executive Council that

Plaintiff was receiving unwanted sexual advances. (Id.). Also, while at Fairton, Plaintiff notified

health services that she could no longer live with male genitalia and inquired about “voluntary

castration.” (Id. at p. 5). She communicated to medical personnel that she either had to kill herself

or attempt self-surgery. In July 2020, Plaintiff attempted to castrate herself and was hospitalized.

Plaintiff was evaluated at the hospital by Dr. Ghobrial-Sedky. Dr. Ghobrial-Sedky recommended

that Plaintiff “first and foremost needs assistance with resources and a plan for gender

reassignment surgery.” (Id.).

Plaintiff has met three times with the Transgender Executive Council – April 19, 2021,

July 12, 2021, and April 11, 2022. (Doc. 1, p. 6). The meetings were scheduled in response to

Plaintiff requesting gender confirmation surgery and memos written by staff. Following the first

two meetings, a recommendation was made that Plaintiff was an appropriate candidate for transfer

to a low security male facility in preparation for gender confirmation surgery and eventual transfer

to a female facility, after the surgery was performed. The Transgender Executive Council later

withdrew the recommendation due to a detainer lodge against Plaintiff in 2016. (Id.). The

Transgender Executive Council then recommended for Plaintiff to participate in the sex offender

treatment program and work with her team to resolve the detainer before the Council would

address her requests for gender confirmation surgery. (Id.).

Plaintiff asserts that prior to the evaluation by the Transgender Executive Council, she had

already placed herself on the waiting list to participate in the sex offender treatment program in

2017 and was scheduled to participate in 2020. (Doc. 1, p. 7). Her ability to participate was delayed

due to COVID lockdowns. As to the detainer, she states:

The detainer is the result of an already decided case that carries a sentence that runs

concurrent to [her] current sentence for which she is confined in the FBOP. There

is no way for [her] to resolve the detainer any further than the detainers conclusion

as is.

(Id. at p. 6-7). Plaintiff further argues that her case manager had removed “the detainer custody

points from her custody point sheet,” and she had been transferred from a high security facility in

Tucson, Arizona to a medium security facility in Fairton, New Jersey. Plaintiff claims that the

Transgender Executive Council did not read her detainer points at the time of her review. (Id. at p.

7).

Plaintiff was transferred to USP Marion on October 7, 2021, so that she could participate

in the sex offender treatment program. (Doc. 1, p. 5; Doc. 1-6, 23). After arriving and experiencing

hopelessness “about her journey toward confirmation surgery,” Plaintiff attempted to commit

suicide by hanging herself using a bed sheet. (Doc. 1, p. 5; Doc. 1-1, p. 7). Plaintiff states that she

regularly has been subjected to suicide risk assessments due to her gender dysphoria.

After her transfer to USP Marion, Plaintiff appealed the denial of gender confirmation

surgery to Warden Sproul. (Doc. 1, p. 7). Sproul referred the request for surgery to the Transgender

Executive Council but did not refer Plaintiff’s request for permanent facial hair removal. Sproul

recorded that the hair removal procedure was “purely cosmetic.” (Id.).

Plaintiff then appealed her request for gender affirming procedures to North Central

Regional Director Matevousian. (Doc. 1, p. 8). Matevousian responded to the appeal stating that

Plaintiff had not been denied surgery or electrolysis. He wrote, “we shall defer diagnostic and

treatment interventions to the health services at the local level.” (Id.). Plaintiff then followed up

with local health services. Health services informed Plaintiff that health services “would continue

current plan unless instructed otherwise.” (Id.).

On November 16, 2022, Plaintiff’s final administrative appeal was answered by Ian

Conners. (Doc. 1, p. 9). Conners concurred with the previous recommendations of Matevousian

and Sproul. Conners wrote, “one factor that is considered by the TEC with regard to the process

of obtaining gender-affirming surgery is that there has been significant progress toward transition

as demonstrated by your medical and mental health history.” Plaintiff states that her medical record

demonstrates significant progress. (Id.).

Plaintiff asserts that it has been two years since the first memo was submitted to the

Transgender Executive Council by the warden at Fairton requesting gender confirmation surgery

and other procedures, and her requests have never been definitively answered by the Council.

