# Pernell v. Does 1-7

> District Court, S.D. Illinois · September 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10156839

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** September 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10156839

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156839. Public record. Not legal advice.