(Doc. 1, p. 5, 8). Additionally, she has not been provided any change, adjustment, or advancement

in her medical treatment for her gender dysphoria. Instead, she has been directed to other

departments that do not have the authority to provide, grant, or deny her requests. (Id. at p. 8).

DISCUSSION

Based on the allegations in the Complaint and Plaintiff’s description of her claims, the

Court designates the following counts in this pro se action:

Count 1: Eighth Amendment claim against Members of the Transgender

Executive Counsel, Sproul, Connors, Matevousian, and John Doe

#8 for deliberate indifference to Plaintiff’s serious medical needs.

Count 2: Eighth Amendment claim against Members of the Transgender

Executive Counsel for failing to protect Plaintiff from sexual abuse

and harassment.

Count 3: Equal protection claim against Peters for failure to accommodate

Plaintiff’s disability.

Count 4: Rehabilitation Act claim against Peters for failure to accommodate

Plaintiff’s disability.

Any other claim that is mentioned in the Complaint but not addressed in this Order should be

considered dismissed without prejudice as inadequate pled under the Twombly pleading standard.1

Bivens Claims

There is no Congressional authority to award damages to “plaintiffs whose constitutional

rights [have been] violated by agents of the Federal Government.” Ziglar v. Abbasi, 582 U.S. 120

(2017). In Bivens, however, the Supreme Court recognized an implied action for damages to

compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition

against unreasonable searches and seizures. Id. Since this decision, the Supreme Court has

recognized only two other instances in which an implied damages remedy under Bivens is available

for a constitutional deprivation – a Fifth Amendment sex discrimination claim and an Eighth

Amendment claim for denial of medical care for a serious medical condition. See Davis v.

Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). Recent cases have declined

to extend a Bivens remedy to any other contexts and stated that further expansion of Bivens is a

“disfavored judicial activity.” Ziglar, 582 U.S. at 135 (declining to extend Bivens to Fifth

Amendment due process/conditions of confinement/abuse and equal protection claims and to

Fourth/Fifth Amendment strip search claims); Egbert v. Boule, 142 S. Ct. 1793 (2022) (no Bivens

remedy for First Amendment retaliation claim or Fourth Amendment excessive force claim).

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

When presented with a proposed Bivens claim, a district court must undertake a two-step

inquiry. See Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). First, a court asks whether the case

presents a new Bivens context, i.e., whether it is meaningfully different from the three cases in

which the Supreme Court previously implied a damages action. Ziglar, 582 U.S. at 138-140.

Second, if a claim arises in a new context, the court must consider whether any “special factors”

indicate that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and

benefits of allowing a damages action to proceed.” Id. If even one reason gives the court pause

before extending Bivens into a new context, the court cannot recognize a Bivens remedy.

Count 1

Plaintiff asserts that her gender dysphoria is a serious medical need and that Members of

the Transgender Executive Council, Sproul, Matevousian, Conners, and John Doe #8, the BOP

medical director, acted with deliberate indifference by failing to provide adequate treatment,

specifically, gender confirmation surgery and hair electrolysis. (Doc. 1, p. 8, 10). Without proper

treatment, Plaintiff experiences extreme emotional distress and engages in self-harm.

At this stage, Plaintiff has sufficiently stated an Eighth Amendment claim against the

Members of the Transgender Executive Counsel, Sproul, Matevousian, Conners, and the BOP

medical director for failing to take action to secure her medical care. See Perez v. Fenoglio, 792

F. 3d 777 (7th Cir. 2015) (“Deliberate indifference may occur where a prison official, having

knowledge of a significant risk to inmate health or safety, administers blatantly inappropriate

medical treatment, acts in a manner contrary to the recommendation of specialists, or delays a

prisoner’s treatment for non-medical reasons, thereby exacerbating his pain and suffering.”). See

also Mitchell v. Kallas, 895 F. 3d 492, 499 (7th Cir. 2018) (in discussing qualified immunity, the

Seventh Circuit held that “[p]rison officials have been on notice for years that leaving serious

medical conditions, including gender dysphoria, untreated can amount to unconstitutional

deliberate indifference”). Further, this claim does not appear to differ in a meaningful way from

the Eighth Amendment claims in Carlson. Accordingly, Plaintiff may proceed on Count 1 under

Bivens against Defendants in their individual capacities for monetary relief.

To the extent Plaintiff is seeking to sue Defendants in their official capacities under Bivens,

such claims are dismissed. Claims under Bivens are brought against officials in their individual

capacities for money damages. Bunn v. Conley, 309 F.3d 1002, 1009 (7th Cir. 2002); Yeadon v.

Lappin, 423 F. App’x 627, 629 (7th Cir. 2011).

Count 2

Plaintiff’s claim that the Members of the Transgender Executive Committee, failed to

protect her from sexual harassment, assault, and unwanted advances by not approving Plaintiff for

gender confirmation surgery followed by a transfer to a female institution. (Doc. 1, p. 11-12). The

Court finds that this claim involves a new Bivens context and Congress is better suited than the

Judiciary to construct a damages remedy, and therefore, Count 2 will be dismissed.

Plaintiff’s allegations that the Members of the Transgender Executive Counsel are

disregarding her safety are not similar to any of the three cases previously decided by the Supreme

Court. See Ajaj v. Fozzard, No. 14-cv-01245-JPG, 2023 WL 2989654 (S.D. Ill. Apr. 18, 2023)

(declining to extend Bivens to an excessive force claim brought under the Eighth Amendment).

See also Chambers v. C Herrera, 78 F. 4th 110, 1105-06 (9th Cir. 2023) (“No case has extended

Bivens to claims that BOP employees violated the Eighth Amendment by failing to protect an

inmate from other staff members. Carlson also concerned specific actions taken against an

individual inmate, whereas [Plaintiff’s] failure to protect claim would impose Bivens liability for

inaction.”); Looper v. Jones, No. 22-40579, 2023 WL 5184910, at *2 (5th Cir. Sept. 8, 2023)

(failure to protect an inmate from a lethal attack by a cellmate did not state claim under Bivens).

Furthermore, a special factor exists counseling against the expansion of Bivens. Plaintiff, as a

federal inmate, has an avenue of relief through the Bureau of Prison’s Administrative Remedy

Program. See 28 C.F.R. §542.10 et seq. Through this alternative remedial structure, Plaintiff could

seek “formal review an issue relating to any aspect of [her]…own confinement,” including abusive

treatment by staff. 28 C.F.R. §542.10(a). The Supreme Court has directed that “a court may not

fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to

provide, an alternative remedial structure.” Egbert, 142 S. Ct. at 1804 (internal citations and

quotations omitted). Whether or not the Administrative Remedies Program actually provided

Plaintiff with the relief she is seeking is irrelevant to the Court’s analysis, as “the question of

whether a given remedy is adequate is a legislative determination that must be left to Congress,

not the federal courts.” Id. at 1807. Accordingly, the Court finds that the Administrative Remedy

Program forecloses a Bivens claim for the allegations in Count 2, and Plaintiff’s Eighth

Amendment claim for failure to protect is dismissed with prejudice.

Count 3

Plaintiff alleges that BOP Director Peters violated the equal protection clause by not

accommodating her by providing gender confirmation surgery and hair removal procedures. (Doc.

1, p. 12-13).

Plaintiff has not stated a claim for a violation of the equal protection clause under the Fifth

Amendment against Peters. “The Equal Protection Clause…prohibits state action that

discriminates on the basis of membership in a protected class or irrationally targets an individual

for discriminatory treatment as a so-called ‘class of one.’” Reget v. City of La Crosse, Wis., 595

F.3d 691, 695 (7th Cir. 2010) (citing Engquist v. Oregon Dep't of Agric., 553 U.S. 591 (2008);

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiff’s allegation that she was “not

provided accommodations for her disability” is not sufficient. It is not clear if Plaintiff is stating

that because she has an illness she is the member of a protected class or more specifically, because

she is transgender, and she does not plead facts showing that she was singled out by Peters for

disparate treatment because of her membership of a protected class. Nor does Plaintiff plead a

class-of-one claim. The Complaint does not contain any allegations from which the Court can

plausible infer she has been intentionally treated differently from other persons similarly situated.

See Forgue v. City of Chi., 873 F.3d 962, 968 (7th Cir. 2017). Count 3 is dismissed without

prejudice.

Count 4

The Rehabilitation Act (“RA”) provides that “[n]o otherwise qualified individual with a

disability in the United States…shall, solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be subjected to discrimination under any program

or activity receiving Federal financial assistance or under any program or activity conducted by

any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794.

At this point, Plaintiff has sufficiently stated a claim under the RA, and Count 4 will

proceed against Collette Peters, the BOP director, in her official capacity only. See Iglesias v. True,

403 F. Supp. 3d 680, 687 (S.D. Ill. July 25, 2019) (allowing an RA claim for failing to

accommodate the plaintiff’s gender dysphoria to proceed past 1915A review). Count 4 is dismissed

against Peters in her individual capacity.

CLAIM FOR INJUNCTIVE RELIEF

As discussed in Count 1, Plaintiff cannot pursue a Bivens claim for injunctive relief.

Plaintiff, however, can obtain injunctive relief under the RA and generally speaking, against a

high-ranking official named in his or her official capacity. See King v. Hill, 2022 WL 3348789, at

*5 (S.D. Ill. Aug. 12, 2022) (“Under the Court’s general equitable powers, a plaintiff can also

bring a claim for injunctive relief against a federal official in his or her official capacity, if that

officer is responsible for implementing the injunctive relief sought.” (citations omitted)). See also

Pinson v. Othon, No. CV- 2020 WL 6273410, at *5 (D. Ariz. Oct. 26, 2020) (“a prisoner may

bring an on-Bivens action for injunctive relief to stop Eighth Amendment violation based on

conditions of confinement”).

Plaintiff has named all defendants in their official capacities and requests various forms of

injunctive relief, but she does not associate the requests for injunctive relief with any particular

claim. While not clearly pled, the Court will allow Plaintiff to proceed on her request for injunctive

relief under the RA and in connection with her surviving Eighth Amendment claim, as specified

in Count 1. BOP Director Peters is already a defendant in her official capacity under Plaintiff’s

RA claim and shall also remain a defendant in her official capacity for the purposes of

implementing any injunctive relief that may be awarded regarding Plaintiff’s Eighth Amendment

claim.

IDENTIFICATION OF UNKNOWN DEFENDANTS

Plaintiff will be allowed to proceed with Count 1 against the unknown Members of the

Transgender Executive Committee (John Does #1-7) and John Doe #8, the medical director of

BOP. However, these parties must be identified with particularity before service of the complaint

can be made on them. The Plaintiff shall have the opportunity to engage in limited discover in

order to ascertain the identity of those defendants. See Rodriguez v. Plymouth Ambulance Serv.,

577 F.3d 816, 832 (7th Cir. 2009). Director Collette Peters shall be responsible for responding to

discovery aimed at identifying the unknown defendants. Once their names are discovered, Plaintiff

must file a motion to substitute each newly-identified defendant in place of the generic

designations in the caption and Complaint.

REQUEST FOR IMMEDIATE INJUNCTIVE RELIEF

In Plaintiff’s requests for relief section of the Complaint, she asks that Defendants,

“[i]mmediately arrange to have [her] obtain gender confirmation surgeries.” (Doc. 1, p. 14).

Plaintiff did not file a separate motion in support of the request, nor did she set forth the reasons

she is entitled to this relief under Federal Rules of Civil Procedure 65(a). Thus, to the extent

Plaintiff is seeking a preliminary injunction, the request is DENIED without prejudice.

MOTION FOR RECRUITMENT OF COUNSEL

Plaintiff has filed a motion asking the Court to recruit counsel to represent her in this

matter. (Doc. 4, 8).2 Pursuant to 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to

represent any person unable to afford counsel.” When faced with a motion for recruitment of

counsel the Court applies a two-part test: “(1) has the indigent plaintiff made a reasonable attempt

to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of

the case, does the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647,

654 (7th Cir. 2007).

Although Plaintiff has demonstrated reasonable efforts to locate counsel on her own

without success, the Court is not persuaded that she requires court-recruited counsel to assist her

at this time. Plaintiff states that she has not legal training or knowledge of the law. She is relying

on the assistance of another inmate to help prepare documents and review the case. Plaintiff is also

concerned with conducting merits discovery and trying the case before a jury. These obstacles are

not unique to Plaintiff as a pro se litigant and do not warrant counsel at this early stage. Plaintiff’s

Complaint has survived preliminary review, and with help from others, she has demonstrated an

ability to construct coherent sentences and relay information to the Court. Plaintiff even cites to

case law in support of her arguments. Once discovery on the merits commences, if Plaintiff

continues to have difficulties, she may refile her motion. Accordingly, the motion for recruitment

of counsel is DENIED. (Doc. 4).

2 The motion to amend the motion for recruitment of counsel (Doc. 8) is GRANTED.

MOTION FOR SERVICE OF PROCESS

Because Plaintiff has been granted leave to proceed in forma pauperis (Doc. 7), the Court

is obligated to arrange service on her behalf. The Motion for Service of Process at Government

Expense (Doc. 3) is therefore DENIED as moot.

DISPOSITION

Pursuant to Section 1915A, the Complaint survives preliminary review. COUNT 1 will

proceed against the Members of the Transgender Executive Council, Sproul, Connors,

Matevousian, and John Doe #8. COUNT 4 will proceed against Peters. COUNT 2 is DISMISSED

with prejudice and COUNT 3 is DISMISSED without prejudice. Plaintiff may proceed with

her requests for injunctive relief under her RA claim and Eighth Amendment claim, as articulated

in Count 1.

The Clerk SHALL enter the standard qualified protective order pursuant to the Health

Insurance Portability and Accountability Act.

The Clerk of Court is further DIRECTED to complete, on Plaintiff’s behalf, a summons

and form USM-285 for service of process on Defendants Sproul, Peters, Connors, Matevousian,

and the Members of the Transgender Executive Committee and John Doe #8 (once identified); the

Clerk shall issue the completed summons. The United States Marshals SHALL serve Defendants

pursuant to Federal Rule of Civil Procedure 4(e). All costs of service shall be advanced by the

United States, and the Clerk shall provide all necessary materials and copies to the United States

Marshals Service.

Pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally deliver to

or send by registered or certified mail addressed to the civil-process clerk at the office of the United

States Attorney for the Southern District of Illinois a copy of the summons, the Complaint, and

this Memorandum and Order; and (2) send by registered or certified mail to the Attorney General

of the United States at Washington, D.C., a copy of the summons, the Complaint, and this

Memorandum and Order.

Defendants are ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendants need only respond to the issues stated in this

Merit Review Order.

Plaintiff is ADVISED that if judgment is rendered against her and the judgment includes

the payment of costs under 28 U.S.C. § 1915, she will be required to pay the full amount of the

costs, even though her application to proceed without payment of fees was granted. See 28 U.S.C.

§ 1915(f)(2)(A).

Plaintiff is further ADVISED that she is under a continuing obligation to keep the Clerk

of Court and the opposing parties informed of any change in her address; the Court will not

independently investigate her whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See FED. R. CIV. P. 41(b).

IT IS SO ORDERED.

DATED: September 28, 2023

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge

NOTICE TO PLAINTIFF

The Court will take the necessary steps to notify the appropriate defendants of your lawsuit and

serve them with a copy of your complaint. After service has been achieved, the defendants will

enter their appearance and file an Answer to the complaint. It will likely take at least 60 days from

the date of this Order to receive the defendants’ Answers, but it is entirely possible that it will take

90 days or more. When all of the defendants have filed Answers, the Court will enter a Scheduling

Order containing important information on deadlines, discovery, and procedures. Plaintiff is

advised to wait until counsel has appeared for the defendants before filing any motions, to give the

defendants notice and an opportunity to respond to those motions. Motions filed before defendants’

counsel has filed an appearance will generally be denied as premature. Plaintiff need not submit

any evidence to the Court at this time, unless otherwise directed by the Court.